3rd Parliament · 2nd Session
The President took the chair at 3 p.m., and read” prayers.
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Assent reported.
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– I beg to ask the Minister representing the Postmaster- General, without notice, whether, seeing that the Postmaster-General has found it necessary to obtain the services of a capable and independent officer to furnish an impartial report as to the condition of the post and telegraph services in Victoria, and particularly as to the condition of the chief office in Melbourne, it is the intention of the Government to appoint a capable and independent officer to perform a similar service in connexion with the chief office in Brisbane, which is stated to be in urgent need of reorganization ?
– A capable and intelligent officer will proceed to Brisbane very shortly, and take up the work of Acting Deputy Postmaster- General for a period which will enable him to acquaint himself with the methods by which postal and telegraphic administration is carried on there.
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Defamatory Criticism
– I desire to ask the Vice-President of the Executive Council, without notice, the following questions -
– I read the statements referred to, but I believe that in a case of this kind the wiser course will be for the Government to treat the slanders with contempt.
SenatorMcColl. - That is a wiser course for the Government.
– Arising out of the reply, I desire to ask the Minister whether it is really a slander for any one to say that there is monopolization of land, poverty, and unemployment in the various States of the Commonwealth?
– I hardly think that that is a question which can be put. It is a matter of opinion, and the Minister may decline to give a reply to the question.
– I ask the Minister if he desires to give a reply.
– Does the honorable senator indorse the remarks?
– Almost wholly.
– The honorable senator ought to be ashamed of himself.
– Arising out of the answer given to Senator St. Ledger, may I ask the Vice-President of the Executive Council whether he is aware that for fourteen blocks of land thrown open recently there were over 1,100 applicants, and that for four blocks thrown open recently there were 250 applications ; and whether, in the opinion of the Government, such a state of affairs does not point to a condition of land monopoly somewhere?
– Before the Minister replies, I desire to ask him whether he is aware that in New South Wales the practice has arisen of agents lodging applications, not merely from people in Australia, but from people outside, for the sum of£1, and finding the deposit money ; many of the applicants not having been in Australia ?
– I am aware that there is such a practice as the honorable senator has referred to ; but I feel that the responsibility of finding land for all who require it is thrown upon the States.
– I beg to ask the Vice-President of the Executive Council, without notice, if the attention of the Government has been drawn to the following cablegram in last Saturday’s Age -
In a letter appearing in the Times to-day Senator E. Pulsford, of New South Wales, comments on the prohibition by the Commonwealth of the immigration of contract labour, and speaking of the results of his inquiries on the subject in England he says : - “ The prohibition is affecting emigration from England to Australia every day in the year, and is blocking schemes of enterprise in all directions.” and, if so, whether they will take an early opportunity of repudiating such injurious comments on Federal legislation in the old country, and, further, whether they will hasten with all speed the appointment of a High Commissioner in London who can’ protect Australia from the attacks of its enemies, as well as from any further development of “ stinking fishism “ ?
– The less reference to “ stinking fishism “ the better.
– The honorable gentleman referred to is of course a member of the Senate, and we cannot pretend to take notice of his public utterances.
– Put a padlock on his tongue.
– I shall be very glad to draw the attention of the Prime Minister to the representations which have been made.
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– I am not.
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– I desire to ask the Vice-President of the Executive Council, without notice, if he has yet received a reply to the attacks which were made upon the Tobacco Combine here a short timeago? He will remember that he promised that certain inquiries would be made.
– He threw up the sponge weeks ago.
– I have received no information from the Minister, and I shall feel obliged to him if he can give me an assurance on the subject.
– I believe that the Crown Solicitor did report on the matter, which was brought under the notice of the Senate by Senator Pearce, and that he was unable to discover sufficient information to justify a prosecution. Hence, for that and other reasons, the introduction of the Bill which is now before the Chamber.
– May I ask whether he obtained any evidence?
– Not sufficient.
– Did he get any evidence ?
– Let the honorable member look at the papers which were distributed to-day.
– I desire to ask the Vice-President of the Executive Council whether, it is not a fact that no officer of the Government has communicated with the Tobacco Trust or tobacco manufacturers in question, in any shape or way, in connexion with the matter?
– That is probably so.
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– I desire to ask the Vice-President of the Executive Council, without notice, whether or not the offer made for the site in the Strand has been accepted?
– Negotiations are proceeding.
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– I beg to ask the Minister representing the Minister of Trade and Customs, without notice, the following questions, which I asked last week -
– I have been furnished with the following answers to the questions -
As stated in No. 2, no inspection fees are charged in New South Wales, and the inspection (for which fees are charged) in Victoria is rendered necessary by the fact that the fruitfly in many instances does not indicate its presence until after shipment or until reaching the port of destination-
Regulations have, however, been made in Queensland which prescribe that after 1st September, 1907, no certificates shall issue for bananas for export except where the fruit has been covered with fruit fly netting for two months prior to examination. Owing to sufficient netting not being available, some delay has been caused in enforcing this regulation. Full supplies will, however, shortly be available. It is understood that the protection so afforded will, when complete, obviate the necessity of inspection at ports of destination.
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– I wish to put a question, without notice, to the VicePresident of the Executive Council. Having read a statement made from the other side, Senator O’Loghlin asked a question about the lands available for closer settlement, to which Senator Best’s reply was that there are millions of acres available for the purpose. I now ask the honorable senator to state where they are, and the quality of the land.
– A full return has already been published, giving particulars of the lands alienated and unalienated in the different States, and that return shows that there are vast areas of Crown lands available for closer settlement. However, this is essentially a matter for the States Governments, and it is clearly the duty of the States Parliaments, by legislation, to make due provision for closer settlement.
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asked the Minister of
Home Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow -
– Arising out of the answer to that question, I desire to ask the Minister the name of the firm referred to, the price of the successful tenderer, and the period for which the work has been undertaken ?
– The name of the firm is McCarron, Bird, and Company ; I am not quite certain as to the price, but it is about£1,100. That is an estimate of the cost of production of the Year-Book, based on quotations given by the firm for different classes of work, and framed by the Commonwealth Statistician at my request. I may say that the tenders were in such a form that firms were asked to quote schedule prices for work required by the Commonwealth Statistician for a period of one to four years. The estimate of the cost framed by the Commonwealth Statistician upon the tender received from the successful tenderers, is somewhere about£1,100.
– Covering the publication of the work for a period of four years ?
– No; covering the publication of this particular production.
– Howmany copies of the work will be supplied for that?
– I am not in a position to say, as I am speaking from recollection, and without reference to the papers.
– That is the price quoted for one year only ?
– For one year only. I may say that we asked printers throughout the Commonwealth to tender, and we did not bind ourselves necessarily to give a contract to any successful tenderer. We reserve to ourselves the right to distribute our work as we should think fit. In other words, we have a standing offer from the particular firm referred to to do such printing as we may require for four years, and we are under no obligation to give them any particular work. It is a standing offer, which we may accept, for such work as we may require to have done from time to time at the schedule rates.
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Grants to Maize Growers
asked the Vice-Presi dent of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow - 1.£729s.8d.. A number of claims have been received since 30th June.
-Arising out of the answer to the question, I should liketo say that I understand that last year£500 was voted for this purpose, and of that amount only£729s. was spent. I also understand that the Government intended putting a much larger amount on the Estimates for the purpose this year.
– That is correct -£500.
– I should like to ask whether it is a condition of the grant to British maize-growers in the New Hebrides that they should employ only white labour ?
– I am not aware of that. I should like the honorable senator to give notice of that question.
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Consideration of Report of Committee of Disputed Returns and Qualifications presented 9th October (vide page 4393).
Senator Sir JOSIAH SYMON (South Australia) [3.22]. - I move -
That the report of the Committee of Disputed Returns and Qualifications on the petition of Joseph Vardon against the choice of the Honorable James Vincent O’Loghlin, as a senator for the State of South Australia, brought up on 9th October, 1907, be adopted.
The petition with which the report deals was referred to the Committee of Disputed Returns and Qualifications on the 23rd August, and it is gratifying to know that it involves no question of personal preferences. The petitioner is not claiming the seat. I am, as we all must be, sorry that there should be in connexion with any matter of this kind, personal disappointments. We must all regret that there should be anxiety, worry, or suspense, occasioned to any men who, in the interests of their country, comeforward to represent the people in Parliament, whether in the Senate or in the House of Representatives. But we are concerned on this occasion particularly to do justice, not merely to Senator O’Loghlin, whose right to the seat is involved in this matter, but. to the people of South Australia, and their right to the exercise of their undoubted franchise. In substance, the suitors to the Senate on this occasion are the people of South Australia. The petition merely brings the matter, as it has arisen, under the notice of the Senate, which might and perhaps ought without any petition to have taken the matter into its own consideration, and endeavoured to deal with it. The people by virtue of this petition are the suppliants to the Senate for the just recognition of their rights. That is the situation as I conceive it. We, the members of the Senate, are, in fact, asked to save them from being despoiled of their franchise. They claim by virtue of the inherent constitutional right to be allowed to choose their own senators. It is so written in the Federal compact. It seems to me that it is for those who would take that right away to show just cause for doing so. I do not regard the question at stake as a dry question of technical law, but as a great principle of popular election. If the Committee have failed to make that clear in their report, they have taken all the trouble they did over it, and have made their investigations in vain. That principle lies at the very root of the Constitution, of which I think we are justly proud - popular election for both branches of this Legislature and on the widest of all possible suffrages. The Committee have reported, andit is for the Senate to decide. To enable that decision to be arrived at that report is now submitted by me, as the chairman and mouthpiece of the Committee, for the consideration of the Senate. With, of course, one exception, it is the members of the Senate, those who are entitled to assemble in this chamber, who are the judges in the matter. The Committee arrogate nothing to themselves except to report their just and conscientious convictions to theSenate. They recognise that it is for the Senate as a whole to give the decision, and finally deal with this matter. Whether we are right or wrong it is upon our report that the Senate has an opportunity to vindicate and uphold the great principle of popular election, as applied to its own members. I wish, also, to say, by way of preliminary, that in my view, and I think in the view of the Committee as a whole - because the addendum to which I shall allude, does not militate against what I am saying now - this is peculiarly a question for settlement in some way or other by the Senate. The Senate is the guardian of its own Constitution, and the guardian of the rights of the people to whom it owes its existence. I feel quite sure that on this occasion the Senate will rise to the height of its responsibilities, uninfluenced, I confidently believe, by any personal predilections or any party considerations. The issue is far above everything personal or party. I think I may say that the Committee have framed a report which they have endeavoured to make as clear as they could. I believe that they have not overlooked any material aspect of the case, and if theyhave, in common with my colleagues on the Committee, I shall be glad to have it pointed out. Really there is very little that is essential to be added to the report as we have framed it from our point of view, except that the compression which is incidental to a report makes it desirable to amplify its terms a little, and that is what I now propose to do. Assisted by the unanimous decision of the High Court Judges, and guided by the fundamental principle to which. I have referred, I think it would be wrong for me not to confess that the question involved appears to me really simple. In December in South Australia, there were three vacancies by effluxion of time. The people filled two, but not the third. Their attempt to fill the third vacancy failed. The election was void. Why are they not to fill it now ? That is the Question. Still more, why is some one else to do it for them? Let me put it in this way : If the election in December had not taken place at all, or if some form of election took place, but, owing to official blundering or for any other reason, the election was void, the Constitution has surely not penalized the people by disfranchisement, or by handing over to a limited constituency like Parliament that right which is indefeasible in the people of choosing their own senators? That again is a proposition which we have to consider. Does the Constitution penalize the people who have made no choice, from no fault or default of their own, by taking away their franchise, and by handing over the choice of a senator to fill that December vacancy to another body - and an inferior body in every respect ? I put these preliminary considerations with a view of shortening the remarks which I. propose to make. The vacancy to be filled after the decision of the High Court last May was the original vacancy by effluxion of time, which was thought to have been filled by Mr. Vardon. That was the vacancy which the people tried to fill, but failed to fill. The Court of Disputed Returns might have sat the next day. If they had sat next day, and said that there had been no return and no election, could any one have contended for a single moment that the people had made their choice, and that some one else was to make the next choice? What matters it that the decision of the Court was not given for three months afterwards? It can make no difference in its effect. Whatever vacancy existed as a consequence of the decision of the tribunal in the month of May last was, it appears to me, the same vacancy as existed in the month of December, which the people tried to fill, but failed to fill. If that be so, shall we say, “ That ends their right to choose their senator for ever “ ? Can it be denied that the vacancy was that of December - that a man was put in to fill that vacancy, that he was put out, and that the vacancy remains? . Was not that vacancy one of the three December vacancies? If so, is it not for the people to fill it? There was no second or subsequent vacancy. The judgment was that the original vacancy as to the third seat had never been filled. If, therefore, the people did not choose a third senator in December, why did they not? Why should they be passed over and another constituency arrogate to itself the power to do so? These questions are’ really all that are involved. My desire is to put them plainly! to the Senate. I welcome, and I am sure all the members of the Committee welcome, criticism. If the conclusion > which we have arrived at, or the reasons upon which it is founded, can be shattered and destroyed - well then, I think we are prepared with perfect equanimity to listen to everything that can be urged in that direction. But I do say - strip the matter of legal technicalities, deal with it on broad grounds of principle and good sense, on the ground that we are not to whittle away the right of the people to elect their own senators - and the position taken up by the Committee is unanswerable. There are cases, undoubtedly many of them, in which there is another side. There are few questions to which there is not another side. But, personally I feel that this is one question as to which there is not another side. I _ go further, and say that if the question be doubtful, surely it is better that the mistake, if there were a mistake, should be in favour of popular election than against it. The question is: Did the conditions exist which are necessary under the Constitution to give Parliament, instead of the people, the right to fill a vacancy? If Parliament can step in - if the Senate says that - and prevent the people from choosing a senator, which they have not yet done, there is an end of the matter, because Parliament has chosen. If Parliament cannot so step in and defeat the right of the people, there is equally an end of the matter, because if they had no right to choose under the particular circumstances the person elected by them has no right or title to his seat. It has been suggested that the consequence of so holding might be that there would continue to.ie a vacancy. Personally, I have no apprehension upon that point whatever.
But honorable senators will see that even if that were the case it does not justify any other constituency - any unauthorized body - in making the choice. It would be an omission in the Constitution if such were the case, which would have to be supplied. But to my mind, and in the judgment of the Committee, there is no doubt and no apprehension that the people are entitled just as much and as readily to make a choice of a third senator now - if a senator has to be chosen - as they were in the month of December last. That consideration, happily - your Committee felt it to be a great relief - relieved us from entering into any controversy on that subject, because the unanimous judgment of the High Court, as shown by the extract given in our report, sets that ,point at rest. The Governor-General may issue his writ, and, the people may elect now if an election is to take place; because the only impediment that was suggested was section 13 of the Constitution, providing for a rotation of senators, and which it was said raised a barrier against electing after the 1st January if the people failed to elect in December. Let me, having made these preliminary remarks, refer honorable senators very briefly to the Constitution. This Constitution is the people’s in a sense and with a truth not applicable to any other Constitution- on this earth. Unlike the American Constitution, it was’ framed by delegates chosen by the people. When it was framed it was adopted by the direct vote of the people themselves on a referendum. The dominant feature of the Constitution of this great Commonwealth is: that it rests not merely in essence but in its details upon the people and upon their direct vote. The first question one would ask when a question such as this arose would be how the people would understand it. As I have already said, I welcome criticism - I welcome it in every direction - but I should think there can beno doubt as to how the people would understand such a question. In the first place they would understand that they were to elect their senators by their own direct vote. Can anybody suggest, supposing that through official bungling their attempted election was void, that their choice went by the board, that the people could imagine they were then, to lose their right of choice plainly given to them by their Constitution ? If you were to ask the man in the street whether such a thing were’ possible or to be contem- plated we can all very well understand what the answer would be. I do not myself believe that any sane man or woman could when Mr. Vardon’s return was declared void have supposed anything else than that there would be a fresh election.
– I must ask honorable senators not to interject.
– I am sure that we shall deal with this matter with perfect calmness. I shall refer to every point that has been raised. I say again that everybody supposed that there would be a fresh election.
– The AttorneyGeneral gave a contrary opinion.
– On many questions the sentiment of the people is much sounder than are the technicalities of lawyers. If honorable senators look at the Constitution, Chapter 1, Part II., they will find that the constitution of the Senate is on the same footing, follows the same lines, and is inspired by the same great principle as the foundation of the Commonwealth Constitution itself. The Senate is not representative of any class. It is absolutely the House of the nation. It is representative of the people of every rank in the community, and it is incomparably more so in that respect than the Senate of the United States. The United States Senate is chosen by the State Legislatures. That method, as everybody knows, was considered at the time to reflect the distrust of. the people which characterized many of the leaders in that great Convention. It may be well for us, who are more privileged and more blest, to remember that now, and for years past, iri the United States, there has been an agitation for popular election - for choice by the people as opposed to legislative choice.
The Australian National Convention adopted choice by the people as the fundamental basis of the constitution of this Senate. There was no debate on the subject in the Convention of 1897 and 1898. It had passed beyond the region of debate altogether. The period intervening between 1 89 1, when the earlier Convention met in Sydney, and 1897, when the National Convention met in Adelaide, had been sufficient to sweep away any lingering remnant of inclination towards an election by the State Legislatures. The time for that had passed, and the Convention was unanimous that the foundation of the Senate’s existence was to be the direct vote of the people. That is provided by section 7 of the Constitution - “ The Senate shall be composed of senators from each State directly chosen by the people of the State.” The Committee have described that principle as the basis of the constitution of the Senate. Perhaps if I had seen them at the moment, I should have preferred the words used by Mr. Kingston in the Sydney Convention, as reported on page 374. Referring to the question that was then under consideration, of giving the Federal Parliament the right to deal with the electorates and so on, he said -
We should at the same time retain as a fundamental principle of the Constitution, unalterable except in the mode provided for the alteration of the Constitution, the right of the senators to be elected by the direct choice of the people of the State.
That was, and is, the fundamental principle of our Constitution - the fundamental title upon which we rest in this House. There is no proviso or exception that, if the (people’s choice is void owing to official blundering, they shall be disfranchised, and the senators chosen by the State Governor or ‘the State Parliament. Yet that is what we should have to say if we held that in such a case as this, where the election was declared void - void altogether as though it had never been - the State Parliament or the State Governor could send anyone into this Senate. If the Convention had meant that there should be a proviso, of that kind, taking away from the people their franchise in cases where they had failed to exercise it by reason of somebody else’s fault, the Convention could easily have said so in a few words. They have not done so. If such a thing were possible, the effect would be - for this is not a question of law, but of common-sense - that it would lie in the power of a blundering official to repeal section 7 of the
Constitution altogether. It might not be blundering - I do not say that such a thing would be possible - it might not be an innocent mistake, but it would open the door to wilful abuse of the people’s rights which we are here to protect. That is the point which must be considered. Are honorable senators going to say that section 7 is to be read as though it had a proviso of that kind attached to it, and to put it in the power of any official, guiltily or innocently, to repeal that section, take away, the people’s choice, and hand it over to the kind of constituency that they have in America - the State Houses - State Houses, too, that are not in touch with the people? It may be the case of South Australia today, but - for I feel1 upon this matter that our rights and our standing are at stake - I think I am correct in saving that there are two States in this Union which have nominee Upper Houses. Are they to be permitted, through the blundering of an official, to fill a periodical vacancy which the people attempted to fill, and failed to fill? Even in those States where there is an elected Upper House, that House is based upon a restricted franchise. We in South Australia are now in the throes of an effort to reform our Upper House, which joined in this very election, and to make it more representative of the people and more in touch with them. If it’ had been intended that, in case of a void election, which means no election - for void means “ void, as though it never took place,” and a void deed, for example, is a deed that is dealt with as though it never existed, and confers no rights upon any one - if, I say, it had been intended that, in the case of *a void election where there had been no choice by the people through no fault- of their own, they should be despoiled of their right, I venture to think that the Convention ‘.would have said so in plain terms, so that people- could understand it. That completes what I have to say with regard to section 7. But there are one or two things to which I wish to direct the attention of honorable senators while referring to these sections. I should have liked to put these matters into the report, and I am sure that the Committee would have liked to do so, but it was impossible, because they would have made the report unduly long. We find that it is provided that “the senators shall be chosen for a term of six years.” I do not want to introduce any technicalities or refine- - ments as to “term,” and so on, but what does the man in the street understand by that provision ? Chosen how, for a term of six years? Surely “chosen” means exactly what it says in the section - directly chosen, by the people of the State? It is that which gives the term of service, as was admitted before the Committee. Senator O’Loghlin said his own first idea was, “ How could there be a term of service if the choice or election were void?” It is further provided - “and the names of the senators chosen for each State shall be … “ Chosen Row? Chosen by the direct vote of the people, and, of course, “chosen” means effectively chosen ; it does not mean a farce, a fiasco. It is the senator so chosen who is referred to. There is only one term of service in the Constitution - that which isgiven by the choice of the people. Honorable senators will find the word used again in section 13 - “the Senate shall divide the senators chosen …” That means those who are chosen by the direct vote of the people. We come next to section 15 - the section which has given rise to a good deal of subtlety in argument. The expression there used, dealing with the man who holds the place of a senator which has to be filled, is “ for which he was chosen.” There it is on the face of what we call our Federal compact. Another aspect that we ought to ‘bear in mind is that there is no obligation upon a State to elect senators at all. There is no obligation whatever upon a State to send representatives into this Senate. The penalty is not that they shall be elected by somebody else, but simply that the” State shall go unrepresented. There it is in illuminated letters, so to speak, in section 11, which is the only provision that is made for the failure of a State to provide for its representation in the Senate. It says, “ The Senate may. proceed’ to the despatch of business” without them. The only penalty is that business goes on without them. It is not provided that if the people of the State refuse or fail to elect senators, some one else is to do so for them. But that is what is to be suggested. In this case, the people have not refused. They did their best to make the election . last December, but, unfortunately, the blundering of officials rendered that effort void. But if the people did refuse, if the State, as the corporate representative of the people, refused or failed to send senators, and the people refused or failed to vote, if they stayed away from the polling booth, so that no vote would , te recorded - if such a thing could be imagined - nobody would ha,ve a right: to send anybody else here for them. Section 13 is the last to which I shall call the attention of honorable senators, and about which some difficulty arose. The other aspect of the case does not really involve questions of law, but this section did involve a question of technical law. It merely provides, and was intended to provide, for the rotation of senators. It was not intended to be any impediment! against the choice of the people, so that if they failed to elect, in December, for any reason, they should not elect in January or February. To refer briefly to those sections, the first provides the broad basis of popular representation. That particular basis is, I think, to be respected, if not to be revered, and it seems to me that that popular right of choice should be maintained at all hazards, and that it should not be taken from the people or transferred to any other constituency without the clearest language. There is no exception to that principle of popular election as, to use Mr. Kingston’s phrase, the fundamental right of the people of the States. But there is a provision, and a necessary provision, made in section 15 for what I may call temporary or stop-gap appointments, to take effect after the people have done their part and chosen a senator. Section 15 is not intended to take away the right of the people to choose their senator in the first instance; but, after having done their part, then, if what is called a casual vacancy, owing to resignation, death, disqualification, or any of those things which supervene upon the valid choice of a senator by the people arises, that section very properly comes into play and enables a temporary appointment to be made, merely for the interval between that casualty and the time of another election. Honorable senators will notice also that the place which is rilled is always the place of the senator, and the term of service which is enjoyed is always the term of service which the original man elected by the people held. It does not matter if there are fifty successwe temporary occupants under section 15, the place which is held by that temporary occupant is the original place, and the term of service which he partially is enjoying is the original term of service, which was given by the people’s vote to the original man before the casualty happened to him. Honorable senators will see that under section 15 there must be “ the place of a sena tor.” That does not mean a person who, like Mr. Vardon, was only called a senator, but a person who is a senator by the choice of- the people elected for the term of six years. A senator can only be chosen in one way to fill a periodical’ vacancy, and that is by the direct vote of the people under section 7. The place to become vacant is that which rests upon the choice of the people - not an abortive or ineffective choice, but a valid choice to give the term of service in respect of which the casualty, like resignation or death, . may have happened, ‘ and which is temporarily filled - it is always the old place which is filled - by the temporary occupant. When we are referring, as in this case, to a senator who was supposed to have been chosen by the electors last December, the Constitution says in the plainest manner that “ chosen “ means chosen by the direct vote of the people. As regards section 15, to put it very shortly, it is not an alternative to the choice of the people. It is supplementary or subsequent to that choice. It was meant to cover all cases such as resignation, death, forfeiture, and so on, under section 20, and also under section 45. These are what are known as accidental or casual vacancies. If I may use an expression which is very frequently used, section 15 has plenty of work to do in that area, and why should we attempt to extend it so as to disfranchise the people?
– Why did not the Convention provide for a popular election to fill a casual vacancy ?
– Because of the expense, of course. A temporary appointment was provided for so as to bridge over the interval between the casualty and any election which might take place - for one man, mind - for the House of Representatives, without any election for the Senate atf all.
– If three senators for a State, and for the same term, were killed in a railway accident, would their successors be elected or chosen ?
– What has that to do with this point ?
– I am only asking for information. .
– We need not go to the extent of slaughtering three members of the Senate. Suppose that three senators for a State chose to resign. Those would be casual vacancies. But this is a case of a person not having. been chosen. The people having attempted to elect a third senator to fill a periodical vacancy, and having, according to the decision of the Court, failed to do so-
– That is where all the doubt arises.
– There is no doubt at all ; it seems to me as plain as possible. Under section 15 a senator must be, as I have said, a senator, not a usurper, as Mr. Vardon was, according to the judgment of the Court - that is to say, one who believed that he was duly elected, but in respect of whom the Court has declared that there was no election, that the people had not chosen. Then as regards the expiration of the term of service, that is made plain to us by section 7. It is the term of six years which is given by the valid choice of the people. And a person to be appointed under the section is to hold the place.” What place? The place to which the person was chosen by the people. Now, this was not a case of resignation, or death, or disqualification under section 45. Mr. Justice Barton, constituting the Court of Disputed Returns, declared that the election was void so far as regarded the petitioner, Mr. Vardon, and his judgment is set out at page 16 of the appendix to the report -
This Court doth declare that the abovementioned election of members of the Senate for the State of South Australia, held on the 12th day of December, 1906, is absolutely void in respect of the return of the respondent Joseph Vardon.
The certificate of the Governor to the GovernorGeneral which is given at page 23 of the appendix, sets out with regard to the filling of the vacancy by the State Houses that it was a vacancy - caused by the decision of. the Court of Disputed Returns, that the election of a senator on the 12th of December, 1906, was void in respect of the return of Mr. Joseph Vardon.
Now, as I have suggested to honorable senators, it is scarcely correct to say that it was to fill the vacancy caused by the decision of the Court. In one sense it was correct, in another sense it was not. It was to fill the periodical vacancy which existed in December which the people attempted to fill, and which it was believed they , did fill, but which the decision of the Court states was not filled. The judgment was asked for by the petitioner’s counsel in these very words -
That the election of senators for the said State be declared void as regards the alleged election of the respondent Joseph Vardon.
Everybody treated the result, as Ihave said, as meaning a new election, and that: was contemplated by the counsel for the petitioner, because at page 22 of the authorized report of the case, he said -
Since the inspection of the ballot-papers has resulted in so close a finish, the destruction, of the Angas papers renders it necessarv that, there should be a new election, as it cannot be ascertained by a judicial scrutiny whether the large number of informal votes there were rightly or wrongly rejected.
So that at the time this order was made and the proceedings on that petition reached finality, there was not merely no doubtin the minds of the people, but, apparently, no doubt in the mind of the counsel who represented the petitioner that there would have to be a new election.
– What did he mean - an election by the people?
-An election by the people.
– How . does the honorable senator know that he meant that when he did not say so?
– A new election means an election by the people.
– There are two methods, of election.
– I leave that to the honorable senator. I take it that what the counsel meant is whathe said. These are. the simple facts : The election in December being void, the detailed circumstances for the consideration of honorable senators are, Have the peopleof South Australia chosen a third senator? If not, what right has, the State Legislatureto do so for them ? If none, then clearlySenator O’Loghlin has not been rightlychosen, certainly through no fault of his, and the vacancy still exists. In the next place, there is no substitute provided for the failure of the people to elect. The only alternative and the only course that can be pursued is that they must simply again set about electing. If they havenot elected, justice and common-sense alikesay that they should be given an opportunity to do so. Then again, the vacancy which existed in July, and which the State Parliament assumed to fill, is that which existed in December, which the people of the State, owing to no fault of their own, did not fill by an election. The election was void and the vacancy that then existed is unfilled. Whatever view we take of the result of these proceedings, we should all admit that the right of the State Parliament depends on Mr. Vardon having been elected and returned. If he was not elected, then the Parliament has no authority to act/ and its nominee’ had no title to sit. Mr. Justice Barton decided that Mr. Vardon was not elected, and that the return in his case was void. If the action of the State Parliament is maintained on the other hand, clearly the people of South Australia have had no direct voice in the choice of their third senator - the third senator who ought to have been chosen on the 12th December. What is worse still, their franchise is handed over to another constituency consisting of the members of the two State Houses. Supposing there had been no election in the cases which the Committee have enumerated in their report owing to the Governor having omitted to issue his writ, or for any other reason of that kind, the people should not be deprived of their franchise. I ask honorable senators to suppose, as a practical case, there was no election because one-half the voting-papers were lost or destroyed by accident, by fire or flood, or whatever it might be, before the scrutiny. Would that involve the loss of the people’s franchise, and the right of the Parliament to elect?
– That is not an analogous case. In that case no one would be declared elected as the writ would not be returned.
– There would have been no election. It is not a matter of whether the writ is returned or not. If the writ were returned it would not affect the matter.
– The writ could not be returned if there were no count, and the honorable senator is quoting a case in which there would be no count.
– The count makesno difference. It does not make the election good. The judgment of the Court is that the election in question was as if it had never taken place - it was void. If Senator Pearce means to contend that the return of the writ means a good election, whether it is subsequently declared void or not, I can understand his contention, but I cannot admire its force. There would be no election in the case to which I have referred, and there was no election according to the judgment of the Court of Disputed Returns in this case. I say, very emphatically, that in this Senate we ought to strive against a construction which would transfer the choice of the people to the States Houses, on grounds some of which I have referred to, and on the further ground that it is opposed to the democratic principle of the Constitution, since, as I’ have already mentioned, in two of the States there are nominee Legislative Councils that are in no sense representative of the people, and that even where the Legislative Councils are elected it is on a restrictive franchise. The position really is that since December last there have been only five senators for South Australia chosen by the people, and one who was supposed to have been but was not so chosen. One or two other matters were referred to as possibly creating doubt, to which I shall briefly allude. It was said, for instance, that Mr. Vardon sat and voted. I do not think anybody can attach any serious weight to the suggestion that, because he sat and voted whilst the matter was sub judice, that in any respect validated his title to sit or made him a senator. If so, it would apply to any other senator. The proposition bears its own refutation, and, in fact, has only to be stated to be ridiculed. To say that because while a matter is sub judice the Senate does not interfere to prevent a man sitting in this Chamber makes him a senator, entitled to be here, is a proposition which does not require any further discussion.
– Mr. Vardon took the oath and drew his salary.
– Others might do the same thing.
– He had no right to do so according to the honorable senator.
– Others might have no right to do so whilst such a matter was sub judice. How can it be held that a man is’ a senator because he is allowed to sit and draw his salary ? The question of his right to draw salary might arise when the case came before the Court. I do not know whether there would be anv remedy by which the salary paid to such a person might be recovered. I do not suppose that anybody would be so mean as to suggest such a thing, but whether that were done or not it is one of the courtesies of the Senate that while such a matter issub judice we do not interfere. What difference would it make? If the question had been decided the day after the return of the writ Mr. Vardon would not have sat in the Senate, because Parliament would not have met. If such a contention as I have indicated were to hold good, the result of an inquiry as to one man’s seat in such circumstances might be different from that in the case of another, because if the Senate had not met, and a man had no opportunity of taking his seat before judgment, he would not be a senator, whilst, in the case of another man, if the Senate had met and he had an opportunity to take his seat and did it might be held that he was a senator. It may be rightly contended that a man has a right to sit as a senator until there has been a decision to the contrary. We do not condemn a man unheard, but if there is a decision to the contrary, and it is shown that the election which is claimed as his title to be a senator is void, then he simply is not and never was a senator. It is also said that there cannot be an election for one senator, but we know that the Governor of a State may issue his writ for one senator, as well as for three. He must issue his writ for the election of one senator, even in the case of a casual vacancy, if the election takes place on the occasion of an election for the House of Representatives at a time when members of the Senate do not retire. Section 12 of the Constitution provides that -
The Governor of any State may cause writs to be issued for the elections of senators for the States.
That means for one senator, as well as for three. It is a curious thing worth noting that our own standing order No. 2 contemplates elections of senators taking place during the interval between one session and another, and such an election could not take place in respect of filling a casual vacancy, or it might be a vacancy which would require to be filled on the occasion of an election for the House of Representatives before any of the members of the Senate had to go to their constituencies. Our standing order does not govern the question nor does it override the Constitution if the Constitution provides to the contrary. But it is significant, and worth referring to. It provides that -
On the firstday of the meeting of any session of Parliament, which shall not be after a general election of the Senate and the House of Representatives or after a general election for the House of Representatives -
If there be a President……
– That might be an election to fill a casual vacancy by a State Parliament.
– It could not be such an election, because there is no such thing as a return in the case of a choice by Parliament.
– In the event of an election of the House of Representatives intervening a senator who had been so chosen would go out.
– Exactly. What I have said is that an election of one senator is contemplated in the interval between one session and another.
– That is where a casual vacancy has already been filled.
– I am not dealing now with a casual vacancy. As it was my duty to do, I have mentioned the fact that an argument was used that there is no provision for the election of one senator. If there were no such provision it would not justify the State Parliament in making an appointment. It would still be an unauthorized body. But I am pointing out that there is nothing to prevent an election of one senator.
– That is provided for by the Constitution, as well as in the Standing Orders. One senator might be filling a casual vacancy, and if there were an election for the House of Representatives he would have to go before the people.
– I am obliged to the honorable senator. I have been trying to explain that I invite the Senate to say, as the Committee of Disputed Returns and Qualifications thought, that there is nothing in the contention that there could not be an election for one senator. Senator Pearce has made thatperfectly plain, by stating that the standing order to which I have referred contemplates a return which could only take place upon an election by the people because there is no return in the case of a choice by a State Parliament, and therefore contemplates an election which might be for one senator taking place in the interval between one session and another. It was also said that the term of service to which the State Parliament had the right to appoint was that supposed to have been given to Mr. Vardori by the choice of thepeople. But as the people made no choice no term of service was assigned for Mr. Vardon. The Constitution does not provide for two terms of service. It has been quite rightly suggested also, for consideration, that there is some kind of term extending to the date of the decision of the Court declaring the election void. That is not in fact a term of service. The Constitution does not contemplate two terms - one until an election has been declared void, and another from the time the people have made their choice and elected their own senator. It was also suggested that the voiding of the election was from the time the Court gave its decision. One need only say as to that that the election could not be good in December if it was void in May, and that what was declared void was no mere seat occupied in the Chamber by Mr. Vardon - improperly, according to the judgment, but by courtesy of the Senate - up to a certain time, but the election which took place in December.
– Was the election in December for one senator or for three?
– For three.
– Are those three seats declared void by the decision of the Court ?
– Certainly not, because the decision of the Court merely affected the election in respect of the return of Mr. Vardon.
– According to the Electoral Act, had the Judge any power to decide that one of the three seats was void ?
– Certainly he had. But whether he had or had not that power, we cannot question his judgment. The Electoral Act has made the decision of the Court final, and we cannot question it in any respect. If we were to set ourselves up as a Court of Appeal against the decisions of the Court of Disputed Returns - which we ourselves have set up as final - I do not know where we should be landed.
– Should we not have an explanation of the decision of the Court ?
– I do not think that we require any explanation of it. Mav I point out that that’ was the decision asked for by the petitioner’s counsel - that the election should be declared void as against Mr. Vardon. That was the decision which the Judge gave, and which met the view of the petitioner. It has been made clear, over and over again, without any indication of disapproval, in the unanimous judgment of the High Court, that the election was void as regards Mr. Vardon ; therefore I think we may take it - even if we were in a position, which we are not, to question the judgment - that we, in the Senate, must accept that judgment. We must accept the. judgment declared to” be final according to our own law. Surely we are not to repudiate what we have done ourselves. And if we are to accept that judgment, it is absolutely settled that the election was void so far as concerned the return of. Mr. Vardon. There was a deplorable set of blunders at the election. The man declared returned on the admitted votes by a majority of two was Mr. Vardon. But there were a number of votes which could not be admitted ; and as to which the learned Judge said, after examining them,’ that they might have affected the result of the election. Probably, if they had been admissible, they would have given a majority of four for one of the other candidates, Mr: Crosby. The man who ought to have our sympathy in the first instance - they are all entitled to our sympathy in this matter - is the man who, on the admitted votes, was declared elected, and whose election was declared void because there were a number of votes which were inadmissible, but which might have affected the election if they had been admitted. The matter to which Senator de Largie has referred leads me to ask this question : If the election had been void as against the whole three, is there a man in this Senate who would say that those three places should be filled by the State Parliament? Not at all ! And what’ difference can it make, the judgment being final and without appeal, that the election has been declared void as to one? If the three seats could not be filled by the State Parliament because the election was void, upon what principle are you going to say that one seat could be filled by the State Parliament ?
– That does not affect the law.
– It shows, at any rate, that what is the law with regard to three is equally the law with regard to one.
– If, given the same set of circumstances, it is right in the one case, it is right in any number.
– That is so. My honorable friend is always logical. If this Senate is going to say that the
State Parliament could fill a vacancy, not filled by the choice of the people, in regard to one seat, it could do the same as to three.
– If a hardship is there, it is created by the Constitution, not by the Senate.
– There is no hardship created by the Constitution. Every one, as we all know, when this decision was given, considered1 that there would have to be a new election.
– Except thelawyers.
– Except those technical lawyers who, I think, gave their opinion very hastily.
– They gave it without prejudice.
– I am going to refer to the opinion of the lawyers. I think there is a very excellent excuse for them. The question of expense has also been mentioned. lt has been urged that a fresh election would’ be expensive.
– That is a question of expediency.
– It really does not bear upon the matter, because, whether the expense be great or little, if the people are prepared to exercise their choice, and to fill this vacancy, which I think they have a right to fill, the expense ought not to be considered. Of course, in December, in four out of the seven districts in South Australia, there was an election for the Senate alone. Therefore, the State being treated as. one constituency in respect of elections for the Senate, expense was incurred in every part of the State. The same sort of thing happens in the United States. When a State does not elect its senators when it ought to do so, by means of the State Legislature, it has to go to the expense of holding a special session of the State Legislature for the purpose. They actually complain about it, though I do not know why. But, unfortunate as the expense may be, what is it in comparison with the disfranchisement of the people of the State, or with the admission of a stranger into the Senate - using that term in the sense of a person not authorized to come here? Now, I wish to refer to the fact which has been brought under the notice pf the Senate, as it was brought under the notice of the Committee, that the opinions of lawyers were furnished to the State Parliament. The opinion of the Attorney- General of the Commonwealth has been printed as a Senate paper. There were also the opinions of Mr. Murray, Mr. Dashwood, and Mr. Glynn. Ihave respect for those opinions, or, rather - I cannot say exactly for the opinions - for the men who gave them. Certainly, in the case of Mr. Murray, I can say that he is a careful and thoughtful King’s Counsel in Adelaide. But those opinions were given before the High Court judgment. They were all founded mainly - I do not say wholly - upon section 13 of the Constitution.
– Given before which High Court judgment?
– The judgment on the mandamus proceedings.
– Not before the other judgment ?
– They could not have been given before the other judgment, because it was the other judgment which led to the question being raised of the method of dealing with the vacancy. It is no disparagement to these lawyers to point out that the High Court judgment shows them to have been wrong. That judgment pulverized the grounds upon which the opinions were given. The best of men must bow to such authority.
– Has the honorable senator any reason to believe that those gentlemen have since then changed their opinions ?
– I should think that if they were sensible men, after the judgment of the highest Court of Appeal in this country, which sweeps away the foundation upon which their opinions were given, that they would not hold to them. He would be a very obstinate man who did not think he might be mistaken in a view which he had taken, after such a judgment. These opinions were based, as I. have said, mainly on section 13, which seems to interpose an impediment to a popular election taking place after the 1st January. Now, if that section did not interpose that impediment, it would not by itself have given the State Parliament the power to make the appointment. But it is an argument of convenience that might be used to show that section 15 did enable the State Parliament to fill the vacancy. And that is the ground underlying these opinions.
– That is one of the points.
– It is the main foundation of these opinions. The opinion of the Attorney-General is very clear. He discusses the question whether the section is directory or mandatory. That is a point of law, which was settled by the High Court. The Attorney-General’s opinion says -
That this requirement is absolute and not directory merely, appears from the next paragraph of the section which provides that, “For the purposes of this section the term of service of a senator shall bc taken to begin on the ist day of January following the day of his election.”
Then he goes on to pronounce his opinion, resting it apparently upon that foundation. Here is a provision of the Constitution which says that the election takes place before the end of the year, and that the term of service is to begin on the ist January. Therefore, it is asked, how can you have an election after the ist January. Mr. Murray, in his opinion which was quoted in counsel’s address before the Committee, also says -
The. whole machinery for creating uniformity of retirement and equal representation of States would otherwise be thrown out of gear. For instance, if an election by the people were now held to fill the place for which Mr. Vardon was returned the senator chosen would not be entitled to begin his term of office until the ist of January, 1908, and the State would be short of a representative in the meantime.
Honorable senators will find in Mr. Glynn’s opinion, that the same point is made. In the mandamus proceedings, and in the proceedings before the High Court, the same point was also raised - as shown by the judgment printed on the 29th August subsequent to these opinions being given. I could not accept these opinions even if I agreed with them, which I do not. Let me quote section 13. It provides -
For the purposes of this section the term of service of a senator shall be taken to begin on the ist day of January following the day of his election, except in the cases of the first election, and of the election next after any dissolution of the Senate, when it shall be taken to begin on the ist day of January preceding the day of his election.
Upon this the High Court say -
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 the election held before the ist January, 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 .1 regular rotation of senators would be frustrated.
The High Court, therefore, absolutely disposed of that point of law, and so the Committee were relieved, and we here in the Senate are relieved, from being influenced in any way by it, because if we are going to rest anywhere we must rest upon the judgment of the High Court. It has held that the words used in that connexion are directory, and not mandatory ; that they are to be so construed as not to prevent the people choosing their own senators by direct vote, and to mean and to insure that if the people do not choose before the ist of January they must do so afterwards. This does not mean that the writ is to date back. It merely means that if the election is to take place in this month of October, for instance, it does take place now, and the writ is issued now, but the election relates back. It is to be treated “ now as then,” treated as though the people had chosen in December, when they made their ineffective or abortive choice, and the term of service is to be computed from the ist of January of this year. That is the only term of service. The reason, as a matter of common-sense, is the inconvenience and injustice of any other interpretation. The provision is to be so construed to prevent the people from being disfranchised without cause and without redress. That is all that nunc fro tunc means. It is an oldfashioned phrase, and the object of the doctrine, as applied here, is simply to prevent prejudice to the people through the unjust taking of their rights. If it were not to be so construed according to common - sense, and justice and fair play to the people who are entitled to vote, then it would be in the power of any returning officer, through mistake, ignorance, or, it might be, corruption, to disfranchise the electors of any State, when they would have no redress. The opinions which have been given on this question are not authoritative, but, personally, I, and perhaps every other member of the Committee of Disputed Returns and Qualifications, might have given them weight, but for the pronouncement of the High Court against the idea that section 13 interposes this obstacle to the people having their right of election now. We have, however, the judgment of the High Court of five Judges against those opinions, for I believe that five Judges were sitting when that judgment was given.- Since the report of the Committee was made, however, 1 find that in the United States almost this very question has arisen and been considered, and that the conclusion which has been arrived at there is the conclusion which the Committee, in this instance, have arrived at. There, as here, the. Senate is the exclusive judge of its own elections. Election to the Senate is by the State Legislatures. They are the constituencies, and stand in the same position as the people do here. The parallel is clear that far. There is a provision for temporary appointments to fill casual vacancies, which I will read. There is also a parallel in the United States to section 13 of our own Constitution, because a power to legislate was there given by the Constitution in relation to the times and the manner of holding elections by the State Houses. If I had come across this before the report of the Committee was prepared, I should have submitted it to the Committee. Legislation to that effect was adopted in 1866 for the first time. Honorable senators will find it on page 3 of the Revised Statutes of the United States, paragraphs 14 to 19 inclusive.
– That is, that the power which we have in our Constitution they have in their Congressional laws.
-But they have it there by virtue of a provision in their Constitution, so that it is practically incorporated in the Constitution, and the argument as to its being directory or mandatory is exactly the same as it would be in regard to our Constitution.
-We could not extend our powersby legislation in that way.
– They have not done so. Instead of our Constitution saying that the election shall take place before the end of the year, the term beginning on the 1st of January, power might have been given in the Constitution, or might have been exercised under the Constitution, to do the same thing by virtue of a Statute, but the principle of construction, as to whether it was mandatory or directory, would be exactly the same in either case. I think it my duty to call the attention of the Senate to these matters, for. whatever I might think of them myself, it is right that honorable senators should have an opportunity of knowing of them. This is referred to in Miller on the Constitution of the United Stales, on page 613. The Statute itself provides -
The legislature of each State which is chosen next preceding the expiration of the time for which any senator was elected -
The legislature must be fresh, so to speak, from the people, so far as regards that portion of it which is elected by the people - shall on the second Tuesday after the meeting and organization thereof, proceed to elect a senator in Congress……
Then there is provision that if no such person receives a majority on the first day -
The joint assembly shall meet at twelve o’clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a senator is elected.
Consequently, when the session ends, the opportunity of choice is at an end. In the United States, owing to the strife of parties in the State Legislatures, very frequently the session ends without any senator having been elected. The struggle is so great between each section to get its own man in, and there is so much obstruction, that they fail to elect anybody. The power to elect is confined to the session. It is fixed for the first Tuesday, but it goes on from day to day, and at 12 o’clock each day another effort is made, until the session closes. Then, if the session closes with the State Legislature refusing or declining or failing to elect a senator, the question arises and has arisen, “Could the power under the Constitution of appointing a temporary senator be exercised by the Governor of the State?” Upon that I shall read a passage from Tucker, a well-known and authoritative writer on the Constitution, from which honorable senators will see that in very much the same language, or to the same effect as the Committee’s report in this case, the conclusion is that the power cannot be so exercised. Not merely is that the case, but the Senate of the United States, acting upon the unbroken precedent of three-quarters of a century, has refused to recognise the appointees of the Governor of a State in cases where the State Legislatures for any reason have declined orrefused or failed to elect.
– Our Constitution specifically recognises that the Governor of a State has that power.
– Only in respect of casual vacancies.
– We have recognised that by having a senator here elected in that way.
– In the case of a casual vacancy only. But in the case of a vacancy such as that which we are considering - Mr. Vardon’s void election - the State Governor in the United States cannot appoint. The position there is exactly the same as the Committee in their judgment thinks that it is here - -that the appointee by the State Legislature has no title to sit. It is provided in the American Constitution that - .
The Senate of the United States shall be composed of two senators from each State, chosen by the Legislature thereof, for six- years, and each senator shall have one vote. . . - If vacancies happen ‘by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.
This is what Tucker says -
A question has arisen, whether if the Legislature fails, for any reason, to elect a senator and adjourns without doing so, the Executive has power to fill it. Is it a vacancy which happens during the recess of the Legislature of the State? Did not the Constitution, by using the word “ resignation,” in connexion with the words “ or otherwise,” contemplate an incumbency which ceases by. resignation, death or some other circumstance, or did it contemplate a vacancy in the office resulting from the Legislature never having chosen persons to fill it? The better opinion would seem to be, that where the term has never been filled, it is a vacancy in the office bv non-exercise of the elective function by the Legislature, which function the Executive is not competent to perform. The Executive power is only called into exercise where the Legislature, by reason of the happening of the vacancy, has had no opportunity to exercise its original function of electing. This executive power is never to be exercised where the Legislature has had the opportunity .to elect, but declines to do so. There may be reasons why it should so decline, and if so, it would be out of place for the Executive to elect, where the Legislature has deliberately declined to exercise the power.
In the United States, as honorable senators will find recorded on page 60 of Haynes’ book on The Election of Senators, in five States where the Legislature had failed to elect, as the people of South Australia have failed to elect a senator in this case, arid where it was thought that it was desirable that there should be a senator and that there should not be a vacancy, an attempt was made to get an appointment by the Executive, just as an appointment is made here by the State Houses, or as might have been made here by the Governor of the State if the State Houses were in recess. Although that attempt was made, the Senate refused to admit those so chosen to membership, and declared that they were not rightly entitled to sit. Haynes refers to the vacancies being left in consequence of the State Legislature behaving in that manner, and goes’ on to say -
In all the other cases, the State had to ‘face the gloomy alternative of having but one representative on the floor of the Senate, or of undergoing the cost and trouble of convening a special session of the Legislature, in which the deadlock might develop again and continue indefinitely, as in Kentucky in 1S97.
– Can the honorable senator explain how that one senator got there ?
– By proper election, by the Houses of the Legislature. Then comes this passage, which, of course, is not binding on the Senate, but is a singularly instructive precedent and commentary on the position -
To be sure, in five States an attempt was made to avoid this disagreeable dilemma, by means of appointments by the Governor”; but, following the unbroken precedent of three-quarters of a century, the Senate refused to admit to its membership men who had been appointed by the Governors of their several States when the Legislatures had had an opportunity to fill the vacancies, but had failed to do so by reason of deadlocks.
Here the failure was owing to the blundering of the officials and to no fault of the people. But there it was through the fault of the Legislature that they failed, and yet the United States Senate refused to admit the men so appointed, just as the Committee submit now that as the authority of the States Houses does not exist this Senate should refuse to admit Senator O’Loghlin. There is only one other matter to which I wish to refer and to which I think it is my duty to refer. The position, as reported by the Committee, is, I venture to think, unassailable. It is suggested that this is a proper subject for the consideration of the High Court. For the reasons I am going to suggest, I, if it were possible, should welcome anything of the kind, but in view of the illuminative decision given by the High Court on the only controversial aspect of the question as I conceive it .in this case, I do not think that there is any point which a man of good sense and plain understanding cannot deal with and solve. I think it would have been best if when we were framing our electoral law and constituting the Court of Disputed Returns we had placed the question of disputed elections within its jurisdiction.
– I think that we were under the impression that we had done so.
– Yes. It is no reflection upon any senator or, for the matter of that, upon the Government of the day, or the Senate itself, that it was not done. It must be remembered that the position in relation to the Senate was unique. Hitherto, under our systemof government, we have always been accustomed to have elections that were dependent upon returns. Until the Senate was constituted there was not a transfer to another body to supply what are called casual or accidental vacancies. Of course, the omission occurred simply because the appointment out of which this case arose is not a return in the strict sense. Returns are only those consequences which come from a popular election. Therefore, every question of disputed election that can arise in connexion with the House of Representatives is within the ambit of the jurisdiction of the Court of Disputed Returns. But with the Senate it is not so, because the matter with which we are now dealing is not a return. We need not reproach ourselves at all, although we may think that it would have been better, and perhaps in the future we may be disposed to extend the jurisdiction. But the point now is that, like the American Senate, we have supreme and exclusive jurisdiction over elections, except so far as we choose to delegate it to other tribunals. We have not delegated our authority in this matter, and, therefore, the Senate has supreme and exclusive jurisdiction. The question is - Are we to shrink from that high duty on this occasion? To my mind it would not be worthy of us to do so. Would it not be a confession either of cowardice or of incompetency? In the Senate we have decided more difficult questions under the financial provision of the Constitution applicable to ourselves than this is. Why not in this case too ? But if this was thought to be beyond our powers, orour competency, why was not that course taken when the petition was presented ? Why was it referred to the Committee? That reference was an acceptance by the Senate of the duty of deciding the case. If that had not been intended, then the Government should have announced, and probably would have announced, thatthey proposed to take some other step, and I for one would not have been sorry if they had done so. The Committee, in obedience to the reference, undertook this most anxious and important inquiry with a view to arriving at a conclusion. To delay that by an attempted reference to the High Court now would be a slight on the Committee who have done their best to do justice. Let honorable senators show that we were wrong if they can ; let them declare, if they like, that the people of South Australia are not to be permitted, in this instance, to choose their own senator; that they prefer the State Parliament to do so for them, although in South Australia there is one House now undergoing the process of reform ; that they preferto admit some one whose title is in question to. sit here rather than to trust the people. All this I should personally deplore, but I should not deplore it anything like so much as I should any action of the Senate abdicating its functions at this juncture after accepting them. It is said that our decision will not finally decide the matter for the future. It will finally decide this case.
– It is a very importantpoint, though.
– Yes. Our decision will finally decide this case, and my belief is that it will finally decide the matter for the future. I may be wrong, but I have no apprehension as to the point being raised in the future. I think that the passage I read from the judgment of the High Court on the mandamus proceeding removed the only possible ground of doubt or contention in this business. But even if we wanted to do so, we have no means of referring the point to the High Court. We canhave, of course, fresh legislation. Is the Bill to be introduced to refer this particular case to the High Court, or to enlarge their jurisdiction to deal with this and all other cases? When is it to get through the Parliament, and when is the case to be heard? We have no control over the arrangement of the business of the High Court. If it is proposed to legislate, we know what it means to have legislation that relates to individuals. This is a matter with which we have to deal, and it is unfortunate that it was only at the conclusion of the inquiry, and when the report was framed, that the suggestion was made. If there had been an intention to make such a suggestion, it should have been made on the 23rd August. The petition, however, was referred to the Committee ; we expended our time and thought and it was a painful thing for any one of us to be sitting in judgment on a senator. Another consideration is that if a Bill is introduced now, it must be submitted to the House of Representatives. Why should that House interfere in a dispute which peculiarly concerns a seat in the Senate? If it is to be a mere amendment of the law, let it be made irrespective of the personal element. But the moment the personal element is introduced, as it would be in this case, the other House should not be invited to take a hand in settling who shall sit amongst us in the . Senate. I have said that there is no question of technical law. The members of the Committee were unanimous, as the minutes show, so far as regards the findings and reasons contained in the report. I sympathize with the feeling that has been expressed in the memorandum. I am aware that we would all be happier to ‘ be relieved of the consequences of a decision imposed upon us in. connexion with a duty we were bound to undertake, at whatever personal inconvenience, in the discharge of our obligations to the people who sent us here. The High Court also said that it was a question for the Senate to decide.
– And the Constitution says so.
– The Constitution; says so, and the High Court in their judgment said so. They withheld any opinion on the particular matter as to the nature of the vacancy, although they declared that section 13 was no hindrance to the people having their rights of popular election, if another election were to take place. In the name of the Committee, then, I ask the Senate to adopt this report. If convinced that it is wrong, let honorable senators reject it. If convinced that it is right, let them adopt it. If they are in doubt, I should still say, adopt the report, because it is better to err in support of the people’s franchise than in taking it away. Our duty is to stand loyally by the people of South Australia in this matter. We should be vigilant to protect their franchise. We should watch over the dignity and status of the Senate. We should protect it from intrusion by any one without a clear title to sit. I hope, at any rate, that we shall not pursue what I believe would be. a reactionary course. If we do, then, instead of maintaining the breadth and stability of the foundations of our political freedom as a Federation, we shall be undermining them and endangering the superstructure we have reared. Let us be true to ourselves, to those who sent us here, and whose right to choose their own senators is now in, our keeping ; and as the Committee has done its duty, I ask the Senate to dotheirs by adopting this report.
– I at once acknowledge the skill and ability with which the case which has been submitted on behalf of the Committee has been placed before the Senate. I would urge honorable senators, if possible, to regard, apart from all personal considerations, the duty which is cast upon us in this matter. The question is, wherein does that duty lie? Nothing, to my mind, would more completely unfit the Senate for the exercise of its functions in this case than to yield to any such sentimental considerations as whether popular elections should be vindicated or upheld, and the people trusted in this connexion. No member of the Senate would fail to trust the people if the opportunity were afforded to do so. The grave and important responsibility which, above all things, is cast upon the Senate is the interpretation and the upholding of the Constitution in its present terms. My honorable friend ventured to submit that the choice of the people and the principle of popular election stands at the root of the Constitution. While that is so to some extent, however disagreeable or unpleasant it may be personally, it is our grave duty, and one which should be courageously “undertaken, tocarry out, apart from all personal considerations, the terms of the Constitution, whatever they may be. I differfrom Senator Symon when He says that there is no dry question of law involved in this case. I submit, with the greatest respect, that there is nothing else whatever in this case but a dry question of law. I do not submit that as merely my opinion. I hope to be able to support it by words of the highest authority, showing that it is a dry question of law alone that is here submitted to the decision of the Senate. I say at once that I would have been delighted had it been possible for the honorable senators who constituted the Committee of Disputed Returns and Qualifications to have come to a unanimous conclusion that, having regard to its being a dry Question of law, it was desirable that fresh legislation might be introduced for its interpretation.
– We had no power to do anything of the kind. Why did not the honorable senator suggest that when the petition was referred to the Committee ?
– Because I complied with the Standing Orders.
– And the Committee did the same.
– I am not disputing what the Committee did. I complied with the Standing Orders. Having been referred to the Committee, and the Committee having made recommendations on the matter, that, of course, alters the complexion of affairs. I for one am not going to shirk the responsibility that is cast upon the Senate in the matter. I cannot, in passing, ignore the consideration that, however we may desire to divest ourselves of all personal or party feelings on questions of this kind, it is most difficult to do so. If we judge from what has hitherto taken place, the element of party quite unconsciously asserts itself in coming to a determination.
– It did not in Committee, I can assure the honorable senator.
– I cannot pretend to say what took place in the Committee. I am .aware only that we have a majority report
– It is a unanimous report.
– There is dissent.
-There was no dissent.
– As I read it, it is a majority report, subject to the dissent of two honorable senators, who happen to be supporters of the Government.
– The honorable senator is bringing the party element into the matter at once now.
– That is all I see. I cannot pretend to say what took place in the Committee.
– The honorable senator can accept my assurance that there was nothing of party in the Committee.
– I am delighted to do so. I am judging only by what. I see in the terms of the report itself. However, I should have welcomed a unanimous report recommending that the question involved should be referred to the High Court for consideration, because we would then have been rid altogether of the possibility of the intrusion, consciously or unconsciously, of the party element. But I accept the position mentioned by the leader of the Opposition. The Committee having reported as it has done, and the High
Court Having said that it is within the province of the Senate to decide this matter, I am not prepared to shirk the grave and important responsibility cast upon the Senate. My honorable friend sought to avoid the position I am putting, and which I desire to put most strongly, that there is nothing but a drypoint of constitutional law involved in this case.
– Is there any appeal from the Senate?
– There is no appeal from the Senate. I say that there is nothing but. a dry point of constitutional law involved in this case, and, to my surprise, Senator Symon has said that it has no other side than that the Committee have adopted. I do nott, in this matter, content myself with a mere expression of my own opinion. I go to the High Court itself, and, quoting from the judgment of the High Court, I find that it says - “ We refrain from expressing any opinion upon the other important and difficult question which the applicant desires to have decided.”
Let us look at what the other important and difficult question is. It is set out in the contention of the respondent, and I find that-
The respondent contends that section 15 applies to all cases in which there has been an election de facto.
Our contention in this case is that Senator Vardon was elected, ‘and that there was an election de facto. That is the only point involved in this case, and I shall amplify it a little later on.
– That is the great point, at all events.
– That is the important and difficult point involved in the case - “ The respondent contends that section 15 applies to all cases in which there has been an election de facto,” and that in such a case every person returned has a term of. service which may expire with the declaration of the Court of Disputed Returns that he was not duly elected.” “ He says that since challengeable elections become unchallengeable at the expiration of the time allowed for petitioning an irregular election is voidable and not void.”
I shall amplify this later.
– It was not the High Court that said that.
– That is the contention of the respondent, and it is the question involved.
– But it was not the High Court that made use of those words.
– No, but the High Court has referred to rhat as being the important and difficult question involved in this case. Referring again to the report, I find that the respondent contends - “ That the words 1 the place of a senator ‘ in section 15 consequently mean the place de facto occupied whether de jure or not.”
That is the case which I seek to establish - that, as the High Court says, this most important and difficult question was not attempted to be decided by them, but is a question which the Senate is called upon to decide. Mv honorable friend, Senator Symon, also referred to the opinions which have been obtained upon this matter from learned counsel, and he sought to dispose of them by saying that they were given before the High Court delivered its judgment in the mandamus case, and that the High Court had disposed of the particular questions with which they dealt. I beg to differ from my honorable friend. It is quite true that the Justices of the High Court expressed an opinion as to the terms of section 13 - which is quite a subordinate matter. By so doing they disposed of that subordinate question, and that alone. But they did not dispose of the important question to which I have already referred - the real question involved in this case - viz., that Mr. Vardon was de facto a senator during his term of office from the date of his election on the 1 2th December until the election was declared void on the 31st May.
– How can a man be de facto a senator if he does not hold the seat?
– Because the law says so.
– Then if a burglar holds property wrongly he is a property owner ?
– I am endeavouring to confine myself to the question before us, and I shall deal with it as reasonably and as impartially as I can. My honorable friend has said that he thinks there is no other side to this question. That is a startling proposition. I have quoted the view of the High Court on the matter. We have also, in direct opposition to the views of the. Committee, the opinion of the Crown Law Department, including the AttorneyGeneral and also including Mr. Garran, a most able constitutional lawyer. Let me say that the opinion of the Attor ney-General was given simply for the guidance of the Home Affairs Department. But the South Australian Parliament, being in doubt as to ‘their proper constitutional course, sought the advice of eminent counsel for themselves. They obtained the opinions of Mr. Dashwood, Mr. Murray, and Mr. Glynn. Of the three I am acquainted only with Mr. Glynn. He is a recognised constitutional authority. My honorable and learned friend who has just resumed his seat has spoken in the highest terms of Mr. Murray. I understand that Mr. Dashwood is a lawyer of great experience and recognised ability in South Australia. These gentlemen all gave it as their opinion that Mr. Vardon was de facto a senator for the term to which I have referred. These opinions cannot be brushed aside.
– They can in the Senate. They are only lawyers’ opinions.
– I do not think that honorable senators are going to brush aside these opinions without thoughtful consideration. I do not believe that they are prepared to accept for one moment the conclusion that there is no other side to this constitutional issue. It will be seen that the view taken by the honorable and learned Chairman of the Committee is in direct conflict with the interpretation and advice of the Government. . The advice of the Government is therefore challenged. We have consequently to decide as a Senate as to what is the correct interpretation to place upon the Constitution. If my honorable friend will forgive me for saying so, I do take exception to the terms of the report and to his speech. Both seem to me to proceed upon assumption, and skilfully seek, by piling argument upon argument, to establish the conclusions which the Committee have arrived at. Let me point out one example. On page 6 of the report, paragraph 5C, the Committee say -
Choice by the people appears to your Committee tto 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.
Of course that is assuming the whole thing.
There can apparently be no casual or accidental vacancies until there is first a valid and effective election by the people.
– That is not an assumption; it is an expression of the Committee’s opinion.
– Further on, the Committee say -
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.
– Does not the honorable senator agree with that?
– Most decidedly I do not agree with it. That is where the assumption comes in.
– What assumption ?
– When the Committee say that this place has never been filled, I differ from them. . I say most distinctly that it has been filled.
– What does Mr. Justice Barton say?
– Nothing has been said by Mr. Justice Barton, or anybody else, which shows that the. place was not filled during the interval between the 12th December and 31st May.
– Mr. Justice Barton said that the election was void.
– Undoubtedly, but that is an entirely different thing. I will show what that means according to my view. But nothing that has transpired, and nothing stated by Mr. Justice Barton, suggests’ for one moment that the vacancy was not filled in the interval.
– He said that the election was void.
– My honorable friend argues that because Mr. Justice Barton said the election was void, therefore the place had not been filled in the interval.
-Colonel Cameron. - If there was no election, how could the place have been filled?
– If my honorable friend will be patient, I hope to convince him. But I want honorable senators to understand clearly the view of the Government. We say that Mr. Vardon filled the place of senator from the date of his election until Mr. Justice Barton declared the election void.
– If the petition had never been sent in, he would have been here still.
– The position of the Government is that the place of senator became vacant on the 31st of May, 1907. It then had to be filled under the terms of section 15 of the Constitution. I want to point out one or two matters in connexion with the constitutional position. Section 7 says -
The Senate shall be composed of senators for each State directly chosen by the people of the State voting until the Parliament otherwise provides as one electorate.
My honorable friend has laid great stress on the point that the section says “ directly chosen by the people.” Undoubtedly it contemplates that there shall be a direct choice by the people. If it be suggested for a moment that by reason of some abuse of power on the part of electoral officers a whole election might be voided, I reply that that is an unreasonable assumption. Honorable senators will bear in mind that a later section, viz., section 15, forms just as conclusively a portion of the ‘machinery of the Constitution. According to the terms’ of that section, upon certain things taking place under the circumstances therein mentioned, an election may be made by the two Houses of the State Parliament. In this case, a form of election did take place. To all intents and purposes, it was a bond fide election.
– A bond fide form.
– To all intents and purposes “it was, prima facie, a bond fide. election, and, in terms of section 7, a certificate was returned in respect of that election to the Governor-General by the Governor of the State. Section 7 provides that “ the senators shall be chosen for a term of six years, and the names of the senators chosen . for each State shall be certified by the Governor to the Governor-General.” Amongst other names returned at this election was1 th’at of Mr. Vardon. . Section 13 provides for the division of senators so elected into two classes. It further enacts that “ the election to fill vacant places shall be made in the year at the expiration of which the places are to become vacant.” The spirit of the section, therefore, is that the election shall take place in that year. By section 15 - :” If the place of a senator becomes vacant before the expiration of his term of service “ - the onus is thrown upon the two Houses of the State Parliament to meet together and elect a senator if they are in session, but, if they are not, then the Governor of the State with the advice of his Executive is entitled to make the appointment, and “ the name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor-
General.” Ira this case, the name of Senator O’Loghlin was so certified Section 21 provides that - “ Whenever a vacancy happens in the Senate, the President, or if there is no President, or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy ha-s happened.”
The High Court have already held that there is no doubt that there was a vacancy within the meaning of section 21.
– There was, undoubtedly, a vacancy.
– And therefore when, as a matter of fact, as we say, Mr. Vardon vacated his seat-
– Who are “we”?
– By “we,” I mean the Government.
– Then the honorable senator is making a party question of it?
– I am giving the Government’s interpretation of the law. When Mr. Vardon’s seat became vacant by the order of the Court of Disputed Returns, a vacancy occurred, and, in terms of that vacancy, the President notified the Governor of the State, and the election by the State Houses subsequently took place. The Committee have urged very strongly, employing every confirmatory aspect that can be mentioned, that Mr. Justice Barton declared Mr. Vardon’s election to be absolutely void. They, therefore, contend that Mr. Vardon never could have been elected. I ask honorable senators not to pay too much attention to the words “ absolutely void.” In the first place, the High Court say that we are not to do so. They say -
The Court did not therefore in fact declare the election, i.e., the election held under the writ commanding the election of three senators, to be wholly void. We think the form of the order, is quite immaterial.
That means that it is quite immaterial whether the words “absolutely void” were used, or whether the Court simply said that Mr. Vardon was not elected.
– Would the honorable senator read the sentence in the judgment before that ?
– I shall be glad to do so -
In the present case, as already stated, the decision of the Court was that the election was void as regarded one .of the senators returned. Its validity as regarded the other two was not impeached.
– What the High Court meant was that the order was just as effectual in declaring the election void as to one, as though it had declared the whole election void.
– No. What it means is that the Constitution is the Constitution, and that whatever rights can be exercised by Parliament under the Constitution can be so exercised. The High Court meant that, even if an Act of Parliament derogated from the Constitution1, or used words which went further than Parliament had a right to go, that was not to be taken as final and we must fall back upon the Constitution at all times. When the Electoral Act refers to certain elections as being “absolutely void,” or “void,” or statesthat a “place is not filled,” the Court means that, in that case, we need not take any particular notice of the actual terms of the order. What their judgment on this point conveys is that it would have been quite sufficient for the Court of Disputed Returns to have declared- that Mr. Vardon was not duly elected. They continue -
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 bv the people, was ineffectual.
– The High Court do not use the words “ absolutely void.”
– Of course not, because the election was not absolutely void.
– And if it was not: wholly void, how could it be absolutely void ?
– The whole contention of the Committee is that the place can only be filled by an absolutely valid election.. I refer honorable senators to section 194 of the Electoral Act, which provides that -
Every petition disputing an election or return shall ….
Be filed in the principal registry of theHigh Court, or in the District Registry of that Court in the. capital city of the State in which the election was held, within forty days after the return of the writ. ‘
Therefore, if exception is to be taken to an election, a petition must be filed within forty days. If in this case a petition had not been filed within forty days, Mr. Vardon’s election would have been absolutely valid.
– For the whole term.
– Of course. But now it is suggested by the Committee that ‘anelection which would have been absolutely valid in those circumstances is wholly void because the petition happens to have been filed.
– And that the election never took place at all.
– The Committee contends that it never took place.
– It would be valid to-day and invalid to-morrow after a certain time had elapsed.
– It would have been absolutely a valid election if Mr. Blundell’s petition had not been filed, and, therefore, it could not be an inherently void election from the beginning, simply because the petition happened to be filed. During the term of the occupation of the office by Mr. Vardon this was, consequently, to all intents and purposes, a valid and complete election. The same principle is involved in standing orders 312 and 313, which provide - 312. Any question against the choice or appointment of a senator which can not, under the provisions of the Commonwealth Electoral Act, be brought before the Court of Disputed Returns, may be brought before the Senate by petition. 313, Every such petition shall be lodged with the Clerk of the Senate within forty days after the President has laid on the table the’ certificate of the Governor of the State for which the senator has been chosen or appointed.
– The honorable senator is not suggesting that the right of petition should remain during a senator’s whole term ?
– No. Therefore, in this case, on the same principle, if Mr. Vardon’s petition had not been filed within forty days after the certificate of Senator O’Loghlin’s election was received, Senator O’Loghlin’s position could not have been disputed. Pro tanto, an election is a good election until it is actually declared to be void. That means that it is not a void election ab initio, but simply an election which is voidable. It ‘ is difficult to see how an election, which is absolutely valid unless a petition is filed, can be an absolute nullity, as the Committee contend in this case. My attention was drawn, in looking through the case, to a most important remark made on the self-same subject by Chief Justice Griffith, in the course of the argument - “ That which is valid but for the order of the Court cannot be said to be void in the absolute sense.” That puts my case in a nutshell. I wish to draw the attention of honorable senators to some authorities dealing with the proposition which I have laid down-. Amongst many other modes of procedure, there are two to which I wish to draw special attention. The first is the procedure known as the mandamus procedure, where the Court is asked to command a certain body or authority to do a certain thing. There is another procedure called quo warranto. If it is thought that a person irregularly holds or fills an office, the Court can be appealed to by that process, and it can call upon the person to show by what authority he occupies the place. If honorable senators will try to bear that in mind, it will enable them to better follow one or two cases to which I propose to draw their special attention. The first is the old case pf The Queen v. the Mayor, Aldermen, and Burgesses of Chester, which was decided on the 8th November, 1855, and is reported in Vol. 25 of the Law Journal Reports, at page 61. The headnote reads -
It is an inflexible nile of law that where a person has been de facto elected’ to a corporate office, and has been accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. ‘
A mandamus will not lie unless the election can be shown to be merely colourable.
If a man, is actually in an office, he has to be proceeded against because he fills it. In quo warranto proceedings the Court recognises the- actual occupant of the office as the occupant for the time being, where the election has not been merely colourable. So, in this case, one would not go to the Court and ask for a mandamus to compel the Governor of South Australia to order a writ to issue ; but he might, for instance, serve a writ upon Senator O ‘Loghlin or Mr. Vardon, as the case might be, and then the respondent would be called upon to show by what authority he occupies the position. This I put only by way of illustration.
– Is that ever applied to a case where the right of a member of Parliament to a seat is questioned?
– Possibly in the absence of legislation, but I express no definite opinion on the subject. I ask honorable senators to follow the judgments, which are very short, and which lay down principles. Lord Chief Justice Campbell said -
I must say that when I look to the return in this case, it clearly shows that the writ ought not to have issued. It alleges that the election was held on the 30th November, at which time at least, there must have been a vacancy. Giving faith to that allegation, this is a case of plenarty. Smith was elected, accepted office, and was admitted, and it is alleged that the office was full of John Smith. It is a rule of corporation law that if an office be full, the title of it shall not be tried upon a mandamus to elect, but the party whose title is impeached must be proceeded against by quo warranto. I have no doubt that a quo warranto would well lie here. In The Queen v. The Mayor of Leeds, the election of Richardson was merely colourable. But we cannot say that is so here, when upon the construction of the Statute contended for by Mr. Welsby, whether rightly or wrongly I do not say, Smith’s title to the office would be good. We ought not to be called upon to decide that question upon a mandamus.
Mr. Justice Coleridge followed
I am of the same opinion. A mandamus will only go upon the supposition that there is nobody holding the office in question, and’ it is an inflexible rule of corporation law that where an officer has been de facto elected, and has accepted office, and acted, this constitutes a case of plenarty unless the election be merely colourable. In such a case his title to the office is not to be tried by a mandamus. What then is the meaning of the election being colourable ? I take it that when parties have the right to elect and proceed bond fide upon the ground of there being a case for an election, it never can be colourable. In the present case, it may be that this election gave Smith no valid title to the office. But this depends upon the proper construction of the 26th and 47th sections of the Act. Mr. Welsby contends that, under the 26th section, the mayor still continues a councillor, and that this was an . extraordinary vacancy under section 47, and that the election was rightly proceeded with according to that section, This argument may be all wrong, but is it so clearly wrong that we can lake upon ourselves to say that the election could not have been proceeded with bond fide? I cannot say that this is so, and therefore the mandamus does not lie.
Mr. Justice Wightman said
For the purpose of the present case it may be assumed that the office is not full de jure, but only full de facto. There is no doubt that the electors were the right parties to elect ; but it may be taken that they held the election at a time not warranted by the Act, and therefore that the election was bad, and such as could not be supported upon quo warranto. Still the office is full de facto, and the party elected has been admitted, and there is a variety of decisions showing that the title to the office cannot in such a case be considered upon a mandamus. .
What is established clearly by that case is that where a bond fide and not a colourable election has taken place the office is filled de facto and has to be regarded from that stand-point.
– If on a quo warranto the Court should hold that the man who was supposed to occupy it had no title to it, would it not be void from the beginning?
– Certainly not.
– That is what quo Warranto is for.
– No. The office is only void from the date on the order for quo warranto.
– Surely he did not hold the office at all if he had no title . to it.
– Undoubtedly he did,’ because it was an election which would be valid, and subject only to be decided by certain procedure. In this case, too, there was a valid election. Incidentally I may quote from page 595 of May’s Parliamentary Practice the following passage : -
The causes of vacancy are the death of members, their elevation to the peerage, the acceptance of office under the Crown, bankruptcy, and lunacy, and the determination of election judges that elections or returns are void.
On page 620 I find this significant passage -
Where it has been determined that the sitting member was not duly elected, and that some other candidate was duly elected, and ought to have’ been returned, the Clerk of the Crown is ordered to attend, and amend the return, by substituting the name of the duly elected candidate for the name of the other candidate.
To that passage there is this footnote -
No notice can be taken of a determination until reported to the House. On the 27th May, 1866, Mr. Mills, member for Northallerton, had been declared not duly elected, but no report had been made to the House, and the division on the second reading of the Reform Bill was expected the same evening. As every vote was important the question was canvassed whether Mr. Mills could vote. It was admitted that his vote could not be disallowed ; but on taking counsel with his friends he very properly desisted from voting.
The report of the Committee had not been presented, but it was not doubted for a moment that, under those circumstances, Mr. Mills had the full right to vote in the House of Commons.
– Did the honorable senator say that Mr. Mills did not exercise the right of voting?
– No. It says that his right to vote was not doubted, but that he desisted from voting.
– Can any one but a member vote in the House of Commons ?
– Certainly not, and that is my case, as my honorable friend has so aptly put it. There is a Queensland case in which practically the same principle is involved, and which may be familiar to some of my honorable friends. Linnett and Turner were candidates for the representation of Rockhampton North in the Legislative Assembly. Turner was returned, and occupied the seat for some time, but within the allotted period Linnett lodged a petition and won the case. Turner had been receiving . the parliamentary allowance as he had an undoubted right to do. When Linnett succeeded with his petition he said, “ I want to draw the salary from the date of the election,” but the Court held that, as Turner had filled the position in the meantime, as Mr. Vardon did, he had been properly paid.
– He did not fill the position for .the term.
– I am not concerned about that.
– To make the case a good authority that must be shown.
- Mr. Vardon did not fill a seat for a term of six years.
– I know that, and, therefore, it was not a casual vacancy which occurred.
– I wish to draw the attention of honorable senators to the judgment of Chief Justice Griffith when Chief Justice of Queensland, in dealing with this matter. He says - ]n the conflict of argument one consideration seems to me to afford a key to the solution,, and that is that the right to receive the money must be co-extensive with the obligation of the Treasurer to pay it. Whatever person the Treasurer is bound to pay is the only person who is entitled to receive. That seems to be the rational view. The person whom the Treasurer is bound to pay is the sitting member, whose name is on the roll of the Assembly, who is certified by the Clerk of the Assembly, and properly so, as being entitled to receive. The Treasurer is not bound to pay two salaries in respect of the same seat. He was bound to pay in respect of the North Rockhampton seat. The person whom he was bound to pay was Turner. He has- paid Turner. That it seems to me is payment sufficient to satisfy the only obligation that the Treasurer and the Government have incurred towards the member for Rockhampton North, whoever he may be. The Treasurer admits that the plaintiff is primd facie entitled,- but he says, “ I have paid that sum to the person indicated by the Legislature as the proper person to receive it, and having done that I have discharged my obligation.”
– Was this a suit against the Treasurer?
– Yes.
– Then was not the Chief Justice laying down the law as. to the duty of the Treasurer, .and not as to the right of any person to’ a particular seat ?
– Not at all. . I have read that he decided that the money was rightly paid to the sitting member by the Treasurer. The Chief Justice went on to say -
I think that is a sound argument, and that it displaces the plaintiff’s primd facie claim, except as to the period after the return had been corrected, because after that it would no longer appear that Turner was the member during that month. The return was corrected on the 17th October, and the certificate for that month should have been given in favour of the plaintiff. If it was not, no doubt the Clerk will give it if necessary. The plaintiff is therefore entitled to recover for the remainder of the month of October, for which he has not been paid.
I contend that these cases conclusively show that where a person is elected for a term, subject to defeat in certain circumstances, that is- a valid election until it is declared to be void, and that, in the meantime, the seat is actually filled, as Vardon’s was in the case under notice.
– Did Turner, in the case referred to, correspond with Vardon in this case?
– He did, in this way : that he temporarily occupied the seat. From the date of the election until it was declared void, he acted as a member of Parliament, and discharged his obligations to the constituency.
– And was recognised as a member of Parliament by the Chief Justice.
– He was recognised by the Assembly in the meantime, and recognised and paid,by the Treasurer.
– Although his election was voided.
– It was voided subsequently.
– What the Court decided in” the case to which the honorable senator has referred was that the Treasurer could only! pay the man who, for the time being, was regarded as the member of Parliament.
– On this question of void and voidable, I do not wish to burden honorable senators, but I could undertake to furnish them with innumerable authorities showing that “void” is to be read as “ voidable.” I will mention only one or two.. The latest I have is a case ‘ which occurred in 1897, the case in re
Carter and Kinderdines Contract reported in the Law Reports, Chancery Division, Vol. 1, 1897, page 776. I quote the following -
According to the true construction of section 47 of the Bankruptcy Act 1883, a voluntary settlement is not void against the settlor’s trustee in Bankruptcy from its date, but is only void against the trustees from the time when his title accrues; so that if before that time the property comprised in the settlement has been sold bond fide to a purchaser for value the title of the purchaser will be good as against the trustee.
That is to say that, although an Act of Parliament declares that a certain settlement shall be void, if before any movement is made to render it void anything is actually done bond fide that shall hold good in the meantime.
– As Vardon’s votes would have been if he had voted.
– He did vote.
– Exactly.
– Because no human being can question the validity of anything we do, no matter who is sitting here.
– That is the general principle. It has been laid down in certain other cases which were quoted in the case to which I have referred. I do not think that such a proposition can be doubted for a moment. As a matter of fact, the same principle is more clearly and forcibly put in the case in re Brail in 1893, 2 Queen’s Bench Division, page 381.. I find that it is cited again in another authority in respect to quite a different matter, and in regard to the effect of noncompliance with the conditions of a Sale of Goods Act. I quote from Williams’ Principles of the Law of Personal Property, page 77-
It appears that contracts made for the sale of goods worth£10 or more without complying with the conditions of the 4th section of the Sale of Goods Act are not void but voidable only; that is they hold good until set aside. And where such contracts are of a nature to pass the property in the goods sold, it seems that they will confer on the buyer a voidable title tothe goods. The construction of the 4th section in this respect is important with reference to section 23 of the same Act, enacting that when a seller of goods has a voidable title thereto, but his title has not been avoided at the time of sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller’s defect in title. For example, if specific chattels worth £10 be sold by word of mouth without delivery of possession, part payment or earnest, the buyer would appear to acquire the ownership of them until the contract be avoided. And under the 23rd section a re-sale of the goods by the buyer in the meantime to a second purchaser buying in good faith and without notice of the defect in title, would deprive the original seller of the ownership which should otherwise re-vest in him on the avoidance of the contract.
That is a principle of law which, so far as my experience goes, is conclusivelyestablished by a regular line of authorities, and has never been questioned. When we talk of this election having been declared void we mean, and the true construction is, that it was a voidable election. It was a sound, good and valid election up to the date on which it was declared void, and it would’ have been an absolutely valid election if a petition had not been lodged. Having all the elements of validity in the meantime, I do not think that it is possible to describe it otherwise than as an election which was merely voidable and not void ; an election which ab initio was not void, and which became void only on the order made by the Court of Disputed Returns. If that aspect of the law is correct, and this is a dry question of law, a vacancy did occur, and the other portion of our constitutional machinery, namely the 15th section of the Constitution, thereby came into operation and was duly exercised by the South Australian Parliament. According to the view I have put forward, that is the true construction of the law, and in the circumstances I ask honorable senators to be guided bythe dry constitutional question alone. If they are, the conclusion at which they must arrive is that Mr. Vardon de facto occupied the place of a senator during the interval to which I have referred, and when the seat he occupied was declared to be vacant, the 15th section of the Constitution Act came into operation.
– Should the honorable senator not show that Vardon was a senator de jure as well as de facto ?
– Certainly not.
– The AttorneyGeneral in his opinion has distinctly stated that he was a senator de jure and de facto.
– Yes.
– One of the cases referred to wasthat of a mayor holding office de jure and de facto.
-It is quite sufficient for my purpose to establish the fact that de facto Mr. Vardon occupied the place of a senator.
– Then the AttorneyGeneral was wrong in his opinion?
– If he was wrong in the opinion thait Mr. Vardon was de jure a senator, he was certainly right when he said that he was de facto a senator. I move -
That all the words after the word “That” be left out, with a view to insert in lieu thereof the following words : - “ in the opinion of the Senate the place of a senator rendered vacant by decision of the Court of Disputed Returns on the petition of Reginald Pole Blundell against the return of Joseph Vardon has been validly filled by the choice of James Vincent O’Loghlin by the Houses of Parliament of the State of South Australia, in accordance with the provisions of section 15 of the Constitution, and that the petition of Joseph Vardon presented to this Senate be disallowed.
Sitting suspended from 6.30 to 7.45 p.m.
– As I intend to move an amendment, I wish to mention the fact at this stage, so that honorable senators may understand the line of argument that I intend to pursue.
– I point out to the honorable senator that there is already an amendment before the Senate. He will not be able to move an amendment upon that amendment at present. It will, perhaps, be better for him to wait until the present amendment has been dealt with.
– I will submit my amendment after the one now before the Senate has been disposed of.
– If the honorable senator speaks now, he will riot be in a position to submit an amendment later on.
– I am merely mentioning that I wish to submit an amendment in order that honorable senators mayfollow my line of argument. If I had any doubt before the debate commenced as to the advisableness of the addendum to the Committee’s report that Senator Turley and myself handed in, I am quite convinced, after hearing the two legal senators who have preceded me. What we point out in that addendum is that the Senate is quite incompetent to deal with the very difficult legal and constitutional point in question. When the Electoral Act was passed it was thought that we were rid for good of questions such as are now before us. It was considered that any dispute that might occur in connexion with an election would no longer have to be submitted to a House of Legislature constituted on party lines, but that it would be dealt with in the calmer atmosphere of a court of law, where better counsels might be expected to prevail, and where a more reasonable attitude would be assumed than can reasonably be expected in a House of Parliament. Indeed, I question very much whether the Senate is competent to deal with the matter at all in face of the Electoral Act. As neither Senator Best nor
Senator Symon has referred to section 192 of that Act, I remind the Senate of it. I think it can be very well argued that we have no right to consider the matter at all, in view of the clear terms of the section. It reads -
The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.
If petitions cannot be dealt with otherwise than by the Court of Disputed Returns, it will be interesting to know how we can deal with it on the present occasion.
– The Judge has said that this is the proper way to deal with it.
– But surely the Judge should have had regard to the section which I have quoted. This is a point that has not been touched upon in the debate hitherto.
– Hear, hear.
– I have no desire to burke discussionby raising a point of order, though I think there is something in the point. Questions such as are now before us cannot, in my opinion, receive in a House like the Senate that calm consideration which is their due. Indeed, I do not think that it is fair that we should have such a bone of contention cast in amongst us to argue and fight over.
– What about the constitution of the Committee - five on oneside and two on the other ?
– Order !I cannot allow attention to be drawn to that matter.
– I do not think that there is any relation between the honorable senator’s question and the matter with which I am dealing. My remarks apply generally. I do not think that those who differ from me on the general issue will differ as to the fact that it would be better to have questions of this kind entirely removed from party consideration. This is the second election petition with which I have had something to do in my short parliamentary career. The first was the petition presented to the Senate against a former senator for Western Australia, Senator Matheson. On that occasion we could not avoid dealingwith the question for the simple reason that we had nothing but the Constitution to guide us as to what should happen. But since then Parliament has passed the Electoral Act. We were under the impression that that Act removed election petitions from the pur- view of Parliament, and provided for their settlement elsewhere. I think it fair to say of my colleagues on the Committee on that occasion, that there never was a fairer body of men setting out to deal with any matter brought before them. I daresay there was less of the party element on that occasion than there may be on this, because then both the sitting senator and the petitioner belonged to the same party. Consequently, the , party element did not arise to the same extent as it may do in this instance. But, nevertheless, charges were then made against the Committee to the effect that it had dealt with the petition on purely political lines.
– It was not a party decision, because there were two free-traders on the one side, and two supporters of the Government on the other.
– That is quite true.
– There was good deal of feeling, but no party element.
– There was a good deal of feeling, though not perhaps of the same party character as may exist now. Senator Matheson was wellknown to be a member of the Opposition at the time the petition was under consideration, just as he always was while he occupied a seat in the Senate. , On the other hand, Mr. Saunders, the petitioner, for some reason or other which I could not thoroughly understand, received the support of the then Government. Consequently, the issue became a party one. But, nevertheless, it is only right to say that, in my judgment, party considerations did not influence the Committee a little bit in their determination of the issue. I have only to mention the fact that ex-Senator Glassey, who was an out-and-out supporter of the Government, and I, as a member of the Labour’ Party, to some extent, also a supporter of the Government, voted for what may be called the Opposition candidate, Senator Matheson, whilst Senator Macfarlane and Senator Walker actually supported the Government candidate. But, notwithstanding that, the charge was hurled at the Committee that it arrived at its verdict for purely political reasons. That charge was made by a prominent member of the then Government, who now holds even a higher position than he did then. Under these circumstances, I say that we can hardly hope to have a satisfactory settlement of an election petition by a House of Legislature.
Even in the present case there have been references in the press to the attitude of some members of the Committee. It was stated in’ a leading article in the Adelaide Register that. Senator Turley and myself were actuated by certain motives in supporting the addendum to the Committee’s report. That charge was made against us, so far as I can see, for no other reason than that we refused to be partisans in the conflict. That will show how difficult it is to do justice to a question of this kind, because the moment that a petition is presented against the return of a member party animosity is aroused, and once that happens, it is very difficult to get anything like a satisfactory solution of the question. The Senate is a party-composed House, and therefore is in a very bad position to settle a party question. It is as though we were asked to sit in judgment upon ourselves or to decide our own case-
– It ought not to be a party question.
– It ought not to be, but I make the usual allowance for poor, frail human nature, of which Senator Mulcahy will admit that he has his full share. I have no desire to pose as any less a partisan than any other senator. I recognise that I am a partisan, and I shall not act the hypocrite by saying that I am not. I fight as hard as I can for the party to which I belong, and every honorable senator does the same more or less. Some may not feel as strongly as others, but we all1 have a certain amount of party bias which comes into play in a case of this kind, leaving very little hope of its satisfactory solution. We are not sent here to administer laws, or to act the part of judges. Our duty is to make laws, and this question seems to be quite foreign to the subjects that we should have to consider. Another fact that should have considerable weight with honorable senators is that, before the matter ever came before the Senate at all, it had degenerated into a party squabble in South Australia. It is, therefore, almost impossible for us now to free its consideration from the party element. That is another and stronger reason why it should be taken elsewhere for that judicial consideration which it cannot reasonably be expected to receive here. It is of no use for us to say that we can exclude the party element. Some honorable senators may work themselves up to a red-hot fury, and claim that they can do it, but whether they can induce other honorable senators to believe them or not is quite another matter. Nothing will be gained by our blinking those facts, and the sooner we recognise and act upon them the more will it be to our credit. I do not- wish to be regarded for one moment as reflecting upon the Senate, because every other Parliament in the world, so far as I know, has been in a similar position. What happened in the House of Commons when petitions against the return of members were considered is an illustration of my contention. Every time a petition was presented there it was dealt with on purely party lines. The Tory voted as a Tory with his own side, the Liberal voted as a Liberal, and the thing became so nauseating, such a grave scandal in the political life of the old country, that . the whole question was taken out of the hands of party politicians and remitted to a Court where it could be judicially settled, and where much greater satisfaction has been given than could possibly have been hoped for if the task had been left with the House of Commons itself.My remarks will, I hope, prepare honorable senators to give reasonable consideration to the amendment which I propose to submit later on, to the effect that the matter should be submitted to the High Court for consideration. I do not wish to enter into the merits of the case, as has been done by Senator Symon and the Vice-President of the Executive Council. I desire to have the question submitted to the High Court without any expression of party feeling, and without it being prejudiced by the views of either side. If we settle clown to discuss the pros and cons, and then send it on to the High Court after having dealt with it from a party stand-point, we shall have prejudiced the case to a certain extent. It is because I do not wish to express a partisan view, and because I look upon the report as a partisan report, that’ I do not wish to argue the merits of the question.
– That is rather rough on the Committee, of which the honorable senator is a member.
– I do not know that it is. I regard the members of the Committee as men who are reasonable enough to see that the question is viewed from one stand-point and one stand-point alone.
– The honorable senator said that it was a partisan report.
– And what objectionable aspect has the word “ partisan “ ? If aman admits that he is a party man, he is a partisan.
– It is a very strong word to use about the decision of a judicial Committee.
– A judicial Committee composed of party politicians !
– Irrespective of this case altogether.
– I am afraid that Senator Mulcahy is in a very much more judicial frame of mind than are most politicians when they are considering a question of this kind. For my part, I cannot claim any of the merits which the honorable senator attributes to the Committee. I look on their report as a partisan report.
– It is a partisan report.
– The honorable senator does not mean a partisan report. He means a party report.
– I am quite unconscious of any difference in the meaning of the words.
– An honorable senator opposite interjected that it was a partisan report. Is that remark in order?
– I am anxious to give honorable senators the fullest possible latitude in debating the question, but I indicated a little while ago, when the honorable senator interjected, that I would not allow any comment to be made upon the individual members of the Committee. The Committee was appointed by the Senate to do a judicial work.
– Quite irrespective of this case.
– Quite irrespective of this case, and irrespective of any party considerations. It will be entirely out of order to criticise the report as a report of a partisan nature, because it is. sent to us by a Committee which has been appointed to deal with questions of this kind from a judicial stand-point, and free, so far as possible, from any feeling either one way or the other on questions of party politics. I ask the honorable senator who is’ addressing the Chair not to give any opportunity to other honorable senators to interject that the report, or the members, of the Committee were partisan.
– On a point of order, may I ask why my name is selected in connexion with this debate, while others on the other side have far more to say than I have?
– That is not a point of order. The honorable senator made an interjection, in consequence of which a point of order was raised. The honorable senator’s name was introduced in that way.
– That was my opinion.
– Of course, the honorable senator has a right to his opinion.
– I wish to avoid heat in the discussion, and, therefore, withdraw the word “partisan,” as it seems to be taken in a different sense from that in which, I was using it. I did not intend to use it in any offensive way. I will say that the Committee’s report is a report of a kind that I cannot agree with, because it takes up an attitude entirely opposed to the view taken by theSouth Australian Parliament, the Governor of South Australia, the Federal Attorney-General, the Crown Solicitor of South Australia, and other legal and constitutional authorities. To that extent it is, in my opinion, a party report with which I cannot possibly agree if I desire that the whole question should be sent to the High Court for consideration. I am anxious to have the case sent to that tribunal without any prejudice to the petitioner or the sitting member. If we take sides, we shall send the case on somewhat prejudicedby the views that we express in this Chamber.
– The honorable senator is hardly fair to himself when he says he cannot agree to the report. He has agreed to it.
– I do not think that I have. During the greater portion of the time that the report was before the Committee I was not present. Unfortunately, I was called away to Western Australia.
– There was only one meeting held.
– I missed only one meeting, but during the greater portion of my absence thereport was before the Committee.
– There was only one meeting held, and the report was before that meeting only for an hour. Its consideration was postponed until the honorable senator returned.
– When I returned the report was ready for presentation to the Committee. Before I heard the evidence I was anxious to have the ques tion referred to the High Court, and thus freed from party consideration. I recognised at once that I could not agree to the report as it was submitted, and the only attitude which I could take up was to hasten its presentation to the Senate, so that the step which had engaged my mind all through could be proposed at the earliest possible opportunity. Although I did not combat many statements which are contained in the report, still I can assure Senator Dobson that I disagreed with them. With a great deal of the report I agreed, but to a great deal of it I was opposed, and the addendum indicates my attitude towards it.
– Can the honorable senator indicate what parts he dissents from?
– I dissent from the expression of an opinion which would prejudice the case when it - did go before the High Court. I consider that the question should be determined by that body, because it is the only way in which we can expect to get a satisfactory settlement of the dispute. I recognise that unless that course is taken the question may crop up from time to time, and it is because of that possibility that I desire to see the settlement of disputed returns transferred from the Senate to the High Court. I may tell Senator St. Ledger that I disagree with that part of the report which says that Mr. Vardon never was’ a senator or held the place of a senator. We have each seen that gentleman on the floor of the Senate, and that ought to be sufficient evidence that that portion of the report is, to use a very mild phrase, very far-fetched indeed. I ask honorable senators if it is not going too far to ask them to believe that part of the report?
– The question is, was he legally a. senator?
– Was Mr. Vardon illegally declared a senator? Did he illegally take the oath when he presented himself here to be sworn?
– No.
– Could any person other than a senator sit and vote here?
– The question of whether he was a senator or not is sub judice.
– Although for five months he held the position of a senator, yet we are asked in this report to believe that he did not.
– No.
– That is what we are practically invited to do when we are asked to believe thatMr. Vardon never was a senator or held the place of a senator.
– That is so.
- Mr. Vardon held the place of a senator.
– He acted as a senator.
– He not only acted, but also held the place of a senator.
– The report says that he did act as a senator. It mentions that he sat and voted.
– But still he was not a senator ?
– I admit that when I try to follow up fine points, I am generally led into deep water. Mr. Justice Barton did not say that Mr. Vardon was not a senator up to the date of his judgment. Had His Honour declared that Mr. Vardon had not been a senator, that he had not been duly elected, there would be much better ground for the’ attitude which is taken up by certain honorable senators. But we know quite well that the report does not go that far, and it is for that reason, I think, that the issue is somewhat confused. I have devoted much time to an effort to discover what was rea.lly in His Honour’s mind when he delivered his decision in such brief terms as are recorded in the printed report. When I turned up the Electoral Act and noticed that there were several grounds upon which His Honour could have based his decision, it made me more confused than I had been. Had His Honour desired to make it clear that Mr. Vardon had never had any right or title to the position of a senator, or had never held that position, he would have based his decision on sub-section 4 of section 197, and declared that Mr. Vardon had not been duly elected. But he based his decision on sub-section 6 of section 197, which authorizes the Court to declare any election “ absolutely void.” It will be noticed that the power is given to the Court to deal with, not one seat contested at an election, but an election. So far as the Senate is concerned, what is an election? Is it to be regarded as an election of three senators or as an election of one senator ? When Senator Best pointed out that Mr. Justice Barton had held that the case was not “ wholly void “ but “ absolutely void,” I asked how it could be absolutely void if it was not wholly void, and Senator Mulcahy interjected, “That is a strange kind of logic.” . I cannot see where the strangeness came in.
– No; he said it was good logic.
– Then I beg the honorable senator’s pardon. If Mr. Justice Barton had declared that the election had been absolutely void, I hold that three seats would have been in question. Had His Honour meant that Mr. Vardon was not duly elected he would have made his decision much clearer than he did, and then we could have arrived at an understanding that the vacancy which was thereby created bore more resemblance to a vacancy under section 15 than it does. Having regard to all these circumstances, I contend that there is only one course open to the Senate, and that is to refer the whole question to the High Court to be dealt with and finally settled. Otherwise, I do not believe that we can do justice to this case.
-Colonel Cameron. - Can it be sent to the High Court?
– Yes. It is competent for the Parliament to pass a Bill enabling the High Court to deal with this question and any similar question which might crop up. Unless we take that step there is, I fear, very little hope of justice being done to this case. We have no right to attempt to interpret the Constitution, and that is what really lies at the bottom of the case. The Senate, I submit, has no right to define or explain the Constitution. The interpretation of the Constitution was intrusted to the High Court, which alone, in my opinion, should deal with this point.
– When?
– If all parties are anxious to secure a settlement of the question there need be very little delay in passing a Bill through both Houses.
– With the Tariff under consideration ?
– Yes, if all parties are desirous of doing justice and getting this question settled once and for all. I am quite satisfied that the attitude which Senator Turley and I took up on the Committee is the only proper one for the Senate to adopt.
– The question with which we have to deal is more or less a delicate one. It affects very seriously the position of a gentleman who, whether rightly elected or not, certainly had reason to believe that he was rightly elected, and who, since he has occupied a seat here, has won the respect and kindly feeling of honorable senators on both sides. According to a Judge of the High Court, the members of the Senate are the proper persons to deal with the question. On what lines ought it to be dealt with? Ought it to be dealt with merely as a matter of dry law, as requested by Senator Best? I hope not; for it seems to me that that is not the best course for us to adopt. I think that we should deal with this matter rather as a court of equity appointed under the Constitution to do that which is right in the interests of the people. However great our regard for the person affected by a certain decision, we should do that which we think right in the interests of Australia and of South Australia.
– The personal question has not been suggested in the debate.
– No ; but it is a fact that- in such cases the personal element counts for something. If, in this debate, it should count for anything, it must be in favour of the honorable senator whose interests are affected, and the case will not be decided against him as the result of any personal prejudice. I propose, first of all, to deal, briefly with the question as one of dry law, as the Vice-President of the Executive Council asked us to do.
– What particular brand of law is “ dry “ law?
– Senator Stewart should direct his question to the lawyers who have introduced so much dry law and unintelligible technical terms into this debate. If the matter is to be considered as one of dry law, there is only one question involved, and that is whether at a particular time what is known under the Constitution as “a casual vacancy” did exist? Is that a question which we can discuss or settle here? If we come to a decision upon that question, will that decision be a precedent for future guidance in similar cases? Undoubtedly it will not. Have we any proper course open to us to refer that question to the High Court for decision? We are informed that we have not. I gather from the arguments submitted this afternoon bv Senator Symon, who is entitled to be listened to on account of his attainments as a lawyer and the study which he has given to this matter, that unfortunately we cannot take that course.
If we had really to decide the question on a purely technical issue, it would, undoubtedly, be best to ask the High Court to assist us by a declaration of the law which might be accepted as a precedent to guide us in similar cases in the future. But, in my opinion, there is a higher and a very much better way in which to deal with this question. In spite of the arguments and opinions of Attorneys-General and lawyers, the facts are staring us in the face all the time. Whatever legal construction may be put upon the. matter, and whatever legal technicalities may be introduced, it is a fact that the people of South Australia were last December called upon to elect three senators. Did they do so, or did they not?
– Yes.
– They did not. It is touching no more than the fringe of the case to argue that because a person sits in this chamber for a time his action must have the effect of nullifying any action which the Senate may take to prove that he is or is not a senator.
– How could he sit here if he were not a senator ?
– He sat here as a man, I admit, for ai certain time.
– No.
– Then why are we discussing this question now ?
– Has any man the right to stroll in here and sit down?
– Yes, if” the Senate chooses to permit him to do so.
– Senator Mulcahy has admitted that Mr. Vardon sat here for a certain time, and that is the whole point.
– I admit that for a certain time Mr. Vardon sat in this chamber, just as Senator O’Loghlin has done; but I say that the mere fact that Mr. Vardon sat here for a time . is not proof that he was legitimately entitled to take his place in this chamber as a senator.
– He sat here until it was determined whether he was a senator or not.
– Is there no penalty for intrusion upon the Senate?
– -Only for the intrusion of unqualified persons.
– The question was asked ; If, instead of a declaration that one of the South Australian seats had become vacant, it had been declared that three were vacant, what would have happened ? If the whole election had. been declared null and void, as was the election of a particular individual, would the State Parliament have elected three senators? I ask the question from the stand-point of what is right in the interests of tlie people of South Australia. Let me assume that the elections of Senators Symon and W. Russell had been declared null and void, as was that of Mr. Vardon; that the same procedure had followed as in Mr. Vardon’s case, and the Parliament of South Australia had been suddenly called upon to elect, three senators instead of one. would the people of that State have stood it, and would honorable senators here, who rightly proclaim the power and rights of the people, have stood it?
– They will not .stand this, either.
– Let me assume that the Parliament of South Australia had been called on in the circumstances I have mentioned to elect three senators instead of one, and in doing so disregarded all the persons who had offered themselves for election by the people- «
– I ask the honorable senator to assume a .stronger case. Suppose that by some unfortunate default the whole of the senatorial elections for Australia proved to be invalid?
– The same argument would apply. I am advancing the number from one to three, and if it were advanced from one to eighteen, the same argument would apply. . We are here to defend the rights of the people and to uphold the great principle of the Constitution, which rests on the broadest basis - the will of the people.
– The people of South Australia seem to be perfectly satisfied with the existing conditions of things. They have made no complaint.
– I have no knowledge that they are satisfied. The press of South Australia appear to be divided in the matter. I have as good a right to regard Senator Symon, as representing the people of that State, as I have to regard Senator Story in that light. I do not know whether the people of South Australia are satisfied with the existing conditions of things or not. All I know is that they have not been consulted on the matter. I was assuming the case of the election of three senators being declared null and void, and the Parliament of South Australia, desiring to do what it considered right, proceeding to elect three persons as sena tors, and) at the same time, ignoring the claims of persons who had submitted themselves to the people for election, and had obtained tens of thousands of votes. Would our friends of the Labour Party, or honorable senators of any other party, have tolerated such a thing?
– Have we not a precedent for that in the Senate?
– I will put the case as occurring in Tasmania. It is well known that we have in that State a, Conservative Parliament. Such a thing is, of course, quite impossible; but let me assume for, the sake of argument that our honorable and esteemed friend, Senator Cameron, were unseated, after an. election, for bribery, and the Parliament of Tasmania were called upon to elect a senator for the unexpired portion of Senator Camerons term of office. Suppose that the Parliament, indulging its Conservatism in setting about the election, ignored the claims of ex-Senator O’Keefe, who occupied a high place on the poll at the last election- ;
– But who had been rejected. Why put up a man whom the electors had rejected?
– If he got within a few votes of the man who was unseated it would be better to select him than to select an outsider.
– Would the’ Parliament of Tasmania be justified on grounds of equity, in the circumstances I have described,’ in selecting some ultra conservative creature of its own?
– Did not the Victorian Parliament do that?
– If it did, that would not justify the adoption of such a course.
– Why was there no protest when the Victorian Parliament did that?
– I know the case to which Senator E. J. Russell refers. I was not a member of the Senate at the time.’ It was for the Victorian senators or others who were’ members at the time and took an interest in the matter to protest if thev saw fit. I was assuming, in the circumstances I have described, that the Tasmanian. Parliament selected for nomination as a senator some outsider who had not submitted himself to the will of the people at the election, and had not asked for their support. I assume the selection of an extreme conservative, and the ignor- ing of the claims of aman who had served the State well as a senator in the past. Would honorable senators who clamour for recognition of the people’s rights, in such a case, hold the same view as they appear to hold now?
– What views do they hold now?
– I have tried to ascertain Senator de Largie’s view. I read the report of the Committee very carefully and also the minutes of their meetings. So far as Icould see there was no division in the Committee on any part of the report, and members of the Committee agreed to the report as a whole.
– Did the honorable senator read the addendum which discloses my attitude?
– I did read it, but it does not seem to me that it involves any disagreement with the report. It expresses a desire with which I largely coincide to secure a declaration from the High Court, on the question involved in this case. I should be glad if it were possible to get from the High Court a declaration as to what really constitutes a casualvacancy. I was accused a little time ago of having formed an opinion somewhat prematurely. But my opinion on this case was formed some months ago, before Senator O’Loghlin came into the matter at all - immediately after the High Court declared that the election of Mr. Vardon was null and void, and directly after Senator Keating had anticipated the opinion of the Attorney-General, and declared the vacancy a casual vacancy. I then came to the conclusion, which I now hold very strongly, that it was not a casual vacancy.
– Senator Keating could get 6s 8d. for his opinion. I do not know what the honorable senator could get for his.
– Probably not very much from the honorable senator, but my opinion is as valuable to me as Senator McGregor’s is to him. I formed the opinion which I still hold, that the people of South Australia - I will not say were deprived of an opportunity - but had had no opportunity up to that time to exercise their undoubted right to elect a man to represent them in the Senate. They have not yet had that opportunity-. They might have had an opportunity if there had not been declared a casual vacancy.
– Were not the three senators declared elected on the 12th December ?
– But still, Mr. Vardon has been declared not to have been properly elected as a senator. We all admit that he has acted in that capacity. He sat for some time. We also know that Senator O’Loghlin has acted - and acted well - as a senator.
– We ap pointed a Court to decide whether, under certain circumstances, a person has been chosen by the people or not, and the Court has decided that Mr. Vardon was not elected.
– We are now discussing the question of whether Senator O’Loghlin has been properly elected as a senator or not. The question of party has been raised several times. I do hope that whatever inclinations or prejudices honorable senators may entertain - and I freely admit that we all have them more or less - the Senate will pause and consider seriously before it refuses to act upon the report of a Committee appointed by itself, and which was appointed regardless altogether of circumstances which have since arisen. I admit that it is unfortunate that five senators from one side of the Senate sat upon that Committee. But still no one, not even the Minister, has attempted to argue against the report. I have not heard a singleargument except on the legal technicalities involved in the case.
– It is a legal question.
– To some extent only.
– Entirely.
– It may be made a legal question by the Senate, or it may not.
– The High Court has said so.
– I hold that the Senate has a higher purpose than to deal with this matter as one of dry law. We have to do what is right.
– There is no doubt that the Convention desired that there should not be an election for a single senator.
– The Convention desired that the people themselves should choose their senators. If there is one thing that stands out in regard to the work of the. Convention, and that has been given effect to by this Parliament - which is, in a certain sense, the creature of the Conven- tion - it is that they desired that the people themselves should elect their representatives. When that right is taken from them in any way whatever, we infringe the intentions of the Constitution in a very serious way indeed. Although it happens that five members of the Committee sit on one side of the Chamber, I feel very strongly that they allowed no party feeling to influence their decision. I should be very sorry to attribute, either to Senator de Largie or to Senator Turley, any such feeling. I believe that both of them endeavoured to do what was right.’ If the Senate decides that the question shall be settled on legal lines, we should take steps to enable the High Court to so settle it. I should very much like to see that done. But I should prefer that the Senate should proclaim to the world that the rights of the people shall be maintained independently of party considerations, and that questions of this kind shall be determined on thebest and highest principles, regardless of legal technicalities.
Senator Colonel NEILD (New South Wales) [8.50].- Though a member of the Disputed Returns and Qualifications Committee, and agreeing with the report which was unanimously adopted by that body - because the rider attached to it by two members does not in any way affect the report as a whole-
– The honorable senator was a prophetic member of the Committee. He prophesied what the report would be.
– The honorable senator has no right to make a remark of that kind, which does not come with dignity from an officer of the Senate.
– A man who is paid to preserve good order, too.
– I rise to a point of order. Senator McColl, who is sitting near me, has made an interjection which I think he had no right to make. He said that the honorable senator who has just interjected, referring to Senator Pearce, was a partisan Chairman. I think that that statement should not have been made, and I ask him to withdraw it.
– I did not hear Senator McColl make such a statement.
– I heard him.
– If he did make that interjection, he was not in order. An officer of the Senate, occupying such a position, ought not to be accused of partisan feeling in relation to his office.
– I treat the remark with contempt.
– I am not a party man, so far as this matter is concerned; and if it is possible, for what I may, perhaps, describe as the O’Loghlin mystery to be referred in any reasonable form to the High Court, there is no member of the Senate who will more readily give a vote in that direction than I shall, because I hold that it will be more satisfactory for the matter to be determined finallyby the High Court. But that did not appear to ‘me to be a reason why I should shirk the responsibility which was, in my opinion, placed upon me. As a member of the Committee I had to discharge my duty. I have discharged that duty to the best of my knowledge -and ability. I believe that every member of the Committee did exactly’ the same. Let me also say that, for several Parliaments, I was a member of the Elections and Qualifications Committee in the New South Wales Parliament, where our decisions were final, and there was no reference to the Chamber. I took part in I cannot say how many cases, but I never heard one comment from any source that was derogatory to the honour and the straightforward conduct of the members of the Committee.
– I rise to order. I understood you to rule, sir, that you would not allow any criticism of the Committee. I ask whether, under your ruling, you are going to allow any adulation or praise of the Committee? Because, if that be so, I suggest that it would be equally competent for a senator to criticise it adversely.
- Senator Neild was speaking of an Electionsand Qualifications Committee in another Parliament, and was, I understand, giving reasons why no doubt should be thrown upon his individual honour in connexion with this subject. I do not consider that he was out of order.
– I do not desire to say another word on that point. I should not have said what I have done except for an interjection that I heard. The principal reason why I rose at all was to express my feeling of deep dissatisfaction that my honorable and learned friend, the Vice-President of the Executive Council, should, in so painful and deplorable a manner, have made this question, which so far transcends political party considerations, a Government affair.
– Who made it a Government affair?
– Very clearly the Vice-President of the Executive Council did when he said, “ we “ take up this attitude and “we” hold that. When I inquired, in a colloquial way, “Who’s we ?” the reply was “The Government.”
– I considered that it was my duty to give the Government’s interpretation, as they had already dealt with the matter.
– And so, Mr. President, the honorable and learned senator thinks that it is his higher duty to read the opinions of members of the Cabinet than to seek to maintain the dignity of the Senate and the honour of a Committee appointed by the Senate to act on its behalf.
– Nothing of the kind ; it is a question of law.
– Surely my honorable and learned friend must have al1 lowed his partisanship to run away with his sense of propriety for the time being. It appears to me that nothing can be dearer to members of the Senate - or to members of the other branch of the Legislature, if it comes to that - than the proper representation of the people in Parliament. That feeling ought to transcend any idea respecting the feelings, wishes, or interests of the Government or of any party whatsoever. The theme upon which I have touched is a painful and deplorabie one, which cannot be satisfactory to us or to people outside. If the Government were to withdraw the amendment which they have submitted, and to afford an opportunity for the submission of the amendment which Senator de Largie has outlined, I for one would vote for it. I recognise that the whole subject is complex. It would give more satisfaction to the people, and they would have more confidence in the result, if it were settled by a tribunal of lawyers rather than by a tribunal composed chiefly of laymen
– It would not be settled for a couple of years.
– I do not think that it need take s’o long. My honorable friend is a little pessimistic. I take it that to carry out the intention would simply require a Bill of one or two clauses which might be put through both Houses in a day or a couple of days. It would surely contain nothing of “a contentious character.
– Is the honorable senator departing from the report of the Committee?
– No; I am not departing from the report. My honorable friend need not take .up that attitude, because it is quite justifiable for a member of a. Committee to believe, as I believe, in the accuracy of the Committee’s report, and yet to consider it desirable to have the mat,ter in question settled at the hands of a legal tribunal.
– Are mv honorable friend’s views concurred in by other honorable senators opposite? -
– I have not exchanged a word with any member of the Committee as to. what his view is upon Senator de Largie’s suggested amendment. I was simply speaking for myself. Perhaps as the Vice-President of the Executive Council has asked me a question I may ask him one. Is he prepared to withdraw his amendment and accept Senator de Largie’s ?
– Will the honorable senator answer my question first?
– I have answered it.
– Not at all.
– Perhaps the honorable senator will put the question again, because I was under the impression that I had answered it.
– Are the honorable senator’s views shared in by other honorable senators opposite?
– I say’ again that I have not consulted any one. I came into the chamber after attending to some correspondence, and have just heard what Senator de Largie’s suggested amendment is. I have had no opportunity of consulting with any one. Besides, it is not necessary that I should ask the members of the Committee what they intend to do. We have brought up our report, and our duties have ended,, unless the Senate refers the matter back to us.
– - The honorable senator is evidently not sure of his ground.
– What I have said is not an evidence of that at alL I am prepared to vote for the report, if * I cannot have the matter referred to a legal tribunal as I should prefer to do. I stand by the report most unhesitatingly as in my opinion embodying a correct decision. But I am not now dealing with this matter as a- member of the Committee. I am here as a member of the Senate. I am not going to make a partisan business . of the report. We have brought up our report as member’s of the Committee, and our . duty is therefore terminated. We have now to deal with the report as members of the Senate, and not as members of the Committee. I entirely appreciate the proposition laid down by previous speakers, that the whole genius of our Constitution is the representation of the people here, and I, for one, should be very glad to see that section of the Constitution altered so as to compel all vacancies, no matter how arising, to be determined by popular vote. It is not at all desirable, for the sake of occasionally saving a few pounds of expense, that we should have a Senate consisting of members differently authorized, that one should come here by election of the people, another by the choice of a State Parliament, and another, perhaps, as the nominee of a State Governor. I know that we have had senators coming here before under those circumstances, but I have never liked it, and I have never considered it a desirable condition under our Constitution that the Senate should consist of members of varying authority’. Who dare advance Ihe proposition that a gentleman who comes here as the nominee of a State Governor or the choice of a State Parliament is clothed with equal authority . with the large majority who come here by the direct authorization of the people? I shall hope yet that this question may be settled without the very ugly appearance of partisanship which certain matters that have transpired this afternoon have most unhappily attached to it.
– It is highly desirable that the basic principle of the grave issue now before the Senate should be strongly emphasized. The position which I take up is largely determined by the opening .section of that portion of the Constitution which deals with the Senate. Section 7 says - the Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament other- wise provides, as one electorate.
Provision is then made for that election. The principle ‘guiding and governing the constitution of the Senate is that it shall directly represent the people. We, upon this side, are seeking that the Senate shall, under ail possible conditions laid down by the Constitution, be reflective of the voice of the people. I feel that I am entitled,, by way of criticism, to comment upon the fact that, to our claim, the Vice-President of the Executive Council, on behalf of the Government, replies, “ It shall not be so if we can avoid it.” The election of a Senate by -the mass vote of the people is a provision unique in the Constitutions of the world. To show that that is not merely the opinion of senators who may be inclined to magnify their office, I shall quote the words of Professor Harrison Moore, of the Melbourne University, one of the most learned jurists in Australia -
The Senate is popular in the mode of its Constitution. The Bill of 1891 followed the United States Constitution in providing that senators should be directly chosen by the Houses of the Parliament of the several States. There was nothing as to which there was more agreement than that this system should give way to one which secured immediate responsibility to the people. Senators are to be directly chosen by the people^ of the States, and the qualification of senators and electors is not left to the States to determine, but is uniform with that of members and .electors for the House of Representatives, .” but in the choosing of senators each elector shall vote only once.” Only in the case of casual vacancies is the scheme of 1.891 resorted to.
Section 7 states that senators shall be chosen for a term of six years. Section 9 provides that the Parliament may make laws prescribing the method of choosing senators, but the method must be uniform for all the States. Section 1 2 enacts that the State” Governor may cause writs to be issued for the election of senators for the State. Ir» the case of a dissolution the writs must be issued within ten days from its proclamation. By section 13 the division of senators after the Senate first meets into two classes is provided for, the places of the one class becoming vacant at the end of three years, and of the second at the end of six years. Afterwards the places of senators become vacant at the expiration of six years from the beginning of their term of service. All those sections go to show that the Senate is based upon the principle of the declaration of the voice and choice of the people. The next mention of vacancies arises in section 19, which provides that a senator may resign ‘his place, which thereupon shall become vacant. Section 20 enacts that the place of a senator shall become vacant if for two consecutive months of any session he fails, without the permission of the Senate, to attend the Senate. When casual vacancies of those kinds occur, section 21- provides that the President, or in his absence the Governor-
General, shall notify the vacancy to the Governor of the State, in the representation of which such vacancy . has happened/ Section 21 must be read with sections 19 and 20, because it provides what is to be done when the contingencies mentioned in those sections arise. The two classes of vacancies which may be said to be casual, and which are clearly indicated within the Constitution, are those of actual resignation, or of forfeiture of seat through absence without leave.
– Or through a senator being disqualified.
– If a senator is disqualified by the Committee of Disputed Returns and Qualifications, then the Senate itself will deal with the vacancy. Those sections clearly indicate the difference: between a casual vacancy and ‘ other vacancies. Unless the strongest reasons can be given there seems to be no justification for falling, back upon section 15 and giving to it a somewhat extraordinary interpretation,, in order to ascertain when and how a casual vacancy occurs. It seems to me that it., was ‘intended by the Constitution that those were the two situations which should be construed as coming within the category of casual vacancies. Without the strongest justification, we should not strain any, provision with a view to defeating the principle of the Constitution, which is the popular election of the Senate. It is not a question of whether one party or set of politicians may desire that the Senate should have been elected on the Canadian principle, which is nomination by the Crown, or the American principle, which is election by the State Legislatures. What we have to determine is, whether ox not there is a casual vacancy. It is a significant fact that the High Court seem to have thought it to be our duty to consider this matter. If it is our duty, we should not shrink from if, and from the responsibilities which it entails. When the question of a mandamus came before them, the High Court concluded their judgment with the following paragraph -
We refrain from expressing any opinion upon the other important and. difficult question which the applicant desires to have decided. It seems to be clear that the question whether there is or is not now a vacancy in the representation of South Australia in the Senate is one of the questions to be decided by the Senate under section 47., “unless the Parliament otherwise provides.” Parliament can, .,no doubt, confer authority to decide such a question upon this
Court, whether as a Court of Disputed Returns or otherwise. But until the question is regularly raised for decision we reserve out opinion upon it.
The conclusion seems to be irresistible that the High Court have told us that this is a matter which it is the duty of the Senate to decide. It has been referred back to us by the High Court for our decision^ It might be desirable, as Senator de Largie suggests, to refer the matter back’ to the High Court, without exercising- the powers which we possess under section 47 of the Constitution, but that course seems to be a midway course to which I am not at present inclined to agree. It will show some weakness on our part if we, as a Senate, do not exercise the powers which ;ve possess under section 47. It was owing to the existence of that section, and also by reason of the form in which the point came before them, that the High Court feltunable to come to a decision in the matter until we had dealt with it. Section 47 provides, -
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House’ of the Parliament, and any question of a disputed election to either House, shall be. determined by the House in which the question arises.
The question in dispute is whether or not it .is. a casual vacancy, and that question has been referred to the Senate by the High Court to be determined in accordance with section 47 of the Constitution. I desire to draw the attention of honorable senators to a peculiarity in the wording of the provision. It says that the question “ shall be determined “ by the House concerned. In the interpretation - of law, the word “ shall “ is usually regarded as being imperative, and not merely directory. It might -not prevent us from saying that we preferred not to decide the question. Once a dispute arises the words in section 47 are absolutely imperative. What we have to deal with is not the question of an election, or of the validity of an election, but the question of a vacancy in the Senate. The Constitution says that whenever a question of that kind arises in either House, it shall be determined by that House “ until the Parliament otherwise provides.” I take it that we shall be assisting the High Court if we do come to a clear decision upon the question as to whether or not there is a vacancy. As Senators de Largie and Turley entered no dissent, I assume that the Committee was unanimously of opinion that there is a vacancy in the Senate. In view of what may be regarded as practically a unanimous report on that point, the judgment of the High Court, and the authority of section 47 of the Constitution, it seems to me that the Senate would be shirking its duty, and acting iri a way derogatory to its status, if it referred the question for decision to another body. -I also notice in section 15 of the Constitution another significant, and, I think, somewhat important feature. In the case of every other section of the Constitution dealing with vacancies, there is a marginal note to explain what is its .general scope; b,ut in the case of section 15, the marginal note is “casual vacancies.” So that there is a clear distinction between the vacancies mentioned in sections 19 and 20, and those mentioned in section 15. It seems to me that it is only in the case of a vacancy which can be determined to be casual’ that section 15 is to apply. We have the judgment of the Court of Disputed Returns that, so far as one candidate was concerned, the election was null and void. It has been pointed out that if we were to adopt the interpretation for which Senator Best has contended, on many an occasion it would leave it open to a corrupt official, or a corrupt Administration, through its officials, to defeat the choice of the people in order that the nominee of a State Parliament might represent them in the Senate. According to Senator Pearce, if we cannot find a specific provision in the Constitution, we are not entitled to draw an inference. But I would remind the honorable senator that it is our duty to interpret the Constitution as a document that will lead to nothing which is either absurd or dangerous to the people. I desire to refer to one or two arguments which were advanced by Senator Best in reply to Senator Symon. In- the first place, he dealt at some length with the position created, unfortunately for South Australia and for us, and quoted legal opinions which have been given. An honorable senator called his attention to section 13 of the Constitution, and I wish to draw attention to the strong wording of the judgment of the High Court thereon.
– No one has disputed it.
– I wish to emphasize the point around which many of the opinions quoted by the honorable senator seem to centre, and that was the difficulty of dealing with an election if it occurred after January. It is suggested that it would have to be regarded as a casual vacancy occurring under section 15, and that that provision was made to avoid the heavy expense which would otherwise have to be incurred. Every opinion which the honorable senator quoted seemed to be given in view of that apparent difficulty. The point was argued very strongly before the High Court> and dismissed because there was nothing in it. ‘ I will read the portion of the judgment, which I think has already been quoted by Senator Symon. It says -
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 -pro tunc for all purposes : otherwise the main purpose of securing a regular rotation of senators would be frustrated.
As I read the opinion of the AttorneyGeneral in the printed report which the Vice-President of the Executive Council was wood enough to have circulated amongst honorable senators, it is very largely, based upon the difficulty that occurred in the reading of section 13.
– Incidentally.
– I think it is almost the basis of the Attorney-General’s opinion. I may, perhaps, be giving too much weight to that aspect of the question, but I- cannot give too much weight to the judgment of the High Court in the matter - that there was nothing in the contention as to this difficulty. Whilst directing my criticism to interjections made by Senator Pearce, I said that it is a useful rule in argument, when a proposition is advanced, to show to what conclusions it may lead. I wish to put a hypothetical case, and to ask honorable senators opposite what is the answer to it . from their point of view. Suppose, for instance, Brown has been elected and sits and votes here as a senator. A petition is presented against him to the Court of Disputed Returns. The Court orders an inquiry, which may occupy weeks and possibly months. In the meantime Brown dies. What will the Vice-President of the Executive Council then contend the position to be ?
– That his party should see that he is decently buried.
– While there is no doubt that his party should perform that charitable duty, there is still a higher duty to the country to be performed. I ask honorable senators opposite to address them selves to the question. Suppose the Court of Disputed Returns declares that Brown has not been properly elected, the contention of honorable senators opposite is that, notwithstanding that decision of the Court, the State Parliament can afterwards say, “ We shall elect whom we please.” It seems to me that the other side are driven in this case to argue that they have that power. Their contention appears to be that affairs can be so managed that a State Parliament may electpersons against whom a petition has been presented to the Court of Disputed Returns and whom that Court has declared not to have been elected. When they can come to such an extraordinary conclusion it is reasonable to hold that the principle on whichthey have proceeded is not correct. The same thing might happen in the case of three senators, and it might be contended that, notwithstanding the finding of the Court of Disputed Returns that their election was void, a State Parliament could step in and say, “ We elect you.” Such a position is not defensible for a moment, and I am interested to know what answer the Vice-President of the Executive Council would give to such a case as I have supposed. If the position I have described is not defensible, how can honorable senators opposite defend the position they take up in the present case? The Vice-President of the Executive Council also mentioned as analogous certain quo warranto proceedings. I do not know that I rightly followed the honorable senator’s application of the argument in this connexion. It seemed to me that the reference was an extraordinary one. The term quo warranto is from old Latin, which is sometimes referred to as “ dog “ Latin, but is very simple in meaning. It refers to an inquiry as to the right or title on which a man holds his office. I confess that I was surprised to hear from the Vice-President of the Executive Council that you can question the right of a senator to his seat by quo warranto. I understood the honorable senator to suggest that if some one wished to challenge Senator O’Loghlin’s right to his seat, proceedings by quo warranto are open to him. This is the first time I have ever heard of proceedings of that kind lying against the validity of the seat of any member of Parliament. I have looked up the question in an authority which I do not think can be disputed, and I propose to quote from the Encyclopaedia of the Laws of England to explain the circumstances in which proceedings under quo warranto might properly lie.
– The honorable senator must remember that I was supporting the contention that the position was filled. That is our case - that . the position was filled during the interval. I was illustrating that position.
– In reply to that, our contention is that, in this case, the position never was filled, and that the Court of Disputed Returns has said that it never was filled.
– That is the whole question in dispute.
– That is the vital point of differencebetween us. I understood the honorable senatorto argue by analogy from the result of certain quo warranto proceedings, and, as I contend that this peculiar mode of legal proceeding is never applied to the validity of the election of members of Parliament, the honorable senator’s arguments from that analogy were drawn from a position which was not applicable to a case involving the validity of the seat of , a member of Parliament.
– The quotation was with reference to a representative position - that of a Mayor occupying an elective office.
– And the argument wasthat a person taking his seat and voting here must be deemed to have been duly qualified and entitled to sit and vote as a member of the Senate. That is good enough so far as it goes.
– That is the whole point.
– The honorable senator will pardon me if I say that I do not think it was the whole point that he intended to make. I believe that the honorable senator intended to argue that if a person sat and voted in the Senate, notwithstanding the fact that the Court of Disputed Returns would say that his election was invalid, we must regard him as having served here as a senator, thus bringing the case within the operation of section 15 of the Constitution and the application of the words in that section, “the expiration of his term of service.” The section provides that -
If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen - shall proceed to do certain things. If I understand the contention of the VicePresident of the Executive Council, it is that if Mr. Vardon sat and voted as a senator-
– Having been properly returned.
– I do not think the honorable senator can import into the section the word “ properly.”
– I had explained that in terms of section 7 of the Constitution he was certified as having (been duly returned.
– The honorable senator contends that he was certified as duly returned, sat, and voted as a senator, and that, consequently, he served as a senator.
– I say that the office was filled during that time.
– And that the words “before the expiration of his term of service” apply, bring the case within section 15., and make the vacancy a casual vacancy. ‘That would be all very well were it not for the unfortunate decision of the Court of Disputed Returns that the election of Mr. Vardon was absolutely void. Senator de Largie attempted to make some distinction with respect to the term “ absolutely void.” Our contention is that when we have the decision of the Court of Disputed Returns that the election was absolutely void there’ could have been no legal service, and Mr. Vardon did not give service at all within the meaning of section
– The Court never said anything of the kind.
– I say that, in effect, the decision of the Court amounts to that.
– Nothing of the kind.
– What stronger words can we have than the judgment of the Court that the election was absolutely void ? No attempt can be successfully made to qualify the effect of those words. Senator de Largie has pointed out that under section 197, paragraph , iv., of the Electoral Act, the Court might have decided that certain persons who had been returned were not duly elected, and might, under paragraph vi., have declared the election to be absolutely void. What is the usual legal construction of such a judgment?
– The High Court says,. “ Take no notice of the mere terms of the order.”
– I do not understand that to be the meaning of the judgment. But, at any rate, we are bound to consider the judgment of the Court of Disputed Returns, which has declared the election to be absolutely void.
– It means that Mr. Vardon has absolutely no claim to the seat.
– Suppose that a petition is presented under the terms of the Electoral Act against the return of a. member of the House of Representatives.
– That is not analogousat all, because section 15 of the Constitution applies so far as the Senate is concerned, but not so far as the House of Representatives is concerned,
– It appears tome that the only difference is one of locality.
– It is a different law altogether.
– Suppose that the High Court said that an election for the House of Representatives was void.. What would be the effect?
– Another election, because there is no other means of fillinga vacancy in the House of Representatives.
– That is not thevital distinction. If the Court of Disputed Returns decides that an election for the House of Representatives is void, reference must be made to the people. Whyshould a different meaning be given to a judgment declaring a seat in the Senate tobe void?
– The Constitutionhas a different meaning as applying to theSenate.
– The House of Representatives is elected on a popular vote, and so is the Senate.
– Not always. We havealready had two members of the Senate who were not chosen by popular election, and they sat until the next general election after they had been chosen. . I allude to the late. Mr. Robert Reid and Mr. Saunders.
– There might have been some defect in the legislativemachinery.
– No; the Convention deliberately designed it so, because a Senate election involves an appeal to the whole State. The Convention intended that that expensive machinery should not be invoked for the sake of an extraordinary election.
– I have not looked up the cases referred to by Senator Pearce, but I do say that when the principle of representation is designed to be the same for both Chambers, the same machinery ought to apply.
– No.
– Of course, the manner of giving effect to it may be different. Both Houses of the Legislature are based on popular representation. Suppose that after an election for the House of Representatives, ‘ there was a judgment of the Court that the election was absolutely void. That would involve another appeal being made to the people. Whv does it not involve another appeal to the people in the case of the Senate ?
– Because the Constitution provides otherwise.
– I cannot see it in. that light. I think that the two cases in which casual vacancies are provided for are clearly pointed out in sections 20 and 21 of the Constitution: As the Vice-President of the Executive Council has said, we have to deal with a dry matter of law; but after all there is a great . principle involved, and. that is that our decision should be based upon a desire to give effect to that principle of the Constitution which declares that the Senate shall embody the idea of popular representation. I trust that we shall stand by that principle.
– Should not it be dealt with under the Electoral Act ?
– The case does not seem to have been provided for in that Act. Otherwise it would not have been referred to us by the High Court.
– Should we not then amend the Electoral Act?
– That is a very pertinent interjection, and if the honorable senator will prepare an amendment of the Act, as his long experience will enable him to do, I shall be inclined to help him.
– Is the honorable senator going to support my amendment?
– I cannot do that. There is nopersonal issue, butI wish to see the whole of the senators from
South Australia chosen by the people. I” think I do not misunderstand the desire of the people of that State when I say that they wish that every one of their six senators shall be on the same footing. Following up the suggestion of Senator McGregor, I should be inclined to say that it is the duty of the Government to advise the Senate to deal with this question “on its own,” to use a common phrase. We have power to deal with it, and we ought to preserve our powers under section 47. The wisest course would be for us to pass a Bill immediately declaring that there is a vacancy, and providing for an election to fill that vacancy to be carried out by a poll of the people on the lines laid down by the Constitution. By taking that course we shall find that we have increased the respect and confidenceof the people who sent us here. I trust that the Senate will take steps to enable South Australia once more to be represented entirely by senators who have received the popular choice.
Debate (on motion by Senator W.
Russell) adjourned.
Senate adjourned at 9.59 p.m.
Cite as: Australia, Senate, Debates, 16 October 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19071016_senate_3_40/>.