Senate
4 July 1901

1^st Parliament · 1^st Session

PETITION
CHAIRMAN OF COMMITTEES
- Casting Vote
QUESTION
- REGISTRATION OF POSTAL ARTICLES
ROTATION OF SENATORS
PROPERTY FOR PUBLIC PURPOSES ACQUISITION BILL
POST AND TELEGRAPH BILL

The President took the chair at 2.30 p.m., and read prayers.

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PETITION

Senator KEATING presented a petition from 5,109 citizens and ratepayers of the State of Tasmania, praying the Senate not to enact clause 54 of the Post and Telegraph Bill in its present form.

Petition received.

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CHAIRMAN OF COMMITTEES

Casting Vote

Senator CLEMONS (Tasmania). Mr. President. - I wish to draw your attention to the Journals of the Senate for to-day, where you will see it is stated that in committee last night -

The number of the ayes and noes being equal, the Chairman gave his casting vote with the ayes.

I submit, sir, that, in accordance with your ruling on that question, the Chairman did not give a casting vote. If this statement is allowed to remain on the Journals, it may create a very bad precedent on the subject which was thoroughly thrashed out and’ decided yesterday. I think you will agree with me that that vote - however it may have been designated by the Chairman - could only have been such a vote as it was within his power to give, namely, a deliberative vote. Therefore, the statement in the Journals that the Chairman gave a casting vote, is not strictly accurate.

The PRESIDENT:

– I think the best way to avoid all difficulty will be to strike out the word “casting.” I will see that it is done.

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QUESTION

REGISTRATION OF POSTAL ARTICLES

Senator HIGGS:
QUEENSLAND

asked the PostmasterGeneral, upon notice -

Will he compare the system of registration of postal articles in vogue in Victoria with that in use in Queensland?
Will he adopt the Victorian practice ?

Senator DRAKE:
Postmaster-General · QUEENSLAND · Protectionist

– Before making any change I shall carefully consider and compare the systems in operation in the several States. .

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ROTATION OF SENATORS

Senator O’CONNOR (New South Wales,

Vice-President of the Executive Council). - I move -

That, in pursuance of section 13 of the Con stitution of the Commonwealth, the senatorschosen for each State shall be divided into two classes, as follows : -

There shall be for each State a roll recording the names of the senators elected for the State.

The name of the senator returned by the highest number of votes shall lie placed first on the roll, and the name of the senator returned by the next greater number of votes shall be placed next, and so on in rotation.

The senators whose names are placed first, second, and third on the roll shall be senators of the second class, and the senators whose names are placed fourth, fifth, and sixth on the roll shall be senators of the first class.

The motion which I now have the honour to move is rendered necessary by section 1 3 of the Constitution Act, which provides for what is called the rotation of senators. The object of the section is to insure that there shall be every six years a renewal of half the senators, so that the Senate shall be brought into direct touch with the people. The section also provides that the Senate shall be a continuous body - that isto say, that there shall be always in the Senate a number of members who have at all events had three years’ experience in the Parliament. Therefore, the periods of retirement are arranged in such a way that although they take place every three years, and half the Senate has to be re-elected in that period, half the Senate is always continuous. . For that reason it is necessary to make a starting point at the beginning of the Parliament; and it is provided that in order to arrive at a starting point half the Senate at the end of the first three years shall retire for re-election and that the remainder shall retire at the end of six years. It becomes requisite under this section to devise a method by which the half of the Senate that is to retire at the end of three years shall be selected. A motion becomes necessary because the Constitution has thrown upon the Senate itself the duty of determining inwhat way the division shall be made. Honorable senators will remember that the section does not provide any statutory method or any method which will endure beyond the occasion which has made it necessary. During the present period, therefore, we shall have to come to a conclusion as to the best method of making the division ; and a new Senate will, be perfectly free to make its own division in any way it thinks fit. I mention that because I think it is necessary in considering what we have to do to look at the immediate circumstances. We need have no concern with possible cases. The mode of division on any future occasion, which may present different circumstances, will be made then by a different Senate. We now have to do with the circumstances that concern us. Those who have taken any interest in the construction of our Constitution may remember that as it was originally drafted before the Convention held in Adelaide the clause provided that the division should be by lot. The provision remained in that position during the Convention in Sydney, but during the Convention in Melbourne was amended by striking out the words “by lot,” thus leaving it to the Senate to determine in what way the division should be made. We have a perfectly free hand in determining by what method the Senate shall be divided into two classes. The Constitution provides that there shall be a division into two classes; that those of the first class shall retire at the end of the third year from the commencement of their term, and that those of the second class shall retire at the end of six. years from the commencement of their term. It seems to me that there are only two possible ways in which the division can be made - either by lot, or by taking the number of votes received by each senator at the elections. In other words, we may either provide that lot shall settle the question, or that the three highest on the poll in each State shall remain members of the Senate for six years, whilst the three lowest shall remain members for three years. I must confess that at first I was very much inclined to take the view that under all the circumstances the method likely to arrive at the best results in the interests of the Commonwealth itself was to make the division by lot. No doubt there are a number of very good arguments for that method of settling the question. One section of the American Constitution provides for the renewal of the Senate. There are three classes of senators. Six years is the whole period for which a senator is elected. The first class retires at the end of two years, the next at the end of four years, and the third at the end of six years. It was left perfectly open to the Senate of the United States to arrive at a division, and the method adopted was to arrange -the rotation by lot. They divided the Senate into three classes, and then a representative from each class drew by lot to determine which senators should be in the first class, which in the second, and which in the third. In several of the State Constitutions in America - I think in ten altogether - there are similar provisions for the rotation of senators. In all these cases the method is directed to be by lot. I do not know of any State Constitution in America where the rotation is to be by any other method. Those precedents certainly satisfy one that there is a great deal to be said in favour of that method of arriving at a division. But on the other hand, the method of taking the senators according to the number of votes they received, is not without example in Australia. I find that, according to the Constitutions of South Australia and Western Australia, where there is a rotation, and members have to retire at the end of a certain time, it is provided that the retirement shall be in accordance with the number of votes polled at the election.

Senator O’CONNOR:
Vice-President of the Executive Council · NEW SOUTH WALES · Protectionist

– - I was not aware of that.

Senator Glassey:

– No matter by what means those votes were procured 1

Senator O’CONNOR:

– The way in which the votes were procured is. a matter into which we cannot go.

Senator Barrett:

– In all those cases it is provided by lot.

Senator O’CONNOR:

– And in all those cases the method of retirement appears on the face of the Constitution itself. It is to be understood that the election of a man carries with it his right to remain for a longer or shorter period, according to his place upon the poll. I merely mention these matters with the view of showing that in whatever way we look at the matter it is not without precedent and example. Really we hav.e to decide, after the best consideration that can be brought to bear, which is the method for the Senate to adopt. After some fluctuation of opinion the Government has thought that the better plan to submit for the indorsement of the Senate would be that which is embodied in this motion. It provides that there shall be prepared a roll of the senators for each State. The names of the senators returned by the greatest number of votes shall be placed first upon the roll. The names of the senators elected by the next greatest number of votes shall be placed second, and so on, by rotation. The senators whose names are placed first, second, and third on the roll shall be senators of the second class; and those vhose names are placed fourth, fifth, and sixth on the roll shall be senators of the first class. That plan insures that the senators lowest on the poll in each State - that is, the senators described in this motion as of the first class - shall retire within three years, and the senators of the second class at the end of six years. It appears to the Government that taking everything into consideration, that method is the fairest and the most obvious way of arranging the division which has to take effect under section 13 of the Constitution. The matter is important in this sense : that it is necessary that the Senate shall come to a conclusion as early as possible, because in the event of any vacancy occurring, the person who is elected will be returned for the remainder of the term of the senator whose seat has been vacated. I can understand a difficult question arising if a vacancy should occur before this question is settled. That makes it important in point of time. But it is also important to individual senators and to the States who have- sent them here that the fairest and best method of arriving at a division shall be come to by the Senate.

Senator STEWART:
Queensland

– I entirely agree with the motion. I think in all the circumstances it provides the proper way of settling the term for which senators shall hold office. It appears to me that those senators who received the highest number of votes for the time, at any rate, enjoy the confidence of the electors in a greater degree than those who polled the lesser number. There is one matter, however, in connexion with this motion about which I am not quite clear. Am I to understand that if a senator of the second class were to die, his successor would hold office for the period of six years 1

Senator Glassey:

– No, he would hold office for the balance of the term.

Senator Drake:

– That is quite right for the second class.

Senator Sir Josiah Symon:

– He must run the gauntlet of an election.

Senator STEWART:

– I read section 15 of the Constitution Act differently -

If the place of a senator becomes vacant before the expiration of his term of office the House of Parliament of the State for which he was chosen shall, sitting and voting together, choose it person to hold the place until the expiration of the term or until the election of a successor, as hereinafter provided, whichever first happens.

When we come to the next paragraph of the section we find it provides that -

At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the dateof his election until the expiration of the term.

Senator McGregor:

– If the honorable senator had go.t all of them he would have been all right. . Senator KEATING - If they had all beon counted the honorable senator might not have got in.

Senator Lt Col NEILD:

– It is quite possible, but in view of the fact that, with 50 candidates, and these extraordinary number of informal votes, only 9,000 votes separated the first from the sixth on the poll, I think it is very hard to say what was the intention of the electors in placing them in that order. A very few of these informal ballot-papers would, if counted, have made a great difference. The motion, therefore, I think, is rather a rough and ready adjustment of the difficulty than an actual proposition that it is a method absolutely just and positively equitable. I give it my support merely as a matter of convenience, and not as a matter of equity, or as clearly indicating the will of the people.

Senator PULSFORD:
New South Wales

– It was not my intention to have spoken on this motion but for the speech delivered ‘ by Senator Lt.-Col. Nield. I desire to vote for the motion, not because I think it is a rough and ready method of determining this question, but because I conceive it to be called for by the equity of the occasion. We, who became candidates, were prepared to run all the risks of the election, and we depended for our positions absolutely upon the votes that were legally countable. I was placed sixth on the list. I am making no excuse, nor do I think it is necessary to do so, for my position on the poll. Of course, I have got my own private feelings. I may conceive that my merits or services to the public entitled me to be placed first on the list-, but I recognise that I stand sixth. I am prepared to accept the votes as given by the people, and to say that the three honorable senators who topped the poll ought, by the very equity of the case, to be booked for a period of six years, and that we, who have achieved a lesser number of votes, should only hold our seats for the shorter period. I feel, hewever, that we have all some cause of quarrel with those honorable senators who were members of the Convention, and created the section in the Constitution Act which has put upon the Senate the disagreeable necessity for picking and choosing. I certainly feel that if we could make any choice at -all in ejecting at an early period a certain number of honorable senators, it would be very becoming to dismiss at the end of the first three years those who were members of the Convention, and who have put upon us the necessity of going into this matter.

Senator O’Connor:

– That would suit the honorable senator all to pieces.

Senator PULSFORD:

– Failing that possibility, I accept as an equitable arrangement the motion-

Senator WALKER:
New South Wales

– I simply rise for the purpose of pointing out that my honorable colleague, Senator Pulsford, has said to-day what he announced when the matter first came .before the Senate, shortly after Parliament met, so that nobody can say that he is recognising . merely the inevitable. As an honorable man, he has recognised from the very start the democratic principle that the men with the most votes are entitled to be given the full term of six years. I merely wish to point out that my good and dear friend, Senator Pulsford, has been guided throughout by the desire that those placed at the head of the poll should receive that to which they are entitled by their position.

Senator McGREGOR:
South Australia

– I have noticed that, with the exception of Senator Walker, who only rose to give a little laudation to his dear friend, Senator

Lt.-Col Neild:

Senator Lt Col Neild:

– No, to Senator Pulsford.

Senator McGREGOR:

– I think- honorable senators will excuse 7ne on this occasion when I affirm that there is an absolute feeling of amity between Senator Lt.-Col. Neild and myself since yesterday evening. I have the right to make mistakes. I meant to refer to Senator Pulsford. I have observed that those who have spoken are .senators who, like myself, were at the end -of” the list. .Certainly they have expressed a very great deal of magnanimity. I have heard no magnanimous expressions from those at the top of the poll. We at the bottom are all magnanimous. We want every one to hare what- is right. If ‘I had- been at the top I should, have shown a . little magnanimity, and-have endeavoured to do justice to those at the bottom. No attempt of that description has been made. No expression of opinion has-been offered, by our honor.able friends at the head of the poll. I only desire to call attention to that fact, although I am entirely in accord with the motion which I hope will be carried unanimously.

Question resolved in the affirmative.

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PROPERTY FOR PUBLIC PURPOSES ACQUISITION BILL

second heading.

Senator O’CONNOR:
president of the Executive Council · New South Wales, ‘Vice · Protectionist

– I move -

That this Bill he now read a second time. - “ It will be generally admitted, I think, that the power which the Government wish to acquire by this Bill is one which is essential to the Commonwealth. It must hold property. It has already vested in . it certain property, and it will, in certain cases, be driven probably to acquire property by some compulsory process. But. in all. these cases the principle must be observed of equality of sacrifice. Although it may be necessary for public purposes to interfere with the private rights of individuals, the law should carefully guard the lights of those individuals, so that they shall suffer no more arid pay no more than the rest of the community for the. general benefit. So this measure gives power to the Commonwealth to acquire possession of lands which maybe necessary for public purposes, and provides machinery by which compensation shall be allotted in such a way as to do justice between the individuals whose property is interfered with, and the Commonwealth for whose benefit it is taken. The power of the Constitution under which this Bill will be justified is contained in section 51, subsection (31), by which the Parliament is given power to legislate regarding -

The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

[12S]

There >are ,several classes of cases ‘to which this Bill. will be applied. “In the first place there- will be the cases -which come within section-85 of the Constitution. All the transferred departments :have property which becomes, on the taking over, of the services, vested -in ‘the Commonwealth; and under section 85 there is a provision that compensation -shall be. made to the. State in accordance with *the law of the’ Commonwealth. There are also, cases in which pro- . peTty has been taken over in part f rem the State. That is to say, where lands’ or property have been used, but not exclusively, for the transferred services. In these cases an . estimate of value is to be arrived . at, and-although the compensation is to be arranged ..according to the law of the State in force at the- time, the payment of compensation is to be. made and the details ascertained under the provisions of this Bill. There also will be a class of cases not involved in section S5. In time to come it will be necessary to acquire the property of .individuals throughout the Commonwealth for public services of different kinds. For ‘this. purpose also the provisions of the Bill will be necessary. There is a third class of acquisition of lands for public purposes which’ I will deal with separately, for .although the provisions of this Bill will be . applicable to it, it will have to be dealt with principally by a special enactment. This is the acquisition of the federal territory which may be necessary for the site of the federal capital. It is impossible to say now whether the territory which will be determined upon for the site of the federal capital will be property entirely granted by the State of New South Wales, as it may be, or. whether it will be necessary to use the compulsory powers of the Constitution in order to acquire some site. But whichever course is followed the Government have determined to make a new departure -with regard to the holding of property in that territory. They have decided to reserve to the people of the Commonwealth for all time the benefit of the increase in value. They will not alienate a single foot of territory ; but it will be dealt with on some principle of leasing, which will preserve to the people the benefit of what has been described as “ the unearned increment,” that is to say, the benefit which arises from ‘the increasing value brought about by the whole people of ‘. the Commonwealth. That will be preserved for all time to the Commonwealth itself. It is quite evident that such a principle cannot be dealt with just in what may be described as a slap-dash method. I was very much struck by some remarks made by Senator Playford a few clays ago about the natural craving, if I may use the expression, there is in almost every human being to acquire the freehold of the land which he occupies. Care will therefore have to be taken in carrying out this principle, that the leases are arranged on such terms and for such periods as will not discourage persons from improving the land and making the federal capital and federal territory in point of value what we all hope it will be.

Senator Millen:

– Does that apply to land to be acquired under this A.ct, or is the honorable and learned gentleman speaking now only of a future Bill which may be introduced ?

Senator O’CONNOR:

– I am pointing out that this Bill may be and can be applied in respect of land acquired for the purpose of federal territory ; but I am pointing out at the same time the considerations which must dominate the disposition of the federal territory will be of so .different a kind from that which applies to ordinary land that it will be necessary to have special legislation to deal with the acquisition and disposition of lands in the federal territory. I make this statement, although it is but incidentally now, because this is a matter of policy which has been determined upon, and which it is just as well that the Senate should be aware of as soon as possible. So that honorable members who may be discussing this question, having in view the federal territory in which the federal capital will be, must always remember that there must be some special legislation to deal with that, and that the application of this Bill to territory such as I have described must be more or less incidental. While on that question I think it will be generally admitted that it will not do in the public interest to apply the principle of leasing land acquired for public purposes, generally throughout the Commonwealth. In Victoria, New South Wales, or an)’ other State, we may acquire a piece of land for Commonwealth purposes, and it is quite evident that we must be prepared to treat that in an ordinary business way. We may require to sell, lease, or dispose of * it in different ways, and the hands of the Commonwealth in regard to any land of that sort must be left absolutely free. Coming to the measure itself, it will be found that it follows very well-worn lines of legislation, going back to the Land Clauses Consolidation Act of England, passed in the 29th year of the reign of her late Majesty. Similar provisions have been in force not only in England but in many of these States for a great many years. For the benefit of those .senators who may perhaps not be familiar with the provisions of those statutes, I propose to state as concisely as possible and in a general way the provisions of the measure. First of all there is the power given to purchase land in the ordinary way. There must be that power, because circumstances may arise in which it will be ‘necessary to acquire land quickly, and in which really the bast and cheapest method of acquiring land in the interests of the Commonwealth will be ‘to purchase it. Next there is the power to acquire laud compulsorily. This Bill will apply to land acquired for public purposes only, but there is a very elastic definition of . “ public purposes.” The definition is “ any purpose in regard to which the Commonwealth may make laws.” So that it embraces the whole scope of legislation of the Commonwealth on every subject in regard to which the Parliament may legislate. Public purposes being defined as I have described, where land is required for any public purpose the Governor-General, that is the Governor in Council, issues a notification of resumption in the Gazette. The particular land required is acquired by that resumption, and is vested, absolutely free of all encumbrances of every kind, in the Cinnibwealth. The next question is how to deal with the compensation. -The person whose land is taken is to be compensated, but in arriving at that compensation care must be taken to safeguard the interests of any persons who may be interested in different ways in the land. There may be mortgagees, a landlord, or tenant; persons may hold other interests, such as the interest*) of infants, the interests of married v. omen, or the interests of committees, in eases of lunacy. All these various interests are considered and provided for, and care is taken that in the distribution of the money compensation paid for the land every one of those persons will get his share in accordance with the interests he has in the land, in other words, the property becomes the property of the Commonwealth, and the rights of the owner of the land, and of every other person interested in it, become claims to be satisfied in accordance .with the provisions of this Bill. There is the process then of settling the compensation, but before I deal with that, I must state on what lines compensation is given. In the first place the value of the land taken is given. That value is to be ascertained as the value of the land on the- 1st of January preceding the date of acquisition, and the value is to be fixed without any regard to any added value which it may have acquired by reason of the work being in contemplation for which it is required. I think the experience of all of us in the working of these Acts in the different States shows that we must fix some period before the actual time at which the notification of resumption takes place. It is difficult to keep things quiet, and it leaks out that land is required for public purposes, and if we take the value of the land at the date of notification of acquisition we shall probably find in many cases that the land has gone up immensely in value, simply by reason of the general knowledge that it was required for a particular purpose. There is no ground of justice on which that added value of the land ought to go into the pockets of the owner. That added value, if any, really belongs to the Commonwealth, and certainly not to the owner of the land. AVe must fix an arbitrary period, and it appears to us that to adopt the 1st of January preceding the date of acquisition is to provide a fair period. It will, of course, be . longer or shorter, according to circumstances ; but, taken generally, it will be a fail- period to fix.

Senator PLAYFORD:
SOUTH AUSTRALIA

– It may be less than a month or a week.

Senator O’CONNOR:

– It may be eleven months. It is very difficult to arrive at any arrangement by which we can do actual justice.

Senator PLAYFORD:

– It would be better to say six months prior to the acquisition of .the land.

Senator MCGREGOR:

– I think a year is a very fair compromise.

Senator O’CONNOR:

Senator Sir JOSIAH SYMON:

– That Act does not specify, as we do in clause 17 of this Bill, the precise elements which are to make up the valuation. In this clause it is said that regard is to be had to the value of the laud taken, and -also -

To the damage, if any, caused by the severing of the land taken from other land of the claimant; or by the exercise of any statutory powers by the Minister otherwise injuriously affecting such other land.

Clauses Consolidation Acts and similar Acts than in any ‘other direction.’

Senator- Dobson. - What does the honor* able and learned senator think of the provision to pay 3 per cent, on debentures when they are not quite at par 1

Senator- Sir JOSIAH- SYMON. - I think it is very good for the Commonwealth. I see that 3 per cent, interest is to be paid from the date of- the notification of acquisition. It is a. low rate of interest, but that can be dealt with in committee.

Senator Sir WILLIAM’ ZEAL:
Victoria

– I think the Government is to be complimented generally upon the Bill, because it contains many very valuable provisions which will be for the benefit of the public. There are some- points,- however, to which we shall have to direct our attention in committee. For instance, Senator Sir Josiah Symon referred to the question of arbitration. Although he has declaimed against that system, I would remind him that in Victoria, under the Lands Compensation Statute, the Crown has the right - which it exercises in every instance’ - to appoint two arbitrators, as against one appointed by the other side.

Senator MCGREGOR:

– Wo will make a similar provision in this Bill.

Senator Sir WILLIAM ZEAL:

– I think that arbitration under such circumstances-is not the one-sided tribunal which some honorable senators would have us believe. In Victoria we have ‘gone to extremes inregard to the acquisition, of land by the State. A case recently occurred- in which land was required for the purposes of a line from Lilydale to Warburton. The owners were actually despoiled of their property, and the assessors declared that the benefitconferred on them by the -building of the line was sufficient compensation for the taking of their- land.

Senator MCGREGOR:

– Hear, hear !

Senator- Sir WILLIAM; ZEAL.- I am sorry to hear my honorable friend expressing approval of such a system.- That” principle might be applied to the poor man as well as to the rich. If the -Crown acquires land forits especial benefit-

Senator McGREGOR:

– It is affording a benefit to the people.

Senator- Sir WILLIAM: ZEAL.- If- the honorable senator had one ewe lamb, he would not’ think it particularly benefited him for a person to come along and take it without’ giving him compensation.

Senator McGREGOR:

– David did not consider, that:

Senator- Sir WILLIAM- ZEAL. - We are living under very different circumstances, to those in which our friend, David, lived. This question .involves very great’ issues,- and one -of thefirst is the principle -of betterment. For instance, I have an allotment of land through which it’ is proposed to run a railway. The Crown acquire my property for- the -purpose, and cut it in two ; my immediate neighbour obtains a far greater benefit from the railway than I do, and surely he should be asked to contribute something.

Senator McGREGOR:

– Put a land tax on him !

Senator Sir WILLIAM ZEAL:

– My honorable friend is getting off the track. In my opinion the question of betterment must be taken into consideration. I think we are all faying to do the best we can to help the Government to obtain property for the benefit of the State : but there are many points that should have our serious consideration, and we should not jump at conclusions too hastily. Allusion was made by Senator Sir Josiah Symon to the acquisition of land for railway purposes. No doubt in such cases some drastic system should be adopted, but the claims of the owners should receive some consideration. A man ought not to be deprived of his property for the benefit of his neighbour without receiving fair and reasonable compensation. I would point out to Senator McGregor that arbitration is not the one-sided tribunal that he appears to think it is, except that- the Crown has– double representation. When the Grown has two voices instead of :one, it is absolutely protected against extortion. Senator Dobson touched on the question -of. payment- for the land.-. I think it is a very hard provision that1 the Crown: should takeabsolute possession’ of a- man’s land, and pay him by debentures only bearing interest’ at 3 per cent. !

Senator Sir FREDERICK SARGOOD:

– That provision does not relate to private vendors but only to the-State.

Senator Sir WILLIAM ZEAL:

– I am glad- to hear- ‘that, because it would be a manifestly unjust way of acquiring, property from private individuals for the benefit of: the State. The Senate must” see that- no man with a small property could afford to allow his money to stand out;- at that small rate of interest. If he- received his money within a reasonable- time, he would be able to put’ it to good use.- ‘Victoria, like South Australia and New South Wales, has gone through various vicissitudes of circumstances in connexion with the acquisition of property,- until at last’ we have got from one extreme to the other. The Government’ are now able to acquire land on terms positively disadvantageous to the propertyowner. I do not think we should run to these extremes, because there is a proper way of dealing, not only between the Government and the private owner, but’ between the Government and the community generally. If a man is dispossessed of his property, and his neighbour benefits by the action of the Government in acquiring that property, surely the neighbour should be called upon to contribute his quota towards making good the loss which the man has sustained. I do not think it’ is necessary at this- stage to review the various phases of the Bill. That’ is a work which can be better undertaken in committee. But I would point out that the system of1 betterment should receive fair and honest consideration. “Unless that’ is done the owner of the land taken over will be put under a disability entirely for the benefit of his neighbour.

Senator Major GOULD:
New South Wales

– I am quite sure there will be no question as to the desirability of passing., a Bill of this character, and that criticism. will be rather in regard to matters of detail than matters of principle relating to the measure. There are one or Wo matters in which this Bill differs from ordinary Bills passed to enable the Government to acquire lands for public purposes, and’. I would direct the attention of the Senate to them. I.h the first place, it is recognised that the Government should have some authority from Parliament-to go . upon before land is resumed. It is generally provided that a .vote shall be passed by Parliament to enable the acquisition of laud for a particular purpose, and when that authority has been given , the Government may step in and secure the land. Unless the Government have a- vote out of, which they can pay compensation, I do not think’ it is usual for the Government to resume property. If - we do not have some safeguard of that kind’ to protect- the public, the whole matter will be in the- hands of. the Government” to do as they think fit, without consulting Parliament:; and, although

Parliament might condemn the resumptions afterwards, they .would have committed the Legislature, and it” would become necessary to complete the purchase. It would be well, in’ committee, to make some provision to meet cases of the character’ I have mentioned, and to provide that theGovernment’ should be authorized in the first instance by a vote of Parliament to acquire land for some specific purpose. Passing on to the question of compensation, which has been alluded to by Senator Sir Josiah Symon, there is no power apparently’ under clause 17 to enable the Judge toaward more than the bare values of land on a particular date. It is unquestionably the feeling of the Senate, and I believe of the other House, that there should be some small percentage over the value -of- the land given to the owners in consequence of its compul’sory resumption. “ Clause 17 only deals with compensation for.certain lands that maybe required and not in relation to all lands that may be resumed. It appears that the Government have power- to resume lands for public purposes generally, and under clause 17 the proviso is that - .-

– I agree with this Bill, altogether. It is a most excellent Bill both in principle and detail. It fixes an absolutely fair basis - as fair as we can with our- limited knowledge fix oh*- on which - the value of’ land taken shall be assessed,’ and it fixes the tribunal for the purpose -of- its assessment’. We have had ‘a great many years1 experience since the Lands Clauses Consolidation Act and the Railway Clauses -Consolidation Act came into force. We have known - all about appeals to arbitration with an umpire. We have known all about J udges with assessors. We have known all about Judges and juries sitting in this matter: We have known that in arbitration . there is a partisan on each side with an umpire who may give way more or less according to the persuasive powers of- his colleagues. A” jury are selected because they do not know anything about the case and therefore they are-more impartial. But on a question which requires some sort of’ appreciation of- evidence, I’ think the Judge would be able to decide- more excellently without the assistance of that somewhat un-. certain tribunal. Should the J udge sit with assessors? I think he is better- without them. He will have the parties1 before him, and they will bring their assessors in their proper character as witnesses, and not asportions of the. bench. If the assessors come in they will practically be in the> -position of arbitrators, and . one will . go one way, and one the other,’ and will; be prejudiced more or less: I do not say that that: will materially affect, a- Judge if. the decision is left with- him. I .prefer the assessors in the witness-box- and-. the Judge on the bench.. He is accustomed in his wide experience not merely to measure men, but to estimate the value of- the evidence of assessors: I think the Bill hag been drawn with great care, will .work exceedingly well, and will prevent the Commonwealth in the acquisition :of properties, which it is necessary it should acquire for its own wellbeing, from being. victimized by -the eccentricities of judicial administration.

Senator O’CONNOR (New South WalesVicepresident of’ the Executive Council). - In reply; I have been very much obliged to ‘ several honorable senators for the points of view winch they have submitted for my consideration, but I think- when they look into the measure with a- caref ful scrutiny, which I have been .obliged to give it, they will find that most of their -objections will disappear. There is one disability under which we all labour, without, perhaps; recognising, it. That is to say in each State we have been accustomed to have these particular matters dealt with in a certain way, and we probably all think that that is the best way. Until we have the matter con,sidered, and - put before us from different points of view, perhaps that is only natural. I think that before this Bill gets out of committee, honorable senators will be satisfied with regard to any of those matters of procedure which are new, that, they have a great deal to recommend them, and that wherever there is any innovation introduced in this measure, it will find in reason and circumstances most ample justification. I do not wish to say anything in detail about the matter, except on two points. In the first place, as to the power to add the 10 per ‘cent. It has been decided; not only in England,- but under a- similar statute in New South Wales, by the Supreme Court there, that this 10 per cent, is not a rule of* law at all; it has been the ordinary practice of ‘ Judges- to direct juries that it will.be safe to add 10 per cent, for the “ forced sale,” as it is called; because compensation in matters of this kind should -not be weighed in golden scales; but’ should be - given liberally. It is- usual to. add 10 per cent: for -forced sale in-order to make up anything which may have been1 omitted in the- estimate of value. .That rule ‘will -still continue, and there will ‘ be nothing to prevent a Judge. adding the 10 per cent, or any amount lie may consider . fit, in order to make ‘.up for anything that may not have been considered in the estimate of value. After all, there is no possibility of .arriving at a mathematical rule of assessing damages. We cannot; lay it down in a statute or arrive at it in practice. -It must always be more or less of an estimate, and’ I think it is a .good principle that the estimate should not be on an: illiberal- scale. I see great difficulty in providing that there shall be 10 per cent, added, because there . may be cases in which the forced sale has brought about no damage whatever. It may be that a man has had ample . notice and abundant opportunity of selling, at a. reasonable figure, -.and he may have refused it. .Under such circumstances, why should anything be given for a .forced sale? Under other circumstances it may be perfectly reasonable that something additional should be given, and I think it will be best to leave it in the hands of the authorities, who will have no interest to serve but that of . justice between the Commonwealth and the individual.

Senator Harney:

– If yOU’ pUt it into the Bill there will always be a margin added to the 10 per cent.

Senator- O’CONNOR.- There is sure to be. I do not think there is anything else I need refer to now. I hope when the Bill gets into committee to have the assistance’ of honorable senators. I have given very careful consideration to the Bill, which -seems to me to be very-well drawn, and I do not see any fault to find with.it. If I am convinced by any honorable senator that it can be improved I shall’ always be ready to receive any suggestion.

Question resolved in the affirmative.

Bill read a second time.

In Committee.

Clause 1 agreed to.

Progress reported.

page 2029

POST AND TELEGRAPH BILL

In committee (consideration resumed from 3rd July, vide page 1954) : Clause 93 -

No letter shall be sent or carried for hire or reward otherwise than by post. Any person who for hire or reward - (a) sends or conveys or causes to be sent or conveyed any letter otherwise than by post; or (/<) takes charge of a letter for such conveyance shall be liable for every offence to a penalty of not ‘ less than.’£o nor more than £ 50. . (2) Every letter sent or conveyed, - or caused to be-sent or conveyed, or taken charge of to be conveyed otherwise than by post shall be deemed to have been sent or conveyed, or caused to be sent or conveyed, or taken charge of for hire or reward unless; the contrary is shown by the defendant. (3) Nothing herein contained -shall- extend to any letter -

Exceeding sixteen ounces in weight; (/<) Exclusively concerning goods sent and to “be ‘delivered therewith ;

-Sent’ by any person concerning his private affairs by .any special messenger ; or

Bond fide sent or carried to or from the nearest post-office.

Senator CLEMONS (Tasmania).- This ClaUSe, as it stands, absolutely forbids any person sending any. letter- or message by any other person for hire or reward. On the second reading I pointed out that it seemed undesirable that the post-office should interfere with the arrangements made by a private person so as to forbid him even to pay a rate largely in excess of the postal rate if. he wished to have something sent by a private messenger in an emergency. ‘

Sent by any person concerning his private affairs by any special messenger.

I submit, however, that the limitation to his “ private affairs “ is unnecessary, or, at any rate, that it is not desirable, to limit a person employing a messenger in an emergency to the sending of letters solely of a private nature. I point out also that it would not be easy to ascertain whether a message dealing only with a man’s private affairs was being delivered in a closed envelope by a private messenger. I ask the Postmaster-General, if he is not-desirous of an absolutely exclusive monopoly, to alter paragraph (c) by omitting the words “ concerning his private affairs.” -

Senator DRAKE:
PostmasterGeneral · Queensland · Protectionist

– There has never been the slightest difficulty so fur as I am aware, in connexion with the working of this clause. The intention is very clear, and it is always carried out. That is to say, no one must make a business of carrying letters, because once the monopoly of the post-office is broken in upon by persons carrying private letters in competition with the post-office, the whole thing crumbles away and we cannot perform the services we hope to be able to perform for the Commonwealth. The exceptions are put in here in order that the postal authorities may raise no objection in cases were a man is bond fide for some purpose or other, sending his own message on his own business, but it must not be done in such a way as to interfere with the postal monopoly.

Senator CLEMONS:

– I remind the honorable and learned senator that he started off by saying that the post-office makes no exceptions, and in the Bill of which he has charge, he immediately proceeds to make exceptions. My objection is that the exception is not taken widely enough, and that the limitation “ concerning his private affairs “ in paragraph (c) is too narrow. I submit that there would be no attempt made to take advantage of the Post-office, and as the paragraph stands the. PostmasterGeneral will be very seriously interfering in a way which, I take it, he would not himself recommend, with the liberties of individuals who might, in emergency, want to send something by private messenger that did not necessarily concern their own private affairs.

Senator DRAKE:

– It must be seen very clearly that if we alter the paragraph in the way suggested, we shall be opening the door to any amount of competition with the postoffice. Because then the clause will provide that any person- -and that is wide enough - may send anything by a special messenger. Under such a provision, any person could send a mail without any restriction whatever. He could employ “ Thomas ‘ Jones “ as a special messenger, and send him down Bourke-street delivering letters to any extent for hire and reward.

Senator Clemons:

– It might be that such a thing would be desirable.

Senator Sir FREDERICK SARGOOD:
Victoria

– I hardly think Senator Clemons can see the full force of the amendment he suggests. There is no question that the Postmaster-General is absolutely correct in the stand he has taken. If the amendment were made we would instantly have companies started for the delivery of all letters, and instead of a fee of twopence, we would get private parties to deliver letters for a halfpenny.

Senator Clemons:

– Not if such a private company competes at much higher rates than the post-office.

Senator Sir FREDERICK SARGOOD:

– We could not prove that. 1 think the honorable senator is clearly wrong in his proposal. As a mercantile man I may say it would pay splendidly to employ the services of such a private company if the post-office would allow it.

Senator HARNEY:
Western Australia

– It is quite clear that if the committee strike out the words “ concerning his private affairs “ the clause will open the door to the starting of a regular business in opposition to the post-office. But at the same time there would at first sight appear to be something in the contention of Senator Clemons, as to who is to judge what are a person’s private affairs. But the answer has immediately suggested itself to me that this is a provision dealing with the imposition of a penalty, and when a person is sued for the penalty on account of a letter alleged to have been sent contrary to the Act, his answer would be to produce the letter itself. Therefore there is no difficulty about the point. I had a curious experience in Western Australia, from the Act of which State this clause is taken. A man named Kenny, a Member of Parliament, was visiting the Murchison gold-fields where a wealthy speculator named Darlington Simpson had some interests. Simpson found it necessary to send a telegram to Nannine. The message involved a considerable sum of money to Simpson, and he said to Kenny, “If you will take the letter I will give you shares to the value of £1,000 or £500 ‘in cash.” Kenny brought the letter and then claimed the £500 from Simpson. Simpson said he would not pay. The matter came to law, and I had a brief for Darlington Simpson. The point we raised - it was not found to be effective - was that under this section it was an illegal act for Kenny to carry the letter, and that no cause of action could arise. The jury, however, were of the opposite way of thinking. But there was a case that I certainly think was hard. Simpson was in a place where there was no telegraph station at hand, and he was debarred from sending a letter under the law of Western Australia. It was not a letter on private affairs, or concerning his business interests merely.

Senator Glassey:

– It was on profitable affairs.

Senator HARNEY:

– The letter really asked a public body in Nannine to pass a resolution in reference to the notation of the company which was to be transmitted to London. It was held, however, that it was not a letter concerning Simpson’s private affairs. That was a case of hardship such as would arise very rarely. Looking at the matter fairly, I think it is necessary that there should be such a clause in the Bill. The mere fact of a letter being closed does not create any difficulty ; because if a person is found carrying a letter he can be summoned, and will have a complete answer by producing the letter in court, when the justice of the peace will be able to see whether the letter is substantially on the sender’s private affairs or not.

Senator WALKER:
New South Wales

– If a person puts a postage stamp upon a letter and entrusts it for delivery to another person, would the putting on of the stamp get over the difficulty 1 I have a distinct recollection that in Scotland when I was a boy I used to have to go several miles by coach *to school in Edinburgh. Sometimes my father gave me a letter for delivery to the coach driver. My father used to put stamps on the letter, but’ he usually gave the coach-driver 6d. in addition, and used to say that so long as you put the necessary postage stamps upon the letter you could legally ask a person to deliver it. I suppose that if that were done it would still be perfectly right.

Senator DRAKE:

– 1 do not think such a case as Senator Walker mentions is provided for, but there would be no question raised if postage stamps were put upon the letter. The sole object of the provision is that letters are not to be carried at a profit by private individuals.

Senator Sir FREDERICK SARGOOD (‘Victoria). - It appears to me that the statement just made by the Postmaster-General is the key to the position. The object is to prevent the revenue being defrauded. If we say that no unstamped letter shall be sent we meet the whole case. If the letter be stamped the, post-office gets the revenue.

Senator Drake:

– But the stamp might be insufficient.

Senator Sir FREDERICK SARGOOD:

– Then we might say that the person shall put “sufficient” stamps on.

Senator Millen:

– If the stamps were not obliterated they could be used over and over again.

Senator HIGGS:
Queensland

– I wish to suggest that if we are to proceed at our present rate we shall get through this Bill some time next year. I suggest to the committee that the matter under discussion is not of grave importance, and that there is no need for senators to follow each other hi the debate and repeat arguments that others have used.

Senator HARNEY (Western Australia). - I suggest to the Postmaster-General that it would not be wise -to alter the clause so as to make is refer to letters that are stamped ; because that would open the door to doing away with control by the Postal department. Take the case of Tattersall’s sweeps or of the sending of offensive or libellous matter. Any person wishing to circulate such .communications could do so by putting stamps on the letters, and then delivering them by hand.

Senator Drake:

– And the stamps could be used over and over again.

Senator McGREGOR:
South Australia

– I agree with what Senator Higgs has said, that there is no need for a long discussion on this clause.

Senator Sir Frederick Sargood:

– The committee yesterday spent eight hours in discussing amendments on two clauses. Most of the amendments came from the corner in which Senator McGregor sits.

Senator McGREGOR:

– As to the suggestion, of Senator Sir Frederick Sargood in regard to letters stamped or unstamped, I would ask : What is the difference so far as the post-office is concerned ? Who is to cancel the stamps ?

Senator Sir Frederick Sargood:

– I see that that would not do.

Senator McGREGOR:

– The PostmasterGeneral wants to protect himself against people who desire to defraud the department. Senator Walker has said that his father used to give a man 6d. to carry a letter in addition to putting stamps on it. If that be so, Senator Walker’s father could not have been Scotch ! It is a libel on my country !

Senator STEWART:
Queensland

– It appears to me that this clause is worthy of discussion. So far as I am aware it is an innovation. Evidently it is taken from the Western Australian Act.

Senator Drake:

– It is in every Postal Act.

Senator StewartDoes not the PostmasterGeneral know. that in Great Britain a business man may have his business. circulars delivered by hand 1

Senator DRAKE:

-That is provided.for-in this Bill. A man. can send his own business circulars by special messenger, but he- must not make a profit out of it. The exceptions will be found on- page. 27 of the.- Bill. ‘There, is a -similar provision in every ‘Postal. Act.

Senator Harney:

– This provision is copied from the “Western Australian Act, so it is all right.

Senator STEWART:

– -That is a reason for being suspicious of it. . Any community that has tolerated “Sir John Forrest for ten years is not .one of which I have a high opinion.

Clause agreed to.

Clause 94 agreed to.

Clause 95 -

Unlawful possession of moulds for making postage stamp or postal note paper.

Senator Sir FREDERICK SARGOOD:
Victoria

– I must call attention to what I think is an omission . from this ‘Bill, and that is a right of appeal. While ‘there are pages of penalties, some of them pretty heavy - for instance, we have one provision that a man may be imprisoned for two years - no right of appeal is provided for anywhere.

Senator -Drake. - That will be provided for generally in some judicial Bill.

Senator Playford:

– A man can appeal against all these penalties, I think.

Senator Sir JOSIAH SYMON:
South Australia

– This point was called attention to by Senator Sir Frederick Sargood some time ago. It was then pointed out that clause 146 deals with summary conviction for offences against this measure. Of course this is a clause under which proceedings will have to be taken, and there can be no proceedings before a court of summary jurisdiction until we have arrangements made for summary procedure. A Bill for that purpose would provide for appeals as well as for the original conviction.

Senator Sir FREDERICK SARGOOD (Victoria). - ‘Suppose the Bill making the arrangements referred to is not passed for. months, what is to be the position of the poor unfortunate man who is, say, sentenced to be imprisoned for two years ? He cannot appeal. I do : not know what the practice is in the other States, but in Victoria I think I may safely say that every

Act for imposing penalties provides for an appeal.

Senator DRAKE:
Protectionist

– If there is-.any method for trying the offender there -will also be provision for an appeal.

Senator Sir JOSIAH SYMON (South Australia). - ^Provision could not be made for appeal until- there was procedure for summary conviction. The Bill is defective in ‘that respect; but it is - better - to have a separate Act - prescribing the mode of summary* procedure before a magistrate.

Senator- Sir ‘Frederick Sargood. - Then you could not sentence a man- to two years’ imprisonment under this Bill?

Senator Sir JOSIAH SYMON:

– No; the Bill only creates offences and provides penalties.

Senator Sir Frederick Sargood:

– That is an answer to my objection.

Clause agreed to. Clauses’ 96 to 102 agreed to. Clause 103-

Any postmaster or other officer or servant employed in the department, or any master of. a vessel or other person employed or authorized by or under any postmaster to -receive, sort, carry or ‘deliver .any mail or any postal article sent by post or otherwise who shall offend against or wilfully neglect or omit to comply with any of the, arrangements or regulations to be made as in this Act mentioned or with any of the provisions of this Act (for breach or neglect of which, no other punishment is hereby provided) shall be liable to a penalty not exceeding One hundred pounds or imprisonment for ‘any term not exceeding two years.

Senator MILLEN:
New South Wales

– I would direct the attention of the committee to a very drastic provision in this clause. It provides that any servant of the department, or any master of a vessel, or other person employed or authorized by or under any postmaster to receive,’ sort, carry, or deliver any mail or any postal article sent by post or otherwise, who is . guilty of any neglect of duty, shall be liable to a fine of £100, or imprisonment for any term not exceeding two years. I think that is a very excessive penalty. Why should an officer of the Postal department be liable to a more serious punishment for neglect of duty than an officer in any other department is ]

Senator Glassey:

– The provision is taken from the New South Wales Act.

Senator MILLEN:

– I am not going to guarantee everything that conies from New South Wales; I have been trying to fight for a long time against certain established institutions there. I think the penalty provided in this case should be reduced.

Senator DRAKE:

– The fine of £100 is the maximum penalty. It is necessary to protect the public in connexion with the postal business, and it is easy to imagine very serious breaches of duty on the part of a postmaster. Supposing such an officer wilfully neglected to send a mail forward, that would involve enormous inconvenience. In such a case we could not let a man off with merely a nominal fine.

Senator Millen:

– Does not a public officer in any department inconvenience the public by neglect of duty?

Senator DRAKE:

Senator MILLEN (New South Wales).I think the penalty of £100 should be reduced to £25. I move -

That the words “ One hundred,” line 12, be omitted.

– It does not say on conviction.

Senator DRAKE:

– Clause 146 provides that after the trial.

Senator- Harney. - Surely the Minister can fine a person who stops the mails, and not make it a general thing?

Senator DRAKE:

– I think we should not discuss that Bill and shape this Bill with reference to that one. For the proper management of the post-office and for the protection of the public it is necessary that some provision of this kind should be made, and seeing that we do not know whether it will be provided anywhere else, I think it should be done here. We know perfectly well that no possible Bill of that nature can deal with the matter that is dealt with in this clause.

Senator FRASER:
VICTORIA · PROT; ANTI-SOC from 1906

Senator Lt Col NEILD:
New South Wales

– It has been stated here that it is possible in New South Wales for a magistrate to sentence an accused person to two years’ gaol. Such a provision does not exist in New South Wales. Six months is the maximum. I have never heard of such a proposition as this - that a man should be sent to gaol for two years by an illinformed magistrate for an indefinite offence which does not exist at present. We are asked to manufacture a penalty for a crime that some one else is subsequently to manufacture. I rise simply to say that I cannot allow it to go forward that the law in New South Wales permits magistrates to sentence people to two years’ gaol. Even if it were the law in New South Wales, it is not the law elsewhere, and we are now making laws not to be administered according to the whims of any one State, but according to the laws of the whole of the States. In other words, we are asked by this proposition to extend the jurisdiction and powers of magistrates in the different States,, and that we have not the power to do. The Commonwealth does not appoint those magistrates. They are appointed by the Governments of the different States, and we cannot by passing this Bill . extend their jurisdiction and power from a sentence of six months to a sentence of 24 months. I suggest that the clause should be postponed, for the present at least, and re-drafted in the light of the legal information which has been supplied, and which evidently was not before the heads of the different postal branches who have compiled this measure.

Senator ERASER (Victoria). - I point out that it is possible that a man may steal £50 worth of stamps. I have no objection to reduce the period of imprisonment, but it appears to me that that would be rather a serious offence.

Senator Harney:

– He might get ‘ ten years for that under the criminal law.

Senator FRASER:

– To provide that a magistrate could only inflict a much lower fine than the offence deserves would be ridiculous. It must not be forgotten that £100 is the maximum penalty provided by the clause.

Senator PULSFORD:
New South Wales

– I only rise to point out that the next clause, 104, deals with the case of the detention of mails, which is referred to specifically as an offence in clause 103.

Senator MILLEN (New South Wales).I point out that the very thing which it is proposed to deal with under clause 103 by a fine of £100 is dealt with under clause 104 by a fine of £25, and without any provision for an alternative of imprisonment. . A person who detains the mails, to the public inconvenience, may be dealt with under clause 104 by a fine of £25. I ask the Postmaster-General, therefore, to accept my amendment, and make the fine under this clause for that offence £25.

Senator DRAKE:

– That only applies to persons employed by the department, while clause 103 refers to a great number of others. I merely gave that illustration as one instance, without reference to other cases, of wilful neglect of duty. I would like to put myself right with regard to the section in the New South Wales Act from which clause 103 is taken. I may say that the maximum penalty there is £100, and the only difference is that there is no provision for imprisonment. This is the section appearing in the New South Wales Act -

Any postmaster or other officer or servant employed in the department or any master of a vessel or other person employed or authorized by or under any postmaster to receive sort carry or deliver any mail or any postal article sent by post or otherwise who shall offend against or wilfully neglect or omit to comply with any of the arrangements or regulations to be made as in this Act hereinbefore mentioned or with any of the provisions of this Act (for breach or neglect of which no other punishment is hereby provided) shall be liable on conviction to a penalty not exceeding £100.

Senator Millen:

– “ On conviction.”

Senator DRAKE:

– Well, a man would only be punished after conviction, I should think.

Senator KEATING:
Tasmania

– I have listened with a great deal of interest to the emphatic protest of our friends from New South Wales against the provision in this clause for a maximum penalty of £100.

Senator Lt Col Neild:

– The two years is what I objected to.

Senator KEATING:

– I have listened to the emphatic protest made by those gentlemen to the maximum penalty of £100, and also to their protest against the inclusion of the maximum alternative of two years’ imprisonment. Before the Postmaster-General quoted the section from the New South Wales Act, I had myself read it in that Act, which has been in operation in New South Wales for 34 years. I find that the terms of that section are practically the same as those embodied in the clause under discussion, except that there is no provision for the alternative penalty of imprisonment.

Senator Neild:

– That is what we objected to.

Senator KEATING:

– My- friends are shifting their ground as rapidly as they can, now that they find that, if they are to be logical in their protest, they should be able to show some disposition on their part during the time they had some political sway in the mother State to amend the law of that State in that direction. I find, however, that it has remained in the same state for the last 34 years.

Senator Millen:

– Are there no laws in Tasmania with which the honorable senator does not agree 1

Senator KEATING:

– There are; but if I had had a political position in Tasmania I do not think I would have come here to register a strong protest against any particular statutory provision which had remained unaltered during the time I .occupied such a political position. If the Postmaster-General had chosen to read further, he might have read section 65 of the New South Wales Postal Act, and senators would have found it practically the same as clause 104, so that the mare’s nest discovered by my honorable friend, Senator Millen, is one which he was evidently acquainted with during his political career in another place. I support the clause before the committee as it stands.

Senator MILLEN (New South Wales).I think Senator Keating has supplied a strong additional argument against the retention of this clause. He invites us to go back for 34 years, over a generation, to shape our laws by the provisions adopted at that time. If there is one tendency which law-making has developed of late years it is to make punishments less severe. If we are to go back 34 years for an example, why not go back 100- years, when shop-lifting was a capital offence 1 I can quite understand such suggestions coming from a Toryism willing to take examples from the musty past, but we want something more in keeping with the liberal tendencies of the day. If the argument used by Senator Keating is an argument at all, it is one distinctly against the retention of the clause.

Senator McGREGOR:
South Australia

– I object to this kind of chastisement upon every one who calls the attention of honorable senators to their want of knowledge. Clause 103 has been taken from the New South Wales Postal Act, and that was denied by representatives of New South Wales. If they did not absolutely deny it, they seriously questioned and discredited the statement. In a progressive age like the twentieth century, a great many contingencies may arise out of the improvements and progress which may be made within the next five years.

Though this law may have had 34 years of existence in New South Wales, I have never heard of any very serious results arising from it. That, I think, is only an argument why we should’ still continue its operation. If, during an existence of 34 years, honorable senators from New South Wales have not had occasion to find fault with it, it has proved that it has been a very good child, and if they have never got into trouble under it, that is creditable to themselves. Seeing what has ‘been explained by the Postmaster-General, and the contingencies which may arise in the future, the best thing we can do is to adopt the clause as it stands.

Senator CHARLESTON:
South Australia

– If asked to vote, I shall record my vote against the clause, which is altogether too sweeping. Any servant employed may come under the penalty if he fails “ to comply with any of the arrangements “ to be made under the Bill. What are the “ arrangements ‘ ? That term may cover a very slight offence against the regulations made under this Bill. I think the Postmaster-General, in copying this from the New South Wales Act, did not take into consideration the sweeping character of the “clause. I shall have no hesitation in voting against it, so that the PostmasterGeneral may have an opportunity to draft another clause which will be less drastic. I think clause 104 will meet all that is required by the Postmaster-General from the clause at present under discussion.

Senator Sir JOHN DOWNER:
South Australia

– The whole tendency of our laws between master and servant is to give them a more contractual relation, and to release servants from the responsibilities arising out of the old principle of servitude they were liable to. In this matter, it is absolutely astonishing to me to hear honorable senators, who. are particularly the advocates of servants, try to .make one rule for the State and another for private service. I- would say this to my friend, Senator McGregor, whom I immensely esteem ; supposing I came down here and submitted a solemn contract I wished to enter into with persons who were to serve me, and I proposed that they should be liable under certain circumstances to apenalty of £100 or two years’ imprisonmentwhat a howl we should have.

Senator McGregor:

– That is a different thing altogether.

Senator Sir JOHN DOWNER:

– Of course it is. One would be a contract with a private individual and the other with the Government. I like to see duty performed equally well all round. In all our statutes we endeavour to define offences where they are definable, and when legislating criminal^ in respect of them we avoid as much as possible legislation by reference, except in subsidiary matters, and then to a very small extent. We follow that practice in our various Acts regulating public bodies. There have to be a number of incidental services performed by these public bodies in the course of their duties, and it is necessary that penalties should be imposed with respect to their infringement. . But the penalties are always small, both in respect to. money fines and terms of imprisonment. Here, however, we have added a crime Ave .know not of, arising out of circumstances which some one else is to define. Regulations are to be made by the Postmaster-General to define something the infringement of which will make liable the person who has neglected his duty in these particulars. It is not an act of commission, but of omission, for which the person is to be liable for a fine of £100 or two years’ imprisonment. This is not a part)7 question. It concerns every one of us, and we ought to be able to talk fairly and frankly about it without its being considered that the position of the Government is affected by the criticism. What is this £100 penalty wanted for? What is the offence 1 It is something to be defined hereafter.

Senator Fraser:

– The offence might be committed four or five times over, and should we not provide for an increase of the penalty for each offence 1

Senator Sir JOHN DOWNER:

– The Bill does not provide for that. But when we come to the next clause we find that a much more distinct offence is punishable by a quarter of the penalty. I object to such heavy penalties for the punishment of offences which are to arise under regulations that are to be made in the future. The vote I shall give will be in favour of reducing the £100 penalty, and striking out the provision with regard to the two years’ imprisonment altogether.

Senator Lt.-Col. NEILD (New South Wales). - I rise simply to answer the remark which has been made by Senator Keating, to the effect that this clause is a transcript of the New South Wales law. Senator Keating himself read the s’ection of the New South Wales Act, and by so doing showed that it was not identical with this clause. The penalty of imprisonment is not in the New South Wales Act.

Senator Keating:

– I distinctly said so.

Senator Lt Col NEILD:

– It is time we paid less attention than we otherwise should have been disposed to do to marginal notes, which are inserted in Bills no doubt with a bond fide object, but with the effect of misleading. I did not remember any penalty of this kind being in the New South Wales Act. How could any man remember all the penalties in all the Acts of New South Wales? But I said, and still say, that a New South Wales magistrate cannot sentence any man to two years’ imprisonment. The maximum term of imprisonment which a New South Wales magistrate can impose is six months. I entirely agree with the reduction of the penalty imposed by this clause. If a £25 penalty is sufficient under clause 104, and a £10 penalty is sufficient for the kind of legal circus we find in clause 105, we do not want a £100 penalty under clause 103. I shall vote to reduce the penalty, and shall certainly support the omission of the two years’ imprisonment.

Senator Sir JOSIAH SYMON (South Australia). - I would suggest to the PostmasterGeneral the advisability of adopting the suggestion of Senator Playford, and postponing this clause, with a view to its being re-drafted. Otherwise it is likely that not only will the amount of the penalty be reduced, but the provision as to imprisonment will be eliminated by the committee. The early part of this clause is exceedingly vague. It says -

Omit to comply with any of the arrangements or regulations to be made as in this Act mentioned.

Senator McGregor:

– It would only be a terror to evil-doers.

Senator CHARLESTON:

– The clause inflicts a penalty for breach of arrangements. Let the committee think of that for a moment. The Minister will be well advised if he postpones the clause.

Senator PLAYFORD (South Australia). - I would also press for a postponement of ‘the clause. Furthermore, I grumble that we have a Bill placed - before us which says in a marginal note that a certain clause is taken from a certain Act of Parliament in another State, and it is subsequently found that the clause although taken from that Act, has been altered in a great many particulars. An enormous penalty is imposed by the clause, which is not imposed in the other Act. We should be informed if clauses are altered when they are transferred from existing Acts. That is the practice in South Australia. If only a verbal alteration be made an intimation to that effect is given in the marginal note. In future it will be a great convenience if that practice is followed. I venture to think that this clause must be copied from an old obselete provision which has never been acted upon in New South Wales, and has produced no results. If the Postmaster-General will postpone the clause, and will in the meantime telegraph to New South Wales and ask whether this provision has ever been acted upon there, and what benefits have been derived from it, the committee will be glad of the information. If the Deputy Postmaster-General of New South Wales can say that it has been acted upon, then I shall be quite willing to assist the Government in placing it in the Bill. I am confident, however, that a clause like this has been obsolete for years.

Senator Sir JOSIAH SYMON (South Australia). - Does the Postmaster-General intend to postpone this clause?

Senator Drake:

– I do not think so.

Senator Sir JOSIAH SYMON:

– Then I desire to strike out the words “ arrangements or “ from this clause.

Senator Millen:

– In order to allow the honorable and learned senator to do so, I will temporarily withdraw my amendment.

Amendment, by leave, withdrawn.

Senator Sir JOSIAH SYMON:

– I would prefer to see the clause postponed, but as the Postmaster-General has decided to go on with it, I shall move at once to have it amended. There is some definiteness in charging an officer with an offence in failing to comply with regulations, but not in charging him with neglect to comply with any “of the arrangements” to be made. I move -

That the words “arrangements or,” line 8, be omitted.

Amendment agreed to.

Amendment (by Senator Millen) pro posed -

That the words “ one hundred,” line 12, be omitted, with a view to insert in lieu thereof the words “ twenty-five.’

Question - That the words proposed to be omitted stand part of the clause - put. The committee divided-

Ayes … … … 12

Noes … … …. 13

Majority … … 1

Question so resolved in the negative.

Amendment agreed to.

Amendment (by Senator Sir Josiah Symon) agreed to -

That the words, “or imprisonment for any term not exceeding two years, “lines 13, 14, be omitted.

Clause, as amended, agreed to.

Clause 104 agreed to.

Clause 105 -

Any driver of a vehicle used for the conveyance of mails, and any guard or other person in charge of a mail, whether conveyed by a vehicle or on horseback or on foot who-

loiters on the road ; or
wilfully misspends or loses time ; or
is under the influence of intoxicating liquor ; or
does not in all possible cases convey the mail at the speed fixed by the PostmasterGeneral for the conveyance thereof, unless prevented by the weather or the bad state of the roads, or an accident, the proof whereof shall be on the person charged, shall be liable to a penalty not exceeding £10.

Senator HARNEY:
Western Australia

– I should like to ask the Postmaster-

– I am sorry if my language is flowery. It is the subject matter of the language that is flowery.

Under this clause an unfortunate driver could be fined £10 for getting under the influence of intoxicating liquor in the middle of the night, although he did not lose time and was not engaged in the postal service while in that state. I think it must be obvious to the Postmaster-General himself that this is a most absurd clause. It may be thought, after what I have said, that I have pointed out all the incongruities and peculiarities of the clause, but I have not. Not content with all these redundancies it offends against the fundamental rule of all Acts of Parliament by incorporating evidence in an Act, because the offender is not to be punished unless he bears about his person evidence that he has misspent his time. Supposing he is prevented by weather from conveying the mails at the required speed, the effect of the clause seems to be that he can be fined unless he bears on his person the evidence of rain or snow, or whatever it may happen to be. The clause says the proof shall be on the person charged.

Senator Drake:

– That is a proper legal expression. .Senator HARNEY.- The proof of what?

Senator Drake:

– The proof of the badness of the roads.

Senator HARNEY:

– Very good. Therefore if a few rays of sunshine come out after he has been detained by the weather, and his clothes are dry, or if by accident he falls on the road, and does not bear any evidence of the fall, the Minister is not to punish him at all. The Minister may refer me to an Act of Parliament, but I have never in my experience seen in any Act the expression-

– “We can alter the whole -clause by saying, “shall unless prevented by weather,” and so on.

Senator DRAKE:
Protectionist

– If Senator Harney is going to apply his hypercritical faculty to all clauses of this Bill, 1 do not think we shall get through with it this year. I do not want any one to be deceived. I could give the origin of the clause, but to do so I should have to go back to the reign of William IV. I do not propose to go back farther than the reign of Victoria. In the New South Wales Act, which we have been told has been in operation for 34 years, there is a section pretty similar to this one. The difference is that in Queensland, where it was adopted, it has been broken up into subsections. Section 66 of the Postal Act of New South Wales reads as follows : -

If the driver of any vehicle used for the conveyance of the mail or the guard or any person in charge of a mail whether conveyed by such vehicle or on horseback or on foot shall loiter on . the road or wilfully misspend or lose time so as to retard the arrival of the mail at its proper destination or shall not in all possible cases convey such mail at a speed fixed by the PostmasterGeneral for the conveyance thereof unless the weather or the badness of the roads or any accident shall prevent the same the proof whereof shall lie on the defendant he shall on conviction thereof forfeit and pay any sum not exceeding £50.

The section in the Post and Telegraph Act of Queensland is in these terms -

Any driver of a vehicle used for the conveyance of mails and any guard or other person in charge of a mail whether conveyed by a vehicle or on horseback of foot who

loiters on the road or
wilfully misspends or loses time or
is under the influence of intoxicating liquor or (i) does not in nil possible cases convey the mail at the speed fixed by the PostmasterGeneral for the conveyance thereof*!’ nless prevented by the weather or the bad state of the raids or an accident the proof whereof shall be on the person charged shall be liable to a penalty not exceeding £10.

I do not see that there is any fault to be found with the language of the clause in any respect. I do riot know whether these were serious criticisms or riot. When a man “ is in charge of mails he has to go at the rate of so many miles an hour, and has to be at certain places to deliver his mails at certain times. He is not allowed to hang about and loiter on one part of his .trip, and then rush along at top speed. That is loitering.

Senator Sir JOSIAH Symon:

– Does the Minister think it needs all this explanation 1

Senator DRAKE:
QUEENSLAND · PROT

– No. The reason why I object to the omission of the three subclauses is that I think they are necessary. Sub-clause (c) of this clause is not in the corresponding section of the New South Wales Act, but I think it is very desirable to enact that while the driver is actually in charge, of His Majesty’s mails he ought to be sober.

Senator Lt Col NEILD:
New South Wales

– I quite agree with what the PostmasterGeneral has said with reference to a person being actually in charge of mails ; but the clause does not say anything of the kind. He read an extract from some Act, and I protest against our having merely to sit here to copy other Acts. Surely federation was intended to work some improvement? And surely my honorable and learned friend does not sit here merely to introduce transcripts of antiquated laws % He read an extract from an Act- - I forget of what State - -but there was this great difference, that he read the word “or” instead of the conjunction “and.”

Any driver of a vehicle used for the conveyance of mails or any guard.

That is what he read; but here is what is in the clause -

Any driver of a vehicle used for the conveyance of mails and any guard or other person.

There is a marvellous difference between the two. Let us see how the phrase does really read in reference to the driver -

Any driver of a vehicle used for the conveyance’ of mails who is . under the influence of intoxicating liquor shall be liable to a penalty not exceeeding ±’10.

It does not say that this driver is to he in charge of mails, but that he is simply a driver of a vehicle. The vehicle may be in the shed, and he has finished his day’s -work, but if he is found under the influence of liquor he is liable to a penalty of £10 because he is the driver of ‘the vehicle. In the clause there is no provision that he has to be on duty at the time when he gets intoxicated in order to be liable to the penalty. He is liable to the penalty of £10 through being drunk, whether he is on duty or not. It is an idiotic clause. .

Senator McGREGOR:

– If the horse got drunk and fell down, then he would be liable.

Senator Lt Col NEILD:

– I do not know whether that would be due to the weather. I could read it in another way to show that any vehicle that is under the influence of intoxicating liquor, and cannot plead not guilty on account of the weather, is to be liable to a penalty of £10. It can be read in such a variety of ways that it would take some time to do it. But I am astonished at the Minister complaining of delay here in proceeding with the Bill. Surely we are discharging a most patriotic duty in putting in a length of time over this measure to afford the Ministry an opportunity for considering their financial policy.

The’ CHAIRMAN.- I Would ask the honorable senator to confine himself to the clause.

Senator Lt Col NEILD:

– I was only answering an observation - a sort of verbal castigation - that came from the PostmasterGeneral, and I thought we were really very patriotic. I shall support the amendment to omit sub-clauses (a), (i), and (o). <I think that sub-clause (d) covers the whole ground quite sufficiently, and if the others are omitted there will be some appearance of grammar, and some sentiment of common sense in the clause which does not exist now.

Senator WALKER (New South Wales).I take the liberty of suggesting to the PostmasterGeneral that we should substitute the word “or” for the word “and,” for the reason that the driver of a- vehicle may be quite a different person from the owner.

Senator Fraser:

– The dotting of i’s and the crossing of t’s

Senator O’KEEFE:
Tasmania

– I hope that the committee will not agree to omit these three sub-clauses, particularly subclause (c). It would meet the case which

Senator Harney so lucidly put if to subclause (c) we add that any person shall not be under the influence of liquor while conveying mails or in the discharge of his duty.

Senator Drake:

– It is implied in the clause.

Senator O’KEEFE:

– It is implied and understood, and if the opponents so desire they can add such words as I have suggested. I know of certain cases where the public have been put to great inconvenience by the drivers of mails having been under the influence of liquor. Another inconvenience has arisen because passengers have met with accidents simply owing to the fact that the driver was under the influence of liquor. I think if it is necessary to omit sub-clauses (a) and (?>), sub-clause (c) should be retained.

Senator MILLEN:
New South Wales

– I can quite understand and sympathize with Senator Drake in his protest against the consumption of time; but I think it- would be very much more to the point if it were directed to the draftsman who is responsible for submitting the Bill to us in this form, and not to the committee which is endeavouring to put it right. There is one part which I hope the honorable and learned gentleman will amend in some way. It distinctly provides that the driver of a vehicle, whether on duty or not, shall be liable to a penalty of £10 if he is found in a state of intoxication. That is not intended.

Senator Drake:

– Strike out “ and “ and put in “ or.”’

Senator MILLEN:

– I am not quite certain that that would do. - Senator Sir Josiah SYMON - The word “and” is quite right. Put iii the word “whilst” before the word “used.”

Senator Lt Col Neild:

.- - That would put the responsibility on the vehicle.

Senator MILLEN:

– It is extremely difficult to knock a clause like this into shape on the spur of the moment. I drew the Minister’s attention to the difficulty. I think an amendment of that kind should be made. It ought not to be for the committee to allow a clause to go out meaning something which is not intended.

Senator FRASER:
VICTORIA · PROT; ANTI-SOC from 1906

– One would imagine that when the driver of a mail coach gets off his box in the remote parts of the Commonwealth his duties are over, and he is no longer in charge of the mail. Let me assure honorable senators that nothing of the kind is the case. In many places, the driver of a vehicle carrying a mail, or a man carrying a mail with a pack-horse goes hundreds of miles, and he is constantly in charge of the mail. I have travelled to the ‘Gulf by the mail coaches, and I know what I am speaking of. I say that once a man commences his journey from Winton to the Gulf as a mail-man, whether he has a packhorse or a trap he is constantly in charge of the mail. It would be absurd to allow drunken men lo have charge of the mails. These men should be sober and reliable men. I agree that the wording of the clause may not be very elegant, but I believe these clauses will be more easily understood than more scientific clauses drafted by scientific lawyers. I think we ought not to spend so much time over them.

Senator MILLEN (New South Wales).I think I can suggest an amendment that would get over the difficulty. I suggest that we might omit the words “ driver of a vehicle used for the conveyance of mails and any guard or other,” in lines 1 and 2. In that way we would attach the penalty only to the person in charge of the mail.

Senator Drake:

– It is not certain that the driver will be in charge of the mail.

Senator MILLEN:

– We do not wish to punish the driver when he is not on duty. He might be driving his coach for the purpose of the mail one day in the week, and driving it during the rest of the week for other purposes than the transport of the mail. Two men cannot be in charge of the mail. There may be three or four associated with it, but there will be one man in charge, who receives a receipt for the mail from the postmaster, and gets a receipt from the postmaster to whom he delivers the mail. That is the person on whom the responsibility must rest, and to whom the penalty must attach. If the amendment at. present before the committee is withdrawn, I will ‘ move the amendment I have suggested.

Amendment, by leave, withdrawn.

Amendment (by Senator Millen) proposed -

That the words “ driver of a vehicle used for the conveyance of mails and any guard or other,” lines 1 aud 2, be omitted.

Senator DRAKE:

– In regard to the amendment suggested, substituting the word “ or “ for the word “ and,” I do not think it would greatly alter the sense, but it would certainly have the effect of . throwing ‘the expression “ person in charge of a mail” back to the commencement of the sentence more clearly. The intention of the clause is clear that the person to whom it is to apply is the person in charge of the mail, and he may be either the driver of a vehicle, the guard, or some other person. I think that would be made clear if were substituted the word “ or “ for the word “ and,” as has been suggested. If that is done, we shall be in accord then with the New South Wales Postal Act, and perhaps we shall be all right with William IV.

The CHAIRMAN:

– I propose taking the amendment of Senator Millen for the omission of the words he suggested up to the word “mails” in line 1, so that other amendments may be made if it is not accepted.

Senator GLASSEY:
Queensland

– The person in charge of . the mail need not necessarily be the driver of the vehicle. Persons are often sent in charge of the mail in addition to the driver who is usually in charge of the mail. Such a provision as this is essentially necessary in the interests of the public. I have had practical experience of its necessity, as I have been delayed for two days, after having to pay £5 10s. coach fare and 10s. a day for keep for which I should riot have been liable, not because the coach could not go on or because there was any breakdown, but simply through neglect of duty on the part of persons in. charge of the mail. When we know that persons in some parts have to wait 20 and 30 days for a mail, it is very objectionable that they should have to wait two or three days more in consequence of the culpable neglect of the person in charge of the mail. 1 point out that both the driver and the person in charge of the mail may be culpable and it would be unfair in such a case to single out one and let the other go scot free.

Senator Sir WILLIAM ZEAL:
Victoria

– I think senators should not be too captious in discussing a clause like this, which is for the convenience of the public. If the honorable senators had lived as I have done in some of the remote parts of New South Wales, they would know what an important matter this is. Mails are carried in New South Wales for thousands of miles on horseback, going about from store to store, and unless the greatest care is taken and those in charge are placed under disabilities for neglect, the mails might not be delivered. Some of the remarks which have been made have not been worthy of the occasion.- We are here to carry out public business and if there should be a little slip in the language of the clause it is the duty of honorable senators to rectify it. This is one of the most valuable clauses in the Bill, and those who have lived in places remote from centres of population will know how necessary it is that the Government should hold mail-men with a firm grip.

Senator O’CONNOR:
Vice-President of the Executive Council · New South Wales · Protectionist

– I think the committee had best pass the clause as it stands. AVe are dealing with a matter of practical experience in the management of the carrying of these mails. This clause exists in all the State Mail Acts, and it has been found from experience to be necessary. Any man who has had much experience of travelling in remote parts of the country, as most of us had in the old coaching days, will not fail to realize that mails containing most important matter are often in the charge of a “boy of fifteen or seventeen years, who may have to stop a day or a night at some outside public-house, miles away from police protection of any kind. Under these circumstances the Postmaster-General must have some special hold on employes of that kind. There is no hardship about it. Any person applying to be employed in the business will have an opportunity of knowing what this provision is, and will know that he may be fined if he gets drunk while in charge of mails.

Senator Millen:

– It does not say “in charge of mails,” and that is my objection.

Senator O’CONNOR:

– The honorable senator must see that it is quite clear what , it means, and I will ask him whether any magistrate would convict a man of being drunk, under the clause, when he was not in charge of the mail at the time ? If you use the expression “in charge of mails,” you at once open the door for an ingenious gentleman like my honorable friend, Senator Harney, to whom I have listened with great amusement this afternoon, to raise a number of arguments before the bench as to what the expression, “ in charge of mails,” means. I think we should shut off that kind of thing whenever we can. AVe should make the language as plain as we can ; and as this provision has stood the test of experience/! hope the Senate will pass it as it stands.

Amendment negatived. Clause agreed to. Clause 106-

Any person who wilfully retains, secretes,, or detains any mail or postal article -

Found by the person secreting, keeping, _ or detaining the same ; or (!>) Wrongfully delivered to the person keeping or detaining the same, shall be liable to’ a penalty not exceeding One hundred pounds or imprisonment with or without hard labour for any term not exceeding twoyears.

Senator Lt.-Col. NEiLD (New South Wales). - I should like to know whether it is customary in other Postal Acts to have this provision with regard to twoyears’ imprisonment in a clause of this kind? The offence does not appear to be an indictable one, and the same objection would apply to it as to the two years’ imprisonment provision in clause 103, namely, that a magistrate could not inflict a sentence of two years’ imprisonment.

Senator DRAKE:

– The offence mentioned in this clause is a very serious one. I see the point made by Senator Neild, and I propose to follow the New South Wales Actand make the clause read -

Shall be guilty of a misdemeanour and on conviction thereof.

I move -

That niter the words “ shall be,” line 7, thewords “guilty of a misdemeanour, and on conviction thereof shall be,” be inserted.

Amendment agreed to. Senator PEARCE (Western Australia).- I should like to know what is the meaning of paragraph (0) ? What is the offence contemplated by that provision t

Senator DRAKE:

– Paragraph («) deals with persons guilty of secreting, keeping,, or detaining, letters or other postal articles found by them, and paragraph (&) refers to persons detaining letters wrongfully delivered to them.

Clause, as amended, agreed to.

Clause 107 -

If any person by means of any false pretence or misstatement induces any postmaster or any officer or servant of the department to deliver to such person any postal article sent by post and not addressed to such person, he shall be liable to a penalty not exceeding One hundred pounds or to imprisonment for any term not exceeding two years.

Senator DRAKE:
Protectionist

– I am not quite sure whether it would be advisable to follow the same course in regard to this clause, making the offence a misdemeanour and reducing the penalty.

Senator Lt Col Neild:

– Treat it in the same way.

Senator DRAKE:

– Very well. I move -

That after the words “shall be,” line 5, the following words he inserted : - “Guilty of a misdemeanour and on conviction thereof, shall be.”

Amendment agreed to. Clause, as amended, agreed to. Clause 108-

Any person charged with the delivery of a postal article or telegram who wilfully delivers the same to any person other than the person to whom the same is addressed, or his authorized agent in that behalf, shall be liable to a penalty not exceeding Fifty pounds or to be imprisoned with or without hard labour for any term not exceeding twelve months.

Senator Lt Col NEILD:
New South Wales

– I think the term of imprisonment of twelve months in’ this clause should be altered to six months, with the object of enabling summary conviction by a magistrate to take place. The offence under the clause seems to be less important than the offences we have been dealing with in previous clauses. I move -

That the word “twelve,” line 8, be omitted, with the view to insert the word “ six.”

Amendment agreed to.

Clause, as amended, agreed to.

Clause 109-“ Stealing letters, &c.”

Senator HARNEY:
Western Australia

– This clause provides that the punishment for stealing letters may be imprisonment for a term not exceeding three years. I always thought the maximum term of imprisonment was two years, and that after that time the punishment was penal servitude.

Senator DRAKE:

– That is so in some of the States. I think the point will be dealt with upon some comprehensive plan. I am under the impression that the Acts Interpretation Act deals with the meaning of the word “imprisonment.” In Queensland it is the rule that for two years a convicted person is to be imprisoned with o hard labour, and that that term is the maximum of imprisonment. The minimum for penal servitude there is three years ; but I do not know whether that is so under the Commonwealth.

Senator Harney:

– I suppose the POSt.masterGeneral will consider the point.

Senator DRAKE:

– Certainly.

Clause agreed to.

Clauses 110 to 112 agreed to.

Clause 113.

Any driver or person having the management of any vehicle plying for hire, who without the permission of the Postmaster-General, permits the same to stand or ply for hire opposite any post-office or telegraph office, shall be liable to a penalty not exceeding Five pounds.
Every hawker, newsvender, or idle or disorderly person, who stops or loiters opposite to, or on the premises of any post-office or telegraph office, shall be liable to a penalty not exceeding Five pounds.

Senator Millen:

– They could do so in any case.

Senator DRAKE:

– A similar provision is to be found in the New South Wales Act in regard to the Sydney Post-office. It has existed there for 34 years. The section in the New South Wales Act provides -

If any driver or person having the management of any hackney carriage or other public vehicle plying for hire shall permit the same to stand or ply for hire opposite the General Post-office, Sydney, he shall, on conviction thereof, forfeit for every such offence a sum not exceeding Five pounds, and if any hawker, newsvendor, or idle or disorderly person, shall stop or loiter opposite to or on the premises of the General Post-office, he shall, on conviction thereof, forfeit and pay any sum not exceeding Five pounds.

Senator PULSFORD:

– We did not have our General Post-office then..

Senator DRAKE:

– Very well, I will allow the clause to go out.

Senator Lt Col NEILD:
NEW SOUTH WALES · FT

– I think the information which the Postmaster-General has been good enough to give the committee shows clearly that this is positively an obsolete provision.

Senator Sir WILLIAM ZEAL:
Victoria

– If the Postmaster-General looks into this matter, he will find that the municipal authorities have power to deal with it. If a hackney carriage-driver stopped opposite one of these buildings, for instance, without the permission of the municipal authorities, he-would be liable to be moved on by the police and fined. It would be absolutely impossible for the driver of a vehicle to ply for hire opposite the post-office in this city, without running the risk of being arrested and losing his licence.

Clause negatived.

Clause 114-

Any person who wilfully obstructs or retards the conveyance or delivery of a mail shall be liable to a penalty not. exceeding £50 or to imprisonment with or without hard labour for any term not exceeding twelve months.

Amendment (by Senator DRAKE) agreed to-

That the word “twelve,” line 5, be omitted, with a view to insert in lieu thereof the word “ six.”

Clause, as amended, agreed to. Clause 115 agreed to”. Clause 116 -

Any. f person who wilfully injures or destroys any letter-box or newspaper-box or receptacle for the reception of postal articles, or any card or notice, the property of the Postmaster-General, or obliterates any of the letters or figures, thereon, shall be liable to a penalty not exceeding Fifty pounds or to imprisonment with or without hard labour for any term not exceeding twelve months.

Senator DRAKE:
Protectionist

– In order to secure uniformity, I move -

That the word “twelve,” line 8, be omitted with a view to insert in lieu thereof the word “six. “

Senator Pulsford:

– The penalty for destroying letter-boxes is enormous under this clause. I think it should be reduced.

Senator DRAKE:

– But the offence might be the putting of some combustible matter into a postal pillar.

Senator Lt Col Neild:

– I think it would be better to make it an indictable offence.

Senator HARNEY:
Western Australia

– If this is made an indictable offence, then it must be dealt with by a Judge and jury. Suppose a person wilfully injures or destroys a letter-box in some trivial way, would it be fair to compel him to undergo the anxiety of waiting for a trial by jury ? The offence under this clause might be exceedingly trivial or very great.

Senator DRAKE:

– I prefer to adhere to my amendment.

Senator Sir WILLIAM ZEAL:
Victoria

– Within the last month the police in Melbourne arrested two children who dropped some matches into a letter-box and set fire to a number of letters. It would be ridiculous to indict mere children to appear before a Judge and jury, and I think the committee should pause before it allows this power to be taken out of the hands of the Postmaster-General. There is a maximum fine of £50 provided, but it does not follow that such -a penalty would be imposed by justices in a trivial case. A child might be imprisoned -until the rising of the court, or even fined a shilling. I think the Postmaster-General should be armed. with a sufficient authority to enable him to protect these pillar-boxes, but the clause goes far enough. . Amendment agreed to.

Clause, as amended, agreed to.

Clause 117 similarly amended and agreed to.

Clause 118 -

Any person who without the licence of the Postmaster-General (the proof of which licence shall be on the person charged) -

sells offers or exposes for sale any postage stamp ; or
1. places or permits or causes to be placed or suffers to remain on or near to his house or premises the words “licensed to sell postage stamps” or any word or mark which may imply or give reasonable cause to believe that he is duly licensed to sell postage stamps, shall be liable to a penalty not exceeding Five pounds.

– The honorable senator must see that unless we have some restriction there is nothing to prevent persons who have stolen stamps from their employers disposing of them.

Senator Harney:

– Is it not so in regard to stolen money?

Senator DRAKE:

Senator Sir William Zeal:

– I know thatthe senator would forgive me.

Senator Sir JOSIAH SYMON:

Senator Sir WILLIAM ZEAL:

– It is utterly opposed to common sense, and such a thing could not possibly happen. I shall support the Minister, because the provision is founded on experience, and is in force in nearly every State.

Senator PULSFORD (New South Wales). - I venture to say that the more honorable senators consider the clause, the less they will like it. It is a policy, I may say the boast, of one post-office, that it does all it possibly can to promote and not to thwart the convenience of the public. It is a great convenience to the public to be able to get postage stamps easily, and any effort put forward by the post-office which decreases the facilities for obtaining postage stamps lessens the facilities which it grants to the public. We are bringing our letter-boxes as near as we can to all who post letters. Why not, then, let them have postage stamps with every possible facility ? It appears to me that the Postmaster-General would do well if he would consent to the elimination ‘ of the clause, but if he insists on proceeding with it E shall be prepared to propose an amendment.

Senator HARNEY:
Western Australia

– I think the clause ought to be omitted. It is perfectly useless for the two purposes that have been put forward to justify it. While it is a great convenience to the public, the Postmaster-General ingeniously seeks to justify it by saying that it is in the interest of the preservation of morals ! i Senator Drake. - No. I said it was in the interest of the public.

Senator HARNEY:

– In the interest of the public - how ? Namely, that persons disposed to petty larcenies find impediments in their paths, and therefore are- less likely to carry them out. Our experience of postage stamps is that they pass from hand to hand almost as money does.

Senator Drake:

– No. It is not desirable that that should be encouraged.

Senator Sir J JOSIAH SYMON:

– Some remittances are made by postage stamps.

Senator HARNEY:
WESTERN AUSTRALIA · FT

– The Minister gays everybody who vends postage stamps Ought to be licensed. I think all of us know that the object of a licence is to prevent abuse in the sale of an article. We license a tobacconist in a way that he may not sell a bad article, and in a way that he may not overcharge, and at the same time to get revenue.

Senator Drake:

– Or a contraband article.

Senator HARNEY:

– Will the Minister tell me how any one can charge more than a penny for a penny stamp, or how, unless’ he is to be fraudulent, he can give less than a certain article. A licence, therefore, in no way protects the revenue. It in no way saves abuse in the sale of postage stamps. The only possible tiling it can do is to render it more difficult for the peculator to carry on his trade. When we consider the small amount of good it will do in that way, and set it against the great inconvenience it is to the public, we shall see that it is a clause which should not be allowed to stand.

Senator Sir William Zeal:

– Where is the inconvenience ?

Senator HARNEY:

– If there is no postoffice near at hand - and it has occurred in my own case hundreds of times - one goes to

Ji n. hotel, a chemist’s shop, or any place that is convenient, and puts down a shilling, or two shillings, or five shillings, and gets postage stamps in exchange. It has been said by the honorable senator that the last clause does not aim at persons purchasing stamps in that way. Certainly its author does not intend to punish those persons. But we also have to remember that this clause has to be carried out by an officious body of policemen who, having nothing better to do, are very glad of the opportunity of showing their zeal for special work.

Senator Lt Col NEILD:
New South Wales

– Artemus Ward once remarked - The wages of sin is death and postage stamps.

It seems to me that the present discussion throws a lurid light on the witticism in question. But, joking apart, I think it is opposed to high public morals that we should deliberately enact a law constituting a crime, the breach of a provision which every member of the Senate who has spoken to-night plainly intimates that he would break and that he has been in the habit of breaking in the past. It seems to be entirely opposed to public morals that we should create offences knowing that the law will be broken. It must be patent to us that it is opposed to public policy to induce people to break the law. If this is passed we should find that it would be an offence to discharge small debts with postage stamps. It is a common thing to-day for people to discharge little monetary obligations by sending postage stamps through the post, and subscriptions are made to charities by postage stamps sent through the post.

Senator Fraser:

– I have often paid my train fare with stamps.

Senator Lt Col NEILD:

– That is all very well for the big firms.

Senator Sir FREDERICK SARGOOD.The small ones can do it as well.

Senator PEARCE:
Western Australia.

– One reason for retaining this clause in the Bill is, that it is a preventative of forgery. It may become a lucrative business to forge postage stamps if they are allowed to be sold indiscriminately. If only licensed persons are allowed to vend stamps the PostmasterGeneral has a certain power of tracing them, because those to whom licences are issued must be people of some standing.

Senator O’Connor:

– Besides, the licensee gives a bond to the post-office as security.

Senator PEARCE:

– What would be the position of a forger of postage stamps if they were allowed to be indiscriminately sold at any tobacconist’s shop in the city 1 The forcer would sell a few here and a few there, and attention would never be directed to him. If at the present time a forger attempted to get rid of stamps, and they were sold to a shopkeeper who had not a licence to sell them, attention would be directed to the place at which they were sold, and possibly some officer of the law would inquire into the matter. The vendor would, sooner or later, bring himself under the clutches of the law. That is a reason why this clause should be retained in the Bill. It seemed to me that when the Postmaster-General was quoting the English Act that that measure was drafted with a view to the prevention of forgery, because it is provided in the section quoted that the licensee must give a bond not to receive stamps from any person other than those authorized by the PostmasterGeneral. Clearly, the intention was that the vendors of -stamps should not receive stamps from any other source but the postoffice. I believe that was the sole reason for the section.

Senator MILLEN (New South Wales).I take it that the real test of the value of this clause is : Is it intended to carry it out if it is passed 1 Does the PostmasterGeneral intend to prosecute people who sell stamps without having a licence 1 If the clause is not to be carried out, it is a waste of time to ask the Senate to pass a useless law. It is of no use putting upon the statutes-book a provision intended to be a dead letter. The PostmasterGeneral has made out a case for the clause if he intends to carry it out in its integrity, but if he intends to administer it with both eyes shut we are wasting time in carrying it into law.

Senator CLEMONS:
Tasmania

– I intend to support the Postmaster-General in regard to this clause. I differ from Senator Harney because I think it should be passed in its entirety. The Postmaster-General has satisfied me that there are good and sufficient reasons why paragraph (a) should remain in the Bill. The Minister has pointed out that the object is to limit as far as possible, the stealing of stamps. He might have added that it is also useful to prevent the forgery of stamps. I am astonished that both Senator Harney and Senator Symon, who might reasonably be supposed to see through any clause as quickly as any one in the Senate, have utterly failed to perceive that paragraph (b) is a necessary supplement to paragraph (a). They have endeavoured to point out that the paragraph is undesirable, useless, and has no meaning. As a matter of fact it is most necessary that paragraph (b) should remain in the Bill. Paragraph (a) prevents the selling and exposing for sale of postage stamps without any indication that the man selling or offering has a licence ; and then paragraph (b) goes on to say that a man shall not sell them under a false licence or put up a signboard to which he has no right. The clause, therefore, properly contemplates the case of a man who is not licensed, and also the case of a man who uses a false licence, or makes a false announcement on a signboard which he has no right to use. For these reasons I intend to support the clause.

Senator HARNEY (Western Australia)- - I think it is light to point out what Senator Clemons has said, that paragraph (b) is not a necessary consequence of paragraph (a) for this reason. It is one thing for the Postmaster-General to say we desire to earmark the places at which stamps are sold, but it is another thing to say that the public have the same inclination to ear-mark the places. The only reason why people can desire to put the words “licensed to sell” over their shop doors is that they gain something by it. Clearly under this clause people gain nothing. I find on looking at the English Act, that while a portion of paragraph (a) is in it, paragraph (b) is not to be found there at all. It is an innovation. Any one reading the English Act sees that the idea of the framers was not to prevent persons selling stamps without a licence, but to give the Postmaster-General a knowledge of the places where stamps are sold. The words used in the English Act would be unobjectionable in our measure. They are -

Every person who not being duly appointed to sell and distribute stamps or duly licensed to deal in stamps, deals in any manner in stamps in any part of the United Kingdom.

We all agree with the Postmaster-General that it is right that he should know the quarters in which stamps are sold, and dealt in by way of business, but we object to a clause which prevents ordinary transfers of stamps from private individuals, or the sending of them in letters in exchange for other commodities. The English section, would not, I think, make it unlawful to send8d. or 9d. in stamps through the post.

Senator Drake:

– Is that selling?

Senator HARNEY:

– -Suppose you exchange for something else. It is doubtful whether that is selling or not. Selling does not always imply exchanging for money. There are great conveniences arising from being able to send a few postage stamps through the post in a letter. If the words of the English Act are used in this clause we shall preserve for the Postmaster-General the knowledge of the places where the stamps are sold. Those words are -

Every person who . . . deals … in stampsin any part of the United Kingdom.

Dealing in stamps is not solely exchanging them for money in isolated cases, it is making a trade and profit out of their exchange.

Senator Glassey:

– In spite of the English Act stamps are generally sold. I have bought stamps in Dublin on a Sunday, paying three halfpence for a penny stamp.

Senator HARNEY:

– I think, therefore, that instead of using the words “ sells, offers or exposes for sale” it would be better to adopt the words “ deals in stamps for a profit or as a general business,” which are used in the English Act. Something like that would meet the case.

Senator DRAKE:

– As there is a feeling that the clause should be amended, I think it would be better to postpone it. I move-

That the clause be postponed.

Motion agreed to ; clause postponed.

Clauses 119 and 120 agreed to.

Clause 121-

Any person who -

knowingly sends, delivers, or causes to be sent or delivered to any officer or servant of the department for the purpose of being transmitted as a telegram, a message or writing which purports to be signed or sent by any other person without such person’s authority ; or
wrongfully signs a telegram with the name of another person without such person’s authority, or with the name of some fictitious person ; shall be guilty of an indictable offence, and be liable to a penalty not exceeding one hundred pounds, or to imprisonment with or without hard labour for any term not exceeding two years.

Senator Sir Frederick Sargood:

– To a registered address 1

Senator CLEMONS:

– No. It may not affect this clause, but if it is possible in England, surely an offence might be committed with much greater facility there than in this country, I fail to see that this clause is necessary to cover any crime that the Postmaster-General may imagine could be committed through the post-office.

Senator KEATING:
Tasmania

– I think the clause is very necessary notwithstanding what Senator Clemons has said with regard to the ability of an individual to send a telegram in England without signing any name to it. This provision would not prevent that being done here, because, as already pointed out, the whole of the paragraph is governed by the word “ wrongfully.” I believe that in some States it is possible to send a telegram with merely the initials of the sender attached to it. Under this clause a man would not be allowed to put a fictitious .name to a telegram wrongfully. That one word covers the whole of the clause.

Senator CLEMONS (Tasmania.).- The Postmaster-General will admit that if we contemplate the possibility of wrongfully sending a telegram in the name of some fictitious person, we must also contemplate the possibility of that being rightfully done.

Senator Keating:

– In that case it would not come under the clause.

Senator CLEMONS:

– Does the PostmasterGeneral object to sending any telegram to which a fictitious name is attached?

Senator Drake:

– That question can be answered. Supposing Mr. Clemens, the American humorist, sent a telegram and signed it “Mark Twain” - -

Senator Millen:

– That is a fictitious name!

Senator Drake:

– But he would not use it wrongfully.

Senator MILLEN (New South Wales).It seems to me that it is desirable to give further consideration to this clause. Senator Harney has told the committee that the mere use of a fictitious name must be wrong. Now I understand the Postmaster-General to say that the wrongfulness of the thing consists in the intent.

Senator HARNEY (Western Australia). - What I did say was that it was wrong to put a name to a telegram with the intent to deceive, or to work something. If that name happens to be that of a person whom the sender knows, then the offence comes under the first category. If it happens to lie a name which the sender invents, it comes within the second category.

Clause agreed to.

Clause 122 agreed to.

Clause 123-

Any person employed in a telegraph-office who divulges the contents or substance of a telegram otherwise than by delivering the telegram or * giving a copy of it to the person to whom he is authorized to deliver such telegram or give such copy shall be liable for every such offence to a penalty not exceeding £100, or to imprisonment with or without hard labour for any term not exceeding two years.

Amendment by Senator Drake agreed to-

That the words “ guilty of a misdemeanour, and on conviction thereof shall be !! be inserted after the words “ shall be,” line 6.

Clause, as amended, agreed to.

Clause 1 24 (Erection or maintenance of telegraph lines without authority).

Senator MILLEN (New South. Wales).I wish to ask the Minister whether, in view of his undertaking to reconsider the whole question of what has been done in regard to the owners of private telegraph lines on their own premises, he will consent to the postponement of this clause. It says -

Any person who without the -authority ,of the Postmaster-General sets up maintains or uses in or on any Crown lands any wires which are set up before or after the commencement of this Act.

That opens up the whole question again ; and if the Minister is willing to postpone the clause until he has decided what he proposes to do in the matter I shall be glad.

Senator DRAKE:
Protectionist

– I have no great objection to postpone the clause if that is desired : but I would point out that in any case it is perfectly clear that unless the department is not to have any right to the erection of a telegraph line it is absolutely necessary that a clause of this kind should be passed. I may mention here the way in which I propose to deal with the matter which has been brought forward by Senator Sir Frederick Sargood. In clause 78, after the word “person,” I propose to insert the words “for the Postmaster-General or for his own use.” That will leave a way open for private lines. I propose also to insert the following new clause, which has been circulated, I think -

The Postmaster-General may, on such conditions as he deems fit, authorize any person to erect and maintain telegraph lines within the Commonwealth, and to use the same for all purposes of and incidental to telegraphic communication.

Still we mus’t have this clause.

Senator Millen:

– -Had it not better be .postponed?

Senator DRAKE:

– Very well.

Clause postponed.

Clause 125 -

Any person who having entered into an agreement with the Postmaster-General for the use by such person of a telegraph line without the authority of the Postmaster-General demands or makes any charge or receives any payment or valuable consideration from any other person for the use of the same shall be liable for each offence to a penalty not less than Two pounds and not exceeding Fifty pounds.

Senator PULSFORD:
New South Wales

– I shall he glad if the Minister will explain the position which, under this clause, will he occupied by persons who, jointly, ‘have taken a mutual contract for the use of a telephone or telegraph line.

Senator DRAKE:
Protectionist

SenatorSir Frederick Sargood. - There are plenty of such cases in Melbourne.

Senator WALKER:

– Should not a regulation be made for a case of that sort ?

Clause agreed to.

Clause 126-

Any person who -

unlawfully or maliciously cuts, breaks, throws down, injures, or removes any battery, machinery, wire, cable, insulator, post, or other matter or thing whatsoever, being part of any apparatus used or employed in or about any telegraph, or in the working thereof; or

unlawfully or maliciously prevents, or obstructs in any manner whatsoever, the sending, conveyance, or delivery of any communication by telegraph ; or

interrupts, or impedes the use of any line, or the transmission of any, message, shall be guilty of an indictable offence, and shall be liable to imprisonment, with or without hard labour, for any term not exceeding three years.

Senator HARNEY:
Western Australia

– I observe the words “three years imprisonment” in the clause. That term ought to be limited. Penal servitude is the correct expression to use I think.

Senator Drake:

– In some States they have penal servitude, while in others they have nothing but imprisonment.

Senator Walker:

– Should there not be a provision made for fire brigades to be at liberty to cut the lines?

Senator Drake:

– They would not come under the clause, because the words “wilfully and maliciously “ are used.

Clause agreed to.

Clause 127 agreed to.

Clause 128-

Any person offending against the provisions of either of the two last preceding sections may with or without warrant be apprehended by any other person and delivered to a police officer or conveyed before a justice to be dealt with according to law.

Senator MILLEN:
New South Wales

– Is it proposed to give every man the right to arrest any one who is liable to a penalty of £10?

Senator Drake:

– It is indeed.

Senator MILLEN:

– The clause sets out what it intends, but I doubt very much whether we should pass it in that form.

Senator DRAKE:
Protectionist

– We have enormous lengths of telegraph lines scattered all over the country, in many places where there are practically no police. Is a man to stand by when he sees any one wilfully or maliciously injuring a telegraph line ?

Senator Millen:

– Am I to stand by if I see a man stealing a horse ? I have no right to arrest him.

Senator Harney:

– Not for stealing a horse, for that would be a felony, not a misdemeanour.

Senator DRAKE:

– If the honorable senator saw a man stealing a horse, I suppose he would interpose and stop him whether the law permitted him to do soor not.

Senator Sir Josiah Symon:

– He would meet with the usual fate of the man who interposes in a quarrel.

Senator HARNEY:
Western Australia

– I think there is something wrong in the clause. As I understand the law, if an ordinary bystander sees another in the act of committing a felony, he is then entitled to arrest him, but that is a misdemeanour, I take it. It is a very drastic tiling to alter one of the fundamental principles of the criminal law, and allow a bystander to arrest a man for a misdemeanour under this Act.

Senator Drake:

– It is a very special class of offence.

Senator O’Connor:

– The policy of the clause is to encourage persons to stop it at once, and to arrest the man.

Senator HARNEY:

– It is quite contrary to the ordinary principles of law.

Senator O’Connor:

Senator DRAKE:

– Not only will it not do any harm, but I think it is going to do a lot of good. I have stated special reasons why it is necessary to have special means to protect telegraph lines and apparatus. I mentioned the case of men out in the far west who sometimes commit offences of that kind. But there are a number of different classes of persons who, under a provision of this kind will be able to help in protecting telegraph property - many officers of the telegraph department, and officers of the railway department also, because a great many telegraph lines run alongside railways, and injury might be done to some of them. No doubt if I went on I could mention other classes of persons who would be able to assist in protecting the property of the telegraph department. 1 know it is an unusual provision, but it deals with unusual circumstances, and that is a sufficient justification.

Senator HARNEY (Western Australia). - It has occurred to me, I do not know whether the Postmaster-General has also thought of it, that a clause of this kind may, in not very improbable circumstances, lead not only to a breach of the peace but to manslaughter. The Postmaster-General is well aware of the reason of the ordinary rule of law, that only a policeman or a person armed with a warrant can arrest another. Everybody is supposed to know that one is not justified in resisting an officer of the law. If a person is arrested by one clothed in police uniform or having a warrant, he will not resist because he knows that the punishment is very severe for resistance. But if I am engaged in cutting down a telegraph-post, and an individual comes up to me who is not in policeman’s clothes, and has no warrant, and endeavours to arrest me, I will feel that he has no right to arrest me, and that I am justified - as I would be if tins clause were not here - in using as much force as may be necessary to repel him. If he persisted in his attack I might persist in my resistance, until, perhaps, the result might be severe injuries or loss of life. That is a thing which is not only possible, but exceedingly probable under this clause. The law is most careful to have it brought well home to a man, that he cannot resist arrest by lawful authority, and persons are very often in the criminal courts sentenced to long terms of imprisonment for resisting, however slightly, arrest by a policeman. The object is to leave a healthy feeling upon the minds of the public that once our liberty is sought to be obstructed, by one who bears the badge of authority upon him, we must put down our hands and trust to a court to vindicate our innocence. But if a person arrests another, who is not justified by law in doing so, then the person sought to be arrested is entitled to resist, whatever violence is used by the person seeking to arrest him, even to the killing of that person, if he will not permit one’s liberty otherwise. How will these persons in the far west know of this clause? Where we may have to deal with fullblooded passionate individuals with all the wildness of nature due to the desolation around them in the backwoods such a clause may well lead to loss of life.

Senator O’CONNOR:
Vice-President of the Executive Council · New South Wales · Protectionist

– I am afraid we are wandering a long way from the real matter we have got to decide. Senator Harney seems to be under the impression that the law in all the States, is as it was at the time of the common law he speaks of. If any of the offences under clause 126 took place in New South Wales, for instance, any person who saw the offender commit any of those offences would he entitled to arrest him, whether he was a constable or not.

Senator Sir Josiah: SYMON:

– Where ?

Senator O’CONNOR:

Senator DRAKE:

– It is not compulsory. It is only optional.

Clause agreed to.

Clauses 129 to 135 agreed to.

Progress reported.

Senate adjourned ut 10.10 p.m.

Cite as: Australia, Senate, Debates, 4 July 1901, viewed 22 October 2017, <http://historichansard.net/senate/1901/19010704_senate_1_2/>.

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Senate 4 July 1901

PETITION

CHAIRMAN OF COMMITTEES

Casting Vote

The PRESIDENT:

QUESTION

REGISTRATION OF POSTAL ARTICLES

Senator HIGGS:QUEENSLAND

Senator DRAKE:Postmaster-General · QUEENSLAND · Protectionist

ROTATION OF SENATORS

Senator O’CONNOR:Vice-President of the Executive Council · NEW SOUTH WALES · Protectionist

Senator Glassey:

Senator O’CONNOR:

Senator Barrett:

Senator O’CONNOR:

Senator STEWART:Queensland

Senator Glassey:

Senator Drake:

Senator Sir Josiah Symon:

Senator STEWART:

Senator DOBSON:Tasmania

Senator Sir Josiah SYMON:

Senator DOBSON:

Senator CLEMONS:TASMANIA

Senator DOBSON:

Senator McGregor:

Senator DOBSON:

Senator Lt Col NEILD:New South Wales.

Senator McGregor:

Senator Lt Col NEILD:

Senator PULSFORD:New South Wales

Senator O’Connor:

Senator PULSFORD:

Senator WALKER:New South Wales

Senator McGREGOR:South Australia

Lt.-Col Neild:

Senator Lt Col Neild:

Senator McGREGOR:

PROPERTY FOR PUBLIC PURPOSES ACQUISITION BILL

Senator O’CONNOR:president of the Executive Council · New South Wales, ‘Vice · Protectionist

Senator Millen:

Senator O’CONNOR:

Senator PLAYFORD:SOUTH AUSTRALIA

Senator O’CONNOR:

Senator PLAYFORD:

Senator MCGREGOR:

Senator O’CONNOR:

Senator Harney:

Senator O’CONNOR:

Senator Harney:

Senator O’CONNOR:

Senator Best:

Senator O’CONNOR:

Senator PLAYFORD:

Senator O’CONNOR:

Senator MILLEN:NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913; NAT from 1917

Senator O’CONNOR:NEW SOUTH WALES · PROT

Senator O’CONNOR:

Senator Dobson:

Senator O’CONNOR:

Senator HARNEY:

Senator O’CONNOR:

Senator Sir ‘ JOSIAH SYMON:South. Australia

Senator O’Connor:

Senator Sir JOSIAH SYMON:

Senator Dobson:

Senator Sir JOSIAH SYMON:SOUTH AUSTRALIA · FT; ANTI-SOC from 1906

Senator Sir Frederick Sargood:

Senator O’Connor:

Senator Major Gould:

Senator Sir JOSIAH SYMON:

Senator McGREGOR:SOUTH AUSTRALIA · ALP

Senator Sir JOSIAH SYMON:

Senator Dobson:

Senator Sir JOSIAH SYMON:

Senator O’Connor:

Senator Sir JOSIAH SYMON:

Senator Dobson:

Senator Sir JOSIAH SYMON:

Senator Dobson:

Senate
4 July 1901

Senator HIGGS:
QUEENSLAND

Senator DRAKE:
Postmaster-General · QUEENSLAND · Protectionist

Senator O’CONNOR:
Vice-President of the Executive Council · NEW SOUTH WALES · Protectionist

Senator STEWART:
Queensland

Senator DOBSON:
Tasmania

Senator CLEMONS:
TASMANIA

Senator Lt Col NEILD:
New South Wales.

Senator PULSFORD:
New South Wales

Senator WALKER:
New South Wales

Senator McGREGOR:
South Australia

Senator O’CONNOR:
president of the Executive Council · New South Wales, ‘Vice · Protectionist

Senator PLAYFORD:
SOUTH AUSTRALIA

Senator MILLEN:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913; NAT from 1917

Senator O’CONNOR:
NEW SOUTH WALES · PROT

Senator Sir ‘ JOSIAH SYMON:
South. Australia

Senator Sir JOSIAH SYMON:
SOUTH AUSTRALIA · FT; ANTI-SOC from 1906

Senator McGREGOR:
SOUTH AUSTRALIA · ALP

Senator Sir WILLIAM’ ZEAL:
Victoria

Senator Major GOULD:
New South Wales

Senator Major GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

Senator O’CONNOR:
NEW SOUTH WALES · PROT

Senator Major GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913

Senator O’CONNOR:
NEW SOUTH WALES · PROT

Senator Major GOULD:
NEW SOUTH WALES · FT; ANTI-SOC from 1910; LP from 1913