3rd Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
Senator Colonel NEILD presented a petition from the chairman of a public meeting, held in Sydney, praying ‘the Senate not to pass the high Customs duties proposed in the Tariff.
Petition received and read..
– I desire to ask the Vice-President of the Executive Council a question, without notice, with regard to the statement he made yesterday that before the end of the session the Government will give Parliament an opportunity of dealing with the question of Naval Defence. I desire to know whether they will make their statement of policy as soon as the information which they are now seeking is made available, whether the Tariff is out of the way or not - in other words, whether they will give us an undertaking that they will state their policy to Parliament as soon as they procure that information, without respect to the progress made with other legislation. I do not ask the honorable senator to say whether they will give Parliament an opportunity of dealing with the question, but simply whether they will state their policy as soon as the information for which they are waiting is made available?
-Quite irrespective of any other business, the Government will make a statement of their policy on the subject of defence before the session closes, and at the earliest opportunity, having regard to the necessary material which is required to enable them to do so.
– Not before Christmas?
– I beg to ask the Vice-President of the Executive Council, without notice, whether the Government have received any reports from the naval experts whom they sent to England some time ago, and if the reports will be received and considered before they announce theirpolicy on Naval Defence?
SenatorBEST. - The Government have received certain reports from the officers who were sent abroad. They are of a confidential character, and will, of course, be considered by the Government in the formulation of their policy.
– I desire to ask the Vice-President of the Executive Council, without notice, whether the Government will see that an up-to-date map of Australia is prepared and hung up in this building for the benefit of members of Par- liament? Will they also see that uptodate maps of the different States are placed in the building, where they can be seen ? Senator BEST. - An up-to-date map of Australia is being compiled under the supervision of the Department of Home Affairs. The hanging of the map in Parliament House is a matter for the President and the’ Speaker to deal with.
– I think I am entitled to make an explanation in regard to this matter. This morning I received from Mr. Joseph Woolf a letter to the effect that he had noted in the newspapers certain comments made in this Chamber inregard to himself. He says -
I did not write a single word of the letter written by the Agricultural Implement Society.
He may not have written it, sir-
– The honorable senator canonly make a personal explanation, he cannot comment on or discuss the statement made by Mr. Woolf.
– Mr. Woolf goes on to say -
From Mr. Murray Smith’s own statement to you, you must be aware that I did not do so.
If Mr. Murray Smith was in the chamber I did not see him. I have no recollection of having seen him. Indeed; I go furtherand say that I did not address one word to him, nor did he address one word to me unless it was to bid me good evening, and not a word was said in regard to the matter mentioned by Mr. Woolf in this letter. Mr. Woolf says -
I shall be glad if you will remove the impression caused by your statement yesterday in the Senate.
I am not disposed to remove the impression that I created, because I still think that if he did not write that letter he either inspired or dictated it, and is responsible for it.
– I beg to ask the Vice-President of the Executive Council, without notice, if he will cause inquiries to be made of the Queensland Government as to the truth or otherwise of the insinuation, that the workers in the Queensland sugar cane-fields are lawless, which was made by an honorable senator in a question which he asked yesterday?
– If any such lawlessness has taken place in Queensland, that is essentially a matter for the State Government and not for the Senate.
Motion (by Senator Needham) agreed to-
That leave be given to introduce a Bill for an Act to amend the Commonwealth Conciliation and Arbitration Act 1904.
Bill presented, and read a first time.
Senator Colonel NEILD (New South Wales) [10.45]. - I desire to have Order of the Day No. 2, private business - with regard to the appointment of a Joint Committee for the consideration of public works proposals - set down as a notice of motion for the 21st November. It has somehow got into the notice-paper in the form of an Order of the Day. It should be a notice of motion.
– I point out to the honorable senator that as the motion to which lie refers is down on the notice-paper as an Order of the Day, it will not be possible to set it down simply as a motion. The rule has been that where a motion has been made an Order of the Day, as has frequently been done in the Senate, it cannot be changed to a simple notice of motion.
– Then I prefer to withdraw the motion. It is not possible for me to give a fresh notice to-day, but I will do so later on.
Order of the Day read and discharged.
– I move -
That this Bill be now read a second time.
This is a Bill to amend the law relating to parliamentary elections and to provide for the settlement of questions relating to the qualifications of members of the Parliament and to vacancies in either House of the Parliament. The facts relating to the South Australian election for senators on the 1 2th December last, the subsequent proceedings in the Court of Disputed Returns, the proceedings in the High Court, the application for a mandamus and likewise the proceedings in the form of a petition presented to the Senate by Mr. Joseph Vardon, are matters well within the knowledge of honorable senators. On the occasion of the consideration of the petition to which I have referred the Senate unanimously passed a resolution to the effect that as a particularly complicated question of constitutional law was involved it was desirable that the petition should be referred for consideration and decision to the High Court. On that occasion I undertook to introduce the necessary Bill to carry! out the desire of the Senate. Having regardto the very pronounced feeling which existed amongst honorable senators, especially as to similar questions which might arise in the future, I also indicated that the measure to be introduced would cover all similar . cases that might hereafter arise. I hope that honorable senators will not be under the impression that the Bill now introduced is unnecessarily complicated in its form. It may appear’ to be so because of the limitations imposed by the Constitution, and the circumscribed area of our powers in dealing with questions of this description. But if honorable senators will favour me with their attention I think I shall be able to make it perfectly clear to them, and to satisfy them that I have at least endeavoured to carry out consistently the wishes of the Senate. In the first place, and as a foundation for the legislation that I am now introducing, I invite the attention of the Senate to the 47th section of the Constitution, which says that -
Until the Parliament otherwise provides -
That, of course, is a well-known expression, giving us full power within the limits of the Constitution - any question respecting the qualification of a senator or a member of the House of Representatives or respecting a vacancy in either House of the Parliament, and anv question of a disputed election to either House shall be determined by the House in which the question arises.
So that there are three special contingencies provided for in this section in regard to which Parliament has power to legislate; namely, as to the qualifications of senators, as to any vacancy which may occur, and as to any disputed election. As to our powers in this connexion we have been somewhat enlightened by the judgment delivered by the High Court on the occasion of the mandamus proceedings. The judgment sets out -
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 -
That, of course, is the High Court - whether as a Court of Disputed Returns or otherwise. But until the question is regularly raised for decision we reserve our decision upon it.
So that not only have we .the reasonably explicit terms of the 47th section to guide us, but also this express statement by the High Court as to. our powers. The Bill which is now presented may be said to resolve itself - into three parts. The first part deals with the petition immediately before the Senate. In wide and comprehensive terms it provides that by virtue of this measure that petition shall be transmitted to the Court of Disputed Returns - which, of course, is the High Court. It also’ goes on to provide that all requirements which under ordinarycircumstances and under the Electoral Act would be necessary for the purpose of placing a petition formally before the Court shall be taken to have been complied with. Then in wide terms it prescribes the procedure which is to be adopted by the Court of Disputed Returns and enables the Court to say as to what that procedure shall be. A very important feature of the measure is sub-clause 4 of clause 2: It says that on the hearing of any petition to which the clause applies, the Court of Disputed Returns shall have the powers conferred by section 197 of the principal Act so far as they are applicable. I will content myself by that reference to the sub-clause for the present, and will refer honorable senators to the 197th section of the Electoral Act in regard to the powers with which the Court will be endowed in dealing with this particular petition. The sub-clause to which I have alluded says that, so far as the powers contained in section 197 are applicable, they are to be made to apply, and it is only fair to explain to honorable senators that the whole of the [paragraph of section 197 will not be applicable in the special circumstances of this case. That section says that -
The Court of Disputed Returns shall sit as’ an. open Court, and its powers shall include the following -
Those powers are - to adjourn, to compel the attendance of witnesses, the production of documents, the examination of witnesses on oath, and so on. It is possible, however, that paragraphs 4, 5, 6 of the section do not apply. But paragraph 7, which says that the Court has power -
To dismiss or uphold the petition in whole or in part - does apply. So also do the powers in paragraphs 8 and q, to award costs, and to punish contempt by fine or imprisonment.
– Does the honorable senator say that paragraph 4 -
To declare that any person who was returned as elected was not duly elected, does not apply?
– I am not going to say definitely, but it is probable that that provision does not apply. As I have already said, it is probable that paragraphs 4A 5, 6 do not apply. Because honorable senators must bear in mind that when an election is referred to in the Electoral Act, that election does not include the choice of a senator in terms of section 15 of the Constitution. But that matter is fully covered in a way which I shall afterwards explain. It will be observed that under paragraph 7 of section 197 of die Electoral Act it is provided that the Court of Disputed Returns shall have power -
To dismiss or uphold the petition in whole or in part.
Part of the petition of Mr. Joseph Vardon is as follows -
Your petitioner therefore humbly prays that the choice of election by the said Houses of Parliament of the said the Hon. James Vincent O’Loghlin to hold the place of a senator for the said State of South Australia may be declared null and void, and that it may be further declared that the said the Hon. James .Vincent O’Loghlin has not been duly chosen or elected as a senator or to hold the place of a senator for the said State of South Australia, and that the said the Hon. James Vincent O’Loghlin has no right or title to sit, vote, or act as a senator in your honorable House, and that the seat of one senator for the said State of South Australia is vacant.
Honorable senators, therefore, have to consider two contingencies which may occur. It is quite clear that if that petition is dismissed by the Court of Disputed Returns, Senator O’Loghlin will be confirmed in his seat; in other words, it will be held that the procedure of election by the State Houses was properly resorted to, and that SenatorO’ Loghlin was duly elected. But the other contingency is that, in the event of the petition being upheld, it will be declared that the choice of Senator O’Loghlin by the State Houses was null and void. The seat, under those circumstances, would be declared vacant; I want honorable senators to realize those two contingencies quite clearly- first of all that if the petition is dismissed, Senator O’Loghlin’s election will be confirmed; if, on the other hand, the petition be upheld, it is equally clear that the seat will be declared vacant. At this juncture, I point out that sub-clause 4 of clause 2 of the Bill incorporates those powers of section 197 of the Electoral Act which are applicable. The sub-clause goes on to say that the Court shall, in addition thereto, have power to make any declaration or order, which the nature of the case may require. So that, in addition to paragraph 7 of section 197 of the Act, there is given to the Court the additional power to make any declaration or order which the case may require.
– Does that contemplate the possibility of the Court declaring whether there was a casual or an ordinary vacancy ?
– The Court will have this petition directly before it. It will have power to declare the seat vacant. If the Court declares the seat vacant, the Constitution itself steps in. I will point out the operation of the Constitution in these circumstances.
– The question which I should like to have cleared up is - What is the intention of giving the Court power to make a declaration or order?
– That is practically in terms of the Constitution. If a vacancy is declared, the Constitution prescribes what is to be done. We can also look for guidance in this important matter to the judgment of the High Court in the mandamus proceedings -
It is clear, however, that when a vacancy occurs in the Senate it must be filled in the manner prescribed by the Constitution, and that the Parliament cannot by any Statute make any valid provision to the contrary. It is equally clear that the Senate could not, by any exercise of its powers under section 47, affect the ques tion of the proper mode of filling a vacancy, and that the powers of the Court of Disputed Returns are not more extensive.
All that we have a right to do is to transfer to the Court of Disputed Returns the power to consider and dismiss or uphold the petition. If the Court upholds the petition, the effect must be to declare the seat vacant. Then the Constitution does the rest.
– Section 15 comes in again.
– Section 21 comes in.
– Who is to decide how the vacancy, if it is created, has to be filled?
– All that the Court declares is that the petition is dismissed or upheld. In the latter case it declares in consequence that a vacancy exists.
– And that involves a declaration by the Court that the choice by the South Australian Parliament was invalid.
– The effect of the Court declaring a vacancy would of course be that the procedure of the South Australian Parliament in this case would be rendered invalid. We have then to resort to the Constitution for guidance as to what takes place in the event of the vacancy. There are three modes of filling a vacancy. The first is popular election, prescribed by sections 7 and 12 of the Constitution ; the other two are contained in section 15 of the Constitution, which prescribes that the election shall take place by both Houses of the State Parliament sitting together, or, in the event of the Houses not being in session, by the nomination of the Governor in Council. Section 21 shows what must take place whenever a vacancy arises in the Senate -
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 has happened.
The onus and responsibility of filling the vacancy is therefore cast upon the State authorities - the Governor of the State, following the advice of his responsible Ministers. Neither this Parliament, the High Court, nor any other authority has power to interfere. If in the case of this petition the Court declares a vacancy, the procedure set forth in section 15 of the
Constitution is at once closed to the State Parliament, and therefore the only other mode which can be followed is a popular election in terms of sections 7 and 12 of the Constitution. We are guided again in this matter by the High Court. It was pointed out to the Court that the Constitution contemplated that’ “ the election to fill vacant places shall be made in the year at the expiration of which the places are to become vacant.” It was therefore urged that it was necessary that the popular election in this case should have taken place prior to the expiration of 1906, but the High Court said that that was not necessarily so, as, if a vacancy occurred, and a popular election had to take place, the election could take place “now as for then.” I have shown that the two modes of filling the vacancy included in section 15 of the Constitution would be closed to the State Parliament if the Court of Disputed Returns declared the vacancy to exist. The only resort therefore would be to popular election. Section 7 of the Constitution provides that - ‘ ‘ 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 “ ; and also 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.” I have already drawn attention to section 21, dealing with the notification of the vacancy to the Governor of the State. Then section 12 of the Constitution provides that “ The Governor of any State may cause writs to be issued for elections pf senators for the State.” The whole responsibility, once the vacancy is declared, is cast upon the Governor of the State acting with the advice of his responsible Ministers.
– And he might do as he did before.
– He could not, because in the event of the Court declaring the seat vacant, the law would be declared to be that that particular class of procedure does not apply in a case of this kind: I have now endeavoured to make clear that portion of the Bill which refers to the pending petition. One or two honorable senators, after reading the clause,- have kindly suggested that it might be made a little clearer bv the introduction of a few words, which I shall be only too happy to add, in order to carry out the expressed wish of the Senate, and more conclusively to identify the particular petition referred to. As the petition has been to some extent dealt with by resolution, and by the return of the deposit, it might be suggested that it was no longer “ pending.” I propose therefore, by adding a few words, tomake the identity of this petition absolutely clear. Clauses 3 and 4 are purely formal. The Electoral Act has been so cut up that the introduction of a consolidating measure at an early date will be necessary. Clause 5 is the second part of the Bill. Its object is to provide that when any cases of the character involved in this petition occur again under section 15 of the Constitution, they are to be dealt with by the Court of Disputed Returns. It came somewhat asa surprise to many honorable senators to find that it was not competent for the Court of Disputed Returns to deal with this particular case. But the word “election” used in the Electoral Act has a strictly technical meaning, and was deemed not toinclude the word “ choice,” which is used in section 15 of the Constitution. Clause 5 provides that the choice under section 15 of the Constitution shall be deemed to bean election within the terms of the Electoral Act, and will have the effect of making applicable to “choice” under section 15 the whole of the provisions of the electoral Act relating to disputed returns. Section 192 of the Electoral Act provides that “the validity of any election. or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise.” Consequently under clause jj the validity of the choice under section 15 of the Constitution could be disputed in the same way as could any other election. Then part 16 of the Electoral Act, which relates to the Court of Disputed Returns, would become applicable.
– The clause enlarges the jurisdiction of the Court of Disputed Returns so as to embrace of disputed choice.
– That is so. The last part of the Bill is clause 6, dealing with the contingency of questions of law aris- ing with regard to qualifications and vacancies. I have already drawn special attention to section 47 of the Constitution, which refers to the powers of the Parliament in regard to qualifications, vacancies,, and disputed elections. We have already dealt with disputed elections by the Electoral Act. They are therefore outside this
Bill, and beyond the power of Parliament, unless Parliament desires to amend the Electoral Act. Clause 6 contains a new section 206aa, providing that -
Any question respecting the qualification of a Senator of or a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.
That provision does not take away from the Senate the power to deal with these questions itself. There is a reason for that, which I will explain. In the event of a questionarising on the subject of qualifications or vacancies, the machineryis provided by this clause for the Senate simply to pass a resolution making the reference, and thereupon the question involved is referred to the Court. I shall point out later on why it is we do not propose to compel the House or the Senateto refer the matter to the High Court, but leave it to their discretion to do so.
– Does not the existing law transfer the power completely from the Parliament to the High Court ?
– So far as questions of disputed elections and qualifications arising in future are concerned, they are dealt with by this Bill in the way I have referred to. Of course, any questionarising under section 15 is definitely dealt with, because the choice under that section means an election, and the validity of an election which -includes the choice would be dealt with as of course.
– Were not all questions outside of section 15 provided for by the original Act and its amendments?
– No, but we are now proposing to provide for them. The question of qualifications of the members of the Senate and House of Representatives are dealt with under different sections of the Constitution. Section 16 providesthat -
The qualifications of a senator shall Be the same as those of a member of the House of Representatives.
In section 34 it is provided that -
Until the Parliament otherwise provides the qualifications of a member of the House of Representatives shall be as follows -
Then there are two sub-sections in which the qualifications are fully set out. Sec tion 44 provides that -
Any person who -
Is under anv acknowledgement of allegiance obedience or adherence to a foreign power or is a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power ; or
is attainted of treason or has been convicted and is under sentence or subject to be sentenced for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one vear or longer; or
is an undischarged bankrupt or insolvent ; or
holds any office of profit under, the Crown, or any pension payable during the pleasure of the Crown on of any of the revenues. of the Commonwealth; Or
has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons ; shall be incapable of being chosen or of sitting as a senator or as a member of the House of Representatives.
The spirit of thi section is that a candidate for either House must be discharged of these disqualifications at the time his election takes place, and in the case of any question arising with respect to any of these qualifications or disqualifications, we provide that the Senate or the House of Representatives shall have power, by resolution, to refer the matter to the High Court. Honorable senators may ask why such cases should not automatically be referred, and why we propose to reserve a discretion to the Houses of the Parliament to refer them. The reason is that there are many cases where, for instance, a man is an undischarged bankrupt, or has been guilty of a crime, or holds an office of profit - obvious cases involving no possible question of law - and it would be absurd to send such cases to the High Court for decision, as they would depend on facts easilv ascertained.
– Sometimes alleged facts are not always so obvious.
– In the case of an undischarged bankrupt or insolvent, all that would be necessary would be to present the certificate. Such a case would not be referred to the High Court.
– That is what I say. It would be absurd in a number of cases to refer them to the High Court.
– In the same way, a certificate of conviction might be produced.
– Just so, or it might be quite obvious that a man had accepted an office of profit under the Crown. It would be absurd to refer such questions to the High Court, but where any question of law is involved, the Bill provides machinery whereby, on the passage of a resolution in the House of Parliament concerned, the case will at once be transmitted to the High Court. The proposed new section 206BB provides that in these circumstances, when such a resolution as I have referred to is passed, it will be the duty of the President of the Senate, or of the Speaker of the House of Representatives, to transmit to the Court of Disputed Returns a statement of the case, together with any records or papers which are at the disposal of Parliament connected with the matter. Then it is provided that any person interested in the question may appear before the High Court, or the High Court may direct them to appear. The powers of- the Court are made as ample as possible in the proposed new section 2o6dd. In order that there may be no possible doubt about it, we propose to specially confer on the Court all the powers contained in section 197, to which I have already referred; and, in addition, we provide that the Court shall have power -
I am not going to pretend that these words are absolutely necessary, but I think it is prudent to insert them in order that we may use the words of the Constitution in this connexion. This meets the contingency provided for in section 34 of the Constitution. It is further proposed that the Court shall have power -
That is under section 44, and the words of the Constitution are used. The Court is, further, to have power -
That covers the words of section 45 of the Constitution which I have mentioned, but it deals with the subject of a vacancy occurring through a disqualification. That provides for cases where a member of the Parliament may become subject to any of the disabilities mentioned in the preceding section, or where he takes the benefit of an assignment under the law relating to bankruptcy or corruptly, directly or indirectly, takes any fees or honorarium in connexion with the discharge of his office. It may be suggested that we have proceeded with excessive caution in the proposed new section 206DD, in endowing the Court with powers in addition to those contained in the Electoral Act, but we have thought it well to use the words of the Constitution itself. Then we provide that when a decision is come to by the High Court it is to be transmitted to the Senate. I think I have made clear the terms and provisions of the Bill. One suggestion, for which I am thankful, has been made. It will be in the knowledge of honorable senators that the High Court is the Court of Disputed Returns, and power is provided under the Electoral Act for one member of the Court to sit alone as a Court of Disputed Returns. I propose, in dealing with this Bill in Committee, to provide that the petition with which we have been dealing shall be referred to a Full Court of the High Court, consisting of riot less than three Justices. I think that honorable senators will agree that, in all the circumstances, that will be more in consonance with the general desire. I submit the Bill to honorable senators, with confidence that it will be unanimously and expeditiously carried, so that this unfortunate question, which has been raised in connexion with the seat held by my honorable friend Senator O’Loghlin, may be settled by the High Court one wayor the other.
Motion (by Senator McGregor) proposed -
That the debate be now adjourned.
Question put. The Senate divided.
Majority …. … 6
Question so resolved in the affirmative.
Motion agreed to; debate adjourned.
In Committee (Consideration resumed from 31st October, vide page 5397) :
Clause 13 -
The Governor-General may byproclamation -
prohibit the removal of any animals plants, or goods, or parts of animals or plants, from any State or part of the Commonwealth in which any quarantinable disease, or disease affecting animals or plants, exists, to any State or part of the Commonwealth in which the disease does not exist ;
Upon which Senator Keating had moved, by way of amendment -
That the words “ State or,” line 5, be left out.
Senator Sir JOSIAH SYMON (South Australia) [11.30]. - It will be recollected that last evening we got rather into a tangle, which the gallant effort of Senator Trenwith was not quite successful in unravelling. The question was whether the omission of the words “ State or,” to which the Government assented as a drafting amendment, would in any way interfere with Senator Macfarlane’s desire that there should be a power given to prohibit removals from State to State, but not from one part of a State to another part of it. It will occasion my honorable friend no inconvenience and not interfere with his object if he will assent to the omission of those words, and then raise the issue which we all desire to raise in accordance with Senator Guthrie’s suggestion, and that is the retention or omission of the paragraph. It does not seem to me that we shall gain anything by eliminating the words “State or.” If that amendment is made, and the words “or part of the Commonwealth,” which Senator Macfarlane wishes to delete are omitted, the effect will be exactly the same as though we had negatived the whole of the paragraph, because the paragraph would be unintelligible and ineffective. It would be only wasting time, I think, to deal with a verbal amendment when we can get at the heart of the thing by dealing with the paragraph itself. Therefore, in order to save time, I suggest to Senator Macfarlane that we should debate the general subject on a proposition to omit the paragraph.
– I am quite willing to adopt the suggestion of Senator Symon, because the amendment of Senator Keating to omit the words “ State or “ vitiates to a great extent the amendment I desire to move, and which, if carried, would make the paragraph nonsensical. I am quite willing to deal first with the whole paragraph, and afterwards with the question of animals or plants.
– I can scarcely understand the position of Senator Macfarlane, because he has asked the Committee to assist him to maintain quarantine as between States.
– He has withdrawn his amendment.
– The amendment before the Committee emanated from Senator Clemons, and was accepted by the Government. Senator Macfarlane’s whole object was to maintain the protection to the States under the quarantine law.
– I was not willing to go so far as I am now.
– I take it that the honorable senator recognises now that it is bad policy to protect the products of one State as against those of another State by means of quarantine laws. If we omit the words “ State or “ it will be impossible to build up a quarantine law against the products of any one State as compared with those of another State. The next amendment which will be moved will, if carried, enable the Commonwealth to proclaim any particular part of a State a quarantine area, from which goods cannot be removed. In the matter of quarantine laws, we ought not to recognise State boundaries. If we omit the words “State or ‘ ‘ the Commonwealth can quarantine a square mile within a State. We are charged with the responsibility of insuring the health of not only human life, but also animal and plant life. Unfortunately, under the quarantine laws, when the authorities in a State know that their trade is going to be harassed in some way, they try to smother up all knowledge of diseases for the purpose of securing for themselves free ports. This Parliament has to legislate in the interests of six States, and not in the interests of one State as against those of another, as, unfortunately, has been the case in the past. To my knowledge goods have often been kept in a port which was infected. ‘ During the period of quarantine the goods were stored away ; but so soon as the port was declared uninfected they were shipped, thus carrying ‘disease to other parts of the world. That has been a common occurrence. By retaining this provision the
Commonwealth will have the right to proclaim certain areas, small or great as the case may be, and without any reference to State boundaries, and that, I submit, ‘ will be in the interests of the people of Australia.
– The object of Senator Macfarlane is to confine the power of the Commonwealth to dealing with States, and not with parts of States. The intention of Senator Symon is entirely different, because he objects to the Commonwealth assuming power over animal or plant life.
– No ; as between State and State, as well as between different parts of a State.
– I want to support the paragraph with the amendment suggested by Senator Clemons and adopted by the Government, because I consider that a law of this kind ought to be administered in the interests of the whole Commonwealth. The intention of Senator Macfarlane is to confinethe powerof the Commonwealth, whether the law is administered through Commonwealth or State officers, to the quarantining of a whole State as against the other States. The idea of the present amendment is not to confine the quarantine operations to a single State as against the others, but to any portion of the Commonwealth. Let me put the position in a practical way to the senators from Queensland. Suppose that a very dangerous and virulent disease in plant or animal life broke out on Thursday Island, and that that island were declared infected. Under Senator Macfarlane’s proposal, if carried, Queensland would be proclaimed a quarantine area. Do honorable senators want that state of things to be brought about? It would be quite sufficient to quarantine Thursday Island as against the rest of the Commonwealth. Again, suppose that the same disease broke out near the southern boundary of Queensland, and extended northward for a distance of 50or 60 miles, and southward to the New England district of New South Wales. Under Senator Macfarlane’s proposal, if carried, Queensland and New South Wales would have to be proclaimed quarantine areas.
– No, it is only a question of removal.
– Would not the quarantining of those areas prevent the removal of plants, or animals, or goods from those States to any other part of the Com monwealth? Under the intelligent proposal before the Committee, if carried, the Commonwealth could declare the infected areas in New South Wales and Queensland quarantine areas. That alone would be a quarantine area in respect of the rest of the Commonwealth instead of the twoStates. I hope that Senator Macfarlane and his friends will see the benefit of adopting an amendment of this description. I am sure that none of us desires to quarantine the goods, cattle, and persons of a whole State because a part of that Statemay be affected. The possession and administration of this power by the Commonwealth would be of greater benefit to the States than the existing conditions. I will give an instance. A certain portion of Western Australia has been affectedby a terrible disease especially afflicting camelsand horses. That disease was brought clown from India with some imported camels. It affects only a small portion of the State of Western Australia. Under the existing laws of the States, the whole of Western Australia would have to be quarantined. A State could not quarantine a portion of Western Australia. South Australia, therefore, desiring to prevent the admission of that disease, and administering her quarantine laws for the benefit of her own people, would have to quarantine the whole of Western Australia, as indeed she has done. That is the condition of things which Senator Macfarlane seems to glory in, and wishes to perpetuate under this Bill.
– I feel sure that if Senator Macfarlane thoroughly understood the position, he would alter his opinion, because I believe that he really desires to have our quarantine laws administered in a manner beneficial to the Commonwealth as a whole. He would not like Queensland to be quarantined against the rest of Australia simply because there was a disease in one portion of it. He would not like to see the whole of Tasmania quarantined against the rest of Australia because codlin moth got into the apples in one part of it. I am in favour of whatever law we pass in connexion with quarantine applying not only to human beings, but to animals, plants, and goods. The question has been well argued regarding human beings, animals, and plants. I wish tosay a word or two as to the quarantining of goods. The Minister has said that horns and hides are goods, butthey are also parts of animals. In the part of Western Australia where surra has been life, the camels and horses affected bv it have worn saddles and other gear. It is necessary to prevent the transport of such goods to any other part of the Commonwealth. It is just as necessary that proper care should be taken to prevent the transmission of disease through the instrumentality of goods as through human beings, animals or plants. I sincerely hope that honorable senators will agree to the amendment.
– The question that we have to settle regarding this amendment is : Is the Commonwealth going to rule or not? If ‘the Commonwealth is to rule, how far is its authority to extend? T think that its rule should extend throughout the whole of Australia. If we do not make our rule universal the power of the Commonwealth will be ineffective to stop disease wherever it may occur. We may have persons escaping from quarantine. We may have goods or animals affected bv disease removed from nne State to another. It will be a lopsided law that we pass. Unless we take sufficient power, the Commonwealth will not- be able either to lift or to impose quarantine in the middle of a State. I point out, however, that if this provision is carried we shall require to alter subclause 3 of clause 13.
– I was just looking at that.
Senator LYNCH (Western Australia.)
I1 1-S3]- - It is desirable ‘ in passing this Bill to wipe out as far as we can the geographical boundaries of the States. Hitherto they have exercised their authority in respect of quarantine in their own interests, sometimes to the detriment of their own consumers, and frequently to the detriment of the producers of other States. The Victorian authorities, for instance, have kept up their regulations respecting anthrax in the winter time, when that disease is not active. It should be our endeavour to secure that the free flow of commerce between the States should be interfered with as little as possible. The Bill has been objected to on the ground that it is too wide in its scope. Expressions of dissent have been heard against its application to animals and plants. An amendment has been suggested which would have the effect of forbidding the removal of animals, plants, and goods which have been quarantined from one part of a State to another part. Now, it will surely be agreed that the Commonwealth should exercise to the full the quarantine powers that were exercised by the States prior to Federation. Take the case of Tasmania. I am sure that Senator Macfarlane desires that the Commonwealth shall exercise to the full the powers that were exercised bv that State prior to Federation. Let us consider what the State laws were. According to the New South Wales Act of 1897, section 4-
The Governor-General may, by proclamation published in the Gazette, appoint places in New South Wales to be stations for the purposes of quarantine of all vessels, persons, and things liable to perform quarantine.
So that the Government of New South Wales being endowed with the power to appoint stations for the quarantining of vessels, persons, and things, it necessarily follows that the Commonwealth Government must be endowed with power to regulate the movements of vessels, persons, and goods from one station to another. Section 11 of the New South Wales Act reads as follows -
Whosoever lands or unships, or moves with intent to land 01 unship any article whatsoever from any vessel liable to quarantine, or knowingly receives the same after it has been so landed or unshipped, shall forfeit the ‘sum of Five hundred pounds.
Power was given to the State authority under that section to exercise powers affecting goods after they were landed from the ship. It is, therefore, clear that the Commonwealth Government should have power to prohibit persons from removing goods from one place to another.
– That would be a power incidental to external quarantine; you prohibit importations from oversea, and you also prohibit removal until everything is clean.
– But the powers under this Bill ought not to stop short of that. The New South Wales Government, under section 11 of the Act which I have quoted, had power to prohibit the removal of goods from one portion of a State to another. That means that the New South Wales Government could follow the goods away from the ship.
– -The Commonwealth could follow the ‘ same goods bv virtue of this measure.
– Senator Macfarlane proposes to forbid the Commonwealth authority to interfere with goods moved from one place to another within a State.
– The section quoted by Senator Lynch refers to quarantined goods landed from overseas.
– The goods may be taken any distance inland.
– No one objects to those goods’ being followed and interfered with if they have not been declared clean.
– A ship with quarantinable disease on .board might land at Sydney goods which might be carried as far inland as Bourke. Under the New South Wales Act the State authority had power to follow them there and prevent any person taking possession of them.
– They may be regarded in that case practically as landed from the ship at Bourke. They are still under the quarantine law.
– But in their passage from Sydney to Bourke they are being moved from one part to another of the State.
– The right to prohibit their removal depends . upon their being subject to quarantine at the port of discharge.
– Then other infected goods could be moved freely throughout the State of New South Wales?
– Yes, so far as that Act is concerned, so long as they were not quarantinable when landed. But the health law would apply to them.
– lt means that you can do what you like with your own smallpox, but you have to follow the small-pox that comes in from China.
– Subject to the health laws.
– Under the section which I have quoted, the New South Wales State authority had power to follow up goods subject to quarantine, and penalize those who received them. The penalty was ,£500. Surely if the State Government had that power the Commonwealth Government ought to have a similar power to keep quarantinable goods under surveillance.
– Senator Macfarlane does not propose to interfere with that.
– Senator Macfarlane would not have the Commonwealth interfere with local diseases.
– Senator Macfarlane’s amendment would not allow the Commonwealth to follow up the contact cases. If it was found necessary to remove quarantined stock or goods from thf» Sydney stock quarantine area at Bradley’s Head, owing to want of accommodation there, to some other place, Senator Macfarlane’s amendment would forbid the Commonwealth Government from so removing them.
– That could be done by the States themselves.
– In the case of the plague scare in Sydney, the local health authority, which for a number of years had been under the Sydney City Council, proved helplessly ineffective, and the State Government, had to step in and supersede it. The State authority mapped out a quarantine area to prevent the spread of the disease. Senator Macfarlane would tie the hands of the Commonwealth Government to the extent of forbidding quarantinable goods, stock, &c, to be removed from that area to another area in the same State.
– I would leave that to the State.
– Common-sense would dictate that, if it was found necessary to shift any quarantinable persons, animals, or goods from one infected area to another, the Commonwealth should have the same power as the States had prior to Federation. The essence of the amendment suggested by Senator Macfarlane is to prevent the Commonwealth from having the full powers formerly enjoyed by the States, and I shall not support it.
Senator Sir JOSIAH SYMON (South Australia) [12.8]. - Undoubtedly there is very great room for difference of opinion as to the extent of the Commonwealth’s powers under the Constitution. Some honorable senators may be of opinion that all the health laws of the States are put within the compass of the Commonwealth jurisdiction. Other honorable senators, of whom I am one. think differently. There is great scope for difference of opinion, but, in my view, we are not entitled to take over, under the plea that we are dealing with the powers of quarantine, those particular spheres of activity which are within the ambit of State health jurisdiction. There is a strong line of demarcation between what is known as quarantine, properly so called, and intended to be taken over as such by the Commonwealth, and the health laws of the States, power to deal with which was to be retained by the States. It is peculiarly the function of the State to control its own social affairs and its own health. It is impossible for us in this Chamber to settle that constitutional question. I therefore take the course which I took in connexion with the Conciliation and Arbitration Act, saying that it is a matter to be determined at the proper time by the High Court. I do not profess to rest the views to which I now seek to give effect upon that constitutional position. In view of the difference of opinion that may exist, it is largely an idle waste of time to debate or vote upon the subject from the point of view of the elasticity or extent of the meaning of the word “ quarantine “ in the Constitution. But the other aspect, on which I do not think there is such room for difference of opinion, is whether it is politic on our part to extend the arm of the Commonwealth so as to interfere with all the State health laws. Undoubtedly the States are entitled to regulate and control their own. measures for the health of their citizens, and also for the animal health and plant health of the States.
– There is a sharp distinction between quarantine matters and health matters under the local Health Acts.
– Upon that point the honorable senator and myself might, well be agreed. The States are much better fitted to deal with health matters than the Commonwealth can possibly be. Even if it were otherwise, unless we took away from the States the power to deal with their own health matters, great possibilities of collision would be introduced. ‘ State and Commonwealth authorities might deal differently with different diseases, and that would lead to constant controversy and trouble. No man desires more than I do to extend the powers of the Commonwealth as far as is- possible, but it is exceedingly impolitic to run the risk by this Bill of encroaching upon the domain which is properly within the more municipal jurisdiction of the States. Is this to be a Quarantine Bill, strictly so called, or is it to be a Health Bill under the guise of a Quarantine Bill ? It ought to be restricted to what are admittedly matters of quarantine. If we leave in it a provision such as we are now discussing, we shall be empowering the Commonwealth to enter into any State, and prevent plants, for instance apple trees affected by the codlin moth, being transferred from one district to another, or from one side of the road to the other. The position would be intolerable.
– Does the honorable senator contend that while quarantine exercised by a State authority includes plants and animals, when exercised by the Commonwealth authority it must be confined to human beings ?
– I an. not dealing wi’th that.
– May I assume that the honorable senator would not contend that?
– I say that State quarantine laws properly socalled do not apply to those things at all.
– No, they have Vegetation Diseases Acts and Stock Acts, with which to deal with such matters.
– That is “ so. We often use terms without scientific precision, and though the term quarantine may be -used to describe State legislation dealing with such matters, that is not the kind of quarantine with which we seek to deal.
– But the honorable senator would not; suggest as a matter of law that the word “quarantine,” so far as the jurisdiction of the Commonwealth is concerned, does not include animals and plants as well as human beings ?
– I am not going to deal with that question. I am dealing now with a practical and politic question, because I wish honorable senators to see what is the position. I ask honorable senators whether they are prepared to arm the Commonwealth to. enter the State of South Australia and prohibit the removal of vines from one side of a road to another, because thev have oidium or phylloxera or some other disease? To do so would be inevitably to invite a hopeless condition of confusion, and to provide a fruitful source of conflict between the Federal and State authorities. It is entirely unnecessary to do anything of the kind. I defy the Vice-President of the Executive Council to say that the States authorities have not been keen and successful in looking after the health of human beings, animals, and plants within their boundaries.
– The trouble is that thev have been too keen.
– Is it the object of this Bill to . induce them to relax their efforts? I think it will have that effect.
– It might not lead to a relaxing of efforts in this direction, but it would lead to an interference in matters which are essentially within the jurisdiction of the States authorities. I cannot understand the Commonwealth interfering in matters of this kind, unless it is shown - and we have had no evidence of it - that the States authorities have been remiss or neglectful, or have abused their powers in some way which has not been made plain. Some reference was made, I think by Senator Turley, on the second reading of the Bill, to a conceivable misuse of these powers by the States authorities to prevent the importation of plants from one State to another in competition with local nurserymen. I admit the possibility of such difficulties arising, but there should be some solid evidence of the evil suggested before we legislate in the direction here proposed. Besides, the answer to all that is that we have another remedy, as I pointed out, against a State which seeks by indirect methods to prevent the freedom of trade between the States which is a fundamental part of our Constitution. Reference was madeduring the debate on the second reading to differential wharfage rates. All such things are in the same category, and this is not the method which we should adopt to deal with them. I am not dealing with the point of constitutional law which may be involved, but I say that as a Commonwealth we shall be doing what is most impolitic if we arrogate toourselves the control of all these matters, which can be much better regulated by, and which it was the intention of the Constitution to leave to the control of, the States authorities. Senator Lynch pointed out what he thought would be the effect of Senator Macfarlane’s proposal, and referred the Committee to section11 of the Quarantine Act of New South Wales, which says -
Whosoever lands or unships or moves with intend to land or unship any article whatsoever from any vessel liable to quarantine or intentionally receives the same after it has been so landed or unshipped shall forfeit the sum of £500.
I intended by the interjection I made during the honorable senator’s speech to show that Senator Macfarlane’s proposal is in no way in conflict with that provision, which is to be found, I think, in every quarantine law that I know of It is a necessary consequence of quarantine strictly so-called, which is the prohibition of the landing of goods or passengers from ships from oversea.
– The quarantine authorities would follow those goods?
– Yes. It would be perfectly futile if, when a ship was placed in quarantine in respect of some virulent disease, we permitted goods from that ship to be landed or, if landed, to be taken away to some part of the State where the disease might be propagated. We must give power, not merely to quarantine a ship, but to prevent the landing of goods, and to prevent goods being surreptitiously taken away by some person who may expect to sell them at a profit in another part of the State.
– If, under the new section referred to, the fine of£500 was imposed, what authority would take possession of the quarantinable goods?
– Under the Act referred to, I suppose that it would be the State authority of New South Wales, and under this Billit would be the Commonwealth Government.
– If they could not be shipped from one place to another, who would take charge of them ?
– In all probability they would be burned where they were seized. If the legal authority moved them away from the place where they were seized, that would be a removal under the control of the law, and would not involve another penalty. Senator Macfarlane’s proposed amendment has reference to paragraph g of clause 13, and that paragraph has nothing whatever to do with such a provision as that referred to in section11 of the New South Wales Quarantine Act. I remind Senator Lynch that in clause 44 of this Bill we have a parallel clause. It provides that - (1.) When a vessel is in quarantine then, until the vessel is released from quarantine, no unauthorized person shall land or unship, or move with intent to land or unship, any goods from the vessel.
Penalty : One hundred pounds. (2.) No person shall knowingly receive or have in his possession any goods landed or unshipped from any vessel in contravention of this section.
Penalty : One hundred pounds. (3.) In any prosecution under sub-section (2) of this section, the burden of proving want of knowledge shall lie upon the defendant.
That is a provision which I suppose is to be found in the Health Acts ofevery one of the States. In all the States there are Health Acts and Boards of Health.
– There are too many Boards of Health in some of the States, and they come into conflict with each other.
– We are now going to introduce the Commonwealth authority to join in the conflict.
– To create harmony - what the Commonwealth was designed for.
– To create, not harmony, but further controversy. I hope that I have satisfied Senator Lynch by showing that we have in clause 44 of this Bill a provision similar to that contained in section 11 of the New South Wales Quarantine Act. I shall be found voting most strenuously for every provision calculated to give proper effect to Commonwealth control over oversea quarantine, but I. do ask the Committee to draw the line between what is strictly quarantine and the area within which the health laws of a State should be allowed to operate.
– Senator Symon has shown the difficulties which may arise through different authorities being given practically the same power by legislation. Under this Bill, there must, of necessity, be considerable friction between the Federal and States authorities. As I have already pointed out several times, the provision we are making for quarantine at the ports is absolutely inadequate.
– Let us strengthen that in every way.
– I take the view that a system of inspection, observation, and surveillance is preferable to quarantine. The disease we have most to dread is smallpox. It has frequently happened that after a. ship has arrived and passengers have gone into the interior, they have developed smallpox there. In South Australia a number of such cases have occurred, involving the State in considerable expense which necessarily had to be incurred in attending to the patients in the interior. What is our position? The States say to the Commonwealth, “You have the right to quarantine at the seaports, but you must not allow any cases of disease to pass the ports.” If we allow any cases to pass the ports, are the State authorities to say that we must bear the brunt of the expense incidental to the treatment of such cases in the interior of a State? There at once will arise a cause of friction. The same thing applies to diseases affecting animals and plants.’ As regards diseases affecting man let me cite an instance which occurred at Petersburg, in South Australia -
A child was reported to be suffering from small-pox on 2nd December, 1892. She had landed on 12th November, from the s.s. Karlsruhe, on which vessel a woman had suffered from an eruption stated to be prickly heat by the ship’s surgeon and another medical man on board, but afterwards at Sydney diagnosed to be small-pox.
The ship had called at Fremantle. Adelaide, and Melbourne, but the disease did not develop itself until the patient reached Sydney.
This vessel was inspected at Largs by the M.O.H. on account of danger arising from cholera, and was granted pratique. Seventeen passengers landed here, but as twenty-one days had elapsed, no steps were taken in regard to them ; the relations and others who had come into contact with the patient .were, however, strictly quarantined.
That case cost the local authorities at Petersburg a very considerable sum. Then take the case of a man who went overland from Melbourne, landed at Border Town, and was found looking for work, but in a state of delirium. He was arrested, with the result that two policemen who had come in contact with him wer<e afflicted with small-pox before it was discovered that he was so diseased. They had to be strictly quarantined in order to prevent a further spread of the disease. That case cost the local authorities at Border Town nearly £500. Friction must of necessity arise under a system which admits of leakages. If we allow diseased persons to land at our ports and pass into the country t surely the responsibility devolves upon us to follow those persons into the interior and take charge of them, and not to throw the burden of their care upon the local authorities?
– This paragraph does not refer to persons at all.
– What applies to persons also applies to animals and plants. So, no matter what we may do, unless we assume the full control of quarantine, there is bound to be friction between the States and the Commonwealth. I think that, as the lesser of two evils, the Commonwealth should accept the responsibility of dealing with any leakages which may occur in consequence of the arrival of any ships in our ports.
– The question is whether there will be more friction between the Commonwealth and the States in the future than there is between the States at the present time.
– That is exactly the point. I believe that if we accept complete responsibility for quarantine in respect of persons, animals, and plants, there will be less friction. I should have liked our system to be based on the same lines as the British system. In Great Britain the ship is examined and sick cases are not sent to a quarantine station, but to the isolation wards of the established institutions. In regard to quarantine, two important Acts were passed in 1896 -
By one, the local Government Board was empowered to assign to the sanitary authorities of the various ports any powers rights or duties under the statutes for the preservation of the public health and for the prevention of infectious disease. . . . The Customs and coastguard officials are charged with the duty of enforcing obedience.
Outside “the ports the local authorities are given power to enforce obedience to the law. A system of that kind in Australia would, I think, have been better than the system which is proposed. However I intend to choose the lesser of two evils. I believe that there will be less friction between the Commonwealth and the States than now prevails between the States themselves, if we take the power not only to look after quarantinable diseases at the ports, but to follow any cases which, under a leakage system, may develop themselves in the interior,- and take charge of them.
– Clause 44 would give that (power.
– It is necessary, I presume, to take the power in this clause as well as in that clause. We have to give the Governor-General the power to proclaim that area, because without a proclamation it would be impossible to isolate a case.
– I have not spoken at any great length on the amendment I advocate because it is not before the Committee.
– The next vote will decide that.
– That does not follow., because if the words “ State or “ were omitted, and my amendment, carried, it would make the paragraph meaningless, and it would have to be recast. The omission of the words, therefore, would not affect the issue I have raised. It seems to me that we are bound to uphold the rights of the States, as long as those rights are properly exercised. It has not been proved that the States have not looked after any cases which have’ occurred within their boundaries. It is for that reason I do not support the amendment for -the elimination, of the words “ State or.” The discussion has gone so far as to show that this is to be a Health Act as well as a Quarantine Act, and that the Commonwealth proposes to interfere with everything.
– We need not interfere with the State provisions relative to health and inspection. The two can run side by side.
– Senator Symon has shown very clearly that the honorable senator’s view is wrong. The States are protesting, against our interfering with the control of animals- and plants, which are referred to in this paragraph.
– On the one hand, they are protesting against our interference, and, on the other hand, they are complaining of each other’s action.
– Hear, hear. They are complaining of the friction at present existing between themselves.
– That may be so. I would go so far as to allow the Commonwealth to prohibit the removal of animals or plants from one State to another. As a general principle, I object to our interfering with the control of animals or plants except at the ports, but still, if it is deemed necessary to interfere with them at all, let that interference be confined to the prohibition of the removal of animals or plants from State to State, and leave to the States the control of internal quarantine. Surely they may be trusted to act upon the first law of nature- self preservation. I feel quite sure that Senator McGregor overstated the case a little when he suggested that if a disease broke out at Thursday Island” the whole broke Queensland “would have to be quarantined.
– Yes, if the honorable senator’s amendment were carried.
– Certainly it would so far as other States were concerned.
– This provision only prohibits the removal of animals or plants from one part of the State to another part. In the .case which the honorable senator put, Queensland, I take it, would quarantine Thursday Island.
– This is a proposal to isolate a little spot instead of the whole of the State, as the honorable senator proposes.
– Let that be doneby the State. I have more confidence in the States than, apparently, most honorable senators possess. I believe that the States are competent to look after these cases. There will be a considerable amount of friction if we interfere with quarantine matters inside a State. Where are we to get the necessary officers from? We propose to employ the State officers, but the State Premiers object to our doing so. By means of letters the latter have asked us to leave the control of internal quarantine to them, and yet we are asked by the Government to legislate in face of that request. I do not quite understand Senator Guthrie’s position. On the one hand, he complains that theBill will be ineffective, because it will admit of so much leakage taking place-
– It is because of such leakage occurring that we need the power to follow oversea passengers into a State and deal with them.
– But now I understand that he proposes to support the clause as it is. I shall be very pleased if he will help me to limit the Federal interference with the States to the quarantining of persons. As the amendment is still to be moved, I shall make no further remarks at this stage.
– I see no reason why we should not agree at once to this drafting amendment to omit the words “State or.” It was suggested by me purely as a drafting amendment. It will have no effect upon the paragraph, except to make it clearer, nor will it prevent the submission of an amendment dealing with the question of animals or plants. In order to bring the discussion to a head, I desire to inform the Committee that, if the present amendment is carried, as I believe it will be, I intend to move the addition to the paragraph of the following words: -
Provided that the power to prohibit hereby conferred shall not extend to the removal of any animals, plants, or goods or parts of animals or plants from one part of a State to any other part.
That, I think, is the question at issue, and no other. If the Committee would allow this amendment to be passed at once, we could vote on the direct issue without any complication whatever.
– I think that honorable senators will see by this time that so many issues have been brought into this discussion that the whole matter is somewhat fogged. The amendment before the Chair is as clear as noonday. It is merely a drafting amendment. Senator Macfarlane has stated his position in his last speech. He is entirely against Federal interference with quarantine regarding animals and plants. He is trying by a side-wind to defeat the principle of the Bill. Senator Symon takes up a different position. He is against any quarantine but what he calls real or oversea quarantine. The methods great minds adopt for the purpose of prejudicing people against other ideas than their own are very peculiar. We have heard expressions about “tyranny” and “arrogating powers to ourselves,” and “ asserting undue authority,” as though it were proposed that the Commonwealth should do something desperate towards the States. Senator Symon has told us that this is an attempt to interfere with the Health Departments of the different States. It is nothing of the kind. The Health Departments of the States will not be interfered with unless under very exceptional circumstances. Those circumstances, so far as animals and human beings are concerned, are set forth in the Bill. So far as relates to plants, unless some blight or disease of a serious character breaks out, and it is found necessary to prevent that disease from spreading to another area, the Commonwealth will not intervene. If, for instance, phylloxera Broke out amongst vines, and the Commonwealth authorities came to the conclusion that it would be wise to declare a portion of a State a quarantine area, the effect would be that no vines, nor anything that had come in contact with them, would be allowed to be removed into any other portion of Australia. Surely that is a wise precaution and a proper power to be exercised by the Commonwealth. We are told that the States have been very vigilant in the past in the exercise of their quarantine powers. Why should not the Commonwealth be just as vigilant in the future, with the difference that instead of the whole of a State being made a quarantine area in relation to other States, the Commonwealth would have power to quarantine onlythe affected portion of the State? If in Queensland there were an outbreak of tick, red-water, rinderpest, or any other terrible disease, or if in Western Australia there were an outbreak of surra, surely it would be wise for the Commonwealth to have power to declare that the particular area in which the disease occurred should be quarantined rather than that an individual State should be able to declare the whole of the State in which the disease occurred a quarantine area. If honorable senators consider the matter from that point of view they will see that it is in the interests of the whole of Australia that the Commonwealth should have this power rather than that it should remain in the hands of the States. But Senator Macfarlane wants a disease to spread beyond a State before the Commonwealth shall have power to intervene. Those who wish to see the least friction, the greatest efficiency, and something done to prevent diseases from spreading, and those who wish to prevent the outbreak of a disease in a particular portion of a State, made an excuse for interfering with the free exchange of goods, animals and plants, between States, will vote for the amendment and for the paragraph after it is amended.
– Those who fear that the Commonwealth may unduly interfere with the powers of the States appear to me to have misconceived the situation. As it is now, the Commonwealth having no powers as to quarantine, if an infectious disease breaks out in stock or plants, the States not affected have practically to quarantine the whole’ of the States affected. The effect of that is, that though there may be only a small infected area in a State, the whole State is made to suffer.
– That is largely on account of the jealousy of the States towards each other.
– This Bill is an attempt to counteract that jealousy. Assume, for the sake of argument, that a disease breaks out amongst the stock of Tasmania. Being a native of that State, I am proud to say that Tasmania is probably the cleanest of all the States in reference to infectious disease. But suppose there was a virulent disease amongst Tasmanian sheep. Under existing conditions, and under the conditions that Senator Macfarlane desires to maintain, the other States would have no option except to taboo the whole of Tasmania with respect to sheep.
– I was pointing out before the suspension of the sitting-
– Let us strike out the words “ State or “ first. There is no objection to that, and then we can debate the other amendment.
– I call attention! to the state of the Committee. (Quorum formed.)
Amendment agreed to.
Amendment (by Senator Keating) agreed to-
That the words “ State or,” line 9, be left out.
– I intend to move the addition of a proviso to paragraph g.
– I have a prior amendment, of which I have given notice, as Senator Clemons knows.
– The honorable senator is talking absolute nonsense. I know nothing of the sort. If he wishes me to withdraw my amendment in order to allow his own to be moved, I shall do so, but I object to his saying that I know what he intends to do. I have heard him talking now for two days, and I do not believe that a single honorable senator has understood a word of what he was saying. Not a single man here could glean the smallestmeaning from the voluminous remarks that he has been pouring out, and I believe that if he went on for two weeks longer we should understand just as little. If the honorable senator wishes to move an earlier amendment, I shall not propose mine until his is disposed of.
– I desire to move the omission of the words “part of the Commonwealth,” where first occurring in paragraph g.
-A subsequent amendment has already been made.. The honorable senator can test the question by moving the omission of the same words where second occurring.
– Then I move -
That the words “ part of the Commonwealth,” line 9, be left out.
My object is that the States’ rights to their own land may be preserved. The amendment foreshadowed by Senator Clemons is the same as that which has been suggested and put in writing by honorable senators on this side.
– What does the honorable senator intend to achieve by omitting the words “ part of the Commonwealth “ ?
– What he will achieve if he succeeds is that the Commonwealth will not be able to intervene anywhere.
– It would have been perfectly clear if the words “ State or “ had not been left out. My amendment, as those words have been left out, will upset the whole paragraph. That was recognised by myself and others when the Minister’s amendment was moved, but I will still move my amendment to test the question whether the whole paragraph should remain in the Bill or not.
– The honorable senator wanted the Commonwealth to have power to prohibit transfers from State to State.
– I never said that I wanted it, but I was willing to allow that power to remain, because I saw advantages in prohibiting movements of quarantinable goods, animals, or plants, between State and* State. That, however, has now been taken out of my hands.
– Senator Macfarlane really desires to destroy the whole of paragraph g. I understood from him previously that he desired the Commonwealth to have power to quarantine a State as against its neighbouring States, although he would not” allow the Commonwealth power to go into a State and quarantine a portion of it. The honorable senator will not, if his amendment is carried, make the paragraph meaningless, but .may give it even a wider scope than was contemplated. It would then read as follows -
Prohibit the removal of any animals, plants, or goods, or parts of animals or plants from any part of the Commonwealth in which any quarantinable disease or disease affecting animals or plants exists to in which the disease does not ‘ exist.
That might be taken as a power to prohibit the removal from any part of the Commonwealth where quarantinable disease exists of animals, plants, or goods to anywhere else in the world. Therefore, the carrying of the amendment would not signify the desire of the Committee to negative the paragraph altogether. If the honorable senator had moved to omit the “words “ part of the Common wealth “ where they first occur in the paragraph, he would, if successful, have .rendered the clause meaningless.
Senator ST. LEDGER (Queensland) plimented upon raising the question of how far the Commonwealth is to take powers to interfere with State administration.
– The amendment does not raise that question, although one or two honorable senators have discussed it in anticipation.
– In considering the Bill in Committee we must be particularly careful, as I said upon the second reading - and in this I indorse the attitude of my leader, Senator Symon - not to interfere unnecessarily with State jurisdiction. Honorable senators from Queensland have been requested by the highest State authorities there to prevent any conflict between Commonwealth and State Administrations in this matter, and to preserve as nearly intact as we can the internal administrative powers of all the States.
– We have not reached that question yet.
– When it is raised I shall take the opportunity to discuss it.
– I move -
That the following words be added to paragraph g : - “ Provided That the power to prohibit hereby conferred shall not extend to the removal of any animals, plants, or goods, or parts of animals or plants from one part of a State to any other part of the same State.”
I desire first to enlarge the powers of the Commonwealth with regard to quarantine, if that is in any case desirable. I think we should exercise quarantine powers first of all with regard to arrivals from oversea of persons, goods, animals, and plants, and in the next place with regard to InterState transfers ; that is to say, the transfer from any one State to any other of persons, animals, goods,, or plants. My amendment would not in any way interfere with that. It has been suggested that if we alter this clause we shall endanger the power of the Commonwealth’ to prohibit the removal of infection, from a specified part of one State to any other State, but my amendment would not affect that in any way. For instance, it would not affect the power to prohibit the removal of animals, goods, or plants from an indicated area around ‘Brisbane to the State of Victoria, New South Wales,, or any other State in the Commonwealth. The Commonwealth authority would still have full power to carry out that prohibition. The effect of my amendment would simply be to remove from Commonwealth control the prohibition of the removal of infected animals, plants, or goods from one part of a State to another part of the same State. Beyond that it would not go, and I cannot see how its “acceptance by the Government would injure the Bill, whilst it would do much to prevent conflict between the Commonwealth and States authorities. I point out, further, that the amendment refers only to paragraph g of the clause, and so would not be applicable to persons. It would provide merely for a reservation to the State authorities of the power to deal with the question of the removal of animals, plants, or goods from one part to another of the same State. I have heard it said that it is desirable to give the Commonwealth Government an over-power in connexion with this question, and make it a kind of Court of Final Appeal, to which matters of this kind can be referred. I understand that Senator Best regards the power conferred in paragraph g as providing practically an additional Court of Appeal from a local health authority. I believe that is not necessary. Under existing conditions, in nine cases out of ten, these matters are dealt with by some local Board of Health, deriving its powers under a State Act of Parliament, which reserves to the State Government an authority over the local Board in case it does not discharge its duties properly. I think that appeal is all that is necessary to secure the efficient operation of internal quarantine. The further Court of Appeal desired by the Government in these matters would, I think, for many reasons, be undesirable. A practically analogous con,dition of things has already given rise to a certain amount of friction in the Commonwealth, in the opportunity afforded to litigants to appeal over the head of a State Court to the High Court- What the Government propose would enable a local body to ignore the State authority from which it derives its powers and appeal directly over the head of the State authority to the Commonwealth Government in connexion with quarantine in respect of animals, goods, and plants. That is certainly not a desirable provision, if we wish to promote harmony between the Commonwealth and States authorities. I should not submit my amendment if I thought that it would render our quarantine powers in any way less efficacious. I think that the cases to which the amendment would apply might, -with perfect safety, be left to the control of the local authority, and, should there be any failure on the part of that authority to properly discharge its duty, to the authority of the State Government itself.
– It would be impossible to discuss the amendment which has just been moved bv a reference only to the arguments adduced by Senator Clemons, because a number of honorable senators, in speaking to a previous amendment, anticipated the discussion pertinent to this. I point out that this is a quarantine measure; and notwithstanding the fact that one honorable senator who anticipated the present amendment suggested that provisions of this kind would be more appropriate in a State Health Act, it is for us to give the Commonwealth Government the fullest and amplest powers to prevent not only the introduction of disease into the Commonwealth, but also its spread if it is introduced. In paragraph g power is sought to be given the Governor-General to prohibit the removal of animals, plants, or goods, or parts of animals or plants, from any part of the Commonwealth in which any quarantinable disease or disease affecting animals or plants, exists, to any other part of the Commonwealth in which the disease does not exist. Senator Clemons has moved as a proviso -
That the power to prohibit shall not extend^ to removals of any animals, plants, or goods, or parts of animals, plants, or goods, from any part of a State to any other part of the same State.
I may say that the prevention of the removal of -animals or plants or parts of animals or plants is not the only means of preventing the spread of a disease. It might be that it would be possible in some way or another to prevent- the introduction of animals, goods, or plants, or parts of animals or plants, from, say, a certain area of the State of Queensland in. and about Brisbane into the State of New South Wales, or any other State. But, as I said in introducing the measure, and have since said in Committee, it should not be the part of the Commonwealth authority to wait, so to speak, upon the border of any State, and say”, “ Until there is a concrete attempt to transfer infected animals, plants, or goods from’ one State across the border line to another, we shall hold our hands.” We should have the power if the need arose to go into a State and prevent a disease from spreading gradually - not necessarily by any actual operation on the part of man in the nature of a transfer of animals, goods, and plants, but by the ordinary processes of contagion - to the border line of another State, if there was danger that it would do so, and would cross that border line into that other State, whether with the intervention of any human agency or not.
– The’ Commonwealth Government is to be the judge of the danger.
– They cannot be as competent to judge in such matters as the State authority.
– I Could give honorable senators a parallel from the Health Act of every State in the Commonwealth. Under every State Health Act the’ central health authority reserves to itself the power to .enter the districts intrusted to local health authorities whenever a sufficient occasion arises - of which the central authority must be the sole judge - and the condition of affairs in the district is such as might lead to disastrous consequences in the district itself, or menace adjoining districts. I can quote an instance from Tasmania. Not long ago there was an outbreak of small-pox in one portion of the State, and whatever might be the merits or demerits of the system adopted for stamping out the disease, some little time afterwards the Parliament of the State passed what is known as the Public Health Act, in which, after providing for local Boards of Health for districts throughout the State, a chief officer of Health for the whole of the State was provided for, and in section 22 of the Act it was Drovided that -
In cases of special emergency whereof he shall be the sole judge, the chief health officer may, without any report or prior recommendation as’ aforesaid, himself exercise at the expense in all things of the local authority any function or power which might lawfully be exercised by the local authority for the purpose of doing anything to prevent or check the spread of any dangerous or infectious disease.
That provision was debated at length in the Tasmanian Parliament, and the reason which commended it to the majority of the members of both Houses of that Parliament was that there might, at any time, arise a very grave emergency in which a local authority charged with the responsibility of administering health matters might be either unable or unwilling to do what was necessary, and its inability or unwillingness in the emergency might produce disastrous consequences within the district itself, and menace other districts.
– There is no analogy between the two cases, because in the case the honorable senator refers to the local authority derives its power from the State Parliament, and in this case it cannot be said that the State Parliaments derive their power from the Federal Parliament.
– Exclusive power to legislate on the subject of quarantine is vested in the Commonwealth Parliament.
– I have no wish to imperil it.
– There might be some confusion in the minds of honorable senators as to whether or not the States authorities would hereafter have any power in this matter. They will have what are known as the ordinary police powers inherent in every community for the protection of the health, lives, and property of’ their own citizens. I made it clear in introducing the Bill that our object was to assume’ a power which would enable us to deal with an outbreak of disease in a State which menaced the inhabitants of another State without waiting until the actual moment’ when the disease crossed the border,, or without waiting for the actual transfer across the border, from the infected State to a State in which the disease did not exist, of infected animals, plants, or goods.
– The eminent medical authority of the Commonwealth is to be the judge of plant pests. If we are to be guided by the report of the recent ‘Conference - -
– That Conference dealt with a special matter. They suggested to the Government that a special conference should be held of representatives versed in the diseases of animals and plants, who should report” to the Government.
Senator-Colonel Neild. - Does the honorable senator know of any Act in existence in any part of Australia that deals with human beings, the dumb creation, and plants, under one set of sections?
– I am not aware of any Act in any State that does that. But that is no reason why the Commonwealth, in exercising its Legislative powers as to quarantine under the Constitution, should not pass a comprehensive measure dealing with all these matters. If this amendment is adopted, it will necessitate dealing with each “State as a single entity in reference to quarantine.
– With regard to its internal management - yes.
– And as regards the transfer of infected goods from one State to another.
– It reserves the fullest power to the Commonwealth to deal with Inter-State transfers.
– Yes ; but as a necessary corollary to that, the Commonwealth, if it wanted to prevent the transfer of infected animals, plants, or goods from one State to another, would have to quarantine the whole of the State in which the disease was.
– The Commonwealth could quarantine a specified area.
– We could not enter into a State, and quarantine a par- ticular area.
– We have left that power in the Bill.
– But we make a proviso that the power to prohibit shall not extend to the removal of any animal or plant to any other part of the same State. Take Queensland, for instance. That State has generally been regarded as consisting of three divisions, northern, central, and southern. Suppose that central Queensland were an area which the Commonwealth Government decided to make a quarantine area so as to prevent the exportation of animals, plants, or goods to any other State. We might, for our own purposes, declare the boundaries of that quarantine area; but, “riot having the power to quarantine, central Queensland as against northern and southern Queensland, the very articles which we desired to prevent might pass from central Queensland into the north and the south, and come thence into the other States.
– The Government could always quarantine one State as against another.
– That is just what I “say; it would lead to the quarantining of a whole State. We might say that, from a certain portion of a State, no animals, plants, or goods should go into another State. But. not having the exclusive power to quarantine that area as against the rest of that State, the very goods that we desired to prohibit might pass into a nonquarantinable area of. the same State, and thence into other States.
– I will admit that, under certain circumstances, they might pass from one part of a State into another ; but the Commonwealth Government would have power to stop them from going from one State into another State.
– The only way in which we could effectually prevent goods from passing from a portion of a State into another State would be by quarantining the whole State.
– Not necessarily ; that is assuming that the State itself would do nothing.
– It might, or might not. The State might be guilty of absolute inaction.
– It is hardly fair to assume that a State would be so careless.
– I am guided in my opinion bv what I know of what has been taking place in the States. New South Wales complains bitterly that South Australia has excluded her fruits. South Australia complains of Western Australia, and Western Australia of South Australia, in regard to the transfer of animals. This kind of thing has been going on for a considerable time. Each State - motived, no doubt, by the desire to protect its own belongings - rigidly excludes what are considered to be suspected animals, fruits, &c. If there were one authority to deal with these matters, we should regard the whole area of the Commonwealth as undivided, and should carry out quarantine on uniform principles. That, I think, would conduce to the better interests of the Commonwealth at large, and make for the maintenance df that freedom of trade and intercourse throughout Australia which the Constitution is supposed to guarantee.
– The honorable senator has said that these powers are to be held in reserve?
– But now he tells us that they are to be used straight away.
– I have said nothing of the kind. Not only do I say that they are to be held in reserve, but that the Bill itself makes such express provision that the Government shall not exercise these powers unless in cases where it is satisfied that the exercise of them is necessary to prevent the spread of disease or pests affecting animals and plants beyond the boundaries of a State. I do not think that powers of this kind would be likely to be exercised by any Governor-General in
Council except in cases of extreme emergency, where it .was patent that they ought to be exercised to prevent the spread of disease.
– Does the honorable senator consider that there is any necessity for urgency in the cases which he has quoted ?
– I do not know enough about the merits or demerits of any of the cases to which I have referred. I have simply referred to them as illustrating the fact that the States themselves have not worked in harmony in the administration of their quarantine laws, but that recrimination has been going on between them. I am not in a position to speak as to the merits of any particular case, because I have not been able to go into them sufficiently. I do know, however, that the administration of quarantine law by. the States has been the cause of recrimination, and I think that a great deal of that would be avoided if the States knew that there was a reserve power in the Commonwealth that could be exercised for the maintenance of that great principle of the Commonwealth - freedom of trade and intercourse.
– It would have a salutary effect.
– Such a salutary effect that, there might be no need to exercise the powers at all. The amendment, however, would give to the States power to ignore our quarantine, and would throw upon the Commonwealth authorities the obligation of quarantining the whole of a State as against the other States in the event of disease breaking out.
– Senator Keating, at the beginning of his speech, reminded us of the powers exercised b> the States Boards of Health, and gave an instance where the overpower of a State became of value, and was effective for the prevention of disease. I interjected that that analogy was by no means a fair one, It overlooks our circumstances entirely. It would be a perfectly sound analogy if the power that the States at present have to deal with quarantine had been created by the Commonwealth. But we know that that power has not been given to them by the Commonwealth. It is a power that they possess independently of the Commonwealth. I will, admit that if there are members of the Senate who think that unification is desirable,, this is one step towards it. If we take away from the States every power to deal with their own purely internal affairs in matters of health and disease, whether affecting animals, plants, or human beings, we are rapidly approaching a state of unification.
– The sooner the better.
– I am by no means challenging the right of the honorable senator to hold and express his personal opinion. Personally, my view is in the opposite direction. See what that analogy means. Senator Keating said that if we adopted this amendment, and gave to the States power to deal with quarantine within their own borders-
– This only refers to quarantinable diseases, and does not touch any other matters of local health administration. Therefore, the Commonwealth cannot supersede the local health authorities.
– I recognise that it only deals with quarantinable diseases, and that we cannot entirely supersede the local health authorities. But the clause will enable us to supersede them in part > and my argument still holds good with regard to the broader question of unification. Senator Keating also argues that if we adopt this amendment whereby the States would have power to deal with “the removal of infection from one part of a State to another, while we reserve to the Commonwealth the power of dealing with the removal from a State to another State, we shall find that our power of preventing removal from one particular part of a State to another State is practically of no use - that in the end it will be simply a power to prevent the removal of animals or plants from one State to another. But let me point out that in practice that will not be the result. Suppose that a quarantinable disease has broken out in North Queensland. Senator Keating says that because the Commonwealth has not the power to deal with the removal of that disease from North to say Central Queensland, it will spread until it reaches South Queensland, and that in the end we shall have to exercise our power in order to prevent the removal of the trouble from one State to another. But what will be the real position? If my, amendment is carried the Commonwealth will still have the power to proclaim that particular area in North Queensland a quarantine area. It can declare by proclamation that nothing shall be removed from a specified area in queensland to any other State. What will oe the position of Queensland? It will know that if precaution is not taken to prevent the spread of the disease from the north to any other part of its territory the Commonwealth will extend its proclamation, and that its next communication from the Commonwealth will be a prohibition against the removal of anything not merely from the north but from the north and the centre, and so on until the disease reaches the south. In practical politics, when these questions come to be tested, I do not think that any honorable senator will deny for a moment that the very fact that the .Commonwealth has said to Queensland, “ Your northern part is a quarantine area,” will impel that State, for its own sake, to make every effort to prevent that area from being increased, in fact to prevent its whole territory being declared infected. That will be the practical result of the operation of my amendment. As a matter of fact, by reserving this power to the States, we shall be offering them a strong encouragement, or if my honorable friends like, a strong determining reason, why they should grapple with the infection at once. Each State will know that, if it does riot deal stringently and determinedly with a particular area which the Commonwealth has proclaimed to be infected, it may have the whole of its territory so proclaimed. No State wants that to be done, because it would involve injury, loss, and suffering to itself. The very fact that this power will be reserved to the Commonwealth is likely to operate as a strong inducement and encouragement to every State authority to prevent the spread of infection. Instead of my amendment doing any harm to the Commonwealth, I believe that it will do good. Instead of its weakening or impairing in any way the efficacy of State action, I think it will strengthen such .action in every direction, and the reasons I have given are such as will appeal to’ any State. That being so, I cannot see whyl the Government do not accept the amendment. The only reason I can imagine is that they still desire, so to speak, to be the overlord in everything. I want them to take complete control where they can, and where it is desirable, but I do not wish them to stand aloof waiting until they can intervene and assert their superior position not merely against a local authority but against the whole of the State. I do not care to put the Commonwealth- in a position tn which it can hold itself in terror, so to speak, over a State.
– By his amendment Senator Clemons has, I think, raised the whole crux of ‘ the Bill, and that is whether or not the Commonwealth shall deal with quarantine administration in the States. In one part of clause 13 we have agreed that the Commonwealth shall have the power to prevent the removal of goods, animals, and plants from one part of the Commonwealth to another. If the amendment of Senator Clemons is carried it will put the Commonwealth in rather a curious position. Whilst the Commonwealth will have the power under one provision to prevent the removal of vehicles for the conveyance of disease from one part of the Commonwealth -to another,, presumably from one State tq another, it will not have the power to prevent the removal of such vehicles from one part of a State to another part of a State. That I suggest is rather an anomalous position in which to place the Commonwealth. Surely one part of a State is one part of the Commonwealth ! If we empower the Commonwealth to prevent the removal of animals and plants which we know are infected with disease from one part of the Commonwealth to another, how are we going to delineate or draw a” line of demarcation in a particular State? Suppose that at Maryborough, in Victoria, a farmer has pigs which are infected with a disease, and which he desires to sell -at once. If this amendment were carried the Commonwealth cannot prevent the removal of the animals from Maryborough to Geelong, in Victoria, but it can prevent their removal from Victoria to Western Australia. Victoria. is ‘one part of the Commonwealth and Western Australia is another part. Surely, on the same line of reasoning, we can say that Maryborough, in Victoria, is one part of the Commonwealth and Geelong another part. Why should we cripple the Commonwealth in that direction?
– The animals can be ordered to be destroyed if they are diseased.
– That is a drastic remedy to which it might not be necessary to resort. Again the question of reserved powers has cropped up. I believe that if the clause is passed as it is, the Commonwealth will not at any time unnecessarily interfere with State administration of health affairs. But if it considers that the authorities of a State are not taking proper measures to prevent the- spread of a disease, it ought to be in a position to intervene and assert its rights. At the present time, one State can set itself against another State, and you, sir, in your second-reading ‘speech, illustrated that very forcibly in connexion with the alleged introduction: of the disease of surra to Western Australia. Why should one State have the power to ostracize any other State?
– Has not the honorable senator the light to bar his door against burglars?
– On this occasion it is just possible that a State may be the burglar, and I want the Commonwealth to be the housekeeper, and to bar the door against the burglar. I am asked to decide whether or not the Parliament shall exercise its quarantine powers under the Constitution. Senator Symon has referred to the definition of the word “ quarantine,” but it was a far-fetched illustration which he gave. I shall support the clause as it stands, because I believe that if the amendment were carried it would place the Commonwealth in a false position.
– I desire to point out the clanger which may arise if the amendment is not accepted. There is no doubt that under this Bill the Government want to acquire for the Commonwealth express, implied, and reserved powers in regard to quarantine. They want to get that fact distinctlylaid down by asking the Committee to reject the amendment.
– The honorable senator is jumping to a conclusion.
– If the Government refuse to accept the amendment, than, in this clause, they want to take at one sweep all expressed, implied, and reserved powers. Let me point out the consequence of doing that.. If the Bill is passed, the Commonwealth will have taken over all its express powers, and will have machinery to apply at any moment its reserved and implied powers. The control of health matters will have been practically taken out of the hands of the States, and for that reason they may throw up the machinery for the regulation of health. That is the position in which the Government want to put the States. In answer to my argument on some constitutional points, it was made clear by the Minister of Home Affairs that in this Bill the Government wish to take every tittle of power they canget. The object of the amendment is to convey to the Commonwealth only the express powers, and to indicate that some powers are left to the States. The effect of the amendment will be to prevent the Commonwealth from interfering with the administration of health affairs by the States. If the Commonwealth Government desire to take express, reserved, and implied powers, to be exercised against the health administration of the States at any time they may choose, surely the Committee is entitled to hear from the Minister a strong reason why the health and quarantine powers which, under local Acts, are reserved to the States, should be withdrawn. Senator Symon has asked the Government to state what charge they have to make against the health administration of the States. Although the debate has been continued from this side, and the Minister has had more than one chance to reply to that challenge, he has not been able to bring forward one charge of negligence against the States.
– We do not allege negligence.
– When the Government are seeking to get, with the express and implied powers, a drag-net provision, they are practically saying to the States, “ We do not care two straws about your Health Acts or health administration, your elaborate appliances and machinery, your scientific investigation, and at any moment we chose to intervene we shall do so.” If the Government can constitutionally exercise under the word “ quarantine “ express, reserved, and implied powers of every kind as against the Health Acts of the States, we are entitled to know from the Government why they seek to be allowed to diminish at any time they choose the powers of the States. I shall give an instance to show how worse than dangerous, how utterly stupid, it would be to allow the Federal Government to exercise extreme powers of the kind. They might be called upon to deal with a case with which they really could not .deal. A few years ago a most virulent form of bubonic plague broke out in a town in Queensland, .some distance from Brisbane. The local health officer and doctors at once diagnosed the disease correctly. That crisis had to be dealt with in less than twenty-four hours. Dr. Ham, the health officer in Brisbane, when the particulars were communicated to him, said “ If we do not stop this at once it may spread not only throughout Queensland, but over the whole of Australia.”
– If the amendment is carried, we should have in such a case to quarantine all Queensland.
– I shall show how effective the health machinery of Queensland was, and how dangerous it would be to leave a case of that kind to be’ dealt with by an authority in Melbourne. If the outbreak had escaped the notice and vigilance of the Queensland authorities, Queensland, and in fact all Australia, might have been exposed to a most dangerous form of bubonic plague. The Brisbane health officer called his nurses together and said to them, “ This is a matter of life or death for the patients. The cases will require the greatest skill and attention. If you undertake the cases you will be taking your life in your hands. If you go, you must go at once, for the sake of the health, not only of that town and of Queensland, but of Australia. Will you undertake the duty ?” One nurse - I do not know her name, but she is entitled to be enrolled amongst the heroines of Australia - said, “ It is my duty to go. ‘ ‘ She went straight away, the patients were isolated, and I believe all of them were saved, but the nurse paid for her devotion with her life. The health administration of Queensland is as efficient to deal with diseases of human beings, stock, and plants as even the Commonwealth Government could reasonably expect it to be.
– The same applies to all the States.
– I do not assumethat the health administration of any other State is less effective than is that of Queensland. As there is vigilant, strong and intelligent exercise by the States of their health powers, what need is there for the Commonwealth to step in at this stage? All that Senator Clemons’ amendment asks is that we should respect the existing State machinery. The States have at their command more Acts than we can pass, and can deal with health matters as we cannot deal with them. They can use their Stock Acts and Vegetable Diseases Acts, with regard to which they have exclusive powers. Why, then, should the Commonwealth step in and say, “No, we shall pass an Act which we can put into force at any moment and thrust your machinery aside?” What will be the condition of affairs if the States anticipate the Commonwealth and say, “ Take the whole matter over and do what vou like with it?” Does any honorable senator contend that the” Commonwealth authorities in
Melbourne could deal better with a sudden outbreak of disease in any part of Australia than the State authorities could?
– No honorable senator has made that statement.
– The honorable senator by that interjection gives the strongest reasons why we should accept the amendment, and let the States understand definitely that their internal health powers are not to be interfered with. With the exception of the case mentioned by yourself, Mr. Chairman . of camel disease in Western Australia, it has not and cannot be shown that the States have been negligent in their administration.
– I thought the honorable senator started off bv praising the Bill.
– That remark is quite irrelevant. We are quite right in passing uniform legislation with regard to quarantine. While seeking to protect the health of the whole of Australia by means of quarantine, we can be perfectly consistent in insisting at the same time that the Commonwealth should respect the elaborate machinery of the States, and recognise the successful work which the States have done in preserving their own health within their own borders. I hope that before the amendment is rejected, the Committee will take into most careful consideration the probable results of adopting that course. I fear that if the amendment is rejected the States will throw the whole of their machinery into the hands of the Commonwealth Government. Is that to be desired ? The Minister has stated more than once that we may take it for granted that the Government will not use these powers except in some extremity.
– Let us take a division.
– I have often heard it said that, no matter how strong a speech may be, it never turns a vote. Perhaps the continuance of my speech may only irritate. I have effected my purpose, and if the Government wish a division to be taken I shall say no more.
– Before the amendment goes to a division I wish to say a few words. Senator St. Ledger’s arguments might legitimately have been used against the Commonwealth taking over quarantine at all, although it is distinctly one of the functions delegated to the Commonwealth. We should be wantingin our duty if we did not legislate on all the subjects on which it was intended that we should legislate. Senator St.
Ledger desires the Commonwealth to take over only a portion of the department of quarantine. That would be a distinct mistake. The Commonwealth must take over the whole, and with it the responsibility of its administration; although I know that the Commonwealth will have considerable difficulty in its. administration. In my short speech on the second reading I expressed the hope that the Government would view favorably any amendment which would enable the Commonwealth to work in a friendly spirit with the local authorities.
– This is not a friendly spirit.
– The honorable senator is not justified in saying so. I do not believe that the Commonwealth will administer in a hostile spirit all functions which it takes over from the States.
– Belief is very easy sometimes.
– It is unAustralian to think that that will be so. In any case, the present Government will not always be in office. We have no right to assume that, if the administration of quarantine is handed over to the Commonwealth, it will always be in the hands of a hostile Government, or of a Government which would be constantly endeavouring to lessen the powers of the States.
– The Government want to enforce powers against the wish of all the States, so far as I know.
SenatorMULCAHY.- Australia has always a remedy by turning that Government out and getting a better one. In a great many cases the Commonwealth will have to depend absolutely upon immediate local administration, and must be prepared to devise some kind of machinery which will be promptly applicable to sudden epidemics. We must have the means , of immediately applying the laws which we make. The only way in which that can be done is by showing proper and friendly consideration to the States ‘Governments and the local authorities working under them. If we are to hand over to the Federal Government only half of the question of quarantine, and only half of the responsibility of its administration, we had better not hand over any of it. We have had cases even in Tasmania where an epidemic in a particular locality has resulted in the quarantining ofthe whole island. Queensland is twenty-six or twenty-seven times the size of Tasmania, and does it not seem monstrous to perpetuate the farce of practically isolating the whole of that great State because of a local epidemic in some remote corner of it ? Is not that really what it is now proposed that we should do? It is the duty of the Parliament of Australia to see that the Government of Australia exercise their powers judicially and with proper respect for the States. If we are not capable of doing that, let us declare that we do not believe that Australia will ever have a Government which will administer these powers fairly, and let us vote against all such Bills as this. I like the Bill, although in certain parts of Tasmania powers previously taken under the Commerce Act have made the people suspect that the Government would sometimes be disposed to ride roughshod over local interests. But be that as it may, quarantine is one of the legitimate subjects which ought to be handed over fully, and with it the responsibilities attaching to it, to the Commonwealth.
– Two days have been taken up with the discussion of this question, and a large number of honorable senators have refrained from taking part in the debate in order to allow a vote to be taken Senator St. Ledger rises this afternoon and gives us a whole rigmarole about what happened in Queensland at the time of the bubonic plague. I was there, and know a good deal of what happened. I know that the central authority had to step in, in spite of the protests of local authorities that were charged with the responsibility of doing the work, and put men in to carry out the law. Senator St. Ledger tells us that a particular place was struck with bubonic plague, that the health officer in Brisbane was wired to, and that a terrific commotion ensued. I do not deny that some people had a considerable amount of work during that epidemic, but, at the same time, where the local authorities would not do the work intrusted to them, the State authority had to step in. It is exactly the same in this case. Senator St. Ledger has said that if we conferred on the Commonwealth Government the power proposed under this Bill, in all probability the State Government of Queensland would absolutely decline to have anything further to do with the regulation of health matters in the State, and would throw the whole of the responsibility upon the Commonwealth. That can hardly be said to be a compliment to the State authorities of Queensland. I do not believe they would do anything of the sort. I do not believe that they are so mean and contemptible as to do what would stamp them as unfit to occupy a public position in any part of the civilized world. It is absurd to say that the States authorities’ would seek to evade their responsibilities simply because the Commonwealth Parliament, in pursuance of a power intrusted to it by the whole of the people of Australia, sought to provide, by legislation, for a reserve power to enable, the Commonwealth Government to carryout the necessary work for the preservation of public health, in the event of a State authority neglecting to do so. I know something of the people ‘ engaged in the administration of the Health Act in Queensland, and I am sure* that, whatever provisions we may include in this Bill, they may be trusted to carry out the duties imposed upon them by the people whom they represent. But let us deal with this ques tion from a practical point of view. I have already explained that, not very long ago, .we had the New South Wales Government cutting the State of Queensland up into sections, and imposing quarantine in the State just as they thought fit. Senator Neild has said that they dealt merely with, the country just beyond the border between the two States, but as a matter of fact they cut up the whole of the State into sections, and declared that no stock from Queensland should be allowed to cross the border into New South Wales unless they had undergone quarantine for a certain time within the sections which had been marked out.
– We could deal with that matter.
-We could not if the amendment were agreed to. The ‘tick pest was spreading down the coast of Queensland, and although the Queensland Government, by the expenditure of public money, did their best to check the spread of the pest, there was a scare on the subject in New South Wales, where the people thought that the Queensland Government were not doing all that they might, and an effort was made to induce the Government of New South Wales to practically quarantine the whole of the State of Queensland. They did not do all they were asked to do, because that would have had the effect of injuring their own markets, but they divided the State of Queens land into certain areas, and insisted that stock intended for New South Wales, even though they came from Cape York or the Gulf country, should undergo a certain period of quarantine, in the different districts they had marked out, before being taken- into New South Wales.
– The amendment would -not alter that.
– Under the amendment ‘ it would be possible for the authorities in New South Wales and Victoria at any time to. bring pressure to bear on the Commonwealth Government to compel them to quarantine another State. That is the sort of thing I wish to avoid. I wish to prevent any friction. I believe the Commonwealth and States authorities can work hand in hand, and I believe it is necessary that the Commonwealth Government should possess a reserve power, which they would not attempt to exercise without very good reason, to step in and prevent the authorities in any State doing something which would be detrimental to the interests of the people of another State or of Australia as a whole.
– I opposed the second reading of the Bill, because I thought that the Government were proposing to go too far. I was quite prepared to support a Bill which would give the Commonwealth Government power to control oversea quarantine, but this Bill goes very much further than that. I should .like to know what State in the Commonwealth has asked that these powers should be given to the .Commonwealth Government. I do not know of any State in which such a measure as this has been asked for. We have been told that the powers proposed to be given to the Government are provided for in the Constitution. Thar, may be so, but because we are given the powers we are not therefore bound to exercise them. I object to the power proposed to be conferred under paragraph g of this clause. Many representatives of the different States have spoken strongly against this Bill, and it would appear that the Senate is going to force upon the States a law which they do not want. How that can be said to be working amicably with the States authorities, I am at a loss to understand. As honorable senators appear to be anxious to adjourn, I shall not further detain the Committee. I intend to vote for the amendment.
Question - That the words proposed to be added be added - put. The Committee divided.
Majority … … 9
Question so resolved in the negative.
Senator KEATING laid upon the table the following paper -
Lands Acquisition Act1906. - Regulations. - Forms for use under Act. - Statutory Rules 1907, No. no.
Motion (by Senator Stewart) agreed to-
That two weeks’ leave of absence be granted to Senator Givens on account of urgent private business.
Motion (by Senator Best) proposed -
That the Senate do now adjourn.
– Irise to make a personal explanation with regard to the statement made this morningin the Senate by Senator Neild, and which read as follows-
– What is the honorable senator quoting from?
– From a statement madeby the honorable senator this morning.
– Is he quoting from a newspaper, or what?
– I shall quote the honorable senator’s actual words.
– Who took them down ?
– The honorable senator’s words were as follows -
I desire very briefly to make a personal explanation. It was charged against me yesterday - by Senator Russell, of Victoria, I think - that a letter which I read here was not from the Agricultural Implement Makers Society, but had been prepared by their solicitor, Mr. Joseph Woolf. I have in my hand acopy of a letter sent to me by Mr. Woolf, the original being addressed to Senator Russell, who, unfortunately, is not present, denying that he wrote any word of the letter in question. I wish to make that statement in refutation of the accusation made against me that I had read a document which had been prepared by a solicitor, and improperly represented to the Senate that it was prepared, as this letter now positively affirms, by the society whose stamp it bore.
The kernel of the statement which I made yesterday is containedin the following words -
I inquired also by whose authority the stamp of the Implement Makers’ Union had been put upon it. It was for that reason that, when Senator Neild commenced to quote from the document, I asked him who had signed it; because I think that, when a senator quotes from a document which professes to be issued by a great union of workers, we have a right to know whether he has satisfied himself of its genuineness. The agent whoapproached me with regard to this matter last evening requested me to try to get a certain clause in the Bill recommitted. When I inquired who had written the circular which he handed to me, he informed me that it was written by Mr. Joseph Woolf. I have not the slightest doubt that Senator Neild obtained his copy from the same source. The press cuttings which Senator Neild has quoted were also sent along to other senators by the same gentleman or his agent.
Now I desire to take very strong exception to the last statement contained in Senator Neild’s remarks -
As this letter now positively affirms, by the society whose stamp it bore.
What Senator Neild relied upon in practically giving a flat contradiction to my statement, was a passage in a letter sent to him by Mr. Joseph Woolf, who said -
From Mr. Murray Smith’s own statement to you, you must be aware that I did not do so. At the same time I quite sympathize with every word therein.
Senator Neild, therefore, left it to be’ inferred that the statement which I made in the Senate yesterday was made recklessly, and that I could not substantiate it. I have risen, therefore, for the purpose of putting myself right . with the Senate. Senator Neild received a document which he represented to the members of the Senate to have been issued by the Agricultural Implement Makers’ Society. That document was handed in to Senator Neild in this chamber-
– That is not a fact.
– I pint out to the honorable senator that he is not in order, under cover of a personal explanation, in making an attack upon another honorable senator. I have no objection to his refuting any statement made concerning himself. But he will not be in order in making an attack upon another senator.
- Senator Neild has affirmed that the document from which he’ quoted was issued by the Agricultural Implement Makers’ Society. Shall I not be permitted to challenge the correctness of that statement?
– The honorable senator will be in order in making a statement as to any matter with regard to which be may have been misrepresented. He will also be in order in ventilating his own position. But when an honorable senator rises to make a personal explanation, his statement is not afterwards open to debate. If, of course, a senator has been misrepresented, he will have an opportunity of making his own position clear. But in doing so, he will not be in order in reflecting upon previous speakers.
– May I point out that the statement made this morning by Senator Neild amounted to a charge against me?
– If the honorable senator feels that a charge was made against him, he may explain his own position. There is no objection to that. But I wish him to realize that in doing so he cannot make a charge against another senator.
– He can substantiate his own previous statements.
– The statement which I made yesterday was that the document quoted by Senator Neild was not issued by the Agricultural Implement Makers’ Society. Senator Neild has twice subsequently affirmed that it was issued by the society. Surely that amounted to saying that I was guilty of an untruth. Am I not permitted to reply to that charge?
– The honorable senator will be quite in order in showing that he has been misrepresented.
– What I desire to state is that an individual, not acting on the authority of the Agricultural Implement Makers’ Society, handed out two documents, one of which was received bv a gentleman who knew not whence it came. I received the other copy, and I knew where it came from. I knew that it was not issued on the authority of the society, as represented by Senator Neild. The gentleman who is so anxious to disclaim the authorship of the document in a communication sent to me makes this statement - -At the same time, I quite sympathize with every word therein.
It is quite evident, therefore, that the statement which I made did no injury to Mr. Woolf. If he indorses every word contained in the document, it was surely rather complimentary to him than otherwise to connect him with it. I wish once more to affirm that the document in question was not authorized by the society. There was no signature upon it, either of a member of the society or of a member of the trade. Though it is true that it bears the stamp of the society, that in no sense makes it an authorized document, because there has been no meeting of the society, either to express approval of the document or to authorize the issue of it. It was issued. I again wish to say, despite the statement of Senator Neild and the letters of Mr. Joseph Woolf, without any authorization from the Agricultural Implement Makers’ Society of Victoria. My statements regarding it were, therefore, substantially corrrect
.- This morning Senator Neild made a statement in support of the assertions which he made yesterday in regard to the noncollection of Excise on harvesters. I also rose, and made an explanation upon the same subject. When we met this morning three letters had been received by members of the Senate - one by Senator Neild, one by myself, and one by Senator E. J. .Russell. The letter was addressed to me. I opened it hurriedly, read it, and came to ‘the conclusion that it was intended for me. Knowing that the statements which it contained respecting myself were incorrect, I made certain assertions concerning a solicitor whose name has been mentioned in connexion with this business. Subsequently, in handing over the document to the Hansard staff, I found that it was not an original letter intended for me, but a copy of an original document which was intended for Senator E. J. Russell, although it was addressed to me. In fairness to the honorable senator, who has been criticised, I desire to make this explanation, and also to say that I have since received a communication from the legal gentleman in question in which he finds fault with my criticism of yesterday in regard to what I considered an unfair action upon his part. Whilst I do not wish to be unfair to this gentleman, I was not aware that he had done so much in certain directions as he asserts that he has done. In respect to some of the matters mentioned in his letter, perhaps my remarks were unfair, but I do not agree with all that he has said in his communication in respect of my having unjustly reflected upon his recent action.
Senator Colonel NEILD (New South Wales) [3.42].–
– Is the honorable senator going to withdraw ?
– I recollect once having seen a picture, the legendunder which was “ The Height of Impudence.” I do not exactly know why that picture presents itself to my mind at this juncture. Of course, I can quite understand the desire of members of a certain party to make things as unpleasant for me as possible. I. have made things sufficiently unpleasant for them, and they naturally desire to repay me in my own coin. If I were to remain silent upon the present occasion; it might possibly be thought that I had been stricken speechless under the remarks of Senator E. J. Russell. I merely rise to say that, while doubtless he thinks thathis assertions are true, of my own knowledge.I know that several of them are so singularly inaccurate that it would unduly delay the rising of the Senate if I were to expose them.
– Can the honorable senator tell the Senate the name of the person who sent him the circular?
– I can, but I will not oblige the honorable senator by doing so. He has not told us the source of his information, and in a parliamentary career extending over a period almost as long as the honorable senator’s entire existence, I have never been accused of divulging the names of persons who confer with me upon a public matter in a confidential way.
– The honorable senator does not know who gave him the circular.
– The honorable senator is again making an absolutely reckless statement. I do know who gave me the document. I cross-examined the person who gave it to me for some time yesterday. The statement that it was handed to me in this chamber is absolutely without foundation.
– Senator Russell meant that it was handed to the honorable senator in the Parliament buildings.
– It was not handed to me in these buildings. I made the fullest inquiry in reference to the origin of the document, and unless a reputable citizen-
– I rise to a point of order. When I desired to make a statement as to how the document came into the possession of Senator Neild, I was not permitted to do so. I therefore wish to know whether the honorable senator is in order in explaining how it came into his possession ?
– When the honorable, senator, as a matter of personal explanation, was alluding to a statement made by Senator -Neild, I pointed out that it was not competent for him to debate the matter, although he would be perfectly in order in explaining his own position in regard to it. In his remarks the honorable senator went beyond. a personal explanation - as he had a right to do- upon a motion for the adjournment of the Senate. But that did not justify him in attacking another honorable senator who has made a personal explanation. Senator Neild is now speaking upon the motion for adjournment, and is therefore at liberty to make his own statement in connexion with this matter, but he is not at liberty to attack another honorable senator who has made a personal explanation.
– Is the honorable senator in order in attacking me - in practically giving me the lie direct - if I am not permitted to reply?
- Senator Neild is not doing that. He is perfectly at liberty to make a. statement upon the motion for the adjournment of the Senate, and if he misrepresents the position of the honorable’ senator who has raised the point of order, the latter willhave a right to make a personal explanation ‘in order to explain his position.
– I wish to disabuse Senator Russell’s mind of the belief that I have made any attack whatever upon him. I merely say that he has been misinformed, and as he has attacked me, I am simply stating the steps that 1 took to ascertain the genuineness of the document that I used in this chamber. The honorable senator has evidently been misinformed on certain points. In some remarks which I read in the press to-day he was good enough to say that I had “fallen in.”
– I do not think that I have performed any acrobatic feat at all.
– The honorable senator is attempting one now.
– It is not necessary for me to say who has “ fallen in,” because, after all,’ that is merely a question of one’s personal view. But I think I have satisfied honorable senators that I quoted from the document in all’ good faith. Certainly, until I have definite reason for believing that I was misinformed - and I have no reason for thinking so at present - I shall maintain that the document, which is a very remarkable and important one, is as genuine as I have repre: sented it to be. Beyond that, I make no charge against any honorable senator, except that I say that Senator Russell is under a misapprehension upon a number of points. I make no accusation reflecting either upon his honour or his reputability as a member of this Chamber.
– I should like to know whether I should be in order in making a personal explanation, without comment, as to how the document to which reference’ has been made came into the possession of Senator Neild ?
– A statement by the honorable senator would not be a personal explanation unless he has been misrepresented in some way. Senator Neild has made a certain statement, and the Senate is bound to accept it. If Senator Russell has been in no way misrepresented, he has nothing to explain.
– This is a matter of some importance, and it seems to me that a good deal depends upon the proof or otherwise of the authenticity of the circular to which reference has been made. All I desire to point out is that the document is of an extraordinary character, in that while it purports to re present the views of an association, it is not signed by any official connected with that association.
– It seems to me that we have lost sight of the original charge. The charge which I originally made against Senator Neild was that he used a document-
– Order ! The honorable senator has already addressed himself to the question now before the Chair, and I have explained that if he has been misrepresented he may make a personal explanation, but is not entitled to do more.
-What I said was this-
– It is useless for the honorable senator to persist in enendeavouring to make a statement which I have ruled to be out of order.
Question resolved in the affirmative.
Senate adjourned at 3.52 p.m.
Cite as: Australia, Senate, Debates, 1 November 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19071101_senate_3_41/>.