– I understand that it is proposed to import mechanics for the postal service. As applicants for the position of mechanic who reside in Australia are to be subjected to a test, I ask whether applicants coming from other countries will also be subjected to a test, and, if so, whether that test will be applied in their own country or after they have, reached Australia. If the test is applied after they reach Australia, I wish to know what will be done with those who fail to pass it.
Mr JOSEPH COOK: Minister for Home Affairs · PARRAMATTA, NEW SOUTH WALES · LP
– I have received the following memorandum on the subject from the Secretary to the Public Service Commissioner : -
With reference to the attached extract from Hansard, I am desired by the Commissioner to state, for the information of the Prime Minister, that, as a result of the publicity which the matter has obtained, a number of communications has been received at this office from persons desirous of employment as telephone mechanics; but, with one possible exception, none give any evidence of possessing the qualifications which are necess&Ty in the positions. In accordance, however, with the desire expressed by the Postmaster-General, the Commissioner is arranging for the insertion of an advertisement in the metropolitan press inviting application from any local men who can efficiently perform the work which will be required of the telephone mechanics whom it is desired to employ to meet the requirements of the Department in Western Australia.
I believe that that invitation is to remain open until next month.
Mr Page:
– Why does not the Department provide for the training of its own mechanics?
Mr Agar Wynne:
– We are trying to do so.
Mr HOWE:
– With due respect, I submit that the Prime Minister has not answered the questions that I asked. I wish to know whether, if mechanics are imported - it may be a month, or it may be six months hence - those who come from abroad will be tested. I? they are to be tested, will the test be applied here or in the country from which ‘they come, and, if it is applied here, what will be done with those who fail to pass it?
Mr JOSEPH COOK:
– I wish to say, once and for all, that this Government do not wish to import mechanics, but, on the other hand, the business of the Department must go on, and if we cannot get the necessary assistance here, we must get it where we can. We would rather get men who live in Australia, if they are competent, than bring people from anywhere else. I cannot answer the hypothetical question put by the honorable member.
Mr MATHEWS: MELBOURNE PORTS, VICTORIA
– With regard to the importation of mechanics for the post office, will the Postmaster-General himself inspect the room where men are examined ? I think that if he did he would see -that the antiquated machinery and tools used are unfit for any mechanic to use. For instance, there are foot drills and antiquated tools that men cannot use.
Mr AGAR WYNNE: LP
– I shall be very glad to inspect the room. I was down there last week to inspect something else. If I had known of this matter, I would have attended to it then.
Mr LAIRD SMITH: DENISON, TASMANIA · ALP; NAT from 1917
– Will the PostmasterGeneral cause inquiry to be made as to the advisableness of attaching a post-office vanto the express train running between Launceston and Hobart, with a view to facilitating the earlier delivery of mails?
Mr AGAR WYNNE:
– I shall be pleased to do so.
page 940
QUESTION
ELECTORAL ADMINISTRATION
Payment for Recount - Alleged Irregularities - Employment op Detectives.
Mr FLEMING: ROBERTSON, NEW SOUTH WALES
– Can the Assistant Minister of Home Affairs say whether the officials who took part in the recount in connexion with the recent election have yet been remunerated for their work?
Mr KELLY: Minister (without portfolio) · WENTWORTH, NEW SOUTH WALES · LP
– The matter was brought under my notice ten days or a fortnight ago, and I then gave the strictest direction that in every case those who had performed work in connexion with the recent inquiry should be paid immediately. I shall make inquiries to ascertain if the instruction has been carried out.
Mr McDONALD: KENNEDY, QUEENSLAND
– Will the honorable gentleman also let the House know what amount of money in the aggregate it has cost to make the recount, and the amount paid to the various scrutineers who have assisted in it?
Mr KELLY:
– Certainly.
Mr McGRATH: BALLAARAT, VICTORIA
– Last week I asked the Assistant Minister of Home Affairs a question regarding an investigation by detectives into the alleged duplication of votes in the electorate of Ballarat. I would like the Minister to inform the House who appointed detectives to undertake that work, and what has been the result of their investigations ?
Mr KELLY:
– The Chief Electoral Officer took whatever action was deemed necessary in connexion with the Ballarat constituency. I have not yet seen the report of the officers appointed-
Mr Page:
– Without the Minister’s sanction ?
Mr KELLY:
– Under the present Ministry the Chief Electoral Officer is allowed considerable latitude in order to secure the proper administration of the Electoral Act. I think that I asked the honorable member for Ballarat last week to give notice of his question. I would prefer that he should do so, and I should then be able to supply him with an absolutely full answer.
page 941
QUESTION
DEPARTMENT OF DEFENCE
Kilts - Royal Naval College : Masters - Encampment - Cockatoo Island: Sick Pay: Regulations
Mr KELLY: LP
– I have much pleasure in informing the honorable member for Barker, who on Friday last asked a question with reference to the retention of kilts, that the Minister has approved of the proposal, and has requested the Military Board to submit details giving effect to it.
Mr FENTON: MARIBYRNONG, VICTORIA
– In the last issue of the Commonwealth Gazette applications are invited for two positious of master in the Royal Australian Naval College, a condition being that the applicant for a senior mastership must have obtained high honours in mathematics at a British university, and must be qualified in physics. Does British university mean a university in the United Kingdom, and, if so, why are persons who have obtained high honours in Australian universities prevented from applying ?
Mr KELLY:
– I shall make inquiries, and give the honorable member a reply later. The honorable member for Corio asked a question on Friday last with reference to the date for holding an encampment. The Minister’s answer is as follows : -
The Defence Department will always endeavour to select the time best suited to meet the requirements of the members of the unit concerned. In the case referred to by Mr. Kendell, the men in question form part of the iSth Infantry Brigade. This Brigade extends from Mildura to Queenscliff, and it will readily be understood how difficult it is to arrange a time to suit the convenience of everybody. . Arrangements have been made for the Brigade to camp at Burrumbeet from the 29th November to the 6th December next, and inquiries made by the Brigadier who recently visited the head-quarters of the regiments in this Brigade, lead to the conclusion that no alteration of dates, at all events for this year, is desirable.
Mr RILEY: SOUTH SYDNEY, NEW SOUTH WALES
– Is the Minister representing the Minister of Defence aware that some accidents have taken place in the construction of the ships at the Cockatoo Island Dockyard, and that injured men do not receive any compensation if they are out of work for a month? Will he see that anything due to the men is paid at the ordinary pay time, instead of keeping them waiting for a month ?
Mr KELLY:
– The desire of the Ministry is that every penny due to men. in such circumstances should be paid at the earliest possible moment. I shall have inquiries made and see what there is in the honorable member’s suggestion.
Mr HOWE:
– As the Cockatoo Island Dock has been taken over by the Commonwealth, will the Minister representing the Minister of Defence endeavour to see that some dockyard regulations are established with regard to wages, working conditions, accident pay, and so forth ? Things are not now in that satisfactory position that is beneficial to the well working of the establishment.
Mr KELLY:
– I shall submit this question to the Minister.
page 942
QUESTION
SPEECH BY THE PRIME MINISTER
Conduct of Business: Application of Closure - Personal Explanation
Mr HIGGS: CAPRICORNIA, QUEENSLAND
– In reference to certain public utterances of the Prime Minister to the effect that the business of the country is being obstructed in this House by the Labour party, I ask the honorable gentleman whether, if he thinks there is obstruction, he will apply the closure, as he is entitled to do under the Standing Orders ?
Mr JOSEPH COOK: LP
– I shall think the matter over, and take note of the fact that members of the Opposition are asking to be “gagged,” thereby clearly indicating to the country that they think they deserve to be.
Mr HUGHES: WEST SYDNEY, NEW SOUTH WALES
– By way of personal explanation, I draw attention to part of a speech delivered last night at Dandenong by the Prime Minister, and reported in the Argus -
The Opposition said, “ Bring along noncontentious Bills, and we will help you; if you will only keep ‘ preference J out of the way, and the postal vote out of the way.” Last Friday the Ministry took them at their word.
Mr SPEAKER:
– The honorable member will not be in order in proceeding in that way. Does he wish to make a statement?
Mr HUGHES:
– No, to make a personal explanation.
Mr SPEAKER:
– This is not a personal explanation at all. So far as I gather the honorable member is reading from a report in a newspaper “something in relation to another honorable member. I have already, on more than one occasion recently, pointed out the practice of the House of Commons in regard to the nature of questions which may be asked. Attention may be drawn by an honorable member to a statement in f> report in a newspaper. The honorable member, however, must vouch for its accuracy. Is the honorable member prepared to do that?
Mr HUGHES:
– What I wish to do, sir, is to call your attention to some remarks made by the Prime Minister which are quite inaccurate, which reflect on our party and on the House. I think I am quite in order in doing that, but if I must proceed under cover of privilege I will do so.
Mr SPEAKER:
– The honorable member must see that the matter does not come under the category of a personal explanation. That must refer to something which affects himself personally, and in which he has been misrepresented, misquoted, or misunderstood. In quoting from a newspaper report he must personally vouch for its accuracy.
Mr HUGHES:
– I should not have called attention to this matter, sir, if my name had not been mentioned. I think I have a perfect right to bring it under your notice.
Mr SPEAKER:
– I will ask for the leave of the House for the honorable member. I think that may put it in order.
Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
– We do not want the leave of the House.
Mr SPEAKER:
– Order ! I am the judge of that.
Mr Joseph Cook:
– What does the honorable member want to do, Mr. Speaker ?
Mr SPEAKER:
– The honorable member desires to make a statement, I understand.
Mr Joseph Cook:
– Is it in the nature of a criticism, or what is it ?
Mr SPEAKER:
– I do not know what is in the mind of the honorable member. All I know is that this is question time, and that anything beyond questions and notices of motions will be irregular. If the honorable member desires to make a statement he can only do so by the leave of the House. Is leave granted ?
Mr Boyd:
– No.
Mr SPEAKER:
-Is there an objection?
Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
– I object to the leave of the House being granted.
Mr SPEAKER:
– The honorable member is too late with his objection. He should have objected when leave was asked.
Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
– I did object at the time. This is most unfair.
Mr Kelly:
– He did object.
Mr SPEAKER:
– In the buzz of confusing conversation I did not catch the honorable member’s objection; but as there seems to have been some misunderstanding, I will put the question again, and ask for silence.
Mr Poynton:
– The honorable member for Henty objected.
Mr SPEAKER:
– Order ! Is it the desire of the House that the honorable member for West Sydney shall have leave to make a statement?
Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
– No, Mr. Speaker. Did you hear that?
Mr SPEAKER:
– There being dissent, the honorable member for West Sydney will not be in order in proceeding.
Mr HIGGS:
– The Prime Minister is reported to have made a speech last evening at a complimentary smoke concert, where there was great enthusiasm. Referring to a question I have on the businesspaper, he suggested that there was obstruction on my part in asking the question. He went further to-day, in reply to a question of mine, and suggested that I ought to be “ gagged.” I think that I have been grossly misrepresented by the honorable gentleman, who ought to know better. In asking the question, sir-
Mr SPEAKER:
– Order ! I understood that the honorable member was making a personal explanation.
Mr HIGGS:
– Yes, sir. I wish to explain that, in asking a question of that character, I have no desire to obstruct business. My desire is only to get on with that public business which, I believe, is noncontentious.
page 943
QUESTION
VOTE OF MR. SPEAKER
Mr J H CATTS: COOK, NEW SOUTH WALES
– Did the Prime Minister, as reported in an interview of the last issue of the Sunday Times, of Sydney, state, in connexion with a motion regarding the Attorney-General’s retainer for the Marconi Company, he expected that when a division took place the Government would win in the usual way with the casting vote of the Speaker j and, if so, what authority had he to make a statement as to how the Speaker intends to -vote ?
Mr JOSEPH COOK: LP
– I had no authority whatever for making the statement.
page 943
QUESTION
ACTING LEADER OF OPPOSITION
Colonel RYRIE. - I want to ask a question, sir, but I am not quite sure as to whom I ought to address, and think that, perhaps, you can assist me. As there seems to be a little friction on the other side, I want to know who is the Acting Leader of the Opposition?
Mr SPEAKER:
– Order ! That is not a proper question to ask.
page 943
QUESTION
DISSOLUTION OF HOUSE OF REPRESENTATIVES
Mr McDONALD:
– In view of the statement made last night by the honorable member for Grampians, at a smoke concert at Dandenong, that he had come to the conclusion that there was no hope of a dissolution of both Houses of this Parliament, will the Prime Minister take the earliest opportunity of asking for a dissolution of this House, so that we may end the present unsatisfactory state of affairs ?
Mr JOSEPH COOK: LP
– I would not for the world do anything so unkind to my honorable friends opposite.
page 943
QUESTION
FEDERAL TERRITORY : ROAD TRACTOR
Mr HOWE:
– A day or two ago I asked the Assistant Minister of Home Affairs a question as to the efficiency of a road tractor in the Federal Territory.; I desire to know whether he has made any attempt to get the information which I then sought?
Mr KELLY: LP
– The honorable member, some three weeks ago, to be accurate
Mr Howe:
– No; it was last week.
Mr KELLY:
– The honorable member raised this question, and, in reply, I promised that inquiries would be made. I have not yet received any written reports on the matter, but I have had oral reports, which do not tally with the statements which he made.
page 943
QUESTION
POLITICAL SITUATION
Mr J H CATTS:
– I wish to ask the Prime Minister whether he knows of any instance in ,the history of responsible government in which a Government, without a majority on the floor of the House, have attempted to carry on public business ?
page 943
QUESTION
QUARANTINE STATION, NORTH SYDNEY-
Mr WEBSTER: MACQUARIE, NEW SOUTH WALES
– I desire to ask the Prime Minister whether he is aware that, during the past week, five small-pox patients escaped from the quarantine area at North Sydney, and mingled with the residents of Manly for some hours? Is it a fact that the Federal authorities have decided to place Manly under strict quarantine with a view to isolating the contacts ?
Mr JOSEPH COOK: LP
– If the honorable memberwill put his question upon the business-paper I will get him an answer.
page 944
QUESTION
BUREAU OF AGRICULTURE
Mr HIGGS:
– I wish to ask the Prime Minister whether he has had any estimate prepared of the cost that will be involved in the establishment of the proposed Bureau of Agriculture?
Mr JOSEPH COOK: LP
– This is the last of these frivolous questions that I shall answer.
Mr Higgs:
– I ask that that statement be withdrawn. The remark is objectionable to me.
Mr JOSEPH COOK:
– I withdraw it, and my reply to the honorable member is that his question is objectionable to me.
Mr HIGGS:
– The Government want to put Bills through the House without giving honorable members any information concerning them. I protest against that course of action.
page 944
QUESTION
ATTORNEY-GENERAL AND MARCONI COMPANY
Acceptance of a General Retainer.
Mr FRAZER: Kalgoorlie
.- I move -
That, in the opinion of this House, Ministers of the Crown should not violate the code of rules of positive obligation laid down by the British Prime Minister (Mr. Asquith), which rules read -
Firstly - That . Ministers ought not to enter into any transaction whereby their private pecuniary interest may even conceivably come into conflict with their public duty;
Secondly - That no Minister ought to accept any kind of favour from persons- who are in negotiation with or seeking to enter into contractual or pecuniary relations with the Government ; and that the action of the Attorney-General (the Honorable W. H. Irvine) in determining to hold a retaining fee from the Marconi Company, now in litigation with the Commonwealth Government, has violated the rules of conduct here laid down, and is detrimental to the best interests of the Commonwealth.
In submitting this motion, I desire to deal with another statement which was made at last evening’s entertainment at Dandenong, where the Attorney-General is thus reported -
He said, without hesitation, that this attack centred upon him was merely a political move in a political game. It was merely brought forward, after being deprecated by Mr. Fisher, with a view, not so much perhaps to injure him as to strike at the Government through him.
Before proceeding further, I should like to ask the honorable gentleman whether he has been correctly reported ? He does not reply. I will give him the exPrimeMinister’s view as to whether that gentleman deprecates the submission of thismotion. Here is an urgent telegram despatched from Brisbane this morning -
Reported here Irvine said, Dandenong last night, Leader Opposition deprecated motion reference his determination continue Marconi Company’s retainer. Statement incorrect.
Fisher
Mr FRAZER:
– I did nob send any wire. But the honorable member for Wide Bay has always endeavoured to speak the truth in this House.
Mr Webster:
– And outside of it.
Mr FRAZER:
– Yes, and outside of it. His conduct is in striking contrast to that of one honorable gentleman who spoke at Dandenong last night, and who made a statement regarding a member of another place and his association with the Chinn inquiry. If, as my honorable friends proclaimed, at Dandenong, no particular significance can be attached to this motion, it is extraordinary that they have had to call to their assistance leading counsel in this city, and that they have had to get two or three leading articles published in one of the morning newspapers here, as well as in Sydney and elsewhere, in order to demonstrate that there is nothing in it.
Mr Joseph Cook:
– We had to get tbem ?
Mr FRAZER:
– If the AttorneyGeneral had not to get assistance in order to support his position, I would like to ask him how the following statement happens to appear in this morning’s newspapers -
In the case of Mr. Irvine, the facts are that he accepted a general retainer from the Marconi Company in December, 1910, which was renewed in December, 191 1, and again renewed in December, 1912.
That statemeut is signed by E. F. Mitchell and W. Harrison Moore. The honorable gentleman made a statement here the other night that his professional honour required that the closest possible secrecy should be observed in regard to every matter that came to his knowledge. In these circumstances, I should like to know how Mr. Mitchell and Professor Harrison Moore knew when these retainers were given to the honor- able member. Is he prepared to say that he was not in consultation with them, with a view to the drawing up of this carefully prepared statement? It is signed by two leading counsel, and, if given to any one outside the bar, would probably have involved a fee of twenty-five guineas to each barrister. Is the honorable gentleman prepared to say that he was not in consultation with them, with a view to the publication of this statement in the morning papers, and that he has not had any talk with them about it ? I do not think that there are in the profession at the present time gentlemen so philanthropic as to be willing to incur, without reward, loss of much valuable time in undertaking the preparation of such a statement. I come now to the position of the company and the AttorneyGeneral’s association with it. The Marconi Company was non-existent in the Commonwealth, so far as Government concerns were involved, when the late Government took office. At that time two stations were being erected for the Commonwealth by the Telefunken Company, having been authorized by the previous Postmaster-General, Sir John Quick. The first intention of the Marconi Company in respect of litigation was against, not the Commonwealth, but the Telefunken Company, who, accordingto the repre- sentatives of the Marconi Company, were infringing their rights. The Commonwealth Government had taken the advice of counsel, and had not only secured a general indemnity from the Telefunken Company in respect of any alleged infringment, but had involved certain individual interests, in addition to those of the company. The ex-Attorney-General, who is the acting Leader of our partyand although the honorable member for North Sydney tried to be funny at our expense, it is well known that the acting Leader of our party is the honorable member for West Sydney - protected the position of the Commonwealth interests in the event of the Marconi Company proceeding with their litigation. The present Attorney-General probably entered the field about this stage,if we accept Professor Harrison Moore and Mr. Mitchell as authorities on the subject. If we cannot do so, then the AttorneyGeneral ought to repudiate them. The next action taken was not by the Marconi
Company against the Commonwealth, but an amalgamation of the Marconi Company and the Telefunken Company in respect to their Australian interests. I am not prepared to say what the bond may be, because gentlemen like **Mr. Denison,** whose proper name is Dixson-
{: .speaker-JUV}
##### Mr McWilliams:
-- Steady !
{: .speaker-JX9}
##### Mr FRAZER:
-- It is a fact. **Mr. Denison** said some pretty rough things concerning me, and his friend, **Mr. McLeod,** of the *Bulletin,* has not been particularly nice. I have a few things to say about them also which it would be as well to make public; but I do not think that this is an opportune time to deal with them. I merely mention the fact that they are associated with one particular interest. Messrs. Blake and Riggall also furnish an opinion about the Attorney-General's position, and incidentally disagree absolutely with the attitude that the honorable member took up in the House. The two companies combined their interests against the Commonwealth, and the Fisher Government proceeded to try to protect the travelling public of Australia by erecting a series of wireless stations around the coast. As a matter of fact, we succeeded in encircling the coast with these wireless stations during our term of office. When we obtained the material we set to work, and built sixteen stations during the last sixteen months of our administration. Whilst we were proceeding with this work the present Attorney-General, by virtue ofhis retainer, was appearing for the Marconi Company against the Commonwealth, and, so far, the Commonwealth has been mulcted in considerable costs. The Attorney-General has told us that the highest degree of confidence must, of necessity, exist between client and counsel. Accepting that dictum as correct, then we are face to face with the fact that the honorable gentleman id thoroughly familiar with the whole of the secrets relating to the proceedings taken by the Marconi Company against the Commonwealth Government for discovery as to the particular system employed by us. The late Government resisted the claim for discovery, but the High Court, by a majority decision, decided against us. A very strong judgment - in my opinion, too strong - was given against the Commonwealth by the Chief Justice of Australia.
{: .speaker-KYV}
##### Mr Riley:
-- He was an advocate for them.
{: .speaker-JX9}
##### Mr FRAZER:
-- Well, he was fairly pronounced in the Court, but I do not propose to deal with his position. **Mr. Justice** Barton concurred with him, but **Mr. Justice** Isaacs delivered a minority judgment in favour of the Commonwealth which was as argumentative and as pronounced as any to which I have ever listened. Whilst in ordinary circumstances fourteen days are allowed in which to apply for leave to appeal, in this case the next step taken by the majority of the Court was to give the Marconi Company an order for discovery within three days. The present Attorney-General did not discontinue his position with the company during any stage of this journey. I presume that he was advising the company in connexion with the case, which was ultimately carried to the Privy Council. Now, the Marconi Company has exercised its right to inspect the working of our system. It has taken drawings, and even photographs, of our system of wireless telegraphy, which was claimed to be distinct from both the Marconi and Telefunken systems. The Postmaster-General himself has Informed me that the examination of the station has taken place, so that the Marconi people know everything about the system, which was assigned to the Commonwealth, and which it was claimed should be kept secret for the special purpose of protecting Australia. The company obtained the whole of this information, and obtained it with the assistance of leading counsel - the present Attorney-General of Australia - who continues to hold a retainer from them. That retainer, however, he says, merely requires that he shall give notice before he accepts a brief against the company. Is that not the statement he makes?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The honorable member had better proceed with his own speech.
{: .speaker-JX9}
##### Mr FRAZER:
-- I intend to do so; but it is consoling to know that I have induced the honorable gentleman to break his silence. I do not say that **Mr. Mitchell** and Professor Harrison Moore were retained for him, because I do not know the facts, but, unless I had told them, I should not like people to know as much about my business as they appear to know about his. In that communication to the *Argus,* this morning, we read -
>Rule V. is identical wilh Rule VI. of the English Bar, and is as follows: - "Rule V. -
>
>If the counsel who has accepted a general retainer for one party should be offered a special retainer or brief by another party, the general retainer entitles the party who has given it to reasonable notice before the offered special retainer or brief is accepted."
That letter is signed by Professor Harrison Moore and **Mr. Mitchell** in support of the position of the Attorney-General. Messrs. Blake and Riggall, who are the attorneys for the Marconi Company, and who briefed the Attorney-General in the previous case against the Commonwealth, have made this statement: -
>The effect of such a retainer is merely to give a client (in return for a trifling annual fee) a first call upon the services of the counsel in question, should he desire to avail himself of the same.
These two statements, in my opinion, do not appear to fit in. One is that only reasonable notice has to be given before a brief is accepted from another party, while the other declares that a retainer means a first call on counsel's services. The latter appears to me to be the commonsense view.
{: .speaker-KXK}
##### Mr Webster:
-- Otherwise, why should there be a retainer?
{: .speaker-JX9}
##### Mr FRAZER:
-- That is a reasonable question. If there is no advantage, what is the use of paying even a trifling sum as a retainer ? The Attorney-General, by the way, will not be delighted to hear his retainer described as a trifling sum; but that is a side issue. In Stroud's *Judicial Dictionary,* second edition, page 1750, the following definition is given: - " To retain " is " to keep in pay," " to hire."
Wharton's *Law Lexicon,* eleventh edition, page 743, which, I think, the AttorneyGeneral will admit, is a standard work, contains the following definition of " retainer " : -
>The contract between client and solicitor or between solicitor and counsel for their professional services; the contract that such services shall not be given to the opposite party.
That does not deal with the question of what release can be got when a general retainer is accepted; and I make the AttorneyGeneral a present of the volume.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I am quite familiar with it.
{: .speaker-JX9}
##### Mr FRAZER:
-- In the *Encyclopaedia Britannica,* page 201, we are told, under " Retainer " -
>A general retainer is one which retains counsel for all proceedings in which the person retaining is a party, and lasts for the joint lives of client and counsel. If any other person offers a special retainer or brief against the general retainer, counsel must give the general retainer notice of such offer - and if, after a reasonable time, the general retainer does not himself specially retain or brief counsel, the general retainer is forfeited.
Ifhe " does not himself " ; but here it is clearly shown that there is a first call on the man who is given a general retainer, and this authority will not, I think, be disputed. The British Prime Minister laid down a certain rule in a case which undoubtedly shook the Home Government in its foundations. I do not say that that is a parallel case with the one now before us.
{: .speaker-JUV}
##### Mr McWilliams:
-- Lloyd-George is making money out of it!
{: .speaker-JX9}
##### Mr FRAZER:
-- As a matter of fact, both the gentlemen involved in the British case lost money ; and that is not so in the present instance. The British Prime Minister lays it down that Ministers ought not to enter into any transaction whereby their private pecuniary interest may "even conceivably" come into conflict with their public duties; and "even conceivably " is a pretty pronounced phrase. The Attorney-General now tells us that he has handed over the question of the Marconi Company's claim to the Minister of External Affairs, to be dealt with by him. No doubt it is very convenient to be able to hand the matter over in this way; but the AttorneyGeneral cannot carry out his duties as the chief law adviser of the Commonwealth if he hands over questions of law to his colleagues, no matter how clever the latter may be. The other day I asked the Attorney-General whether he intended to vote in the event of a compromise coming before the Cabinet for decision, and his reply was, " Certainly." As I have shown, a retainer is repeated in the case of corporations and newspapers, and is for the life of an individual client; and, in view of the enthusiasm of one of the newspapers in this matter, I should like to know whether the Attorney-General has a general retainer from that newspaper. From the honorable gentleman's silence I can only conclude that he does not wish to answer. I am not prepared to say that he has such, a retainer.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The honorable member can hardly expect to be judge and jury and cross-examining counsel rolled into one.
{: .speaker-JX9}
##### Mr FRAZER:
-- I thank the AttorneyGeneral for that interjection, for it fits the case exactly. Can he be judge and jury in a matter in which, he must admit, he is conceivably involved ? Can he, under the circumstances, as the chief law adviser of the Commonwealth, decide, as he may probably decide, this question by his vote in Cabinet ? Can he wholly disregard the knowledge that he must have obtained of the company's affairs while he was working as counsel for them - can he keep his mind a blank when dealing with Commonwealth interests? This suggests another interesting position. Last night, when speaking at Dandenong, the Attorney-General evidently constituted h!*uself judge and jury, and spoke of what was to be the nature of the report that will result from an inquiry at present *sub judice.* As to this parliamentary inquiry, the AttorneyGeneral has said that the chairman is biased, and that the report is a foregone conclusion ; and he recommends the Prime Minister to treat it as an Irish doctor once treated small-pox - with silent contempt.
{: .speaker-KEA}
##### Mr Kelly:
-- Why not raise that issue in another place?
{: .speaker-JX9}
##### Mr FRAZER:
-- I can only raise one issue at a time; and the present issue has the full approval of every member of the Labour party.
{: .speaker-KEA}
##### Mr Kelly:
-- Is that so? It is an amazing piece of news to me!
{: .speaker-JX9}
##### Mr FRAZER:
-- This motion is at the head of the notice-paper, and is evidently to be treated as a motion of censure.
{: .speaker-KEA}
##### Mr Kelly:
-- I had forgotten the Caucus.
{: .speaker-JX9}
##### Mr FRAZER:
-- The honorable member has forgotten a lot of things in his time, including, as I have told him before, his manners. I was dealing with the question of how far a man can be both judge and jury. The honorable gentleman's position, from that point of view, is intolerable. But I am going to put another proposition - as to how his delicate feelings at this stage will allow him to treat this motion.
{: .speaker-KXK}
##### Mr Webster:
-- He is not likely to vote for it.
{: .speaker-JX9}
##### Mr FRAZER:
-- As he has introduced the matter himself, and the issue is an important one, it may be advisable to leave it to his own taste to decide as to what he shall do after he has heard the opinions of authorities. We may as well deal with that phase of the question now. In May's *Parliamentary Practice,* 10th edition, page 264, it is laid down that -
>No charge of a personal character can be raised, save upon a direct and substantive motion to that effect.
That sets out the procedure in a case of this kind. On page 332 *May* says -
>It is a rule, in both Houses, that when the conduct of a member is under consideration, he is to withdraw during the debate. The practice is to permit him to learn the charge against him, and, after being heard in his place, for him to withdraw from the House. . The precise time at which he should withdraw is determined by the nature of the charge. When it is founded upon reports, petitions, or other documents, or words spoken and taken down, which sufficiently explain the charge, it is usual to have them read, and for the member to withdraw before any question is proposed.
{: .speaker-KXK}
##### Mr Webster:
-- Yet the AttorneyGeneral still sits there.
{: .speaker-JX9}
##### Mr FRAZER:
-- I think that he is perfectly entitled to sit there, and to reply to these charges. I am not going to challenge his position in that connexion. But I shall give him the opinion of the most distinguished and capable authorities on parliamentary practice, and leave him to choose for himself. *May* further says, at page 357 -
>An objection to a vote, on the ground of personal interest, cannot be raised or mooted except upon *a.* substantive motion.
Whether the Attorney-General has a personal interest in the result of this vote is for him to decide.
{: .speaker-KQP}
##### Mr McDonald:
-- We can bring that question up after he votes.
{: .speaker-JX9}
##### Mr FRAZER:
-- Bacon, quoted in Broom's *Leqal Maxims,* lays it down that -
>Regard for the public welfare is the highest law.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- The honorable member will be back at Diocletian presently !
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- What page is that?
{: .speaker-JX9}
##### Mr FRAZER:
-- The maxim is quoted on the first page of the book. Redlich, in his work on *The Procedure of the House of Commons,* vol. II., page 238, lays it down that -
>In both Houses of Parliament there is an old rule which forbids a member to use his vote to further his own direct interests.
The author quotes Speaker Abbott as having ruled -
>This interest must be a direct pecuniary interest, and separately belonging to the persons whose votes were questioned, and not in common with the rest of His Majesty's subjects, or on a matter of strict policy.
Redlich comments -
>On the strength of this ruling a motion for disallowing the votes of certain hank directors upon the Gold Coin Bill was negatived.
I suppose that the member's party stuck to him as the party opposite will very likely stick to the Attorney-General now.
{: .speaker-JPC}
##### Sir Robert Best:
-- Will the honorable member's party stick to him ?
{: .speaker-JX9}
##### Mr FRAZER:
-- Honorable members opposite are enjoying a grin now; but what does the Attorney-General, the essence of honour, think? *Redlich* goes on -
>As in all cases when the personal position of a member is brought before the House, it is a strict rule that the member concerned is to be heard in his place, before the question nffecting him is proposed to the House, and that then he must withdraw and 'allow the subsequent proceedings to take place in his absence.
Those passages are cited from one of the highest authorities on the procedure of the House of Commons - an authority who, in my judgment, is second only to May himself. These authorities do not giggle in the presence of a position of this description. I may also remind honorable members opposite that when the conduct of **Mr. Lloyd-George** and **Sir Rufus** Isaacs, the Chancellor of the Exchequer and the Attorney-General to the Asquith Cabinet, was challenged, on account of their association with this same Marconi Company, they did not vote. They did not even remain in the House.
Mir. Roberts. - Does the honorable member expect the same standard here as in England?
{: .speaker-JX9}
##### Mr FRAZER:
-- *Redlich* goes on to say -
>It seems remarkable that a member who is disqualified bv personal interest from voting is entitled to propose motions or amendments. There are other cases in which members might be expected to abstain from voting, not on grounds of pecuniary interest, but from motives of self-respect or respect to the House.
That is pretty pronounced.
There is no rule applicable to such circumstances, but a substantive motion to disallow a vote on such special grounds might be proposed if a member did not see for himself the impropriety of voting.
I leave the consideration of that point with the Attorney-General.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I may tell the honorable member that the rule is embodied in our Standing Orders.
{: .speaker-JX9}
##### Mr FRAZER:
-- If there is a rule in our Standing Orders as to the question of propriety in a case of this kind, and it does not conform to a rule which has stood the test of hundreds of years' experience in the House of Commons, and which is supported by the highest authorities, the honorable member may consider himself free to vote. But he cannot escape the question of propriety being raised in connexion with his vote.
{: .speaker-KEA}
##### Mr Kelly:
-- The comedy is that the honorable member should be laying down the law.
{: .speaker-JX9}
##### Mr FRAZER:
-- The Government have considered this motion sufficiently important to be placed on the forefront of the business sheet. Furthermore, the British Prime Minister has laid it down as a rule of positive obligation that a member of a Government may not associate his pecuniary interest with his public duty. I am not going to make a particular request to the Attorney-General as to what he shall do. I leave it to him, asking him to consider the remarks of his own leader, the Prime Minister, when he said -
>It is quite clear, however, that he cannot be our legal watch-dog and, at the same time, the legal watch-dog of the South Australian Government.
That remark applies perfectly to this position. The Attorney-General cannot be our legal watch-dog and at the same time the watch-dog of the Marconi interests.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Hear, hear !
{: .speaker-JX9}
##### Mr FRAZER:
-- He cannot conceivably be both. I do not intend to say any more, but content myself by submitting my motion to the House.
{: #subdebate-11-0-s2 .speaker-KJE}
##### Mr W H IRVINE: AttorneyGeneral · FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I am rather disappointed with the speech to which we have just listened. I expected, from the flourish of trumpets with which this matter was inaugurated, that we should have from the honorable member a scathing philippic, raking my whole conduct fore and aft. I do not intend to occupy much time in reply to what has been said, nor is it necessary to do so. It will be remembered that the ammunition which the honorable member has used was supplied by me. In reply to a question by him as to the stage at which the Marconi litigation had arrived when the Government took office, and as to what had occurred since, I said that I knew nothing of what had occurred since, because, hav ing been engaged in that litigation, I had handed over the whole case to the Minister of External Affairs, and I added that I had no further connexion with the Marconi Company except what was involved in the holding of a general retainer. At the time I thought that most honorable members would know what is meant by a general retainer helfl by a barrister, but, apparently, the position was not thoroughly understood, and later on the same day I was again questioned by the honorable member. He said -
>I desire to ask the Attorney-General a further question. In reply to the last question put by me, the honorable gentleman stated that he held a general retainer from the Marconi Company. I wish to know whether, in view of the fact that the Marconi Company is engaged in litigation against the Commonwealth - litigation that may involve the Commonwealth in many thousands of pounds - he thinks that he should continue to hold even a general retainer from that company?
My reply was given on the spur of the moment, but I do not withdraw a word of what I said, and I need add very little to it. This was my reply -
>I think that the question proceeds from a misapprehension of what a general retainer, given to a member of the bar, amounts to. A general retainer merely gives to the person giving it the right to call upon the barrister by whom it is received, before he accepts *a* brief from any one else, who may be engaged in litigation, lo give- notice of the intention of the opponent to retain his services. That is all. When that notice is given, the barrister who has accepted the general retainer is obliged, of course, to consider all the circumstances that may, or may not, permit of his accepting a brief. In this case, as I have already said, I have completely severed myself professionally from everything connected with the ligitation by the . Marconi Company. That company, like every other company or individual giving *a* general retainer, has the right to say that it shall have the services of a member of the bar if there is nothing to prevent his giving them. There are a number of other matters in which the Commonwealth has no concern, and with regard to them I should not be justified in depriving the company of its right to my services if there was nothing in the position which I held against my giving those services.
{: .speaker-F4N}
##### Mr Fisher:
-- The honorable gentleman says that he is at liberty to accept a brief from the company in proceedings that do not affect the Commonwealth.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Quite so.
The letter which was published in this morning's newspapers by **Mr. Mitchell** and Professor Harrison Moore, who obtained the necessary information with regard to the facts of the case from myself, elaborates a little, and states with even greater authority, because both gentlemen are members of the English as well as of the Victorian Bar, what the position is. Let me only add that a general retainer does not mean any connexion whatever of a professional character between a barrister and the person who has given it. A general retainer is merely a registration fee. Every barrister is, by the professional rules under which he works, bound to give his services to any member of the public desiring them, unless there are peculiar circumstances preventing him from doing so, such as the holding of the position that I now occupy. I must be forgiven for speaking in what might be considered a rather egotistical way, because it is a necessary part of my statement, but when a man occupies a position of some eminence at the Bar, there is competition for his services, and to prevent any man who may be rich enough from engaging the services of some particular barrister, or perhaps of all the leaders of the Bar, for any particular litigation, it has been the practice, for a hundred years and more, for members of the public to give to barristers general retainers, paying the small fee of five guineas. I do not think that my honorable friends opposite would have taken action in this matter had they not been under a misapprehension, because I cannot think that they have less sense of fair play than those on this side. Like every leading barrister, I hold a large number of general retainers of different dates. The Victorian rules relating to the holding of general retainers follow those of the English, Irish, and Scotch Bars, which have been in force for many generations. These rules are set out in a publication known as the *Annual Practice,* where honorable members may read them. The terms of the engagement to which the acceptance of a general retainer commits a barrister are there stated in black and white, so that there can be no mistake about the position. Following rules imposing limitations as to the character of retainers in different Courts come these general provisions -
>If the counsel who has accepted a general retainer from one party should be offered a special retainer or brief by another party, the general retainer entitles the party who has given it to reasonable notice before the offered special retainer or brief is accepted.
>
>In case a special retainer or brief is offered to counsel by a party other than the party from whom he has accepted a general retainer, the counsel, after giving notice to the party from whom he has accepted the general retainer of the offer of the special retainer or brief, is at liberty to accept the special retainer or brief of the other party, unless a special retainer or brief be given within a reasonable time by the party from whom he has accepted the general retainer.
As I have said, the rules of the Victorian - and, I might add, of the New South Wales - Bar are practically identical with those of the Bars of Great Britain, with this exception, that here it is a definite rule that retainers date in order of seniority, the fee in every case, no matter who may be the counsel, being £5 5s. There is not that provision in the English rules, but there is an understanding to the same effect that is always acted on. General retainers are given by persons who think that they may be engaged in litigation, and desire to secure m advance the opportunity, should the necessity arise, of calling for the services of certain counsel. The general retainers that are given are entered in a register kept by a clerk employed by one, or by a number of, barristers, and stand in that register in the order of their dates. I do not know more than a few of the general retainers that I hold, but were I to say to the Marconi Company, " You must take back your general retainer, and drop out of your place in the list of those desiring my services, going to the bottom of that list," I should be acting contrary to the professional practice that has prevailed in all the Bars in the British Dominions, and contrary to the simplest principles of fair dealing and good faith. No matter what the House might do, and no matter what might be the consequences, I would certainly not disobey the rules of conduct laid down by the Bar for the guidance of its members.
{: .speaker-KEV}
##### Mr Fenton:
-- What is done by the British Attorney-General ?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I shall reply to that question in a moment; but let me first give a practical illustration of the working of a general retainer. There are a number of companies for which, I am informed, I hold general retainers, some prior, and some subsequent, in date to that of the Marconi Company. These companies may all, or any of them, at any moment be involved in litigation with the Marconi Company, or with one another. The Telefunken Company, for instance, gave me a general retainer some time ago. It was engaged in litigation, or contemplated litigation, with the Marconi Com- pany, but I believe that the two companies have settled their differences: I do not know.
{: .speaker-KXK}
##### Mr Webster:
-- They have come together; on the honorable gentleman's recommendation, probably.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I believe that they have come together.
{: .speaker-KXK}
##### Mr Webster:
-- Was it on the honorable gentleman's recommendation ?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Even if it were, I could not, without a breach of professional honour, give an answer to the question. Would any honorable member opposite contend that it is my duty to say co the Marconi Company, " Though you have retained me in priority to the Telefunken Company, yet, as I have become Attorney-General, and you happen to be engaged in litigation with the Commonwealth, from which I have severed myself, I shall not accept the brief which you have the prior right to offer, but shall accept the Telefunken brief instead ' ' ? Is there an honorable member opposite who would venture to say that?
{: .speaker-KEV}
##### Mr Fenton:
-- You would say either.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- That shows that honorable members have no conception of the position before the House. The honorable member for Maribyrnong asked me just now what is the position adopted, by the English AttorneysGeneral. The position adopted by them up to 1895 was exactly the same as that which I have adopted to-day.
{: .speaker-KEV}
##### Mr Fenton:
-- 1892.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- From 1892 to 1895. That practice has been followed throughout, not merely in Great Britain up to that time, but in all the States and in the Commonwealth. But between 1892 and 1895 there were regulations made, after full discussion, with the view of depriving the Law Officers of any right to engage in private practice. I can understand the House desiring to bring forward that as a new matter of policy, as was done in England. Whether it is a wise thing to do will be a matter for the House to determine. It means that you must either dispense with the services of those who have risen highest in the profession, or make a new pecuniary arrangement to meet the circumstances, as was done in England. What they did in England was to provide that the Law Officers should be at liberty to take Crown briefs, and accept fees for Crown briefs, and that their salaries should be raised from £3,500 or £4,000 to £7,000 a year. That information will be found, if honorable members want to find it, in a well-known work. The honorable member for Kalgoorlie has wandered over all the dictionaries and encyclopaedias, as far as I know, except the encyclopaedia which would have given him a little information on the subject. In the *Encyclopaedia of the Laws of England* he will find, under the head of " Advocate," all those rules with regard to general retainers which he has been floating round and never really touched, set out in full. Then, under the head of "AttorneyGeneral," on page 408, he will find a statement of what was actually done in connexion with the position of AttorneyGeneral of England -
>Formerly, the law officers were entitled tt> accept private practice without restriction, but important, although tentative, modifications of this privilege were introduced by regulations embodied in Treasury Minutes of 5th December, 1892, and 29th June, 1894. These regulations, however, were cancelled by a Treasury Minute of 5th July, 1895, which prescribes that for the future the Attorney-General and SolicitorGeneral - who are to receive salaries of *£7,000* and £6,000 per annum respectively - shall not undertake business of any kind on behalf of private clients, and any law officer shall, on appointment to office, return any papers or briefs on behalf of private clients. Provision, however, is made for payment of fees, according to the ordinary professional scales, to the law officers in respect of such contentious business as relates to proceedings, civil or criminal, which have actually been commenced, and in which the Government represents the plaintiff, defendant, or prosecutor.
The actual remuneration then provided for enabling the Crown to obtain the undivided services of the Law Officers amounted to a sum which was sufficient to permit them to secure the services of such men as **Sir Charles** Russell, who was one of the first on whose behalf it was made - the first, I think; **Sir Robert** Finlay, and a number of others whosa names might be mentioned since that date. If the House desires to introduce a new rule altogether, there may be reason for it, but then there are various considerations into which it would have to enter. In the first place, is it worth it ?
{: .speaker-JUV}
##### Mr McWilliams:
-- It might as well apply to all members, not merely to lawyers.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Not necessarily; it might be a part of good policy - that is a matter of policy about which I say nothing at present - that here the Crown should do what has been donein
England - should say to any one who becomes Attorney-General, " You must give up your private practice altogether." In that case, you do one of two things; either you preclude the Crown from getting the advice of those who have the largest practice, or you must make it up to them. In Great Britain they have adopted the latter course. ' In this case, as in every case in Australia, and in Canada, and other places where there is a Bar, the Law officers have been permitted to continue to conduct ordinary practice subject to the ordinary rules. Is it suggested by anybody that, since the Commonwealth began, any Law officer, no matter how large his practice was, has ever given up a general retainer he has held? **Mr. Justice** Isaacs and **Mr. Justice** Higgins-
{: .speaker-KQP}
##### Mr McDonald:
-- The honorable member for Parkes has done so to attend the House.
{: .speaker-K8L}
##### Mr Thomas:
-- And **Mr. George** Fuller said he did when he was elected to the Commonwealth Parliament.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- He gave up a general retainer?
{: .speaker-K8L}
##### Mr Thomas:
-- He gave up his practice, lie said.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I did not know that he practised a3 a barrister. What I said was, Is there an instance of a Law officer, since Federation commenced, having given up any of his general retainers ? He would have no right to give up one unless he gave up all, and he has no right to give up all unless he gives up his private practice.
{: .speaker-KZA}
##### Mr West:
-- I cannot carry on business as a contractor with the Commonwealth after I become a member of the House. Why should a legal man be permitted to do so?
{: .speaker-KEA}
##### Mr Kelly:
-- There is something to answer.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I have never been taught the language; that is the trouble. At page 964 of this book is reported a case which, for the first time, arose in England after this rule had been made. The Law Officers were obliged to »ive up their private practice, and received 1 large compensation for it, amounting to, as has been pointed out, between £15,000 and £20,000 a year all told. **Sir Robert** Finlay held a general retainer from A. He became Solicitor-General and Attorney-General, and ceased to be so on a change of Government. B then gave to **Sir Robert** Finlay a special retainer, which is the same thing as offering him a brief. You have become a man's client when you have given him a special retainer. After **Sir Robert** Finlay left office, B offered him a special retainer to conduct a particular case; **Sir Robert** Finlay said, " I cannot; I have a general retainer, which I had before I took office." The solicitor who offered him this said, " I think that is wrong. I think that your taking office put an end to all general retainers under the new rule." They agreed to refer the point to the then Attorney-General, whose name I have not ascertained. He went into the matter, and decided that the solicitor's view was right - that accepting office under the new rule had the effect that the man retired from practice and all his retainers, *ipsofacto,* ceased to be applicable, and that when he went into practice again new retainers would have to be given. That, of course, is a necessary result of the rule that a man is obliged, on accepting office, to retire from practice.
{: .speaker-KXK}
##### Mr Webster:
-- You are free to accept or reject, if you have any honour.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- There are so many lawyers on the other side that it is difficult to reply to all their arguments.
{: .speaker-KXK}
##### Mr Webster:
-- I have met a man like you in Court.
{: #subdebate-11-0-s3 .speaker-10000}
##### Mr SPEAKER:
-- Order !
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I would remind the honorable member for Gwydir that neither abuse nor insult is a proper substitute for argument.
{: .speaker-KXK}
##### Mr Webster:
-- Your hide is too thick.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- It is, apparently, the only mode that the honorable member can adopt; but I am not going to reply to it, or take notice of it. I am here at the instigation of a charge made by the honorable member for Kalgoorlie, with the express sanction of the Opposition, and I am here to answer it. The honorable member said he had received from the Leader of the Opposition a telegram stating that he did not deprecate the bringing forward of this motion. He, no doubt, misunderstands the character of the statement I made. I say that the Leader of the Opposition did deprecate the bringing forward of a vote of want of confidence on this matter. I propose to cite, from page 426 of *Hansard,* what took place here. It will be recollected that, on a motion for the adjournment of the
House, the honorable member for Kalgoorlie made a somewhat violent attack on myself personally, though his violence has very much modified since that time.
{: .speaker-JX9}
##### Mr Frazer:
-- There is no difference.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The honorable member's attitude to-day is comparatively as mild as that of a sucking dove. Let me show, from *Hansard,* the attitude which the Leader of the Opposition took up at that time. In his speech he referred to the bitterness of my remarks, although I was not conscious of any bitterness in the statement I had made -
>It has to be determined by this, and every other Government, how far Ministers are at liberty to act in their private capacity in such a way as may at certain periods cause conflict between their professional or private interests and those of the Crown.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The honorable member knows that such a question can only be decided on a motion directly dealing with it.
{: #subdebate-11-0-s4 .speaker-F4N}
##### Mr FISHER:
-- It can be dealt with in a nonparty spirit altogether.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Not in the middle of the discussion of a no-confidence amendment.
{: .speaker-F4N}
##### Mr FISHER:
-- The honorable member does not think, I hope-
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The question was raised yesterday by the honorable member for Kalgoorlie, though .it is not connected with or relevant to the no-confidence amendment; and I take it that if the question is to be discussed, it ought to be put into proper shape, and the House permitted to decide it.
Honorable members will see that I was there suggesting that the matter should be taken out of the range of a noconfidence attack, and decided in proper form by the House.
{: .speaker-K8L}
##### Mr Thomas:
-- And it was taken out.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Was it? The Leader of the Opposition proceeded -
{: .speaker-F4N}
##### Mr FISHER:
-- Quite so; I have never had any other idea. My rejoinder to the AttorneyGeneral's last statement is that nearly all such questions are raised during a debate of noconfidence, but I agree that this question cannot be properly decided in the heat of party conflict, which is another matter altogether. The question immediately before us is an abstract one dealing with the rights and privileges, and the honour and integrity, of members of this House and of the Government, and our object is to safeguard the interests of Parliament. The question cannot be decided on a proposed amendment on the Address-in-Reply, but it can be decided as a matter of procedure.
I do not know what he meant by that.
{: .speaker-JX9}
##### Mr Frazer:
-- He meant to meet your request.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
>Honorable members on both sides may see fit by a large majority to say that certain rules shall be observed by this Parliament and Government now and in the future. I think the issue is bigger than party.
I agree with that - in fact, I suggested it; but what are the terms of the motion that is brought forward? The motion, after setting out what I would almost say the platitudinous statements by the British Prime Minister, which every one will agree with, proceeds to say - and that the action of the Attorney-General (the Honorable W. H. Irvine) in determining to hold a retaining fee from the Marconi Company, now in litigation with the Commonwealth Government, has violated the rules of conduct here laid down, and is detrimental to the best interests of the Commonwealth.
Is that the way in which to raise an abstract issue in a non-party spirit? Is there a Government of a British Dominion who would receive that motion other than as a direct motion of censure ? We were asked to accept it as a vote of censure. We were asked when we were going to give time to consider it as such. Yet I am told that I am misrepresenting the exPrime Minister by saying that he deprecated this motion being brought forward as a motion of censure. In listening to the honorable member this afternoon, I could not help recalling the fact that at one stage of his career he underwent a certain course of training for the legal profession. I could not help regretting that he did not go a little further, because the way in which he has rushed to dictionaries to get the meaning of " contracts " is amusing if it is not very instructive. The first great authority with which he came down to crush me was *Stroud's Judicial Dictionary* - a very useful work, but one which is a collection of the different meanings of words taken from judgments given in particular cases. If the honorable member had proceeded a little further in his legal training the very first thing he would have learned would have been that every one of those meanings must be considered in connexion with the circumstances from which it was drawn. He read, for example - " To retain " is, " to keep in pay," " to hire."
That passage, I observe, is carefully marked, so that he should not read any more.
{: .speaker-JX9}
##### Mr Frazer:
-- Nothing more affects the position.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- If the honorable member had looked two lines further down he would have seen that " to retain " does not necessarily prove .that there was a contract. I would like to ask this Justinian from the West: "Did he take the trouble to ascertain in what connexion the word was used?" Doss he know that these expressions were not used in connexiou with a solicitor's retainer ?
{: .speaker-JX9}
##### Mr Frazer:
-- I do not think it makes a bit of difference. We are dealing with the meaning of the word "retainer."
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- And, of course, the word " retainer " has always the same meaning, so that a solicitor's retainer is the same as an executor's retainer ? Does the honorable member know what an executor's retainer is? Does he know what a special retainer is? Immediately after the definition of "retainer" in Stroud's *Judicial Dictionary* reference is made to a very illustrious Judge - Judge Parke - who decided the case of *Elderton* v. *Emmens.* If the honorable member had turned to the case from which the words he quoted were drawn, he would have found that it was -
>A solicitor's retainer of £100 to be given in lieu of bills of costs for advice tendered from time to time.
So much for his first charge. Now, in Wharton's *Law Lexicon* " retainer " is defined thus -
>The contract between client and solicitor.
I do not know that I need follow each of these definitions to the authorities from which they come. But if the honorable member for Kalgoorlie thinks of resuming his training for the Bar, I would urge him, before he accepts anything from a law dictionary, to adopt the ordinary course of seeing in what connexion particular words are used. Then, again, he rushed for his law to the *E ncyclopaidia*
*Britann.ica.* That is a very admirable work, but hardly one to which we may look for expert opinion upon a point of law. Apparently the honorable member consulted all available works except the one or two which directly deal with this matter, such as the *Encyclopædia of the Laws of England,* or Halsbury's *Laws of England.*
{: .speaker-JX9}
##### Mr Frazer:
-- I am not sure that they were always available in the Library.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The main one was available there. I do not suggest for a moment that the honorable member knew of this passage in the *Encyclopaedia of Laws* and deliberately suppressed it. I give him the benefit of the doubt, and attribute his action to ignorance.
{: .speaker-KEV}
##### Mr Fenton:
-- Would not the publishers of the *Encyclopædia Britannica* engage an eminent lawyer to contribute that article?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- It is highly probable. But the passages in the
*Encyclopaedia Britaimica* are put in a general way. If we want a particular definition we go to-
{: .speaker-JX9}
##### Mr Frazer:
-- Go to Blake and Riggall.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- If the honorable member wants a particular definition I would recommend him to go to the actual terms of the contract which are set out in the rules of the Bar of England and the rules of the Bar of Victoria. They set out the only terms upon which general retainers are given. I said last night, and I repeat it now, that this motion is a party move, nothing else. A good many people are looking with considerable interest to see how certain members of the Opposition will act in regard to it - what the honorable member for Bendigo will do, and what the honorable member for Batman will do. .
{: .speaker-KEV}
##### Mr Fenton:
-- Why leave out the exAttorneyGeneral ?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- And the exAttorneyGeneral. I will deal now with the other aspect of the charge which the honorable member for Kalgoorlie made today, and which has nothing whatever to do with the question of a general retainer at all. I have here Wharton's *Law*
*Lexicon,* and upon looking at it, I am afraid thab I cannot give the honorable member the credit for ignorance in this matter. There we have a description of a "retainer" - the passage which the honorable member read -
>A document given by a solicitor to counsel, engaging the person who receives it to appear for a party, either in some particular suit or action in prospect (which is called a special retainer), or in all matters of litigation in which such party may at any time be involved ; this is called a general retainer.
{: .speaker-JX9}
##### Mr Frazer:
-- I quoted all that.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The honorable member did, but what I object to is thab he did not quote the retainer rules, which come immediately after, and which explain the whole position. When a man levels a charge against the private honour of an honorable member, and suppresses what is before his very eyes, he is guilty of the worst possible conduct.
{: .speaker-JX9}
##### Mr Frazer:
-- Let the AttorneyGeneral himself quote it.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I will have nothing to do with the honorable member. The rules of the Bar are set out there.
{: .speaker-KXK}
##### Mr Webster:
-- Why does not the AttorneyGeneral read them?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I have already read them.
{: .speaker-JX9}
##### Mr Frazer:
-- I could not get a copy of your *Annual Practice.*
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- If a gentleman who is entirely ignorant of his way about these matters chooses to launch an accusation which depends upon technical proof, he cannot complain if he cannot find that proof. But this book was available to the honorable member.
{: .speaker-JX9}
##### Mr Frazer:
-- If the Attorney-General is going to resort to Billingsgate, I can use a bit ofit, too.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-Wharton says-
>On the 15th July, 1901, the Bar Council decided that, subject to rules 19, 20, and 21 of the retainer rules, a special retainer is binding if duly tendered, whether accepted or not, and that there is no rule of the profession which makes a general retainer binding on a counsel unless it is accepted by him.
>
>These retainer rules were prepared by the Bar Committee, the predecessors of the Bar Council, and approved by the Attorney-General, and by the Council of the Incorporated Law Society in 1892.
Apparently the honorable member feels himself entitled to take a general statement from a dictionary in which he is given a reference to the rules themselves and to omit reading those rules in order that he may draw a wrong inference from such general statement. That is conduct of which no honorable member of this House ought to be guilty. Now I will deal with the other portion of his charge against me - that I was engaged actively in connexion with the Marconi litigation against the Commonwealth. I have always said that I was. I told him that I was. Everybody knows that I was engaged as counsel for the Marconi Company for many months - as I was perfectly entitled to be. But the honorable member went on to say - he said it for the first time to-day - that after the High Court had decided that the Marconi Company was entitled to inspection of what was going on at the wireless stations established by the Commonwealth, the representatives of that company made an inspection, and, under my guidance, saw what was actually being done.
{: .speaker-JX9}
##### Mr Frazer:
-- I did not say that.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The honorable member did.
{: .speaker-JX9}
##### Mr Frazer:
-- I did not.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Of course, I must accept the honorable member's statement.
{: .speaker-JX9}
##### Mr Frazer:
-- I am willing to show the Attorney-General the uncorrected proof of my speech when I receive it.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- At all events, that is what I understood the honorable member to say. Now, what are the facts ? When I took office there had been no inspection of anything. The order granting an inspection was then the subject of an appeal to the Privy Council. The decision of the Privy Council had not been given, and could not, therefore, be acted upon. Until the honorable member told me to-day I did not know that an' inspection had actually been made. I handed over the entire business to the Minister of External Affairs upon my advent to office, and I have had nothing to do with it since. It has been said that I should be embarrassed in dealing with this matter if a question of compromise arose. I am prepared to make the honorable member a concession in regard to that point. I said before that I should not be in the least embarrassed by my acceptance of a general retainer. But I will make this statement - to some extent a modification of the view which I put before - that I should probably feel unable to deal with a compromise, and that I have not yet been present at any Cabinet meeting which has dealt with the Marconi litigation. If the House is not prepared to trust my honour in regard to this matter I am not fit to occupy the position that I do. Unless we adopt the English practice, which lays it down that an Attorney-General ought to cease private practice on assuming office, we cannot cut persons who fill that position off from the private practice which they have had up to that time. When a man becomes Attorney- General, who has been engaged in intimate relations with a company which has an action against the Government, some such course as I have suggested must be adopted, and, as a matter of fact, always has been adopted. A Minister who finds himself embarrassed by his previous business connexions must adopt some means whereby somebody else shall act in his place. That is the practice which, as far as I know, has always been adopted, and I have adopted it in this instance. It is followed by Judges suddenly taken from the Bar. Sometimes, where the necessities of the situation require it - where, owing to it being impossible to secure the number of Judges necessary to constitute a Bench - a Judge who has recently been raised to the Bench must break away from that rule and sit on a case in which he has been engaged as counsel. That, however, is a practice to be avoided as far as possible by a Judge, and also by the Attorney-General.
{: .speaker-KQP}
##### Mr McDonald:
-- Queensland, on one occasion, had to obtain a Judge from the New South Wales Bench in order to constitute a Court.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Sometimes that has had to be done. Any one occupying such a position has, as far as possible, to separate himself absolutely from everything, whether it be his practice or anything else by which his mind might be embarrassed .
{: .speaker-KEV}
##### Mr Fenton:
-- I understand that **Mr. Justice** Duffy sought to retire from the Bench when a case in which he had been interested as counsel was called on.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Every Judge takes up that attitude. The duty of a Judge compels him to say, whenever a case comes up for consideration in which he has been engaged as counsel, " I shall not sit in this case." Where, however, it is impossible to form a Bench in his absence he must sit. It is not a rule of law that prevents him from sitting in such cases; it is rather a rule of propriety that, as long as a Bench can be constituted without his sitting, he ought not to sit. I have adopted exactly the same rule in regard to this matter. There is no necessity for me to decide any question relating to it, since I have as a colleague a very eminent lawyer, who held office as Attorney-General in a previous Administration, and who is willing to relieve me of that duty. I have adopted a course that would be followed by every AttorneyGeneral, either in England or elsewhere, by handing over the whole matter to him. I have no desire to occupy the attention of the House for any length of time, although J cannot say that I am entirely unconcerned by this motion. It would be hypocrisy for a man to say that he felt no concern in any attack that directly, or even remotely, touched his personal honour. I do not say that I can view any attack of this kind, no mat ter how groundless it may seem to me, without some concern, and that is why I have gone into the facts as fully as I have done. Wherever a professional man is placed in a position of trust and confidence, in which his duty and professional interests may possibly conflict, it is always difficult to know how you are to adjust them so as to prevent a conflict. In all such cases you must trust largely to the honour of the man who is placed in such a position. If you cannot do so, you have no safeguard. But what I desire to make plain above all other things is that these considerations do not arise at all in connexion with a general retainer. They do arise, however, when a man who has been engaged in active practice is put where he has to hold the balance in a case in which his former clients may be directly interested. It is in such a case that difficulty arises. I do not wish to take up further time. I cannot believe that those who support the Opposition outside are more likely than honorable members opposite themselves will be, when they know the real facta, to give an unjust judgment on such a clear and simple issue as this undoubtedly is.I have no interest in the Marconi Company. I now know nothing of the Marconi Company. I have no connexion with it, either direct or indirect. The company merely stands in a list, of very considerable length, of persons who have given me general retainers, and who, in their due order, have the right to call upon me, should they require to do so in future litigation, to give them what they consider to be the benefit of my legal services. I have that connexion, but none other, with the company ; and no other that is adverse to the Commonwealth shall I have, either with that or any other company, so far as any Commonwealth interest is concerned, as long as I remain AttorneyGeneral.
{: .speaker-JLS}
##### Mr Ahern:
-- The honorable member is under no obligation to the company?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- No; and the company is under no obligation to me. It need not give me a brief, even in a case against another company. It need not give me a brief, and I need not accept a brief on its behalf. I have only to give notice, and so afford it an opportunity before accepting a brief in an action against it. In conclusion, I have only to say that I am not sorry that the matter has been brought forward at this time, and I hope that the motion will suffice to clear the air. My action in regard to this matter was carefully considered. The whole position was thought out, and I adopted that course which, in my opinion, was the only one consistent with my professional honour. No vote of the House, and no political consequences of any kind, will make me depart one iota from the line I have laid down.
{: #subdebate-11-0-s5 .speaker-DQC}
##### Mr HUGHES: West Sydney
-- The motion before the House concerns a matter of the greatest possible importance to the Parliament and the country. I quite agree with the view expressed by the Leader of the Opposition that it ought to be discussed without heat and free from the atmosphere of party. The honorable and learned member whose action is the subject of our consideration has treated the matter in a way that leaves some room for dissatisfaction. He said a great deal about the rules of the Bar, but very little about those rules of conduct which govern, and ought to govern, public men. "Very likely he believes that the two things are coincident. It may be that they are, but certainly nothing th°at he said, and no rule that he quoted, supported that position. In my opinion, it is not enough to quote rules of the Bar in a case of this sort, because such rules are meant to govern the conduct of lawyers towards their clients. They are not meant to safeguard the interests of the public in any way whatever. Litigants come before the Court represented by counsel, and as each side has counsel, the rules of the Bar are directed and are admirably adapted to safeguard the interests of the parties. The public, as such, is not generally concerned. Here, however, the public is vitally concerned, and here its counsel must be heard. The representatives of the people here assembled are the counsel, and through them the voice of the people finds expression within the walls of this Parliament. The public has only one adviser, the Cabinet, who form and direct the Executive Councils of this country. It is very necessary, therefore, that the conduct of those who voice the desires of the people and safeguard their interests should be above suspicion.
The duties of a public man are onerous, but they are voluntarily undertaken, and they are quite clear.
No man is forced to come to this House. He comes by virtue of his own free will, and generally he conies gladly. He comes because he thinks it is an honour to represent his country, and when he comes he .must subordinate private interests to the public welfare. And this he knows, or should know, perfectly well. About that there is not the slightest difference of opinion, nor room for any. While that is perfectly true of members of Parliament in general, the rule - from which no one ventured to dissent when quoted by the honorable member for Kalgoorlie - the rule, which is observed in every British Parliament, that a member may not vote upon a matter in which he is personally interested, applies with special force to Ministers. The rule that a man shall not vote upon a matter in which he is personally interested, and everything that springs from it, constitute the very basis upon which public life becomes possible. The administration of the affairs of this country which we are carrying on here - the transaction of the business of the nation - is possible only so long as there is perfect integrity permeating its every fibre, and so long as there is no suspicion that private interests submerge public welfare.
That rule applies to Parliament in general, but in regard to Ministers it has to be applied far more rigidly. The public have, in regard to the action of private members, the safeguard of publicity which is given by discussions in this Chamber, and which insures, to a very large extent, at any rate, that every act and every word shall be open to criticism, if criticism be necessary. But Parliament in these days exists, in the main, for registering the decisions of the Cabinet. Under party government, although it retains its freedom of speech. Parliament has so far lost its freedom of action that it is unable to do little save to, in the vast majority of cases, blindly carry out what the Cabinet determines.
What is the Cabinet? This body unknown to the Constitution has grown up little by little, and has taken to itself such authority, that its very nature has now changed, although its name remains the same. The power of the Cabinet today is such that whilst the powers of the Parliament remain, as far as form and theory go, what they were in practice, what the Cabinet decides is done. Indeed, where, as in this Parliament has been the case almost since its inception, parties have been very nearly divided, it follows that dissent from the decision of the Cabinet is not possible, nor even desirable, from the stand-point of party, and none has ever occurred, so far as I know, on the floor of this House, in matters of first importance.
What is the Cabinet? If we regard this Parliament as representing the public, carrying on the business of Australia Unlimited, the Cabinet is the board of directors of the company. The members of the Cabinet have to decide how much the people shall pay in taxation and how the money shall be spent. They have to determine to whom it shall be paid; they have to decide any claims made against the Government; what claims shall be rejected, and what, if any, shall be compromised. The Attorney-General has sought to make it appear that the position he occupies is in perfect conformity with the rules of conduct laid down by **Mr. Asquith,** the British Prime Minister, and perfectly compatible with the best interests of this Commonwealth. He takes exception to the wording of the motion, in that it is such that it must be regarded by the Government as a vote of censure. I want to say that there is no intention on the part of this party to level a vote of censure in this connexion. Nothing is further from our thoughts. We have put, in the form in which the motion appears on the notice-paper, the action of the honorable and learned member; we have put it in terms personally inoffensive, and as concisely and as clearly as possible. The gravamen of the charge against the honorable gentleman is conveyed in the last paragraph of the motion, which declares that his action violates the rule of conduct laid down by the British Prime Minister, and is opposed to the best interests of the Commonwealth. That is the position we take up; it is for us to establish it. Let us come to the facts, which, happily, are not in dispute. It is admitted that the AttorneyGeneral received and still holds a general retainer from the Marconi Company, and that that company is at present in litigation with the Commonwealth. The honorable member for Kalgoorlie has detailed the steps that led up to the negotiations, but, perhaps, I may be per- mitted to emphasize the point a little. For years, the Marconi Company were in negotiation with the Government to erect their system of radio-telegraphy throughout Australia. Those negotiations ultimately failed. The tender of the Telefunken Company was accepted in regard to two stations. The Marconi Company again opened negotiations in regard to other stations, and for years those negotiations were carried on. This also failed, and the Government decided to go on with a system which its own expert had perfected and assigned to the Commonwealth. The Marconi Company alleges that this system is an infringement of its own. The claim of the Marconi Company against the Government is one of first importance, involving great sums of public money. It is of the utmost moment that the defence should be carried on with due regard to the welfare of the Commonwealth; and no one can deny that in relation thereto a direct conflict has arisen between the interests of the Marconi Company and those of the people of this country. The AttorneyGeneral holds a general retainer from the Marconi Company. He has explained that this means little or nothing; that at present it does not create any obligation between him and the company, excepting the obligation on his part to accept a special retainer for them as against any other company if they so desire. The honorable member for Kalgoorlie, however, has very properly pointed out that people do not give money for nothing ; there must be some object in giving lawyers a general retainer. And this is so obvious that a layman must understand it. As for the amount of the retainer, that is quite immaterial. The object is to insure the contingent services of some man whose advice and counsel at a critical juncture is of material value to the prospective litigant. So much for the general retainer. But we have to look, not only at the present relations between the Marconi Company and the AttorneyGeneral, but at the whole circumstances. Here we have the interests of the Commonwealth and the interests of the Marconi Company in vital conflict. It is not denied that the Attorney-General held a special retainer from the company in its litigation with the Commonwealth before he accepted office. He was, as the honorable member for Kalgoorlie pointed out, in a position to know exactly what the
Marconi Company desired - to know precisely their objects and their plan of campaign. He appeared for the company in the Court, and probably, though we are not precisely so informed, advised them generally in regard to their position. Now he is the Attorney-General for the Crown, and the litigation is still going cn. And the gentleman who is to direct and determine generally what the Commonwealth shall do to best conserve its interests is the gentleman who was the special confidential adviser of the company a little while ago. Here, surely, is a position in which the interests of the Commonwealth may conceivably suffer. This general retainer the Attorney-General says is the merest, flimsiest filament connecting them. Why, then, does he not break it? The honorable gentleman seems to say that this motion is a reflection on his personal honour. He said a great deal about the position of professional men, and told us that reliance on their professional honour was practically the only guarantee the public or the client has. I shall say nothing to belittle the professional honour and integrity of the members of the Bar. They are a body of men whose reputation stands very high; but I have no reason to believe that their reputation stands any higher than that of any other body of men. Professional honour is no more than public honour - no more than the honour of members of Parliament, though that is impugned every day. The Attorney-General himself, at Dandenong, last night, impugned the honour of members of Parliament. It is a curious defence that the honorable gentleman sets up here in answer to the charge. He says, " I have done nothing opposed to the rules of the Bar." But how do these apply to the present case? Let us suppose a trade unionist charged with some offence or conduct conceived to be improper in the circumstances. He says, " Well, your Honour, I have done nothing against the rules of my society." Would that be a defence ? I do not think it would be accepted by the honorable gentleman opposite. Yet that, practically, is the only defence the AttorneyGeneral brings forward to-day. He tells us that we must trust his honour. But we must trust every man's honour, and the honorable gentleman advances nothing new. We have to trust to men's honour in most things in this practical world of affairs. Trial by jury, which is the basis of our system of civil liberty, rests upon that principle. We must trust to the honour and unprejudiced view of every man; and, yet, I have never known a case where counsel did not challenge any man whom he thought would give, or was likely to give, a verdict against his client. What we are impugning is not the honour or the professional honour of the AttorneyGeneral, but that natural bias, which creeps in insensibly, and which every man recognises, makes allowance for, and counteracts, wherever possible.
The Attorney-General says that we ought to believe that he comes to the deliberations of the Cabinet with a mind free from any sort of prejudice and bias, and unaffected entirely by his previous close and confidential association with the Marconi Company. I propose to quote something which I hope the Attorney-General will regard as relevant, and not altogether without interest, in order to show how he, himself, views human nature when placed in the same position as that in which he is now placed. In the *Argus* of Saturday, 21st June, is a report of an extraordinary occurrence in the High Court of Australia, in connexion with the hearing of the Tramway case. It arose through remarks made by the honorable member for Bendigo, who was appearing as counsel, who stated that it was intended to raise certain points involving, possibly, a review of a previous decision by the Court. **Mr. Justice** Duffy and **Mr. Justice** Powers were on the bench; and, under the Judiciary Act of 1912, it is necessary that a majority of the Court shall sit in order to determine constitutional cases. It followed that, unless four Judges could sit, it would be impossible to review a constitutional point already decided, and that, therefore, if in any way it was possible to drive one or two Judges from the bench, it would be impossible to have the case heard. The Attorney-General waa appearing for the other side. On the Thursday, some remarks of **Mr. Feez,** of the Brisbane Bar, brought about the retirement of **Mr. Justice** Duffy and **Mr. Justice** Powers from the bench, on the ground that **Mr. Feez** would not, or did not, consent to their sitting in the case, in the new light of the Court intending to deal with a constitutional matter, and, in fact, review a former decision. The Court adjourned. When it met on the following day, the Acting Chief Justice, **Mr. Justice** Barton, reviewed the whole position. **Mr. Justice** Duffy and **Mr. Justice** Powers had both been connected with the previous case, **Mr. Justice** Duffy as counsel for the union, while **Mr. Justice** Powers, as Crown Solicitor, had been brought indirectly into the case when the Crown intervened. The point raised in effect was that those two gentlemen, by reason of their former connexion with the case, ought not to sit in this instance. It was not pretended that they had a general retainer, or that there was the slightest connexion between them, now that they were Judges, and the litigants before the Court. They are appointed, as every honorable member knows, as High Court Justices for life. Nothing could upset their position; they had nothing to hope in the way of preferment, and nothing to fear in the way of dismissal or retrenchment; they stood there firm and impregnable. But the AttorneyGeneral, and other counsel, objected to their sitting. It is true that the Attorney-General did not admit in so many words that he objected; but I propose to read what **Mr. Justice** Barton said, in order to make it perfectly clear that the Attorney-General was not prepared to have the case heard by a man who had been briefed by the other side, although that man was a Justice sitting on the bench. **Mr. Irvine** had endeavoured to again explain his position. The explanation was not satisfactory. The Acting Chief Justice said: -
>
**Mr. Irvine** said a little more than that. He said : - " That is the position I take up now. We are willing to go on now without the Court constituting itself ' a full Bench. We do not desire to withdraw the invitation. If, on the other hand, this Court is to be reconstituted as a full Bench in order to see whether it should overrule the previous decision, and we were then asked if we consented to the Judges sitting, we might reconsider our decision in the absence of the Chief Justice."
That, I take it, is the recognition of a position so closely analogous to the present as to leave the AttorneyGeneral in a very awkward position. The Attorney-General said, in reply to the Acting Chief Justice -
>I do not think it was exactly that. What I said was, if it should become necessary to reconstitute the Court, I should not withdraw from any objection I might take - I cannot remember the exact words - in case of the reconstitution of the Court without the Chief Justice.
>
>
**Mr. Justice** Isaacs. It was plain to the Bench, that in plain English, you meant that you would not consent to **Mr. Justice** Duffy and **Mr. Justice** Powers sitting to decide whether there should be a revision of the previous decision being entertained unless the Chief Justice was also present.
Practically then, the position thus created was that the Attorney-General, in the best interests of his clients, was not prepared to trust the judgment of two men who had been interested on the other side - no matter how remotely - and whose judgment might, therefore, be considered to be biased. He therefore objected to their presence on the Bench, and they said that they would withdraw. The case stands there as a clear, unmistakable enunciation of that principle that actuates all men in such circumstances, that they are not prepared to trust their case to any one who they think may, by past association, be biased against them. Let us consider the application of that case to present circumstances. Here is the Attorney-General, who has been counsel for the Marconi Company. He was their confidential adviser in their application for inspection, which the Commonwealth Government resisted, in the best interests of Australia. The company followed his advice. He is now counsel for the people. His advice is that which the Commonwealth now has to follow. It is true that he says that he has handed over the matter to his colleague, the Minister of External Affairs, but I say that the AttorneyGeneral cannot divest himself of the functions of his office in that way. He is the chief law adviser of the Commonwealth. From my own personal experience I can say - I cannot recall instances to the contrary - that a Cabinet always takes the advice of its Attorney-General in regard to matters of law. What the Attorney-General says is acted upon. Besides, although the Attorney-General may have handed over this matter to the Minister of External Affairs, he is still a forceful character in this Cabinet. He takes part in its deliberations. He can exercise a vote, and he declares that he will not abandon that right. Yet these associations, these relations, have existed between him and that company whose interests are so vitally in conflict with those of the Commonwealth.
{: .speaker-JRP}
##### Mr Boyd:
-- Is that quite fair? Did not the Attorney-General say that he had not attended a meeting when this matter had been before the Cabinet?
{: .speaker-DQC}
##### Mr HUGHES:
-- The very fact that the Attorney-General handed over the matter to the Minister of External Affairs, and refused to attend a Cabinet meeting when the matter was discussed, are proofs as strong as Holy Writ that the motion which we are now submitting is amply warranted. If the honorable and learned gentleman really believed that there was nothing in this general retainer, if he believed that it was really a mere nothing, like a distant relationship of no particular importance, why did he hand over his office in relation to this most important matter to another Minister, and why did he refrain from attending Cabinet meetings ? **Sir, it** is because he knows perfectly well that the public have just cause to suspect unconscious bias - nothing more; there is no question of personal honour in this - that there is room for dissatisfaction. There is not, I believe, any question of the personal honour of any man who is called upon to act in a public position. I believe that ninety-nine jurymen out of one hundred go into the box with a determination to give a verdict according to the evidence ; but, nevertheless, every lawyer knows that it is a wise thing to challenge six jurymen out of ten who file through. I will put the matter in another way. Let us see exactly how it applies. I have said that the Cabinet are the directors of Australia Unlimited. They carry on the business of Australia Unlimited in secret. No one knows of their deliberations except by the consequences. It is not an uncommon thing for objection to be made to a Judge sitting to try a case if His Honor has shares in a company whose affairs are before the Court. We have seen, in this particular case, that objection was taken to **Mr. Justice** Duffy because he had been counsel, and to **Mr. Justice** Powers because he had been Crown Solicitor, in a previous case; and the Attorney-General himself regarded it as questionable that they should sit on the Bench. But, see how that applies in this instance : Let us reverse the position. Suppose that the Attorney-General had held a general retainer for the Crown, that he had been counsel for the Crown, and had then become a director of the Marconi Company. Does any man mean to say for one moment that his fellow directors would have tolerated his retaining the general retainer for the Crown when the Commonwealth and the Marconi Company were in litigation? Will any man tell me that the Marconi Company would allow one of its directors to hold a general retainer for the Commonwealth when the company was in litigation with the Commonwealth ? Of course not. Every company demands from its directors unwavering allegiance. It would not avail a director of the Marconi Company to quote the rules of the Bar, or the rules of any society whatsoever. His fellow directors would say, and very naturally, "A man cannot serve two masters; the interests of the Marconi Company and the interests of the Commonwealth Government are at variance; a man cannot hold a general retainer from the Commonwealth Government and serve our interests at the same time." I do not think that there is any answer to that position.
And now a word on another point. A defence of the honorable member's conduct has been put forward by Professor Harrison Moore and **Mr. Mitchell,** by Messrs. Blake and Riggall, and by the Attorney-General himself, in regard to the rules of the Bar. All these I accept as statements of the facts so far as the rules, practice, and etiquette of the Bar is concerned. But they are not material to the point under discussion. There is no reflection on the Attorney-General's professional honour, any more than there was any reflection on the personal honour of **Mr. Justice** Duffy and **Mr. Justice** Powers. Yet, as I have said, those two gentlemen were, owing to their having had, in the most remote possible way, a relation with this particular case, objected to, because it was considered that they were calculated to be biased. In the opinion of the AttorneyGeneral, they were not good enough to try the case in the interests of his clients. Why? Because they had acted for and advised the other side. Human nature is built that way. The generality of men cannot purge themselves of bias so completely as to satisfy those who desire justice that it is safe to leave their case in the hands of a man who has been a partisan on the other side.
This motion is not levelled from the stand-point of party, nor with a desire to embarrass the Government. It is put forward in the best interests of the nation, and, indeed, at the request of the honorable and learned gentleman himself, in order that we may lay down, in this year of our Lord, 1913, what is a proper rule of conduct in this respect. And this is the only point to be decided. We are not to look to precedents; but we are to consider whether a man who has had intimate relations with a company now making a claim against the Government, and holds now a general retainer from that company, who is charged with the welfare of the Commonwealth, a custodian of the public purse, who determines how much a man shall be taxed, and how the money shall be spent, is a fit person to be in charge of Commonwealth interests. It is admitted that the honorable and learned gentleman was in close relation to the Marconi Company not very long ago, and that he has not severed his relation with it. We wish to have it determined, therefore, whether he is in a position to see Commonwealth interests in that clear and unbiased light which is necessary. It appears to me that there is no question but that such a position gives rise to very grave doubts. There is no question of personal honour or professional honour in this question. They are not relevant to this case, and they do not affect the position taken up here. It is no use referring us to the rules of the Bar. We must remember how the conception of public duty has evolved. It is not so very long ago since a man could be Attorney-General and at the same time accept a brief against the Crown. Such a practice was at one time fully sanctioned by the rules of the Bar. But public opinion has swept by the rules of the Bar, and the Bar lags panting after public opinion. From time to time it brings up its antiquated procedure to the level of civilization, which always goes on ahead. Therefore, I say most emphatically that it is not for us to be concerned with the rules of the Bar. We are concerned with rules of conduct governing public men in the execution of their public duties. We do not say for one instant that the rules of the Bar are not in perfect accordance with honour and morality so far as they are designed to protect the interests of clients. They are. But that is not here to the point. Here is a case where there is a conflict of interests.
That conflict is real. It concerns matters of such importance that if the Marconi Company wins, the result mav involve a matter of £50,000, £60,000 or £100,000 to this Commonwealth. No one can say that here is not a real and tangible conflict of interests. No one can say for a moment that the honorable gentleman would be accepted as a Judge or as an arbiter, supposing that - as was suggested - the claim of the Marconi Company against the Commonwealth were submitted to arbitration.
{: .speaker-JRP}
##### Mr Boyd:
-- Would any AttorneyGeneral be a fit arbiter when the Commonwealth was a party to a case ?
{: .speaker-DQC}
##### Mr HUGHES:
-- Suppose he was not Attorney-General. Suppose he was outside. The point is this: I want honorable members to look at it from the point of view that there is no reflection in this course. We consider that we are justified in moving this motion and in asking the House to carry it. Whatever may be the fate of the motion, I should be the last to say, or to permit any other person to say, so far as I could prevent it, that any reflection has been cast on the integrity of the Attorney-General, or on his personal or professional honour. The motion has nothing to do with those things; it has to do with the position created by the circumstances in which the honorable gentleman has been placed. These circumstances, in my opinion, make it incompatible with the best interests of the Commonwealth that he should continue to hold the general retainer of the Marconi Company, and he ought to return it.
{: #subdebate-11-0-s6 .speaker-KCO}
##### Mr GLYNN: Minister of External Affairs · Angas · LP
-- It is not necessary to say very much on this subject, because the ground has been covered by the concise, clear, and, to every dispassionate listener, convincing statement of the AttorneyGeneral; but I wish to say a word or two in reply to the remarks of the honorable member for West Sydney. He referred to the Tramways case, which was mentioned in Court on the 21st June, as being absolutely conclusive on this question; but I cannot see that the points then raised have any relevance to those raised by the motion. **Mr. Justice** Duffy had held a brief in the Tramways case before his appointment to the High Court Bench, and it would have been contrary to all principles of ethics, and to the professional practice which is consistent with them, that he should try a case in which he had been engaged as counsel. Had he been merely briefed, he could have' returned the brief, and sat on the case without the slightest reflection being cast on his impartiality. Speaking from a long memory, I recall an instance in which that was done. **Mr. Justice** Williams had been tendered a brief in the Ferret case - I think it was in 1880; I happened to be in Court at the time - and was subsequently appointed to the Bench, but it was agreed that he should try the case, although a criminal one, because he had not read the brief, and had no knowledge of the facts that could in any way affect his judicial discretion. In the case to which the honorable member for West Sydney alluded, some of the facts must have become known to **Mr. Justice** Duffy, as counsel, and to **Mr. Justice** Powers, when acting as Crown Solicitor, at a preliminary stage, and it is inconceivable that, without the consent of the parties interested, either Justice would have sat to adjudicate in the matter. Later, a constitutional question arose, which was common to the Tramways case and to other cases, and I think counsel consented to both the Justices sitting under certain circumstances, and up to a certain point. Those appearing for the parties had such absolute confidence that the traditions of the Bar would be followed by the Justices named, and' knew so well that opinions, if any, expressed had been expressed in a representative capacity, that they felt that they could trust them to give judgment absolutely free from predilection. Subsequently, however, a question arose as to the constitutionality of the Court in regard to certain points.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I consented to the two Justices sitting, and asked them to sit, but the question afterwards arose whether the Court should not be constituted as a Full Court.
{: .speaker-KCO}
##### Mr GLYNN:
-- The question arose whether the consent covered the sitting of the two Justices to enable the Court to be constituted as the Act of last year required. I do not know that counsel withdrew consent to their sitting.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- No. I said that if the Court was going to overrule a previous decision, it should not be done on any consent of mine, if such consent was necessary.
{: .speaker-KCO}
##### Mr GLYNN:
-- Under ordinary circumstances, consent would not have been given, the reason being that **Mr. Jus** tice Powers and **Mr. Justice** Duffy had not only either sent or received briefs, but had acted in the case. As to the position of the Attorney-General in regard to the Marconi Company, he severed his connexion with their litigation with the Commonwealth immediately on accepting office, and has stated that, if a matter should arise in Cabinet requiring the exercise of his discretion as a Minister, he could not - not because of his general retainer, but because of his knowledge of the facts - in duty to* the Marconi Company, give a decision. He could not, under the professional rules that operate, having become, as an advocate, absolutely familiar with the case of the Marconi Company, give a judgment, as a Cabinet Minister, affecting the company, because to do so would affect, through knowledge acquired while the relationship existed, a former client. The honorable member for West Sydney, without impugning the accuracy of the statement as to what the rules of the Bar prescribe, contended that those rules merely regulate the procedure of counsel in their dealings with one another, or with their clients. Does he say that they are not consistent with the rules of conduct which should obtain in this House ? The object of citing them was to show that they were absolutely consistent. The first part of the motion is a homily, and the second an incomplete transcript of something said by **Mr. Asquith.** I ask what " contractual relation " exists between the AttorneyGeneral and the Marconi Company. A general retainer does not bind counsel to accept a special retainer or brief in all circumstances.
{: .speaker-DQC}
##### Mr Hughes:
-- The acceptance of a general retainer imposes an obligation.
{: .speaker-KCO}
##### Mr GLYNN:
-- The rule of the Victorian Bar on the subject, which is the same as that of the English Bar, is this -
>If the counsel who has accepted a general retainer from one party should be offered a special retainer or brief by another party, the general retainer entitles the party who has given it to reasonable notice before the offered special retainer or brief is accepted.
That means that a counsel holding a general retainer from one party, and receiving a special retainer or brief from another party, must give notice of the fact to the party retaining him, so that that party may have reasonable opportunity of giving him a brief or special retainer, which he must accept so long as he does nob embarrass himself by doing so. In Halsbury 's *Laws of England,* Vol. 2, page 407, paragraph 680, it is stated that a special retainer, or brief, need not be accepted where embarrassment would result, and it is then the duty of counsel to refuse to accept it. For instance, the fact that the honorable member for Flinders had become Attorney-General would have entitled him to refuse a special retainer or brief from the Marconi Company. The distinction which is overlooked is the one between the general retainer and the special retainer or brief, the acceptance of which might be in violation of his duty to a client. The position of the AttorneyGeneral, then, is that he is not obliged to take a brief from the Marconi Company, so long as by doing that it can to any extent affect his public duty as a member of the Cabinet. As a matter of fact, he would not, according to the rules of the Bar. The honorable member for West Sydney lias talked about the rules of the Bar. We have pretty good evidence that these rules are consistent with the highest ethics of political life. There is, perhaps, no profession whose hands in this matter have been cleaner than have been those of the Bar. That is the experience in almost every country. So far, then, as to the difference between the general and the special retainer. But I would go further, and point out the position which is always assumed by counsel. They do not surrender their general retainers when they become Ministers of the Crown. Take the case of **Mr. Justice** Isaacs. It was mentioned a few days ago that he had accepted a retainer from South Australia in reference to the Murray question. I have here a copy of his opinion, which shows that as soon as acting on a special retainer became inconsistent with his duty to the Government, he declined to advise, but that so long as it was not inconsistent with his duty to the Government, as Attorney-General, he continued to advise under his general retainer.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- And he would have to be the judge of that.
{: .speaker-KCO}
##### Mr GLYNN:
-- The occasion for deciding that point did not arise in reference to the general retainer, but only arose when a case for opinion was submitted to him, which might possibly cover the Commonwealth's sphere, as well as the relations of two States to one another. The point in issue was the riparian rights of the States against each other, and as that involved the consideration, to some extent, of the navigation question, **Mr. Isaacs,** in effect, said, "I, as AttorneyGeneral, decline to advise on the navigation aspect of the question, because in doing that I might be doing something which would be inconsistent with my position as Attorney-General." But he did not return his general retainer to the State. So far from doing that, he actually acted on the retainer up to a certain point.
{: .speaker-KXK}
##### Mr Webster:
-- That is no more than the honorable member saying that there are two in the same box.
{: .speaker-KCO}
##### Mr GLYNN:
-- No. It shows what is the universal practice of the Bar, and what the Attorney-General followed here. That practice cannot possibly touch his discretion as a Minister of the Crown, or his position as a member of Parliament. At the end of that opinion **Mr. Isaacs** said -
>I need hardly say that, as already indicated both in Parliament and in private consultation, I have not considered this question, and cannot consider it from any stand-point which concerns the Commonwealth. My opinion is confined absolutely to the relations between the States, and must be understood with that proviso.
I need not quote any more. In other words, he advised on the riparian relations of the two States, keeping his general retainer; but he did not advise on the navigation rights, because that might possibly touch the Commonwealth relation to the matter, and, as such, embarrass him in his position as Attorney-General. My honorable and learned colleague has discontinued all connexion with the Marconi case, so far as it relates to the Government; he is out of it altogether. He has a general retainer, under which he is not obliged to take any brief which could possibly touch his position as AttorneyGeneral. If the time ever does arrive when there is another case against the Commonwealth, and a brief or special retainer is tendered to him, then the moment will come when he must decide between his obligation to the public or to the Crown as Attorney-General. He would not, and could not, accept a special retainer; he cannot act for both sides.
The rules of the Bar show that he is not obliged to accept any brief which could possibly touch or embarrass him in his position as Attorney-General. What, then, have honorable members to complain of ? What code of ethics applicable to or practised in Parliament is violated 1 I will put the position without in any sense wishing to be personal. Are honorable members to say, for instance, if a member of the House happens to be secretary of a society, whether it is one for employers or for employes, whether it is in a voluntary or paid capacity, he cannot, on any matter of general legislation which turns up here, record a vote ? Are they to say that if an honorable member is promoted to Cabinet rank, whether as AttorneyGeneral or as Minister of External Affairs, and happens to be in any pecuniary relation to an organization whose doings, or whose policy, or practice may have to be considered by the Cabinet, he must at once, before any question calling for exercise of discretion has arisen, choose between his Cabinet position and, one might say, his position as a member of the House, and his relation to the association ? Why are you to frame one law applicable to one class of society and another law applicable to other classes?
{: .speaker-KEV}
##### Mr Fenton:
-- That is what a good many members on the other side have been doing.
{: .speaker-KCO}
##### Mr GLYNN:
-- That is merely an assertion. I am not making any imputation as to what the practice of honorable members is in this matter, but I do say that there is no obligation upon any Minister who happens to be a secretary, or a prominent member, or a director of a body outside to resign his position on the mere off-chance that some decision may have to be come to in Cabinet which could possibly affect the class to which he belongs.
{: .speaker-KEV}
##### Mr Fenton:
-- Everybody is not chief law adviser to the Crown.
{: .speaker-KCO}
##### Mr GLYNN:
-- Will the honorable member say that every preceding AttorneyGeneral has resigned all connexion with societies whose doings might come before the Cabinet, so as to keep his opinion outside the region of any possible influence ?
{: .speaker-KEV}
##### Mr Fenton:
-- We do know that **Mr. Asquith** has laid down certain rules for his Ministers, and we ought to follow them.
{: .speaker-KCO}
##### Mr GLYNN:
-- In what respect are they violated ? I have a copy of the rules from the English *Spectator,* and also from the Liberal newspaper, the *Nation,* which supports **Mr. Lloyd** George, pointing out that the House could find nothing wrong in the conduct of **Mr. Lloyd** George and **Mr. Rufus** Isaacs, whose positions were challenged by what seemed to be a no-confidence motion, except that they did not display, in a moment of inadvertence, sufficient candour when questioned in the House.
{: .speaker-KEV}
##### Mr Fenton:
-- Why were the rules laid down by **Mr. Asquith** made?
{: .speaker-KCO}
##### Mr GLYNN:
-- They did not touch the. current of debate a bit - either the original motion of **Mr. Cave,** or the amendment of **Mr. Balfour,** or the amendment finally carried. They were quoted by Mr.' Asquith to show what were the rules of prudence and common decency which ought to be applicable to members of Parliament. But there was no assertion from beginning to end by him that they were in any respect violated by the case which, on first presentation, somebody considered compared to the case that honorable members on the other side are seeking to set up here.
{: .speaker-KQP}
##### Mr McDonald:
-- Why was it handed from the present Attorney-General over to you ?
{: .speaker-KCO}
##### Mr GLYNN:
-- The honorable member can surely see the relevancy of that act. How could the present Attorney-General take up tile case against the Marconi Company that was pending at the time he took office? How could he, with his knowledge of the facts derived from a client with whom he had ceased to have relations, go on to the opposite side, and, with the knowledge so acquired, in a specific case act against him ?
{: .speaker-KQP}
##### Mr McDonald:
-- That proves the position taken up on this side.
{: .speaker-KCO}
##### Mr GLYNN:
-- How ?
{: .speaker-KQP}
##### Mr McDonald:
-- That he himself thought it was not right to be there, and handed the case over to you.
{: .speaker-KCO}
##### Mr GLYNN:
-- The merest tyro would' consider that it was not right to continue the conduct of the case.
{: .speaker-KQP}
##### Mr McDonald:
-- And that was why he handed it over to you.
{: .speaker-KCO}
##### Mr GLYNN:
-- What is the logical result of the interjection?
{: .speaker-KQP}
##### Mr McDonald:
-- It is that he should not -have taken the AttorneyGeneralship and allowed you to do it.
{: .speaker-KCO}
##### Mr GLYNN:
-- If that is the case, no barrister ought to go on to the Bench because, possibly, there might come before him some case in which his previous knowledge and relation to a client might limit his right to sit.
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- It means that, while he is Attorney-General, there are certain private individuals who may come in conflict with the Government, and we shall then lose the benefit of his advice as Attorney-General.
{: .speaker-KCO}
##### Mr GLYNN:
-- If that is the code which is to govern, I am afraid that, at times, on both sides of the House, there are many honorable members who ought not to be here.
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- You may think that, but it does not get over the difficulty in which the Attorney-General is placed.
{: .speaker-KCO}
##### Mr GLYNN:
-According to that theory, a man must not be a member of a corporation because his vote here might be prejudiced, because there is such a relation between his position as a member of a municipal corporation and that of a member of the House, that he must discontinue his relation with the corporation if he wishes to act honestly as a member of the House. He must get rid of all associations with which he is connected that might bias his judgment here. The Constitution does not say so ; it draws a clear distinction between what is a substantive interest and what is a mere shadowy one. There is no objection to an honorable member casting his vote in the House in relation to some matter affecting a company of which he is a member. It is only where the membership is less than twenty-five that the interest becomes one of substance. If you followed the suggestion of honorable members all round the compass, it would mean that it would be almost impossible to get the best class of men to sit in Parliament. The very same thing applies to a Minister. There is no necessity, however, to wander into these comparative irrelevancies. The point is that there is no contractual relation that is violated here, or, indeed, established by any general retainer. The moment that self-interest clashes with one's duty to the Crown, or to the public, as a member of Parliament, at that moment the general retainer is conditioned by another rule, and that is that the Minister affected can refuse to act on the special retainer.
{: .speaker-JMB}
##### Mr Arthur:
-- Why are there not any contractual relations?
{: .speaker-KCO}
##### Mr GLYNN:
-- When the special retainer is tendered, the Minister is not obliged to accept it if he will be embarrassed by doing so. In England, automatically, now, the moment an AttorneyGeneral is appointed, all his 'private retainers go, because he must only do Crown work. When the position of AttorneyGeneral was similar to ours, when he could still carry on private practice, they still trusted to the honour of the Bar, which has never been ignored. No honorable member will assert that. Has there ever been a case in which a member, as regards retainers, has been successfully challenged in the House ? I do not remember one-.
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- In South Australia, wehad a case when the Attorney-General advised the Government one way, and then took up the case for a private individual and beat the Government.
{: .speaker-KCO}
##### Mr GLYNN:
-- I do not want to refer to that case; but if I did it would rather strengthen my position, because a special retainer was tendered and counsel ultimately refused to act. I do not wish to dwell upon the case. Therules regulating the conduct of barristers, as laid down in 1892 in England, are absolutely, in every point, consistent with, the code of etiquette which ought to operate with honorable members. From time to time these matters are challenged in Parliament. There was a discussion inParliament on the Marconi case. It was said that even **Sir Edward** Carson and **Mr. F.** E. Smith ought not to accept retainersin the Matin case and the Chesterton case on the ground that their judgment in Parliament might be affected ; but that has not been accepted as a principle operating even with legislators.
{: .speaker-KEV}
##### Mr Fenton:
-- What operated with **Sir Charles** Russell ?
{: .speaker-KCO}
##### Mr GLYNN:
-- What he himself said operated with him. He found that there was a specific charge of " Parnellism and crime " raised by the *Times.* He found that a Commission to inquire into that case was to be appointed by Act of Parliament, and that he would have t'o vote on the measure. And, as he stated to the *Times,* when they wrote what he considered to be not a perfectly correct apprehension of the position he assumed, ' because he intended to act for the opposite side."
{: .speaker-JMB}
##### Mr Arthur:
-- He did not want his hands tied in Parliament.
{: .speaker-KCO}
##### Mr GLYNN:
-- They thought that on that point he was perhaps too quixotic. This chivalry was not called for by his position; but he went beyond that in his letter to the *Times,* because he told them that, not only was he acting on this principle, but that he intended to take a brief from the opposite side, so that the retainer of a brief from the Crown was absolutely out of the question. But the absurdity of holding that a possible conflict of interests which may never arise, and can be dealt with when it does, must disqualify a man from accepting office as a Minister, or from becoming a member of Parliament, is clearly shown by the criticism of the cases which appear in the English newspapers. The *Nation* of 21st June last states -
>Members of Parliament have frequently appeared as counsel in great political cases, and it was always held proper and natural that they should do so. In the greatest political trial of the last generation - for example, the Parnell case - the leaders on both sides were members of the House of Commons; **Sir Chas.** Russell, **Sir Robert** Reid, **Mr. Lockwood, Mr. Asquith,** and **Mr. Arthur** O'Connor appearing for **Mr. Parnell,** and **Sir Richard** Webster and **Sir 'Henry** James for the *Times.* Indeed, it would be generally recognised as absurd that, in a case where effective argument involves an intimate acquaintance with politics the only counsel likely to possess such knowledge shall alone be excluded from appearing in the case, and that the ground for that exclusion shall be the occupation of a post by which such knowledge can be best acquired.
If these rules, which honorable members consider obligatory only on this particular occasion, are to be observed, we should have to disqualify about two-thirds of the members of Parliament. The rules of the Bar are absolutely consistent with the highest standard of conduct. In Brougham's case, he was AttorneyGeneral for the Queen of George IV. at the time, and against the strongest remonstrances of Court opinion he took a stand to defend her.
{: .speaker-KEV}
##### Mr Fenton:
-- That was long prior to 1895.
{: .speaker-KCO}
##### Mr GLYNN:
-- However, I do not wish to labour this question. My point is that no person accepting a general retainer is bound to do anything which at all affects his position, either as a member of Parliament, or as a member of the Ministry. The moment the two interests clash, he may refuse a brief, or decline a retainer. That is the position here. Any knowledge of the facts which the AttorneyGeneral may have acquired as counsel for the Marconi Company is at an end. Consequently, his judgment cannot possibly be biased. He is not obliged to accept any brief which that company may tender, and therefore I fail to see why this motion has been tabled. It has been said that the Attorney-General should not vote upon the motion. Have honorable members gone behind *May,* or behind the textbooks as to the right of an honorable member to vote? I could cite halfadozen cases to show that the AttorneyGeneral is entitled to vote upon this question.
{: .speaker-KEV}
##### Mr Fenton:
-- In the great majority of cases of the kind those whose conduct is challenged do not vote.
{: .speaker-KQP}
##### Mr McDonald:
-- Suppose anybody challenged his vote?
{: .speaker-KCO}
##### Mr GLYNN:
-- Votes have been challenged in a great number of cases, and it has been held that where there was not a direct and proximate pecuniary interest the member was entitled to vote. Upon one occasion, when a motion was tabled to reduce the salary of a Minister, it was held that he was entitled to vote because the question at issue was a public one. I repeat that there is absolutely no justification for tabling this motion.
{: #subdebate-11-0-s7 .speaker-JMB}
##### Mr ARTHUR: Bendigo
.- The Attorney-General has said that he is very interested to know how I intend to vote upon this question. I do not propose to allow him to be consumed with anxiety until the division is taken, and therefore I tell him now that I intend to vote for the motion. Debate as to legal etiquette or legal ethics, the position of which is embodied in the rules of the Bar, is to a great extent beside the issue. I look at the matter from this point of view, " What does the man in the street think?"
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- It looks as if the honorable member did.
{: .speaker-JMB}
##### Mr ARTHUR:
-- The position is clearly laid down in a work by the honorable gentleman himself, which applies the principle that I submit is the principle which should govern this matter. He should be judged by that very principle. I do not prefer a charge of personal corruption or personal bias against the honorable gentleman. I have had the opportunity of being associated with him in the conduct of certain cases, and I have also been opposed to him in the conduct of others. ,So far as I know not one word can be said which would put a stain upon his personal honour. But this question, as I view it, is one of political propriety, and I say that it should not be governed by what the fraternity of lawyers, to which the Attorney-General and myself belong, may think, but by the effect which his action is likely to have upon the people of the community.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Who has suggested that this matter should be governed by a body of lawyers? I quoted their rules to show what a general retainer is, and for that purpose only.
{: .speaker-JMB}
##### Mr ARTHUR:
-- The whole matter has been debated from the point of view of the rules which were so extensively quoted both by the honorable member for Kalgoorlie in moving the motion, and by the Attorney-General in his reply. The AttorneyGeneral, it has been truly urged, is the legal watch-dog of the Commonwealth, and the man in the street naturally says, " Here is the legal watchdog of the Commonwealth, and here is a case in which he has been extensively engaged." The honorable gentleman says that he has thrown that case overboard - that he has no further connexion with the Marconi Company. But there is another link between him and that company in what is known as a general retainer.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Does the honorable member say that that is a link between me and the present litigation?
{: .speaker-JMB}
##### Mr ARTHUR:
-- There is a link between the Marconi Company which has been engaged in that litigation and the honorable gentleman.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I want to ask the honorable member one question. Suppose that to-morrow I were offered a brief against the Telefunken Company by the Marconi Company, ought I not to accept it?
{: .speaker-JMB}
##### Mr ARTHUR:
-- I do not propose to subject myself to the cross-examination of the Attorney-General, he himself objected to 'that very thing a few days ago. It is his duty to jealously watch any attack upon the Commonwealth. He has been engaged in previous litigation between the Marconi Company and the Commonwealth, and still retains what is undoubtedly a link between him and that company. On his own showing it is a link. The honorable gentleman might have gone a little further when this matter was previously mentioned in the House. He then told us that all that a general retainer meant was that the person retained had to give notice to the person retaining him if he were approached with a view to his acceptance of a brief by the other side. In my opinion, that is not all that it means. Putting it in common parlance, it means that the persons who have given, a general retainer have the first call upon the services of the person retained. If there are no other countervailing circumstances, therefore the Marconi Company has a right to the first call upon the ssrvices of the gentleman it has retained.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- But surely it does not compel him to give his services?
{: .speaker-JMB}
##### Mr ARTHUR:
-- Accusations of absolute ignorance of the situation were freely levelled by the Attorney-General at honorable members upon this side of the Chamber. Prom beginning to end the position has been plainly put, and plainly apprehended by them. To understand what is a retainer is the simplest thing in the world. The dramatic castigation of the honorable member for Kalgoorlie by the Attorney-General was one which I was very sorry to see him attempt to administer. For the honorable gentleman to come down from his high legal eminence and endeavour to cast a slur upon and to belittle the steps which the honorable member for Kalgoorlie took towards en'tering the legal profession - few though' they may have been- was unworthy . of him. What constitutes a retainer is fully dealt with in Halsbury'.s *Laws of England,* which has been referred to by the Minister of External Affairs. There are two classes of retainers. A retainer is the engagement of a barrister to give his services to a client, and involves the payment of a fee, without which there can be no retainer. That is the first link - the payment of the fee, which constitutes practically the retainer. The rules bearing upon this question are set out on page 403 of that volume. There are " special retainers " - the direct engagement of counsel in the matter - and the " general retainer," the nature of which has not been misunderstood, and under which the person retaining has a first call upon the services of the person retained. Now, the Attorney-General has retained a retainer from the Marconi Company. That company may say to him, " We want your services in particular litigation. We have first call upon you in that litigation."
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- That is not correct.
{: .speaker-JMB}
##### Mr ARTHUR:
-- If the AttorneyGeneral will be patient for a moment, he will see that I am not misstating the position. The Marconi Company may say to him, " We have first call upon your services, and we now give you a special retainer or brief in the matter." It would then be for the honorable gentleman to consider whether he could accept that brief. He would, doubtless, say, " This litigation affects the Commonwealth, of which I am the AttorneyGeneral, and, therefore, I cannot accept a brief." That is the position, undoubtedly.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Will the honorable member allow me to ask him a question upon that!
{: .speaker-JMB}
##### Mr ARTHUR:
-- No, I will not. I do not wish to prolong this debate, since the question is one that we may all apprehend, and upon which we may all readily come to a decision. The honorable member for West Sydney put the case very clearly and emphatically, expressing many of the views that I hold, and which it is unnecessary for me to repeat. The honorable member likened the position of the Cabinet to that of the directors of a company, and, by the way, I got into trouble recently for using such an illustration. The position is, as the honorable member says, that the Attorney-General is one of the directors of the great company of Australia Unlimited. The Cabinet have to steer the Commonwealth ship of State clear of financial and other rocks which beset it, and we have to ask ourselves what may be said of the position of the honorable gentleman whom we may call the legal director of the Commonwealth. He has taken a fee from a company which is now in litigation with the Commonwealth, and the interests of the Commonwealth he should be one of the first to conserve.
{: .speaker-L1R}
##### Mr Agar Wynne:
-- Is not every honorable member in the same position ?
{: .speaker-JMB}
##### Mr ARTHUR:
-- No. We are debating the position of an honorable member who is the legal director of the Commonwealth - the position of a Minister who has taken a fee from a company which is now in litigation with the Commonwealth Government, and whose duty it is, and not the duty of the Minister of External Affairs, to map out the clear course of the Commonwealth in the troubled waters of the law. Those who know the honorable gentleman would not suspect him of personal corruption in the matter - we would not say that a miserable fee of £5 5s. would deter him from doing his duty to the Commonwealth, but we have to consider what members of the com- munity may think of his position. Our object is not to condemn the AttorneyGeneral in person, but to lay down a general principle. The honorable gentleman has done something which comes within the general principle that the Opposition believes should apply. He, on the other hand, thinks that it ought not to apply, so that the matter resolves itself into, not a personal charge, but a difference of opinion in regard to the application of a general principle. I commenced by saying that the question is not one of legal etiquette. We have not to decide whether the Attorney-General's action comes within particular rules laid down by the profession for the guidance of the profession. We have rather to ask ourselves what the public may reasonably think of the situation that has arisen. The honorable gentleman's position is not exactly analogous to, but, as has been said, is certainly very like that of a Judge. In the case of the Tramway Company, in which I had the honour of appearing, while the Attorney-General was one of the eminent counsel on the other side, what occurred ? When the case was called on, **Mr. Justice** Duffy and **Mr. Justice** Powers refused to take any part in the hearing, not unless one side expressed their willingness that they should sit, but unless both sides should specially request them to sit. It was only because both sides specially requested them to sit that they did so.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- What right had they to turn over that duty to their brother Judges?
{: .speaker-JMB}
##### Mr ARTHUR:
-- Every right.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Exactly.
{: .speaker-JMB}
##### Mr ARTHUR:
-- The Prime Minister thinks that he has scored a point, but he has not. If he will allow me to do so, I shall show him that there is a great difference between the position of those Justices and that occupied by the AttorneyGeneral. In the Tramway case, the Court had to deal with two private litigants, who could agree to give up any right they possessed. Their right was to. have their cause tried by unbiased Judges, and either or both could object or agree to the case being tried by a Bench of which **Mr. Justice** Duffy and **Mr. Justice** Powers were members. Both agreed to their sitting. Here, however, we have the whole Commonwealth involved, and itf is a question of the propriety of the conduct of the AttorneyGeneral
{: .speaker-F4S}
##### Mr Joseph Cook:
-- But supposing-
{: .speaker-JMB}
##### Mr ARTHUR:
-- The Prime Minister will not lead me from what I want to say. The sole connexion which the two J ustices had had with the Tramways case may be briefly stated. **Mr. Justice** Powers was Crown Solicitor when the case originated, and his office instructed counsel to appear and apply for leave to intervene. He never saw the papers; he never had anything to do with them. His name simply appeared upon them as Crown Solicitor of the Commonwealth. " Yet," he said, " here am I debarred from adjudicating on this case, with which I have had nothing to do. All that has happened is that my name appeared on the papers, yet I feel myself debarred from sitting unless you specially request me to sit." Surely that was a slight - a very slight/ - connexion with the case, slighter even than the connexion of the Attorney-General with the Marconi Company by reason of his acceptance of a general retainer. **Mr. Justice** Duffy had not appeared for either party, but on one occasion he had appeared in a special case for the Commonwealth, intervening between the two parties. Because of this he said that he could not take part in the hearing of the case unless he was specially requested by both sides to do so. Why did he take "up that stand ? He did not regard himself as biased, nor did **Mr. Justice** Powers consider he was biased. No one else, knowing the men, would have regarded them as biased; but the principle that guided them was that if they took part in the hearing of a case, with which they had had even the most remote connexion, people might regard them as biased, and the administration of justice, therefore, might fall into contempt. That is the principle on which the Attorney-General, in my judgment, should act. He ought to say, " I should not keep even this slight connexion between myself and a company that is in litigation with the Commonwealth, not because I regard myself as biased, not because my friends would regard me as biased, but because the public might do so." This principle is made clear in a learned and useful work dealing with justices of the peace, of which the AttorneyGeneral and my learned friend, **Mr. Wanliss,** are joint authors. In this work, the honorable gentleman deals with the question of bias, because of pecuniary interest, in the case of justices of the peace.
He cites authorities which clearly show what should be the attitude of a justice of the peace, not when a number of reasonable people might regard him as biased, but when he might be regarded by a number of people as biased. I submit that the principle there laid down applies to a case of this kind. Let me read what the honorable gentleman says at page 135 of Irvine's *Justices of the Peace -*
>The general principle governing the question of the qualification of Justices to sit and adjudicate, and which is to be found stated in nearly al' the cases referred to, is that Justices must not adjudicate in cases where there exists a reasonable suspicion of bias, and if that be shown the decision is bad : it is not necessary to prove the actual existence of bias. In a late case in our own Courts it was laid down that a Justice is disqualified from hearing any case in which " The circumstances warrant a considerable number of the community reasonably in suspecting him to be biased."
>
>It is the duty of any Magistrate who knows that he is interested to retire from the Bench.
The honorable gentleman can apply that to his own position.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Is that not what I have done? I handed over the case to one of my colleagues.
{: .speaker-JMB}
##### Mr ARTHUR:
-- I know what the honorable gentleman has done. In the marginal note of this paragraph we have the statement, " Interested Justice should leave the Bench and abstain from adjudicating " In this case the AttorneyGeneral must remain in the position of adjudicating between the company and the Commonwealth. That is the position in which he finds himself. He goes on to say in this work -
>For it is very essential to the proper administration of justice, not only that an interested Magistrate should abstain from taking any part in the decision, but that he should give no ground for belief that he influences the opinions of the other Justices.
In a foot-note he quotes from a decision of Lord Esher, Master of the Rolls, which puts very clearly the point that I wish to make -
>Judges must not only not be biased, but ought not to act where the circumstances are such that people - not necessarily reasonable people, but many people - would suspect them of being biased.
That is the principle upon which, I submit, the Attorney-General should act.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Hear, hear !
{: .speaker-L1R}
##### Mr Agar Wynne:
-- He has done so.
{: .speaker-JMB}
##### Mr ARTHUR:
-- The AttorneyGeneral applauds that statement, and immediately there is a chorus of " Hear, hears!" from his supporters. The position, probably, was not understood until the signal was given.
{: .speaker-JLS}
##### Mr Ahern:
-- The honorable member has made it so clear to us that we are convinced.
{: .speaker-JMB}
##### Mr ARTHUR:
-- If any one could be convinced, it is the honorable member. Clearly, the question is not whether the rules of the profession govern the matter, but whether the Attorney-General can stand before the community and say, " Although I am retained by the Marconi Company, I can still maintain an unbiased attitude. I cannot be suspected even by many people of being biased." He knows, and we, too, know, that he is not, but it is the suspicion of the many *- oioo - to* which we must have regard, and it is by that principle that the honorable gentleman should steer his course.
*Sitting suspended from 6.30 till 7.45 p.m.*
{: .speaker-JMB}
##### Mr ARTHUR:
-- At the adjournment, I had concluded an extract from the AttorneyGeneral's book; and, I may say of it, that thus is wisdom justified of her children. I belong to that honorable fraternity of which the Attorney-General is so distinguished a member; a fraternity described by Shelley as " Skilled to snare the feet of Justice in the toils of law," and I hope that the honorable gentleman will see that it is not the standard of the legal profession only, but the standard of the people of the country, by which he should regulate his action. The honorable member for West Sydney likened this Government, as any other Government, to a directorate; and, as to the duties of a directorate, in one famous case, which will be well known to the Attorney-General himself - a case concerning the Northern Territory - Lord Justice Bowen said -
>Is it right that the wolf should give a sop to a watch-dog without his master's leave?
It has been said that the AttorneyGeneral is the legal watch-dog of the country, and of the Commonwealth. Lord Justice Bowen added -
>The director is really a watch-dog ; and the watch-dog has no right, without the knowledge of his master, to take a sup from a possible wolf.
{: #subdebate-11-0-s8 .speaker-JPC}
##### Sir ROBERT BEST: Kooyong
-- I regret, and in the light of the debate, I venture to think that a number of honorable members opposite have reason also to regret, the terms of this ill-advised motion. I could quite understand the lofty view which animated the leader of the Opposition when he said that it was desirable that, on this subject, there should be introduced an abstract motion at an opportune time. Such a motion was practically invited by the Attorney-General himself, and had one been proposed little exception could have been taken to it. The motion before us, however, is of a very different nature. In the first portion of it, there is laid down certain parliamentary ethics to which no one can take exception, and which, I hope, and indeed think, animate honorable members generally in the conduct of business in this House. The motion, however, goes on to deliberately propose a vote of censure on the AttorneyGeneral; and it cannot be accepted from that stand-point. Honorable members opposite must admit that the latter part of the motion means censure or nothing; its collocation with the earlier portion clearly shows that to be the intention. Honorable members opposite may express their admiration of the Attorney-General, and affirm and re-affirm' their definite assurance that they do not, in the remotest degree, doubt his probity or honour -
>Perhaps it was right to dissemble your love,
>
>But why did you kick me downstairs?
That is precisely the attitude that honorable members opposite assume. All their protestations - indeed, they seem to protest too much - as to the honour aud integrity of the Attorney-General, and the anxiety of the honorable member for West Sydney that nothing in the motion shall be regarded as in any way a reflection, go for nought. When we look at the terms of the motion itself, we see that it is not of the character which was suggested by the leader of the Opposition, and which would have been assented to by the Attorney-General himself.
{: .speaker-KXK}
##### Mr Webster:
-- That is a pretty good excuse for voting against the motion !
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- Are honorable members opposite not going to vote for the motion ? They seek to make it appear that this is not a party move, although it is deliberately and intentionally so. The honorable member for Kalgoorlie did not hesitate to say that his party would vote for it solidly.
{: .speaker-JNV}
##### Mr Bamford:
-- That is not correct; the party is not all here, so that this cannot be a party move.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- I can only tell my honorable friend what was stated by the honorable member for Kalgoorlie.
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- It was not so stated; the honorable member for Kooyong asked the question, and the honorable member for Kalgoorlie said, "Wait and see."
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- The honorable member for Kalgoorlie said that all the members of his party were going to vote for the motion. Do honorable members opposite deny that all the members of the Labour party who are present are going to vote for the motion ? If they are, it shows that this is obviously and intentionally a party move. From that standpoint it has to be resented; and, moreover, it is deplorable that such a motion should have been launched. As I say, all the protestations as to the admiration of the honour, probity, and integrity of the Attorney-General go for nought under the circumstances; and the best evidence of that is the speech of the honorable member for Bendigo. That honorable member understands this question most thoroughly - none better - from a legal stand-point; and he hasbeen obliged by party loyalty to give his adherence to this motion.
{: .speaker-JMB}
##### Mr Arthur:
-- That is not so.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- I venture to suggest that the honorable member for Bendigo cannot directly or indirectly justify the motion, either from a legal stand-point or from the stand-point of ethics. I oppose the motion because it is unfair and unjust, and because it is a deliberate attempt to injure unfairly a member of the Government.
{: .speaker-10000}
##### Mr SPEAKER:
-- The honorable member must withdraw an imputation of that character on honorable members opposite.
{: .speaker-JMB}
##### Mr Arthur:
-- I rise to a point of order. Is the' honorable member for Kooyong at liberty to refer to me by name, and make remarks of the kind he has ? I request that he be asked to withdraw the remarks.
{: .speaker-10000}
##### Mr SPEAKER:
-- I have already asked the honorable member for Kooyong to withdraw any imputation he has made.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- If exception is taken to the statement that this is a deliberate attack on the AttorneyGeneral
{: .speaker-10000}
##### Mr SPEAKER:
-- There was something more than that.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- Then I should be glad to know what it was.
{: .speaker-10000}
##### Mr SPEAKER:
-- The honorable member made some remarks imputing motives which were a reflection on honorable members opposite, and I have asked him to withdraw them.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- If I have made any reflection on honorable members opposite to which they take exception as being offensive, of course I withdraw it. I must confess, however, that I am at a loss to know exactly why they should have grown so intensely sensitive at this particular juncture. The point I wish to make is that, notwithstanding all the protestations of admiration of the honour and probity of the Attorney-General, this is a deliberate attempt to censure and injure the honorable gentleman.
{: .speaker-10000}
##### Mr SPEAKER:
-- Order ! The honorable member has just repeated that this is a deliberate attempt to injure the AttorneyGeneral, and that, being a reflection on honorable members, is out of order.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- I withdraw the word "deliberate," but I am rather surprised at honorable members opposite taking exception to it. The honorable member for Bendigo, under the circumstances to which I have referred, was obviously unhappy.
{: .speaker-JMB}
##### Mr Arthur:
-- I was not unhappy.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- I agree with the honorable member that this is a matter of political propriety, and it is from that stand-point I desire to deal with it. The honorable member for West Sydney and the honorable member for Bendigo protested against the Attorney- General handing over his authority in this matter to the Minister of External Affairs. Further, the honorable member for West Sydney said that Parliament is entitled to the whole of the services of the AttorneyGeneral in this case; and that point has been emphasized and supported by honorable members on every occasion of its pronouncement. Later on, however, the honorable member for West Sydney most conclusively justified every action that has been taken by the AttorneyGeneral. We have been told by the Attorney-General that, because of his former association with the Marconi Company, he had handed the whole matter over to the Minister of External
Affairs, and that he has not since then, directly or indirectly, done or known anything concerning it. It is, therefore, out of the Attorney-General's hands; and the justification for this action has been furnished by the honorable member for West Sydney and the honorable member for Bendigo in their quotation of the Tramways case, in the hearing of which **Mr. Justice** Duffy and **Mr. Justice** Powers refused to take part, because of their prior association with, the case before the Court.
{: .speaker-DQC}
##### Mr Hughes:
-- Is not this handing over of the matter by the Attorney-General to the Minister of External Affairs a recognition by the Attorney-General that, in consequence of. his former association with the Marconi Company, he is unfit to deal with it?
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- The AttorneyGeneral says, " By reason of my former association with the company, I refuse to deal with the matter, and hand it over to the Minister of External Affairs, with a request that he shall see to it." That course of action has been justified by the honorable member for West Sydney himself in the cases and precedents he cited.
{: .speaker-DQC}
##### Mr Hughes:
-- Nothing of the sort.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- Lord Esher and other legal luminaries were quoted by the honorable member for Bendigo, and these authorities and the Tramways case cited by the honorable member himself, show that that was the proper course to take in the circumstances.
{: .speaker-DQC}
##### Mr Hughes:
-- The honorable member cannot have been in the House when I spoke !
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- Even if the AttorneyGeneral had not had a retainer at all, his mere association with the Marconi Company beforehand in this particular matter justified him in handing it over to another member of the Cabinet. My honorable friend, the honorable member for West Sydney, referred to the possibility of the dispute between the Marconi Company and the Commonwealth being dealt with by arbitration. Does he mean to say that if the AttorneyGeneral held no retainer from the company he would be justified, in view of his former connexion with the company, in dealing with the question in Cabinet?
{: .speaker-DQC}
##### Mr Hughes:
-- In view of his own reasoning in the Tramways case, yes.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- It is not a matter of his own reasoning. The Tramways case justifies the action taken by the AttorneyGeneral. But, suppose there had been no general retainer from the . company, does my honorable friend say that the Attorney-General, in view of his knowledge of the facts from one particular stand-point, and his association with the company, would have been justified in dealing with the matter in Cabinet ?
{: .speaker-DQC}
##### Mr Hughes:
-- I say that while he holds the general retainer there is reason to believe that he is still interested in the affairs of the company.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- I am putting aside the general retainer for the moment, and asking my honorable friend to deal with the merits of the case. They claim that the Commonwealth Government is entitled to the whole services of the AttorneyGeneral, and protest against his having handed over this particular matter to the Minister of External Affairs. I say that the Attorney-General could have done nothing else.
{: .speaker-KXK}
##### Mr Webster:
-- Yes, he could have resigned.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- The honorable member for West Sydney knows that the Attorney-General could have done nothing else, and would have been the first to protest if, through having no general retainer, but having formerly been connected with the case, he had attempted to deal with it in Cabinet.
{: .speaker-JX9}
##### Mr Frazer:
-- He says that he will deal with it.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- The very best justification that could be urged in favour of what the Attorney-General has done has been put forward conclusively by honorable members opposite. Nothing could be clearer than that the AttorneyGeneral has acted, not only in accordance with Bar etiquette, which is a subordinate matter, but according to the highest ethics of parliamentary life, and the highest moral standards. I suggest, therefore, that there is no case on the merits at all, but that the case urged by the Opposition depends solely on the fact that the AttorneyGeneral holds what is called a general retainer. It is admitted that, by reason of his former association with the company, he could not have dealt with the case at all in Cabinet. If he could not have dealt with the case without the retainer, the mere fact that be had a general retainer could make no difference, as lie was already disqualified from dealing with the matter. But let us deal with the matter from the general retainer stand-point. Having made it quite clear that the AttorneyGeneral could not deal with this matter a& all in Cabinet, having regard to his former association with the company, 'I venture to say that the general retainer cannot make even an infinitesimal difference. Because if he could not deal with the case in Cabinet, having the retainer, he could not deal with it without the retainer. He has not dealt with it. Moreever, he has, so far, broken that general retainer by intimating to the company that, as far as the Commonwealth is concerned, he has completely severed his connexion with the case. Could the Attorney-General have done more?
{: .speaker-JLY}
##### Mr Anstey:
-- Of course, he could. He could have handed over the " fiver."
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- My honorable friend, the Attorney-General, like most of us, has to earn his livelihood. Do my honorable friends opposite suggest that, supposing the Marconi Company were engaged in litigation with somebody else, quite apart from the Commonwealth, it would not be open to them to seek to retain the services of the AttorneyGeneral for that other case?
{: .speaker-K8L}
##### Mr Thomas:
-- That is a question.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- In other words, my honorable friends suggest that the Attorney-General is not to be permitted to earn his livelihood by his profession by engaging in private practice; if so-, that is a totally different question to the one under discussion. They object to the Attorney-General taking a brief for this particular company in litigation wholly apart from Commonwealth interests. All that the general retainer means is that the Marconi Company is to have notice from him in regard to any litigation affecting them in which a brief is offered to him - nothing more. In these circumstances, I urge that everything that could be done by the AttorneyGeneral has been done. If he has broken the general retainer, as far as this company is concerned, he has severed his connexion with the company. He has refused to take any other briefs from them in connexion with Commonwealth affairs, or to advise them as to their interests; and, in order to make sure that all room for suspicion will be removed, he has stated that he has handed the matter relating to the company over to the Minister of External Affairs, and has added that he intends to take no action in the case, as far as the Cabinet is concerned.
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- No, he has not. He said that he would consider his position.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- The AttorneyGeneral gave the House to understand most distinctly that he will have nothing further to do- with the case. My honorable friend is rather ungenerous if he suggests that any other meaning could attach to what the Attorney-General said in that connexion.
{: .speaker-JX9}
##### Mr Frazer:
-- Let him say it plainly.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- He has already said so. He has told us the course of procedure that he intends pursuing.
{: .speaker-DQC}
##### Mr Hughes:
-- He says that he will vote on any proposal in regard to the case in the Cabinet.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- On the contrary; the Attorney-General said that he -will take no part in this business, in Cabinet or otherwise.
{: .speaker-KXK}
##### Mr Webster:
-- He did not say so.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- That, I am satisfied, is the impression made upon the House. I am speaking in the presence of the Attorney-General, and if I am not interpreting him correctly he is at liberty to say so.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Hear, hear !
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- What more could be expected of an honorable man ?
{: .speaker-KXK}
##### Mr Webster:
-- It is a climb down.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- My honorable friend is ungenerous in making such a suggestion. I ask again, What more could be expected from an honorable man ? My honorable friends opposite are laying down a strange principle. We are a very small community, which is not largely composed of leisured men. This Parliament of ours consists of men who are actively engaged in business, professionally, commercially, and otherwise. Necessarily, matters in which we are directly or indirectly interested must occasionally come up from time to time. It must be left to the honour and rectitude of honorable members themselves, in cases of this kind, to avoid any suspicion whatever of voting in matters in which they are directly or indirectly interested. It is a tradition of parliamentary ethics, well known and well recognised, that that rule shall be followed. The Attorney-General, having shaped his course in accordance with that high tradition, ought not to be singled out for censure in the terms of this motion. If my honorable friends opposite will fully consider the matter, they will, I feel satisfied, realize that it is desirable that the motion should not be persisted in. I suggest to them, in view of all that has taken place, that it should be withdrawn, particularly as it is obviously recognised to be a direct motion of censure on a prominent member of the Government.
{: .speaker-DQC}
##### Mr Hughes:
-- I think the retainer should be withdrawn.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- The retainer has been withdrawn. Information has been conveyed to the company that the Attorney-General is no longer associated with its litigation. What more could my honorable friends ask for?
{: .speaker-JRP}
##### Mr Boyd:
-- They want his scalp.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- They are doing themselves an injustice in attempting to discredit a member of Parliament in this way.
{: .speaker-DQC}
##### Mr Hughes:
-- We ask that he shall absolutely sever his connexion with the Marconi Company.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- He has done so.
{: .speaker-DQC}
##### Mr Hughes:
-- He has not done so.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- The honorable member for Bendigo has not attempted to deal with the merits of the case, but has dwelt upon what he thinks the man in the street will say about it. That is not an exalted standard from which to deal with it.
{: .speaker-JSC}
##### Mr Brennan:
-- The honorable member knows that that misrepresents the position.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- I am sorry if it does. I should be the last to misrepresent any honorable member. But the honorable member for Bendigo referred to this point, not once, but two or three times.
{: .speaker-JSC}
##### Mr Brennan:
-- From the stand-point of public confidence.
{: .speaker-JPC}
##### Sir ROBERT BEST:
-- He practically represented that we are not concerned with the merits of the case, but with what the man in the street thinks of it. I ask, however, that we shall deal with the case solely from the stand-point of its merits, doing justice all round, and not unworthily picking out a particular member of this House for undeserved censure - as I venture to say is being done by the terms of this motion - when he has acted in accordance with the highest and best traditions of parliamentary practice.
{: #subdebate-11-0-s9 .speaker-K8L}
##### Mr THOMAS: Barrier
-- I am prepared to admit that when the honorable member for Kalgoorlie first brought this matter before the House I paid very little attention to it. But during the last two or three weeks, since the question has been discussed and in view of the fact that a direct motion was to be moved, I felt it to be my duty to make myself acquainted with the issues at stake. 1 feel sure that with two notorious exceptions every honorable member is anxious that when the personal honour and integrity of any member of this House is assailed, we should be very guarded in our expressions and weigh our votes. I hasten to add that, as far as I am concerned, I do not in the slightest degree impugn the personal honour and integrity of the AttorneyGeneral. I go further, and say that, in my opinion, if this motion were carried, it would not affect the position of the Government. As far as I am concerned, this is not a motion of censure, and I will try to deal with it apart from any desire to attack the Government. In my opinion, the carrying of it would not affect the position of the Government. But the Attorney-General would have to resign his general retainer from the Marconi Company.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I should resign something else.
{: .speaker-K8L}
##### Mr THOMAS:
-- The honorable gentleman, if he remained a member of the Government, would also have to resign his positions of director of an insurance company and director of a bank. I do not intend, to quote from law books, nor to fall back on dictionaries, because, were I to do so, I might get out of my depth. But it is fortunate that there have already been two discussions similar to this in Australian Legislatures. One of the cases was not absolutely analogous, though very similar to this, but the other was on absolutely the same lines. In the first case, Attorney- General Barton was arraigned by members of the New South Wales Legislative Assembly for having accepted a brief against the Railway Commissioners of the State; in the second, Attorney-General Isaacs was arraigned by members of this House for accepting a retainer from the South Australian Government against Victoria.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- He did more than that.
{: .speaker-K8L}
##### Mr THOMAS:
-- The opinions which were expressed in the two debates should be helpful to us to-night, because eminent lawyers and prominent laymen took part in the- discussions. I shall not discuss the question now before us as the other two cases were discussed by some of the speakers. For instance, I shall not deal with it as the honorable member for Wentworth dealt with the Isaacs case, when he said that " honorable members of the legal profession always regarded questions of fees as of the supremest importance." Neither shall I deal with it as the Isaacs case was dealt with by the honorable member for Werriwa, who, referring to the honorable member for Kalgoorlie - who was at the time studying law - said that " he ought to have learned the first part of a barrister's duty, which was to look after his fees." Nor do I intend to discuss the case in the manner adopted by the present Prime Minister when dealing with the Isaacs case, when the honorable member for Wentworth, having expressed regret that AttorneyGeneral Isaacs had not seen fit to be present to explain the exact position of affairs, said, "Why should he? He is earning money," which prompted the honorable member for Lang to ask, "Does not the Attorney-General receive a very fair salary?" It would be impertinent and presumptuous were I to take any other stand in regard to the legal profession than this : that, whilst we as laymen may sometimes joke at their expense, barristers are members of a noble profession, and, with few exceptions, such as obtain in all callings, should be spoken of in the highest terms. . The debates to which I have referred contain a great deal of information, and show that, in matters of this kind, it is not wise to be guided too much by members of the legal profession. Although I speak in the highest terms of their honour, it would seem that at times lawyers are warped in their judgment by the traditions of the Bar, or the etiquette of their profession. The honorable member for Parramatta took practically the same -stand in the Barton case as he did in the Isaacs case, and said practically the same thing in the two debates ; I have not often accused him of saying the same thing twice. When dealing with **Mr. AttorneyGeneral** Barton, he said -
>He had no argument, and he began straight away to abuse those who differed from him. A more abusive speech he never made in his life. It was utterly unworthy of him, and of an occasion of the kind.
I have read the speech, and I differ from the honorable member for Parramatta. In my opinion, it was not abusive, and, although disagreeing with the views advanced in it, I consider that from the point of view of the speaker it was a very good speech. He appealed to his conscience on two or three occasions, and as the present Attorney-General probably knows, **Sir Charles** Russell once said that it is a good thing to appeal to the forum of conscience when your law is shady. The honorable member for Parramatta continued -
>He may sneer if he likes at those members who are not possessed of his education, and of his legal training and ability, but these honorable members he sneers at will, at any rate, be given credit for having a little bit of commonsense, and in this case common-sense will outweigh a ton of legal quibbling and logical acumen.
Why the honorable member should object to statements that were logical I do not know. After the lapse of years, the honorable member, in 1905, dealt with the Isaacs case, which was very similar to that now under discussion, and said -
>If the honorable and learned member can appeal only to the lawyers of the chambers to pronounce judgment, he has a very bad case. If he cannot appeal to the solid common-sense of the House, apart from any professional knowledge, his case must rest upon a very poor foundation.
In the same debate, answering a statement made by **Mr. Isaacs,** the honorable member for Parramatta said -
>I can only imagine that view to be the outcome of a legal mind. I want a bit of commonsense on this matter.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- It is only fair to state that Attorney-General Isaacs, when he found that his duty conflicted with his interests, gave up the special retainer, but kept the general retainer.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Would the honorable member say whether. **Mr. Higgins,** when Attorney-General in the Government of which he was a member, gave up his general retainers?
{: .speaker-K8L}
##### Mr THOMAS:
-- I ask to be allowed to proceed with my speech in my own way. In the Barton case, the AttorneyGeneral had accepted a brief against the New South Wales Railway Commissioners, and one of his excuses was that theirs was not a Department of State.
On that point I differed from him. In the speech which he made in his defence, he said that he had consulted, not only the Solicitor-General, the late **Mr. R.** E. O'Connor, who was then Minister of Justice, and who had also accepted a brief in the case, but other leading men of the New South Wales Bar, who were of the opinion that he would do the correct thing in accepting the brief.
{: .speaker-JPC}
##### Sir Robert Best:
-- That was the old practice.
{: .speaker-K8L}
##### Mr THOMAS:
-- In that case, the AttorneyGeneral practically accepted a brief against the Crown. He told the House that he could not, even had he desired to do so, refuse to take that brief ; that he was pressed by his solicitor and compelled by the etiquette of the Bar to take it. He could not refuse to take the brief from the solicitor for **Mr. Proudfoot,** because the latter had a retainer, and had asked him, as a barrister, to take the brief.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I should not agree with that.
{: .speaker-K8L}
##### Mr THOMAS:
-- I do not think there are many persons who would agree with that just at present, and that is what I am coming to. At that time **Mr. Barton** stated that the leading members of the New South Wales Bar agreed with his view that he could not help accepting the brief. A little while ago the AttorneyGeneral quoted this extract from a speech by **Mr. Isaacs** -
>The position occupied by counsel at the Bar is a public one. He must not pick and choose his clients. When a client offers him a retainer, unless he has some fair and justifiable reason for refusing it, he is bound to give him his assistance as well as he can.
The honorable and learned member said that he agreed with that statement. In connexion with the debate in the Legislative Assembly of New South Wales, we have the advantage of what **Mr., now Sir, George** Reid said, and I think it will be rather interesting to our legal friends opposite to hear the opinion of **Mr. Reid,** who at that time was a barrister and a member of the House. In answering the Attorney-General, he said -
>Now let us see what the Attorney-General says as to there being no danger of conflict between his duty to the public and his professional position. He seems to think that he was under an obligation to accept this retainer. As a member of the same profession, I scout that idea.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- That was a special retainer.
{: .speaker-K8L}
##### Mr THOMAS:
-- I ask the AttorneyGeneral to wait and hear all that **Mr. Reid** said -
>What is the origin of the rule? - that we should not favour one private litigant against another; but when we assume a public position we take up new duties, and we must not allow our professional interests to conflict with public duties. When I was asked to take a retainer for the Railway Commissioners I lost no time in bluntly refusing to take it.
{: .speaker-DQC}
##### Mr Hughes:
-- He was only a private member of the House at that time ; he was not Attorney-General.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- He could not take a retainer from the Commissioners, because, if he did, he would be accepting an office of profit under the Crown.
{: .speaker-DQC}
##### Mr Hughes:
-- Of course he could accept a brief from the Railways Commissioners.
{: .speaker-K8L}
##### Mr THOMAS:
-- I am dealing with the reasons which **Mr. Reid** gave to the Legislative Assembly. Continuing, he said -
>Why? Because I felt that a matter might arise in this House affecting those gentlemen, and I declined to be put in a position of taking a brief from them. I have, therefore, given the public my view of duty in the matter at my own expense.
It should be said that at that time **Mr. Reid** was not a rich man.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- What has that to do with the question ?
{: .speaker-K8L}
##### Mr THOMAS:
-- He says here that, being a public man as well as a barrister, something might occur in the House with which he, as a member, ought to deal, and he would feel handicapped if he held a retainer from the Railways Commissioners.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- It could not possibly arise.
{: .speaker-JPC}
##### Sir Robert Best:
-- He could not legally take it.
{: .speaker-K8L}
##### Mr THOMAS:
-- Then **Mr. Reid** put a very false impression before the public. He gave the people to understand that he refused to take a brief from the Railways Commissioners because he was a public man, but now we are told by honorable members opposite that he could not do it.
{: .speaker-DQC}
##### Mr Hughes:
-- Of course he could.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- It is a perfectly recognised practice that barristers in Parliament cannot take briefs from the Crown in any capacity, and they never have done so, so far as I know.
{: .speaker-K8L}
##### Mr THOMAS:
-- Continuing, **Mr. Reid** dealt again with **Mr. Barton** -
>The honorable member said with great indignation that he had no implied retainer with the Railway Commissioners. I agree with him, but I tell him, as Attorney-General, he has an implied retainer from the public of this country.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Hear, hear ! I agree with that.
As *a* public man I do not allow my personal friendships to close my mouth, and it would be a bad thing for the people of this country when a law officer of the Crown, such as the Attorney-General, can be retained by those who are fighting against the public. It adds a great weight to the case of the plaintiff, or defendant, as the case may be, that such high and distinguished men should be their counsel, and when distinguished lawyers become high and distinguished public men their first duty is to the public of this country. If they cannot earn a living without taking briefs against the public of the country they should resign their public positions. That is my view in a few words as to this case.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Who will dispute that?
{: .speaker-K8L}
##### Mr THOMAS:
**- Mr. Reid** was pointing out that, although the Railways Commissioners, who, in my opinion were a Department of State, had offered him a brief-
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- In his opinion, they were a Department of State.
{: .speaker-K8L}
##### Mr THOMAS:
**- Mr. Reid** did not give that reason.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- And for that reason he could not hold a brief.
{: .speaker-K8L}
##### Mr THOMAS:
-- Then he misled the public. Let us see what was said in this debate by **Mr. Want,** who was a very prominent barrister in New South Wales -
>I should like to say this : that for two years, like the honorable and learned member for East Sydney, **Mr. Reid,** I absolutely refused to take a retainer from the Railways Commissioners, not because I was a member of the Government, not because I would be appearing against the Government, but because I felt that questions might arise in this House in which the Commissioners might have to be attacked or defended, and I desired that my hands should be free.
That was, I think, rather a fine stand for the honorable member to take. He would not take a brief because, as a member cf Parliament, he might have to defend or to attack the Commissioners; and, if he accepted a brief from them, his hands would be tied. The honorable member who has just resumed his seat asked, " Would you say that the AttorneyGeneral should not take any private practice ?" I do not say he. should not take any private practice, but I do say that itwould be a very peculiar position if the Attorney-General took a case even in a. private capacity for the Marconi Company, his hands being tied here as a representative of the people. I admit that it would apply to him equally whether he was a private member or a Minister.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- You admit that the Attorney-General has the right to private practice?
{: .speaker-K8L}
##### Mr THOMAS:
-- I do not say that he has not the right to private practice.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- It is very peculiar that should be so when Irvine is in and not when Higgins is in.
{: .speaker-K8L}
##### Mr THOMAS:
-- I would like honorable members to read the whole of thedebate that took place when the honorable, member for Parramatta arraigned AttorneyGeneral Isaacs because he had *. brief from South Australia against Victoria. It was not a brief against the Commonwealth. The contention in that debate was that possibly the time mightcome when the question of some rights in the big rivers might be brought within the sphere of Commonwealth politics, and, consequently, the honorable memberstated that, in his opinion, the AttorneyGeneral ought not to accept a retainer,, even from a neighbouring State against; another State.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- What did the House decide?
{: .speaker-K8L}
##### Mr THOMAS:
-- I am dealing with another matter just for the moment.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- How did you decide?
{: .speaker-K8L}
##### Mr THOMAS:
-- I voted the other way. The gravamen of that charge was that possibly a question of riparian rights between two States might involve the Commonwealth. There is a greater probability of the Marconi Company coming; within the sphere of Commonwealth law and being dealt with from the Commonwealth stand-point, even if the honorable member should take a private case on its behalf, than there was a probability of South Australia or Victoria, on a question of riparian rights, being brought, within the Commonwealth jurisdiction.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- In both cases, you will have to leave it to the honour of the; Attorney-General, as **Mr. Isaacs** contended.
{: .speaker-K8L}
##### Mr THOMAS:
**- Mr. Higgins,** when speaking, said it ought to be left, of course, to the Attorney-General.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- And you supported him.
{: .speaker-K8L}
##### Mr THOMAS:
-- What did the Prime Minister say then? -
>I say it ought not to be left to the judgment pf the Attorney-General.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Do you agree with that?
{: .speaker-K8L}
##### Mr THOMAS:
-- I do not now. I think it ought not to be left to the judgment of the Attorney-General.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Then you have changed your opinion.
{: .speaker-K8L}
##### Mr THOMAS:
-- It seems to me that the Prime Minister has.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- I would not have believed it.
{: .speaker-K8L}
##### Mr THOMAS:
-- In discussing this question, we have to consider whether a private member ought to have this practice. In reading this discussion, I was very much struck with what **Mr. Higgins** said -
>At one time, when I was a member of the Victorian Parliament, the proprietor of a certain industry consulted me, and I advised him.
>
>I afterwards found that the matter was brought before the Victorian Parliament, and I said - " I am your adviser, and I cannot speak or vote in Parliament upon that question."
>
>
**Mr. Wilks.** The honorable and learned member disfranchised his electors in that case.
>
>
**Mr. HIGGINS.** Yes; but I was not aware at the time that I began to advise the gentleman referred to that his case would be before Parliament.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- A barrister ought never to be hampered in his advice to Parliament, though he ought never to make use of information that he has gained in his private practice.
{: .speaker-K8L}
##### Mr THOMAS:
-- If a barrister has a case in the Law Courts he is not free to speak here.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- He is not free to give information that he has acquired in the course of his private practice.
{: .speaker-K8L}
##### Mr THOMAS:
-- I understand that when once a barrister takes up a case he has to do his very best for his client, even if he supposes that client to be in the wrong. Now, if he is fighting for his client, he cannot come here and say that his client is in the wrong. I do lay a good deal of emphasis on the discussion which took place in this House at the time **Mr. Isaacs** was Attorney-General and gave an opinion to the South Australian Government upon the question of the
Murray waters. He was dealt with by the present Prime Minister. I never knew until a few days ago that **Mr. Dugald** Thomson also spoke upon this question. Those honorable members who were in the first Commonwealth Parliament entertained the very highest respect for that gentleman. I know of no man who was held in higher esteem by both sides of the House. He was a party man, but I do not think we can say of him that he was a partisan. We all felt when he spoke that he gave utterance to his honest convictions. What was the position occupied by **Mr. Isaacs** at that time? Whilst filling the office of Attorney-General he had accepted a retainer from the South Australian Government against the Victorian Government.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- He had done more than that. The honorable member does not state the case at all. **Mr. Isaacs** had given opinions and accepted fees for those opinions.
{: .speaker-K8L}
##### Mr THOMAS:
-- But those opinions had nothing whatever to do with the Commonwealth - no more than would the action of the present Attorney-General if, to-morrow morning, he accepted a brief from the Marconi Company against the Telefunken Company.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- The honorable member says so, and that settles it.
{: .speaker-K8L}
##### Mr THOMAS:
**- Mr. Dugald** Thomson, in summing up on the occasion to which I have referred, said -
>I do not say that it is actually wrong for him to have done this, but it is getting near the border-line, and it is highly desirable, in my opinion, so that there may be no cause of suspicion that he should come to another decision. The consideration of this matter should be above party influence, but, with all due respect to the Minister, without saying a word against him personally, or impugning his motives, I think he has not come to the wisest decision.
During the course of that debate the present Prime Minister stated that if **Mr. Isaacs** would give up his general retainer he would be satisfied. We take up the same position. If the Attorney-General will give up his general retainer with the Marconi Company we shall be satisfied. The present Prime Minister, on the occasion to which I have alluded, said his position was that, if the honorable and learned member had not stated that night that he intended to accept a further retainer from the South Australian Government he would have been satisfied.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- I scarcely think I said that.
{: .speaker-K8L}
##### Mr THOMAS:
-- The honorable gentleman, I am sure, knows that I would be the last member of this House to misquote him. In view of the position which he then took up, it will be interesting to learn the way in which he intends to vote on the present occasion.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- How is the honorable member going to vote to-night - against all that he said on a former occasion?
{: .speaker-K8L}
##### Mr THOMAS:
-- I will tell the Prime Minister in a few minutes. I am interested to know whether the honorable gentleman is going to be true to the convictions which he expressed on two occasions, or whether his pathway is to be strewn with the wreckage of still another abandoned position. I intend to vote tonight in favour of the motion, which, if carried, will be tantamount to an instruction to the Attorney-General to give up his retainer with the Marconi Company.
{: .speaker-JRP}
##### Mr Boyd:
-- That is different from the way in which the honorable member voted on the last occasion.
{: .speaker-K8L}
##### Mr THOMAS:
-- I have since read the very able speeches that were made by the present Prime Minister. I have given more thought to the matter during the last two or three days-
{: .speaker-F4S}
##### Mr Joseph Cook:
-- And the honorable member has changed his opinion?
{: .speaker-K8L}
##### Mr THOMAS:
-- And I have changed my opinion.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Never in this world. That is quite impossible.
{: .speaker-K8L}
##### Mr THOMAS:
-- To my mind, it is an awkward position for a member of a Government to be a director of a large company. In this connexion, I am rather surprised that the Attorney-General did not act as the Postmaster-General acted. The Postmaster-General resigned his connexion with a bank immediately he became a Minister of the Crown. I think that his example is a very good one to follow. During the last Parliament, members of the Labour party were taunted with having failed to deal with the Tobacco Trust, because they were said to be in some way or other interested in the tobacco monopoly.
{: .speaker-JUV}
##### Mr McWilliams:
-- They never touched it.
{: .speaker-K8L}
##### Mr THOMAS:
-- We did not touch it. It was allege'd that we did not touch it because we were influenced by improper motives. The honorable member for
Richmond, you, sir, and the honorable member for Wentworth, as well as the present Prime Minister-
{: .speaker-F4S}
##### Mr Joseph Cook:
-- That is right; drag me in.
{: .speaker-K8L}
##### Mr THOMAS:
-- It was alleged thatix failing to take action against the Tobacco Trust we were influenced by improper motives. One gentleman, who had occupied Ministerial office, and who knew what the responsibilities of office were-, taunted us with failing to take action in regard to insurance companies becausemembers of our party were shareholders in those institutions. The gentleman to whom I refer was **Mr. George** Fuller. He said - as will be seen by reference to *Hansard* of 28th November, 1912, page 6138 -
>Why should honorable members, who hold up their hands in holy horror when the dividendsof the Colonial Sugar Refining Company are mentioned, be content when nothing is done in connexion with such a company as this as a party to an arrangement to enforce uniform prices? I do not hesitate to tell the House that one reason is that they know that some of their own party are interested in the companies that are paying these immense dividends.
{: .speaker-KXO}
##### Mr Page:
-- Name some of them.
{: #subdebate-11-0-s10 .speaker-JZF}
##### Mr FULLER: ILLAWARRA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910
-- I find in the list of shareholders of the United Insurance Company, towhich I have been referring, the name of the Federal Attorney-General, **Mr. Hughes.**
There was a definite charge by the then Opposition that we refused to bring in a. Bill' dealing with insurance companies because some of our party held shares in the United Insurance Company. I think that **Mr. Fuller** was absolutely wrong in his supposition-
{: .speaker-F4S}
##### Mr Joseph Cook:
-- I do not think that the honorable member is correctly representing him. His argument was that honorable members opposite were inconsistent in opposing monopolies when their own Attorney- General was interested in one which was paying 28 per cent. That was his point.
{: .speaker-K8L}
##### Mr THOMAS:
-- We were accused of not dealing with insurance companies because some members of our party held' shares in them.
{: .speaker-KNF}
##### Mr MASSY-GREENE: RICHMOND, NEW SOUTH WALES · LP; NAT from 1917
-- Thab was not the substance of **Mr. Fuller's** argument. I remember it very well.
{: .speaker-K8L}
##### Mr THOMAS:
-- I have quoted hiswords. We were charged with failing tots ke action against the Tobacco Trust because, in some way or other, we weremixed up with it. The honorable member for Richmond took part in the attack.
{: .speaker-KNF}
##### Mr MASSY-GREENE: RICHMOND, NEW SOUTH WALES · LP; NAT from 1917
-- I never suggested such a thing.
{: .speaker-KWL}
##### Mr Tudor:
-- The honorable member made the charge definitely.
{: .speaker-K8L}
##### Mr THOMAS:
-- If members of the Labour party can be accused of failing to deal with insurance companies because some members of it held shares in .those companies, what can be said of a Minister who is also a director of a bank or of an insurance company ? Is he not likely to have his judgment warped and his hand stayed because he is a director-
{: .speaker-F4S}
##### Mr Joseph Cook:
-- The honorable member is entirely misrepresenting the argument - absolutely misrepresenting it.
{: .speaker-K8L}
##### Mr THOMAS:
-- I beg the Prime Minister's pardon.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- The honorable member is so keen on making a point that he does not see the argument.
{: .speaker-K8L}
##### Mr THOMAS:
-- The Prime Minister does not know from where I took my reference. I do not suppose that he heard **Mr. Fuller** make this charge.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- I did.
{: .speaker-K8L}
##### Mr THOMAS:
-- Upon what Bin did he make it? It seems to me impossible that a man can conscientiously be a director of a private insurance company and a member of a Government which is going to introduce insurance legislation at one and the same time. I do not know whether the scheme which the Government intend to submit is to be a voluntary or a compulsory scheme. But no matter what may be its character, it will necessarily conflict with private interests.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- That matter is not covered by this motion.
{: .speaker-K8L}
##### Mr THOMAS:
-- What is not?
{: .speaker-F4S}
##### Mr Joseph Cook:
-- The matter of which the honorable member is speaking. The motion is strictly limited in its terms to the Marconi Company.
{: .speaker-K8L}
##### Mr THOMAS:
-- I say that a Minister who is a director of a private company should retire from the latter position. We have a Commonwealth Bank, and it seems to me that a Minister cannot with propriety continue to hold the office of director of a private bank. I say very readily that I intend to vote for this motion, not as a censure with respect to the past, but as a direction for the future. The time has come when not only members of the Government, but private members of Parliament in Australia, should realize that their first call is to the people of this country.
{: .speaker-L1R}
##### Mr Agas Wynne:
-- Then why not alter the motion?
{: .speaker-K8L}
##### Mr THOMAS:
-- That, at all events, is my opinion in regard to the motion.
{: .speaker-L1R}
##### Mr Agar Wynne:
-- Allow the first two paragraphs to remain, and I will vote for the motion.
{: .speaker-K8L}
##### Mr THOMAS:
-- In other words, if the motion is so amended as to declare that in future members of a Government should have nothing to do with the management of a company as directors-
{: .speaker-L1R}
##### Mr Agar Wynne:
-- The first two paragraphs as they are worded in the motion.
{: .speaker-K8L}
##### Mr THOMAS:
-- I feel that, in view of the many interests that are clashing more and more as between the Government of the Commonwealth and private enterprise, the time has come when not only members of the Cabinet, but private members, should dissociate themselves as far as possible from any private enterprise.
{: #subdebate-11-0-s11 .speaker-JLS}
##### Mr AHERN: Indi
.- I have listened to this discussion with a good deal of interest. Member after member of the Opposition has told the AttorneyGeneral what a splendid man he is, and that they would not think of casting any aspersion upon his personal character. They say that he is an excellent lawyer, an honorable man, an admirable AttorneyGeneral, and so forth. But, while they speak in this way, they submit a motion which, if carried, would practically drive the Attorney-General out of the Ministry. As showing that that is in the minds of honorable members opposite, I have only to point out that the last honorable member to address the House referred to the honorable gentleman's association with public companies. Clearly, then, this motion has been submitted, not for the benefit of the Parliament or the country, but rather to break down the Attorney-General, and, if possible, to drive him, as a strong opponent, out of the Ministry. It has been somewhat interesting to notice the different aspects from which this matter has been discussed ; but I think we may fairly accept the view put forward by the honorable member for Bendigo that it is from the aspect of the man in the street that the Opposition are regarding it. In looking at it from that aspect, however, we .have been completely side-tracked. We have lost sight altogether of the main issue. We have left on one side the real question that the House should consider. The question is: What is the position of the Attorney-General ?
{: .speaker-KXK}
##### Mr Webster:
-- That is what we want to know.
{: .speaker-JLS}
##### Mr AHERN:
-- That is exactly what honorable members should be informed of, and what the man in the street should learn through the medium of this House. The man in the street should not be misled by arguments and statements made during this debate which do not affect the case. We have to consider what is the strict position of the Attorney-General in view of the general retainer that he holds. We have had the honorable member for West Sydney taking up a position in direct conflict with that of the mover of the motion. The honorable member for Kalgoorlie sneered, if I may use the expression, at the Attorney-General, and insinuated that the case for his side had been put before the public through the medium of well-known members of the Victorian Bar, and by means of a letter from a leading firm of solicitors, who happen to be solicitors for the Marconi Company. He at once points to the fact that these learned counsel and this firm of solicitors do not agree, and he practically puts it that the solicitors give away both counsel and the Attorney-General. After he has done that we find what little reliance can be placed on his view of the matter, since the honorable member for West Sydney says that he agrees with the position as stated by the two learned gentlemen who wrote letters in this morning's newspapers; that he quite agrees with Messrs. Blake and Riggall, and also with the Attorney-General's attitude and explanation. We can take it, therefore, that the honorable member for Kalgoorlie is not in that respect in agreement with the honorable member for West Sydney.
{: .speaker-KXK}
##### Mr Webster:
-- What has that to do with the case?
{: .speaker-JLS}
##### Mr AHERN:
-- Of course, anything that hits the other side, and shows the weakness and fallacy of their argument, lias nothing to do with the case. Then we had the honorable member for West Sydney saying that the Attorney-General was counsel for the Marconi Company, but that, in mentioning this, he did not wish to reflect on him. In fact, he said he was an honorable man - no doubt, a most honorable man. He immediately followed up that statement, however, with the remark that people do not give money for nothing; that their object is to secure services. The honorable member's insinuation was that the Attorney-General's services in favour of the Marconi Company
{: .speaker-KLM}
##### Dr Maloney:
-- And against his country.
{: .speaker-JLS}
##### Mr AHERN:
-- I shall deal with that point in a moment. The insinuation was that the Attorney-General's services are being secured by the Marconi Company because of this general retainer. I should be sorry to think that that was a wilful misrepresentation of the facts. The Attorney-General has made absolutely clear what is his position under a general retainer. He has shown that he is under no contractual obligation whatever to the Marconi Company. He is entirely free of that company, except that he has to give it notice if he is asked to accept a brief against the company. And yet we have the honorable member for West Sydney insinuating that, in giving him this general retainer, the Marconi Company had in view the certainty of securing his services. And, further, the honorable member for Melbourne has interjected that the retainer was given to secure the AttorneyGeneral's services against the Commonwealth. That is not the purpose. The Attorney-General has stated that he would not accept any brief against the Commonwealth at the instance of the Marconi Company, and the Marconi Company has no right whatever, by reason of the giving of this general retainer, to demand or to retain his services against the Commonwealth, or against any one else, if the Attorney-General thinks fit to refuse them. I do not know whether or not it was intentional, but the honorable member for . Kalgoorlie, in dealing with this matter, conveyed to me, and, no doubt, to others in the Chamber, an entirely false view of the AttorneyGeneral's position. He said that the Marconi Company, in its litigation with the Commonwealth, had the benefit of the services of the Attorney-General of the Commonwealth. That is not a correct statement of the facts. The Marconi Company, at some time in the past, had the services of a member of the Bar; but that gentleman, having become Attorney-General of the Commonwealth, dissociated himself entirely from the company, and, therefore, they have not had his services as Attorney-General. If the honorable member for Kalgoorlie's contention is correct, then any barrister who happened to be briefed by any person or company, and who afterwards became a member of Parliament or Attorney-General, might have the same charge levelled against him. Would it be right, merely because a gentleman had been so acting before he became a member of Parliament, to level such a charge at him when he entered this House? The position of the AttorneyGeneral has been reviewed, and it is said that he is now representing the Crown. He is not representing the Crown in this matter. He has explained to the House that he has dissociated himself from it- The honorable member for West Sydney contends that by dissociating himself from the company he has given evidence of his guilt. I wonder what he would have said if the honorable gentleman had not done so ? The Attorney- General, who has been counsel for this company - and this would apply even if he had been acting as counsel for the company before he was a member of the Parliament - dissociated himself from it as soon as he assumed his present position. And this is said by the Opposition to be proof of his guilt. On the face if it, such a contention is manifestly absurd. It is not tenable for one moment. It seems to me that a great portion of the discussion in this House, so far as the Opposition is concerned, has been directed, not to the enlightenment of honorable members, but to the man in the street.
{: .speaker-KEV}
##### Mr Fenton:
-- The man in the street is pretty wary of the lawyers.
{: .speaker-JLS}
##### Mr AHERN:
-- Even the honorable member for Barrier has admitted that the members of the legal profession are, as a rule, honorable men, and I feel sure that they will manage to survive the taunts and gibes of the honorable member for Maribyrnong. In this matter, it seems to me that if any one ought to have a grievance, it is the Marconi Company. We have in the Attorney-General a gentleman who was their counsel, and who evidently possesses a knowledge of all their business secrets so far as they are material to this case. Having that knowledge, the AttorneyGeneral has dissociated himself from the company, and really becomes the representative of their opponents, in some re spects, in connexion with this particular business. Therefore, I say that the company might reasonably have more ground for complaint than the Commonwealth or this Parliament could possibly have in respect of the charge levelled here.
{: .speaker-KXO}
##### Mr Page:
-- That is a most peculiar attitude !
{: .speaker-JLS}
##### Mr AHERN:
-- That is an attitude that some honorable members have not tiio comprehension to appreciate, although it is quite clear. It has also been said that there is a conflict of interests by reason of the Attorney-General continuing to hold a general retainer. Where is the conflict of interests? The AttorneyGeneral has absolutely dissociated himself from any litigation in which the Commonwealth and this company are concerned. If there were no general retainer, and the Marconi Company were engaged in litigation with some private persons, and desired the services of the Attorney-General, would it be reasonable that he should refuse a briuf because some other business of theirs was connected with the Commonwealth?
{: .speaker-KXK}
##### Mr Webster:
-- Perish the thought!
{: .speaker-JLS}
##### Mr AHERN:
-- I should hope so. I do not think that such a position should be expected on the part of the Attorney - General or any other member of the House who may be engaged, not perhaps in the legal profession, but in some other business. The honorable member for Bendigo has said that the AttorneyGeneral 13 the watch dog of the Commonwealth in legal matters. The Attorney-General, however, is not a watch dog in this particular matter, or otherwise there would have been a howl of indignation here. He has properly handed over his duties in this connexion to another member of the Cabinet, and made it quite clear to the House that he has, even in Cabinet matters, entirely dissociated himself from the company.
{: .speaker-KEV}
##### Mr Fenton:
-- The Attorney- General has said that he is going to vote on it.
{: .speaker-JLS}
##### Mr AHERN:
-- And I think he is quite entitled to vote on it.
{: .speaker-KXK}
##### Mr Webster:
-- The honorable member would justify anything after that?
{: .speaker-JLS}
##### Mr AHERN:
-- I am referring to this motion. I do not know what the AttorneyGeneral is going to do, but no doubt he is quite capable of deciding how he will act and vote. Now that this matter has assumed such proportions, it is only fair that honorable members should express their views. This motion, as framed, is distinctly an attack, not only on the honorable and learned member personally, but on him in his capacity of AttorneyGeneral. It is also an attack on the Government, and I feel sure that it could not have been accepted in any other way than it has, namely, as a motion of noconfidence.
{: #subdebate-11-0-s12 .speaker-KLM}
##### Dr MALONEY: Melbourne
.- I take up a position of, I hope, " the man in the street," who, as a rule, does not love the lawyer too much, having had much bitter experience of him. I look forward to a happy time when we shall nationalize the lawyers, because then their duty would be to make peace and not war between the citizens. I have no desire to wrong the Attorney-General, although politically I hit him as hard as I can. I understand that the Attorney-General has said that, if the question of compromise with the Marconi Company were considered by the Cabinet, he would not deprive himself of his right to sit, but that subsequently he added that the probability was that he would not sit.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I said first of all that there was nothing in the general retainer to prevent my dealing in any way with the matter, but having regard to my previous connexion with the case I probably would not sit.
{: .speaker-KLM}
##### Dr MALONEY:
-- I do not know what the honorable gentleman got from the Marconi Company, but we do know that he took the side of a trust against his country. I am going to prove that this is only in keeping with his record during many years, and that, at the present time, he is a member of an illegal association formed to defy and destroy an Act of Parliament. The Attorney-General, in his very superior, I may say EquityCourt barrister, style, condescended to take notice of a poor unfortunate member, who at the last election was returned unopposed, and, when he had an opponent, obtained a larger majority than the Attorney-General ever had. I refer to the honorable member for Kalgoorlie, whom the Attorney-General referred to as the "Justinian from the West." In my opinion, if ever there was a weak, wouldbe Coriolanus, it is the present AttorneyGeneral. Coriolanus, we know, was going to destroy Rome, but, on the appeal of his mother,, the one little golden gem in his heart was touched, and he marched away. Do I not know when the AttorneyGeneral marched away ? It was when he had the Upper House of Victoria in the palm of his hand, and, backed by the whole power of the *Age,* had the biggest majority that ever sat behind a Premier. Then it was that he showed his back-bone to be nothing more than soap. As I say, I accuse the honorable member of being a member of an illegal association which was destroyed by the power of the *Age* and the *Argus* and public opinion, but which, in the dark, was formed again. If the honorable member for Indi were to attempt to practise his profession in the High Court, he would find that the Attorney-General would refuse to appear with him ; he would find that there was preference to unionists, and that he had no right to earn his living alongside the AttorneyGeneral. And why is this? It is because of the rules of a secret society.
{: .speaker-10000}
##### Mr SPEAKER:
-- Will the honorable member confine his remarks to the question before the Chair?
{: .speaker-KLM}
##### Dr MALONEY:
-- I will show that the Attorney-General is receiving a fee from what I consider to be a trust. The Telefunken Company has been compelled to join, or has advisedly joined, the Marconi Company, and to-day they constitute a trust that leaves a slime of evilness wherever it appears. Luckily for the great Chancellor of the Exchequer of England, this trust was not able to crush him. I am a little bit tired of this cry of " Honour, honour, honour " - we know that Mark Antony had a great deal to say under this head. Time was when lawyers were paid in the way that Judges are paid now, and the business of the Courts was to see that justice was administered, and the rights of the people preserved. A little later, clients, who were blessed with money, got into the way of giving retainers. Of course, it may be regarded as quite a fair thing for either the rich man or the poor man that he should be able to give a retainer; but does any one think that the average " man in the street," who earns from £2 to £4 a week, can spare £5 to retain a member of the Bar? I venture to say that the numerous retainers of which the Attorney-General has boasted to-night on the floor of the House, come from great companies and wealthy men; I doubt whether he has a poor man amongst all his clients. In the days gone by, those who had the means, and desired the zealous and undivided services of a lawyer, gave him a fee, which, as it was said, was "to insure progress"; and if honorable members look at the initial letters of these words, they will find that they spell "tip." This was regarded as tampering with the Court, and was punished. When the Legal Professions Practice Act was before the Victorian Parliament, the honorable member for Kooyong had a clause inserted limiting the power of barristers to charge the enormous fees they were then charging. Although politically I entirely disagree with the honorable member, I must compliment him, because he is what is known as an " amalgam," who would not be permitted by the Attorney-General to appear with him in Court.
{: .speaker-KHE}
##### Mr Higgs:
-- What is an "amalgam" ?
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- An " amalgam " is. a man, who, if he dared to go into the Supreme Court, would be called a blackleg by the Attorney-General.
{: .speaker-KLM}
##### Dr MALONEY:
-- I will prove that that is so by extracts from the *Age.* Section X of the Legal Professions Practice Act 1891 provides -
>After the passing of this Act no person shall be admitted to practise as a barrister or a solicitor solely, but every person admitted by the Supreme Court shall be admitted both as a barrister and solicitor.
I maintain that, when the AttorneyGeneral spoke from the bar of the State House as a barrister, he had no right to do so, because the law of the land stamps him as both barrister and solicitor. Let us return, however, to the olden practice of the "tip," to which I have referred.
{: .speaker-KHE}
##### Mr Higgs:
-- Was it the sort of " tip " we give a waiter?
{: .speaker-KLM}
##### Dr MALONEY:
-- It was given in a much more indirect manner. In those days, the legal advocates had a little pocket at the back of their robes which they could not touch with their hands, and into this pocket the wealthy clients used to put the extra fee or tip. As a matter of fact, if we go into a Court of the present day, we shall see the remnant of this pocket in the robes of our barristers. I have been informed that the Attorney-General received over four figures in sovereigns; and for what? For defending the trust or combination .of the Telefunken and Marconi Companies against his own country. Is it any wonder that the great, .jurist, of . America said that, for the betrayal of a. country, or a great cause, we had not far to seek, because it could be found in any barrister we met. The Attorney-General would sell his country if he would fight for a trust against his country. What did the great **Mr. Shiels,** once Premier of this State, say when I brought before the Legislative Assembly the fact that the barristers were seeking to destroy the Act which Parliament had passed ? He said that once a measure was embodied in the laws of the country, it was the duty of every barrister to obey it.
{: .speaker-KXK}
##### Mr Webster:
-- Have they not done so?
{: .speaker-KLM}
##### Dr MALONEY:
-- The barristers have defeated the object of the Act by an illegal combination. If the Attorney-General were asked from a public platform whether he was a member of a trade union, I have no doubt that he would be manly enough to admit that he was. He has acknowledged it to me, and I have no doubt that he would admit it publicly. But if he were asked whether he was in favour of preference to unionists, he would deny it. He has declared his intention of removing from the statute-book the preference provision which exists there. But I am going to prove, from an article in the *Age* newspaper, that he belongs to an association which has always stood for preference for the members of its own union. I am glad to recognise that the *Age,* on the 29th August last, published an article severely handling a Judge in connexion with this question. In so doing it maintained the policy by which it has been guided for many years; for, on the 5th December, 1891, the *Age* published a strong article on the very same lines. It then wrote -
>While the Bill for the amalgamation of the two branches of the legal profession was passing through Parliament it encountered the most determined opposition from a certain section of the Bar, who were naturally hostile to any projects which threatened to break up the monopoly that they had come to look upon as their prescriptive right. The opposition proved thoroughly futile, and the measure became law, but the malcontents made no secret of their determination to employ every means at their disposal for rendering its provisions of no effect, and so depriving the public of the advantages they expected to derive from it.
I accuse the Attorney-General of being a prominent member of the association which, at the present time, is carrying out exactly the practice which this newspaper denounced over twenty years ago.
{: .speaker-10000}
##### Mr SPEAKER:
-- Will the honorable member connect his remarks with the' motion ?'
{: .speaker-KLM}
##### Dr MALONEY:
-- I am arguing that the Attorney-General is a member of an illegal association, and is unfit to give an opinion as the law officer of the Commonwealth affecting a combine, whose fees he has taken. The article from which I have quoted proceeds -
The result of their machinations is a pamphlet issued by a body calling itself the Bar Association, and prescribing, a number of rules by which the attitude of its members is to be strictly regulated towards every practitioner who declines to subscribe to them. Their object is to maintain the same relation between barristers and solicitors as existed prior to the passing of the Amalgamation Act, and this is sought to be effective by ordaining that 11 every member of the association, shall act and practise only as barristers who usually acted and practised in Victoria previously to December the ist, 1891, and not otherwise." Everybody outside the charmed circle is to be strictly boycotted.
Men have had their livelihood taken away from them by the action of the AttorneyGeneral and this association -
No member of the association is to accept any brief or appear in any cause, or act in any manner jointly with any person not a member, and if any delinquent is discovered breaking this rule he is at once to be expelled, and his name recorded in the black list, in which all non-subscribing firms are to be registered for the guidance of the faithful.
Of course no member of this highly respectable body of conspirators against the laws of their country is to enter into partnership, directly or indirectly, with any other member of the legal profession in Victoria. Further than this. No member is to accept a retainer or brief from any solicitor who is suspected of having a partner' on the barristerial side of the Court. And certain members of the association are to be told off as a sort of vigilant committee to keep an eye upon the other branch of the profession in order that no one who has the hardihood to take advantage of the new law should escape for want of detection.
The name of any one who does not fall in with the aims of the association is put on a black list. Yet the Attorney-General denounces trade unions. Never did any trade union in this country carry on as this Barristers' Association has done. Is there any honorable member opposite who would dare, in any hall in this city, to defend the action of the chief law officer of the Commonwealth in taking money to fight his own country ? Do honorable members know what the great Judge Higinbotham, when he waa AttorneyGeneral in Victoria, did in such a case? I have it on excellent authority that Judge Higinbotham abstained en tirely from private practice when he became Attorney-General, from the 27th June, 1863, to the 6th May, 1868. His reasons were that he owed his sole services to the country which paid him a special salary to be Attorney-General, and that to continue and combine private practice with public duty would be improper. Let. me continue to quote from the *Age* articleto which I have already alluded -
There are other rules providing for the domestic behaviour of the Bar Association, but sufficient has been quoted to demonstrate thedesperate and thoroughly despicable character of the tactics to which members of an honorable profession can descend for the avowed object of putting, money into their pockets at the expense of the general public. For one of the foremost objects of the Amalgamation Act was. to cheapen the cost of litigation by enabling litigants to employ one lawyer where they at present have to employ two, and, at the sametime, to widen the field of selection for them.. Among the members of this precious junto will: probably be found the loudest declaimers against the precipient principles and practices of tradeunionism; but 110 trade union has ever attempted) to go so far in a direction of prohibiting freedom of contract. The two parties aimed at arethe solicitors and the public. The rules of theassociation are designed to intimidate the former and to dictate to the latter, and the impudence of the whole affair is capped by a provision nominating the Attorney-General and Minister of Justice for the time being, Chairman of the Committee of .Management, as though it was the most natural thing in the world for the political head of a Department to take part in a conspiracy for breaking the law which he has sworn to administer. And, after all, what does the law contain, that it should provoke such a desperate opposition to it? There is nothing either very new or very shocking in the idea of amalgamation. It is the practice in more than one Australian colony. The United States have had it in operation for a long time; and the leading lawyers of England, including many Judges, have not only acknowledged the merits of the system, but declare that it cannot be long before it is adopted in that home of Conservatism. The attitude of the association is therefore almost ridiculous as it is sublime. It not only challenges the public of Victoria, but it sets up its back against the almost unanimous opinion of the entire Englishspeaking race. Excluded from the pastures, of the world outside, the Bar Association looks to make a sort of ring fence Eden of Temple Court in which it can kick up its heels and bray its loudest defiance in the sure and certain hope that the other beasts of the fold will be too frightened to interfere. Whether its expectation will be realized as easily as it thinks remains to be seen. As we said before, the laws of the country are assailed in the proceedings of the association, which are distinctly opposed to public policy in as much as they a're in bar of trade as well as disloyal and immoral in their tendency. As for the solicitors, they must inevitably lose caste in the eyes of the public whose cause is also theirs, if they allow themselves to be coerced into signing away their independence by the threat of being sent to Coventry by the fifteen or sixteen superior persons who claim to embody the conscience of the profession, while they are really looking after their own fat fees.
If it were not for the fees paid by this Telefunken-Marconi Combine, does any one think that this highly honorable legal gentleman would fight for it? If the Attorney-General does not agree with the law of Victoria affecting barristers, why did he not, when he was Premier of Victoria, and had command of a tremendous majority, be manly enough to remove the law from the statute-book ? He, as a barrister, now seeks to destroy it. Would it not have been more honorable to have tried to amend it? There was a black list for any one who dared to break the rules of this little association. This was the pledge -
>To the Committee of the Board of Association.
>
>I,- , of- , being a duly admitted member of the legal profession in Victoria, do hereby request that I may be admitted a member of the Bar Association of Victoria. I do hereby solemnly declare that it is my intention to, and that so long as I continue to be a member of the said association I will, act and practise only as barristers have usually acted and practised in Victoria previous to the first December, 1891.
{: .speaker-JPC}
##### Sir Robert Best:
-- That is pretty rough ou the honorable member for Bendigo.
{: .speaker-KLM}
##### Dr MALONEY:
-- The honorable member for Kooyong, who is an amalgam--
{: .speaker-JPC}
##### Sir Robert Best:
-- That is not correct.
{: .speaker-KLM}
##### Dr MALONEY:
-- The honorable member is a barrister and solicitor by the law of his country. If he denies it, he seeks to break that law.
{: .speaker-JPC}
##### Sir Robert Best:
-- Yes; but I am not an amalgam.
{: .speaker-KLM}
##### Dr MALONEY:
-- I am sure that the honorable member never signed the pledge which I have read. At the time his seat would not have been very safe had he done so. The *Age* and *Argus* crushed that insurrection ; but the AttorneyGeneral is one of seven who built up the association silently and surreptitiously, until it reached its present position. To continue my quotation -
>I do further promise that I will not wittingly depart from the principles and rules of this association, and agree that my membership thereof is conditional upon my adherence to such principles and rules.
>
>Dated-
>
>Signed -
No trade union asks its members to sign such an agreement as that.
{: .speaker-KYD}
##### Mr Poynton:
-- How can any man with self respect sign such an agreement?
{: .speaker-JPC}
##### Sir Robert Best:
-- Ask the honorable member for Bendigo !
{: .speaker-KLM}
##### Dr MALONEY:
-- Have I not read enough from the *Age* to show that there ought to be some way of punishing men who break the law?
{: .speaker-JMB}
##### Mr Arthur:
-If the honorable member says much more in this strain I shall have to go over to the other side.
{: .speaker-KLM}
##### Dr MALONEY:
-- The honorable member is man enough to admit that he belongs to a trade union. In my opinion, any one belonging to that association must believe in preference to unionists. I do not object to the honorable member, who believes in preference to unionists, belonging to it; but I do not think that the Attorney- General does himself justice, nor is he honest in his opinions, when he speaks so harshly against preference to unionists for common working men.
{: .speaker-JM8}
##### Mr Archibald:
-- Is there a clause applying to doctors?
{: .speaker-KLM}
##### Dr MALONEY:
-- No. Doctors should be nationalized. I have advocated that since 1891, and I shall vote for it when I have the privilege and opportunity of doing so. **Mr. J.** Dennistoun Wood, a man whose name is famous in the roll of the legal profession, wrote objecting strongly to such a thing as a Bar boycott. Amongst those who, in that day, were men enough to hold up the finger of scorn against the association were **Sir Bryan** O'Loghlen, Q.C., **Mr. Rodgers,** Q.C., **Mr. J.** D. Wood, **Mr. Learen, Mr. Neighbour, Mr. Pennyfather, Mr. Donovan, Mr. Furlong, Dr. Mclnerney,** and **Mr. Eggleston,** who to-day occupies the honorable position of Judge. Even the Chamber of Commerce, to its credit be it said, passed a resolution against this association. It was considered that it would be well to have a College of Justice to take out of the influence of the Judges the appointing of barristers and solicitors. Let me now read an article from the *Argus.* It is shorter than that in the *Age,* but as straight as any article that was ever penned in the *Argus* office. Having quoted from a Democratic and Liberal newspaper, I wish to quote from a newspaper that fights its opponents much more fairly than some others do. I had broached this matter in Parliament, and such a wave of anger went through the country that, had an amending Bill containing a clause providing a penalty for breaking the law been introduced, the Attorney-General would not now pride himself so much on the honour of barristers, and would not belong to an association which, in his innermost heart, he knows to have been formed to defy and destroy a law which his country has passed. What did the *Argus* say -
>We are unwilling to believe that the members of the Bar forming the association, whose rules are published in another column, fully realize the nature of the compact into which they have entered. The honour of their profession is, we take it, the first consideration with the Bar as a body, and the obligation to respect the law is inseparably bound up with the maintenance of that honour unimpaired. Is a general agreement to contravene the law in any possible aspect consistent with these premises? The answer is surely self-evident. And, if so, then the aims of the new organization are wrong in principle and degrading in effect.
The Attorney-General does not like that !-
>We have spared no effort to show the mischief likely to result from the system of forcibly amalgamating the two branches of the legal profession, and we still hold that the existence of a separate and highly trained Bar, observing the best traditions of the Inns of Court, would be best.
Here is an honest paper that, like the Attorney-General, had opposed the Bill year after year, but, to its eternal credit, when the measure had become law, it said that it must be obeyed ! -
>But preservation of the institution would be too dearly purchased if the price is to be a vulgar and indefensible boycott.
Fancy the Attorney-General being the head and leader of a little association, one of whose main objects is to boycott !
The Legislature having passed the Legal Professions Practice Act, it is the clear duty of the profession, and, most of all, of members of the Bar to yield implicit obedience to the spirit as well as to the letter of the Statute.
It is a remarkable and by no means creditable fact that when the Amalgamation Bill was under consideration the members of the Bar, with scarcely an exception, refused to render any assistance to the Legislature in the discussions of the issues involved.
Do we not know, too, that when the Torrens Act was passed in South Australia - that greatest Act for the transfer of land and the benefit of the people - every legal man left the House while the vote was being taken? -
>It is by no means compatible with the dignity, nay, with the honesty of the Bar, to seek now to neutralize by indirect and underhand means that will not bear the light of day, perhaps not even the light of the criminal law, legisla- lion which it practically permitted to go by default. We trust that the good sense of an educated and enlightened profession will lead to a prompt abandonment of tactics of which trade unionism itself is ashamed.
>
>The true means of preserving the Bar are to be found in the assiduity, independence, and skill of its members, and if the Bar cannot hold its ground on that basis, it will certainly not succeed by recourse to dubious and illegal proceedings.
The last sentence reads -
>The whole scheme revealed by the published rules betrays immaturity and feebleness of conception, and, worst of all, indicates a timidity that cannot be associated with the idea of duty done in the past or of conscious competency to perform that duty in the future.
As the representative of a large constituency, I desire to pay the meed of my thanks to both the daily newspapers of Melbourne for what they did at that time. I further thank the *Age* for its article of the 29th August last, in which it held up to the scorn of the people of Victoria, at all events, the action of a Judge who forgot himself. He, being sworn to obey the law to its uttermost letter, actually made statements regarding it that were not accurate. It would be well for the AttorneyGeneral to remember that his acts in the past are not such as to give us great faith in his future. The largest body employed by one Department of this State was by him' robbed of its citizenship. But we know that when the opportunity came even that House of fossils known as the Legislative Council wiped out unanimously one of the two Bills that distinguished his State career. Never was there a Coercion Act passed in England, even in the most terrible times, equal to the Victorian Act. One can forgive the English Parliament for being severe. The Gladstone Coercion Act was brought in on the night of the day that they buried the poor dead clay of Cavendish and Bourke. I, the son of an English mother, with an Irish name, looking back through the years, cannot blame the English Government for being too severe under such circumstances. But in this State a Bill was brought in more drastic and more severe in its penalties than the severe Coercion Act that was introduced into the English House of Commons under the terrible circumstances to which I have referred. What did the leader of His Majesty'sOpposition in the State Parliament, **Mr. Prendergast,** who has lately returned from the Old Country, say when, by a. trick of **Mr. Bent,** they were passing a vote on the resignation of the honorable member for Flinders?
It was the loss of that population at that particular period that landed Victoria in the loss of a Federal member. We, at that time, lost one member in the House of Representatives, while the membership of New South Wales was increased. I would point out that the late honorable member for Lowan was seldom in the House after his departure from the Premiership. He did not attend the House more regularly than about once a week. His name appeared very seldom in connexion with the divisions, or anything else, and since his wife received that £2,000 as the price of her husband's apostasy from his original principles, he was hardly ever in the House at all.
{: .speaker-JRP}
##### Mr Boyd:
-- That sounds very fine, does it not ?
{: .speaker-KLM}
##### Dr MALONEY:
-- The honorable member will agree with me that where a huge sum of money was given by people the honorable and learned member never dared to go and ask them for their franchise.
{: .speaker-JRP}
##### Mr Boyd:
-- The money was subscribed, as it is in the case of many members of Parliament, gratuitously by friends.
{: .speaker-10000}
##### Mr SPEAKER:
-- Order! So far as I can judge, that has absolutely nothing to do with the question before the Chair.
{: .speaker-KLM}
##### Dr MALONEY:
-- I bow to that ruling, sir. As it was a very large fee, perhaps it could not be taken as a retainer. I ask the honorable member for Henty, if he dares, to take the Melbourne Town Hall and ask the citizens who created this Parliament if they will, for one moment, vote for a man like the AttorneyGeneral to fight for this combine of Telefunken and Marconi against his own country. I will take him on if he dares to accept my challenge - or any other member of the House - even in his own district. He knows that in his heart he dare not do it. I have put my protest on record, and will vote as I have said. The Attorney-General is not following the traditions of the English House of Commons or the practice of the French House of Deputies, where, in the last fifty years, every man who has been accused has withdrawn from the Chamber and let his fellow members decide the question. The Attorney-General knows that he dare not do that, because if he did this motion would be carried, most likely.
{: .speaker-JRP}
##### Mr Boyd:
-- Mock heroics !
{: .speaker-KLM}
##### Dr MALONEY:
-- It is better than my honorable friend's mock Democracy, any way.
{: .speaker-JRP}
##### Mr Boyd:
-- Mock heroics !
{: .speaker-KLM}
##### Dr MALONEY:
-- Will the honorable member take a big hall in his own constituency and argue the question with me, and call our protests mock heroics?
{: .speaker-JRP}
##### Mr Boyd:
-- Yes, at any time you like.
{: .speaker-KLM}
##### Dr MALONEY:
-- Does the honorable member mean that he will advocate the Attorney-General taking fees from these two companies?
{: .speaker-JRP}
##### Mr Boyd:
-- Yes.
{: .speaker-KLM}
##### Dr MALONEY:
-- I am willing to meet the honorable member at any time and argue the question before the public. I do not care what the opinion is. The law must be put in proper terms. This sort of thing would not happen in Denmark; it could not possibly happen in Switzerland, because there an officer in the Government has to give up everything. I want to be fair to a majority of one, which may last a month. I quite recognise that in the case of a man who, in taking the position of Attorney-General, gives up a large practice, with the possibility of being thrown out of the position in a month or two, there is a difficulty. If a man gave up a big practice and applied his energies and abilities, as he should, to the welfare of his country, I would be quite prepared to vote that a Minister, under these conditions, should have the right to a retiring allowance or a pension of, say, £1,000 a year, if ever he should demand it. That, following the English precedent, would, in my opinion, be a good thing, and then a man would not have the excuse that he was giving up his livelihood.
{: .speaker-K5D}
##### Mr King O'Malley:
-- The English precedent is no good to us. We want it all round.
{: .speaker-KLM}
##### Dr MALONEY:
-- The English precedent deals with a population of 45,000,000, whereas our population is only 4,700,000, and therefore there should be a difference. I shall be very proud of the vote I give to-night on this motion ; and if it is carried, it will be the duty of the Attorney-General to say that, from that moment, he will give up all private business. If he will do that, he can claim my vote that any man retiring from a Ministerial position in these circumstances can claim a pension of £1,000 a year.
{: #subdebate-11-0-s13 .speaker-JSC}
##### Mr BRENNAN: Batman
.- By some cruel fate, every time I speak I have to defend my unfortunate fellow unionists on the other side of the House from a violent attack on the part of the honorable member for Melbourne. The last time I spoke here I had to pour oil on the troubled waters, and now I have to pour cold water on the head of my honorable friend to try to keep him in his place. I want to join with the honorable member for Kooyong in his pathetic appeal on behalf of the Attorney-General, and the precarious means by which he and other honorable members eke out a living at the Bar. I would not have spoken at all but for the fact that the AttorneyGeneral practically invited me to come to his assistance in this little matter. I feel that, as a humble follower of the same profession, I am in duty bound to say a word or two on this most interesting subject. The Attorney-General has vouchsafed to the House that I, in common with the honorable member for Bendigo and others, either know the rules governing these cases, or ought to know them. I, at any rate, he said, ought to know them. He granted to my honorable friend here the credit that he did know them. I venture to say that I know something about the rules, and if I was not thoroughly conversant with them before, I have been made so by the kindly advice and the clear statement of the AttorneyGeneral - advice, I may say, which was granted at a much cheaper rate than I have been accustomed to pay on behalf of clients for opinions in the past; although it is only fair to add that clients who have paid always thought it worth while. So far from being embarrassed by the vote I intend to give, or so far from being ashamed of the opinion I hold in this matter, I am very glad to have this opportunity of recording a vote on the side of the higher ethics. We have heard so much from honorable members opposite about the corruption and the disloyalty, and the immature political views of honorable members on this side, that it is gratifying and refreshing to have an opportunity to record a vote on behalf of a principle which takes us into the higher and rarer atmosphere. It is not so long since honorable members opposite, who have shown themselves very sensitive about any criticism levelledat themselves, were pleased, if not to applaud, to peacefully acquiesce in, the remarks of the honorable member for Echuca when he spoke of ex-Ministerson this side as robbers and purloiners. Consequently, they ought not to be too sensi tive when it comes to a consideration of their own political and professional conduct. The Attorney-General seems to be determined to take this motion as reflecting on himself personally, and his mind is quite made up that if it is carried, it will amount to a vote of want of confidence in the Government, and to a very grave reflection on himself. I venture to remind him of the legal principle, with which, no doubt, he is quite familiar, that one cannot discuss very well in Parliament, any more than in the Courts, mere abstract principles without some concrete case on which to found one's arguments in connexion with those principles. Consequently, in endeavouring to lay down a principle in the House, we have associated with the principle and the expression of it the name of the AttorneyGeneral, in these words -
>That, in the opinion of this House, Ministers of the Crown should not violate the code of rules of positive obligation laid down by the British Prime Minister **(Mr. Asquith),** which rules read -
>
>Firstly - That Ministers ought not to enter into any transaction whereby their private pecuniary interest may even conceivably come into conflict with their public duty ;
>
>Secondly - That no Minister ought to accept any kind of favour from persons who are in negotiation with or seeking to enter into contractual or pecuniary relations with the Government; and then to put the concrete case in respect of which we want to establish a principle - and that the action of the Attorney-General (the Honorable W. H. Irvine) in determining to hold a retaining fee from the Marconi Company, now in litigation with the Commonwealth Government, has violated the rules of conduct here laid down, and is detrimental to the best interests of the Commonwealth.
I cannot help thinking that there is a very great deal in what the AttorneyGeneral has said in regard to the Bar Association, about which the honorable member for Melbourne had a lot to say. But there is a great deal, too, in what the Attorney-General said with regard to his loyalty to that association. I applaud his loyalty to the Bar Committee, and that is why I join issue with the honorable member for Melbourne, who has very appropriately crossed the floor and gone into opposition with me on this matter.
{: .speaker-KHE}
##### Mr Higgs:
-- What is the Bar Committee?
{: .speaker-JSC}
##### Mr BRENNAN:
-- It is the AttorneyGeneral's union. It is one of the strongest unions in Australia. I am proud to say that the loyalty of the members to each other, and to their union, sets an example which might well be followed in the industrial world. Their loyalty is really admirable, and I commend them for it; I do not blame them for it. At the same time, I realize that there comes a time when even loyalty to one's union may be strained too far, and when it comes to a question of loyalty to one's union, or even the appearance of disloyalty to one's public duty, I think we have reached a stage at which even the union must give way. A very interesting example of the strength of the position of the Bar Association, not only in the minds of its members, but in the minds of their Honours the Judges of the Courts, was afforded the other day, when a Supreme Court Judge ventured, from his place on the Bench, to threaten a member of the Bar who was before him, not with any of the penalties which the law enabled him to impose, but with penalties which were to be inflicted by the Bar Committee, an irresponsible body, sitting, as my honorable friend rightly remarked, in secret. We have reached rather a curious position when a Supreme Court Judge may do that with impunity. Nevertheless, that is precisely what happened in the case which I have in my mind, and with which, I am certain, every honorable member is familiar. So that loyalty to one's union may be carried too far. I am always safe in agreeing with the honorable member for Bendigo, because his judgment in these matters as a citizen, as well as his law, is invariably sound. I share the view which he expressed in regard to the question which is now before us. That view was misrepresented" by the honorable member for Kooyong, and, to a lesser extent, by the honorable member for Indi. The honorable member for Bendigo viewed the question from this stand-point - " It is not how honorable members may regard the attitude of the Attorney-General, or how discerning members of the legal profession will regard it. The crucial test is the maintenance of general public confidence." That is what the honorable member for Bendigo referred to as the attitude of " the man in the street." It is not sufficient for the Attorney-General to examine his conscience and say, ' ' I am doing something which my conscience tells me is quite right. I am acting honestly, and am determined to act honestly." He must be prepared to place himself beyond the region of reasonable suspicion. That is the principle upon which he should act. Several analogous cases have been quoted by the honorable member for West Sydney and the honorable member for Bendigo. The honorable member for West Sydney rightly pointed out how high is the standard set to members of the Bar by the Judges themselves. He cited the example of **Mr. Justice** Powers and **Mr. Justice** Duffy, who, on the lightest breath of suspicion that they might be influenced by their previous connexion with certain cases, retired from the Bench. The honorable member for Bendigo put another analogous case - that of a judicial officer who might reasonably be suspected of bias, and who, in these circumstances, ought not to adjudicate. Still another analogous case is that of a trustee upon whom very important obligations are cast in the exercise of his trusteeship. His duties as a trustee are more onerous and exacting than are his duties as an individual. He must not mix trustee property with his own property; he must not buy trustee property, even though he is prepared to pay a. greater price for it than the market price. In every case the standard of his caution must be greater in regard to the property of which he is a trustee than it is in regard to the ordinary management of his own affairs. Having accepted the invitation of the Attorney-General to justify my position from the stand-point of the higher ethics, I do not intend to press this matter much further. I merely wish to ask honorable members just where we are in the particular case which has been used as an illustration upon which to found arguments in connexion with this really abstract proposition. I hardly think it is necessary to add to what has been said in support of the view that nobody upon this side of the Chamber suggests any personal dishonesty or impropriety in connexion with the attitude taken up by the Attorney-General. Heholds a general retainer from the Marconi Company. What that means has been sufficiently well explained. I have to thank the honorable gentleman himself for explaining it very fully. He says thatall that it means is that he must givenotice to the Marconi Company before accepting a brief against it. In other words, that company has the first claim upon his services. If that company received notice from the Attorney-General that somebody else desired to brief him it might thereupon deliver a brief to him. That is the point which I wish to make. We may actually reach the stage when the Attorney-General has been tendered a brief, which, of course, he might not be able to accept. His discretion would then come in, and he would determine whether he could accept it or not.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- We are just as likely to reach that stage irrespective of whether I hold a general retainer or not.
{: .speaker-JSC}
##### Mr BRENNAN:
-- I do not know that we are, because the honorable gentleman's general retainer is based upon the fact that the Marconi Company desires his services, and has ear-marked them. Consequently, there is a strong presumption that it will brief him, and that company is in litigation with the Commonwealth. Honorable members opposite have asked again and again, "What is this general retainer?" They have urged that it does not create any obligation, and does not establish contractual relations. Then why hang on to it, seeing that it has already created in the public mind a doubt as to the political propriety of the Attorney-General's action. Would it not be better for him to say, " I will not accept a brief if it conflicts with the discharge of my public duties, and here and now I return my general retainer to the company?''' That is the simple and only means of obviating public uneasiness.
{: .speaker-KZT}
##### Mr RODGERS: WANNON, VICTORIA · LP; NAT from 1917
-- Does the honorable member claim that as a private member of this House he is at liberty to identify himself with the Public Service of the Commonwealth ?
{: .speaker-JSC}
##### Mr BRENNAN:
-- As a private member of this House it is conceivable that one's public duty may at some time or other conflict with his private business. But I am not going so far as to suggest that we should cut down the membership of this House by excluding from it everybody who has public business outside it.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- The honorable member is only going far enough to get at the Attorney-General.
{: .speaker-JSC}
##### Mr BRENNAN:
-- I do not think that the Attorney-General imagines for a moment that I have any vendetta against him. I am merely suggesting that the Attorney-General might well take the view that if our arguments are, even apparently, well founded, it is not a ques tion of whether the balance of argument is upon his side or upon ours. If our arguments have substance in them, that in itself ought to be sufficient to induce the Attorney-General-
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- My difficulty is that they do not seem to have any substance in them.
{: .speaker-JSC}
##### Mr BRENNAN:
-- That is merely a difference of opinion. I do not think the Attorney-General, with all his light and learning, should arrogate to himself the whole sum of knowledge, even upon this matter. I do not intend to detain the House. I merely rose to assure the AttorneyGeneral, who mentioned my name this afternoon, that this subject presents no difficulties to me. The matter is absolutely apart from personal considerations. It is really an abstract question. The honorable member for Kalgoorlie, in a very vigorous speech, entirely disclaimed any personal feeling in the matter, or any desire to disparage the Attorney-General in the discharge of his public duties. But the matter having been ventilated, and it being a matter upon which the public may conclude that the conduct of the AttorneyGeneral is open to suspicion, I shall experience no difficulty in voting for the motion without in the slightest degree desiring to reflect upon the personal, professional, or private character of the honorable gentleman whose name happens to be associated with it in circumstances with which we are all familiar.
{: #subdebate-11-0-s14 .speaker-L1R}
##### Mr AGAR WYNNE: Postmaster-General · Balaclava · LP
-- The honorable member for Barrier went so far as to say that no private member should identify himself with any case against the Commonwealth, and the honorable member for Batman has affirmed that he believes in the higher ethics of the profession. In my position as PostmasterGeneral I was served this morning with a plaint from the honorable member for Batman, on behalf of certain officials in the Post Office, who claim increases in salaries and a reduction in their hours of labour. If the honorable member pursues that case to a successful issue, it will involve the Commonwealth in a loss of thousands of pounds per annum. Is the honorable member justified in taking an action against the Commonwealth any more than was the Attorney-General, who, when a private member, held a retainer on behalf of the Marconi Company which he threw up the moment he took office and found that his position as counsel for the company was antagonistic to the Commonwealth? If an award be given in favour of these postal officials, and that award be not adopted, how will the honorable member for Batman vote on that question? Will he vote for his clients or in the interests of the Commonwealth ?
{: .speaker-JSC}
##### Mr Brennan:
-- I have no personal interest in it.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- The case against the honorable member for Batman is much stronger than is that made out against the Attorney-General.
{: #subdebate-11-0-s15 .speaker-KWL}
##### Mr TUDOR:
-- The one is, fighting for a rich monopoly and the other is fighting for the interests of the worker.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- And the one gets a "fiver."
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- The one receives a "fiver" for which he does not act, while the other is drawing hundreds or thousands of pounds for attempting to slate the Commonwealth. The postal electricians' case will cost the Commonwealth £30,000 a year.
{: .speaker-KWL}
##### Mr Tudor:
-- The Government like to " down " the worker.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- Parliament provided that the Public Service should have a right to appeal to the Arbitration Court, and an award of the Court having been made, the Government is going to observe it. The point which I wish to make is that if the Attorney-General is wrong, then the position of the honorable member for Batman, who has been acting in a case against the Commonwealth, is far worse.
{: .speaker-KYD}
##### Mr Poynton:
-- Is it fair to discuss that case now?
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- Certainly. The honorable member for Batman's case is on " all-fours " with that of the AttorneyGeneral. In fact, it is five to four against the honorable member for Batman. Honorable members opposite do not like to be attacked, but they like to attack, and would crawl all over, the AttorneyGeneral. This undoubtedly has been made a party question. Had there been no scandal in the Mother Country in regard to members of Parliament holding shares in the Marconi Company, would we have heard of this trouble? The fact is that when you want to beat a dog any stick is good enough to use. This has been made a party question. If the motion had been submitted without introducing the Attorney-General's name every honorable member would have voted for it. As it is, it is virtually a motion of want of confidence in the Government - an attempt to belittle the Ministry. Whilst every member of the Opposition has spoken highly of the Attorney-General, not one of them having had a word to say against his personal honour or integrity, this is undoubtedly an attempt to besmirch him and the Government of which he is a member. The last to speak in support of the motion should be the honorable member for Bendigo and the honorable member for Batman. The honorable member for Bendigo will probably be briefed in the very case against the Commonwealth Government to which I have referred.
{: .speaker-JMB}
##### Mr Arthur:
-- The Postmaster-General knows that I cannot be briefed.
{: .speaker-KEA}
##### Mr Kelly:
-- That is the only thing that will stop him.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- The only thing that will stop him is a consideration of what the man in the street - oi rroXXoi - will say. Instead of educating the man in the street, and showing him the true position, he bows down to a consideration of what may be said by him.
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- The honorable member seems to be angry at the thought of the public servants getting any degree of justice.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- No. I am trying to do justice to the public servants. During the short time I have been in power I have done as much for them as has any honorable member.
{: .speaker-KZG}
##### Mr ROBERTS: ADELAIDE, SOUTH AUSTRALIA · ALP
-- The honorable gentleman is crying out about what they have gained.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- I am not. I am trying to show honorable members opposite that their speeches are not consistent with their actions.
{: .speaker-KXK}
##### Mr Webster:
-- What actions?
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- I have been referring to the ethics of the honorable member for Batman in acting in a suit against the Commonwealth, although he is a member of this Parliament. The public servants will get as much sympathy from this Government as they have had from any prior Administration.
{: .speaker-KXK}
##### Mr Webster:
-- They want justice, not sympathy.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- And, as far as we are able to do so, we shall give them justice as well as sympathy. I am a member of the legal profession, bub am nob now in practice. My memory, however, is fresh enough to enable me to state what is the effect of a retainer. A general retainer is given to counsel so that the person giving it may have first call upon his services. It is often given to counsel whom you do not want on your own side, merely to prevent the other side securing his services. In your client's interests you think it better to have a certain counsel on your side than to have him against you, and it pays you to give him a brief.
{: .speaker-KXK}
##### Mr Webster:
-- And the more money you have the more counsel you get.
{: #subdebate-11-0-s16 .speaker-10000}
##### Mr DEPUTY SPEAKER:
-- I ask the honorable member for Gwydir to remember that he is not in order in carrying on a conversation across the chamber.
{: .speaker-KXK}
##### Mr Webster:
-- Thank you very much.
{: .speaker-10000}
##### Mr DEPUTY SPEAKER:
-- Order ! I am simply pointing out to the honorable member that he is not acting in accordance with the Standing Orders.
{: .speaker-KXK}
##### Mr Webster:
-- And I thank you for doing so.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- This is as good as an election meeting. I do not mind a few interjections. I wish to explain the difference between a general retainer and a brief. A counsel accepts a brief to go into Court and act on behalf of a client, but the mere fact that he holds a general retainer does not bind him to accept a brief, nor does it bind the client to give him one. If he does not receive a brief from the person giving the general retainer he is entitled to accept one from any one else. The Attorney-General, as soon as he discovered that the litigation between this company and the Commonwealth was being continued, said that he could not act any further for them in that litigation. The conduct of the case for the Commonwealth was handed over to the Minister of External Affairs, who was Attorney-General in a previous Administration, and he, the Crown Solicitor, **Mr. Garran,** and myself are now conducting it. We are going to fight as hard as we can for the Commonwealth. I would remind honorable members in this connexion that there can be no patent rights as against the Government. So far as governmental purposes are concerned neither the Marconi Company nor any other company can claim that it has any rights if we choose to insist upon those which the Crown possesses. The company's claim, if it has any at all, can be only in relation to private business carried on for other people by the Government.
{: .speaker-KQP}
##### Mr McDonald:
-- But will the Government stand up for the rights of the Commonwealth ?
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- I am going to stand up for them. The action relates to my Department. I am responsible, and I am going to look after the case.
{: .speaker-KWL}
##### Mr Tudor:
-- The honorable member is only one of ten.
**Mr. AGAR** WYNNE. Radiotelegraphy is controlled by the Postal Department, and whilst I am PostmasterGeneral I am going to defend the rights of the Commonwealth. It is my duty to do so, and I am ably assisted by the counsel engaged in the case.
{: .speaker-KUF}
##### Mr Spence:
-- But the honorable member does not get any help from the AttorneyGeneral.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- I do not ask him for his help, and do not want it.
{: .speaker-KEV}
##### Mr Fenton:
-- He ought to be ready to give it.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- In view of the fact that he had previously acted for the Marconi Company he could not be asked. He was a private member when he was acting for the Marconi Company, but as soon as he took office as Attorney-General he said he could act for it no more in the proceedings against the Commonwealth. I am sure that any member of the Opposition similarly situated would have acted as he has done. If the honorable member for Bendigo were Attorney-General in the next Administration, he would be in exactly the same position as is the honorable member for Flinders.
{: .speaker-KXK}
##### Mr Webster:
-- He would not take a brief in a case against the Commonwealth.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- He has done so.
{: .speaker-KK9}
##### Mr Jensen:
-- But he is not a Minister. He is only a private member.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- The honorable member for Barrier said that no private member had a right to act in a case against the Commonwealth, and that was why he intended to vote for the motion.
{: .speaker-JX9}
##### Mr Frazer:
-- He said that some one else was doing so.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- Every member of the Bar in practice is liable to be in the same position, and I am sure, would do exactly as the Attorney-General has done. The ex-Attorney-General some time ago was the secretary of a union, the members of which were on strike in Sydney. As AttorneyGeneral, he might have been called upon to prosecute members of that union, but he did not dissociate himself from it, and no one asked him to do so. All these are analogous cases.
{: .speaker-DQC}
##### Mr Hughes:
-- The honorable member might say that I did not receive any fee from the union.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- But the honorable member's position was exactly the same as that of the Attorney-General.
{: .speaker-DQC}
##### Mr Hughes:
-- The receiving of the fee is the whole point in this case.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- The fee vas paid to the Attorney-General before he took office, and the retainer could not be withdrawn. It has a currency of twelve months, at the end of which time it will come to an end.
{: .speaker-KEV}
##### Mr Fenton:
-- Or be renewed.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- Probably it will not be. After the discussion that has taken place, I do not think that the Marconi, or any other company, will be prepared to waste another " fiver," knowing that it has no opportunity to obtain the services of the counsel who has been retained, if that counsel has become Attorney-General .
{: .speaker-JMB}
##### Mr Arthur:
-- They will have an opportunity before the twelve months expire to secure the Attorney-General's services.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- But this retainer has a currency of twelve months.
{: .speaker-KWL}
##### Mr Tudor:
-- The Government will be out of office before then.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- That depends a great deal on the Opposition's luck in securing an additional member.
{: .speaker-KWL}
##### Mr Tudor:
-- We want the single dissolution that the honorable member for Grampians talks about.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- Very often those who cry out most loudly for a dissolution in reality do not want one. I have heard some members of the Opposition say, " Why put the country to the expense of a dissolution and another election ?"
{: .speaker-JLY}
##### Mr Anstey:
-- Not a bad idea.
{: .speaker-L1R}
##### Mr AGAR WYNNE:
-- I am inclined to agree with the honorable member for Bourke and the honorable member for Darling on that point. When I agree with two such sensible men as those honorable members, I think I am in good company. If every man is to be attacked for his private connexions in business, it will be very difficult to get candidates for Parliament. Some remarks have been made regarding myself; but I am in a different position, inasmuch as I am retiring from business, and have been endeavouring for some time to sever my connexion with several company boards.. If honorable members had not made a party question of this, we should not have had this discussion; but it is regarded as a good opportunity to attack the Government and the Attorney-General, and it is sought to make scapegoats of both.
{: #subdebate-11-0-s17 .speaker-KEV}
##### Mr FENTON: Maribyrnong
-- We have heard so much from legal members, that it is about time a layman put in a " spoke." Eight" legal gentlemen have addressed the House, five of them from the Ministerial side; and each of these latter has, lawyer-like, given us a different definition. I shall not rely upon my own opinion, but quote from the *National Review,* which deals with members of the British Parliament, and Ministers in particular, on account of their association with this much-talked-of company. The article speaks of two members on the Unionist side, and comments on their action in regard to this particular question. The extract I shall read shows that "birds of a feather flock together," and how members of the legal profession, though differing in politics, rush to the rescue of their brethren in trouble. The two members referred to are **Sir Edward** Carson and **Mr. F.** E. Smith, two noted legal members on the Unionist side, who, when the vote was taken on (.lie motion moved by a private member censuring **Mr. Lloyd-George** and **Sir Rufus** Isaacs, walked out of the House of Commons instead of recording their vote. The article is written by **Mr. L.** J. Maxse who says -
>
**Sir Edward** Carson has taken refuge in vague generalities describing his conduct as being In accordance with the " highest traditions of the Bar,"-
That seems to be the harbor of refuge into which all legal gentlemen rush - though what those traditions may be it is impossible to ascertain, as the suggestion that every advocate is at the beck and call of the first comer - that he is, in fact, like a taxi driver on the rank - may be in accordance with precept, but it is certainly not in accordance with practice, as the reader will readily discover by seeking the aid of a distinguished K.C. in a case involving antagonism to the Big Wigs of the Bar.
If **Sir Edward** Carson and **Mr. F.** E. Smith are justified in putting themselves out of action on the dominant political issue of the day to please a Government they avowedly abhor - if they are entitled to disfranchise their constituencies by abstaining from vital divisions, as they did the other day on the vote of censure - constituencies will not unnaturally wonder whether lawyers make the best candidates and the best members, while rank-and-filers will ask themselves whether lawyers are ideal political leaders, seeing that the canons regulating their professional conduct are liable to paralyze their political action.
These words apply very much to the legal members, especially on the Ministerial side, who have spoken to-night. To me, as a layman, there seems a very easy way out of the difficulty. I do not say that the case is parallel, but that eminent lawyer, **Sir Charles** Russell, who afterwards became Lord Chief Justice of England, set a splendid example when, being of opinion that his private interests were likely to conflict with his public duties, handed back to **Mr. Soames,** solicitor, his general retainer for the *Times.*
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Do not make any mistake about that; he handed the retainer back because he desired to appear against the *Times.*
{: .speaker-KEV}
##### Mr FENTON:
-- We have heard something of the higher ethics of the legal profession, and I believe that **Sir Charles** Russell took a stand for which no man, whether in the legal profession or not, can condemn him. As a layman, I see no insuperable difficulty in the AttorneyGeneral writing to the Marconi Company, or their solicitors, informing them that, now being Attorney-General, he returns his retainer, and has no further connexion with them in any way. So long as even this retainer of five guineas remains, there is a substantial link between the AttorneyGeneral and the company. The *Spectator,* in an unsigned article, thus expresses itself in regard to the Marconi debate in the British House of Commons -
>The Liberal party in the House of Commons has struck a heavy blow at the greatest of public interests. By the ruthless use of the party majority they forced the House of Commons to reject **Mr. Cave's** motion : " That this House regrets the transactions of certain of His Majesty's Ministers in the shares of the Marconi Company of America, and the want of frankness displayed by Ministers in their communications on the subject to the House," and this, though, as we all know, for one reason or another, every man in the House did regret those transactions, and did regret the want of frankness displayed by Ministers. The refusal to admit a self-evident truth, because it might damage the two Ministers concerned and the
>
>Government as a whole, was a deliberate falsehood in action, but the House of Commons did even worse than this under Liberal dictation.
I know of no action of the present Administration in the Old Country that has done more to shake the confidence of the people in it there than the association of two members of the Ministry with the Marconi Company, although the company they were interested in was said to be an American one. I should now like to read the salutary rules which have been laid down by **Mr. Asquith.**
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- No one disputes those rules.
{: .speaker-KEV}
##### Mr FENTON:
-- The motion,, for the most part, has been drafted by the honorable member for Kalgoorlie on the lines laid down by **Mr. Asquith,** himself an eminent lawyer, for the guidance of his Ministers.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- An honorable member might put the Ten Commandments in a motion, and wind up by accusing a Minister of having broken one of them. Nobody objects to the general principles.
{: .speaker-KEV}
##### Mr FENTON:
-- If those on the Ministerial side do not object to general rules being laid down for the guidance of future Ministers, particularly the AttorneyGeneral, why do they not move for the excision of those words ?
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The plain fact is that I have always guided myself, and always shall guide myself, by those principles.
{: .speaker-KEV}
##### Mr FENTON:
-- I contend that the Attorney-General has not done so.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- Then the honorable member makes a vote of censure of it, and he had better stick to it.
{: .speaker-KEV}
##### Mr FENTON:
-- If honorable members opposite, particularly Ministers, desire to show their sincerity, they should move an amendment to the motion.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- We prefer to let the " squib " fizzle out.
{: .speaker-KEV}
##### Mr FENTON:
-- It is not a matter of a "squib."
{: .speaker-F4S}
##### Mr Joseph Cook:
-- It is nothing else, and it will not go off at all!
{: .speaker-KEV}
##### Mr FENTON:
-- We can realize whether a bullet reaches its mark when we find a cool and collected man like the Attorney-General ever and anon drawn out of his seat by comments on his action from this side. Why should **Mr. Mitchell,** K.C., and that great authority on constitutional law, Professor Harrison Moore, be brought into the field, and a specially long letter published in each of the morning papers in an effort to exonerate the Attorney-General? If this were only a bit of a " squib " we should not find these eminent gentlemen taking part. Somehow or other there seems to be something specially smellsome about this Marconi Company, a very strong combination, which is trying to obtain absolute control of all the wireless systems throughout the world. The Telefunken Company has been absorbed; and now that we have in this Commonwealth obtained the services of an eminent expert, **Mr. Balsillie,** with a new system, the claws of the combine are stretched out to grip that also. The very first man who should be ready at a moment's notice to defend the Commonwealth against such encroachments should be the AttorneyGeneral, our chief law adviser; and it is athousand pities, apart altogether from his past connexion with the company, that his services are not available at this critical juncture. I have no complaint to make about the PostmasterGeneral and the Minister of External Affairs, who are both good lawyers; but the Attorney-General should reserve himself for the defence of Commonwealth rights. Although the motion may not be carried to-night, I look to the Ministry, if they do not move an amendment, to bring forward for our approval similar rules to those submitted by **Mr. Asquith.** Those rules are as follow: -
{: type="1" start="1"}
0. No Minister ought to enter into any transaction in which his private pecuniary interest might possibly conflict with his public duty.
1. No Minister ought to use official information which has come to him as a Minister for his private profit or that of his friends.
2. No Minister ought to allow himself to be placed, or to place himself, in a position to be tempted to use his official influence in furtherance of schemes or contracts with regard to which he has an undisclosed private interest.
3. No Minister ought to accept any favour from persons seeking contractual relations with the State.
4. Ministers ought scrupulously to avoid speculative investments in securities concerning which from their position and their special means of early or confidential information they have an advantage as to anticipated market changes.
To these rules of obligations was to be added a " rule of prudence specially applicable to Ministers and persons in positions of official responsibility: -
Ministers ought carefully to avoid, all transactions which could give colour or countenance to the belief that they are doing something which the rules of obligation forbid.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Read on a bit further. **Mr. Asquith** said that not one of those rules has been violated.
{: .speaker-KEV}
##### Mr FENTON:
-- The article from which I am quoting goes on to say -
>We ask our readers to consider the known facts of the Marconi case in view of these rules. But, perhaps, it will be said that these rules had not been formulated before the action of Ministers. They did not know them, and, therefore, could not be expected to obey them. The plea is bad ; one of the most astonishing facts about the whole business is that we know the Chancellor of the Exchequer to have been thoroughly equipped thirteen years ago with the knowledge of the true principles and the true traditions.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- **Mr. Asquith** did not say all that.
{: .speaker-KEV}
##### Mr FENTON:
-- I have been quoting from an article in the *Spectator.*
{: .speaker-F4S}
##### Mr Joseph Cook:
-- My point is that immediately after laying down those rules, **Mr. Asquith** went on to say that not one of them had been violated.
{: .speaker-KEV}
##### Mr FENTON:
-- This article does not disclose that fact. In the *National Review* of August, 1913, a quotation is made from a speech by **Mr. Lloyd-George** in 1900, wherein he said -
>Unless these rules are observed by and enforced against officers of State in high places you cannot possibly enforce them against subordinate officials. When once these rules are broken by any person in high position it leads to the complete demoralization of the whole Civil Service. It is setting a dangerous precedent.
We are all public servants, and Ministers are such in an especial degree. If they cannot set an example, how can they expect the rank and file of the Civil Service to have high ideals? It is a rule of the service that officers shall keep themselves free from all other business than that for which they are paid by the State. I understand that some public servants have been carpeted because they have been found to have engaged in private business. Yet we have the Attorney- General of the whole Commonwealth engaging in private business actually against the Government whose Minister he is, and in connexion with a case which, as has been pointed out, may involve the Commonwealth in a loss of a hundred thousand pounds. That is a very serious matter. I intend to vote for the motion, and earnestly hope that it will be carried. If it is not carried, I trust that the Prime Minister will take it upon himself to bring in rules similar to those formulated by **Mr. Asquith,** in order that Ministers in future may be prevented from doing anything derogatory to the country and the positions which they occupy.
{: #subdebate-11-0-s18 .speaker-F4S}
##### Mr JOSEPH COOK: ParramattaPrime Minister · LP
-- I shall only occupy about three minutes, and should not have risen at all except for the ceaseless reiteration of the so-called rules laid down by **Mr. Asquith** for the guidance of responsible gentlemen in England. I entirely subscribe to those rules - to every one of them. I think they are admirably stated, and apply to other parts of the Empire as well as to Great Britain. I merely wish to add **Mr. Asquith's** comment upon those rules: that they had no application whatever to the case under consideration. They have been quoted here frequently, but those who have quoted them have carefully, studiously, and- persistently omitted the comment of **Mr. Asquith,** which I now supply. He said -
>I do not say that that is an exhaustive code by any means, but I think that it does contain propositions of indisputable proof and of easy application, and that it covers, if not the whole, at any rate by far the larger part of what you may call the debatable area in Ministerial transactions. Those, in my opinion, are rules of positive obligation, and I venture to submit to the House that none of those rules of positive obligation has been violated, certainly none of them consciously violated by any Minister in this case.
If those rules, laid down in such admirable terms by **Mr. Asquith,** were not violated when responsible Ministers entered into speculative share transactions, I submit that not one of them can, by any possibility, be said to have been violated by anything that the Attorney-General has done.
{: #subdebate-11-0-s19 .speaker-KXK}
##### Mr WEBSTER: Gwydir
.- I am surprised that the Prime Minister thought it worth while to rise, after the way in which he has treated the House from time to time in regard to matters of great public importance. He has read to us some statements of the Prime Minister of England, setting forth his views of the morality which should characterize Ministers of the Crown. Because the Prime Minister of England said that he did not believe that certain rules which he enunciated had been violated consciously:
{: .speaker-F4S}
##### Mr Joseph Cook:
-- He said that they had not been violated.
{: .speaker-KXK}
##### Mr WEBSTER:
-- Because the Prime Minister of England does not know whether these rules have been consciously violated, the honorable member suggests that the statements which have been made from this side to-night do not injure the man against whom they have been made. Does the honorable member say that the Attorney-General has not consciously violated any code of political morality that should be observed by members of this House? The Attorney-General holds a retainer for a great combine, the legal possibilities of whose future cannot be foretold. Will the Prime Minister say that in refusing to give up this retainer his colleague is not violating the code enunciated by the Prime Minister of England ? That code would not cover the position of the Attorney-General. We do not ask the Attorney-General to emulate **Mr. Justice** Higinbotham, that worthy man who has long since passed away, but whose memory will be honoured in days to come. We do not expect him to forego his private practice and other lucrative employment in which he may be engaged, but we expect him to see the wisdom of handing back his retainer to the Marconi Company, and dissociating himself from that company, in order that there may not be a vestige of suspicion attaching to his occupation of his high office. If he does that, it will be a step in advance, and a precedent to others who may hold his position in the future. It has been interesting to me to listen in this House and in another to the continual warfare among the fraternity known as the Devil's Brigade. Ever since I entered Parliament, I have listened to arguments, pro and con, for the disentanglement of some legal difficulty by legal members, and at the end I have been as wise as I was at the beginning. It is difficult to find out where you are when such a discussion takes place. Pour or five lawyers on the other side of the House to-night felt it incumbent to defend the Attorney-General, who is evidently not able to defend himself. They have felt it necessary to protect him from something, I do not know what; to. help him out of the position in which he stands.
{: .speaker-KHU}
##### Mr Howe:
-- And there have been four or five more outside.
{: .speaker-KXK}
##### Mr WEBSTER:
-- He has a legion of supporters outside, inspired, as he admits, with information regarding his connexion with the 'Marconi Company furnished by himself. I am not a lawyer, although I have met legal men in their own arena, and have vanquished as big a man as the honorable member in the Full Court. Although a layman without legal education, I vanquished a man who afterwards became a Justice of the High Court. When the Attorney-General speaks to me across the table as if to some one who may not have had the advantages which he has had in the way of education and college teaching, he degrades himself in trying to humiliate another whose opportunities have not been equal to his. Be that as it may, he must not think that the members of the legal profession are the only persons who can look at matters in a common-sense way. After all, it is common sense that brings, about justice and equity. When the lawyers have cited every case that they can find, and worn threadbare every argument, the Judge gives his decision, not in accordance with law, but in accordance with common sense. Let me tell the Attorney-General that, while he may be possessed of all the common honesty with which he has been credited, he has not got all the common sense in the world. He has defied the House. He has said, " I have relinquished my responsibilities as AttorneyGeneral, handing them over to my colleague the Minister of External Affairs. What would he have done had there not been another legal man in the Cabinet able to handle the technicalities of this case, and possessed of the necessary knowledge of the law ? In the last Government the Attorney-General was the only lawyer, and had to take all the responsibility -of the position on his shoulders. Had this Government been similarly constituted, what would have been the position of the honorable member for Flinders then ? He would have had either to retire from the Marconi business, or what is more likely, to retire from the position of Attorneygeneral, if he desired to retain the reputation he holds to-day. Fortunately, or unfortunately, for him, he has a colleague who has been Attorney-General, and who has been kind enough to relieve him of the grave responsibilities that attach to his office, and to handle this case for him in the interests of the Commonwealth. But if there should be a desire to come to an arrangement without having to fee the lawyers too much, and the question should come before the Cabinet, the Attorney-General previously declared, when speaking here, that he saw no reason why he should not assist to decide the question of compromise. I am glad to see that he has come down from that high pedestal, and that to-day he is quite prepared to consider the wisdom, or otherwise, of attending the Cabinet meeting. He does not say definitely that he will not attend, although he said "Hear, hear" to the honorable member for Indi when he implied as much. If his " Hear, hear " meant that he would not take part in the meeting, then it will not be a Cabinet in the true sense of the word. We shall lose the value of his vote at that meeting in deciding a great question which may involve this country in a large sum of money. For that reason, on whichever horn of the dilemna he is impaled, he shows the absolute anomaly of a legal man attempting to fill the position of AttorneyGeneral, and to serve two masters at the one time. He might well take to heart the example of one of the noble men in the legal profession, **Mr. Justice** Higinbotham, who took the only logical position that a man can take, and that is that if he wants to be the AttorneyGeneral of a great country; if he wishes to hold that high position with honour, the only proper course is to forswear any connexion with the legal profession, whether private or public, and thereby leave himself free to discharge the duty he owes to the Commonwealth, as only a legal officer should do. But he says that, in England, they have laid it down as a rule that the Attorney-General must not engage in private practice. He says that they have done something more there. They have raised the salary of AttorneyGeneral from £3,500 to £7,000 a year. By that remark he implied, " If you want me to remain as Attorney-General, and to forswear all my interest in private practice, then raise my remuneration to an amount which will be in conformity with my earnings to-day, and I will humbly accept the position." That is what he meant to convey, for he said, " I could understand a proposition of that kind. I could understand the Parliament being asked to say that the Attorney-General shall not engage in private practice, or in public cases, provided that he is furnished with a sufficient income to enable him to live as though he was following his profession." What does that mean ? It means that with him it is not a question of principle. **Mr. Justice** Higinbotham did not make any stipulation of that kind. He did not put a money value on the position. To the honour of **Mr. Higinbotham** there was no price in gold put on the office. It is only that standard that will free a man who follows the legal profession from suspicion in the public life of this country. If the Attorney-General assesses the position at a pure money value, where is his patriotism? It is not with him a question of principle at all, but a question of principal. If the House is prepared to indorse that principle he could vote for a motion of that kind. I do not wish to take up the time of the House, as I know that honor.orable members are anxious to get away. But I do not understand why this debate should be closed to-night.
{: .speaker-KYD}
##### Mr Poynton:
-- We cannot help that. We want to catch the train.
{: .speaker-KXK}
##### Mr WEBSTER:
-- It is of no use for my honorable friend to tell me that we cannot help it. Such an idea is foreign to this party. I do not understand why the debate should be closed to-night.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Because there is an understanding that it should. You would not have had the debate to-day but for that understanding.
{: .speaker-KXK}
##### Mr WEBSTER:
-- Do not make any mistake about that, old chap. You are not boss of this show yet. Do not make any trouble about that.
{: .speaker-10000}
##### Mr SPEAKER:
-- Order ! Will the honorable member address the Chair ?
{: .speaker-KXO}
##### Mr Page:
-- You do not want to stop here all night, do you ?
{: .speaker-10000}
##### Mr SPEAKER:
-- Order ! I have several times called for order, but immediately afterwards interjections have taken place. That must not happen again.
{: .speaker-KXK}
##### Mr WEBSTER:
-- If I understand rightly, the Government, through the Prime Minister, is trying to bludgeon this business through, to terrorize this side into submission, to shorten the debate on a great and vital issue - as big an issue as has ever been considered in this House - and then he talks about liberty, freedom of speech, and justice. The man who dares to put the curb on by making an arrangement when we are discussing one of the most gigantic propositions ever submitted to the House - a proposition involving the honour, the integrity, and the morale of this Parliament - is simply trying to strangle the high precepts and principles that should underlie a Parliament of this description. The Prime Minister, with' all his boasts of what he believes to be right and just, is not acting fairly to this side of the House to-night. Do I understand that he wants to close the discussion to-night, and is not going to provide cabs to take honorable members home?
{: .speaker-F4S}
##### Mr Joseph Cook:
-- Look at the clock.
{: .speaker-KXK}
##### Mr WEBSTER:
-- Whatever honorable members may feel or think, to my mind the Government is crushing me to-night. I have a lot to say on this question and a lot that ought to be recorded, so that the Attorney-General might, in the days to come, have something which would be hard for him to answer. My honorable friends on the other side are smothering that knowledge which the people are hungering for, and the Prime Minister is the culprit. A man who would dare to curtail debate on a big issue of this kind has no appreciation of his responsibility to the people of his country. I hope that this debate will continue; that when I resume my seat other honorable members will take part in it. In my judgment, this ought to be the last occasion upon which an arrangement to close a discussion upon a question of this character should be made. Our party look to us to keep up the standard of morality of this Parliament, and we ought not to consent to an arrangement being made, at the behest of the Prime Minister, merely to enable the Government to escape their obligation to pay for cabs to convey honorable members to their homes.
{: #subdebate-11-0-s20 .speaker-JX9}
##### Mr FRAZER: Kalgoorlie
.- The Attorney-General has made one concession in stating that he does not intend to take part in any negotiations between the Marconi Company and the Cabinet.
{: .speaker-F4S}
##### Mr Joseph Cook:
-- He never has done so.
{: .speaker-JX9}
##### Mr FRAZER:
-- While the honorable member for Indi was speaking, the AttorneyGeneral intimated to me that he would not take part in any negotiations between the Marconi Company and the Cabinet, with a view to a settlement of the existing dispute.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- I will not make any promise, but it is highly probable that I will not take any part in them.
{: .speaker-JX9}
##### Mr FRAZER:
-- The trouble is that I cannot get a nod recorded in *Hansard.* The Attorney-General stated that I had not read a certain passage from Wharton's *Law Lexicon* as to the Victorian conditions relating to a retainer. They are the same as the British conditions, as will be seen by reference to the *Hansard* proof of my remarks, uncorrected by me, which the Attorney-General is at liberty to read for himself. The other point which he did not touch was as to how he would use his present position in voting upon this question. For his benefit I will read again a couple of passages which I quoted this afternoon -
>As in all cases, when the personal position of a member is brought before the House it is a strict rule that the member concerned is to be heard in his place before the question affecting him is proposed to the House, and that then he must withdraw and allow the subsequent proceedings to take place in his absence .... There are other cases in which members might be expected to abstain from voting, not on grounds of pecuniary interest, but from motives of self-respect or respect to the House. There is no rule applicable to such circumstances, but a substantive motion to disallow a vote on such special grounds might be proposed, if a member did not see for himself the impropriety of voting.
The Attorney-General had an opportunity of replying to me this afternoon, and although he could have spoken for an hour and a half he did not say a single word upon this question. That quotation is taken from *The Procedure of the House of Commons,* by Redlich. May is equally emphatic. He says -
>It is a rule, in both Houses, that when the conduct of a member is under consideration, he is to withdraw during the debate. The practice is to permit him to learn the charge Against him, and, after being heard in his place, for him to withdraw from the House. The precise time at which he should withdraw is determined by the nature of the charge.
{: .speaker-KJE}
##### Mr W H IRVINE: FLINDERS, VICTORIA · ANTI-SOC; LP from 1910; NAT from 1917
-- The honorable member said that it was not a vote of censure on me.
{: .speaker-JX9}
##### Mr FRAZER:
-- I did not. What I said was that I had nothing personal against the Attorney-General. I have quoted the two highest authorities in reference to this matter, and the honorable gentleman can read them for himself. I do not make any special request that he shall not vote. I accept the statement of these two leading authorities, and I will leave the matter to his own taste.
Question - That the motion be agreed to - put. The House divided.
AYES: 31
NOES: 32
Majority ... ... 1
AYES
NOES
Question so resolved in the negative.
House adjourned at 11.44 p.m.
Cite as:Australia, House of Representatives, Debates, 9 September 1913, viewed 22 October 2017, <http://historichansard.net/hofreps/1913/19130909_reps_5_70/>.