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Senate
9 October 1907

3^rd Parliament · 2^nd Session

ASSENT TO BILLS
QUESTION
- ELECTORAL ACT
QUESTION
- COMMONWEALTH OFFICES IN LONDON
QUESTION
- EXCISE TARIFF (AGRICULTURAL MACHINERY) ACT
QUESTION
- CANCELLED MAIL CONTRACT
PAPERS
QUESTION
- TELEGRAPH MESSENGER : CAIRNS
QUESTION
- AMMUNITION WAGGONS
QUESTION
- ALIENATED AND UNALIENATED LAND
QUESTION
- IMMIGRANTS
AUSTRALIAN INDUSTRIES PRESERVATION BILL
- Second Reading
BOUNTIES BILL
QUESTION
- SENATE ELECTION: SOUTH AUSTRALIA

The President took the chair at 3. p.m., and read prayers.

page 4362

ASSENT TO BILLS

Assent to the following Bills reported -

Appropriation (Works and Buildings) Bill. Commonwealth Salaries Bill.

page 4362

QUESTION

ELECTORAL ACT

Senator HENDERSON:
WESTERN AUSTRALIA

– I beg to ask the Minister of Home Affairs, without notice, whether he has made inquiry into the alleged infringement of section 177 of the Electoral Act bythe Loyal Brunswick Lodge of Geelong in suspending one R. N. Carbines, an elector of Corio, because of his support of a certain candidate for parliamentary election, and, if so, whether he will communicate the result to the Senate ?

Senator KEATING:
Minister for Home Affairs · TASMANIA · Protectionist

– When the matter wasreferred to by the honorable senator a little time ago, it was forwarded by me to the Crown Law officers for advice, and at the end of last week I was advised by them in a somewhat lengthy opinion that the circumstances set forth did not disclose a case which called for prosecution. In other words, we were advised that, in their opinion, a prosecution could not be maintained.

Senator HENDERSON:

– Will the Minister be prepared to lay upon the table of the Senate the opinion of the Crown law officers?

Senator KEATING:

– I do not know whether there is any objection to that being done. Any honorable senator may see the opinion, and if that is not suitable I can lay it upon the table of the Library. There may or may not be an objection to laying it upon the table of the Senate. I do not know of any. A member of either House will be able to see the opinion, for I shall put it on the table of the Library. I may lay it upon the table of the Senate, but I will first ascertain if there is any valid reason why I should not do so. Any member of the Senate may see the opinion this afternoon if he wishes.

page 4362

QUESTION

COMMONWEALTH OFFICES IN LONDON

Senator MILLEN:
NEW SOUTH WALES

– I desire to ask the Vice-President of the Executive Council, without notice, if he is yet in a position to give the Senate any information as to the negotiations for the acquisition of a site in London for Federal purposes?

Senator BEST:
Vice-President of the Executive Council · VICTORIA · Protectionist

– Iam not in a position to give any information onthe subject.

page 4362

QUESTION

EXCISE TARIFF (AGRICULTURAL MACHINERY) ACT

Senator BEST:
Protectionist

– I placed the representations of my honorable friend before the Minister of Trade and Customs.. He does not see his way to give the assistance referred to; and, as the matter is before the Conciliation and Arbitration Court, the Government feel that they are not called upon to make any remark on the subject.

Senator KEATING:
Protectionist

– I beg to give notice that to-morrow I will move for leave to bring in a Bill for an Act relating to procedure on applications for a declaration under the Excise Tariff (Agricultural Machinery) Act 1906.

Senator Colonel NEILD:

– I desire to ask the Minister of Home Affairs, whether the Bill of which he has just given notice deals with the question that has recently arisen in connexion with the collection of Excise upon local manufactures.

Senator KEATING:

– The Bill is designed to give to the tribunal that now hears and determines these applications, powers similar to those which are enjoyed by courts of law.

– Certainly not.

Senator ST LEDGER:
QUEENSLAND

– If Sir James Laing and Sons are tenderers for the new mail contract, will the payment ofthe £25,000 be made a condition precedent to entertaining their tender?

Senator BEST:

– I can give the honorable senator no information on the question at this juncture.

page 4363

PAPERS

MINISTERS laid upon the table the following papers -

Papua - Ordinance of 1907 - Removal of Natives from the Territory.

Census and Statistics Act 1905 -

Shipping and Oversea Migration of the Commonwealth of Australia for the year 1906.

Trade, Shipping, Oversea Migration, and Finance of the Commonwealth of Australia for the month of July, 1907. - Bulletin No. 7.

Public Service Act 1902 -

Amendment of Regulation 104. - Statutory Rules 1907, No.100.

Post and Telegraph Act 1901 -

Amendment of Postal, General Postal, and Telephone Regulations. - Statutory Rules 1907, No. 103.

Defence Acts 1903-1904 -

Financial and Allowance Regulations for the Military Forces of the Commonwealth. - Amendment of Regulations 60 and 234. - Statutory Rules 1907, No. 99.

page 4363

QUESTION

TELEGRAPH MESSENGER : CAIRNS

Senator STEWART:
QUEENSLAND

asked the Minister representing the Postmaster-General, upon notice -

Is it the case that a Chinese lad is employed as a telegraph messenger at the Post Office, Cairns, Queensland ?
If so, does the Government think the appointment is in harmony with the policy of a White Australia?

Senator KEATING:
Protectionist

– The answers to the questions are as follow: -

A Chinese lad is not employed as messenger at Cairns Post Office. A lad whose father is a Chinaman and has been a naturalized British subject since1884 and whose mother is a native of Rockhampton, was employed as a temporary messenger from the 16th to the 18th ultimo.
See answer to No. 1.

page 4364

QUESTION

AMMUNITION WAGGONS

Senator PEARCE:
WESTERN AUSTRALIA

asked the Minister representing the Minister of Defence, upon notice -

What length of time is allowed for the delivery of artillery waggons by the contractor referred to by the Minister for Home Affairs during the debate on the Works Appropriation Bill in the Senate?
Is the firm known as Robison and Sons, the contractors referred to, the same firm reported in the press of 4th October as discharg- ing large numbers of employes?

Senator KEATING:
Protectionist

– The answers to the honorable senator’s questions are as follow : -

The first waggon with limber is to be delivered within eight months from date of signing of contract, viz-. : - 18th April, 1907; and thereafter one per week until completion of contract.
No.

page 4364

QUESTION

ALIENATED AND UNALIENATED LAND

Senator ST LEDGER:

asked the VicePresident of the Executive Council, upon notice -

What is the total area of land in the respective States alienated in freehold?
The total area in the respective States held under leaseholds from the Crown ?
The total area of such leaseholds resumable by the Crown in the respective States?
The total area not alienated under any tenure in the respective States?

Senator KEATING:
Protectionist

– The following return has been compiled by the Commonwealth Statistician, and contains the information asked for -

H. Knibbs,

Commonwealth Statistician.

page 4365

QUESTION

IMMIGRANTS

Senator CHATAWAY:
QUEENSLAND

asked the VicePresident of the Executive Council, upon notice - 1.Has the attention of the Government been drawn to the Sydney telegram appearing on page 8 of the Age of the 4th inst. headed “Destitute Immigrants” ?

Will the Government make inquiries with a view to giving the Senate the fullest information as to the alleged misleading of immigrants?

Senator BEST:
Protectionist

– The answers to the honorable senator’s questions are as follow : -

Yes.
I beg to refer the honorable senator to the memorandum issued by the New South Wales Intelligence Department, and published in the Sydney morning newspapers of the 5th October, which appears to deal comprehensively with the matter.

page 4365

AUSTRALIAN INDUSTRIES PRESERVATION BILL

Second Reading

Senator BEST:
VicePresident of the Executive Council · Victoria · Protectionist

– I move -

That this Bill be now read a second time.

– Yes, when Senator Millen moved with regard to the Coal Vend. Senator Symon is reported in Hansari, on page 3691, to have said - and, of” course, those who, like myself, were in theChamber when he spoke, heard him -

An honorable senator made an interjection relating, to the discovery of documents, the obtaining of information, and all that sort of thing. Honorable senators will recollect that there is asection in this Act of the most drastic description which not merely enables every possible information to be obtained and documents to be procured, but which prevents any one, who isconcerned in a matter of this kind, from refusing to discover all documents or to answerquestions that may be put. to ‘him in respect tothe matters at issue on the ground that thev arelikely to incriminate him. Everybody concerned in any proceedings that may be brought in respect of an infringement of the Act is liable in-, respect to the discovery of documents, and is compelled to reply to all questions, even if the result of his answers may be’ to render him liable to a criminal prosecution. It is the most absolute. and unrestricted power of discovery that can. be given in any form of legal procedure. >

Senator Lynch:

– Would that form apply to witnesses for the prosecution?

Senator Sir JOSIAH SYMON:

– Yes. I am., referring to section ti, sub-section 2 -

No person shall -

That is, not merely one of the parties, but any- body - in any proceeding under this section be excused from answering any question put’ whether viva voce or by interrogatory, or-, from making any discovery of docu-ments, on the ground th;it the answer or; discovery may criminate or tend to criminate him ; but his answer shall not be admissible in evidence against him in any criminal proceeding other than a prosecution for perjury.

Senator Symon was obviously under a misapprehension when he made that statement, because reference to section 11 of the principal Act will show that the sub-section which he quoted refers only to civil cases, and not to prosecutions or criminal cases at all. The honorable senator was obviously under the impression that those broad and general powers of securing information existed in regard to all the offences under the Act. The main object of this Bill is to give to the Government - the Attorney-General - the powers which my honorable friend thought were contained in the existing law, and to make them apply not only to civil but also to criminal matters. The Bill seeks, amongst other objects, to confer those powers. I have mentioned on more than one occasion that the Crown Law Department, when alleged combines or trusts have been brought under notice, has discovered the greatest difficulty in securing the necessary evidence upon which to found prosecutions. The officers who were concerned in efforts to secure that evidence are men of experience and skill. One serious difficulty which arose was that, although the various combinations must have had for their foundation some agreement or contract, the Government were quite unable to secure either the original or a copy of that agreement or contract, or the necessary evidence in regard to it.

Senator Findley:

– That was not difficult to understand, seeing that the man who signed the contract was equally liable with the combination.

Senator BEST:

– Quite so. That is one of the difficulties, as my honorable friend says. In many cases where the Crown Law officer sought information, he was referred to the solicitor of the trust, or of the person to whom he applied, and that solicitor naturally would only give such information, and with great caution, as he, with his professional knowledge, saw fit to give.

Senator Millen:

– The Government did not expect anything else from a solicitor?

Senator BEST:

– Of course we could not expect anything else, and that is the difficulty which we are seeking to combat. We can rely on the fact that the evidence or information supplied was not the evidence or information that was asked for by the Department. It has been the duty of an experienced and skilled officer, Mr.

Powers, the Crown Solicitor of the Commonwealth, to undertake these investigations, and he has formulated the reasons for the difficulty in the way. He says -

In these proposed prosecutions of trusts and combinations the difficulty is to obtain evidence for the following reasons : -

The persons who can give the information in most cases either (a) dare not assist for fear of the trusts, or (b) are benefited by working with the trust and will not do so.
The trusts and members of the trusts or combinations naturally refuse to give any information voluntary if they have been doing wrong to assist in a prosecution against themselves, and there are no means at present available to compel them to do so.
The consumers, the public, the persons who suffer most - and the Government representing the consumers, producers, and workers - can only get information from those who are to be prosecuted or those who are at their mercy either as purchasers from the trust, workers for the trust, or sellers of produce to the trust.

In these circumstances, and after the experience of some months, the Department has advised that these difficulties can be overcome only by some power being granted to the ComptrollerGeneral of Customs, or other officer, for the purpose of securing further evidence or information in the terms of the Bill now submitted. We have had a very curious revelation in connexion with the inquiries made concerning the Confectionery Trust. When seen on the subject, the solicitor to the Trust apparently in a very friendly way, was quite prepared to admit that there was a combination amongst the confectionery manufacturers, and to let the Government have a copy of the agreement, but it transpired that this particular combination of individuals confined its operations to the State of Victoria.

Senator Millen:

– Is that the honorable senator’s latest information? They sent delegates to Sydney, and, I believe, to the capitals of other States, to bring the confectioners in those cities into the Combine.

Senator BEST:

– I am aware that negotiations were undertaken for the purpose of bringing certain Sydney manufacturers of confectionery into the Combine, but I am also advised that no definite and distinct evidence of the fact, sufficient to found a prosecution, can be discovered. The point I am making now, however, is that the Confectionery Combine has been formed in Melbourne under the terms of an Act of the State Legislature of Victoria. I believe that similar Acts are in force in the other States, and I have particularly noticed the Queensland Act. The Act to which I refer is the Victorian Trade Unions Act of 1890. I quote this Act as it is the one with which I am most familiar, and the one depended upon by the Confectionery Combine. I find that according to section 3 -

The term “ trade union “ shall mean any combination, whether temporary or permanent, for regulating the relations between workmen and employers, or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not if the Trade Unions Act 1884 or this Act ha-d not passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade.

It is provided that the Act shall not affect certain agreements therein set out.

Senator Pearce:

– Have they affiliated with the Trades Hall?

Senator BEST:

– No; the extraordinary thing is that the Combine, under the terms of this Act, have registered themselves as a trades union. Section 4 of the Act provides -

The purposes of any trade union shall not by reason merely that they are in restraint of trade be unlawful so as to render void or voidable any agreement or trust.

The purposes of any trade unions shall not by reason merely that they are in restraint of trade be deemed to be unlawful so as to render any member of such trade unions liable to criminal prosecution for conspiracy.

And section 5 provides that -

Nothing in this Act shall enable any Court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements -

And amongst others it sets out -

Any agreement between members of a trade union as such concerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ or be employed..

In prosecutions under this Act it shall be sufficient to prove that a trust or combination a-s defined herein exists, and that the defendant belonged to it or acted for or in connexion with without proving all the members belonging to it or proving or producing any article of agreement, or any written instrument on which it may have been based, or that it was evidenced bv any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation” as such.

Then another section of a State Act provides in a similar provision -

And a preponderance of evidence is sufficient to authorize a verdict, and judgment for the State.

The Federal licence plan recognises that real supervision, real regulation, can only be enforced “by a Government whose jurisdiction and powers are great enough to cope with the corporations to be supervised or regulated.

Senator Millen:

– Can that licence issue to a combine or joint stock company?

– I cannot stop to argue that at the present time. I am merely laying down the general principle that it is possible for good trusts and bad trusts to exist, and that the object of our anti-trust legislation is only to get at the mischievous or bad trusts. Clause 4 of the Bill refers to sections1 4, 5, 7,. 8, and 9 of the principal Act. In order to illustrate fully what I mean, I wish to draw the attention of honorable senators to the terms of the Act, and to show how we seek to get at only vicious trusts. Section 4 of the Act says -

Any person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination,- in relation to trade or com merce with other countries or among the States - (a) with intent to restrain trade or commerce to the detriment of the public; or (4) with intent to destroy or injure by means- of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty of an offence.

Every person who is guilty of an offence is liable, to a penalty of ,£500, and the contract is declared to be illegal and void. Section 5 of the Act reads -

Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which, either as principal or agent, makes or entered into any contract, or engages or continues in any combination - (a) with intent to restrain trade or commerce within the Commonwealth to the detriment of the public, or (b) with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty .of an offence.

Every person who is guilty of an offence is liable to a penalty of ,£500, and the contract is declared to be illegal and void. Section 7 says -

Any person who monopolizes, or attempts to monopolize, or combines or conspires with any other person to monopolize, any part of the trade or commerce with other countries or among the States, .with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of am offence.

Every offender is liable to a ‘penalty of £500, and the contract is declared to be illegal and void. Section 8 reads -

Any foreign corporation, or trading or financial corporation formed within the - Commonwealth, which monopolizes or attempts to monopolize, or combines or conspires with any person to monopolize, any part of the trade or commerce within the Commonwealth, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence

Every offender is liable to a penalty of £$00, and the contract is declared to be illegal and void. Section 9 deals with the question of aiding and abetting, and fixes the penalty for that offence at ^500. Subsection 1 of section 11 empowers a private individual to recover treble damages, while sub-section 2 gives very considerable powers for the purpose of discovering documents and securing information. Section 14 reads -

No criminal proceeding shall be instituted under this Part except by the Attorney-General or some person authorized by him.
No civil proceeding shall be instituted under this Part without the written consent of the ‘ Attorney-General.

So far as its provisions are concerned, the Bill is founded upon the Customs Act, because it has been generally recognised that the machinery provided in that Act has been the reason for the success of the Customs prosecutions which have taken place from time to time. I venture to say that large and important prosecutions could not have been carried to a successful issue, and fraudulent importers and others heavily fined, and in some cases imprisoned, without the auxiliary assistance of that machinery, which has been copied in this Bill. Section 255 of the Customs Act reads -

In every Customs prosecution the averment of the prosecutor or plaintiff contained in the information, declaration, or claim shall be deemed to be proved in the absence of proof to the contrary, but so that -

When an intention to defraud the revenue is charged the averment shall not be deemed sufficient to prove the intention ; and

in all proceedings for an indictable offence or for an offence directly punishable by imprisonment the guiltof the defendant must be established by evidence.

We have sought to reproduce that section in the proposed new section 15A which is contained in clause 4 of the Bill.

Senator Pearce:

– Is that identical with the section in the Customs Act?

Senator BEST:

– Practically it is. Section 38 of the Customs Act says -

Any person making any entry shall, if required by the Collector, answer questions relating to the goods referred to in the entry.

Section 234 provides that amongst a number of things which are enumerated -

No person shall -

refuseor fail to answer questions or to produce documents.

A person who commits that offence is made liable to a penalty of £100. Those two provisions are reproduced in the proposed new section15B.

Senator St Ledger:

– It is putting a combine on the same level as a supposed smuggler.

Senator BEST:

– If a combine breaks the law it is equally guilty of a criminal offence. The Customs Act could not be operated successfully did it not enable the Government to go to the importer direct and make him disclose evidence, and produce his books. He is perhaps the only person who possesses the information, and his are the only books which will disclose nefarious conduct.

Senator Pearce:

– President Roosevelt says that they are the worst criminals in society.

Senator BEST:

– Yes. Section 214 of the Customs Act is reproduced in the proposed new section 15c. The section reads -

Whenever information in writing has been given on oath to the Collector that goods have been unlawfully imported, undervalued, or entered or illegally dealt with, or that it is intended to unlawfully import, undervalue, enter, or illegally deal with any goods, or whenever any goods have been seized or detained, the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and documents relating to the goods so imported entered, seized, or detained, undervalued, or illegally dealt with, or intended to be unlawfully imported, undervalued, entered, or illegally dealt with, and of all other goods imported by him at any timewithin the period of five years immediatelypreceding such request, seizure, or detention, and shall also produce for the inspection of the Collector or. such otherofficer as he may authorize for that purpose, and allow such Collector or officer to make copies of or extracts from all books or documents of any kind whatsoever wherein any entry or memorandum appears in any way relating to any such goods.

If a person fails in that regard he is liable to a penalty of £100. The proposed new section 15D, which is contained in clause 4 of the Bill, is a reproduction of section 215 of the Customs Act, which says -

The Collector may impound or retain any document presented in connexion with any entry or required to be produced under this Act, but the person otherwise entitled to such document shall in lieu thereof be entitled to a copy certified as correct by the Collector, and such certified copy shall be received in all Courts as evidence and of equal validity with the original.

Senator Sir JOSIAH SYMON:

– Just so. It is, I suppose, subject to the jurisdiction of the Supreme Court of America as the Inter-State Commission provided for in our Constitution is, in matters of law, to be subject on appeal to the jurisdiction of the High Court. Section 20 of the Inter-State Commerce Act of 1906 provides that - ‘

The Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this Act.

That is under the control of the Court, which is called the Inter-State Commerce Commission -

And from the owners of rail-roads engaged in Inter-State commerce as defined in this Act. To prescribe the manner in which reports shall be made and require from such carriers specific answers to all questions on which the Commission may need information.

Then is provided the details which shall appear in the annual. report, just as in our Companies Acts, and particularly under the Victorian Act, every company is required to supply under statutory declaration by its directors a full statement of its position. Under this Bill what we are asked- to do is to hand over to a Government officer who is not a Court, and is not vested with the responsibility of a Court, the power, before any proceedings are instituted, to harass every trader, merchant, or manufacturer throughout the length and breadth of the Commonwealth. This may be done, although no such proceedings may ever be instituted.

Senator Millen:

– Or to abstain from the exercise of these powers.

Senator Sir JOSIAH SYMON:

No person shall refuse or fail to answer questions or produce documents when required to do, in pursuance of this section.

Penalty : Fifty pounds.

Senator Sir JOSIAH SYMON:

– I am not prepared to say on the spur of the moment whether any abuse has taken place in regard to the information obtained by the Bureau of Corporations. All that I say is that if the Bureau of Corporations obtains the information for the purposes indicated and expressed in the American Act, it would be improper to use -it for any other purpose. What the Act was passed for was a totally different purpose. It was passed with a view to get information by means of -

Diligent investigation into the organization,’ conduct,, and management of the business of any corporation, joint stock company, or corporate combination engaged in commerce among the several States and with foreign nations excepting common carriers, subject to “ An Act to regulate commerce” approved 4th February. 1887. and to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require.

Senator Millen:

– It was what we call a Royal Commission.

Senator Sir JOSIAH SYMON:

– That is what it was. It was a kind of Royal Commission to obtain evidence with a view to legislation. And that, of course,- is a perfectly proper thing. It is quite right to inquire with a view of obtaining information to be submitted to Parliament in considering legislation. But it is not a proper thing to make such an inquiry the foundation for an investigation . into the books of trading concerns, manufacturers, or merchants, with a view to prosecutions. Of course, if the information becomes public, we cannot prevent people making use of it in any way thev please. But that is not the object. The Bureau was established, like our own Tariff Commission, for the purpose of netting information to enable Parliament to legislate. The information becomes public just in the same way as the information obtained by our Tariff Commission becomes public -

It shall also be the province and duty of the said bureau, under the direction of the Secretary of Commerce and Labour, to gather, compilepublish, and supply useful information concerning such corporations doing business within the limits of the United States as shall engage in Inter-State commerce b-tween the United States and any foreign country.

– That has nothing to do with trie Inter-State Commerce Act, which, in America, is . restricted to common carriers. So that, practically, the provisions of that Act are simply an extension of the powers which might be contained in any Act relating to corporations or companies, and the purpose of the Act was really to - gather such information and data as will enable the President pf the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require.

That is literally a proceeding by a body in a situation analogous to that of a Royal Commission, under our system, for the purpose of acquiring information. If we are to be guided or assisted bv preceding legislation, or precedent in other countries’, the Minister has mentioned none for our guidance. There is none in that country which, of all others, is a land of rings and combinations, and where we should expect to find an example of such legislation as is now contemplated if there is one to be had.

Senator Guthrie:

– And none in. Great Britain, which is nearly as bad.

Senator Sir JOSIAH SYMON:

– Of course there is none in Great Britain, where we should not expect to find it.

Senator Guthrie:

– Where there are rings and combinations.

Senator Sir JOSIAH SYMON:

– We should not expect to find it in Great Britain to the same extent as in ‘ America, which is said to be far excellence a country of rings and combinations. There is none in England, as my honorable friend reminds me, and there is none in America, where certainly we should expect to find it. I do not know whether honorable senators think it is a good thing to embody in a Bill of this kind the principle contained in the proposed new section, 15A, which means practically that every man is to be presumed to be guilty until he proves himself to be innocent. Of course, what it does mean is that the moment a company embarks in business it can be brought into Court as one which is prima facie guilty until it proves its innocence. That is a very necessary thing in many respects, and in many branches of the administration of the Customs Act. But, surely, it is not necessary in matters of this kind, where some effort ought to be made, not by a person who is. communicating irresponsible paragraphs to a newspaper, but by some responsible person, who will get into a witness-box, and, under the sanction of an bath, state facts upon which proceedings may be founded, and unless in a case such as that we ought not to presume any trader to be guilty until he discharges himself of that imputation.

Senator Best:

– There are qualifications as the honorable senator knows.

Senator Sir JOSIAH SYMON:

– What is the good of my. honorable friend making that remark ? The qualification is the one which is contained in the Customs Act, and that is that the intent must be proved. The moment a man goes into Court he is presumed to be guilty, and if they fail to prove the intent he may still be thought by the public, or those with whom he has to do, to be guilty of the charge of being engaged in a combination.’ I think that we ought to read the Bill a second time, even if only to affirm the intention of the Senate in regard to trusts and combinations which are supposed to be mischievous. But I venture to say that this is a measure without precedent, and one which if passed will prove inimical and hurtful to the best interests of the traders and manufacturers in this country. We ought to be slow to agree to these clauses at all, and certainly slow to agree to them without considerable amendment with a view to their improve, ment.

Debate (on motion by Senator Millen) adjourned.

page 4382

BOUNTIES BILL

In Committee (Consideration resumed from 4th October, vide page 4276):

– Will the Minister agree to insert words to show the stage at which the bounty will be payable - whether on the green or the dried fruit?

Senator KEATING:

– I do not propose to accept an amendment of that kind. I know the dangers attendant on any amendment of this schedule. The provisions in the measure are that the bounty is to be paid on goods of a merchantable quality and sufficient quantity, and, in relation to food products, on goods which are of the prescribed quality. Under those provisions the administration will be properly safeguarded. A considerable industry in date production exists in other countries, and if Australia can grow dates there is no reason why we should not offer some inducement to our people to endeavour to cultivate them for the Australian market. It takes five or six years before the tree comes into bearing, and even then it is from twenty to twenty-five years before it attains its full bearing capacity. But it bears for a period of something like 180 years. In Egypt each tree carries from eight to ten bunches of fruit. According tothe experts’ report, 500 trees are planted on one acre, and the average return per tree is 4s. The experts add -

Date palms at Barcaldine and in parts of Southern Queensland have yielded as many as eight bunches per tree.

– If that is so, and it is news to me, why on earth should we give a bounty for planting date palms on arid. and bad land? If there is a decent industry in the cultivation of the date palm, would it npt be taken up without this bounty? Shall we not be attracting the energies and capital of white men away from industries which pay much better? Can we ever make a permanent industry of it? I should say not. Although a proportion of this great continent may be in the tropics, it does not at all follow that it is capable, as many honorable senators suggest, of growing every tropical plant that we have ever heard of. I am satisfied that we shall find that Australia is not suitable for the production of some of the articles on which we have agreed to grant bounties. It is possible that other tropical countries may be suitable for the- cultivation of the date palm. Apparently the Minister has to depend in these matters on the information given by experts, but in this case I think the experts have not looked up their case, have not given much attention to it, and have entirely overlooked the practical side of the proposal. I think that in this case, as in the case of some of the other items, even the expert information supplied has been absolutely misleading. . We have gone quite far enough with this Bill ; we have voted for the granting of enormous sums of money as bounties, and I am not prepared to support this item.

Senator W RUSSELL:
SOUTH AUSTRALIA · ALP

The fleshy part of the fruit contains .58 per cent, of sugar, accompanied by pectin, gum, &c.

The fruit is eaten either fresh or dried, and in the latter state becomes an article of commerce. Cakes of dates pounded and kneaded together, and so solid as to be cut with a hatchet, are the store of food provided for African caravans on their journey through the Sahara.

I quote that to show that it is the dried date which is the article of commerce. If the Minister will agree to insert the word “dried” after the word “Dates,” it will carry out the intentions of the Bill, and make it clear that, although the green date is a fruit which can be eaten, and may be merchantable within a short radius of where it is grown, what is desired is to encourage the date-drying industry/ I move -

That after the word “Dates “ the word “Dried” be .inserted.

Senator Sir JOSIAH SYMON (South Australia) [5.48]. - I referred to this, item in my speech on the second reading of the Bill, but I wish to add a word or two in support of what Senator Chataway has just said with regard to the indefiniteness of the proposal. He has pointed out that there is nothing to show- whether the item means that a bounty is to be given on the production of so many pounds of green dates <or so many pounds of fruit which have been subjected to the process of drying. As the Bill is worded, the bounty may be claimed both on the green’ and the dried fruit, because clause 4, though it- enables the Minister to prescribe as to “ merchantable quality,” does not enable him to prescribe, as to the form, or as to whether the goods shall be subject to any particular process. The clause says that the bounty shall be paid in respect of goods which are of a merchantable quality. That may mean either the green fruit or the dried. The schedule does not define whether the bounty is to be paid upon the production of so many pounds of green fruit, like apples or pears, or whether the dates are to be dried and packed. In the case of fish, the bounty is not to be given upon the fish as caught from the sea. If the schedule said merely “ fish,” clause 4 would not enable the Minister to say that the bounty should be given on preserved fish only. But the schedule requires the persons obtaining the bounty to preserve, dry, or smoke the fish. The word “quality,” in clause 4, does not -mean the condition or form of the goods. As applied to fruit, it means its quality as dried fruit, or, if green, its quality as green fruit. If we desire that the bounty shall be paid on dried dates, we shall have to insert a definition in the Bill.

Senator Guthrie:

– Why not give the bounty on both green and dried dates?

Senator Sir JOSIAH SYMON:

– A bounty of id. per lb. might be very ser- viceable to a man who simply produced so many pounds of green dates, but it would not be the same thing to a man who had gone through the process of preserving the dates and making them into a commercial article.

Senator Chataway:

– The man who pre- ‘ served them would” get less, because they would be lighter when dried.

Senator Guthrie:

– They would be heavier if preserved in syrup.

Senator Sir JOSIAH SYMON:

– Dates are not preserved in syrup.

Senator Guthrie:

– Yes, they are. .

Senator Sir JOSIAH SYMON:

– I never saw them so preserved. I have seen dates growing. They are grown near Hergottin South Australia, upon what has been referred to as an oasis, and more excellent dates were never grown anywhere, I should think. They are packed and prepared as an article of commerce in very nice boxes.They are very much more fleshy than those usually seen in grocers’ -or fruiterers’ shops. In the case of, the next item, fruits, the schedule says, ‘ ‘ Dried (except currants and raisins) or candied, and exported.” The object is not to -give a bounty on fresh fruits, because there is npt a country in the world that is better fitted for the growing of fruits than Australia. The Minister might very well adopt the amendment moved by Senator Chataway.’ Without it the item will be ineffective.

Amendment agreed to.

Item, as amended, agreed to.

Item, “ Fruits - Dried (except currants and raisins) o.r candied and exported agreed to. .

Combed wool or tops, exported ; (period and rates of bounty), 2 years, commencing from 1st July, 1908, 1½d. per lb., and thereafter, three years, id. per lb. ; (maximum payable in any one year), £10,000

Senator WALKER:
New South Wales

– I propose to ask the Committee to accept two amendments in- this item. The first is one altering the date from 1st July, 1908, to 1st January, 1909. The reason for that is that I am informed by practical men that the machinery cannot be obtained in Australia, and put in working order, before the 1st January, 1909. Then, again, with regard to the rates .of bounty, it will be observed that it. is proposed that for two years it .shall be i£d. per lb., and there- after for three years1d. per lb. My informant, a practical man, is prepared to put . £50,000 into this business, and he tells me that he would like the bounty to be1½d. per lb.for three years,1d. in the fourth year, and½d. thereafter, making it a tapering bounty. One reason why I support this bounty is because the machinery for making tops is imported, and will have to bear a duty of 25 per cent. If machinery to the value of , £50,000 is imported it means that those who start the industry will have to pay £12,500 in duty upon it. Here is a case which shows the way in which heavy duties act adversely to the establishment of industries in Australia. Therefore, one reason why I am in favour of the bounty is that those who desire to enter into the industry are hampered by the heavy protective duties on machinery. I invite the attention of honorable senators to a specimen of tops made from Australian wool by German manufacturers while I read a few extracts from the experts’ very interesting report on what promises to be quite a new industry in the Commonwealth -

It is stated that the project of turning wool into tops in Australia and the Argentine has been inquired into by Continental firms during the last few years, but no further progress has been made, the principal objections being the cost of manufacturing owing mainly to the higher wages rate.

It is stated that if by means of a bonus the manufacture of tops were established, it would be of distinct advantage to the wool trade, from a wool-grower’s and seller’s point of view, by increasing competition, and this would be more especially so in the case of tops made from sheepskins. This would react favorably on value of sheep and on the frozen meat export trade by increasing the value of the sheepskin.

Considerably increased employment would be given locally,

I am told that it is really marvellous how many additional hands could be employed - and the industry of treating sheepskins encouraged, instead of as at present exporting the bulk of the sheepskins to foreign countries in a raw state.

The industries of tanning basils and gluemaking would also be favorably affected.

Top-making for export, it is believed, can be successfully established here with the aid of a bonus for a period of five years,

My informant states that that is so. He has no hesitation in expressing his belief that at the end of five years the industry would be established on a firm basis. The report continues - after which, if conducted on a large scale and in proper hands, the industry should well be able to stand alone, and once it has been demonstrated that it can be conducted successfully it should take rank as one of the first industries.

Senator Keating:

– The honorable senator says that his informant indorses the statement that, by the aid of a bounty, the industry could be established within five years.

Senator WALKER:

– Yes, and I will read an extract from his letter presently. The report continues -

The factors in favour of making tops in Australia are : -

By treating the wool whilst fresh, and avoiding the hard pressing of woof (which causes deterioration), a better product will be obtained.

The climate and the quality of water available are much in favour.

The uncertainty (as to yield and quality)’ in buying will, to a great extent, be overcome ; instead of purchasing thousands of bales and having to wait months for the result, tests can be made and the buyers’ judgment supported from time to time. This would commend itself to all firms buying in Australia, and if an up-to-date works were erected, would be much availed of by buyers.

Contracts for supply of a standard article would be easier to negotiate, thus regulating the market.

Saving in freight.

The favorable position to secure Eastern), markets.

The local trade in manuf acturing cloth that might be developed as a result of the establishment of large top-making establishments from which spinners and weavers could draw supplies more economically than manufacturing themselves in a small way.

If a fellmonger and woolscourer in Australia -

My informant is a fellmonger and wool scourer in a large way of business - is able to successfully compete, as he seems to do at the present time, with continental operators, he should be in a much better position if he converted the wool into tops straight away once: the industry became firmly established and the tops favorably known to manufacturers.

There is only one more short extract which I wish to read from the report -

It is saidthat the Australian tops can be produced very much cheaper than tops can be imported, and that the cost of making worsted yarn is considerably less than the cost of importing the same quality of yarn.

With regard to that matter, I propose to read an extract from a Leeds newspaper, which seems to recognise that there is a possibility of the wool industry becoming a success in Australia. The extract is from the Melbourne correspondent of the

Yorkshire Post, and appeared on the 13th

August-

Within the past few years a marked change has taken place in the conditions of Australian trade as regards the raw material referred to. At the present time, it is well known here that the woollen manufactures of Bradford and other great Yorkshire towns have received a considerable stimulus of late. This fact so far, however, from damping Australian aspirations, would seem rather to encourage the belief - rightly or wrongly - in some directions that the Commonwealth is destined ultimately to become a great centre for working up the raw product into all marketable articles of woollen manufacture, and for their export from the Southern Australian coast towns to the vast neighbouring populations of Asia, as well as to Europe and America. Personally, I can offer no opinion on the subject, except that I can see no early prospect of finding the requisite expert labour. But the syndicate identified with the proposed undertaking is understood to have raised , £50,000 in New South Wales, and is reported to have made arrangements for an additional£50,000 to be subscribed in London to start with. Should the scheme realise the anticipations of the promoters, they indulge the hope that it may eventually absorb many millions of British and Australian capital .

The chief arguments in favour of the contemplated scheme may be briefly noticed. The first is the alleged economic advantage of having factories for utilizing raw materials as near as possible to the regions where these materials are best grown. The plan contemplated in Australia is to grow wool as at present, in Australian areas suitable for pasturing sheep, transfer the product by rail or steamer direct from the sheep-runs to manufacturing centres in the Commonwealth, and convert the wool into cloth by skilled white labour, imported, in the first instance, from England and the European Continent. It is affirmed that millowners here could afford to pay imported hands higher wages than prevail in Europe. The notion is gaining ground that the costs now incurred in sending buyers of wool to Australia from distant countries, in exporting the raw material from Australia to the countries where it is non extensively made into cloth, and in shipping the manufactured article to remote destinations from British and other ports could be saved.

Senator McGregor:

– Surely that is a protectionist essay which the honorable senator is reading?

Senator WALKER:

– I cannot help that.

Senator McGregor:

– I am really surprised.

Senator WALKER:

– The Government have levied such heavy protective duties on machinery that it is really necessary to give a bounty upon the production of combed wool or tops to induce persons to come here and start the industry -

The heavy expenses of agencies, banking commissions; and exchange on remittances, it is believed, could also be greatly diminished, if not quite avoided, in the interest of both manufacturers and consumers.

The altered methods of business in handling the raw material are very significant.

I may mention that this correspondence was contributed to a free-trade newspaper, which, to some extent, indorsed the writer’s remarks.

Senator Lynch:

– Is it actually proposed that the manufacturers shall come here?

Senator WALKER:

– Perhaps the manufacturers in the United Kingdom will join the manufacturers here in establishing works. In days gone by they have done that in Europe, and I do not see why they should not do so in Australia -

Ten years ago the total sales of wool in Australia amounted to 775,237 bales, or 52 per cent, of the total production. But during the wool year which closed on June 30 the sales within the Commonwealth amounted to about 1,350,000 bales, or, approximately, 82 per cent, of the total production, although but a trifling proportion was retained in any part of Australia for manufacturing purposes.

We know that every year the proportion of wool sold in Australia is increasing. The following remarks are made by the newspaper itself -

There is a very considerable trade done by Leeds with Australia, chiefly in low woollens, and it is this class of fabric that the Australians are being encouraged to produce……

Wherever the duty is increased upon British engineering imports, it would be tantamount to an additional burden upon manufacturers, notwithstanding that they are promised a slight preference over their foreign competitors.

I produce a photograph of the works of , my informant in Sydney, and it can be seen at a glance that he carries on an immense business. With regard to Japan, Mr. Suttor, Commissioner for New South Wales in the East, made the following reference to the manufacture of tops in a communication which he wrote at Kobe on the 8th July-

I am glad to note that you are now going in for the manufacture of “tops.” The importations to Japan are gradually on the increase. During 1906 they amounted to 5,421,337 lbs., valued at£602,555 16s. ; and, judging from conversations I have had with principal importers, I should say that all grades up to 70’s are imported. If you can deliver the tops, as mentioned, at½d. per lb. below European quotations for similar qualities, you can rely that business will be transacted. In Japan everything depends upon the price quoted.

We ought to be able to do that, because at present we have to send the wool to England, bring it back in the form of tops, and send them to Japan. Surely if we were to manufacture the tops here we could afford to send them to Japan for½d. per lb. less than English or European tops could be sent there for.

Senator Findley:

– Yes, but Japan will be producing tops by-and-by, because it is opening up Manchuria.

Senator WALKER:

– My informant says -

Of course, if the bonus be granted the venture is not one to be made lightly, for, -in addition to the probability of others going into it when a pioneer has paved the way, the wool market (always an uncertain factor) might easily go against one to a much greater extent than the 3£ per cent, to 5 per cent, of value to which the bonus would amount. Notwithstanding this, I feel pretty certain that if you can see your way clear to advocate and secure the suggested alteration, it will enable me for one, and I shall welcome the co-operation of any one who proposes to go into the industry, to add to my present works the necessary plant to demonstrate the practicability of successfully exporting tops instead of raw wool, with the resources at the command of myself and my friends amounting to ^50,000.

Senator McGREGOR:

– No. The difficulty is to induce people to start the industry. As we desire to encourage such a large industry as this in Australia we should grant this bounty, and also agree to Senator Walker’s amendment, because, as it may be the end of this year or the beginning of next year before the Bill becomes law, it would be impossible for any manufacturer or company of manufacturers to obtain their machinery and have everything in order by July next. Even an extension to 1st January, 1909, is hardly sufficient; but as Senator Walker has information that justifies him in thinking that that’ will give sufficient time, I shall be only too glad to support him. One reason why we should encourage the manufacture of tops in Australia is that when our wool goes to the old country, even the great factories where the tops are manufactured have no use for the, whole of the product. They manufacture only what suits themselves, and sell the rest. Here, however, we could manufacture all our wool into different classes of tops, and not only supply our manufacturers without any trouble with the very article that they want, but be in a position also to export large quantities to other parts of the world where our wool is in such great demand. I have, much pleasure in supporting the amendment.

Senator MACFARLANE (Tasmania) [6.2x1. - I am sorry that I cannot support Senator Walker in the new step that he has taken. There is a great deal of ignorance in this matter of tops. I have here a letter from a manufacturer who opposes it. He has tried to make tops and yarns for his hose. He states -

The question has been raised, “Why can’t ‘we spin our own yarn ?” and one hosiery manufacturer represented to the Tariff Commission that given adequate protection on yarn, they would put down a spinning plant. But this could not be done, as we ourselves have proved, owing to the large number of qualities and sizes required to meet the varied demands of the Commonwealth. As you will readily understand, the climatic differences of . Queensland and New South Wales require quite a different texture of goods to Victoria and Tasmania. We ourselves use from 40 to’ 50 different varieties of yarn, which no one spinner could turn out. The capital invested by an English Combine to turn out these varieties of yarn is ^5,000,000.

– I decline to think that my electors sent me here to cumber up the statute-book with idle and useless legislation. The first promise of an industry of this kind is to supply the local market. If manufacturers cannot do that now, in spite of the encouragement offered to them to do it, no one can reasonably expect that they will be able to export in competition with the old-established and very large manufactories of Bradford and America.

Sitting suspended from 6.30 to 7.45 p.m.

Senator KEATING:
Minister of Home Affairs · Tasmania · Protectionist

– Senator Walker has advanced, as a reason for the proposed alteration of the date, the statement that if the period covered by the bounty commences on 1st January, 1909, rather than on the 1st July, 1908, a reasonable opportunity will be afforded those disposed to go into the industryto import the necessary machinery. I do not think there is any valid ground for objecting to the postponement of the commencement of the period, and to that extent I see my way to meet the honorable senator. With regard to the re-adjustment of the rates of bounty, the honorable senator proposes that, instead of paying1½d.per lb. for the first two years, and1d. per lb. for the remaining three years, we should pay1½d. per lb. for the first three years,1d. per lb. for the fourth year, and½d. per lb. for the fifth year, making the amount to be paid in all 6d. per lb., spread over the five years, as proposed in the schedule. As the proposed alterations in the rates of bounty would not affect the total appropriation, which would still be £10,000 for each year, the constitutional objection which so often arises as to our competence in making amendments in Bills of this kind does not confront us in this case, and I see no objection to the amendment.

Senator Colonel NEILD (New South Wales) [7.48]. - I am glad that the Minister has agreed to the proposed alteration of the date. I intended to vote for that amendment. I do not know whether I should vote for the second amendment, but I am prepared to vote for the item. There is no question about the production of the raw material in Australia, and particularly in the State that sends me here. After all has been said and done, the man who puts his moneyinto the necessary machinery for carrying on this industry will know that there is no question about his being able to obtain the raw material, or that there will be a market for tops if he manufactures the article in accordance with the requirements of those who use it. If any manufacturer obtains the wrong class of machinery, or manufactures the wrong class of tops, he will do so with his eyes open. In this respect, in connexion with this item, there is not the element of uncertainty which attaches to items to which we have already agreed. But I point out that a manufacturer may turn out tops quite suitable for certain classes of tweeds or woollens, but for which he may be unable to find amarket, and consequently the Commonwealth may be called upon to pay bounty on an article which will really have no market value. That is a somewhat unfortunate risk, but at present I do not see by what amendment of the schedule a risk of the kind could be guarded against. I think we must chance it, hoping and believing that those who undertake to produce this article will produce something for which they can find a market. I shall vote for the item.

Senator Walker:

– I ask permission to withdraw my amendment.

Amendment, by leave, withdrawn.

Item (on motion by Senator Walker) amended to read as follows, and agreed to -

Combed wool, or tops, exported ; (period and rates of bounty) three years commencing from 1st January, 1909,1½d. per lb. ; one year commencing from1st January, 1912,1d. per lb. ; one year commencing from 1st January, 1913,½d. per lb. ; (maximum payable in any one year), £10,000.

Senator KEATING:

– I mean the ratio of £412,500 to £533,000. The amounts in the two schedules are not the same. We recognised that, although authorized to pay on account of rice, for instance, 20s. per ton, there would be no claim at all for one or two years, and there might be a period afterwards when the full amount would not be claimed. So that, although authorized to spend the full amount provided for in the first schedule, we did not ask for the full amount in the second schedule.

Senator Chataway:

– So that the Government would have to come down to Parliament for a further supply of money if the almost impossible thing happened, and the full amount of the bounty authorized were claimed every year?

Senator KEATING:

– Yes; in that event we should have to come to Parliament to ask for more money. What I propose to do now is to take off the second schedule an amount proportionate to the £115,000 by which the first schedule has been reduced. That is to say, I propose to reduce the second schedule by £89,000.

Progress reported.

page 4393

QUESTION

SENATE ELECTION: SOUTH AUSTRALIA

Petition of Mr. J. Vardon : Report of Committee of Disputed Returns and Qualifications

Senator Sir JOSIAH SYMON (South Australia) [8.8]. - As Chairman of the Committee of Disputed Returns and Elections, I beg to present the report of that Committee upon the petition of Joseph Vardon against the choice by the Houses of Parliament of the State of South Australia of the Honorable James Vincent O’Loghlin, as senator for that State. I ask that the report be read.

Report read by the Acting Clerk, as follows -

Your Committee, having considered the petition of Joseph Vardon against the choice by the Houses of Parliament of the State of South Australia of the Honorable J. V. O’Loghlin as a senator for the said State, and against the right and title of the Honorable J. V. O’Loghlin to sit, vote, and act as such senator, and praying that it may be declared that the seat of one senator [or the said State is vacant, have the honour to report as follows : -

The facts and documents stated in the petition were admitted. The Acting Clerk of Parliaments produced the documents in the custody of the Senate, and the Senate Journals bearing upon the matter. No other evidence was called.

At the end of 1906 the places of three senators for South Australia became vacant by effluxion of time, and on the 12th December, 1906, an election took place to fill these vacancies, and three persons - one of them being the petitioner, Joseph Vardon - were returned as duly elected.

On the 31st May, 1907, His Honour Mr. Justice Barton, sitting as the Court of Disputed Returns, declared the said election absolutely void in respect of the return of the said Joseph Vardon. This decision (see section 201 of the Commonwealth Electoral Act 1902) is final and conclusive, without appeal, and it is not to be questioned in any way. Your Committee therefore find and report that, so far as regarded the petitioner, the said election - that is, the choice of the people, on the 12th December. 1906 - was void, and that no one was on that occasion chosen by the people to fill the place of senator to which the petitioner Joseph Vardon was supposed to have been elected. In the words of Mr. Justice Barton during certain mandamus proceedings before the High Court, quoted to your Committee, “ Within the Acts there was no election at all.” The High Court also in their unanimous judgment upon the mandamus application said, “The only relevant fact is that the attempted choice of one of the three senators who ought under section 7 to have been directly chosen by the people was ineffectual.”

On the11th July 1907, there being a vacancy, the Houses of Parliament of South Australia, assuming it to be a vacancy within the meaning of section 15 of the Constitution, and assuming to act under that section, met together and chose the Honorable J. V. O’Loghlin to hold the place then vacant in the representation of South Australia in the Senate. If the vacancy was not a casual vacancy - that is one within the meaning of section 15, the choice of the said Houses of Parliament was not authorized or valid.

It appears from the correspondence set out by Mr. Vardon in the petition that he was nominated, though under protest from himself, to the State Parliament. It is clear, however, that Mr.Vardon tookup the same position then as now. and maintained that the State Parliament was not empowered to choose a senator under the circumstances, and that the proper course was a new popular election so that the people might exercise the choice of which they had been deprived. We do not think the fact of Mr. Vardon’s nomination can be said to waive the objections to the choice by the State Parliament, or to make that choice valid, or to prejudice the right of the people of the State to be allowed to directly choose a senator according to the Constitution.

It became then the duty of your Committee, in obedience to the reference by the Senate, to ascertain and report whether the vacancy was one within the. meaning of section 15 - in other words, whether a vacancy in the representation of a State in the Senate due to the people for any reason, and through no fault of their own, not having exercised their choice, can be filled by the State Houses of Parliament.

The following grounds and considerations have influenced your Committee in arriving at their conclusion : -

It is provided by section 7 of the Constitution that senators shall be “ directly chosen by the people of each State.”

Section 15, which is equally a part of the

Constitution, provides for casual vacancies, to which the State Houses of Parliament or the Governor, with the advice of the State Executive, if the Houses are not in session, may appoint.

Choice by the people appears to your Committee to be the basis of the Constitution of the Senate, and until the people have had an opportunity to exercise, and have effectively exercised, their choice, no other mode of choice or appointment can come into play. There can, apparently, be no casual or accidental vacancies until there is first a valid and effective election by the people.

If there has been a valid election or choice by the people then a vacancy subsequently occurring in the place of a senator so chosen may be filled as a casual vacancy, but the methods or machinery provided for supplying casual vacancies cannot and ought not to be used to supersede choice by the people, or in cases where the people for any reason have made no choice.

If, for instance, there had been no election by the people before the 1st January last for want of nomination, or owing to the Governor having omitted to issue his writ, or because the State Executive thought it politically or otherwise inexpedient to hold the election then, no one could say that the representation of the State in the Senate could in that case be filled by the Parliament, . or it might be by the Governor, with the advice of his Executive. The antecedent condition to the right of either to appoint a senator is first an effectual choice by the people, entitling the person to hold for the full term of service, and the subsequent happening of a vacancy.

Your Committee do not think section 15 comes into operation at all, except in the case of a senator who holds an unchallenged seat as the choice of the people, or it may be of a person appointed under section 15 itself to hold the place of a senator so chosen by the people.

The Court of Disputed Returns is the ap propriate tribunal created by Parliament to decide in any particular case whether the people have chosen or not, or whether what purported to be an election was no election and void.
It is to be noted that section 15 is an exception to or in derogation of the people’s right. If it were not there every vacancy, including casual vacancies, would have to be filled by popular election. For that reason your Committee think the public interest, as well as the principle of popular election, require that its scope or operation should rather be restricted than enlarged; that if it be doubtful whether any particular case is within section 15 it should be excluded in favour of popular election. It will probably not be disputed that in cases of doubt, the doubt should be solved in favour of maintaining the choice of senators by the people, every other method of choice being treated as subordinate, and not to be admitted at all, unless the prescribed conditions of the Constitution permitting such other method of choice have plainly and without any doubt arisen. The people are not to be deprived of their right of direct choice without the very clearest language in the Constitution.
Your Committee think that the Houses of Parliament of the State of South Australia were not entitled under section 15 to fill the vacancy in relation to Mr. Vardon unless he was rightfully a senator by virtue of the direct choice of the people. He did not, according to the judgment of Mr. Justice Barton, fulfil that condition. Section 15, therefore, was not applicable to the vacancy which arose. There was a vacancy, but it was not caused by “ the place of a senator becoming vacant,” as required by section 15, but because of the place of a senator which should have been filled by . valid popular election in December,1906, never having been so filled. The people, through no fault of their own, had not exercised their choice. They had gone through the form of an election, but had failed to elect.
If,as we have already pointed out, sec tion 15 presupposes an original or antecedent choice of a senator otherwise than under that section, such original or antecedent choice can only, according to section 7, be “ directly by the people “ -not a mere form of choice, but an effective choice, and, obviously, a supposed choice cannot be effective in the case of a person declared by theappointed tribunal not to have been “ chosen by the people “ - a person as to whom the “attempted choice” was void. It was not the place or seat occupied in fact by Mr. Vardon which was declared void, but the election of 12th December, 1906, by virtue of which he claimed to take and hold the seat. A man is either a senator or not, and under the judgment of Mr. Justice Barton Mr. Vardon never was a senator, or held the place of a senator.
Section 15 is further limited to the case of a senator whoseplace becomes vacant “ before the expiration of his term of service.” Mr. Vardon’s term of service was either six years or nothing. It could only be for six years by virtue of the people’s choice. But the Court decided the people made no choice. Therefore, Mr. Vardon had no term of service. His place, whether he was called a senator or not, cannot be said to have become vacant “ before the expiration “ of such a term when he was displaced, because he had no term at all, and there had been no election to give him right or title to a term of service, or to serve at all. A void election can give no “ term of service.” (i)The “place of a senator” to which the Houses of the State Parliament, or the Governor with the advice of the State Executive, may appoint, must be created in the first instance by the direct choice of a senator by the people, and must become vacant before the expiration of his term of service. Mr. Vardon was supposed to have been chosen by the people as senator, but the Court of Disputed Returns decided he was not so chosen ; that “ the attempted choice “ was void, and therefore as there was no “ place of a senator “ created by his supposed election or choice, there was none to “become vacant” within section 15 - to bring the provisions of that section into operation. During the interval between the ineffectual choice and the judgment declaring it was no choice Mr. Vardon may have been called or regarded as a senator, and may have acted as though he were one - but he was not, and his being so called, or having so acted, could not make him a senator or put him in any different or better position than if Mr. Justice Barton had tried the petition and delivered judgment before the Senate met or before Mr

Vardon had an opportunity of taking his seat. The fact of his having sat could not give him a term of service unless a person not chosen by the people can, by taking his seat in the Senate, become or make himself the choice of the people.

Even if it could be contended, though we think it cannot, that Mr. Vardon had a term of service until the decision of the Court of Disputed Returns, it is plain that even then his place did not become vacant “ before the expiration of his term of service,” as required by section 15. The decision itself ended the supposed term - was, in fact, its expiration - and therefore the place became vacant not “ before,” as section 15 requires, but on or simultaneously with its expiration.
To uphold the choice of the State Parliament in this case would, we think, require the Senate to say that the Constitution means that in case of a void election the people, who were not to blame, are to be disfranchised, and their right of choice, which they were prevented by official carelessness from exercising, is to be transferred to others. We do not think section 15 has or was intended to have such an effect.
It was pointed out that the words “place of a senator becomes vacant,” or their equivalent, also occur in sections 13, 19, 20, and- 45, where they can only refer to persons effectively constituted senators, and it was argued they should have the same meaning in section 15. If, on the other hand, in section 15 they are to be taken to refer merely to the seat occupied by a person claiming to be a senator, but whose claim is disputed and petitioned against, then it was submitted they would mean the same in section 19, with the result that such a person might, by resigning, not only defeat the petition, but the claim of some one else to the seat, and throw the choice into the hands of the State Houses of Parliament, or it might be the Governor with the advice of his Executive Council.

This argument strongly supports the view that the words “ place of a senator,” in section 15 and the corresponding words in section 19, can only be satisfied by a person effectively constituted “ a senator,” and rightfully holding the “ place of a senator.” If Mr. Vardon had not a “ place “ which he could resign under section 19 he had none which the State Parliament could fill under section15.

Resignation under section 19 ought not, in the opinion of your Committee, to be open to a person whose election is sought to be declared void, not only in cases where the seat is claimed by some one else, but generally on the ground that it would, if the course followed by the State Parliament of South Australia is right, take away from the people the right of choice and hand it over to others. In Mr. Vardon’s case, however, the seat was claimed by some one else

It is not contended that if the whole election had been declared void the State Parliament could under section 15. have appointed three senators to fill the vacancies, and your Committee are unable to see what difference there is in principle in the case of an election declared void as to one, or why it should be said there is a casual vacancy in the case of one which is not so in the case of three. (n)It has been urged that a popular erection could not take place now because of the provisions of section 13 of the Constitution, and that if a senator were chosen now he would not be entitled to begin his term of service till the 1st January, 1908, and that in the meantime the State of South Australia would be one senator short. Your Committee, on the authority of the judgment of the High Court upon the application for mandamus, do not accede to those objections. The High Court judgment seems conclusive that the provisions of section 13 offer no impediment to giving the people of South Australia the opportunity of exercising their choice and electing a senator now. The words of the judgment are as follow : - “ Section 13 provides that the term of service of a senator chosen in ordinary rotation shall be taken to begin on the first day of January following his election (except in certain cases not now material).It was suggested that this provision is inconsistent with an election being held after the first of January to fill vacancies which ought to have been filled at an election held before that day ; but we do not think that there is anything in this point. If the election ought now to be held, it should, we think, be taken to be held nunc fro tunc for all purposes. Otherwise the main purpose of securing a regular rotation of senators would he frustrated.”
The attention of your Committee was also directed to section 205. sub-section (3) of the Commonwealth Electoral Act, providing that in the caseof an election being declared void there shall be a new election. If this were inconsistent with the Constitution it could not prevail, as the Electoral Act cannot override the Constitution ; but it does not appear to be in any way inconsistent. It seems rather to give effect to the principle of the Constitution that the people must, in the first instance, choose, and that they have not so chosen if the election is declared void, and should be given an opportunity of doing so.
Section 108 of the Commonwealth Electoral Act was also cited to show that “ a Supplementary Election “ was contemplated and provided for - applicable where necessary to one or more vacancies - and it was contended that the Senate election for the State of South Australia did partially fail as regards Mr. Vardon, inasmuch as, though nominally “returned as elected,” the election and return were both void, and as though there had been no return at all as regarded Mr. Vardon, and therefore the full number was not validly returned as elected. Your Committee agree with this view.
It is truly suggested that a popular elec tion means expense. Your Committee respectfully think that a question of expense should not be permitted to defeat the constitutional right of the people to choose their own senators, or to justify the Senate in recognising an appointment or choice made by a State Legislature or indeed by any other person not clothed with clear authority to make it.
Your Committee respectfully point out that it would scarcely be just that the people should forfeit their right to choose a senator owing to an attempted choice having failed through no fault of their own, and further that if the right of the State Parliament of South Australia is maintained, there will be an obvious temptation to those in a minority of the people, but temporarily in a majority in Parliament, to compass the voiding of an election in order to secure the appointment of their own nominees by a friendly Parliament.
1. Your Committee therefore have arrived at the conclusion that there was not a vacancy within the meaning of section 15, and that the Houses of Parliament of the State of South Australia were not entitled to choose a person to hold the vacant place in the representation of the said State in the Senate.

Your Committee therefore respectfully report, in terms of the prayer of the petition, that the choice by the Houses of Parliament of the State of South Australia of the Honorable J. V. O’Loghlin to hold the place of a senator for the said State is void, and that the Honorable J. V. O’Loghlin has not been duly chosen or elected as a senator, or to hold the place of a senator for the said State, and has no right or title to sit, or act as a senator, and that the seat of one senator for the said State is vacant.

Your Committee make no award as to costs and recommend that the sum of Fifty pounds deposited by the petitioner be returned to him.
1. H. Symon,

Chairman.

Committee Room,9th October, 1907.

Addendum.

As the question is a difficult point of constitutional law, which any decision of the Senate will not finally settle, we consider the question a proper one to refer to the High Court.

Hugh de Largie.

Turley.

Senator Sir JOSIAH SYMON (South Australia) [8.27]. - I move -

That the report be printed, and its consideration made an Order of the Day for Wednesday next.

Cite as: Australia, Senate, Debates, 9 October 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19071009_senate_3_40/>.

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Senate 9 October 1907

ASSENT TO BILLS

QUESTION

ELECTORAL ACT

Senator HENDERSON:WESTERN AUSTRALIA

Senator KEATING:Minister for Home Affairs · TASMANIA · Protectionist

Senator HENDERSON:

Senator KEATING:

QUESTION

COMMONWEALTH OFFICES IN LONDON

Senator MILLEN:NEW SOUTH WALES

Senator BEST:Vice-President of the Executive Council · VICTORIA · Protectionist

QUESTION

EXCISE TARIFF (AGRICULTURAL MACHINERY) ACT

Senator BEST:Protectionist

Senator KEATING:Protectionist

Senator Colonel NEILD:

Senator KEATING:

QUESTION

CANCELLED MAIL CONTRACT

Senator BEST:Protectionist

Senator Sir JOSIAH SYMON:

Senator BEST:

Senator Colonel NEILD:

Senator BEST:

Senator GUTHRIE:SOUTH AUSTRALIA

Senator BEST:

Senator Colonel Neild:

The PRESIDENT:

Senator BEST:

Senator Sir JOSIAH SYMON:

Senator BEST:

Senator Sir JOSIAH SYMON:

Senator BEST:

Senator ST LEDGER:QUEENSLAND

Senator BEST:

PAPERS

QUESTION

TELEGRAPH MESSENGER : CAIRNS

Senator STEWART:QUEENSLAND

Senator KEATING:Protectionist

QUESTION

AMMUNITION WAGGONS

Senator PEARCE:WESTERN AUSTRALIA

Senator KEATING:Protectionist

QUESTION

ALIENATED AND UNALIENATED LAND

Senator ST LEDGER:

Senator KEATING:Protectionist

QUESTION

IMMIGRANTS

Senator CHATAWAY:QUEENSLAND

Senator BEST:Protectionist

AUSTRALIAN INDUSTRIES PRESERVATION BILL

Second Reading

Senator BEST:VicePresident of the Executive Council · Victoria · Protectionist

Senator Walker:

Senator BEST:

Senator Millen:

Senator BEST:

Senator Millen:

Senator BEST:

Senator Sir Josiah Symon:

Senator BEST:

Senator Lynch:

Senator Sir JOSIAH SYMON:

Senator Findley:

Senator BEST:

Senator Millen:

Senator BEST:

Senator Millen:

Senator BEST:

Senator Pearce:

Senator BEST:

Senator Millen:

Senator BEST:

Senator Dobson:

Senator Macfarlane:

Senator BEST:

Senator Sir Josiah Symon:

Senate
9 October 1907

Senator HENDERSON:
WESTERN AUSTRALIA

Senator KEATING:
Minister for Home Affairs · TASMANIA · Protectionist

Senator MILLEN:
NEW SOUTH WALES

Senator BEST:
Vice-President of the Executive Council · VICTORIA · Protectionist

Senator BEST:
Protectionist

Senator KEATING:
Protectionist

Senator BEST:
Protectionist

Senator GUTHRIE:
SOUTH AUSTRALIA

Senator ST LEDGER:
QUEENSLAND

Senator STEWART:
QUEENSLAND

Senator KEATING:
Protectionist

Senator PEARCE:
WESTERN AUSTRALIA

Senator KEATING:
Protectionist

Senator KEATING:
Protectionist

Senator CHATAWAY:
QUEENSLAND

Senator BEST:
Protectionist

Senator BEST:
VicePresident of the Executive Council · Victoria · Protectionist