2nd Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
– I desire to ask you, sir, as Chairman of the Standing Orders Committee of the Senate, whether your attention has been drawn to a paragraph in to-day’s Melbourne Age, purporting to be a report in connexion with the question of lapsed Bills, and, if so, whether it is a correct account of the decisions of the Joint Committee on Standing Orders?
– My attention has been drawn to the paragraph, and it is not a correct report. It is altogether improper for the members of a Select Committee to inform the press of what has been done until it has reported to the Senate. I beg to lay upon the table the report of the joint Committee.
Report read by the Clerk.
Motion (by Senator Playford), agreed to-
That the paper be printed and taken into consideration on Thursday next.
Bill read a third time.
Bill read a third time.
– I move - ‘
That the Bill be now read a second time.
The object of the Bill is to fill what may be called a gap in the Service and Execution of Process Act of 190t. Section 18 of that Act purports to enable process for the arrest of a person who has passed from one State to another to be issued in the former, and to be backed iri the latter by a magistrate, so as to enable the person to ‘be apprehended and dealt with summarily, as if the offence which he is alleged to have committed had been committed in the latter State. It provides that warrants may be backed for execution in another State. It says -
When a warrant has been issued by any Court or Judge or any justice of the peace having jurisdiction in any State or part of a State, or part of the Commonwealth, for the apprehension of any person……. any justice of the peace having jurisdiction in any other State or part of a State, or part of the Commonwealth, in which such person is or is supposed to be may on being satisfied that the warrant was issued by such Court or Judge, or in the case of a warrant issued by a justice of the peace, upon proof on oath of the signature of the justice issuing the warrant, make an indorsement on the warrant authorizing the execution thereof within such other State or part.
Prior to the passing of our Act, the Imperial Fugitive Offenders Act provided for the arrest of offenders going from one British Possession, to another. Part 2 of the Act had special reference to cases such as the Australian Colonies ; it is headed “Intercolonial backing of warrants and offences.” Section 12 provides that this part of the Act shall apply to groups of contiguous British Possessions, or Possessions that are closely related geographically, when and so often as Her Majesty in Council may by order decree and determine, and subject to such conditions and limitations as the Order-in-Counci’l may provide. Section 13 provides for the backing in one British Possession of a warrant issued in another Possession of the same group. Section 14 provides that a person apprehended in the second province may be returned to his original province or Colony and dealt with summarily by a justice or a Court. Section 16, which is a very important one, provides for the backing of a provisional warrant. It reads as follows : -
A magistrate in a British Possession of a group to which this part of this Act applies, before the indorsement in pursuance of this part of thisAct of a warrant for the apprehension of any person, may issue a provisional warrant for theapprehension of that person, on such information and under such circumstances as would in his opinion justify the issue of a warrant if the offence of which such person is accused werean offence punishable by the law of the said Possession, and had been committed within the jurisdiction, and such warrant may be backed and executed accordingly ; provided that a person arrested under such provisional warrant shall be discharged unless the original warrant .is produced and indorsed within such reasonable time as may under the circumstances seem requisite. ‘
Part 2 of the Fugitive Offenders Act, dealing with groups of British Possessions, was applied by an Order-in-Council dated 3rd August, 1883, and made to operate from the 1st January, 1884, to New South Wales, Victoria, South Australia, Queensland, New Zealand, Tasmania, Western Australia, and Fiji all as one group. The operation . of that Act, coupled with this
Order in Council, has this effect : that a person going from one of the Australian Colonies, as they were then called, to another might be followed by a warrant from his own Colony, which on being indorsed in the manner prescribed in part 2 of the Act, would enable the justices or a Court of competent jurisdiction in the second Colony to deal with him as if an offence had been committed there, and return him to his own Colony. If the warrant had not been received in the second Colony, section 16, which I have quoted, would have enabled a magistrate in that Colony on receiving satisfactory information, to issue a provisional warrant, back it, and act upon it, and wait for the original warrant to arrive, and if it did not come within a reasonable time, then, under the proviso, the alleged offender would have to be liberated from custody.
– The words “within a reasonable time” are in this Bill, but it does not follow exactly the wording of the provision in the Fugitive Offenders Act.
– I am not comparing the two provisions just at, this moment. Owing to a decision which was recently given by a Judge of the Supreme Court of a State, and supported by the Full Court of that State on an application, it was held that the provisions of the Fugitive Offenders Act do not apply now to the case of the Australian States. The point raised before the Court was that the States of Australia being now comprised in one Commonwealth were not, as between themselves, a group of British Possessions, such as is contemplated by that Act. In giving judgment, the Chief Justice saidMr. Pilkingtons point as to Australia being one British Possession was fatal to the warrant. Australia was under one central Legislature, and that being so, the Commonwealth was one British Possession, and the Fugitive Offenders Act did not apply to the various States, which were not now separate British Possessions. He added that it was unnecessary to deal with the other points. Our Service and Execution of Process Act contains no provision for the issue of provisional warrants as the Fugitive Offenders Act does, and this Bill provides for that omission. I understand that it practically follows the wording of section 16 of the Imperial Act. There may be a variation, but I do not think that any variation is intended to cause our own legislation to have any different effect from that which the Imperial Act had here prior to Federation. I think that with this explanation, honorable senators will see that this is not a measure of a contentious character, but one which is necessary to give full force and effect to our original Act, and to remedy an omission to which attention was only recently drawn in a certain case. The contention which was raised in that case, and which was upheld by the Full Court may in the opinion of some legal gentlemen, be open to criticism. It is not a question of whether it is or is not open to criticism. We can make the position absolutely certain by passing this measure.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Clause 2 -
Section eighteen of the Serviceand Execution of Process Act 1901 is hereby amended by adding at the end thereof the following sub-section : - “ (5.) Any justice of the Peace, having jurisdiction in the State or part in which the person against whom the warrant was issued is or is supposed to be, may, before the indorsement of the warrant, issue a provisional warrant for the apprehension of that person, on such information and under such circumstances as would in his opinion justify the issue of a warrant if the offence of which that person is accused were an offence punishable by the law of that State or part, and had been committed within his jurisdiction ; and the provisional warrant may be executed accordingly. “ Provided that a person arrested under a provisional warrant shall be discharged unless the original warrant is produced and indorsed within a reasonable time.”
– I agree as to the desirableness of passing this Bill, and have practically no criticism to offer, except to point out that, while this clause is, to all intents and purposes, a rescript of a section in the Imperial Fugitive Offenders Act, there is at the end of it an alteration which, though small, perhaps, does not improve the original text. The clause provides that a person arrested under a provisional warrant shall be discharged unless the warrant is produced “ within a reasonable time.” Those words cut down the words of the Fugitive Offenders Act, but do not improve them. I think that the words of the Imperial Act would probably be a better indication to an ordinary justice of the peace as to what his duty was than would be the case by using the very vague and elastic words “ within a reasonable time.” The Imperial Act uses the term that the time may be such “ as, under the circumstances, may seem requisite.” Perhaps Senator Keating will explain why, as this clause is practically a rescript of a section in that Act, the words are cut down ?
– The words of the English Act are “ such reasonable time as under the circumstances may seem requisite.” I think that the words “reasonable time” carry with them the sense of “ reasonable under the circumstances.” For instance, “ reasonable time “ between two States as widely separated as are Queensland and Western Australia would not be the measure of reasonableness as between two States separated like South Australia and Victoria. The Service and Execution of Process Act itself provides a time scale. For instance, in regard to civil process, section 8 contains the words -
If the writ is issued or is to be served in the State of Western Australia, or in the Northern Territory of the State of South Australia - fortyfive days. In any other case thirty days.
Any Justice would, I think, interpret “ reasonable time “ in accordance with the principle of some such scale. He would consider what was reasonable under all the circumstances. Further than that, I take it that if a man were committed to custody, and were not liberated within what he considered to be a reasonable time, he would take his remedy by making application for a writ of habeas corpus to a Judge. The Judge would consider the whole of the circumstances, and if he held that a reasonable time had elapsed and the original warrant had not come forward he would undoubtedly make his order for the issue of a writ of habeas corpus. We may assume that, in nearly every case, if an individual wished to test the legality of his imprisonment, he would make his application to a Judge in the first instance rather than to a justice of the peace. I think we can trust all our Courts to interpret “reasonable time” as “ reasonable in all the circumstances of the case.”
Clause agreed to.
Title agreed to.
Bill reported without amendment.
In Committee (Consideration resumed from 18th August, vide page 1078) -
Clause 5 -
Nothing in this Act shall apply -
to any insurance on the life of a child of any age when the person insuring has an interest in the life of the person insured ;
to any insurance effected by a person in loco parentis as an advancement of the child in any case in which the amount payable to such person on the death of the child under twenty-one years of age does not exceed the total amount actually paid by such person in respect of premiums on such insurance, together with interest on such premiums at a rate not exceeding four per centum per annum.
– I have made inquiry as to the point raised yesterday by Senator Keating, and, as far as my information goes, those responsible for the Bill are assured that it does not in any wayaffect any law relating to assurance providing for endowment policies or for any life interest of the person ; and, further, that the term “interest” has a certain and definite meaning in connexion with life assurance. Its technical meaning is, “ an assurable interest.” Honorable senators will see a note at the side of the page indicating that; and I am assured that Courts of law, in reading an Act relating to assurance, would take the meaning which these terms have in life assurance business. To have an “ interest “ in the life of a person means not a parental interest, but an interest relating to assurance - an assurable interest. This Bill would not in any way affect those assurable interests which now exist, and for which State laws provide. I therefore appeal to the Committee to pass the clause.
Clause agreed to.
Clause 6 -
It shall be an offence under this Act -
For every such offence the penalty shall be Five pounds.
– I direct the attention of Senator Pearce to the very small penalty provided for in this clause. Suppose that a particular policy involved the payment of£500 upon the death of a child. Surely a penaltyof £5 would, in that case, be a very inadequate punishment for what is regarded as an illegal offence.
– I draw attention to the fact that the highest policy which could be taken out under this Bill would be one for £45, as provided in the schedule. I have no strong opinion about the amount of the penalty, but it seems to me to be sufficient.
– I had intended to draw attention to the same point. I cannot see what objection there can be to make the penalty at least equal to the total amount recoverable under the policy. The clause very properly provides for a penalty to be imposed for an offence. It is therefore contemplated that such a procedure as is indicated in paragraphs a, b, and c is an offence. It is idle to assume that£5 is an adequate penalty for such offences. Such a company as would carry on business under this Bill would scarcely be affected by a fine of£5. The least we can do is to make the penalty adequate.
-If we make the penalty “not exceeding . £45,” the Court would impose a penalty commensurate with the amount of the policy.
– To say “ not exceeding£45 “ would be better than to insert a bald £5. I move -
That after the word “ be,” sub-clause 2, the word “ Forty “ be inserted.
Senator PEARCE (Western Australia). - I suggest that Senator Clemons should withdraw his amendment, in order to allow me to move that the words “ not exceeding “ be inserted. Then he can move the insertion of the word “ forty.” Sometimes a (technical offence may be committed, and the amendment would leave the Court no option but to impose a fine of £45.
Senator Lt.-Col. GOULD (New South Wales). - Is it illegal for assurance companies to assure the life of a child for £500, payable on death? It appears to me that this Bill makes small policies legal and punishes assurance companies for paying more than the amount named on such a policy; but is there anything to prohibit a company from issuing a larger policy on the life of a child? I understood that the idea was to prevent large policies from being taken out on the lives of children, in order to protect child life, but, so far as I can find in this Bill, there is nothing to prohibit a larger policy being issued.
– Yes, if it is a policy payable on death the whole Bill . prohibits it.
.- In what clause ?
– The schedule limits the amount and this clause provides a penalty.
– Is there any law in the Commonwealth that prohibits the issue of life policies for large amounts on the lives of young children ?
– I am informed that there is not.
– It appears to me that this Bill does not prohibit the issue of such policies. It really authorizes the issue of policies up to a certain amount, but does not make it illegal to issue larger ones.
– Look at clause 2.
– That does not prohibit such policies. Neither does clause 3. I dare say that the object of the Bill is good, but does it carry out that object? It is perfectly true that a penalty of £5 is provided for, but what sort of a punishment is that? I am told that this clause is copied from the English Act. Possibly, however, the law of Great Britain prohibits the issue of policies for large amounts on the lives of young children.
Senator CLEMONS (Tasmania).- First of all, this measure differs from the English Act, so far as the schedule goes.
– I indicated in my second-reading speech where it had been altered.
– I know where it has been altered. It has been materially altered from the English Act in regard to the schedule, but it has been copied, so far as concerns the amount of the penalty. The English Act limits the amount of the policy to £10. We halve added a schedule which takes the amount assurable up to £45. The penalty under the English Act was no doubt fixed at £5 because the amount payable is £10. But we have altered the amount insurable from .£10 to £45, and have left the penalty the same. In our Acts Interpretation Act, we have provided that the penalty set out at the foot of any section, or sub-section, shall indicate to the Judge that the offence shall be punishable by a penalty “ not exceeding “ that mentioned. In order that we may conform in this Bill with what is considered desirable under the Acts Interpretation Act, I ask permission to withdraw my amendment to enable me to move that sub-clause 2 be eliminated, with a view to substituting the words “ Penalty Forty-five pounds.”
Amendment, by leave, withdrawn.
Amendment (by Senator Clemons) proposed -
That sub-clause 2 *>e left out, with a view to insert in lieu thereof the words “ Penalty, Fortyfive pounds.”
Senator PEARCE (Western Australia). - I suggest that the honorable and learned senator move his amendment at the foot of the clause, for which course the Acts Interpretation Act provides.
– Not necessarily.
– I do not press the point, but what I have said is my reading of the Acts Interpretation Act. As to Senator Gould’s objection, the position at present is that, while an assurance company may issue a policy for £500 or’ .£5,000 payable on the death of a child, there are very grave doubts as to whether the money could be recovered in any Court of Law in Australia. The Right Hon. G. H. Reid, who is al director of one of the leading assurance societies, says -
This particular branch of assurance is not in a satisfactory state in Australia at the present time. It is practised to some extent, but there is no legal basis for it.
That statement has been indorsed by the legal gentleman who introduced the Bill originally, and who, no doubt, has made a special study of the subject. Clause 2 provides that a. child may be insured between the ages mentioned for any sum of money which, added to any amount payable by any other company or society, on the death, does not exceed the amount specified in the schedule. The Bill gives legal status to any contract up to that amount. If a child be insured for a greater amount, there is nothing in the Bill to prevent such a step, but, according to several legal gentlemen, it is very doubtful whether such a contract would have any legal status.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 7 agreed to.
– I notice that after the age of six years a very material increase in the amount is permitted; and I should like some explanation of the fact. A child a few days prior to attaining six years of age may be insured for only £10, but the day after he is six years of age he may be insured for -£28 ; and the difference appears to me to be too great. Then I notice that’ the amounts are payable on dates between given ages ; and I should like to know what amount would be paid in respect of an assured child who died on his sixth birthday.
-.’ I labour under the difficulty that some honorable senators were not present when I spoke on the second reading and dealt with these points. I then pointed out that the amount is kept low when the child is practically an infant, so as to remove- any induce-, ment to parents or guardians to make away with the child for the sake of the insurance money. But the amount increases as the child grows older, and when the age of six or seven is reached the danger of infanticide largely disappears owing to the greater risk of discovery. The policy then becomes largely one of insurance, and not a mere provision for funeral expenses, although, of course, the element of industrial insurance remains up to the age of ten years.
– For the reasons advanced by Senator Pulsford I do not think we ought to pass the schedule in its present form. Senator Pearce has given no reason why there should be such a large rise in the amounts.
– That, of course, is a matter of opinion.
– By life assurance, the ordinary man understands a system to compensate survivors for the loss of a wageearner.
– Why does a man insure his wife, who is not a wage-earner?
-A wife very often may be a wage-earner, and what I have. given is the ordinary interpretation of life assurance. If Senator Pearce could say that a child, on attaining the age of six, becomes to some extent a bread-winner or contributes to the support of others, there might be some reason for the great increase in the amount. That position, however, cannot be taken up, and I submit that the schedule in its present form is very crude. If Senator Pearce takes any interest whatever in the Bill, I ask him to consider the advisability of making some alteration.
– The honorable and learned senator is not very courteous.
- Senator Pulsford has properly pointed out that when a child dies at a precise age, the schedule leaves it uncertain as to what amount shall be paid. The difficulty could be got over by providing that the amount shall be paid at death at the age of one year and over and under two years, and so. on. I shall vote against the schedule if it is left in its present form.
Senator PEARCE (Western Australia). - I must say that I do not feel very flattered at the suggestion of Senator Clemons that I do not take an interest in the Bill. I am under the impression that I am taking a considerable interest in it.
– Then the honorable senator might listen to suggestions, which are not hostile, but intended to be helpful.
– The only reason for limiting the amount is to remove any incentive to. unscrupulous persons to destroy infant life for the sake of insurance money ; otherwise, there would be no reason to interfere. As the danger of there being such an incentive decreases, we are less justified in limiting the amount ; and this . supplies, in my opinion, a very cogent reason for the provision in the schedule. As to the wording of the schedule, I do not feel very strongly, but we -ought not to make alterations merely for the sake of making them. The year expires when a child is,for example, twelve months old, and the hour of midnight marks the line between days. We know that in all insurance policies, under which amounts are payable at a certain age, the hour at which they are payable is set out; and I do not see the necessity for making a provision which is already invariably made.
– Inpolicies, thedate, but not the hour, is mentioned.
– I have never seen a policy in which the hour was mentioned.
– I have such a policy in my possession, and I am informed that in this particular class of policy the hour is invariably inserted.
– I sympathize with Senator Clemons rather than with Senator Pearce in this matter. The object of the Bill is to prevent parents and others from making any profit from the death of children,or having any inducement to hasten that event. My experience in the old country was that parents- insured their children so that, in case of death, some funds would be available for doctors! bills and funeral expenses. There is no doubt a very serious difference between the amount which may be paid at six years and the amount which may be paid at ten years, and, I think a compromise might be arrived at which would be agreeable to all, and more in harmony with the general idea of the Bill. If Senator Pearce adheres to the schedule as it stands, and Senator Clemons does not move an amendment, I suppose the schedule will be passed.
Senator CLEMONS (Tasmania). - I shall oppose the schedule as it stands.
– The honorable senator is against the Bill.
-I have indicated a desire to improve the schedule, and to do nothing else at present.
Schedule agreed to.
Bill reported, with an amendment.
SenatorKEATING (Tasmania - Honorary Minister). - I beg to lay upon the table the following paper: -
The amendment of the Classification of the Public Service by the Public Service Commissioner under the Commonwealth Public Service Act of 1902.
In moving -
That the paper be printed-
– I understand it is intended to discuss the whole of the policy of these regulations, and other matters, on this motion, and I wish to point out that that is not strictly in accordance with the Standing Orders. When a motion is submitted that a paper be printed, the arguments submitted ought to be directed to showing the desirability or otherwise of that course being taken. If, in this instance, thewhole question be discussed, how can I, on other occasions, prevent honorable senators from discussing general: questions on similar motions? I am drawing attention to this matter, in the first instance, so that I shall not take honorable members by surprise when I call them to order if they proceed to discuss the general policy of the classification.
– If I may say so, sir, you have anticipated my’ first sentence. I was about to say that, in moving that the paper be printed, I ask the leave of the Senate to shortly deal with the general policy of the classification in relation to the Act, in order to enable a general discussion to take place.
– I shall first ask whether the Senate grants leave.
– I understand that the motion before the . Chair is that a certain paper be printed. I desire to ask Senator Keating under what circumstances he proposes to discuss the classification scheme? I contend that he cannot do so.
– Has the honorable and learned senator risen to a point of order ?
– Yes, sir. The sole object of the Public Service Act was to get lid of political influence, and vest the management of the Public Service in a Commissioner. Over and over again it was distinctly stated -that we did rot wish to lose complete control, and therefore we took particular care to provide how our control should be exercised. We shall be stultifying ourselves, and doing a thing which the Standing Orders absolutely forbid, and which is unheard of, if we intervene now, and discuss the whole classification before the time pointed out by the Act when we would have a right to do so legally. Section 8 of the Act provides that the inspectors have to make their reports to the Commissi’oner, who, after he has considered the reports, has to submit a scheme to the Governor-General -
If the Governor-General does not approve of any proposal it shall be the duty of the Commissioner to reconsider such proposal, and within a time to be specified by the Governor-General, to submit another proposal. Such fresh proposal shall be considered and dealt with by the Go- vernor-General.
Under section 9, the Commissioner has to recommend a classification scheme to the Governor-General -
Provided that where the Governor-General does not approve of any such recommendation a statement of the reasons for not approving and for requiring a fresh recommendation shall be laid before the Parliament. “I wish to call your attention, sir, to section 50. This provides for a full and complete appeal by any public servant who may think himself unjustly dealt with by the classification - provided that in the case of reports or recommendation made by the Commissioner to the GovernorGeneral all such appeals must be taken before the reports and recommendation are dealt with by the Governor-General under the provisions of this Act.
A classification scheme has been prepared and printed, which cost the Commissioner and his inspectors an enormous amount of time, trouble, and thought. Sixteen hundred odd appeals have been lodged under section 50 of the Act, and dealt with. It is distinctly provided in that section that the appeal must be heard and dealt with before the report is sent to the GovernorGeneral. I am informed on good authority that no report has been sent to His Excellency since the appeals were dealt with. Until the officers have had the advantage of having; their appeals heard and dealt with, there can be no report which can be sent to the Governor-General and with which the Senate can deal. This report is riot a report within the meaning of the Act; and, in view of the three sections I cited, I contend that there i’s no report by the Commissioner for the Senate to deal with.
– Some months ago a report was circulated, containing the first classification by the Commissioner.- Since then a number of appeals have been lodged in conformity with the provisions of the Act, and have been dealt with. If Senator Dobson had paid more attention to what I was saying, he would have known that the amended classification, which I laid upon the table, is the result of every appeal which has been submitted and dealt with. That is the amended classification.
– Has the GovernorGeneral objected to the classification?
– No. The GovernorGeneral will, of course, deal with’ the classification on the advice of the Executive Council.
– Until His Excellency has dealt with the classification, I contend that it is wrong for the ‘ Senate to discuss it.
– Quite the contrary position has been taken up, not only by the present Government but by other Governments. Since this was the first classification, on a uniform basis, of the transferred
Departments of the six States, it was recognised by present and previous Ministers that there might be occasions where even grouped classifications or other matters of that kind, which it was not competent for individual members under the appeal provisions of the Act to deal with, might be dealt with by honorable senators. Before the Government recommend the adoption of the scheme as a whole tothe GovernorGeneral as one giving effect to the principle and policy laid down by Parliament in the Public Service Act, they are quite prepared to have the whole scheme discussed both here and elsewhere. And if there be any legitimate reason to advance as to any alleged deviation from that principle or policy, it may be considered by the Government and the Commissioner before the scheme is finally recommended for adoption.
– That is very clever, but the Minister is asking the Senate to stultify itself.
– No. When reference to. the original classification scheme came up in another place, and before any appeals had . been lodged, a previous Government promised that Parliament should have an opportunity to consider the whole scheme before it was finally submitted to the GovernorGeneral for his acceptance or otherwise. His Excellency will, of course, exercise the power which is reposed in him by section 9 on the advice of the Executive Council.
– The Executive Council ought to give that advice, and then ask the Senate to discuss the scheme.
– We are carrying out the promise which was given to each House by a previous Government. Of course, if the Senate does not wish to discuss these matters atthis stage, both my colleague and myself will not have the slightest objection to comply with its wish. I submit that I . have answered the point of order by stating that the paper laid upon the table as the amendedclassification makes, with the original paper, a document which will have to go on for consideration in the course I have indicated to the Governor- General .
– I am asked to rule whether the provisions of the Public Service Act impose a statutory bar to the Senate . discussing the matter proposed to be brought forward. I take it that one of the. main principlesof that Act was . to place the Commissioner in a position in which he would be independent of the Ministry, but that, at the same time, the Ministry should not be altogether powerless. Therefore, it provided that if the Governor-General, that is the Ministry, objected to any of these regulations it should be laid before Parliament, and an opportunity provided for discussing the matter. Although that is a statutory procedure, which can be adopted if the Ministry object, I do not see in the section any provision which will prevent Parliament from discussing the question. A very direct prohibition must be laid down in an Act to prevent Parliament from discussing a matter. It has a right to discuss any public matter, and I do not see where that right is taken away. From the remarks of Senator Keating, I understand that what it is proposed to discuss is the general policy of these regulations before they are handed on to the Governor-General. I cannot see where such discussion is prohibited. It may be that that was the intention of Parliament, but if it was, I do not think it has been expressed. I should be very loath to hold that Parliament is not to be allowed to discuss almost any matter under the sun unless there is some definite provision to that effect. I do not think the point of order is valid. I understand now that’ Senator Keating asks for leave to raise a general discussion concerning the regulations on a motion to print a paper.
-I desire to know, sir,-, whether the leave which is asked for will enable the classification scheme to be discussed, not merely in its -general outline, but in all its details ?
– I understand so.
– I only wanted that point tobe cleared up, because Senator Keating in his remarks used rather vague words. In that case, I shall not object to leave being granted, but I should object to any limitation of the discussion.
Senator KEATING (Tasmania- Honorary Minister). - In my own remarks, I intend to confine myself to the general principles and general policy of the Act in relation to this scheme, but I take it that any honorable senator will be able to point his arguments or his deductions with any number of illustrations he may choose to bring forward from the scheme itself.
– That will not suit me.
– The honorable and learned senator can discuss the scheme as fully as he pleases, so far as the Government are concerned.
– When leave is applied for it ought not to be discussed. It must be given without a dissentient voice. .
Senator CLEMONS (Tasmania).- If I understand that leave is being asked for on the condition that there is to be no restriction of discussion as to details and principles, I do not object. Otherwise,. I should certainly oppose the request.
– There will be no re- - striction so far as we are concerned.
– On the question, sir, whether leave should be granted, may I not say a few words?
– I do not think it is a good principle that we should have a discussion. It is against the Standing Orders. I can understand an honorable senator asking, as Senator Clemons did, what the leave implies, but it is not in order to discuss whether leave ought to be granted or not. It is within the province of Senator Dobson, if he likes, to prevent leave being granted.
– I propose to object, but I should like to state the reasons for my objection.
– The honorable and learned senator cannot speak, because the Standing Orders provide that no discussion can take place.
– Is there no means, sir, by which an honorable senator can make it clear that his objection to declining leave is not because he objects to a discussion on a subject, but because he objects to the procedure which is growing up of a Minister coming down here and, without notice, askLng leave to do certain things. ?
– It is provided in standing order 128 that -
Leave of the Senate must be granted without any dissentient voice.
We cannot have a discussion without a motion, and this request is not a motion. The practice has always been when leave is asked for to put the request without discussion. I do not think it is competent for any honorable senator to discuss this request for leave.
– I do not wish to discuss the request, sir, but to explain what otherwise might seem an ungracious act on my part.
– If the honorable and learned senator were permitted to speak, every other honorable senator would have an equal right to speak.
– We can suspend the Standing Orders.
– That can be done at any time.
Senator DOBSON (Tasmania).- An attempt is being made to unduly influence honorable senators, and therefore I object to leave being’ granted.
Question resolved in the affirmative.
Senator KEATING (Tasmania- Honorary Minister). - In order to test the feeling of the Senate I move -
That the Standing Orders be suspended to enable the paper to be discussed.
– Ought we not to have notice of this motion?
– I am in the hands of the Senate, and if it does not wish to discuss this scheme, I shall be just as pleased as if it does.
– The Standing Orders provide that a motion of this kind can -be moved without notice, but it must be carried by an absolute majority.
Senator DOBSON (Tasmania).- I think that the Minister did a most unwise and unwarrantable thing in breaking the continuity of a most important debate to enable this improper discussion to take place. I have received one or two documents from civil servants, who think that they are aggrieved by the classification. They set forth certain facts and make certain statements in which it is . claimed that their grades and salaries have not been raised high enough. I understand that some of these gentlemen have written to various members of Parliament. Probably they have interviewed members. I contend that that, is the very thing that the Public Service Act was passedto prevent, and that any member of Parliament who allows public servants to interview him with the slightest idea of trying to interfere with what the Commissioner . has decided, is doing a very improper thing. The classification of the Public Service is probably one of the most momentous works ever undertaken by a Commonwealth officer. It has occupied months of the time of the Commissioner and four inspectors. But before the GovernorGeneral has seen the amended report, we are asked to discuss it.; and Senator Clemons, instead of helping me, has rather made the matter worse, by saying that we- are going to discuss it in all its details. I venture to say that there is not a single honorable senator, or member, of another place, who is competent to discuss the report in anything like a tenth part of its details. It is a miserable and almost contemptible idea that we should stultify ourselves, and go back upon what we have done.
– Is . that remark in order ?
– I do not think that the .honorable and learned senator’s remarks are relevant to the question. He can give reasons why the Standing Orders should not be suspended, and is allowed great latitude in so doing. But he is proceeding to discuss the regulations and the classification scheme themselves.
– I understood Senator Dobson to indicate that the action of the Minister was contemptible - is that in order ?
– It is not, but I did not understand that that was said.
– If my honorable friend is so very sensitive, I will simply say that the passing of this motion to suspend the Standing Orders will place me in a contemptible position, by asking me to stultify myself. The motion to suspend the Standing Orders is absolutely premature. When the Governor-General has seen the document, and when certain objections are made to it - if objections are made-then if honorable senators think that they are competent to advance objections, there may be some excuse for discussing the subject. Why did we put in the Public Service Act a section providing that every officer should have a right to appeal if he felt himself aggrieved? No fewer than 1,600 officers have had their cases inquired into.
– The honorable and learned senator is discussing the classification, and not the suspension of the Standing Orders.
– Surely it is in order for me to show that, because the public servants have had their appeals dealt with, we ought not to suspend the Standing Orders to enable us to discuss their cases further, with a view to override the Commissioner and the inspectors? I certainly object to the Standing Orders being suspended, and shall oppose the motion.
Senator CLEMONS (Tasmania). - Senator Dobson may object to the suspension of the Standing Orders, but I do not think that he does so on the right grounds. He seizes this motion as an opportunity for going into the whole question of the classification scheme. But I do submit that it would have - been better if the motion had not been moved. The very first words of standing order 433 are, “ in cases of urgent necessity.” There is no urgent necessity why the question of the classification should be gone into this morning. It can be considered by many other methods. I submit, first of all, that, this is by no means a case of urgent necessity. Further, I would point out that to suspend the Standing Orders on such grounds is to establish a precedent which may be used on another occasion when a senator exercises his right to object to leave being granted. As a result, many of our proceedings will be disorderly. I urge Ministers not to proceed with the motion. ‘
– We promised that the matter should be discussed to-day, and Senator Clemons wanted it to be brought on earlier.
– I have done nothing to prevent the discussion taking place to-day. Indeed, so far as I have done anything, I have tried to bring it on. But we ought not to use standing order 433 in a case like this, and if the motion is persisted in, I shall reluctantly have to vote against it, not because I am opposed to the discussion of the classification scheme, but because we shall be setting a bad precedent.
– I submit that this is an urgent case inasmuch as we decided last night to drop the discussion of another important measure, the Kalgoorlie to Port Augusta Railway Survey Bill, simply to allow the debate on the classification scheme to take place. A number of honorable senators wished the debate on that Bill to proceed to a finish. But it was pointed out that, in deference to the wishes of a number of honorable senators, the Government had set apart this day for the consideration of the classification scheme. Now one honorable senator who does not wish the scheme to be discussed at any time, and who contends that no member of Parliament has a right to raise his voice against the scheme, is trying to block business. Senator Clemons, equally with myself, wishes to have an opportunity to discuss the scheme, but thinks that it would establish a bad precedent to suspend the Standing Orders simply because an honorable senator refuses to give leave. But as the present position has! been brought about merely by the action of one senator who tries to block discussion when we are prepared to go on with it, it is not desirable that Senator Clemons should object to the method proposed.
– How can we discuss the classification scheme when we have not seen, the amended report?
– The amended classification was circulated on the 23rd June.
– I am prepared to discuss the matter to-day, and do not think it fair that a number of honorable senators should be put to inconvenience simply on account of the idiosyncracies of Senator Dobson.
– Some of us have travelled hundreds of miles to do business. Last night we were given to understand that the classification scheme would come on -for discussion today, and there is no good reason why it should be blocked- The Standing Orders themselves allow of their suspension. This waste of time is simply disgraceful. Last night, when a number of honorable senators wished that debate on the Kalgoorlie to Port Augusta Railway Survey Bill should be proceeded with to-day, it was pointed out that a promise had been given that the classification scheme would be debated. I protest against the waste of time which will ensue should the motion before the Senate not be agreed to.
– If notice of motion had been given, there would have been none of this delay.
-Col. GOULD (New South Wales). - If notice of motion had been given by the Government, there would have been no .trouble.
– We gave notice that we were going to take the classification scheme to-day.
.- But the honorable senator did not. put it on the businesspaper.
– We did not think that there would be this trouble.
.- The representatives of the Government wanted to ignore the Standing; Orders, when they could have done all they wished in accordance with them.
– They want us to patch up the results of their own carelessness.
.- Last night, a number of honorable senators wished to proceed with another measure, and the Government desired that it should be post poned until next Wednesday. Is it not perfectly clear that, if the candid opinion of the majority had been taken, the debate on the Kalgoorlie to Port Augusta Railway Survey Bill would have been made an order of the day for to-day? But a number of honorable senators said, “ We cannot do this, because we are not going to slap the Government in the face by carrying an adverse motion.”
– The honorable senator could not.
– If every honorable senator who desired that that Bill should be taken to-day had voted in that direction, I am convinced that the Government would have been in a minority. Then there would have been no trouble. As a senator who is not in his place every day, I like to know what business is to be transacted, so that I may form! an opinion as to whether it will be better for me to be present or to attend to other affairs. If the Standing Orders are to be suspended at any time and under any circumstances, we may as well do without them altogether. This is not such an urgent case as is contemplated by the Standing Orders. I arn quite willing that the classification report should be discussed at a proper time. Whether it was the intention of the Legislature, when the Public Service Act was passed, that there should be such a discussion, need not now be considered. It is as well that we should let the Government know that the Standing Orders cannot be suspended at their will, and that matters cannot be brought up without notice when some honorable senators are not present.
Senator MILLEN (New South Wales). - The necessity of adhering to the Standing Orders has, I think, been amply demonstrated by the temper exhibited during this debate. It is quite evident that those who are keenly anxious to proceed with the. consideration of the classification scheme are supporting the suspension of the Standing Orders. But if, because a considerable number of senators - it may be a majority - at- any particular time wish particularly to go on with a certain measure, that is to be held to be an excuse for. suspending the Standing Orders, they - as well be thrown under the table altogether; The Standing Orders, it should never be forgotten, -are .made not only for the orderly conduct of business, but also for the protection of ..rnjnoriti.es.
One of the weightiest public utterances ever delivered by Sir Henry Parkes on this question was made in a House where he had a strong majority. His work was being hampered by a minority, and he was asked to propose a standing order which would have curbed the minority unduly. He then laid it down in memorable words that it would be better to waste the whole of a session than to bring in a standing order which would enable a Government at any time to do things which, it was not desirable that thev should be allowed to do.
– We do not propose to do that.
– We are asked without any excuse to suspend the Standing Orders when no necessity has been shown. I want to point out the great danger that may arise if on insufficient grounds we suspend the Standing Orders. This Government, with its high ethical stand-point, might decline to do anything that was wrong. But if we were to establish the practice of suspending the Standing Orders on the slightest grounds, some other Government might, on another occasion, resort to that expedient to carry out some more doubtful proposal of which no notice had been given.
– The motion is in accordance with parliamentary practice.
– I never heard of a parliamentary practice to suspend the Standing Orders, under a plea of urgency, in order to deal with a motion of which notice could easily have been given. I am not now speaking of the particular motion before us, but expressing a general dissent from the practice, which is growing up even here, of suspending the Standing Orders, except it be on matters of imminent urgency. For that reason, and not because I have the slightest objection to discuss the classification scheme, I shall vote against the motion.
- -1 can sympathize- with honorable senators opposite in their endeavour to make the path of the Government as difficult as possible ; that is the legitimate work of an Opposition, and honorable senators are perfectly entitled to avail themselves of the present opportunity. But when we know that the present leader of the Opposition, Senator Dobson, has told us, plainly and bluntly, that he is taking this step for the purpose of burking any discussion on the question-
– I never heard Senator Dobson say that.
– I was going to say that it is surprising to find other honorable senators prepared to assist Senator Dobson in handing over the control of the Public Service to an independent Commissioner, and, further, to absolutely deprive Parliament of an opportunity to even express an opinion on that officer’s work. Allthat is proposed is to permit honorable senators to express their opinion of the newclassification of the Public Service, and one cannot help being amused at the surprise with which the motion to suspend the’ Standing Orders has been received by gentlemen opposite. Last night we left the chamber, well knowing that the consideration of the classification scheme was the business for to-day. The protest thatwas then made was not against the proposal to deal with the classification scheme, but against proceeding with the debate on the Kalgoorlie to Port Augusta Railway Survey Bill this morning. We cannot be surprised at the action of Senator Dobson, because he makes no secret of the fact that he prefers an autocracy to a democracy - that he is willing, not merely to hand over the Public Service of the Commonwealth to an autocrat-
– Is the honorable senator in order?
– Senator Pearce is absolutely incorrect.
– Is Senator Pearce discussing the motion for the suspension’ of the Standing Orders?
– I am showing reasons why we should not be led by Senator, Dobson, who contends that we have no right to criticise the classification scheme.
– That is not the question. What we are discussing is whether the Senate shall suspend the Standing Orders in order to deal with this matter now.
– The Opposition is led by Senator Dobson, and I am showingthe motive which actuates that honorable senator, and expressing the hope that honorable senators will not follow the lead of one who objects to our having an opportunity to discuss this matter.
– What I pointed out was that there is a right time and a wrong-‘ time to consider the matter.
– Although” no formal notice was given, no senator can deny the plain understanding that the Government would introduce this business to-day. Had any objection been raised last night, the Government could, by leave, have given notice of this motion.
– We never anticipated the necessity.
– Would any honorable senator have been placed in a better position by notice being given last night? Under the circumstances, an informal notice was just as good as a formal notice. It was just as well understood. What is there in the plea that we have not had time to consider the amended classification scheme ?
– The scheme has been circulated since the 23rd June.
– Parliament was not sitting in June.
– But every honorable senator is supplied with a copy of the Commonwealth Gazette, in which, on the 23rd June, the amended classification scheme appeared.
– The Gazette is never sent to me.
– Nor to me.
– I have never seen the amended classification.
– I have seen the amended scheme, as published in the Gazette, which came to me, along with my other parliamentary papers. I understand that the Gazette is sent to every honorable senator.
– It is not.
– At any rate, it is idle to say that there has been no opportunity to see the amended classification. All that is proposed is to discuss the scheme in general terms, and no advantage can be gained by adjourning the debate for a week or two. Surely we know whether the objections we have to raise to the classification have been met in the amended scheme. I appeal to honorable senators not to “ play the game “ of those who wish to harass and discredit the Government by placing obstacles in the way of the discussion of this matter.
– Is the honorable senator in order?
– The only question before us is whether or not the Standing Orders shall be suspended.
– This opposition emanates from a certain quarter, and for the purpose of demonstrating that honorable senators, other than those at present members of the Government, should occupy seats on the Government benches.
– I intend to vote against the suspension of the Standing Orders, but I object to Senator Pearce accusing me of “ playing the game” of those opposed to the Government. I am not opposed to the Government, and I did not come here to “ play the game “ of anybody. It has always been my custom since I entered Parliament to insist on the business of the day being carried on as that business appears on the notice-paper.
– Why. did the honorable senator not see that notice was given last night ?
– If Senator Croft had been in the Opposition - and it was a very small Opposition - of which I was a member in Queensland for a number of years, he would have resented an attempt of this character as strongly as possible. The right to move the suspension of the Standing Orders at any time gives an immense power to a majority - a power to over-ride all the rules of Parliament and pass measures without discussion.
– The Government did not choose their present course; it was forced on them.
– It was stated last night that this particular business would be taken to-day, but I looked in vain for it on the notice-paper this morning.
– Besides, we have not yet had the amended classification scheme.
– We are now discussing whether the Standing Orders shall be suspended, and, except under very extraordinary circumstances, I have always voted against such a motion. We have rules and regulations laid down for the conduct of business, and those rules, as Senator Millen has pointedly stated, are framed for the protection of the minority. I happen to belong to the majority at present, but I do not know how soon I may be relegated to my previous position. For a long time I was a member of a minority, to gag and trample on which many attempts were made, so that my sympathies are with those who are now in a minority in this Chamber. In any case, when we make rules, why not stick to them? If the rules are not as they ought to be, let us amend them.
Senator CROFT (Western Australia).Although nominally supporting the Government, I should be found protesting as strongly as Senator Stewart if I thought the Government were taking action with a view to treating the minority in the way that that honorable senator has indicated. But last night the discussion on the Kalgoorlie to Port Augusta Railway Survey Bill was postponed on the clear understanding that the amended classification scheme would be considered to-day ; and I did not feel that there was any necessity for further notice of the motion now before us. I should protest as strongly as Senator Millen and others against any undue straining of this particular standing order, and I believe that the Government will give due weight to the remarks which have been made in this connexion.
– The honorable senator would strain the Standing Orders to suit himself?
– I would take advantage of the Standing Orders, so that we might get on with the business of the country. We know that Senator Dobson does not want the classification scheme discussed at all, but other honorable senators, who oppose the Government action, might rest content with their protest, in the hope that some regard will be paid to it by the Government in the future.
- Senator Pearce has said that every member of the Senate received a copy of the amended classification. All I can say is that, until this morning, I had no knowledge that there was such a document to be laid upon the table, and I had to ask the Clerk as to its contents. From the remarks made here this morning, people outside may be led to believe that the Commonwealth Gazette is sent to every honorable senator ; but I - and, I believe, a large number of other honorable senators - have never received a copy of that publication. I have no objection ‘to the Standing Orders being suspended, seeing that a number of honorable senators have already seen the amended scheme, and are prepared to go on with the discussion. The debate could be adjourned after those honorable senators have spoken, and an opportunity thus given to myself and others to consider the matter.
– I should like to say that I intend to vote against this motion. I think it is my duty, in the posi tion which I occupy, to refuse, unless under most exceptional and urgent circumstances, to vote for a motion to suspend the StandingOrders, in order to bring forward business not on the notice-paper. I do not know that any particular harm would result from suspending the Standing Orders in this case, butI am now laying down a general rule.
Question - That the Standing Orders be suspended to enable the paper to be discussed - put. The Senate divided.
Senator KEATING (Tasmania - Honorary Minister). - I desire, by leave, to give notice of the same motion for Wednesday next.
Motion (by Senator Playford). proposed -
That the Senate do now adjourn.
– This seems to be an extraordinary development on the part of the Government who say that they are not going to carry out their promise.
– We do not say anything of the kind.
– Senator Miilen asked a question just now, and in consequence of thereply given, he objected to notice of a motion being given by Senator Keating.
– That is his responsibility.
.- Yes, and the Minister is responsible too. The hope on this sideis that the Government will carry out their promise to take the Kalgoorlie to Port Augusta Railway Survey Bill on Wednesday afternoon. I should not have raised a question in regard to that matter if it had riot been for what I understood the Government to say. But if it is still their intention to carry out their promise in regard to that Bill,. I am quite sure that Senator Millen will be prepared to withdraw hisobjection. That is all that is wanted from this side.
– Undoubtedly. I am relieved from the promise of yesterday, because it was given on distinct conditions.
– Certainly not.
– The conditions have been broken.
– There were no distinct conditions made. The withdrawal of the objection to the resumption of the debate on the Bill I referred to being made an order of the day for Wednesday was based upon the condition that a promise was madeby the Government to take that measure on that day to the exclusion of all other business unless purely formal. Such a notice of motion as Senator Keating wishes to give would probably have raised no objection if we had understood clearly that the arrangement made would be carried out-. Let me warn the Government that the Opposition, while prepared to fight fairly and. squarely, expect them to give effect to all their promises to the Senate. If they are not prepared to take that course they will find that there is an active Opposition who willgive them a lively time.We are quite willing to go on with our work, but if Ministers intend to play tricks, and treat us dishonestly and unfairly, they will find that they have made a very great mistake.
– Perhaps if the honorable and learned senator will allow me to say a few words all this heat may be allayed.
– If the Minister says a few words he will be held to have replied, and I shall be prevented from speaking.
– I shall take it that the Minister is answering a question, . and not exercising the right of reply.
– I am always bound by the promises I make. One condition of the promise I made yesterday with regard to the position of the Kalgoorlie to Port Augusta Railway Survey Bill on the notice-paper for Wednesday was that to-day we should take a discussion on the Public Service classification, and that it should precede the consideration of that Bill. Honorable senators on the other side have by their votes prevented that condition from being given effect to, because they have refused to agree to a suspension of the Standing Orders. In the first place, Senator Dobson was the only one who refused to allow my honorable and learned colleague to discuss the scheme I am not bound by the promise I made when the conditions of that promise are not fulfilled on the other side. That promise was given on the distinct understanding that before the resumption of the debate on the Kalgoorlie to Port Augusta Railway Survey Bill the classification scheme should be discussed by the Senate.
– There was no condition.
– There was an absolute condition.
– If the Government do not put their business down properly that is their fault.
– Was there no understanding that we should discuss the classification scheme to-day?
– The understanding was that we should withdraw our opposition to a proposal to adjourn the debate until Wednesday, on the honorable gentleman’s assurance that it would be resumed on Wednesday.
Senatorplayford.- Yes, and on the distinct understanding that the classification scheme would be discussed to-day. I made that statement as plainly as possible.
– The reason we gave for adjourning the debate until Wednesday was to enable the classification ‘scheme to be discussed to-day.
– I have been treated most unfairly and ungenerously by honorable senators on the other side. Although I feel very strongly on the matter, still I do not intend to depart from the promise I made. I intend to allow the resumption of the debate on the Kalgoorlie to Port Augusta Railway Survey Bill to precede the discussion on the classification scheme. I shall not return tit for tat, as I could do if I liked. Perhaps in the circumstances honorable senators on the other side will allow the notice of motion to be given by Senator Keating.
Senator MILLEN (New South’ Wales).The Minister of Defence asked leave to say a few words which he hoped would tend to allay the heat that had been generated. But the last few sentences of his statement hardly supported the hope he expressed. I objected to leave being granted to Senator Keating to give notice of a motion because I assumed from the reply given by the Minister that there was no intention to go on with the consideration of the Kalgoorlie to Port Augusta Railway BiH on Wednesday. In view of the declaration by the Minister of Defence, however, I am quite willing to withdraw my objection to a notice of motion being given now.
– It is too late. Question resolved in the affirmative.
Senate adjourned at 12.38 p.m.
Cite as: Australia, Senate, Debates, 18 August 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050818_senate_2_25/>.