1st Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
Senator WALKER presented a petition from the Toowoomba Chamber of Commerce, praying the Senate to repeal section 1 6 of the Post and Telegraph Act.
Petition received and read.
Senator STEWART presented two petitions from thirty two electors of Darling Downs and from the Guiding Star Lodge, I.O.G.T.,Rockhampton, Queensland, praying the Senate to prohibit the introduction, sale, and manufacture of intoxicating liquors in- British New Guinea.
Senator HIGGS presented two similar petitions from the Harmony Lodge, I.O.G.T., Walkers ton, and the Somerset Lodge, I.O.G.T., Valley, Queensland.
– I wish to call the attention of the Senate to new Standing Order 38, which states that the President shall within four days from the commencement of the session lay upon the table a warrant appointing seven senators to be a Committee of Disputed Returns and Elections. Of course, it is impossible for me to strictly comply with the standing order, because the new Standing Orders only came into force yesterday; but I propose to do so as far as possible, and therefore I lay upon the table a warrant appointing seven senators to be that committee.
Warrant read by the Clerk, appointing Senators De Largie, Sir John Downer, Glassey, Macfarlane, Sir Josiah Symon, Walker, and Lieut.-Col. Neild to be members of the committee.
– In pursuance of Standing Order 31, which requires the President within four days after the commencement of the session to appoint two senators to act as Deputy Chairmen of Committees, I propose to-morrow to make a nomination. Of course, in this case also it is impossible for me to strictly comply with the standing order, because this is the end of the session, and not the commencement of it.
– Be fore the business of the day is called on I ask the indulgence of the Senate, in accordance with Standing Order 394, to explain a matter which is not only of a personal, but also of a public nature. It will be recollected that on the 16th July last I presented a petition similar in nature and purport to others which had been presented on that day. It was sent to Mr. Edwards, the member for Oxley in the House of Representatives, who was asked to hand it to a senator from Queensland. He endeavoured to find Senator Ferguson, and in his absence he asked me if I would be good enough to present the petition to the Senate. It was from the Brisbane Chamber of Commerce. I was bound, as a matter of duty, to comply with the request. I did present the petition, which prayed for the repeal of section 16 of the Post and Telegraph Act, relating to the exclusion of coloured seamen from steamers under contract to the Commonwealth Government. It will be recollected that I made it distinctly known to you, sir, and the Senate generally, that, while presenting the petition as a matter of duty to my constituents, I totally disagreed with its prayer. On page 2181 of Hansard the mere presentation of the petition is recorded, but, unfortunately, there is no report of my remarks. I deeply regret that fact for a variety of reasons. It has led to very considerable trouble, and has given me considerable annoyance, which might have been avoided if the remarks had been reported. During the many years I have been in Parliament I have purposely refrained from reflecting in any way on the reporting staff ; nor do I wish to make any reflection now. So far as my experience of the reporting staff in the Senate goes, nothing can be complained of, but I cannot understand the omission of my remarks on that occasion.
– A senator does not necessarily assent to the terms of any petition which he presents.
– For many years I have been a member of the branch of the Federated Seamen’s Union in Brisbane, and I am one of its trustees. Many years ago, in the Parliament of Queensland, I took the initiative in an endeavour to induce the Government to exclude coloured seamen from ships hired or under contract to carry the mails of that State. I am glad to say that that policy was adopted some years ago. I need scarcely remind you, sir, and the Senate generally, that when we were debating the Post and Telegraph Bill, I submitted an amendment empowering and enjoining the Postmaster-General, when entering into contracts with steam-ship companies for the carriage of the mails of the Commonwealth, to insert a provision that the steamers should be manned by white men. I think it will be obvious to you, sir, and most honorable senators, that I, at any rate, am not likely to go back on a policy which I have advocated for so many years. Yet the mere omission of my remarks when presenting the petition from the Brisbane Chamber of Commerce praying for the continuance of coloured labour on ships has led to a very considerable amount of trouble. Perhaps I may be allowed briefly to state the facts as they appear in the public prints of my own State. From the Brisbane Observer, of the 22nd August, I shall quote an article which appears under this very startling heading -
SENATOR GLASSEY AND THE SEAMEN.
Duties in Conflict.
The article reads as follows : -
Senator Glassey has just been asked by the secretary of the Federated Seamen’s Union ( Queensland branch) to resign the post of trustee, which he has held for many years. The circumstances are peculiar, and may be said to afford their own most appropriate comment. It appears that the Worker recently published an attack on Mr. Glassey, accusing him of working in the interests of the Colonial Sugar Refining Company to secure a refund of excise, and of Brisbane merchants, who were likewise seeking rebates on articles affected by the Tariff. But the latest, and apparently most heinous, of all his offences is that of having presented a petition to the Senate for the repeal of the provision in the Postal Act prohibiting the employment of coloured labour on the mail boats subsidized by the Commonwealth. We are told that in the face of all that has been done by the Seamen’s Union for years past in fighting against the employment of coloured men on shipboard, “a responsible officer of the Seamen’s Union comes along, and has the amazing front to present a petition to the Senate, praying that honorable House to stick to coloured labour, and put up a notice on our mail boats that No white man need apply. Senator Glassey is a veryobligingpolitician, but whenbecomes before the white men and women of Queensland for their votes, and they ask him what he means by playing the gameof the anti-white party, he may find it none too easy to ‘ oblige ‘ them with an answer that will satisfy.”
The article from which we have quoted was forwarded to Mr. Glassey by Mr. Henderson, secretary of the F.S.U., asking him for an explanation.
I was on my way to Toowoomba, where I proposed to transact some public business, at the time I received this letter. While at Toowoomba I sent the following letter, giving an explanation : -
My dear Sir,
I duly received yours of the 12th inst., with enclosures -
The enclosures were from the newspaper which commented most unfairly upon my action - and I wish to say, in reply, that it is perfectly true that I presented a petition from the Brisbane Chamber of Commerce to the Senate, and such petition sought the repeal of the provision in the Post and Telegraph Act, of which I am the original author, for excluding coloured seamen from all mail steamers under contract to the Commonwealth Government for the carriage of mails. Doubtless you are aware that it is the duty of Members of Parliament to present petitions from their constituents to Parliament, irrespective of the political opinions of the petitioners. But the presentation of any such petition in no way binds the member who presents it to the principle of such petition, nor does it pledge him to support its prayer. When presenting the petition I took the precaution, however, to state to the Senate (although contrary to theStandingOrders), thatI presented the petition as a matter of duty to my constituents, but that I totally disagreed with its prayer. Of course the Worker, which usually suppresses the truth where I am concerned, failed, and wilfully and wickedly failed, to state these facts. This and many other misstatements and suppressions I will deal with in due course. Trusting this explanation will be satisfactory to you and your members,
I am, &c., (Signed) THOS. GLASSEY.
Then the newspaper makes this comment -
Apparently the explanation was not “satisfactory,” because on the 19th inst. Mr. Henderson wrote asking Senator Glassey, as previously stated, to tender his resignation as trustee to this Union.
These are the circumstances, Mr. President.
I regret very much that I am compelled to take this opportunity of putting myself right before my constituents by stating the true facts of the case to them. Before sitting down I desire to ask you, as President of this Senate, whether you recollect the circumstances to which I have referred - as I think you will do - and if you will be good enough to state them? I also desire to ask whether you are in any way responsible for the suppression of the report of my speech in Hansard to which
I have referred. If so, I must say that I deeply regret it. If you are not responsible I should be glad to know why a report of this matter was not forthcoming, and does not find a place in the pages of *Mansard, where it should be. Perhaps I may also be allowed to express my thanks to the Senate for having permitted me to make this personal statement. I trust that the explanation given by you so far as the report is concerned, and also with reference to your recollection of the circumstances to which I have alluded, will be satisfactory.
– Senator Glassey has asked me two questions. I have no hesitation in saying that I distinctly recollect the circumstances to which he has alluded. It is the universal rule in all Parliaments that I have ever heard of that any member is bound to present a petition, no matter what the contents of it may be, so long as it conforms to the Standing Orders. “When Senator Glassey made the statement that he did not agree with the prayer of the petition he was presenting I called him to order, because it is contrary to the Standing Orders to make any statement concerning petitions, except such statements as are specifically laid down in the Standing Orders themselves. So far as the second question is concerned I may say that I know nothing at all about it. I did not know what H Handsard had done with reference to the incident. ‘ I did not read it. I gave no instruction with reference to the matter.
– Then who is responsible?
– I presume that the Mansard staff must have some discretion in carrying out the general instructions which they have received.
– Besides, you ruled that the statement was out of order.
– I presume that Mansard did not report the incident because I ruled that it was out of order. I presume that nearly every body concerned understands what the rule regarding the presentation of petitions is, and there was no necessity whatever tq report the remarks of Senator Glassey. Every one understood that he was merely presenting a petition, and did not necessarily agree with its prayer.
-But your ruling should have been reported.
– The rule is so universally understood, that I should have thought it hardly necessary.
Resolved (on motion by Senator Drake) -
That the Senate approves of the proposed distribution of the State of South Australia into seven divisions, named Adelaide, Hindmarsh, Angas, Barker, Wakefield, Boothby, and Grey, as shown on the maps laid upon the table of the Senate on the 8th July last.
– I move -
That the Senate approves of the proposed distribution of the State of Tasmania into five divisions, named Darwin, Denison, Northcote, Franklin, and Wilmot, as shown on the map laid upon the table of the Senate on the 25th August, 1903. .
The map referred to in the motion, together with the report of the Commissioner, was laid upon the table of the Senate in accordance with section 20 of the Electoral Act. That section is as follows : -
The report and map shall be laid before both Houses or Parliament within seven days after its receipt if the Parliament is in session, and if not, then within seven days after the commencement of the next session.
That has been carried out. The next section provides -
If .both Houses of Parliament pass a resolution approving of any proposed distribution, the Governor-General may by proclamation declare the names and boundaries of the divisions, and such divisions shall, until altered, be the electoral divisions for the State in which they are situated.
We are acting in accordance with the pro- visions of the Act in those respects. I need hardly say that I am not in a position to speak as to the merits of the divisions foi: the State of Tasmania, but I have no doubt that the representatives of Tasmania in the Senate will be able to express an opinion upon the subject, if one is needed. Therefore, I content myself with moving the resolution.
– I do not think that any senator from Tasmania, or any other honorable senator, could find, fault with regard .to the merits of the divisions, but I should not like to see the motion passed in the form in which it has been moved. My only objection is as to the nomenclature. One of the proposed electoral divisions has been named Northcote. When the Tasmanian Commissioner sent in his report, he named that particular electorate Flinders. But when the subject came up for consideration in another place, it was pointed out that there was already an electorate named Flinders in the State of Victoria ; and as a compliment to the new GovernorGeneral, Lord Northcote, it was resolved to give his name to the electoral division in question. But with all due ‘ respect to that gentleman, we know, at present, very little about his attainments for fulfilling the duties of Governor-General of Australia, and I think that it would be much more appropriate if the substituted name were more in conformity with the objects kept in view by the originator of the scheme of subdivision, who named the electorate Flinders.. I therefore intend to propose that the word “ Northcote” be omitted, with a view to substituting the word “ Bass.” Obviously the intention was to perpetuate the memory of some of the early navigators who were responsible for the discovery of certain coastal portions of Australasia. The fact that Tasmania is separated from the mainland was first discovered by Bass. . It was Dr. Bass who first sailed through Bass Straits in an open boat. He was the first navigator who sailed along the Ninety-Mile Beach, and right up as far as Corner Inlet in Victoria. He, in conjunction with Flinders, ‘afterwards charted practically the whole of the north coast of Tasmania. He was responsible for a good deal of the early geographical investigation of the coast of Australia. Under the circumstances, I think we should much more appropriately name this electorate Bass than Northcote, It is also a singular circumstance that the electorate in question is almost exactly opposite to Flinders on this side of the Straits. I am aware, of course, that the word Bass has another signification which will occur at once to the minds of honorable senators. But we do well, I think, to pay some tribute of respect to the early navigators to whom we owe so much. It is all very well to pay a tribute of respect to our coming GovernorGeneral. But it has to be remembered that he has yet his career to run in Australia’. It is possible that he may not give that satisfaction that we should like all our Go:vernorsGeneral to give. If that should be the case it may be said hereafter that it was an unfortunate thing that an electorate should have been named after a man at a time when he was not known, and when his attainments for his particular work were not apparent.
– Look at the names of the South Australian electorates.
– Evidently the South Australian electorates have been named after men whose attainments and work are unquestionable.
– One electorate is named after a queen - Queen Adelaide.
– In naming this constituency after Bass we are evidently naming it after some one, the standard of whose work is permanently fixed. Nothing can be done by Bass hereafter that will in any way detract from the work which we know that he did, or which will cause us to regret having endeavoured to perpetuate his memory. Honorable senators might well take it for granted that if the name of Bass be inserted in the place of Northcote there’ will be very little difficulty in another place. The name of Northcote was inserted there very hurriedly. It had not been contemplated that there would be any difficulty about the adoption of the name of Flinders, and it was only in the course of the debate that it was pointed out that there was already an electorate named Flinders in Victoria. In consequence of that the word Northcote was substituted, but there should be no difficulty in inducing the House of Representatives to substitute the name of Bass. I move -
That the word “Northcote” be left out, with a view to insert in lieu thereof the word “ Bas?.”
– I have much pleasure in supporting the amendment. It gives me an opportunity to say something about the claims which the pioneers of Australia have to our remembrance and recognition. Certain very eloquent people have told us that all we have in Australia is due to certain fixed battles which were fought in the sixteenth or seventeenth century; but Bass was one. of the early explorers’, the results of whose work are shown to-day. If at any time Lord Northcote proves to Australia that he is deserving of their recognition, wemay find some other opportunity to perpetuate his name. It is probable that some of the islands near New Guinea may yet be named after Lord Northcote, and other distinguished visitors. I would personally prefer the name of Dobson to that of Northcote in this instance, but George Bass has, I think, the first claim. He was, as honorable senators may recollect, a medical practitioner who> came out to Australia on board the Reliance when Governor Hunter arrived. He explored Botany Bay and the Illawarra district of New South Wales, at a time when it required some courage and endurance to explore such places.’ Afterwards, as Senator Keating has pointed out, he sailed through the passage that is now known as Bass’ Straits in a whaleboat with half-a-dozen men, and the year following explored the island of Tasmania and investigated all its harbors. His work is entitled to the small recognition which we are able to give it by calling an electoral division after his name.
Senator PLAYFORD (South Australia. - I desire to say, in explanation of the interjection I- made when Senator Keating was speaking, that I think that in ordinary circumstances where the House of Representatives, which is more interested in these divisions than is the Senate, sends us a request to pass a certain resolution, I should be inclined to defer to their wishes. In this case, however, I believe that the amendment proposed would be a great improvement, and if the circumstances are as Senator Keating has stated, and the alteration of the name “ Flinders” to that of “Northcote” was made hurriedly in the House of Representatives, it is possible that upon further consideration honorable members in that House will be found willing to substitute the name “ Bass” for the name “Northcote.” Bass has certainly greater claims to have his name perpetuated in the way proposed than has Lord Northcote.
– In expressing my approval of the substitution of the name of Bass for that of Northcote, I point out that the resolution refers to the divisions contained in the report laid upon the table and shown upon the map ; but honorable senators will find that the name “Northcote” does not appear upon the map.
– Flinders is the name on the map.
– And also in the Commissioner’s report.
– That is so, and it is for that reason I suggest that it may be necessary to alter the form of the motion.
– I understand there is a very general feeling on the part of honorable senators in favour of making the alteration -proposed in the name of one of these divisions. It at first appeared to me that it would be desirable to make the alteration suggested by means of an addition to the motion recommending to the House of Representatives that one name should be substituted for the other. But I ‘find that the name “Northcote” is not on the map, nor in the report of the Commissioner. As a matter of fact the name in the report and on the map is “ Flinders,” so that the other House passed a motion approving of divisions bearing names, one of which does not correspond with the name used in either the report or “the map. We shall be doing the same thing here in substituting the name of “Bass” for that of “Northcote,” but I presume this will be considered a substantial compliance with the Electoral Act. I make no objection to the amendment.
Amendment agreed to.
Question, as amended, resolved in the affirmative.
In Committee (Consideration resumed from 2nd September, vide page 4497) :
Clause 35 -
Persons voluntarily enlisting as members of the active forces shall engage to serve for a prescribed period of not less than three years.
– I move -
That the word “ active,” line 2, be left out, with a view to insert in heu thereof the words “ permanent and militia. “
Owing to the intense compression represented in the draftsmanship of this Bill, totally dissimilar matters are grouped together under one heading in a manner for which there is no precedent. We have here a proposal to deal in respect of recruiting, and in respect of military service, in exactly the same way with the professional soldier, the militiaman, and the volunteer. Under the British law the terms of service of these three very different classes of men are wholly distinct. Under the Bill it is proposed that the period of service shall not be less than three years, and may be any longer term. , It will be admitted that five ‘ years is a fair term of service for a professional soldier. He requires a couple of years in which to learn his business, as do Members of Parliament, though some of them do not learn the business in two years. But, while five years may be considered a proper term of service for the professional soldier, and also for the partially-paid man - the man who gets 2s. an hour for his drill - it is altogether opposed to the volunteer system, which is peculiarly a British institution. According to another clause of the Bill all the existing members of the force are to be deemed members of the force unless they give notice and leave ; otherwise they will come under the operation of the regulations which may be issued under the clause. A man who innocently remains in the force may, under this clause, find himself compelled to serve for many years. According to clause 39 a man, though he receives no payment - not even towards his expenses out of pocket - may be compelled to remain in the force, although his health, or the necessity for his earning a living, or any of the casualties of a man’s life, may call upon him to retire. Though such a man has never received a shilling in payment, he may be subject to a fine of £2, because he is compelled to resign ; and it is too much to ask the unpaid man toassume a responsibility which has no limit except that which may be eventually provided by regulations under this clause. There ought to be a distinction between the paid and unpaid man, and the term of service in the case of a volunteer ought to be to some extent reduced. I am in entire agreement with the Minister and the f ramers of the Bill in the belief that a fixed term is desirable, though I admit that a fixed term is contrary to English law. I have here the British Volunteer Act, under which there is no obligation to serve for any fixed term, but the volunteer can, on giving fourteen days’ notice, leave without incurring a liability of any kind.
– I think a volunteer who. leaves has to make up the capitation grant if that has not been earned.
-Col. NEILD. - The honorable senator is under a misapprehension. I have served for years under the New South Wales Volunteer Act which, in this particular, is a copy of the British Act. Section 7 of the Volunteer Act, which has been in operation since 1863, provides -
Any volunteer may, except when on actual military service, quit his corps on complying with the following conditions, namely : -
That refers simply to subscriptions. The section goes on - - either before or at the time or by reason of his quitting it ; and thereupon he shall be struck out of the muster roll of the corps by the commanding officer.
I suppose that means that the name shall be struck out by the Commanding Officer. The section goes on to provide that if the Commanding Officer does not strike the name off, the volunteer may apply to a Court of summary jurisdiction for an order to compel the officer to take that step.
– What can the words “ by reason of his quitting “ refer to, except the capitation grant?
-Col. NEILD. - The honorable senator is a great authority on naval matters, but, perhaps, as to the small matters of the kind now under discussion, I may be permitted to know what the practice is.
– What becomes due by reason of the man quitting the service?
.- I have here the New South Wales Act, which follows the exact wording of the section of the British Volunteer Act, which I have read.
– Does that refer to a time after a volunteer has served for a certain period ?
.- No, the volunteer may leave at any time. There are no rules by which a member of a volunteer force can be made responsible for the payment of any part of the capitation grant, because, under the law, the capitation is not the property of any individual but the property of the corps. The words referring to the payment of moneys due simply relate to any subscriptions which the volunteer may have undertaken to pay in connexion with rifle clubs, sergeants mess, or any of the many organizations to be found in the military service. There are a number of expenses which are not provided for by law and for which the Government do not provide the money. It is unfair to ask a man who receives no pay to undertake three years’ certain service, with the possibility of a much longer period being demanded from him under regulation.
– What is it that the honorable senator wants?
– I desire that the clause shall be made applicable to the permanent and militia forces but not to the volunteers, because in the case of the latter I think that a period of twelve months ought to be sufficient.
– What is the honorable senator’s objection to the word “prescribed?”
– I am not objecting to the word “prescribed.”
– According to the amendments of which the honorable senator has given notice, he does object to the word “prescribed.”
– What I say is, that it is quite right that there should be some fixed term of service, or, otherwise, a man might join a volunteer regiment, and then, because of the counter attractions of cricket or football, resign and leave his comparatively useless uniform behind him. . No doubt a uniform might, under such circumstances, be cleaned and pressed for another volunteer who might not know that it had been worn ; but I have no doubt that a man would object to wear those second-hand clothes, and in that I should not blame him. My proposal is that the term of service for volunteers shall be one year.
– Two years is the term which the honorable senator mentions in his notice of amendment.
– I see that is quite right. I may be permitted to point out that since the proposed amendments were printed I have not had time to look at them. I gave notice of the amendments yesterday, and they were printed hurriedly, so that if I make a slip I hope I may be excused.
– If I understand the honorable senator right, he desires that there shall be a shorter term of service in the case of the volunteers, and I have no objection to making the term two years.
Amendment agreed to.
Amendment (by Senator Lt.-Col. Neild) proposed -
That the following words be added : - And as members of the volunteer forces and reserves for a pi-escribed period of not less than two 3’ears.”
– There must be a prescribed period.
– According to clause 31 the reserve forces consist cif members of rifle clubs and persons who, having served in. the active forces or otherwise, are enrolled as members of the reserve forces. I think it -is advisable that if those who have retired from the active forces are willing to join the reserves for four, five, or six years, their services should be accepted.
– That is quite right.
– There will be practically no obligation’ laid on these men as to the number of drills they will have to attend ; but still, as a large expense will have been incurred in training them, it ought to be possible for the Government to avail themselves of their services ; and as we know that in the reserve forces no drills are laid down, men will not have any objection to signing for a longer time. I hope that the Minister will not accept the alteration.
Senator. Lt.-Col. NEILD (New South Wales). - I intend to go back upon myself with regard to the period of two years. It has just occurred to me that it is all very well for us, sitting on comfortable cushions, to provide for a term of service, but can we get the men to accept it ?
– Oh, yes.
– My honorable and learned friend does not know. He has not done as much recruiting as I have done. I have recruited over 2,000 men, and I know the difficulties to be encountered in getting good men and keeping them. I do not wish by fixing the period at two years to create a new difficulty. I accepted the insertion of the word “prescribed “ in my amendment, which would give the Government the right, by regulation, to fix as long a period as they pleased. But I think that two years would be too long as an absolute minimum. Any honorable senator must . know- the difficulty of getting men to bind themselves to voluntary service with, no remuneration for a definite period of two years. I do not desire the Minister to have to come down next session with an amending Bill. It will be far better to fix the period by regulation, because the term could be altered from time to time as the necessity might arise. Suppose that the period were fixed by regulation at two years, and that men could not be got to join, the Government would only need to issue another regulation to reduce the period of service to one year. If, however, the Bill were passed in its present form, the period could not be altered without fresh legislation. I move -
That the amendment be amended by leaving out the words “ two years,” with a view to insert in lieu thereof the words “one year.”
– I intend to support the amendment of Senator Neild, because I believe that it would induce more men ‘ to join the reserves. I know that not a few volunteers come out from Great Britain to Australia on business engagements for two or. three years, sometimes for a shorter period. Naturally they would like to join our forces. Why should we not have an opportunity of engaging their services? They might not be disposed to offer their services if they had to join for two years certain, although they might be very glad to join for one 3Tear. A shorter term would give the opportunity of getting the service of men who had had experience elsewhere.
– I wish that Senator Neild knew his own mind. It appears to me that we are splitting hairs. Although I am not a professional soldier like Senator Neild, still I think- that a year’s service would not be of any use. I contend that the minimum should be fixed at two years. The Defence Force would be far better off without recruits who were willing to serve for one year only, because we should be put to the expense of providing them with arms and uniforms. If men are not prepared to serve for two years their services should not be accepted.
– I intend to support the amend ment of Senator Neild, who has a practical acquaintance with the Defence Force which other senators do not possess.
– Senator Drake was a captain for some time.
– The Minister is anxious to get his Bill passed, as it came from the other House. We have to remember this great central fact : that we must hold out inducements to our young nien to join our volunteer force. We have a roving population. A man may be in Victoria to-da,y, and perhaps in Queensland or New South Wales or Western Australia next week. In these circumstances, how can we bind a man down to a period of two years ? Unlike Senator Barrett, I hold that a great deal could be done with a man in a year. If hard-and-fast lines were imposed, the result would be to keep our young men out of the volunteer force. Every encouragement ought to be given to young men to join. Six months’ drill would be an advantage to any man. Suppose that a man got six months’ drill in one State, and went to another State ; he could join the force there. The more easy we make the conditions, the better it will be for the service.
Senator PEARCE (Western Australia). - I cannot see my way clear to support the amendment of Senator Neild. In my opinion, a short term would have the effect of breaking up the esprit de corps. It is the length of time which men serve together which creates that spirit. If men were to join a corps for afew months, and then give up their arms it must tend to its disintegration. What is the worst thing that could happen ? If a man found that his business required him to go to another part of the Commonwealth he would give in his three months’ notice and resign on paying for his uniform. The object of this portion of the Bill is to provide for a trained force. If we are to have ft trained force let it be one which will be worthy of the name ; do not let us be playing at soldiers. If it is thought by honorable senators that a man should only be required to be able to shoot, let us do away with the militia and volunteers, and merely have rifle clubs. But if we are to have a militia, let us see that the men are to undergo some training. Considering that only a portion of the time of these men would be given up to training, two years would be little enough for them to serve. I hope that the Committee will not make the minimum less than two years. It must be remembered that the provision also applies to rifle clubs. Although I have always been friendly to rifle clubs, still I have recognised the danger of making them pot-hunting clubs. The spirit which ought to animate men when they join rifle clubs is to make themselves efficient shots for the defence of the country. We should have a chance of securing efficient shots if the period of service were made reasonably long. The clause is very liberal as it is, and we shall err -on the side of over-generosity if . the period is reduced to less than two years.
– I think that in this matter we ought to be guided by the opinion of those who have had great experience. Senator Neild has had some experience of recruiting.
– Does the honorable senator think that nobody in the Department has had experience 1
– Senator Neild has had a great deal of experience in the
Commonwealth, and we are now dealing with the volunteer force. I do not know that the General Officer Commanding has had very much experience to guide us to a wise conclusion. What we are anxious to obtain is a volunteer force. If the term were made too long we should be deprived of the services of a great many persons. If men were allowed to join for a year they might form a liking for the work, and at the end of the term re-enlist. If they do not they will have learnt something.
– And they will have spoilt some uniforms.
– Then the Department will have the right to come upon them for £2 at least. We ought to allow these men to belong to the forces for twelve months, and then if they desire to continue they can do so. The majority of men who have the soldier’s instinct in them will continue for a longer term. I am quite in sympathy with Senator Neild’s amendment, and it will be in the interests of the forces if it is carried.
Senator Lt.-Col. NEILD (New South Wales). - Let me impress upon those honorable senators who are opposing my amendment that I am not asking for a fixed period. I am asking for twelve months, not as a maximum but as a minimum, and it will be open to the Government to make the term as much longer as they please under the regulations. Senator Drake refutes his own arguments. He wants to have power to make the term as long as possible. I concede that. Now I desire to fix a minimum of twelve months. In the British volunteer service a man can clear out at any time by giving fourteen days’ notice. They do leave when necessity arises. And how is it that we have men in the ranks who are wearing the medal that represents twenty years’ service? It is one of the heart-breaks of an old volunteer to have to leave his service through old age. I know of a company that was formed in a Sydney regiment not so long ago, in which every one of the sergeants carries upon his breast two or more medals. One man wears no less than eight medals. This is in my regiment, and I am proud of such a man.
– He is not a one-year man.
– But he has the right to go at the end of a fortnight. He is an old Imperial soldier, and is proud to wear the uniform even in a volunteer regiment. The men who are worth keeping will remain as long as they possibly can ; but men have bread to earn for themselves and their families. To place a disability upon an unpaid man by saying “ You cannot join except for not less than two years” is a hardship. This is a proposal that is absolutely against public policy, because we want to get men to join and we shall not get them if we adopt such a provision.
– We are always able to get them.
– My honorable and learned friend knows that we have been able to get them without any limitation of service beyond the fourteen days’ notice. Why does the honorable and learned senator put forward the proposal that there is any connexion between fourteen days’ notice, the minimum of two years, and a maximum of anything that may be prescribed under the regulations?
Question - That the words “ two years “ proposed to be left out be left out - put. The Committee divided.
Question so resolved in the negative.
Amendment of the amendment negatived.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 36 to 38 agreed to.
Every soldier or sailor of the Active Forces (other than the Permanent Forces) may, except in time of war, claim his discharge before the expiration of the period of service for which he engaged on the following conditions : -
– I wish to ascertain whether a member of the reserve forces can resign before the term for which he has agreed to serve has expired ? According to my reading of this clause he cannot.
– This clause does not deal with the reserves at all.
– What clause allows a member of the reserve or of a rifle club to resign ? Under clause 31 the reserve forces consist of members of rifle clubs and former members of the active forces who have enrolled as members of the reserve forces. Therefore, this clause only refers to the militia and the permanent forces. There should be some power to enable a member of the reserve forces to resign.
– The point mentioned by Senator Pearce arises from the alteration made in clause 35. The Bill proposes that only members of the active forces - that is, the militia and the volunteers - shall be enlisted for a term. But by Senator Neild’s amendment, which I accepted, we have declared that the reserve forces also shall have to enlist for a certain time. It was intended originally thatthey should not enlist for any period, and could consequently retire when they liked. But now it will be necessary to make provision for them to retire if they desire to do so. I will have a clause drafted for the purpose.
– I desire to reduce the payment to be made by the volunteers to £1, as compared with the £2 paid by members of the paid forces. Surely some distinction should be made as to payments between men who receive pay, however little it may be, and men who serve all the year round without any recompense whatever. It is too heavy a demand on the unpaid men to call upon them to pay £2 ; and in the case of volunteers I propose that the charge shall be £1. I move -
That paragraph 6 be left out, with a view to insert in lieu thereof the following paragraph : “(b) Heshall, if a member of the militia forces, pay such sum not exceeding Two pounds, and if a member of the Volunteer Forces pay such a sum not exceeding One pound, as may be prescribed, but such payments may, for special reasons, be waived by the General Officer Commanding, upon the recommendation of the Officer Commanding the corps or ship’s company from which the member seeks to be discharged.”
The stress of life may often find a man in very poor circumstances, and it not infrequently happens that some of the best men we could have in a regiment are by reason of poverty, following upon sickness, compelled to resign. I think that the General Officer Commanding, on the recommendation of the immediate commander of the regiment, ought to have power to waive the fine altogether in extreme cases, such as I suggest, though I agree that it should be imposed where the resignation is merely a whim.
– I will accept the amendment.
– I think that a prior amendment may be necessary to meet the objection raised by Senator Pearce, and a very simple amendment would be sufficient. If the word “ defence “ were substituted for the word “active,” that would be all that would be necessary.
– I am afraid that would but complicate the amendment proposed by Senator Neild, which I am disposed to accept. I do not know that the amendment will improve the clause, because I do not see why the penalty in the case of a member of the volunteer force should be any less than in the case of a member of the militia force, seeing that the cost of uniforms would probably be about the same. It is perhaps reasonable that in the case covered by the clause, the volunteer should pay something representing the unexhausted value of his uniform.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 40 -
Any person who obtains his discharge from the active forces may be enrolled as a member of the Reserve Forces upon taking before an officer or a Justice of the Peace the oath set forth in the second schedule.
– This clause has been rendered useless because the second schedule referred to in the clause gives a form of oath for reserve men which would not bind them to serve for any particular term, whilst an amendment has been agreed to fixing a particular term for reserve men, and the reference should now be to the third schedule.
– No ; the second schedule contains the oath of allegiance.
– Certainly it does, but there is no term of service mentioned in the schedule, and the reserve man must take the oath of allegiance for a term, as set out in the third schedule.
– I shall look into the matter.
Clause agreed to.
Clause 41 -
Members of the Permanent Forces shall be exempt from serving as jurors.
– I move -
That the word “ permanent” be left out with a view to insert in lieu thereof the word “active.”
I think it is an almost universal rule throughout the States that a member of any of the military forces in possession of a certificate of exemption, showing that he has given close attention to military duties, shall be exempt from jury service. It has been the law in New South Wales ever since we have had a citizen force. Under this Bill it is proposed to limit the exemption from jury service to members of the permanent forces. I am not aware that the existing practice has caused any inconvenience, and the exemption allowed is looked upon as a small concession. A man who is serving his country in one capacity may be considered entitled to some little relief from a citizen’s duties in another.
– I do not agree with Senator Neild in this matter. Themembers of the militia and volunteer forces generally may be looked upon peculiarly as citizens, and they should be called upon to discharge the duties and obligations of citizens. Their time is not greatly occupied in the performance of military duties ; and, in the case of volunteers, their drills are ordinarily held in the evenings, and sometimes on the Saturday afternoon. I do not think that service upon a jury should be looked upon as a sort of punishment, and a duty from which one should desire to be relieved, but rather as a duty that a citizen should be proud to perform. I do not see why a man should be exempt from the duty of serving upon a jury simply because he has undertaken to enrol himself on the volunteer force for the defence of his country.
Senator Lt.-Col. NEILD (New South Wales). - I appeal to Senator Downer in this matter. There are provisions in this Bill under which members of the forces are liable to serve in the work of putting down riots, or any internal disorder, and I submit that it is contrary to all public policy, and to the due administration of law and justice, that men should occupy the dual position of peace officer and member of a jury. I do not for a moment suppose that a man engaged in such service as I refer to would be accepted as a juror in a case arising out of that service. He would no doubt be challenged at once, but the next man in the same corps might, under this clause, be called upon to serve on a jury in a case in which his own regiment was concerned. Do policemen serve on juries? I think not. Men who may be engaged as peace officers are not the men who should be selected to serve upon juries.
– I am certain that many members of the militia forces will not thank the honorable senator for his action in this matter. They do not object to serve upon juries, and, indeed, the notice to a man who has been some time out of work that he is required to serve upon a jury is usually a very welcome notice. These men are citizens in every sense of the term, and they only devote occasional evenings and Saturday afternoons to their military duties, whilst it is very seldom that a jury is called upon to sit on a Saturday afternoon. There is no analogy between militia and volunteers and the police force, because the police force is a permanent force.
Senator Lt.-Col. NEILD (New South Wales). - As these unusual views are being expressed, it is necessary that I should carry the argument a little further, even if it be only in self-defence. What I am asking for has been the law in New South Wales for forty years. I find this provision referred to in the Manual of Military Law : -
Every officer, non-commissioned officer, and volunteer, after having served as an efficient volunteer for the period of two years, and every officer and non-commissioned officer of the permanent staff of the volunteer force, shall hereafter be exempt from serving as a juror so long us he continues to be in the volunteer force.
Then follows a provision under which a certificate is granted. That is the British law and the law in New South Wales. When Senator Pearce tells me that the volunteers will not thank me for trying to secure their exemption from jury service, I can only say that that is the most adcaptandum vulgus tomfoolery that ever was uttered. I desire in this matter merely to bring the law of the Commonwealth into line with the law : in England, the law which has hitherto been in force in New South Wales.
Clause agreed to.
Clause 42 -
The Governor-General may at any time, by order published in the Gazette, disband any corps or portion of a corps, and may at any time dispense with the services of any soldier, officer, or sailor.
– I suggest that the word “ thereof “ should be added to the clause.
– I had thought of submitting an amendment to insert the words “ subject to the provisions of the Act,” after the word “ may,” with the object of carrying out the provision which was agreed to yesterday, that an officer should not be discharged without notice. My opinion is, however, that such an amendment, together with the amendment suggested by Senator Walker, is unnecessary. ‘
Clause agreed to.
Clause 43 -
The permanent forces and all persons continuously employed in the Active Forces on regular pay and duty, shall at all times be liable to be employed on active service, and in the defence and protection of the Commonwealth and of the several States.
– There is a redundancy here in the words - “ and all persons continuously employed in the active forces on regular pay and duty.” Section 30 provides -
No permanent military forces shall be raised maintained or organized except for administrative and instructional staffs, including army service, medical, and ordinance staffs, garrison artillery, fortress engineers, and submarine mining engineers.
That was a new clause introduced in another place ; and, if it is a complete category of the permanent military forces, there is no necessity for the words in clause 43 to which I have called attention.
– The words referred to by Senator Matheson are intended to deal only with exceptional cases, such as that of an adjutant who is employed in some branch of. the service which is not included in the permanent forces. For instance, the permanent forces do not comprise any field artillery, but there may be a paid adjutant connected with that branch of the service. Such a man is in the pay of the Government, and devoting the whole of his time to his duties, is practically a professional soldier, although he is technically not a member of the permanent forces. The principle is that all persons who are continuously employed - who are professional soldiers - shall be required to go on active service at any time.
– I cannot understand the explanation of the Minister. There are no persons in continuous employment and on regular pay in the service who are not members of the permanent forces. There are ordinary officers of the citizen forces, who, as adjutants, receive the splendid pay of 5s. per day, out of which they have to provide their own horses ; and the Minister appears to take the clause to mean that these men, who are got “ on the cheap,” are liable for active service anywhere.
– The officers referred to by Senator Neild are not continuously employed with regular pay and duty.
.- The words “ regular pay and duty “ have not yet been defined.
– We all know that the words mean a man who is paid for the whole of his time, and does not take military employment merely for the purpose of ekeing out his ordinary income. What is contemplated is a man who gives his whole time to soldiering, and is, therefore, a professional soldier.
.- Do I understand the Minister to give an assurance that the words “ regular pay and duty “ do not apply to men who give their services daily for the pittance I have mentioned ?
– The words apply only to men employed as professional soldiers.
.- Then I say distinctly and absolutely that, according to the Minister’s own definition, there are no such persons in the permanent service, and the words ought to be omitted from the clause.
Senator MATHESON (Western Australia). - I move -
That the words “and all persons continuously employed in the Active Forces on regular pay and duty “ be left out.
We already have a careful definition of “ permanent forces “ ; and we ought to take steps to prevent the Government attempting to include any other than permanent troops within the operation of this clause.
– I have just been seeking information, and I am told that there are men employed as instructors who are not members of the permanent force, but are paid for the whole of their time for performing the duties of soldiers. There may not be many of these men, but there are some, and they ought to be liable for active service.
– They must be permanent men if they are paid for the whole of their time.
– But they are not members of the permanent forces within the meaning of the Act. It is only right, however, that they should be placed on the same footing as the permanent forces.
Senator Lt.-Col. NEILD (New South Wales). - The Minister has told us that there are men illegally employed in the service, and that it is intended to continue their employment. We have passed a clause which provides that the forces shall be divided into permanent forces, militia, volunteers, and reserves. According to the Minister the clause is a means of embracing persons who do not come within any of these four classes ; and this appears to be a deliberate attempt to have a paid class of soldiers beyond the knowledge of Parliament. Senator Matheson is quite right in moving the omission of words which are absolutely dangerous and in direct opposite clause 30. Clearly these men cannot legally remain in the service if this Bill becomes law, and I object to a fifth branch - an unknown quantity. If they are not members of the permanent forces, what are they 1
Senator MATHESON (Western Australia). - I do not think that Senator Neild is quite correct in saying that these words have been intentionally inserted in the clause.
-Col. Neild. - I did not use the word “ intentionally.”
– The honorable senator used the word “ deliberately.” As a matter of fact, however, the words are an inheritance from a previous Defence Bill as introduced in another place; and they were quite in order in that measure, because they imposed a restriction on the permanent forces. There can be no doubt that the necessity for striking out these words was overlooked in another place. If this clause be left in the Bill, it will be possible for the Government to provide, in a part of the Estimates where the items would not be noticed, for a payment to men who are really members of the permanent forces, and the cost of the latter will appear smaller than it actually is. For” that reason I strongly urge the Committee to adopt the amendment, which will oblige the Government to provide for the whole of the permanent forces in one part of the Estimates, and enable us to see exactly what the expenditure is.
– The men spoken of by the Minister must belong to the permanent forces, the militia, the volunteers, or the reserves. If they do not come within the definition of any of these branches of the service there will be a danger, as Senator Matheson has pointed out, of the Government spending more money in this direction than can be readily traced on the Estimates.
– I do not know that there are many men in the position which I have indicated, but the case which occurs to me is that of an adjutant attached to a militia regiment or to the field artillery. Such a man belongs to a regiment and is paid for the whole of his time; but he cannot be classed as a member of the permanent forces.
– How many such men are there ?
– I do not know ; but I know of one instance in the State of Queensland where a young fellow who belonged to a militia regiment was appointed adjutant and paid a yearly salary for the whole of his time.
– But there is clause-‘ 30, to which I have referred. Senator DRAKE. - Still, there may besuch men at present, although I do not know that they will be found under the reorganization scheme. It is quite possible that there may be isolated cases in which men have been appointed as adjutants under the circumstances I have described ; and I certainly think that they ought to be liable tobe called on for active service.
– What is he?
– He belongs to a. militia organization.
Senator Lt.-Col. NEILD (New South Wales). - According to the explanation of Senator Drake, these mysterious personswho are supposed to exist somewhere can- not be militiamen, because clause 31 says. that militiamen are persons who are not bound to continuous military or naval service. Senator Drake tells us that he is referring to persons who are employed by the year. That is continuous military service. A man cannot be a militiaman if he is employed permanently all the year round.
– But he belongs to a militia organization.
.- That does not make him a militiaman. Surely my honorable and learned friend knows that when members of the permanent forces are attached as instructors and adjutants to different regiments, they do not become volunteers or militiamen?
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority… … … 2
Question so resolved in the affimative.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 44 to 48 agreed to.
Clause 49 -
Where the Governor of a State has proclaimed that domestic violence exists therein, the Governor-General, upon the application of the Executive Government of the State, may, by proclamation, declare that domestic violence exists in that State,and may call out the Permanent Forces, and in the event of their numbers being insufficient may also call out such of the Militia and Volunteer Forces as may be necessary for the protection of that State, and the services of the Forces so called out may be utilized accordingly for the protection ofthat State against domestic violence.
– I desire to raise a question as to whether the clause is in exact conformity with section119 of the Constitution Act, which reads -
The Commonwealth shall protect every State against invasion, and, on the application of the Executive Government of the State, against domestic violence.
The Constitution gives to a State the right to the protection of the Defence Force of the Commonwealth whenever it is applied for by the Government of the State on the ground that domestic violence exists therein. I am inclined to think that clause 49 ought to read in this way -
Whenever the Governor of a State has, by proclamation, declared that domestic violence exists therein, the Governor-General shall call out the permanent forces.
The clause says that the Governor-General may call out the permanent forces ; but section119 of the Constitution Act says that the Governor- General shall protect the State against domestic violence.
– The Commonwealth, not the Governor-General.
– Surely that means the Executive Government. Apparently in this clause we are not giving’ to the States the exact protection which is conferred upon them by section 119 of the Constitution Act. If it were altered as I suggested, it would throw upon the Governor of. a State the onus of saying whether domestic violence existed therein or not. The clause requires the Governor of the State to declare that domestic violence exists therein. And then it says that the GovernorGeneral may proclaim the same fact - as to which he knows nothing - and call out the permanent forces. I think that the Governor of the State should be charged with the responsibility of proclaiming that domestic violence exists therein, and then on an application from the Executive Government of the State, I take it that the Commonwealth would be bound to call out the forces and protect the State.
– Except that the word “ may “ is used in place of the word “ shall,” I think that we have kept very closely indeed to the terms of the provision in the Constitution Act. As Senator Dobson knows, the word “ may “ is always used in reference to the Governor-General, and has the force of “ shall.” It is a courtesy term. Section11 9 of the Constitution Act declares that the Commonwealth shall, in certain circumstances, protect every State. This clause - in a Bill to control our Defence
Force - gives the necessary power to the Governor-General to carry out that provision. If the Governor of a State should declare that domestic violence exists therein, the Governor-General may make a proclamation to that effect, and then call out the permanent force. I think the clause is all right.
– I wish to call the attention of Senator Drake to this clause in connexion with clause 30. When the Bill was introduced it was intended that there should be an effective permanent force, capable of being used for effective warfare - if I may use that term. The Bill, however, was subjected to amendments, and we now find that the permanent forces are to consist only of administrative and instructional staffs.
– And what else ?
– Clause 30 reads -
No permanent military forces shall be raised, maintained, or organized except for administrative and instructional staffs, including army service, medical and ordinance staffs, garrison artillery, fortress engineers, and submarine mining engineers.
If Senator Drake will take the trouble to study Hansard he will find that there was a distinct stipulation that only such members should be employed as were necessary for instructional purposes. In clause 49, however, we find a provision that in case domestic violence exists in a State, the Governor-General is to call out the administrative and instructional staffs for the purpose of reducing the outbreak, and only in the event of their numbers being insufficient can he call out the militia and volunteers. I submit that the clause was perfectly practicable as drafted, but that it is absolutely ridiculous in its present form. I do not suggest an amendment, because I do not feel called upon to draft amendments for this Government. The clause is reminiscent of passages which one may find in an opera of Gilbert and Sullivan.
– I am inclined to support the suggestion made by Senator Dobson. Let us cast our minds back to the time of the railway disturbance in this State. We all remember how special constables were sworn in, and committees formed by University students and others, when, in the opinion of most persons, there was no reason for taking that course. I reckon that if we had had a force available to be brought out to put down’ the men who were exciting the people to commit deeds of violence, some good might have been done, and I dare say that was the opinion of Senator Dobson when he made the suggestion.
– Does the honorable senator mean that they should have put down the Irvine Government?
– Certainly, because, in my opinion, they were at the bottom of the whole affair. The Lord Mayor and Professors from the University wei;e swearing in special constables, and vigilance committees were being formed; I dare say that the people were in great danger of domestic violence at that time. A clause framed in accordance with Senator Dobson’s suggestion would have come in very useful at that time. If the honorable senator will embody his suggestion in an amendment I shall support bini.
– I assume that under section 119 of the Constitution Act, the Commonwealth could protect a State, even when no application had been made by the Executive Government after the Governor had proclaimed that domestic violence existed therein. Is it necessary that the Commonwealth should’ receive an application ?
– Could it not be done without an application ?
– No. Under the Constitution Act we have no power t’o intervene except on an application from a State Government.
Clause agreed to.
Clause 50 agreed to.
Clause 51 -
In time of war the Governor-General may, subject to the provisions of this Act, place the Defence Force, or any part thereof, under the orders of the Commander of any portion of the King’s Regular Forces or Royal Navy, as the ease may be.
– In connexion with this clause I refer the Committee to clause 8. They will there find two terms used. One is “the King’s Regular Forces, “applying to the King’s Army in Great Britain; and the other is “the King’s Regular Naval Forces.” These terms have been used at intervals throughout the Bill, and it is necessary to retain the same phraseology. But in this clause the term “ Royal Navy “ is used. I suggest that those words should be struck out witha view of inserting the phraseology used in clause 8 - “ the King’s Regular Naval Forces.” In any case, the ships of the navy employed by Australia would be just as much a portion of the Royal Navy as those employed by the people of Great Britain; and it is most desirable that no confusion of thought even should arise on a question of this sort. I move -
That the word “Royal,” line 5, be left out.
Amendment agreed to.
Amendment (by Senator Matheson) agreedto -
That the word “Navy,”line 5, be left out, with a view to insert in lieu thereof the words “the King’s Regular Naval Forces.”
Clause, as amended, agreed to.
Clause 52 -
The Governor-General may for the purpose of training, or in time of war for the defence and protection of the Commonwealth and of the several States, place the Naval Forces or any part thereof on board any ship of the King’s Royal Navy, and during the time they are so placed they shall be under the command of the officer commanding the ship upon which they are placed, and be subject to all laws and regulations to which the King’s Naval Forces are subject.
– This is a very important clause, inasmuch as it gives the Governor-General the power to put portions of our citizen naval forces on board ships of the Royal Navy, but there is nothing to show that they will be accompanied by their own officers. If we expect men to enlist in our citizen forces, we must make it absolutely clear that they will serve under their own officers. I cannot suggest the necessary alteration, because it would entail redrafting the whole clause; nor can I. move that the clause be struck out, because in itself it is a desirable one. I should like to know what the Minister for Defence suggests with a view of meeting the difficulty. I think the Committee will be practically of one mind in thinking that the men should be accompanied by their officers. There would be no possibility of getting officers to jointhe citizen naval forces if, immediately the forces went into action, or into training, the officers did not accompany them.Ileave that point to be dealt with by the Minister, and will propose one or two minor amendments to bring the clause into keeping with the amendments made in clause 51.
– Some provision of this kind is absolutely necessary, and I do not see why we should anticipate that in case any of the forces areplaced on board one of His Majesty’s ships the officers would not be taken. It rests with the GovernorGeneral to say what forces shall be placed on board the ships and under the command of the officers commanding the ships. It would be within the power of the GovernorGeneral to say whether any forces should be so disposed. I do not see why we should anticipate that the Governor-General will consent to the men going on board the ships, and not the officers under whom the men have been accustomed to serve. It is more probable that in case of the men being sent for training or during war on board the ships their officers would be sent also. There would be neither economy nor good sense in separating the men from the officers who have been accustomed to drill them.
Senator MATHESON (Western Australia). - The explanation given by the Minister for Defence shows his want of appreciation of the relative positions of the Admiral on the station and the GovernorGeneral. I must say that this clause in itself fosters any misapprehensions that may exist. As a matter of fact, the GovernorGeneral has no power to place a single sailor on board one of’ His Majesty’s ships except with the consent of the Admiral. The Governor-General would have to get the Admiral’s consent before he could move a single seaman on to one of the ships of the so-called Australian Squadron. We therefore have to consider, not what the GovernorGeneral would like to do, but what the Admiral in command on the station would do. Those who have studied the question know that the position of the officers of our citizen forces is the great stumbling-block in making arrangements for the employment of the men. I have gone into that question to some extent, and I know that that is the fact. The difficulties which arise in connexion with officers when they are put on board His Majesty’s ships of the permanent British Navy are almost insuperable. I can easily understand the Admiral pointing that out to the Governor-General, and the Governor-General being unable to take that action which he would like to take.
– I do not see any difficulty about this matter. I quite agree with Senator Matheson, that our men cannot be put on board the ships without the consent of two parties - first, of the GovernorGeneral ; and, secondly, of the Admiral.
– No ; first the consent of the Admiral, and then of the GovernorGeneral.
– This clause gives the Governor-General the power to put the men on board the ships. That power may have to be exercised with the consent of the King, through his Admiral.
– How does the honorable and learned senator get over the officer difficulty ?
– I can see no difficulty. The clause enables the authorities to put the forces in the best position to insure their proper training. For that purpose we gave authority to put them on board His Majesty’s ships. Of course His Majesty, through the Admiral, would have to agree to that as well ; but His Majesty would be powerless without our consent. We leave it to the Governor-General to say whether the men shall be put on board the ships or not.
– But we want to know how the honorable and learned senator overcomes the prejudice against Australian officers ?
– So far as concerns the men who are put on board the ships with the consent of the Admiral, their control is left in our discretion, and we may fairly presume that that discretion, which would be well exercised, will relate to officers as well as to men. So long as these men cannot be put on board the ships without the authority of the Commonwealth I cannot understand the possibility of any injustice being done, or how any question as between officers and men can arise.
Senator MATHESON (Western Australia). - I do not think Senator Downer perceives my point. He does not realize what the difficulties are. The difficulty of assimilating the status of the colonial officers with the status of the naval officers on board any of His Majesty’s ships will be practically insuperable, and the result will be that, if our men are to have any training whatever, the officers will have to be left behind. However, I have submitted the point to the Government, and it will be their fault if difficulties arise after they have shut their eyes to the possibility of their occurrence. I move -
That the word “ Royal,” line 5, be left out.
– Because it draws a distinction between ships of the British Navy and ships of the Austral ian Navy. All the ships employed in the service of the King are to my mind ships of the Royal Navy. Therefore, I think we ought to object to the distinction here made.
– I see nothing invidious in the use of the word “ Royal “ in this clause. Granting the honorable senator’s contention that our ships are portion of the Royal Navy, why should we refuse to allow that title to be given to the King’s Navy ?
-It is all the King’s Navy.
– Our ships are part of the Royal Navy, and the term “ the King’s Royal Navy “ is the correct designation of the ships to which it refers. I do not see what advantage is to be gained by omitting the word “ Royal “ in this clause.
Question - That the word “ Royal “ proposed to be left out be left out - put. The Committee divided.
Question so resolved in the affirmative.
Amendment agreed to.
– I move -
That, after the word” Navy,” line 6, the words “on the Australian station “ be inserted.
If these words are not inserted there will be power given under this clause to place members of the Australian Naval Reserve on British vessels of war which may be brought here from the American or China stations, and they may be sent away to other parts of the world. These men are being trained, and should be kept for the defence of Australia. If at any time a draft of men is required to fill vacancies in any of the British ships that are not serving in Australian waters, there is no reason why British sailors should not be taken out of British vessels here, for the purpose, and be replaced by Australian seamen. We ought to make it clear that under this clause Australian seamen cannot be sent to other parts of the world.
– I presume the honorable senator by referring to ships of the King’s Royal Navy “ on the Australian station,” intends to refer to that portion of the British Navy which is the subject of the agreement which was recently debated in the Senate.
– Yes ; or to vessels owned by the Commonwealth.
– The honorable senator will no doubt remember that the agreement expressly states that the squadron being contracted for, if I may use that expression, is not to be understood as constituting the whole of the naval strength that may be maintained by Great Britain in Australian waters. We anticipate that in addition to that squadron there will be other vessels provided, and possibly more powerful vessels than those included in the squadron arranged for by the Naval Agreement. If the honorable senator’s amendment be carried the intention is that we shall not be able to supply officers or men to any British vessel that may be here unless it forms part of the Australian Squadron or is an Australian vessel. I think that is wrong. If the honorable senator means that, I think there is no reason for his amendment, and if he means that these men are not to be placed on board any but a vessel in Australian waters it is useless to insert such a provision, because unless the vessel is here the men will not be put on board of it. There may be British vessels here unconnected with the squadron to be provided under the agreement, and they may be here for the purpose of the defence of Australian interests, and if we think that Australian officers and seamen should be placed on board British ships for the purpose of training in time of war, I do not see how we can make a distinction between such vessels as I have alluded to and vessels included in the Naval Agreement.
– How would the honorable senator distinguish between them ?
- Senator Pearce endeavours to distinguish between them by using the words, “on the Australian station” after the word “Navy.” There is no reason in the amendment if it draws a distinction against vessels kept by the Admiralty in Australian waters in addition to the vessels in the Australian Squadron ; and there is no meaning in it if it refers to other British vessels that may at any time happen to be in Australian v aters, because the men could not be put on board a vessel that was not in Austraiian waters.
– They might ; and it might be very necessary that they should be.
– I can hardly imagine that our men would be taken away from Australia to be placed on board some ship that was outside of Australian waters. The honorable senator has told the Committee that his intention is that the operation of the clause should be restricted to vessels included in the Australian Squadron under the Naval Agreement or vessels owned by the Commonwealth. I cannot agree that it is either necessary or desirable to make such a distinction.
– I remind Senator Pearce that it is quite possible that owing to a hostile encounter, a shipwreck, or any casualty of the sea, a vessel in which there were members of the Australian Naval Reserve might become unseaworthy, and it might be absolutely necessary to transfer the crew to another vessel that did not belong to the force on the Australian station, but to a vessel from some other station which might be cruising about, and which might come to the relief of the disabled ship. We might imagine a combination of the forces on the Australian and China stations, and that in the course of a general naval engagement a number of the Australian ships might be sunk. What would become of the crews if they could not be transferred to vessels belonging to the other squadrons? Surely vessels of war might meet with casualties which would render it necessary to transfer their crews to other vessels.
Senator MATHESON (Western Australia). - I point out that this is a more serious question than some honorable senators appear to think. The words “ naval forces “ include all the naval forces of the Commonwealth, and therefore include naval volunteers. Volunteers of the military force cannot be moved out of the Commonwealth unless they volunteer ‘ for service abroad. But these naval volunteers may, under this clause, be ordered, without any possibility of refusing, to go on board a transport, and they may then be used for manning one of His Majesty’s ships, at Esquimalt, at Capetown, or at Portsmouth.
– Does the honorable senator think that the Governor-General would agree to that ‘f
– It is of little use for Senator Playford to ask me what I think the Governor-General would agree to. It is not the Governor-General with whom we have to deal, but those lunatics who get blown out with Imperialistic ideas. I could always trust the Governor-General to be sensible, because he has no party views. But when we have to deal with a person who goes home feasting and becomes inflated with Imperial bombast, we do not know what he may do. These terms are, of course, impersonal, and I do’ not apply them in any but a strictly parliamentary sense. The fact remains that any one at the head of the Naval Department here might, under this clause, do what I have described ; and I therefore think that the limitation proposed by Senator Pearce is not unreasonable. Senator Playford suggests that what he would do himself any other Minister would be bound to do ; but that is not a necessary sequitur. We could always trust the honorable senator to exercise common sense, but we could not trust every one else to do the same. As Senator Pearce’s amendment provides only for what Senator Playford considers reasonable, I think the Committee should accept it.
Senator PEARCE (Western Australia).The Minister for Defence has clearly proved my case. He says that there will be British vessels in these waters that will not form a part of the Australian Squadron, and it may be necessary to put Australian seamen and officers on board those vessels. We have then the Minister for Defence, who will have the first say in this matter, quite prepared to contemplate the possibility of putting Australian seamen on board vessels that will not belong to the Australian Squadron. We might have the whole of the Australian Naval Reserve ordered on board a transport, and transferred to*a vessel belonging to the - Cape Squadron, and sent here to rent.
– What is the difference between a vessel of the squadron included in the Naval Agreement, and a flagship stationed here by the British naval authorities?
– It is clearly understood that the naval force we have to look to is that set apart for the defence of Australia, and that is the force towards the maintenance of which we are asked to contribute.
– I have understood just the reverse.
– There is nothing in the amendment I propose which would in any way interfere with the assistance which we might care to give to the British Navy. The Admiralty authorities can take British sailors from British ships on the Australian station and transport them to any part of the world, and they can fill their places on the Australian station with Australian seamen. That is what we wish to provide for. The Australian seamen will be trained at our expense for the defence of Australia, and they ought to be kept here. It must be remembered that these men will volunteer to defend Australia, and’ not to defend Cape Colony or Hong Kong. Why, then, should they be liable to be defrauded by being taken elsewhere ? I feel sure that the Committee will admit the reasonableness of the amendment, notwithstanding the hypothetical case suggested by Senator Neild. Such a ridiculous case as the honorable senator imagined could only occur to a mind capable of conceiving something extremely ridiculous upon every occasion. The honorable senator has suggested that if a vessel were sinking, the commander would say that the men could not be put on board of another vessel because of a clause in this Bill. Such a situation could only be conceived by a mind capable of conceiving the military fiasco we read of in the military annals of New South Wales - I refer to the battle of Chowder Bay.
– Honorable senators will see that these men are to be put on board these ships for the purpose of training.
– “Or in time of war.”
– The men are placed on board the ships for the purpose of training, and, under ordinary circumstances, I anticipate that the ships will belong to the
Australian Squadron. The clause then goes on to say -
Or in time of war for the defence and protection of the Commonwealth and of the several States.
That limits the men to ships used for the protection of the Commonwealth and the States. To talk of the men being sent to Plymouth or Hong Kong is simply absurd.
– But that is the contention of the Minister - that they may be sent to the English Channel or anywhere.
– I am not dealing with what the Minister for Defence has said. It frequently happens that battles for the protection of commerce or a State must be fought at a great distance, as is clearly shown, from history both ancient and modern, in the works of that great American writer, Captain Mahan. There is undoubtedly a limitation ,in this clause. The Governor-General, who in time of war is empowered to do certain things, is really the Ministry of the day, without whose advice he can do nothing. Is it likely that 41nv Ministry would take any such stupid
Action as has been suggested ?
– That depends on who the Ministry are.
– We have to trust somebody in this world, and surely we may trust a Ministry who are responsible to Parliament. If a Ministry take any action which they ought not to take, they can be called to account ; and the fact that the sword is continually hanging over their heads makes them exceedingly careful. A Ministry who would put men on board ships which were not intended for the defence of the Commonwealth or of the States would soon find their occupation gone.
– Then there can be no harm in mv amendment.
– There is harm to the extent that the amendment limits the clause to certain ships. We know that the Australian Squadron is to be supplemented by other of His Majesty’s ships, and that the latter are likely to be of greater tonnage and better fighting capacity than our own. The ships of His Majesty will be placed on the Australian station, and it might happen in time of war that they required men whom we were prepared to furnish. The amendment, however, would block the way, and cause a great deal of trouble. No doubt, the difficulty might be got over by transferring a lot of our men from our own -squadron to His Majesty’s ships and replacing them with other men ; but it would be more convenient and better for all parties if, instead of taking that roundabout course, men could be placed directly on board the Imperial vessels. It must be remembered that although these Imperial vessels are not part of our squadron,, they would, equally with the latter, be here for the protection of the Commonwealth and the States. I see no necessity for the amendment. In the naval and militaryforces there must be unity of action and a system of management more strict than is necessary in ordinary civil life. “ Obedience” is a great word amongst soldiers and sailors. There must be one head, and in time of stress and trouble power must be given to act as is deemed necessary in the interests of the community. It is absurd to tie the hands of a Ministry in time of war, and to make it necessary to resort to any roundabout methods must result in the loss of valuable time.
– I intend to support the amendment. I have listened very carefully to the arguments used by Senator Playford, but I must confess that in those arguments I cannot see any force. I take it that Senator Pearce wishes to place our naval volunteers on exactly the same plane as our land volunteers.
– That is so.
– That is to say naval volunteers must not be taken away from the shores of the Commonwealth.
– They may, of course, be taken away in Australian ships.
– At any rate, Senator Pearce desires that the naval volunteers shall not be transferred from Australian ships to British ships, and it is extremely desirable that a provision of that character should find a place in the Bill, seeing that without it we shall be in the position of having no control over our naval force.
– Even over the volunteer force.
– That is so. ‘ Our naval volunteers would run the risk of being taken away to Plymouth, Hong Kong, or other places outside Australian waters. Senator Playford, in supporting his view, introduced the well-worn, threadbare argument of Captain Mahan, that the enemy must be sought in the most likely spot, even if it be necessary to go the South Pole. But does Great Britain ever leave the English Channel undefended ? The theory which is beautiful for Australia does not “hold water” in England. While England is prepared to go anywhere or everywhere to find and destroy the enemy if she can. she never leaves her own coast undefended.
– This clause does not say that we shall leave our coast undefended.
– The whole discussion is based on the presumption that the Australian Fleet may be and will be called to serve anywhere out of Australian waters. < Why do we require a Defence Force, if not to defend our own shores ? We do not require a fleet to fight Great Britain’s battles in China, Japan, or anywhere else, but to defend Australia. If this clause be allowed to pass as drafted, it will prejudice our chance of getting volunteers. Young fellows may object to join because they will never know when they may be drafted into the British Navy, and, while willing to serve Australia, they would object to such a transfer. From an Australian point of view, the amendment is not only desirable, but absolutely necessary. Senator Playford asks, in a very doubting fashion, whether it is likely any Government would be so foolish us to do that which Senator Pearce fears. But we have known Governments to do very foolish things in the past, and it is not at all likely that the Governments of the future will be any wiser, or less under the malign influence of certain individuals whom I shall not name. Senator Playford’s remarks are the strongest possible argument in support of Senator Pearce’s amendment. To Senator Playford the fear felt by Senator Pearce seems so outrageous that he cannot conceive the possibility of its being realized. But we desire to prevent its realization, and to make it clear that our fleet is a purely Australian Fleet, raised to defend the shores of Australia.
– Senator Playford said that the offenders could be punished after the damage was done.
– I did not say that j I said that the sword hanging over their heads would be a deterrent.
– We know that a Government can always be turned out, but my experience of Parliament shows me that, however much the action of a Government of which one is a follower is disapproved, members prefer to condone the offence rather than dismiss the Administration. Except on the very rarest occasions, the PrimeMinister is the master of the situation, and in ninety-nine cases out of a hundred, Parliament feels itself bound to support” hisaction. I trust that honorable senators will show their patriotism by voting for the amendment. We want a naval force and a land force which will be of some service to us, and we ought to give every encouragement to our young men to join both. But’ if there be the continual fear of being drafted without any notice or chance of* remonstrance into the British Navy, the number of volunteers will be limited.
– I am afraid that I cannot supportthe amendment. I was strongly opposed, to the Naval Agreement, but as that agreement has been entered into, this clause of the Bill is only consistent.
– It is an aggravation, of the agreement.
– I cannot be a. party to attempting to defeat the Naval Agreement. I am in favour of having an. Australian Navy, but I have always contended that in time of war that navy should, be under the control of the Admiralty.
– Even if it be a volunteer navy ?
– How does my amendment affect that view ?
– If I understand the amendment,’ it confines our men. in time of war to Australian waters.
– Then what, does the amendment mean?
– The amendment confines the men to ships of the Australian. Squadron.
-The clausesays -
The Governor-General may for the purpose of training, or in time of war, for the defence and protection of the Commonwealth and of theseveral States, place the naval forces or any part thereof on board any ship of the King’s Royal Navy.
In time of war it might be necessary for the ships to go outside the Australian station.. If Senator Drake will submit an amendment to provide that, for training only, theseamen should be confined to Australian waters I shall be prepared to support him.
Senator PEARCE (Western Australia.). - What the amendment means is that the: volunteer seamen of Australia shall only be put on the vessels on the Australian station - that is to say, on the vessels which will be provided under the terras of the Naval Agreement Act or on any vessels which the Commonwealth may provide. It does not say that if for the purpose of the defence of Australia the Australian Squadron should require to go to the north of New Guinea the Australian seamen must be unshipped. It says that wherever the Australian Squadron may go the Australian seamen shall go, too. We contend that our seamen should be put on the vessels of the Australian Squadron, and not into any vessels which might come here, perhaps, for the purpose of refitting, and which might not be intended for the defence of Australia at all.
Question - That the words proposed to be inserted be inserted - put. The Committee divided.
Majority … … 3
Question so resolved in the affirmative.
Amendment agreed to.
– I think that as the point of order involves the interpretation of a statute, the Chair is not justified in giving a ruling.
– I object to your decision, sir.
In the Senate :
– While a division was being taken in Committee on the Defence Bill, Senator Higgs questioned the right of Senator Saunders to vote, claiming that in accordance with the terms of the Constitution Act he had not been duly sworn before taking his seat. I decided that; as it involved an interpretation of the Constitution Act, it was not my duty to decide the question, following as I think the rulings of the Speakers of the House of Commons in that connexion, and Senator Higgs disagreed with me.
– How could he disagree when no ruling was given ?
– I refused to give a ruling.
– I cannot see how I can give a decision when the Chairman gave no ruling.
– The contention of Senator Higgs, sir,is that the Chairman ought to have given a ruling, and the point is, do you think so, too ?
– I think that if the vote of an honorable senator is challenged it is absolutely necessary, in order to carry on the business, that a ruling should be given on the question, whether it involves the interpretation of the Constitution or not. As a general rule, it is not proper for either the Chairman of Committees or the President to give a ruling on the interpretation of a Statute, but where a ruling is absolutely necessary, in order to carry on the business, it ought to be given.
– May I be permitted to submit to you, sir, that the Committee has no power to deal with anything outside the four corners of the Defence Bill ?
– I do not think that the honorable senator will be in order in saying anything more. What I said was that when a question is raised as to the right of an honorable senator to vote it ought to be decided at once.
In Committee :
– As a matter of privilege I beg to challenge the vote of Senator Saunders.
– On what ground?
– :On the ground that the “honorable senator was nominated to fill Senator E wing’s place under section 15 of the Constitution, which states -
IE the place of a senator becomes vacant before the expiration qf his term of service, the Houses of Parliament cif the State for which he was chosen shall, sitting- and voting- together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the tin e when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days after the begining of the next session of the Parliament of the State, or until the election of a successor whichever first happens.
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 date” of his election until the expiration of the term.
The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor-General.
These nominations held good until the expiration of fourteen days after the beginning of the session of the Western Australian Parliament. That Parliament met on the 16th July, at 3 o’clock p.m., and the nomination held good until 12 p.m. on the 30th July, when the seat became vacant. On the 29th July .the Western Australian Parliament elected Senator Saunders, and on the 5th August the Governor-General notified the Senate that he had been elected to fill the vacancy. I contend that the new senator should have been sworn after the Governor-General notified the President that Senator Saunders had been elected. If Senator Saunders is not re-sworn, I venture to say that we may find that those Acts with regard to which he has voted may be challenged. The honorable senator in the interval has voted upon the Patents Bill, the Judiciary Bill, and the Naval Agreement Bill. I hope that Senator Saunders will not for a moment think that there is anything personal in the nature of my objection. I merely raise the point so that we may do things “decently and in order.”
– I would suggest that under the circumstances the Senate would be much indebted to the President of the Senate if he would make a statement in regard to the facts of the case. It appears to me, from the information which I have at the present time, that the position of Senator Saunders is unimpeachable. Under section 15 of the Constitution he was chosen by the Western Australian Parliament as a senator on the- 29th July. Previously to that he had been appointed by the Governor of theState, and his appointment lasted .until July 30th. But he never ceased to bea senator. His election by the Parliamentof Western Australia took place one day before the term for which he was appointed by the Governor of the State expired. It is perfectly clear to me that under section 15 of the Constitution Senator Saunders is. a senator by the fact that he has been chosen ; and the circumstances of the notification to the Senate have nothing at all todo. with the matter. It is true that the notification was not made until the 5th August, but the actual choice by the Western Australia Parliament took place on the 29th July.
– Was not that a reelection ?
– No ; it is not spoken, of as a re-election in the Constitution. These are the words -
The Houses of Parliament of the State forwhich he was chosen shall sitting and voting together choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided,1 whicheverfirst happens.
The Houses of Parliament of Western Australia sat and voted together, and chosea senator on the 29th July, Senator Saunders being then a senator. I contend thatit is the fact of his having been chosen by the Parliament at that time that is important, and that the notification of it to theSenate cannot affect the fact that SenatorSaunders, since the time when he was appointed by the Governor of the State, had not ceased to be a senator. That is how the matter appears to me, but perhapsSenator Baker would make a statement before the Chairman of Committees gives a ruling.
– I may becalled upon to rule in this matter, and, therefore, I do not think I should express any opinion. But I may stateone fact which, perhaps, is not known to the Senate. It is -this : that immediately on the Western Australian Parliament choosing Senator Saunders tobe a senator, the Governor of Westerns
Australia sent me a telegram. Afterwards I got an official letter from him. But on looking up the Constitution, I came -to the conclusion that the official notification should come to me from the GovernorGeneral. I consulted the leader of the Senate, Senator O’Connor, concerning the (matter, and he agreed with me that I ought to wait until I received an official notification from the Governor-General before laying it on the table of the Senate. Therefore I did not lay on the table the telegram from the Governor. Of course honorable senators will see that there had to be an interval to allow of the official notification “from Perth which was sent to the GovernorGeneral, who was then in Sydney, reaching him and then being despatched to Melbourne. There is another fact to be borne in mind. When I received a notification from the Governor-General the Senate was not sitting, and I laid the notification upon the table immediately after the Senate
Sat again. I express no opinion concerning the point raised. I merely mention those “facts.
– I have listened carefully to what the Minister for Defence has said. My attention has already been directed to this matter, and I have had considerable difficulty in making up my own mind upon it. Because, although undoubtedly the position held by Senator Saunders was continuous, still .at the same time the continuity came from . an entirely different course of election.
– There are two dis”tinct acts.
– That was what I felt to be the difficulty. I suppose that in “the days, which some honorable senators may look back to with regret, when very refined pleading was the rule and justice the Exception, an argument of that kind would be considered quite effective and conclusive; and it is only in later days when we try to take somewhat broader views upon these subjects that not the words only but the substance is considered to be important. As a matter of .fact, Senator Saunders was elected by the Western Australia Parliament, and therefore his nomination by the State Governor was con”tinued. Those who wish to go to the substance rather than to the form might say that the continuance was the substance and not the method in which it was insured. But I take even a broader view than that; and that view I -wish to submit to you, Mr. Chairman. The only oath that has to be taken is the oath of allegiance to the King.
– Who is he?
– I know that the honorable senator dreads the idea of meeting the King, because he says himself that he would get under His Majesty’s influence so completely that he would never be able to call his soul his own afterwards. But the point I wish to submit to the Chairman is this. There is no doubt that under our Constitution and under all the Constitution Acts of the States, there is a provision requiring Members of Parliament to be sworn. They have to take the oath of allegiance. We have a new Constitution to interpret. We look to it, and see whether it requires us to take the oath of allegiance constantly. There is nothing clearer than this - that once a man is a British subject he is always a British subject. He never can escape his British citizenship. He may be subject to the laws of another country ; he may, as we may say, be hanged in England and executed somewhere else, under different laws; but he never ceases his responsibility to the Throne of England, and his liability for treason that comes from the fact of his being a British subject. We have to interpret our Constitution in a reasonable way. First of all there are qualifications affecting persons who can be Members of Parliament ; and those persons, if elected, before they take their seats, have to take the oath of allegiance. What I submit to you, sir, is that the oath is taken once for all, and that once a person has taken it he never need in his life-time take it again. He cannot escape from all the responsibilities attaching to taking it. He is a British subject and liable to the laws of Great Britain. He can never avoid the situation hereafter by anything that may occur.
– Then the taking of the oath is a matter of form.
– What is the use of making a man take the oath again after he has sworn once? Having sworn he is bound so long as his life lasts. In my opinion the Constitution should be read so that’ the provision that a senator must take the oath before he takes his seat should be construed to mean “If he has not already taken the oath of allegiance.” He has to take the oath once.
– But a Member of Parliament ‘always has to take the oath after he is re-elected.
– That is because we are in the habit of doing it. It is a fashion of Parliament ; a usage we have been following. But my submission to the Chairman is that when once a man has taken the oath, he has taken it for all time, and that the section means that a person who has not previously taken the oath of allegiance has to do so. On those grounds - though I express more doubt about the first point - I speak with confidence in roy own opinion, when I say that one is bound when once he takes the oath of allegiance, and that taking it over again is merely going through a form. I know that it may be said that there have been cases in England in the House of Lords, in which the same difficulty has arisen ; and the British Parliament .has actually passed legislation for the purpose of curing defects of this description. I submit, however, that we can create precedents for ourselves, particularly with respect to questions of this description. At all events, I submit gravely to you, Mr. Chairman, that Senator Saunders need not be sworn again. He has taken the oath of allegiance. He is a British subject, and that carries with it all the responsibilities of a British subject from which only death can release him. To insist upon the honorable senator going through the same oath of allegiance again is to insist upon his going through an empty form, and we ought to be ashamed to do that.
– I have every sympathy with Senator Higgs, and I am sure that every honorable senator wishes that every Act of Parliament that has been passed shall have a validity that cannot be disputed in any way.
– Always excepting the Naval Agreement Act.
– I am not referring to that at the present time. I cannot see the force of the argument used by Senator Downer, and I am sorry to have to differ from the honorable and learned senator. I have taken the oath of allegiance several times, and will Senator ‘Downer tell me that it was but a farce for me to take it more than once ? I took the oath when I went into the Legislative Council of South Australia; again when I was sworn in as a J.P., and also when I came here. I do not see how the I repetition of the oath of allegiance can be called a farce. As Senator Higgs haspointed out, a difficulty has arisen owing toa set of circumstances to which it is right we should pay some little attention in connexion with the election of Senator Saunders^ and the administration of the oath tothat honorable senator. Honorable senators will acknowledge that no member of the Senate has any personal grievance against Senator Saunders. The intention is that the validity of no legislation passed here, in which the honorable senator hastaken apart, shall be disputed in future. I hope that a decision will be given upon the point of order by the Chairman, and, if necessary, by the President, that will set the question at rest for ever.
– I submit that the question raised involves a great deal more than the swearing of Senator Saunders. It is a question which will be raised again possibly at the commencement of next session, when half the members of the Senatewill be new, though a large number of the present senators may be re-elected. I presume that they will be declared electedbefore the 3 1st December, and consequently their continuance of office will be exactly identical with the case of Senator Saunders, the first appointment extending beyond the starting point of the second. I submitthat Senator Downer’s arguments arelargely beside the question. If the honorable and learned senator holds the viewswhich he has submitted to influence the decision upon this point of order, he should have properly enunciated them not now, but before the Heir Apparent to the Throne, when in his presence the honorable and learned senator took the oath which hedescribes now as a farce. We need only look at the honorable and learned senator toknow that he is a British subject, and I am sure he must have been sworn many times.
– I did notsay it was a farce.
– Now for the first time the honorable and learned senator seems to have discovered that he has been committing a large number of improprieties. Are we to assume that the solemn swearingin in the Exhibition-building of gentlemen, the great majority of whom must havetaken the oath of allegiance previously, wasuseless, improper, and absolutely farcical.
– T never said that.
– I am surprised *t the views which the honorable and learned senator has submitted. He must have allowed some stray thought to cross his mind, or he would never have enunciated the proposition he has submitted to influence the decision upon this point of order.
– The matter appears to me to be a very simple one. Senator Saunders has been properly elected under the Constitution. He took his seat here, and took the oath of allegiance, and up to the present time he has never ceased to be -a senator. I think it is, therefore, quite unnecessary to insist that he shall take the oath a second time.
– Was there not a technical vacancy?
– Never. Before a vacancy had been created it was filled np, and by the same person. The honorable senator has continuously held the position -of a senator from the time he took his seat and took the oath of allegiance until today. To ask him to take another oath of allegiance, when he has never ceased to be a senator, would be something like a farce. I do not agree with Senator Downer in imagining that once a man has taken the auth of allegiance he is bound for ever. I expect that should I stand again, and be re-elected to the Senate three years hence, I shall have to take the oath of allegiance again, and others will have to do the same, because it is the law of the land. However, in the present case it appears to be quite plain that the common-sense view of the position is that Senator Saunders, having taken the oath of allegiance and having continued to be a senator all the time without a break, there is now not the slightest reason why he should take another oath of allegiance.
– I should like to congratulate Senator Downer upon having, for once in- his life, cut himself away from precedent and legal forms and ceremonies, and taken what I believe to be a commonsense view of this question. I quite agree with what the honorable and learned -senator has said. I think that this continuous taking of the oath of allegiance is neither more nor less than a farce. Is the loyalty of honorable senators to the Throne of England of such a feeble character that it requires to be continually refreshed by the conning of the oath of allegiance over and over again ? If that is how some honorable senators feel, it is not how I feel. Having once taken the oath of allegiance to the King or Queen, I am bound by that oath, and I cannot, as Senator Downer has very properly pointed out, escape from its consequences while I remain a British subject. What, then, is the use of taking it time after time ? Senator McGregor has told us that he took the oath when he was elected a member of the Legislative Council of South Australia, and again when he was appointed a J.P. Why should the honorable senator have taken it then? Had there been a change of Sovereign ? I think, with Senator Downer, that we ought to be guided by common sense in these matters ?
– Who is to be the judge of common sense?.
– The Senate is to be the judge, so far as we are concerned, and I think we should lay down precedents for ourselves. I would ask Senator Dawson if he thinks it necessary that honorable senators should be continually taking the oath of allegiance. ‘
– I say that all honorable senators should be subject to the same rule.
– If the honorable senator is re-elected next year, he must be resworn.
– What earthly virtue is there in taking this oath of allegiance % Does it bind a man any more than he would otherwise be bound? He is just as much bound to be loyal to his country and King if he does not take the oath as if he does take it. A witness coming before a court may be prosecuted for perjury whether he takes the oath or does not take it. It may strengthen some people who feel that their allegiance is a little shaky to take this oath of allegiance over and over again, just as I believe the practice of kissing the book has an effect upon some ignorant witnesses when they, appear before a court of justice. Superstition has a certain hold upon the minds of some men, but I am thankful to say that it has very little hold upon mine. These forms and ceremonies are absolutely meaningless so far as I am concerned. With regard to the case of Senator Saunders, I really do not know what prompted Senator Higgs to bring this matter up. Is it that the honorable senator has become suddenly very much concerned about the Constitution 1 It appears to me that the honorable senator’s purpose was more than anything else to waste valuable time that might otherwise be very well used in passing a law to provide for the defence of our Constitution and country Does the honorable senator desire to dispossess Senator Saunders of his seat ? That honorable senator has been duly elected, according to form, and lias taken the oath . of allegiance, and whether he has or not I am prepared to vote that he should continue to sit here as an honorable senator.
– Whether he has taken the oath or not 1
– Yes, whether Senator Saunders has taken the oath or not, he is as much bound as Senator Dawson, who has, perhaps, taken a dozen oaths, and is prepared to take any number more. The honorable senator is not governed by the Book which says, “ Swear not at all,” and that should govern honorable senators more than this mere practice of hanging on to the skirts of empty, meaningless ceremonies. I am surprised at the action taken by Senator Higgs in this matter.
– The honorable senator must keep to the point of order.
– I do not see what good purpose is to be gained by the action taken by Senator Higgs. I have no more to say upon the subject
– I am sorry that this objection was not taken at a more opportunetime ; but now that it has been raised I should like to point out to Senator Higgs, and those who seem to agree with him, that there never has been, since Senator Saunders took his seat, a vacancy so far as the representation of Western Australia is concerned. Senator Pearce, in the course of the remarks of some honorable senator who was speaking against the suggestion of Senator Higgs, interjected that there was a technical vacancy.
– I did not do anything of the sort ; I simply asked a question.
– Senator Saunders’ selection by the two Houses of the State Parliament enabled him to sit as senator for Western Australia until the 29th of July. Prior to the 29th of July both Houses of the Parliament of Western Australia had met, and had gone through the formality of selecting the successor of Senator Ewing, and that successor was selected from the time he was actually chosen. The honorable senator could have sat up to midnight of the 29th July, as chosen by the Governor, on the advice of the ExecutiveCouncil of the State, and could have continued to sit because on the 27th July he had been selected by the State Parliament. There never was a technical vacancy.
– The honorable senatorcould not sit until the writ was returned.
– The honorable senator had been selected to hold the placeuntil the expiration of fourteen days after the beginning of the next session of the State Parliament.
– Was not the notification, tantamount to a return of the writ ?
– No. The senator had been selected in the meantime, and there has been no discontinuance of the occupation of his position of senator. There seems to be an idea that there is some statutory obligation on every senator after his reelection to be re-sworn. Section 42 of the Constitution says -
Every senator and every member of the Houseof Representatives shall, before taking his seat, make and subscribe before the Governor-General, or some other person authorized by him, an oath. . . .
What is the meaning of the phrase “ before taking his seat “ ? Does it mean beforetaking his seat every day t Does it mean before taking his seat at the commencementof every session, or before taking his seatafter every election t There are no words of limitation. If a man be elected to eitherHouse he takes the oath which is prescribed, and if he is re-elected for a certain term before the expiration of his then current term, there is no cessation of hisoffice.
– Does the honorable senator mean to say that senators re-elected next session will not be re-sworn ?
– They may not beresworn.
– But it is imperativethat they should.’
– If a’ senator whose term of office expires on the 3 1 st Decemberis re-elected before that date, it will becompetent for him to say that he has complied with section 42 by taking theoath of allegiance before he took his seatin the first instance.
– Nobody ever understood the section in that way before.
– Perhaps not. There has been a practice in the State Parliaments and in Parliaments in other parts of the Empire of swearing re-elected members. But has this point ever been raised before1!
– The positions are different. Here we are elected before the seat becomes vacant.
– In saying that, Senator McGregor gives away the whole of his case and concedes that for which I am contending. It is possible for a man to be a senator continuously for years - for there to be no vacancy. When a man is elected he takes his seat as Senator for a period of six years, commencing on the 1st January ; and if, before the expiration cf his term of office, he be re-elected - say, in December - for another period of six years, he does not cease between the periods to be a senator.
– And, therefore, you say that he does not require to be resworn ?
– I say that reswearing is not necessary under the section of the Constitution I have quoted.
– An elected senator cannot take his seat until the writs are returned.
– Of course he cannot. The writs would be returned before the next sitting of Parliament, and, consequently, such a senator as I have described would come to the Chamber as one who was continuously a senator. In such case the elected senator, having already taken his seat in the Parliament of the Commonwealth, which is continuous, and having taken the oath as prescribed, would say that he was not called on again to swear allegiance. If Senator Higgs contends that the words “after his election and,” should be read after the word “sholl,” in section 42, it is quite competent for others to contend that there should also be read in the words “ at the commencement of every session,” or “at the commencement of every sitting.” According to the statement of facts made by the Minster there has been no break in the occupancy of the seat by Senator Saunders.
– Yes, there has
– :I am prepared to accept the statement of the Minister, who has given the dates ; and under the circumstances I contend that Senator Saunders, having taken the oath, is not obliged to take it again. The only way in which such an obligation can be imposed is by reading into the section the words which I have indicated.
– This is not a mere formality, as some honorable senators seem to think, but a most important point that we are considering. There are one or two aspects which I did not submit when I took the objection. It is true that it might have been taken at an earlier stage, but it appeared to me that it was my duty to object when I saw the honorable senator voting in a division.
– But he has voted so many times.
– I took the objection on the first occasion I noticed Senator Saunders voting after my attention had been drawn to the fact that he had not been sworn. You will observe, sir, that in section 15 of the Constitution Act it is provided that -
The Houses of Parliament of the State . . shall, sitting and voting together, choose a person to hold the place until the expiration of the term or until the election of a successor, as hereinafter provided, whichever first happens.
Senator Saunders was appointed by the Governor of Western Australia to hold the position vacated by Senator Ewing until the expiration of fourteen days after the beginning of the next session of its Parliament. The point might be taken that the State Parliament had no right to elect a successor to Senator Ewing until the expiration of fourteen days after its next meeting; but thirteen days after its next meeting the Houses proceeded to make a selection. I do not attach so much import- ance to that point as to this one : that the certificate of the Governor-General was, to all intents and purposes, a writ, and that Senator Saunders could not take his place until it had been received by the President. Suppose that the Houses .of the State Parliament, sitting and voting together, had decided that another gentleman should fill the place of Senator Ewing, would he have been able to come to the Senate and take his place upon the receipt of the telegram which was sent to the President? T venture to say that it would not have been permitted. The President refused - and quite rightly, too - to take the telegram as a sufficient certificate for the return’ of a senator, because otherwise, any person might send along a telegram. If we imagine a case of the kind 1 have suggested, we get a clearer idea of the point which has been taken in regard to Senator Saunders. Suppose that Mr. Jones or Mr. Robinson had been selected by the State Parliament in place of Senator Saunders. On what date would he have been entitled to take his place *1 Would, he have been entitled to take his place on the 30th July ? Undoubtedly he could not have taken his seat until the 5th August - the day on which the President received the certificate from the Governor-General. Between the 29th July, when he was selected by the State Parliament, and the 5 th August, when the President received the certificate from the Governor-General, there was an interval during which we could not officially accept Senator Saunders as a member of the Senate. Senator Downer, contrary to all our experience of him, has declared that all this kind of thing is a mere form and technicality which should be brushed aside. Most of us who sit in this corner might be expected to agree with him, but I do not take the view of Senator Stewart, who finds himself in perfect accord with Senator Downer on this question. I suppose that Senator Stewart’s experience in a lawyer’s office has made him tired of legal forms and technicalities. Our desire is to abide by the words of our charter.
– Senator Downer says that we must stick to it at all costs.
– It is a strange thing that Senator Downer should wish to set aside the provisions of the Constitution which are clear. I am sure that if we come to mere words he will recognise that section 15 states that the Governor in Council of the State shall appoint a person to fill the place vacated. Senator Saunders was appointed in the first place and elected in the second place. Section ‘ 42 of the Constitution says that after his election each senator shall take the oath of allegiance. Senator Downer has urged that once a senator has subscribed the oath of allegiance it will do for all time. But he knows very well that such a contention would not hold water for an instant in a court of law.
– I think exactly the opposite, or I would not have said what I did.
– What I should have said was that that opinion would not hold water. Several of us who sit in this corner took the oath of allegiance when we were elected to the Parliament of Queensland, and again when we were appointed to the commission of the peace. While, to all intents and purposes, the one oath might do it was easier for me to take the oath of allegiance in the magistrate’s office than to put him to the trouble of finding out whether I had taken the oath of allegiance in the Legislative Assembly.
– Here we have proof that Senator Saunders did take the oath.
– We have no proof that he took the oath according to section 42 of the Constitution Act -
Every senator and every member of the House of Representatives shall, before taking his seat, make and subscribe before the Governor-General, or some person authorized by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
– He has taken the oath as a senator.
– Does not the honorable and learned senator see that there was an interval between the 29th July, when Senator Saunders was elected by the State Parliament, and the 5th August, when the President read to the Senate a certificate of his election from the Governor-General ? To show that matters of this kind are not considered to be mere frivolity elsewhere, I shall quote from the 10th edition of May’s Parliamentary Practice, page 164, the following passage : -
By the 30 Chas. II., stat. 2, 13 Will, in., c. 6, and 1, Geo. I., Stat. 2, c. 13, severe penalties and disabilities were inflicted upon any member of either House who sat or voted without having taken the oaths. By the 29 and 30 Vict. , c. 1 9, an y peer voting by himself or his proxy or sitting in the House of Peers without having taken the oath is subject for every such offence to a penalty of £500 ; and any member of the House of Commons who votes as such or sits during any debate after the Speaker has been chosen without having taken the oath, is subject to the same penalty, and his seat is also vacated in the same manner as if he were dead. When members have neglected to take the oath from haste, accident, or inadvertence, it has been usual to pass Acts of indemnity to relieve them from the consequences of their neglect. In the Commons, however, it is necessary to move a new writ immediately the omission is discovered, as the member’s seat is vacated.
There is an easy way out of this difficulty, and that is to allow the honorable senator to be re-sworn. It would not take five minutes to administer the oath, and the provisions of the Constitution would be upheld.
– I feel sure that Senator Saunders recognises that this question is being discussed without any personal reference to himself. It is important, sir, that you should give a ruling which will stand the test of time, because this is not the only occasion on which the point is likely to arise. If Senator Saunders has not been properly sworn, and he has voted on any measure which has been passed, it may be possible to take the point that the law is not valid. If it can be taken, the matter is not quite so simple as it has been put by Senator Higgs.
– I should say that that is not the case.
– I am glad to have that assurance.
– I do not think that any one can question the acts of Parliament.
– In that case I shall not pursue the point any further. Senator Saunders was appointed to the Senate by the Governor of Western Australia under section 15 of the Constitution Act, and he was duly sworn as provided by section 42 ; but another portion . of the former section says that within fourteen days of the next meeting of the State Parliament its two Houses must proceed to elect a senator - not necessarily the person whom the Government had appointed. That is an important point to be remembered. An attempt was made to bring forward an opponent to Senator Saunders.
– The same man was elected.
– Yes ; but there was a technical vacancy.
– There never was a vacancy.
– I contend that there is a technical vacancy in the case of Senator Saunders, just as it is clear that there will be technical vacancies in December next in the case of nineteen other senators, notwithstanding that the senators who retire at that time may be returned.
– Tell us precisely the time when that vacancy occurred.
– It was between midnight and the next day on the 29th July.
– Then if we had been sitting here at that time, and Senator
Saunders had been speaking at midnight, he would have had to close his speech at that hour ?
– According to the honorable and learned senator’s contention, there would be no technical vacancy in the case of Senator McGregor at midnight on 31st December next, if the Senate were sitting at that time. Several of the legal senators laid it down when discussing the question of the election of President, that notwithstanding that he may be re-elected before the 31st December there will be a technical vacation of his seat.
– I never said so, and never thought so. I disagree entirely with regard to the President’s position.
– On the occasion when Senator Saunders was elected by the Parliament of Western Australia he was not sworn in as provided by section 42 of the Constitution. The question to be decided is whether there was not a technical vacancy between the two dates. There is no doubt that there would have been a technical vacancy had some one else been elected instead of Senator Saunders. Everybody will agree to that. Suppose that some other gentleman had been elected by the State Parliament. There would then have been a vacancy. If that be the case, there was a technical vacancy, although the same person happened to be elected by the State Parliament. Senator Saunders was elected to fill the vacancy caused by the lapsing of the appointment made by the State Governor. The State Governor appointed him to fill the seat until fourteen days after the sitting of the State Parliament. At the expiration of the fourteen days there was a vacancy, which had to be filled. It was filled. It so happens that, in this case, the gentleman appointed by the State Governor was elected by the Parliament. But we can easily suppose a case in which the State Parliament would not confirm the appointment of the State Governor. In that case there would be a technical vacancy. If that be so, is it not plain that section 42, which says that before any senator takes his seat he shall subscribe the path, applies to the case of Senator Saunders after his election by the State Parliament ?
– He had taken the oath.
– On a previous occasion ; but the term for which he had taken the oath had expired.
– I may be wrong, but that is my contention. Here is where I want to draw the analogy. If it is not necessary for Senator Saunders, after having been elected by the State Parliament, to take the oath, then I contend that when Senator McGregor goes up for re-election in November next, if he is re-elected, it will be unnecessary for him to take the oath when he takes his seat in the Senate in January next.
– Hear, hear ; perfectly correct.
– Those who contend that a senator does not need to take the oath when he is re-elected are perfectly logical in arguing that he need not take the oath after election by a State Parliament subsequent to his nomination by the State Governor. But there is no logic in the contention of those honorable senators who urge that it was unnecessary for Senator Saunders to take the oath on the second occasion, though it will be necessary for him to take the oath if he is re-elected in November next. That is the way in which the question appeals to me. With reference to what has been said by Senator Stewart, I may point out that we are not discussing the value of the oath. The oath is provided for by the Constitution. The question for us to determine is when it shall be taken, and whether it should be taken again by Senator Saunders.
– I wish to commence by stating that I do not know much about the fine legal subtleties which to a large extent are involved in the question under discussion. But at the same time I cannot help remarking upon the easy and graceful way in which a number of the legal senators have brushed away the difficulties that confront them, and how easy they find it to say that we must not take a strict legal reading of the Constitution, but the “ broad common-sense view.” I like that term - “ the broad common-sense view.” But I always find it difficult to understand who is to say which is the “broad commonsense view.” We often find one “broad common-sense view” coming into conflict with another “broad common-sense view.” To my mind the whole question that has to be determined by the Chairman is this : Was Senator Saunders properly elected to the Senate; and, if he was properly elected, is he properly holding his place in the Senate ; and is he authorized by what has transpired to take part in the proceedings on exactlythe same footing as other honorable senators? In the strict legal interpretationof the Constitution, apart altogether from the “ broad common-sense view,” I want to know whether Senator Saunders is entitled to speak and vote here until he has conformed to all the formalities to which other senators have had to conform? Senator Keating endeavoured to lay it down that a senator if elected at one particular time and re-elected before his term of office expired was therefore continuously a senator, and that there was no need for his being re-sworn. That is to say, he argues that there has never been a vacancy.
– I argue that Senator Saunders has already taken the oath.
– That is to say, it is contended that there is no necessity to be re-sworn on the second occasion. Therefore, the senators who retire at the end of this session, if re-elected, need not be re-sworn in the next Parliament.
– Oh, no.
– Senator Fraser, the bush lawyer of this Chamber, says that that is not so, but Senator Keating, who is one of the legal lights of Tasmania, agrees that that is what he has been arguing : that if there is no necessity for an out-going senator, who is reelected, to be re-sworn, there is no necessity for a senator to be re-sworn on his election after having been nominated by a State Government. If Senator Downer were retained in a court of law, he would argue that it was not what Parliament meant, but what Parliament has expressely said, that the Bench should take notice of. I should like to remark here, that laymen in Parliament ought to be particularly careful abouttaking, without question, alegal opinion that is given by a legal gentleman on the floor of the Senate. It is necessary to take such opinions with a very large grain of salt. My experience amongst some of the most eminent of the members of the legal profession has been that their legal opinions given gratis on the floor of a House of Parliament are not worth anything. In fact, it is dangerous to accept them. I do not exempt Senator Downer from that general rule. In fact, I have a recollection that the honorable and learned senator, on an occasion during the sittings of this Senate, has given a legal opinion on the floor of this Chamber which he was not prepared to sustain outside.
– That is a anost disgraceful thing to say about any man for whom the honorable senator claims to have any respect.
– I certainly do say so. I warn laymen that they should take very carefully any legal opinion, as a legal opinion, that is given free on the floor of the Chamber, as being unreliable ; and I do not exempt Senator Downer from that rule by any manner of means. These legal opinions are not worth the paper they are printed on. As a matter of simple fact, though Senator Keating says that he cannot find anything in the Constitution making it an obligation on the part of senators who are retiring at the end of this session to take the oath if re-elected, we have expressly provided in our Standing Orders that they shall be re-sworn ; and it is notuntil they are re-sworn that we can proceed to the election of a President of the Senate. I direct Senator Keating’s attention to Standing Order 2, where we have expressly made that provision. And is it not an abrogation of parliamentary practice throughout the whole of the British Dominions to say that the re-election of a Parliament, or of a member of a Parliament, does not involve being re-sworn ?
– There are special English statutes, dating from the time of Charles II., dealing with that.
– We are not dealing with statutes passed in the reign of Charles II., but with the Standing Orders that only came into operation in this Senate last Tuesday, after very careful scrutiny and prolonged consideration. Those Standing Orders make special provision that a reelected senator shall be re-sworn.
– The case of Senator Saunders arose long before last Tuesday.
– Before these Standing Orders caine into operation on Tuesday last we had adopted temporarily the Standing Orders of the South Australian House of Assembly, and I would ask whether it is not the rule in that House that a man shall be ire-sworn upon re-election before he is entitled to speak and vote ? There is no Parliament in the British Dominions in which a ire-election does not involve a re-subscribing of the oath before the member re-elected is allowed to speak or cast a vote. The Standing Orders which we adopted, and which came into force on the 1st September, are more explicit and clear on this point than are the Standing Orders we temporarily adopted, but there is no mistaking the terms of the Standing Orders under which we conducted our business up to last Tuesday. I refer honorable members to Standing Order 6 of the South Australian House of Assembly.
– I think that was eliminated.
– I should like to know whether it was eliminated for the purpose of avoiding the re-swearing of an honorable senator who has been re-elected ? When the Chairman gives his ruling I shall be glad to learn whether he knows of the existence of any Parliament throughout the British Dominions in which, upon re-election, a member is not called upon to re-subscribe the oath ? There is another point to which I should like to direct attention. What is an election? Surely it presupposes a vacancy ? If there be no vacancy how can there be an election ? The Minister for Defence, I believe, first pointed out that Senator Saunders was continuously a member of the Senate from the time he wm appointed by the Governor of Western Australia, and beyond the date upon which he was elected, the 29th July. If the honorable senator was appointed and continued to be a senator up to the 30th J uly, and there was no vacancy, how could he be elected to fill a vacancy on the 29th J uly ?
– He was “chosen.” That is the word used in the Constitution.
– He was chosen or appointed.
– No, “ chosen “ is the word used.
– He was chosen in the place of Senator Ewing to represent Western Australia in this Chamber up to the 30th July?
– No ; he was . “ appointed.”
– I said the honorable senator was “appointed,” and Senator Drake took me to task and said that “ chosen “ was the word.
– No ; I said he was chosen by the Parliament. He was appointed by the State Governor.
– I do not care what it is. The fact remains that Senator Saunders was appointed to represent Western Australia in the Senate up to the 30th’ July, and up to that date he was a duly accredited member, because he had taken the oath. Up to that date there was no vacancy in this Chamber in the representation of Western Australia, and how comes it, then, that the honorable senator was elected on the 29th July?
– The Western Australian Parliament chose him under the Constitution.
– The Western Australian Parliament chose him before there was a vacancy ? Surely an election presupposes a vacancy 1 I direct special attention to this particular point, as it raises not only the question whether Senator Saunders should be re-sworn, but whether he has been properly elected to this Senate ; whether he could be elected until after a vacancy had occurred % I shall say a word or two upon the point raised by Senator Higgs in reply to the suggestion that there is a continuous representation in the appointment and the election, and that there has been no break between the two. I do not think that from a common-sense point of view, let alone a legal point of view, it can be said that there was no break between the 30th July and the 5th August.
– What has tho 5th August to do with it ?
– That was the first time on which we had a notification from the Governor of Western Australia that Senator Saunders had been elected by the Parliament of Western Australia to represent that State in this Chamber. Senator Saunders was appointed, and his appointment held good until the 30th July. On that date his appointment ceased ; and the next notification we have is that the vacancy created by the expiration of the appointment of Senator Saunders has been filled by the election of Senator Saunders. But there is a break between the 30th July and the 5th August, when the latter announcement was made. As Senator Higgs pointed out, supposing, after Senator Saunders” appointment had ceased to have legal effect, the Parliament of Western Australia had chosen a man named Jones ; will it be contended for a single instant that the election of Jones could have been held to be a continuous election to the Senate to fill the vacancy created by theretirement of Senator Ewing, and that thesubscribing of the oath by Senator Saundersupon his appointment, carried with it thesubscribing of the oath by the person named Jones, upon his election 1 Surely not 1 If it was Mr. Jones who came into this Chamber as the senator chosen by theParliament of Western Australia, he would have had te take the oath of allegiancebefore he would have been entitled to takeany part in our proceedings. These matters require very careful consideration. I donot know what Senator Saunders thinks about this discussion, but I wish before I resume my seat to assure the honorablesenator that there is no personal antagonism towards him. But the question is a rather important ‘one, and while raised at this particular juncture it happens to affectSenator Saunders, it might hereafter affectother members of the Senate. It is therefore as well that the subject should bethoroughly thrashed out, and that, a definiteunderstanding should be come to.
– I can hardly conceive that it is light that this discussion should be raised in the middle of a debate upon a Bill. It appears to me to be out of place and incongruous as a part of the proceedings upon the Defence Bill. But I let that go by. I am surprised that my friends in the Labour corner should be so very punctilious over little matters of this kind. They make a mountain of difficulty out of the finest and most delicate points of order. This question is simple enough. SenatorSaunders took his seat and took the oath of allegiance ; but, before the time when his right to continue a member of the Senate under his appointment expired, he wasspliced to himself by being elected. There was no interregnum at all. It consequently appears to me to be very frivolous indeed, to waste words upon a matter like this. We have surely very little to do. There can be no wonder if honorablesenators vacate their seats when they may well become tired of sitting here listening while these miserable distinctions aredrawn. I hope the matter will be dealt with once and for all and that we shall get to business again.
– Nearly every honorable senator who has addressed himself tothe point of order has made it absolutely clear that no personal feeling animates this, discussion. So far as I am concerned,.
I look at the question which has been raised from a legal stand-point only. I feel that I am justified in saying that every honorable senator desires that it shall be discussed in that way. I was anxious, if it were possible, to avoid being called on, in accordance with decisions of Speakers of the House of Commons, to construe an Act of Parliament, but as the point of order has raised incidentally a question as to the validity of a vote upon division, I am now called upon to give a decision. The question involved is a difficult one. I shall first of all shortly state the facts. Senator Ewing’s term of office would have expired in the ordinary course on the 31st December next.. Pursuant to the terms of the Constitution, the honorable* senator resigned his seat, and his place, adopting the words of the Act, became vacant “ before the expiration of his term of service.” Upon the resignation taking place, as I understand, the President duly notified the Governor of the State of Western Australia of the vacancy, and on the 20th May, Senator Saunders was appointed by the Governor-in-Council of that State. The Western Australian Parliament met on the 16th July, and on the 29th July chose Senator Saunders. On the 5th August the President notified the Senate of the fact by reading the following letter addressed to him by the Governor-General, and ‘dated 3rd August, 1903 : -
I have the honour to inform you that I am in receipt of advice by telegram from His Excellency the Governor of Western Australia that Henry John Saunders has been chosen by a joint sitting of both Houses of the Western Australian Parliament to fill the vacancy caused by the resignation of Norman Kirkwood Ewing. The Governor of Western Australia also intimates that the selection of Henry John Saunders will be confirmed by letter.
I assume for present purposes that the election of Senator Saunders was July certified by the Governor of the State to the Governor-General. I have no official information of that, but it is not doubted, and for present purposes we may assume. that the certificate duly caine to hand, although we have not been formally notified of the fact. I think that under these circumstances I should look at the Constitution to see whether, in my judgment, Senator Saunders was capable of recording his vote. Section ] 5 of the Constitution says : -
If the place of a senator becomes vacant before the expiration of his term of service, the Houses Of Parliament for the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State, or until the election of a successor whichever first happens.
I think that the second portion of the section beginning with the words, “ But if the Houses of Parliament of the State are not in session “ - where it is determined that, under those circumstances, the Governor in Council shall appoint - means a mere temporary expedient or stop-gap, so that the State shall not, if the Federal Parliament is sitting, be deprived of complete representation. I regard that appointment as completely subsidiary to the all-important appointment referred to in the first portion of the section, which is the governing portion, and declares that, in order that the representation shall continue until the end of the term, the State Parliament shall appoint. Although the section says that the appointment by the State Governor shall have validity until the expiration of fourteen days after the beginning of the next session of the State Parliament I am disposed to the view that immediately the State Parliament makes the choice in the terms of the section the term of the first appointment comes to an end. This period of fourteen days had, it appears, as a matter of fact, not expired at the time the State Parliament made the choice. But suppose that the period had expired - that two, three, or a dozen days had elapsed in the meantime - the question then is - would it have been necessary for Senator Saunders to have taken the oath, or can any distinction be drawn by reason of the fact that the choice of the State Parliament took place before the expiration of the fourteen . days ? With a vacancy existing, I am of opinion that as soon as the State Parliament chose somebody to take the place of Senator Ewing, that was a new election by a different constituent, which had to be recognised by this Senate. In my opinion there is a complete analogy between this matter and the ordinary machinery of the statute, which provides that senators shall hold office until the 31st December prior to which the new senators shall be elected. I have no hesitation whatever in coming to the conclusion that a vacancy does occur on the 31st December, 1903. That is declared by the Constitution itself, and I am now arguing by way of analogy. Section 13 of ‘the Constitution clearly declares - ……. and the places of the senators of the first class shall become vacant at the expiration of the third year.
Subsequently the section .goes on to say -
For the purposes q£ this section the term of service of a senator shall be taken to begin on the 1st day of January following the day of his election.
In my opinion, therefore, it is absolutely clear that in the terms of the Constitution, a vacancy does occur on the 31st December, and, consequently under section 42 of the Constitution, it is necessary for each senator who is re-elected to take the oath. The section is as follows -
Every senator and every member of the House of Representatives shall, before taking his seat, make and subscribe before the Governor-General or some other person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
Consequently I think that it is necessary under the circumstances for every senator, after his re-election, a vacancy having been created, to take the oath in’ the same way as when he was first elected to the Senate. It has been stated that apparently no interregnum takes place- - that there is no interval of time - but the Constitution declares that a vacancy does occur in the meanwhile ; and, in my opinion, that is the fact in this case. Senator Saunders, did, 1 believe, take the oath when appointed by the Governor in Council, and he was, at most, able to retain his seat for fourteen days after the assembling of the State Parliament, viz. : during the currency of that appointment. Senator Saunders or anybody else might have been subsequently appointed by the State Parliament : and [ do not regard the temporary expedient or stop-gap as a choice which we are to recognise after the 30th July. When we were notified by the State Parliament of the election it was, in my opinion, necessary for Senator Saunders to again take the oath. The Standing Orders with which I have fully prepared myself are most conclusive as to what it is necessary to do after a periodical or general election. Paragraph (d) of standing order 2 is as follows : -
The writ of election of each senator elected since the last sitting of the Senate, with the return indorsed thereon, having been previously” delivered to the Clerk, shall by him be laid upon, the Table, and each senator may then make and subscribe the oath or affirmation of allegiance in the form set forth in the schedule to the Constitution.
Consequently, I feel myself forced to theconclusion that it was necessary for SenatorSaunders to take the oath after he had been duly elected by the State Parliament ; and under those circumstances I think that thehonorable senator’s vote in this particular- division should be disallowed.
– I think that in this” case it is desirable - to have a ruling fromthe President.
– I was just about to formally disagree with the ruling; of the Chairman.
– Then I shall give way to the honorable and learned senator.
– Mr. Chairman, I beg to dispute your ruling on the ground that Senator Saunders continued as. senator, .and that therefore the oath of allegiance taken by him continued ; and on the further ground that it is not necessary for any senator who has taken the oath of allegiance to take any further oath on beingreelected.
In the Senate :
– I have to report that in Committee a point of order was raised in regard to the vote of Senator Saunders, and, as a result, I determined to disallow that vote. Beingaware that you were actually in the chamber and heard me give my reasons formy ruling, I shall not attempt to repeat them ; but Senator Downer now disputesthe ruling on the following grounds, which,, in accordance with the Standing Orders, he has handed me in writing -
I beg to dispute the Chairman’s ruling on the. ground that Senator Saunders continued as . senator, and that therefore the oath of allegiance taken by him continued ; and on the further ground that it is not necessary for any senator who has taken the oath of allegiance to take any further oath on being re-elected.
– I shall make . my remarks exceedingly brief. I agree with a great deal of what the Chairman has said. There is no doubt that the appointment by the State Governor is merely an interim appointment, in order to preserve the continuity of the senatorship, and secure that the State shall always be represented. The substantial and ultimate act - although it- has effect only until the next general elections - is the act of the Legislature. But when that act is performed - and this is what I suggested to the Chairman himself - the person appointed remains a senator.
– But suppose some one else is selected ?
– That remark shows the hyper-criticism of special pleaders who are not lawyers. The point is that the person selected is made a senator, and it does not matter how he is elected. He is made a senator and he continues a senator until Parliament exercises its discretion. He retains his position truly enough by another election, but he never ceases to be a senator. There never was a moment during the. period of his senatorship that Senator Saunders could not have exercised his vote. Can one conceive a more hyper-technical view than that because the method of election has been altered the fact of the election has changed? The point I take is that Senator Saunders was elected a senator and remains a senator up to the present time. We have bo right to inquire as to how he was elected ; he has never ceased to be a senator, and he has taken .an oath which continues. I also add in my written reasons the point which I raised previously, but which, perhaps, it will not be necessary to decide.
– This is a matter in which I have to express an opinion as to whether the ruling of the Chairman of Committees is right, and I approach the task with the gravest sense of the responsibility of the situation. I have to differ from the ruling of the Chairman of Committees, and I do so with regret, because I fully recognise that the honorable senator brings a great deal of ability to his duties, and that, if he has been incorrect in his ruling, the matter was undoubtedly one of the gravest difficulty. I do not intend to travel beyond the immediate question under consideration, and that is : Ought Senator Saunders to have taken the oath of allegiance twice or once ? Our Constitution is fundamentally different in a great many points from any of the Constitutions with which we have been acquainted. One of the fundamental differences is that no State shall be at any time unrepresented or partially represented in the Senate. The proposition is laid down that elections for senators shall take place before there are any vacancies,, so that there shall always be a continuity, as far as possible, of six senators to represent each State. If that fundamental difference exists between ourConstitution and those to which we have been accustomed, it cannot be wondered at thatdifferent results may accrue. There is nodoubt that Senator Saunders has not ceased’ to be a senator from the time when hewas nominated by the Government of Western Australia until the present moment. There is equally no doubt that he took hisseat some time after the nomination by theState Government, and before being chosen by the State Parliament, and that he hascontinued to occupy that seat. Not havingceased to sit, where is the necessity for him to take the oath of allegiance again ? Section 42 of the Constitution Act provides-, that no senator shall take his seat until at teihe has taken the oath of allegiance. Senator Saunders took the oath of allegiancebefore he took his seat, and he has continued’ to occupy that seat ever since. Could hehave been stopped at any time from speaking on the ground that his seat had becomevacant ? He has continued to occupy hisseat ; it has never become vacant.
– Nobody has everchallenged him.
– No ; but the conclusion at which I arrive from that consideration is that Senator Saunders did take* the oath of allegiance before he took hisseat, and that there has been no break of continuity in the occupation of the seat. I must ask honorable senators to draw a distinction between two things which may bemixed up, and that is between the election of a senator and the taking of a seat in theSenate. A man becomes a senator, not because he has taken an oath, not becausethe Governor-General has sent a certificateof his election, but because he has been elected. It may be that there are somepreliminary requirements to be observed before he can take his seat and vote ; but still he’ is a senator for the term of” his election, and the prohibition in section 42 of the Constitution Act is against his taking his seat until after he has taken theoath of allegiance. What would be the result if a senator were to take his seatbefore he had gone through those necessary preliminaries t He would simply be liableto pecuniary penalties ; it would not invalidate any of our proceedings. It is; expressly set out in section 46 of the Constitution Act that if a senator takes his seat, and votes and acts as a senator, without undergoing and conforming with the necessary preliminaries, he shall become liable to pecuniary penalties. In considering this question we must put aside any consideration as to any grave consequences which may follow. The only consequences which can follow, if I am wrong in my interpretation of the Constitution, is that Senator Saunders will be liable to pecuniary penalties. That analogy is borne out in the British Parliament, where the possibility is contemplated of members taking their seats and voting before they take the oath of allegiance. They are, in such cases, subject to pecuniary penalties. It does not invalidate their votes or the proceedings of the House. It may be that there would be a distinction after a periodical election. If honorable senators will look ar section 13 of the Constitution Act they will see that possiblyI do not express any opinion about that - “there may be an interregnum - a vacancy when half the Senate retires. But that certainly has not happened and cannot happen here. There are two possible methods of interpreting the Constitution. First, there is the merely technical construction of the words. If we apply that method, there is absolutely nothing in the words of the Constitution which provide that a senator need take the oath of allegiance more than once. Having once taken the oath of allegiance, then, according to the strict wording of the Constitution, he can take his seat at any time; there is absolutely no prohibition to the contrary. But the proper method of interpretation is to consider the spirit and the intention of the Constitution. Looking at sections 15, 42, and 46, I cannot arrive at the conclusion that it was ever intended that a senator should be obliged to take the oath of allegiance twice over in the circumstances under consideration. In the circumstances of this particular case it is perhaps very difficult to interpret section 15, and we can only arrive by implication at the power of a State Parliament to choose a senator after he has been nominated by the Governor of the State. No express power is given, and it is only a necessary implication from the wording of the Act. If we must resort to necessary implication on so important a question as that,, it is undoubted that we can resort to necessary implication in deciding whether or not a senator should be obliged to take the oath of allegiance twice.
– Suppose that somebody else had been elected 1
– In this case, somebody else has not been elected, but if somebody else had been elected, of course, the position would have been quite different, because that person would not have taken the oath of allegiance.
– Does not that presuppose a vacancy ?
– So far as it concerns my argument, I do not think it matters whether there was a vacancy or not. In this case there was not, and could not have been a vacancy.
– Then there could not be an election.
– Yes, in anticipation. All the periodical elections are held in anticipation of vacancies to occur. The spirit of the Constitution, so far as senators is concerned, is that no State shall be unrepresented by six senators, and, therefore the elections take place in anticipation of the vacancies to occur. The fact that the certificate of the Governor-General did not reach the Senate until the 5th August does not appear to me to have any bearing on the question, because Senator Saunders had taken the oath of allegiance and continued to be a senator, and if His Excellency, in consequence of the necessary course of post, and the distance from Western Australia, had not given that certificate for some considerable time after the election had taken place, I do not see that Senator Saunders can be prejudiced, or that, in consequence of the difficulty arising from distance, he was obliged to take the oath of allegiance a.gain. The matter we have to decide is : Can Senator Saunders vote ? Suppose that he had not taken the oath of allegiance, and that he did not vote, what would be the result? He would be liable to pecuniary penalties. But can we say that being a senator, and sitting here illegally - under the supposition which I am now arguing - we can deprive him of his vote 1 The oath of allegiance which he has taken is not abrogated, or dissipated, or invalidated by any lapse of time ; and therefore I think he is entitled to vote.
– Under Standing Order 415, sir, which reads -
If ari3’ objection is taken to the ruling or decision of the President, such objection must be taken at once, and in writing, and motion made, which, if seconded, shall be proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day, unless the matter requires immediate determination.
I beg to hand in a written disagreement with your ruling, and I shall be very glad if the Senate can agree that the matter does not require immediate determination, and therefore may be postponed until the next sitting day.
– I think that by the Standing Orders a motion has to be proposed and seconded that a ruling be disagreed with.
– I move -
That the President’s ruling be disagreed with.
– I second the motion.
– The honorable senator has handed in this statement -
- Se* the position of Senator Saunders, I beg to disagree with the President’s ruling.
I think that reasons must be given for the disagreement. Under the old Standing Orders reasons have been given for objections, but I do not think it is so in the new ones.
– I should be quite willing to write my reasons, but it might take me some time.
– I shall now leave the Chair.
– Should not the matter be settled now? The Chairman has decided that Senator Saunders cannot vote.
– lt does not require immediate attention.
– But I think the question should be put to the Senate now.
– The standing order says that the motion shall be made. I have made the motion. It must be seconded. It has been seconded. Then it must be proposed to the Senate, and the debate thereon forthwith adjourned till the next sitting day.
THE PRESIDENT. - The standing order says that the debate shall be adjourned. No motion is required to that effect. The adjournment takes place by force of the Standing Order.
– I have another amendment tosuggest on clause 52. The object of it is tobring the clause into line with the previousclause which has already been amended. I move -
That, after the word “King’s,” line 10, the word. “ regular” be inserted.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 53 (Military forces on activeservice subject to Army Act).
Senator MATHESON (Western Australia). - I am anxious to draw attention tothe peculiar situation in which this Bill, now stands. Under the Bill, as introduced in another place, the military forces were at all times and on any service subject to theArmy Act. I believe it is found in all the States that the existing Defence Act3 do notgo far enough, and it was thought necessary to supplement them by the British ArmyAct, quite apart from the King’s regulations.. The Bill in this respect has been materially amended, and the clause as it now standsonly brings the military forces under the operation of the Army Act whilethey are on active service. A gap has been created, and no attempt has been madeto fill it. If the Army Act was necessary for the control of the forces during peacetime, when the Bill was introduced, and if that control has been knocked out, something ought to be provided to fill the space-
– I think the regulations, are sufficient.
– But nothingwhatever has been added to the Bill tomake them sufficient. Here, again, nothingcan be done by moving an amendment. I call attention to the fact that there is an obvious defect, and leave it there. If theGovernment do not deal with it they will be to blame hereafter.
– The honorable senator is perfectly right in saying that when the Bill was introduced into anotherplace the Army Act was made applicable to our Defence Forces. Very strong objection was taken to that, and it was ultimately decided that the Army Act should apply to our Defence Forces only when they were on active service. It is believed that the regulations will be sufficient, for the management of the troops when not. on active service.
Clause agreed to.
Clause 54 agreed to.
Clause 55 -
When any member of the Defence Force is killed on active service, or on duty, or dies, or becomes incapacitated from earning his living from -wounds or disease contracted on active service, provision shall be made for his wife and family out of the Consolidated Revenue Fund at the prescribed rates.
– I have two amendments to propose in this clause. Provision is made as to the families of those who are killed on active service, or who become incapacitated from earning their living from wounds or diseases contracted on active service, but the clause will be incomplete unless after the word “ service “ we add the words “ or on duty.” If the family of a man who is killed on duty receive a pension, then the family of a man who while on duty becomes incapacitated from earning his living should have provision made for them. If it is a proper thing to provide for the family of a man who is killed on duty, it is equally proper to provide for the family of a man who is incapacitated by an accident that happens while he is on duty. The effect upon the family is identically the same whether the man is killed or so injured as to render him incapable of maintaining his family. I know of cases that have occurred. There was, for instance, the deplorable accident that happened in Port Jackson some years ago in connexion with the annual training, when a whole boatload of men was blown up, some of them being blown to eternity. The New South Wales Government is now paying pensions on account of those injuries. Of course active service means service in time of war. But an accident may happen in time of peace to a man who is on military duty. In the manning of forts, or during the periodical practices of batteries, men may be so injured as to be rendered incapable of earning their living and supporting their families. Therefore I think the words “or on duty “ ought to be inserted.
– That would make the clause apply to cases of disease.
-Col. NEILD. - It would apply to diseases contracted while on duty.
– Suppose the case of a man who was struck with paralysis while on duty. The paralysis might have nothing to do with his work.
– Or take the case of a man afflicted with consumption.
– It is impossible to fix the starting-point of consumption. Who knows when it commences? But I know of cases where men were incapacitated through what occurred while they were on duty. On one occasion during the annual training in New South Wales a few years ago, certain men were ordered out to do certain night duty. Not to put too fine a point upon it, three members of my own regiment died in consequence, and the Government recognised its liability in respect of a colour-sergeant by paying the sum of £23 to his widow for funeral expenses. That man was killed by what I regarded as an improper demand upon him. He was compelled, after a long day’s work, to go without food, and without an overcoat, to do duty in what was practically a swamp on the banks of a creek, in the midst of ti-tree scrub. I buried three members of my regiment over that transaction, and I got into hot water for defending them. I am able to speak of the matter here because it has nothing whatever to do with the Commonwealth or with my present position, and I can mention it without any breach of propriety.
– That does not answer my question about contracting disease.
-Col. NEILD. - I am prepared to leave out the reference to disease. If Senator Drake, with his capacity for drafting, will assist me, I shall be satisfied to make this apply merely to wounds or injuries, but I shall not be satisfied with less than that. Honorable senators are aware that very many men have been injured in connexion with military training, and have received no recognition at all. I move -
That after the word “ service,” line 4, the words “or from injuries received while on duty” be inserted.
– This formis, of course, better than the form of the amendment as originally proposed by the honorable senator, but I still think there is some danger that it is too wide. It ought to be made clear that the injuries have resulted from the performance of duty. The clause provides that a certain course shall be taken if a man is killed while on duty, and it is there presumed that it is his duty which takes him into the position of danger. A man might be disabled by injuries which he would have received whether he had been on duty or not.
– I believe the common law decisions would settle that matter.
– I have not the same objection to this amendment as I had to the amendment as first proposed ; but I hope that if the honorable senator carries this he will be content, and will not press the other amendment to the clause of which he has given notice. It would, I think, be going too far to enact that provision should be made for the wife and family of a man incapacitated through injury while on duty, and also for the man himself so long as he remains incapacitated.
Amendment agreed to.
Senator Lt.-Col. NEILD (New South Wales). - The Minister for Defence appeals to me not to proceed with the other amendment upon this clause of which I have given notice - namely, to insert after the word “family “ the words “for himself so long as he remains incapacitated as aforesaid.” I think that when a man has become incapacitated from earning his living,’ from injuries received while on active service or while on duty, the Commonwealth should not only support his family but also himself.
– Every man must take some risks of the ordinary casualties of life.
– There appears to be a better reason for making provision for the man than there is for making provision for the wife and family’ as they can work.
– There may be very young children who cannot work.
– If we help the wife and family we surely relieve the man 1
– There is. much to bc said in favour of Senator Glassey’s contention, and the honorable senator will recognise that while the children will every day be growing older and better able to keep themselves, the unfortunate man who is incapacitated from earning his living will every day be growing more feeble. This provision may be looked upon in the light of an old-age pension. The Senate agreed as to the desirability of making a general provision of that sort only yesterday ; and if it is right that such provision should be made of general application, there is surely greater force in contending that it should apply in the case of a man who has bled for his country, and who in the performance of his duty has been injured in such a way as to become a cripple and helpless for life ?
– He might be a single man, and his injuries might totally unfit him for work.
-Col. NEILD.- I thank the honorable senator for the suggestion. If a soldier who happens to be married is injured the Commonwealth is prepared to make provision for his family ; but if he is a single man he may die in the gutter. He cannot hope to secure the benefit of an old.-age pension, because his service in the military forces ceases absolutely when he is sixty years of age, and sixty-five years is the starting point for old-age pensions in the States in which they are paid. I appeal to the Minister for Defence to admit that a man who has bled for his country and has become incapacitated from earning his living, ought not to be left as a human, derelict at the mercy of the world. If the principle of giving anything at all in these cases isadmitted, surely the man who has done service to the country, and who has suffered injury, is as much entitled to be assisted asis his family. I move -
That, after the word “family,” line 5, the words”and for himself so long as he remains incapacitated as aforesaid “ be inserted.
– The contention of Senator Neild in favour of some payment being made to a person who may be disabled under the circumstancesdescribed is deserving of every consideration.. Whether the man receives injuries while on active service or while qualifying himself for active service, some payment should bemade to him. We have had too many wellfounded complaints from men who haveserved the best years of their life in theBritish Army, who have become incapacitated from earning a living, and who, though they may be given a paltry miserable pension, have been left to die in the workhouses. We do not desire a repetition of that kind of thing in the Commonwealth of Australia. We expect that humane treatment shall beaccorded to those who render service to the country. I happen to have a military friend in the gallery who has had large experiencein connexion with these matters, and he has reminded me of the fact that upon oneoccasion two men were shot dead at a rifle butts whilst qualifying for their duty as soldiers. If those men had an aged fatheror mother, or other relatives entirely dependent upon them for support, would not thosepeople have a claim upon the State ? There is no provision of the kind made in this. clause, or in the amendment, which has been moved by Senator Neild.
– My amendment lias reference to the case of the man himself who is incapacitated for life.
– I agree with the honorable senator that a man who has received injuries which incapacitate him from earning his living should be supported by the State. I remind Senator Drake of the case of Mr. Walker, in Queensland, who was an artilleryman, and who lost both his arms whilst engaged in firing a salute. That man was disabled for life, and he managed to get some consideration for a time. After securing artificial arms, he thought he could earn a better livelihood by working for himself, but a time of stress and trouble came when he could no longer work, and with others, I have again and again urged the Government of the day in the Queensland Legislative Assembly to consider his case and give him something substantial. That is a case in point, and I ask whether such men, who have received injuries whilst doing good service to the “State, should be allowed to suffer penury -and misery? Senator Drake says that a man must run some risks ; but that is no reason why a man who has received injuries in the way described by Senator Neild should be left in a condition of destitution and misery in the State which he has served. As a representative in this Chamber, and as a representative in other Chambers previously, I never have been, and I never shall be, a consenting party to such a course. The amendment will undoubtedly have - my support, and it is entitled to the support of every honorable senator who has given any consideration to the subject. No doubt Senator Drake regards it as undesirable to impose any more charges on the revenue of the country, but it would be paltry to avail ourselves of the services of men, and, when they are disabled, send them to die in the workhouse, or to depend on their relations, cr on the miserable doles served out by the Government. I hope that we shall take a . higher and more humane ground.
– This clause I find will have to be redrafted. It is somewhat confused now, and apparently lays it down that provision must be made for a man after he is dead. There are several contingencies which have to be considered, and if honorable senators will allow the clause to pass, I shall have it redrafted and again submitted for discussion.
Senator Lt.-Col. NEILD (New South Wales). - I cannot grasp the funny proposition submitted by the Minister, and I can only regard it as an illegal opinion from a legal gentleman. I admit that the clause would be better for some alteration, and I propose to submit my amendment in a slightly different way. I should like to move that after the word “ for “ the word “ him” be inserted. Subsequently I shall move that the words “ so long as he remains incapacitated as aforesaid” be inserted after the word “ family.”
– What about aged parents ? A man may be unmarried and be the only support of his parents.
.- While I sympathize with Senator Glassey, I do not see how we can find support for the multitudinous relatives of a man. My amendment is in favour of the man himself, we having already agreed to support the wife and family.
– I have already informed the Committee that I propose to redraft the clause, and re-submit it for discussion.
– If the clause is to be re-submitted, I ask leave to withdraw my amendment.
– Will the Minister make some provision in the direction indicated by Senator Neild 1
– I hope that the clause which the Minister proposes to draft will not be quite so vague and general in its terms as the clause before us. The clause simply speaks of provision for the “ wife and family,” whereas the provision ought to be for the wife who is unable to work, and for each of the children until they are fourteen or fifteen years of age.
– The provision really requires dividing into two clauses, one dealing with the dependents of a man who has been killed, and the other with a man who is incapacitated.
– I have given notice of an amendment giving power to make regulations providing for the carrying out of this clause. I gave that notice in view of Senator Neild’s amendment, in order to obviate the necessity of including a lot of details in the provision.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 56 agreed to.
Clause 57 -
All male inhabitants of Australia …. between the ages of eighteen and sixty years shall, in time of war, be liable to serve , in the Militia Forces.
– Is the age of sixty years not too high? I seems to me that, when men are fifty or fifty-five years of age, many of them could not be of much use in the field. I suggest that the age be reduced to fifty or fifty-five years.
– Men between fortyfive and sixty years of age are in the fourth class, and cannot be called out until all the persons included in classes one, two, and three have been exhausted . I am inclined to think that under the desperate circumstances which would require men of the fourth class to be called out, those of sixty years of age might be asked to serve.
– I have here a quotation which is of interest on this very point. It is as follows : -
I have watched with interest the volunteer. movement, which I hope will never die, and which has steadily progressed until it has reached its present position as the backbone of the national home defence.
These are the words of General Sir W. Gatacre, in reference to the volunteers of the old country. Under thelaw governing the volunteer forces of England, an officer’s commission of service can be extended until he is 67 years of age, and these are the forces which are recognised by so eminent a fighting man as Sir W. Gatacre as the backbone of the home defence of the old country.
Clause agreed to.
Clause 58 agreed to.
Clause 59 -
The Governor-General may, by proclamation, declare what persons shall be exempt from service in the Defence Force, provided that persons whom the doctrines of their religion forbid to bear or perform military service shall be exempt upon such conditions as may be prescribed.
– I question whether it is desirable to leave the exemptions entirely in the hands of Governor-General. In the first Defence Bill which was introduced there was a very amplelist of exemptions, and though it might not be desirable to include the whole of these, I think Parliament is in a position to deal with such a matter. It is contemplated that Parliament shall meet within ten days after the proclamation which calls upon persons to enlist in the militia, and, under the circumstances, I am of opinion that Members of Parliament ought to be exempt.
– Let them take their share of the fighting.
– But how can Parliament meet if Members of Parliament are not exempt from service ?
– Does the honorable senator not think that the proclamation might be made wider or the reverse according to the exigencies of the occasion ?
– But if a proclamation is issued, Parliament must be called together.
– I am speaking of the proclamation which states what persons are exempt.
– Icertainly think Parliament is quite capable of expressing an opinion as to what persons ought to be exempt from service.
– We do not want to lay down the rule for all time, and I am afraid that we should not be able to agree on the list.
– I do not see why the Minister should say that. Clause 32 of the first Defence Bill contained the following ample list of exemptions : - Members of the Parliament, or of the Parliaments of any States ; Justices of the High Court, or any Federal Court ; Justices of any StateCourt ; officials of the Parliament, or of’ the Parliament of any State ; heads of any Department of the Commonwealth orof any State ; Police or Stipendiary Magistrates ; ministers of religion ; superintendents, gaolers, and warders of gaols ; officers, and staff of public hospitals, benevolent asylums and lunatic asylums ; persons disabled by bodily infirmity, and the only son of a widow being her only support.
– I think we ought to have a clause of that sort.
– But in the case of the police, for instance, it might be wise to exempt them at one time, and not at another.
– I move, in order to test the question -
That the following words be added : - “(la). The following persons shall be exempt from service in the Defence Force : - Members of’ the Parliament, or the Parliament of any State.”
– What is the meaning of the words “ upon such conditions as may be prescribed “ 1 If we are to exempt those who owing to their peculiar doctrines of religion, cannot bear arms for military service, why not do so at once, without adding these words to the clause ?
– Perhaps the honorable senator is not aware that Senator Matheson has moved a prior amendment to that which he is suggesting.
– This matter has been very carefully considered, and I think it may be left very safely to the GovernorGeneral by proclamation to declare, according to the circumstances of the time, what class of persons should be exempted. What Senator Matheson is proposing now would not be a fair test at all. If the question is put that Members of Parliament shall be exempt, a good many honorable senators will feel that if they vote in the negative it will be to affirm that Members of Parliament should not be exempt from military service. I think it is’ much better to leave the clause as it is. The matter has been fully considered and thrashed out. It may be desirable in the proclamation to make the exemptions a great deal wider in some cases than in others.
– We propose to allow for the exemptions to be extended. This is the substratum, so to speak.
– The honorable senator starts with the exemption of Members of Parliament - on which, perhaps, there will be no difference of opinion - and then he comes along with the exemption of the police.
– We shall take them one by one.
– When we come to deal with the exemption of the police, what is likely to be the feeling of the Committee ? I should think that the opinion of the Committee will be that just as in certain circumstances it might be quite right to exe*mpt the police, in other circumstances it might not be desirable to do so. I submit that it is far better to deal with the question by means of a clause of this description. With regard to the conditions which have been referred to, I understand that the intention is that where a man objects, on religious grounds, to fighting, other kinds of work might be prescribed which he would be willing to do. Suppose that a man on religious grounds were to say, “ I cannot do any fighting,” and we required every fighting man to be at the front, it would be very reasonable to ask that man to help in attending to the sick and wounded. These are the conditions which would be prescribed. I do not know that any good can result from going through a list of exemptions, especially at this hour, and I hope that the amendment will be withdrawn.
– I would also ask Senator Matheson to withdraw his amendment. If we begin to insert a list of exemptions in the Bill we shall have to start with Members of Parliament and wind up with lunatics. The clause specifies that all men of certain ages are to serve, and if we begin to put in exceptions we shall have to except lunatics. According to the legal aphorism expressio unius est exclusio alterius if we expressly exclude certain classes, all other persons must be included, and the Bill provides for the service of all men of certain ages. We must trust to the Ministry of the day to issue a list of exemptions in a regulation which it would be in the power of either House of the Parliament to veto.
– The clause says it is to be done by proclamation, not by regulation.
.- On referring to the clause again I find that the honorable senator is quite right. If the word “ regulation “ were substituted for the word “ proclamation,” any regulation would have to come before each House of the Parliament and its opinion could be expressed. If Senator Matheson will withdraw his amendment I shall submit a proposal to that effect.
Senator MATHESON (Western Australia). - Senator Neild has absolutely failed to bring forward any evidence to support his statement that the list would have to end with lunatics. He merely chose that word as a finishing touch to an interesting speech. The Minister based the whole of his argument on- the idea that the police were proposed to be exempted,, when the words 1 used were “ police and. stipendiary magistrate.”
– I understood the honorable senator to say “ police.”
– I really fail to see why it is better that the GovernorGeneral should, by proclamation, say what persons shall be exempt than that we should frame a list of exemptions, lt seems to me that in all these Bills we are deliberately going out of our way to shirk our responsibility. This is undoubtedly a responsibility which the Parliament should accept, and should not leave to the Governor-General. However, as the feeling of the Committee seems to bo against me, I am perfectly prepared to fall in with the suggestion of Senator Neild, because the power of revision would be in our hands.
Amendment, by leave, withdrawn.
Amendment (by Senator Lt.-Col. Neild) agreed to -
That the word “proclamation,” line 1, be left out with a view to insert in lieu thereof the word “regulation.”
– I should like to have the opinion of the Minister for Defence on the question of inserting the words “ including members of the Society of Friends” after the word “ persons.” There is a very strong feeling in Great Britain, as well as here, that the Society of Friends have shown for hundreds of years the strength of their conviction that it is wrong to take part in a war. It would involve considerable trouble if each person who desired to be exempted had to make a declaration that he was a member of the Society of Friends. If the words I have suggested were inserted, un official list of the members of the Society of Friends in each town or city could easily be obtained.
– The Society of Friends might have a large accession to their number just before a proclamation had to be issued.
– I do not think so, because the Society of Friends are decreasing in number. I do not wish to press my objection, but I should be glad if thu Minister could see his way to include the members of the Society of Friends.
– I wish to point out to Senator Walker that the second part of tho clause provides that the burden of proving exemption from service in the Defence Force shall rest on the claimant. It will be just as easy for a person to make a declaration that the doctrines of his religion forbid him to bear arms, as to prove that he is a member of the Society of Friends. My honorable friend will see that it really comes to exactly the same thing, though I sympathize with the view which he has expressed.
Clause, as amended, agreed to.
Senate adjourned at 9.58 p.m.
Cite as: Australia, Senate, Debates, 3 September 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030903_senate_1_16/>.