4th Parliament · 1st Session
The President took the chair at 10.30 a.m., and read prayers.
– I desire to ask the Vice-President of the Executive Council if there is any chance of our not being called upon to meet until Wednesday next?
– I have taken steps to ascertain the feeling of the majority of honorable senators. There seems to be a general desire not to meet until Wednesday. I think it would be a pity to bring some honorable senators back for a few hours onTuesday evening, so, at the wish of honorable senators, I shall move later that the Senate, at its rising, adjourn until Wednesday.
In Committee (Consideration resumed from 27th October, vide page 5291) :
Clause 46 -
For the protection of the revenue against the undervaluation of land, if the Commissioner is of opinion that the owner of any land has, in a return furnished under this Act, understated the unimproved value of the land, to the extent of twenty-five per centum or more, the following provisions shall apply : -
The Commissioner may apply to the High Court for a declaration that the Commonwealth is entitled to acquire the land under this Act.
The application shall be heard by a Justice of the High Court, whose decision shall be final and without appeal ; and the owner of the land shall be entitled to be heard, (i.) is satisfied that the owner has understated the unimproved value of the land to the extent of twenty-five per centum or more ; and (ii.) is not satisfied that the undervaluation was not made with a view to evading taxation, he shall make the declaration applied for.
By the issue of a simple proclamation,the Government are empowered to acquireland, subject to all liens, mortgages, and other charges affecting it. Rights, of course, must be protected ; it would be monstrous if they were not. The provision continues -
The effect of the proclamation shall be to vest the land in the Commonwealth for the same estate or interest therein as the owner was entitled to at the date of the publication of the proclamation in the Gazette, but subject to all leases mortgages and other charges then affecting theland, and to entitle the owner to compensation therefor upon the basis of the improved value obtained by adding the fair value of improvements to the unimproved value stated in the return, together with the amount of ten per centum upon that improved value, by way of an allowance for compulsory dispossession.
What the Government propose is that if a man under-states the value of his land, they shall be entitled to acquire it subject to the payment of what they consider to be the fair unimproved value, plus, of course, the value of the improvements on the land, with the usual 10 per cent, for enforced resumption. Then it is provided that -
Minister of the Crown for the State in which the land is situate that the land has been so acquired ; and if within three months after the notification the Government of the States requires the Commonwealth to convey the land to the State, in consideration of the payment by the State to the Commonwealth of the sum payable by the Commonwealth to the owner, together with the costs of conveyance and any expenses incurred by the Commonwealth in regard to the land acquired, the land shall be conveyed to the State accordingly.
Under that provision the Government of the Commonwealth may acquire any land in any of the States on which an undervaluation has been made, if they get the order from the Court. If the State Minis- ter says that the State wants the land, the Commonwealth Government may say, “You are entitled to it if you pay the Commonwealth its value, and all the expenses incurred in connexion with it.” If the State Minister does not agree to do that, the Commonwealth Government may deal with the land as they think fit. They may devote it to a public purpose, or they may deal with it in any other way they please, and so evade the provisions of the Constitution as to the resumption of lands by the Commonwealth. I would ask, where is the need for a provision of this kind, in view of the fact that, as soon as the debt becomes due, the Crown is in a position to enforce its claim, without resorting to any steps of this kind? By the ordinary procedure upon a judgment the land might be sold in a public auction, through a sheriff of a State, and the Commonwealth Government might recover what was due to them in that way. The constitutionality of this method of the acquisition of land by the Commonwealth is questionable, and it might lead to the Commonwealth being saddled with a number of areas of land for which it might have no use. In my opinion, it would be far better to delete this clause. There are other pains and penalties which, under this Bill, may be inflicted upon a mau who has made an honest mistake.
Any person who by any wilful act, default, or neglect, or by any fraud, art, or contrivance whatever, evades, or attempts to evade, assessment or taxation, shall be guilty of an indictable offence.
It should be remembered that an indictable offence sometimes involves seclusion from the public eye for a term. The penalty provided in the clause before the Committee is ,£500, and treble the amount of the tax, or the forfeiture of the land in respect of which the offence is committed, or any part thereof. Under this Bill, the undervaluation of land to the extent of 25 per cent, is regarded as prima facie evidence of fraud. I shall not debate clause 68 at this stage, but I have cited it to show the further steps which may be taken by the Government to protect the revenue against any attempted evasion of the tax, even though it may be due to neglect or carelessness. In view of the terms of the Constitution, I say that we ought not in a Bill of this character to make provision for the compulsory resumption of land, and add to that all the other pains and penalties provided for. I have not a word to say in defence of the man who wilfully and fraudulently attempts to evade taxation. He should have to put up with all the consequences, but the penalty should be commensurate with the offence. But, under this Bill, a man charged with an offence is called upon to prove that he is not guilt)’, and the ordinary practice and procedure of the Courts is reversed. And, further, an attempt is made to defeat the Constitution. I am aware that, in the opinion of some people, the Constitution is a figment, and ought to be brushed aside if it interposes any obstacles to the achievement of what they desire; but it would be very much better to try to give effect to the objects of this Bill by adopting a course which would be within our powers under the Constitution.
– I cannot understand the necessity for so much red-tape and circumlocution in connexion with a matter of this kind. The Government appear to have adopted the most cumbrous method that could be suggested. If the Commissioner is of opinion that a taxpayer has undervalued his land to the extent of 25 per cent., certain consequences are to follow. How is the Commissioner to arrive at this opinion. Will he send some one to inspect the land or compare the valuation of it with the valuation return for a similar block in the same locality ? It seems to me that it would be possible to do justice to both parties without all this roundabout business, and by the adoption of a very simple proceeding, I suggest to the Vice-President of the Executive Council that where the Commissioner forms the opinion that certain land has been under-valued he should give the owner notice of the fact, and that it is his intention to have a valuation of the land made. If that valuation confirms the opinion of the Commissioner that the previous valuation was an undervaluation to the extent of 25 per cent, the owner should be charged with the cost of the valuation and taxed upon it, but should be given the right of appeal. That would be a- very simple procedure, but under this clause the Commissioner will have to apply to the High Court for a declaration. The owner will be tried on the assumption that he is guilty, and required to prove his innocence, and a number of other things will have to be done when the whole matter could be dealt with, as I have shown, in a very simple way. Why should it be assumed that a man has wilfully undervalued his land to the extent of 25 per cent. I gave an instance last night of what might happen. A man may have purchased land at a certain figure. Land in the locality may have become enhanced in value. The owner of the land next to his may consider that it is worth four times what he gave for it, and yet the first man might honestly believe that his land was worth no more than he gave for it. But if he returned that value as the unimproved value of the land he would be subjected to all this roundabout procedure. He would have to satisfy a Justice of the High Court that the under- valuation was not made with a view to evading the tax.
– He would have to do more than that. The condition is, if the Justice is not satisfied that it was not made with a view to evading taxation.
– Yes, the owner has to prove the negative. We do not provide that the Commissioner shall prove the taxpayer’s guilt, but that the taxpayer shall prove his innocence. What I have suggested would prevent all this trouble, and 1 am surprised that some such course is not adopted. It would save trouble and anxiety to land-owners if they knew that where there was a difference of opinion between them and the Commissioner as to the unimproved value of their lands, an independent valuation would be made. If that valuation confirmed the view that “their lands had been undervalued, they should have to pay taxation on the higher amount and pay the expenses of the independent valuation. I should like the Government to withdraw this clause and remodel it on the lines I have indicated.
– I recognise that the matters which are involved in this clause have been previously discussed, and that there is little probability of inducing the Committee to adopt an altered attitude towards them. At the same time, I cannot allow the provision to pass without offering my protest against it. If any justification were needed for the attitude which I. have assumed towards the Bill throughout, it is supplied by the spectacle which has been presented by the Government benches this morning. Until the last few minutes, the Vice-President of the Executive Council has been left with only just sufficient support to enable him to call for a division had the question been put from the Chair. When a party which numbers two- thirds of the Senate can leave matters to be discussed in that way, what hope is there of influencing them by an appeal to reason? I do not intend to deal with the constitutional aspect of this question, .nor with the main purpose of the clause. But I would direct attention to one of its provisions, which compels the Justice, in dealing’ with any case of alleged undervaluation, to penalize the land-owner unless he is satisfied that an undervaluation has not been made with a view to evading taxation. The principle which is ordinarily adopted in our Law Courts is to give the person who is charged with any offence the benefit of the slightest doubt as to his guilt. But here, if the evidence be so evenly balanced that the Justice is unable to decide one way or the other, the Bill provides that he shall determine against the land-owner. Is that even elementary justice?
– It is like the negative vote in the Senate.
– There is a reason for that negative vote, just as there is a reason for this provision. That reason is that the entire Bill is based on the assumption that when the Judge is in doubt he should hit the land-owner.
– It is so difficult to make some of them honest that it is necessary to do that.
– The whole gospel of my honorable friends is that land-owners are scoundrels. Their whole political stockintrade is an appeal to class prejudice, and in appealing to that prejudice, they have painted the land-owner in the blackest terms possible.
– Not the landowner, but the monopolist.
– There is nothing in this clause about the land monopolist. As a matter of fact, I have heard some of my honorable friends say that all landowners are monopolists.
– I have never said that.
– I am surprised at my honorable friends violating their own professed principles in this connexion. I do not believe that any member of the Labour party would defend such a proposal as is contained in this clause, except in regard to the imposition of a land tax. Their attitude can only be attributed to their intense hatred of one section of the community. As evidencing how difficult it is to arrive at land values, I propose to present a few figures to the Committee. Not long since the Victorian Government resumed the Maribyrnong Estate, and I invite attention to the valuations which were sworn to in that connexion by men who are recognised throughout this State as experts. Their valuations for the same block of land were £12, £30, £40, £50, £60, £55, £]o, and £75 per acre. These valuations were made by the best land experts Victoria could produce. Some of them were put forward by the Crown, and others by the owners of the land. The valuations of the Crown experts were £12, £$0, and £40 per acre. The vendors’ valuations were on a higher scale, but they varied just as widely. They ranged from £50 to £T5 per acre.
– We want to stop that sort of humbug.
– My honorable friend proposes to stop it by saying that, wherever an honest difference of opinion exists as to the value of land, the Crown shall forfeit that land.
– The honorable senator forgets that the Bill allows a margin of 25 per cent.
– I have just shown a margin of 300 per cent, in the valuations which I have quoted. I do not say that we should not take the power to revise valuations. But it is iniquitous to lay on the Judge, when he is unable to decide that there has been a wilful undervaluation, the obligation of giving a decision against the land-owner.
– The Leader of the Opposition says that it is impossible to get a fair valuation.
– I have never said anything of the kind. But we do not expect to get a theoretically and ideally perfect valuation. When there is a conflict of evidence, it is left to the Court to determine what is a fair valuation. But, under the clause, the Justice is not to be allowed to do that, because the Bill practically says to him, “ If, having heard the evidence, you are unable to decide either one way or the other, you must find the land-owner guilty.” If we said to him, “ If you entertain the slightest suspicion that a valuation has been made for the purpose ot fraud, you shall forfeit the land,” I would not object. But it has been left to the Labour party in this Parliament to introduce a provision under which, although there may be not the slightest proof of intent to defraud, a man is to be found guilty of it.
– I could cite hundreds of instances in which the onus of proof is on the defendant.
– Under very different circumstances, lt is practically impossible to get any two valuators to agree in their valuation of any one parcel of land.
– We allow a 25 per cent, margin.
– That might be effective if it were not for the definition clause. As I have already pointed out, under one definition the land-owner is entitled to deduct the value which any improvements may have added to his land. An improvement which cost 5s. per acre may have added £1 per acre to its value. But the Justice may say to the land-owner, “ But, under another definition you ought not to have deducted the added value given to your land by improvements, but merely the cost of those improvements.” In view of the impossibility of getting any agreement in regard to the value of land, it strikes me as a piece of barbarism to say that we will not allow the Justice to determine whether an owner has attempted to defraud the revenue. What we do say to him in this Bill is, “ Even if your mind be like a blank sheet of paper, even if, on the evidence, you are unable to decide one way or the other, we will still lay on you the obligation of finding the land-owner guilty.”
– In that case, let the Judge bring in the Scotch verdict of “ not proven.”
– The Bill will not allow him to do that. He ought to be permitted to do it.
– The Justice is only compelled to do what the honorable senator suggests in case the owner cannot prove his innocence.
– There is no man in the State who would object more strongly than Senator Givens if he were placed on trial under such circumstances. Senator McDougall, when he sees where the verdict of “ not proven “ would land him, says that he would give the land-owner a new trial. Where is provision made for giving him a new trial under this Bill ? There is no possibility of appeal.
– No one would intentionally under-value his land. He might want to sell it.
– The honorable senator cannot have read the Bill, because his interjection indicates the whole objection of the Opposition to this clause. We say that where the Judge comes to the conclusion that a case is not proven, he ought not to be compelled to hold the man guilty. To do so is repugnant to one’s sense of justice.
– The point is that the onus of proving innocence is thrown on the defendant, and if he can prove his innocence he will not be held to be guilty.
– There are hundreds of cases in British law in which the same principle applies.
– No, not hundreds of cases.
– The honorable senator voted for this principle in the Queensland Parliament.
– What these gentlemen may have done whilst breathing the air of Queensland is one thing. Down here, while we are engaged in passing Federal legislation, I ask them to get back to elementary principles of justice. Let us accept it as a principle that a man is held to be guilty unless he can prove his innocence. But surely you have to take into account the circumstances under which you propose to apply that principle. To hold a man guilty until he proves himself innocent in connexion with the valuation of land, seems to me to be carrying the principle to the verge of barbarism. We have to recognise the practical impossibility of any man proving his innocence in the matter of valuing land. I need only refer again to the figures which I have already given. There were men whose interest it was to arrive at a correct valuation, and yet their valuations varied between £12 and £40. Those were not valuators called in by the wicked land-owner, but by a Government anxious to get the land in question for State purposes at the lowest possible price. When valuators employed by a Government vary so widely in their estimate, how can men be expected to prove their innocence when they are charged with making their valuations too low ? The whole question of innocence becomes a matter of opinion, yet the Bill does not leave the Judge with the slightest discretion. He cannot return the verdict to which Senator McDougall has referred. The Judge is powerless. No matter what opinion he may have formed in his own mind, he is not free to exercise it. The facts of the case may convince the Judge that there was no fraudulent intent, but. in spite of that, he will have to say, “ I am compelled to give my verdict against the land-owner.” Honorable senators can pass this clause if they like, but if they do it will stand as a placard emphasizing every charge that has been made against them of not proposing this Bill for the benefit of the community but to penalize the land-owner.
.- I know of many cases in which men own land in two or three States. Under this Bill, if a man under-values a piece of land in Victoria - the value of which, perhaps has gone down in comparison with the price at which he purchased it - the whole of his landed property in Victoria, New South Wales, and elsewhere may be forfeited to the Crown. Such legislation is not paralleled anywhere on this earth. A man may value his property honestly and fairly in accordance with what he believes to be correct, but if his opinion does not coincide with that of the Commissioner, the whole of his property may be forfeited.
– He ought to Ire willing to sell at the value he puts on his land - at his own price.
– I can quite imagine that if a man has lived in a certain house for half a lifetime, he and his wife and family may not like to part with it.
– “ The poor widow “ again.
– Suppose that a man owning property in two or three States, by bad luck and in the most honest way under-values a piece of town property in Victoria. Surely it is wrong because of that mistake to forfeit the whole of his other properties. I cannot believe that the Government, on thinking over the matter, will finally pass this clause in its present form, especially as the Opposition have urged them to appoint their own valuators.
– The Commissioner will appoint a valuator if he thinks proper.
– As Senator Millen has said, even if the Judge is of opinion that no fraud has been committed, he cannot decide accordingly, but will be compelled to give a verdict against the landowner, on whose part there may not te an atom of criminal intent.
– God help the rich, the poor may pay !
– It is not of the !east use to argue. We may as well let the Bill go through.
Senator WALKER (New South Wales). £11.22]. - In my second-reading speech I drew attention to the fact,. that under this Bill a person is to be taken as guilty unless he proves himself innocent. I think that in this clause there is room for at least two amendments. There should be an appeal in a matter of such importance. Why should a land-owner be deprived of the opportunity of appealing from the decision of a single Judge to the full High Court? The matter is one of very great importance. Some persons own property worth hundreds of thousands of pounds. Yet if they make a mistake there will be no appeal from a single Judge. Senator Millen has drawn attention to the fact that two negatives are used in the clause. We must try to convert them into a single affirmative. This Bill seems to have been based upon the assumption that all men are rogues. Perhaps Senator McGregor remembers the old Scotch story of the Minister in Fife who was reading a passage from the Psalms, in which occurred the words of David. “ I said in my haste all men are liars.” The minister stopped and said, “ You said it in your haste, David, m’ mon j if ye had been here ye might have said it at your leisure.” I am surprised that any Government in the Commonwealth of Australia should proceed on such a supposition. All through this Bill there runs the idea that if a man makes a fault he is to be treated as a criminal. I, for one, protest against this method of legislation. I trust that if Senator Gould moves an amendment in the clause honorable senators opposite will recognise the fairness of it, and, in despite of caucus rule, will insist on doing justice.
– After the severe criticism to which this clause has been subjected, I may be expected to express some opinion about it on behalf of the Government. Senator Gould has hinted at the unconstitutionality of the proposal, and has argued as to the absurdity and monstrosity of the Commonwealth acquiring any land except for public purposes. There is a great deal of difference between the position defined in this clause and the acquisition of land by the Commonwealth Government from a State. Under this clause the Government will not be acquiring land in the ordinary sense. It will be acquiring land as a penalty, and will be paying for it. Land that comes into the possession of the Commonwealth in that manner will not be in the position of Commonwealth property, but will be held just as any other landholder would hold land. The State in which it is situated will have full control over the land, and can tax it or do with it anything that it has a right to do with the land of a private individual. It is further provided that if the Commonwealth does not want the land for any purpose of its own, it may communicate with the State in question, and if the State likes to buy it it can do so. In other Commonwealth legislation similar powers have been taken. Under some Acts we have power to destroy property that we have taken over. We can, for instance, destroy forfeited opium. We can confiscate and destroy prohibited goods. We can seize goods imported under false pretences, and dispose of them in any way we like. We can confiscate goods attempted to be smuggled, and do what w< please with them.
– Because there is fraud.
– Deliberate fraud.
– There is no intention to do anything contemplated by clause 46 unless there is fraud. There are many methods of ascertaining the value of land, and it is by one of those many methods that the Commissioner has to come to a conclusion and to assess the taxpayer accordingly. Unless it can be proved that there has been an intention to defraud the Commissioner of Land Tax, no person can be found guilty.
– Unless the land-owner proves his innocence.
– Honorable senators on the opposite side are too eager to jump to conclusions. I am stating the case quite accurately. Unless it can be proved that there was an intention to defraud, no proceedings can be taken under this or any other clause. I am sure that all these painful appeals which have been made on behalf of the poor land-owner, who unwittingly might make a mistake, are absolutely unnecessary, because the Commissioner will deal with them all. He is expected to be a reasonable man, and, when he sees that there was no intention to defraud, but only a mistake or a misunderstanding in the mind of the owner, other means will be taken to ascertain the value of the land. Other clauses provide that the Commissioner may take other steps to ascertain the correct value, and he will do so. This clause was put in the Bill, because in connexion with land tax legislation, not only in the States, but in other parts of the world, many attempts have been made by undervaluation and frauds of that description to evade the burden placed on land-holders. The clause was inserted to induce persons to furnish a fair value of their land, so that the Commissioner may be able to assess them at the rate prescribed. With respect to the cases of the poor widows, poor orphans, and other poor individuals, whom Senator Fraser has taken under his wing, let me point out that if a poor land-holder has valuable blocks in Sydney, Melbourne, Adelaide, Perth, and other places, the Bill provides that they shall be valued separately. He may make a mistake in one place, but where he gives a fair valuation in two or three cases, that will be clear evidence that he has made an honest attempt to value the blocks properly, and the Commissioner will take that into consideration. The clause is not intended to be put into frequent operation. But it is intended to be on the statute-book as the policeman is on the street, to prevent landlord larrikinism, or land-owner dishonesty. If the very existence of the provision induces the poor friends of Senator Fraser to put a fair and honest value on their property, it will never come into operation, but it will be a blessing that it is on the statute-book, because it will enable the Commissioner, in certain cases, to arrive at a proper assessment by the shortest and speediest method. I hope that it will be passed without amendment, because it will be a warning to all those who have a dishonest intention in their mind.
– I think that one may say of the clause, or the Bill, what was once said of a Bill which was introduced, I think, into the House of Commons, and which, probably, Senator Givens will remember, for his country people have reason to recollect it. It creates artificial crimes, for which it provides Draconian punishments, and pursues its remedies in violation of all principles of liberty and justice. It is abundantly clear from the closely-reasoned speech of Senator Millen that honorable senators on the other side are not giving to the land-owner that liberty which he has when he is charged with the most infamous crime against the whole community. It is also clear from his speech that, not only are these honorable senators treating in that way the land-owner when he goes into the box to defend his right to his property, but they are actually taking from the Judge the right which he possesses in the exercise of his criminal and other jurisdiction to say that, unless the plaintiff proves his case, the verdict must go against him. A Judge is bound by law in the case of the greatest criminal to instruct the jury accordingly, if he is of opinion that there is not sufficient evidence on behalf of the Crown to make it clear affirmatively that an offence has been committed. This straight safeguard which die community has is to be taken away as against the land-owner while it is preserved in favour of the criminal. We can have nothing clearer than that as to the attitude of the caucus mind towards land-owners. Every man in the community, however humble he may be, who is brought to the criminal bar is deemed to be absolutely innocent until a case is proved against him. Nothing could reveal more clearly than does this Bill the intense hostility of the Labour party to the occupation and ownership of land. They are asking, or pretending to ask, persons to come to Australia to settle and develop the land, but at the same time they seek to enact a provision that, because of an honest mistake made in a valuation, a man’s land may be forfeited to the Crown. What a splendid encouragement it must be to persons in Great Britain to come here, when they learn that this Parliament has passed a measure under which the Government, may, if they make a mistake in a valuation, take from them their land, that is if they have acquired more than .£5,000 worth. How do honorable senators opposite reconcile the sending to the Old Country of glowing, and, to my mind, fairly accurate, descriptions of the attractions and advantages of the lands of Australia with legislation of this kind? It is impossible to do so. Not only are honorable senators opposite reversing the principle of justice which is applied to criminals, but, to my mind, they are striking at the very Constitution itself. In my second-reading speech, I pointed out some constitutional difficulties in connexion with various parts of the Bill. I did not refer to its merits or demerits, because, to deal with the former would be, to my mind, like dealing with snakes in Ireland - there are none. This clause, on its very face - unless some clearer, I had almost said subtler, explanation can be given - is, in my opinion, a direct violation of the Constitution. Paragraph b reads -
The application shall be heard by a Justice of the High Court, whose decision shall be final and without appeal.
The Justice of the High Court is to be the land Caesar of Australia, because from him there is to be no appeal. This measure is to be like the laws of the Medes and Persians ; not even the High Court itself can alter it.
– We can amend the Act by-and-by.
– I am dealing with the measure as it is. This Parliament cannot take away or minimize the jurisdiction which the High Court - not a Justice of the High Court - has, because the words of section 73 of the Constitution are imperative. It reads -
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine, appeals from all judgments, decrees, orders, and sentences -
Whose orders and sentences has the High Court by the Constitution the power to hear appeals from? -
The Justice mentioned in this clause is a Justice of the High Court exercising jurisdiction in this matter, and it is provided that there shall be no appeal from his judgment, order, or sentence to the High Court itself.
– Which is ultra vires of the Constitution.
– It must be so in view of section 73 of the Constitution, which gives the right of appeal to every citizen in almost every matter upon which
Ave are competent to pass legislation. lt is the High Court, and not merely a Justice of the High Court to whom this final appellate power is given under the Constitution. It is a maxim well known in British law that the right of appeal to the King in Council is established, and continues until it is taken away expressly by the Imperial Parliament. The power of appeal might have been taken away from the individual under our Constitution, but we wished to protect the citizens of the Commonwealth, and so we provided that the High Court should have jurisdiction to hear appeals from all judgments, decrees, orders, and sentences. If the VicePresident of the Executive Council will con sult the Attorney-General on the matter, he may be told that an Act of this Parliament can restrict the right of appeal, but it was never contemplated that an Act of this Parliament should take away the right of appeal to the High Court, which the- Constitution guarantees to every citizen of Australia. If that had been intended, it would have been expressly set out in the Constitution. It is not given to this Parliament to pass an Act depriving a citizen of the right of appeal from a Justice of the High Court to the High Court itself. This Parliament has power only to regulate the form and procedure to be followed, but not the power to prevent an appeal. If it had been intended that Parliament should have the power to prevent an appeal, the section might have read - -
The High Court shall have jurisdiction with such exceptions and subject to an Act of the Parliament to prevent an appeal - and so on. The people might have ratified such a provision, but they were not asked to do so, and did not do so. Can the Vice-President of the Executive Council reconcile paragraph b of this clause with section 73 of the Constitution ? I am not aware that the question was raised in another place, or that the Attorney-General has considered it, but .the difficulty is one which cannot be lightly passed aside by the vote of a majority. The right of appeal is given under the Constitution, subject only to the power of the Parliament io make regulations as to procedure. How, therefore, can it be held that paragraph b of this clause is constitutional ? Before we pass this provision we are entitled to know what is the authority which declares the validity of an Act of this Parliament, which takes away the right of appeal to the High Court, in the face of section 73 which guarantees that right of appeal.
– Does the section not say, “ With such exceptions and subject lo such regulations as the Parliament prescribes ?”
– With one or two limitations the jurisdiction conferred upon the High Court by the Constitution is to hear appeals from every Court in Australia, and it is idle to say that in a case of land resumption there is to be no appeal from a Justice of the High Court to the High Court itself. I hope the Opposition will not allow the clause to go until we have some attempt made to reconcile it with section 73 of the Constitution. It is possible that the matter has been considered, and surely there must be some authority for proposing this contradiction. There is another complaint I have to make against the Government-
– The honorable senator might permit me to answer this one first.
– I have no objection. I suppose the honorable senator has received some explanation from the Attorney-General or the Crown Law officers on the point I have raised.
– Senator St. Ledger, as usual, has shown that he can concentrate his vision upon only one particular point. Section 73 deals with the appellate jurisdiction of the High Court, and it sets out that the High Court shall have jurisdiction “ with such exceptions, and subject to such regulations as the Parliament prescribes.” This provision is one of the things which Parliament will prescribe.
– With all respect for the VicePresident of the Executive Council, I may characterize his statement as “Bush” constitutional law. The reference to regulations in section .73 applies to the procedure to be adopted. The Constitution of every one of the States recognises the right of appeal to the Privy Council. That right of appeal is subject to what might be called regulations for the purpose of enforcing justice in an ordinary way, and to secure that the tribunal shall not be abused by frivolous and vexatious suits. There is a power to limit, to some extent, the right of appeal in certain cases, but there is no power to entirely cut off the right of appeal. I am speaking with general, if not with absolute, accuracy when I say that the limitation, and not the prevention, of appeals has reference to cases where the amount in dispute is not above £300 in some States and £500 in others. All these State Constitutions were ratified by the Imperial Parliament. In some cases where the matter in dispute involved a pecuniary value of only £40 or £50, but the consequences of the judgment might involve hundreds of pounds, the Privy Council interpreted the limitation in such a way as to permit the right of appeal. There is a difference between regulating the right of appeal to the Privy
Council or the High Court and absolutely cutting off the right. We cannot say that because we have the power to prescribe rules, orders, and regulations to provide that a case shall proceed in an orderly way, from a justice of the High Court to the High Court, that we have the right to cut off the right of appeal when and how we please. Is the Vice-President of the Executive Council advised by the AttorneyGeneral that we can pass an Act to deprive any subject in certain circumstances of the right of appeal to the High Court or to the Privy Council ? If that were so, we might provide that there should be no appeal from a Justice of the High Court to the High Court itself. Does the Attorney-General advise the Government that we have any such power ? I do not know of any Parliament in the Empire, or anywhere else, that has asserted the proposition, where the right of appeal to the highest Court in its Dominion is secured under the Constitution, that it can step in and say there shall be no appeal, and that the administration of justice in every Department of the Commonwealth shall be confined to a Court presided over by a single Justice.
– Does the honorable senator say that we cannot do that?
– Do the Government contend that we can enact legislation cutting off the absolute right of appeal to the High Court itself ? If we can cut off that right in one case, we can do so in every case.
– Parliament possesses that power.
– If that be so, and if Parliament can say that an appeal shall not lie to the High Court, will the Minister tell me the meaning of section 73 of our Constitution? If we can cut off the right of appeal to the High Court in one case, we can cut it off in every case, and if we can take away that right whenever we choose, what appellate jurisdiction will remain to the High Court?
– Is not “a Justice” the High Court?
– No. He merely exercises the original jurisdiction which is conferred upon a Justice of the High Court. He is not the High Court itself.
– What Court Is he?
– The Constitution draws a very clear distinction between the High Court itself and a Justice of it.
– Will the honorable senator read section 73 of the Constitution?
– That is a clear and self-contained section. It reads -
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees,’ orders, and sentences - (1.) Of any Justice or Justices exercising the original jurisdiction of the High Court. * * * *
There is a clear distinction between the High Court itself and a Justice of that tribunal. The object of making that distinction was to prevent the judgment of a Justice of the High Court upon any subject being absolutely final. That tribunal was constituted in order that an appeal might lie to it from the decision of any single Justice. However, I shall not pursue that branch of the subject any further.
– I direct attention to the state of the Committee. [Quorum formed.”]
– I recognise that the discussion of this clause is absolutely futile, except from the stand-point that the opinions which we express may have some weight with the general public. We have had a clear declaration from the Minister of Defence that every time this Parliament chooses to pass an Act, it may insert in it a provision under which the decision of a Justice of the High Court shall be final. It is well that the public should know that section 73 of the Constitution, which has hitherto been construed as giving an unchallengeable right of appeal to the High Court, has disappeared.
– “ With such exceptions.”
– I do not think that the words, “ with such exceptions and subject to such regulations as the Parliament prescribes,” which appear in section 73 of the Constitution, should be interpreted in trie way that the Minister of Defence has interpreted them. I showed some time ago that a portion of a Bill which was submitted to the Senate was unconstitutional - that it was “ right up “ against the decision of the High Court. But there seems to be a reckless intention on the part of the Government to flout the Constitution. In a few weeks I shall be afforded another opportunity of showing what a flagrant violation of that charter of government has been attempted in this Chamber. That is one of those nice revenges which the whirligig of politics sometimes gives a man. If we are going to impose upon land-owners the Draconian punishment provided in this clause for undervaluations, a similar punishment should be inflicted upon the Commissioner in case of overvaluations. That would be a sort of rough equity. I can speak upon this subject from a certain amount of acquaintance with land valuation Courts in Queensland, and with the Land Acquisition Act of that State.
– The honorable senator can speak on anything.
– The point is, “Can I think upon anything?” Probably that consideration represents the difference between myself and the VicePresident of the Executive Council.
– Why all this sympathy for the land-owner?
– If the landowner is preventing settlement, let us do what we can to open up the land. But I object to allowing a crime to be perpetrated under the pretext that it is being perpetrated in the interests of the community. My honorable friend, Senator Lynch, reminds me of Madame Roland’s celebrated exclamation, “ Oh, Liberty ! liberty ! how many crimes are committed in thy name !” In every law Court the plaintiff who cannot sustain a case has to pay the costs of the other side. In many cases in Queensland where the Land Board through its officers has not been able to sustain land valuations in the Land Courts, it has had to pay the costs. I admit that there would be some justice in this provision if a land-owner could go to the High Court, and, where the Commissioner failed to make good his case, mulct him in costs. How easy it is to make an undervaluation of land, and to da so quite honestly. There have been cases over and over again in which Government valuators have overvalued land. In a case of my own the Government valuator overvalued, and 1 made them pay very heavily for the mistake. They did not object, because they admitted that they had been misinformed. The forfeiture of land is entirely different from the forfeiture of goods or ships.
– Because the nature of the property is essentially different. I admit that there is fairly strong ground on the other side, but if the. view which I hold is good in law, it is absolutely outside the power of the Federal Government to forfeit land in the sense implied in this Bill. I hold that when a penalty imposed under any law which we make is satisfied, it is not within the power of the Federal Government to take his land from the owner. Our Constitution is limited in its jurisdiction, and we cannot give to it an extension that in other circumstances might attach to it. I do not believe that we have this power of forfeiture. “ Forfeiture “ in the case of land is a wellknown term in English law. I am not aware that the penalty has ever been applied except in cases of felony or treason ; the reason in the latter case being to deprive the heirs of succession. It is quite true that the Federal Government can forfeit imported goods.
– It is much easier to rove values in respect of goods than in the ase of land.
– It may mean downright ruin to forfeit a man’s land, and deprive his heirs of the right of succession. I think the point that I have raised is fairly arguable. If the Committee insist on going on with the clause I shall, at any rate, have the small satisfaction of knowing that I have done my duty in pointing out a danger to the Government and to the public.
– I point out that the present AttorneyGeneral is following a very good example in regard to the position in which the High Court is placed under this clause. I direct attention to the Australian Industries Preservation Act. It was not the present Attorney-General who advised the Commonwealth Government when that measure was passed. But section 21, subsection 9, deals with the power of appeal in exactly the same way as does the clause under discussion. No appeal is allowed from a Justice of the High Court.
– I think the section is wrong.
– The present AttorneyGeneral is evidently of the same opinion as was the Attorney-General at the time the Australian Industries Preservation Act was passed. I mention this in order to urge Senator St. Ledger to be sure of his facts, and not again to make himself look ridiculous in the eyes of the public.
– After the oratorical avalanche that has fallen upon us from the mouth of
Senator St. Ledger, it is just as well to invite the Committee to observe what has been done in the Customs Act. It is said that there is a difference between the forfeiture of land and of goods. Why should there be, except in the minds of those who are still labouring under the superstition that the law must be devised especially to favour the land-owner ? A person who imports fencing wire or agricultural machinery into Australia and undervalues the goods may have them taken from him at his own valuation, to which 10 per cent, is added by the Customs authorities. What difference is there between a man who, to defraud the Treasury, undervalues fencing wire or agricultural machinery, and a man who for the same purpose undervalues land ?
– Is there no difference in arriving at a valuation?
– A man knows what he pays for fencing wire, but he may not know the value of the land which he occupies.
– A land-owner who cannot get within 25 per cent, of the value of his land must be very dull indeed.
– What is he to take off for improvements?
– He must value his land on a fair system.
– Two ways are open to him. Which is he to adopt?
– Both ways, and then he will be right !
– That is to say, he will have to pay blackmail.
– The land is not taken from the owner unless in a clear case of undervaluation to defraud the revenue.
– How is he to value the improvements and to know what he is entitled to take off?
– A fair valuation can easily be ascertained.
– But the definition gives two ways of doing it. Which way is the land-owner to proceed ? There are no two ways of valuing in respect of Customs goods.
– I can see no difference between the importer who tries to defraud the revenue by undervaluing wire and the’ land-owner who tries to defraud the Taxation Department by undervaluing his land.
– If the method of valuation were final he would know how to do it, but under this clause a man would not know how much to take off for improvements.
– Surely the value of the improvements can easily be ascertained.
– The point is that the Bill gives two ways of doing it.
– If he has two ways of ascertaining the value he is in a very happy position.
– If the one way does not suit the Commissioner the land-owner may be caught by the other.
– It seems to me that the land-owner under this clause is more favorably situated than is the importer under the Customs Act. If there is a suspicion of undervaluation the onus is thrown not upon the land-owner, but upon the Taxation Department. The Commissioner has to make out a case before the Judge of the High Court. Evidence is to be tendered in favour of the Commissioner’s contention. The land-owner is then entitled to be heard in his own behalf. Consequently, the onus is thrown on the Commissioner.
– The onus of proving his innocence is thrown upon the landowner.
– But the onus of taking action is thrown on the Commissioner, who has all the responsibility of obtaining evidence, after which the owner is entitled to be heard in his own defence.
– So is the owner of goods under the Customs Act entitled to be heard.
– If the owner of land can show that he has not undervalued his property he escapes. He is certainly not put to the harrowing experience which Senator St. Ledger has painted for us. I consider that the clause is very necessary, and is in the interest of those who wish to deal fairly by the Taxation Department and the public Treasury. In the past, under State laws, we have unfortunately been too much accustomed to the undervaluation of land, and taxation has been evaded in the most glaring fashion. It was high time that an effective remedy was applied without being unnecessarily harsh towards land-owners. The margin of 25 per cent, allowed by the clause is ample, and if the land-owner shows that his purpose has not been to escape taxation, he is not penalized in any way. But if he has tried to escape, he ought to sustain a heavy penalty. The clause is quite necessary, and in its operation is more unfavorable to the land-owner than is the Customs Act to the importer of goods.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [12.29]. - I am glad that the Opposition have been able to elicit a defence of this clause from one out of the twenty followers of the Government.
– There would have been others except that we do not want to waste time.
– The Vice-President of the Executive Council has certainly spoken three or four times, but he had not been supported by his followers until Senator Lynch broke the silence. I should like to obtain the opinion of some impartial person who had listened to the arguments po. and con. In the first place, I would ask him how far they are replied to, and whether in the majority of cases they are not merely evaded by allusions to other matters? Honorable senators may say, possibly, that I am not open to conviction, but I have not heard anything said which would justify a provision of this drastic character.
– Our trouble is that you do not want land-owners to be open to conviction.
– Not unfairly. We have raised a question as to the constitutionality of the clause. I admit frankly that if the Government state that they are advised, as we presume they are, that a provision of this kind can be made in the Bill, nine out of every ten of their supporters will say, “It L« their responsibility. We are not going to seh ourselves up as experts in the law, and sa) whether it is constitutional or not.” In any case, I recognise that a legislative body is not a properly constituted tribunal to decide whether a matter comes within the purview of the Constitution, unless that is very clear and evident to everybody at once. In this measure, the Government are taking all sorts of drastic powers. In defending the clause, Senator Lynch said that the landowner is treated very fairly, and that if he does not prove a certain thing he is to be convicted. Let us assume, for the sake of argument, that there is a provision in the criminal law that a man who is seen in the neighbourhood two hours after a house has been burglariously entered shall be held to have committed the crime of burglary unless he proves that he did not. Now, many a man may be alongside a house in which a burglary is being committed, and yet be as innocent of knowledge of the burglary as a child unborn. Yet, under such a law, it would be necessary for a man charged to produce evidence to prove that he did not commit the offence.
– Is that the law to-day ?
– That is the principle which you are attempting to foist upon the people of this country.
– The only thing which the honorable senator can say is that that might be one of many circumstances which would lead a jury to convict a man of the crime of burglary. This clause puts the onus of proof entirely on the individual who is brought before the Court.
– Where does it do that?
– The Commissioner applies to the High Court for a declaration that the Commonwealth is entitled to acquire the land, and brings forward valuers to prove to the Court that unquestionably there has been an undervaluation. If the Justice is satisfied that the owner has understated the unimproved value .to e extent of 25 per cent., or more, *prima facie, the owner is supposed to have committed a fraud. It does not follow, however, that because there has been an undervaluation it is a fraudulent one. This morning I quoted the case of a small estate in Sydney in which the valuations given by two wellknown local firms absolutely differed. One valued the property at about £6,000, and the. other, at about £10,000. The valuations were required, not for the purpose of litigation, but to inform the owners in England as to what values were placed on the property by the best valuers who could be obtained in Sydney, and the two firms employed were firms of well known integrity and reliability. The case shows how easily an undervaluation may take place, particularly in the case of large areas and valuable properties. Under this clause, the Judge has to be satisfied, not that there has been a fraudulent mistake made, but that the owner has understated the unimproved value to the extent of 25 per cent, or more.
– If the Commissioner held a property to be worth £10,000, and the owner returned it at £6,000, the Judge would have no option but to find the latter guilty.
– No. We know, of course, that logically a negative cannot be proved, but under this clause an owner has to prove that the undervaluation was not made with intent to evade taxation, and if the Judge is not satisfied on the point, he has no alternative but to make the declaration required by the Commissioner. The position would be different if it were provided that the Judge must get evidence to satisfy himself that the undervaluation was made with a fraudulent intent.
– It is difficult to prove intent.
– It can always be proved by circumstances. A man, for instance, may strike another man, not with any intention to do him harm, but by pure accident. The circumstances may all go to prove that. As a matter of fact, the proof of a crime requires an act and an intention to be proved ; a Judge has to be satisfied that they were co-existent at the time the offence was committed. Of course, the attempt has to be judged by the surrounding circumstances. If that is not proved in criminal cases, and in cases where penalties are provided, the law says that the benefit of the doubt shall be given to the accused person. In this clause, however, the benefit of the doubt is not given to the landowner. Even though there may be a doubt in the mind of the Judge, he has to make the declaration required by the Commissioner. If the provision were so amended as to enable the Judge to say, “The case has not been proved, and therefore I cannot make a declaration,” that would be fair. That right is given to a man who is regarded as the vilest criminal on the face of the earth. In this clause, the Judge is trammelled and handcuffed in arriving at his decision, but there is to be no appeal from it. Senator St. Ledger has raised a question as to whether the Government are not getting behind the Constitution in denying the right of appeal. It is an essential principle of law that every citizen has the right of appeal from his own Courts to the Sovereign, who, of course, speaks through his Courts. The Privy Council is our ultimate Court of appeal. It is a very serious thing to take away the right which is inherent in every Englishman, of appealing to the highest Court in the realm to have his grievance settled as satisfactorily as possible. It is cruel on the part of the Ministry first to handcuff the Judge of the High Court, and then to allow no appeal from his decision. The individual rights of a man ought to be observed in this legislation, because every person is fallible. Even the best Judge will make a mistake at times. When the right of appeal exists a man has the opportunity to bring to bear on a question the minds of several men. whose decision, I admit, may be wrong. I do not intend at present to argue as to whether we have the power to withdraw the right of appeal. It is a very serious act to take away that right in any circumstances. The constitutional question will not be settled by Parliament, but will remain for determination by the High Court. There are cases on record in which it has been held that in attempting to make a decision final, and without appeal, the Legislature has exceeded its powers. The Minister, in replying to Senator St. Ledger, cited the case of the Australian Industries Preservation Act, and called his attention to the fact that thereunder a certain matter may be referred to a Justice to investigate and determine, and that his determination - shall be final and conclusive and without appeal, and shall not be questioned in any way.
Whether a question has arisen before the High Court as to the constitutionality of that provision or not, I am not aware. I do not think it has. It has only been on the statute-book for about twelve months, and although it may have been passed under the aegis of another Administration, that does not make it any better or stronger, because a mistake may be made on one side as well as on the other. Let us, however, compare the two provisions. In this clause, the Government are taking power to seek from a Justice of the High Court a declaration by means of which they can take away a man’s land, whereas the provision in the Australian Industries Preservation Act deals with dumping only. If the ComptrollerGeneral has reason to believe that persons are importing goods with intent to destroy or injure any Australian industry by their sale or disposal within the Commonwealth in unfair competition with any Australian goods, he may certify to the Minister accordingly, and what his certificate shall specify is enumerated. On receipt of the certificate, the Minister may, by order in writing, refer the matter to a Justice for investigation, and the Justice finds according to what he believes to be correct. The provision simply means that a particular class of goods shall not be allowed to be imported in order to be disposed of in unfair competition with Australian-made goods. There is power for the Governor-General in Council to set aside a finding altogether and have the matter re-opened. The position under that Act is very different from that which might arise under this clause. Apart from the debatable question as to whether we can take away the right of appeal as proposed, I think it is only a matter of abstract justice that where either the Commissioner or the taxpayer is dissatisfied with the finding of the Justice, there should be a right of appeal, and I move -
That in paragraph bthe words “ whose decision shall be final and without appeal” be left out.
SenatorVAR DON (South Australia) [12.47]. - I should like to make a final appeal to the Vice-President of the Executive Council to sweep this clause away altogether, and substitute for it a common-sense provision which need not occupy more than a dozen lines, but which would avoid these cumbrous proceedings and vexatious litigation.
– There is no necessity for litigation at all.
– No; let the taxpayer pay up blackmail.
– No, let him pay up what he owes.
– He is not given that opportunity under this clause. If the Commissioner finds that he has undervalued his property, the taxpayer is liable to be subjected to all these proceedings. He is not given an opportunity to correct any mistake; the matter must go before the Court. The Commissioner should be in a position to say, “ I shall, at your expense, have an independent valuation of yourland made, and will charge you taxation upon that, but you will have a right of appeal if you think I have overtaxed you.” If that course were adopted it would do away with all this cumbrous procedure, and allay the nervousness and fright which this measure is causing to many people.
– Some people need a lot of fear to make them honest.
– I suppose we might as well admit at once that there is only one honest party in the Commonwealth and that is the Labour party. We might as well admit that all the scoundrelism and wickedness is practised by those who are outside the Labour party.
– We do not say that.
– That was almost implied in the pharisaical interjection of the Vice-President of the Executive Council that it takes a lot of fear to make the people on this side honest.
– I did not say that.
– The honorable senator said something very like it. He implied that there is a number of people in the Commonwealth who cannot be honest unless very great trouble is taken to make them honest.
– Every gaol is a proof of that.
– It may be in the mind of the honorable senator. I have submitted a plain, common-sense proposition, by which all that is desired might be accomplished without the cumbrous procedure proposed in this clause.
– What is this compared to the inquisitorial character of the Income Tax Act in Victoria; yet its provisions have been found to be necessary to make people honest ?
– All legislation of this character must be to some extent inquisitorial. The Commissioner of Land Tax must be inquisitorial. He must be of opinion that there is something wrong before he takes action under this clause, but how is he to be assured of that ?
– By a valuation.
– If he has made a valuation, why should he not say to the taxpayer, “ Here is a fair valuation of your land. I shall charge you taxation on that “ ? Why should he have to go through all this Court procedure? He must have arrived at an opinion that an estate has been undervalued as the result of valuations by his officers, or of a comparison of the valuation sent in by the taxpayer with the valuations placed upon similar land. And why should he not then inform the taxpayer that he lias put a certain valuation upon his land and intends to charge him upon that? I appeal again to the Vice-President of the Executive Council to adopt in this matter a common-sense and reasonable course.
Question - That the words proposed to be left out be left out- put. The Committee divided.
Majority … … 10
Question so resolved in the negative.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [12.52].- There is another amendment which I think ought to be submitted, even though we have been unsuccessful with the last. The clause provides that if the Justice is not satisfied that the undervaluation was not made with a view to evading taxation, he shall make the declaration applied for. That is a very unsatisfactory provision, and we think that, before the Justice makes the declaration applied for, he should be satisfied that the undervaluation was made with a view to evading the tax. I therefore move -
That the word “not,” line 23, be left out.
If that amendment is agreed to, I shall, of course, move the omission of the second word “not” in the same paragraph, and it would then read - is satisfied that the undervaluation was made with a view to evading taxation.
Question - That the word proposed to be left out be left out - put. The Committee divided.
Majority … …11
Question so resolved in the negative.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [1.0].- I have still another amendment to move on this clause. It provides that in the circumstances stated the Justice “ shall make the declaration applied for.” I move -
That the word “ shall,” line 26, be left out, with a view to insert in lieu thereof the word “ may.”
Sitting suspended from 1 to 2.30 p.m.
– We have already had one measure before this Parliament in which the word “ may “ was substituted for the word “ shall “ at the instance of the Government themselves. I refer to the Commonwealth Conciliation and Arbitration Bill, in which it was originally proposed to compel the President of the Conciliation and Arbitration Court to grant a preference to unionists.
– A very different situation.
– That may be so. But I think we should endeavour, as far as possible, to make our laws harmonious in the matter of the language employed in them. The amendment would permit a Justice of the High Court to express his opinion upon the subject of the application. It would endow him with a measure of discretion. We cannot definitely lay it down that a Justice shall do a certain thing.
– If a man is convicted of a capital offence, must not the Judge pass upon him the capital sentence?
– We are not following the best principles of British jurisprudence when we declare that a Justice must do a certain thing. The very meaning of the word “Judge” implies that he must be vested with discretionary power.
– He must judge upon the facts presented to him.
– Why should a Justice be compelled to make the declaration provided for in this clause?
– If a land-owner be found guilty of undervaluation the Justice will say, “ Yes “ if he be not found guilty, the Justice will say, “ No.”
– As a Scotchman, the Vice-President of the Executive Council knows that, in his own country, a “ Yes-No “ verdict would not be accepted.
– This is a positive case. It must be either one thing or the other.
– The clause provides that the Justice shall make a certain declaration.
– If he be not satisfied that that undervaluation was not made with a view to evade taxation.
– If he be not satisfied that the land-owner is guilty, he must convict him.
– If he be not satisfied that the land-owner is not guilty.
– I strongly urge upon the Government that they are embodying in this clause a principle which is foreign to all our laws. They are laying down a rule to control our Justices. Our whole idea of British jurisprudence is that a Justice shall be vested with a certain amount of discretion. But under this clause he will have no discretion. We say to him, ‘ ‘ Given certain facts you must do so-and-so.” In adopting that course we are introducing into our laws an absolutely new principle. We are introducing by a side wind the very principle which caused (he South African war. We are seeking to compel a Justice to express a certain opinion, irrespective of whether he thinks it is right or wrong. If my honorable friends opposite are willing to do that, they, must accept responsibility for their action.
– We do not assume that what the honorable senator says is right.
– I repeat that honorable senators opposite must accept responsibility for introducing into our Australian law a new principle, namely, that Parliament can compel a Justice to give a judgment one way or the other.
– Hear, hear ; that is what we say.
– Then, in the future, our Justices are merely to be machines to give effect, not to the actual wording of an Act-
– But to the spirit of it.
– Exactly. That is opposed to all our methods of legal procedure.
– The honorable senator wishes the Justice to be omnipotent.
– Does my honorable friend think that Parliament should be so supreme that it should not be told by a Justice of the High Court that it has done wrong? I entirely agree with Senator Gould, that we must have some tribunal which will judge between Parliament and the people. But this is not a proposal to judge between Parliament and the people. It is an attempt to desert all our recognised principles of jurisprudence, and to adopt the method adopted by Napoleon, when he introduced the famous Napoleonic code, which laid it down that any man charged with a crime was to be assumed to be guilty until he could establish his innocence. Hitherto we have proceeded upon an exactly opposite principle. British jurisprudence presupposes that a man is innocent until he is proved to be guilty. But in this clause we say that unless a man can prove his innocence, the Justice must find him guilty.
– That is what we propose, exactly.
– I am glad to hear the Vice-President of the Executive Council make the position perfectly clear. But my honorable friends must, in future, apply the principle all round. They must apply it, not only to the land-owner, but to the man who is charged with murder.
– We are now dealing only with land; we have nothing to do with murder. That is a State right.
– My honorable friend may have nothing to do with murder, but he is endeavouring to kill several thing?. If the honorable gentleman is willing to say that until a land-owner is proved to be guilty he must be deemed to be innocent, I. shall be with him. But he cannot S:lv that a land-owner who is charged with a certain offence shall be assumed to be guilty until he establishes his innocence, while a person who is charged with another crime - petty larceny, for example - shall be deemed to be innocent until his guilt has been established. My honorable friends are on the horns of a dilemma. They can remain on which horn they choose. But they ought to make some definite statement to the public to explain their attitude.
– A politician never explains !
– If I am to understand that my honorable friends opposite profess to be politicians, not statesmen, I make them a present of the position.
– Each case will be considered on its merits.
– That statement does not suit me at all, because we have had experience of what has happened to men who have tried to get their cases considered on their merits by Labour unions.
Will the Minister say definitely whether the Government have adopted the principle with regard to all their legislation, that when a man is charged with an offence, whether civil or criminal, he is to be considered guilty, unless he proves his innocence ?
– I should like to crystallize the point of controversy in connexion with this clause. The interjections which have come from the Ministerial side suggest that there is a sort of belief in the minds of honorable senators that justice will hold sway when the clause is put into operation. But this is the way in which it will work out: The Judge, having heard the evidence, has to put to himself this question : “ Am I satisfied that this man is guilty?” If he returns an affirmative answer, the man will be rightly punished. But if the Judge is not satisfied, the person charged is still punished.
– No, he is not.
– That is exactly what the clause says. The Judge is not at liberty to return that Scotch verdict which this morning had so much virtue in the eyes of Senator McDougall.
– The Scotch verdict is not provided for in any of our Federal legislation.
– The principle generally adopted in our legislation has been that, unless an accused person is proved guilty, he is discharged. But in this case the Judge has no option. If the case is not proved against the accused, he cannot be discharged.
– Yes, he can.
– Either Senator McDougall or myself is unable to read plain English, if what he says be correct. What the honorable senator wants would be met by making the clause read, “ If the Justice is satisfied that the undervaluation was made with a view of avoiding taxation.” In that case, he would clearly have to find the accused guilty, and, if not satisfied of his guilt, would have to discharge him.
– The honorable senator objects to the negative way of putting it.
– There is more at issue than a negative way of putting the matter. What I object to is that, even if the Judge is unable to satisfy himself that any offence has been committed with guilty intent, he is still to find the accused guilty. The Judge, having balanced the evidence in his own mind, puts to himself a question. If he considers the offence proved, he rightly gives his verdict against the accused. But if he says, “I am unable to see any evidence of guilt; the evidence is so equally balanced that I cannot see the slightest tendency towards crime” - nevertheless he cannot let the accused go free, as he ought to do.
– And as he will.
– Senator McGregor himself has repeated a dozen times - andI accept his interpretation of the Bill - that the Judge will not be at liberty to dismiss a complaint merely because he is inclined to the idea that there is no evidence of guilt. He has to be absolutely certain in his own mind that the case for the defence has been made out, before he can dismiss the case.
– The honorable senator thinks that, under this clause, no person can escape conviction, no matter how innocent he may be?
– No; there will be three classes of cases coming before the Court - one in which the guilt of the accused is proved, a second in which his innocence is established. In both of those cases the Judge will be able to make an award in accordance with what he believes to be right. But there will be a third class of cases, in which the evidence is not sufficient to establish the innocence of the accuseds whilst, also, it is insufficient to establish his guilt.
– Then the Judge will not be satisfied.
– Satisfied of what?
– Of the guilt or Innocence of the accused.
– My point is that, in that third case, the Judge has to find the accused guilty.
– Except the Judge is satisfied he has not to sign a conviction; read the early part of the clause.
– I have read the whole of it. Suppose that Senator Gardiner is brought before the Court under this clause, and that, having heard the evidence, he says, “ Your Honour, on that evidence do you hold me guilty?” Suppose that the Judge says, “ Senator Gardiner, I see no evidence to justify me in believing that you are guilty ; but I am compelled to find you guilty, because the evidence does not justify me in saying that you are innocent.”
– In that case, the Judge will not be satisfied.
– Exactly ; and the clause says that if the Judge is not satisfied, he has to find the accused guilty.
– First of all, it has to be proved that accused has undervalued his property.
– Let us admit that that has been proved. Then the point remains that, having decided that the land has been undervalued to the extent of 25 per cent., the Judge has to determine whether the undervaluation has been made with intent to defraud the revenue. If guilt is established, the offender should be punished ; if it is not established, he should go free; but, as I have already shown, there is a third class of cases in which the Judge may say, “ I cannot find anything in the evidence to satisfy me that the accused is guilty; I am in doubt about it.” But because the accused is not able absolutely to demonstrate his innocence the clause leaves the Judge no option but to find him guilty. I have too great regard for honorable senators opposite to believe that if they were left in the secrecy of their rooms to devise a code of laws a single one of them would draft a provision of this kind. I am quite aware how measures come before the Senate, and the natural tendency of every honorable senator is, rightly 1 think, to adhere to the proposals of his own party. But in a matter of this kind, where no principle is involved, where the integrity of the land tax will not be challenged, and the revenue will not suffer by a penny, I ask honorable senators not to be a party to such a gross act of injustice as will be perpetrated by this clause if enacted.
.- As I read the clause, the Justice is to be bound to make the declaration which is applied for by the Commissioner of Land Tax. It is an accepted principle of British jurisprudence that a man shall not be deemed guilty until his guilt is proved. According to the first part of paragraph c of this clause -
If the Justice is satisfied that the owner has understated the unimproved value of the land to the extent of 25 per cent, or more he shall make the declaration applied for.
It also contains this further provision -
If the Justice is not satisfied that the undervaluation was not made with a view to evading taxation.
Then follow the words “ he shall make the declaration applied for.” I have read thousands of Acts of Parliament, and when I read this clause I cannot ignore the fact that, in compliance with its very language, the Justice must make the declaration that the land is forfeited.
– The honorable senator is overlooking the fact that the owner is entitled to be heard.
– I am not forgetting that at all. What ought to be provided is that before making the declaration the Justice shall be thoroughly satisfied that the owner has made the undervaluation with a view to evading taxation. The other day, in Victoria, we read of an estate which had been valued by professional men, and which was bought, I believe, at £12 an acre. It was valued by some persons at £7 an acre, and by others at £10, while the Government paid £12. A short time previously it had been sold at £7 10s. an acre. A man came in and valued the land, and £7 10s. must have been the value which the owner a month before put upon it, because he got that amount. Under this clause, however, if an owner values his land at £7 10s. an acre, and a Government valuator values it at £12, it will be forfeited to the Crown. In legislating on this question we should not depart from the ordinary practice. If the case were triable before a jury, the Justice would give its verdict, but in this instance the Justice will be Judge and jury. It is a very hard provision that if the Justice is not satisfied, he must make the declaration applied for. I think it must have slipped in without being noticed.
– We know that very often the draftsmen make measures very confusing. We know that when a case comes before the Full Court of a State or the High Court of the Commonwealth, a Justice ascertains the meaning of a word before he attempts to interpret the section in dispute. No one but a lawyer could take this clause to mean other than that if. after hearing the case, the Justice is not satisfied as to the innocence of the landowner, he must make the declaration applied for, although he may be in doubt as to whether he is doing right or not; he is left no option in the matter. I do not wish any man to have an opportunity to evade taxation, but we cannot shut our eyes to the fact that it is difficult for two or three men to value a piece of land alike. No doubt, every honorable senator when he has been adjudicating in a Police Court has had cases in which he has been unable to make up his mind, owing to the weight of evidence being equal. What is done in such cases? The accused is given the benefit of the doubt, and the case is dismissed. Under this clause, however, the Justice cannot give the accused land-owner the benefit of the doubt he may have in his mind, because he must make the declaration applied for by the Commissioner.
– There is no “ must “ there at all.
– Does the honorable senator understand English?
– Is not “ shall “ imperative ?
– No, it is not.
– According to the dictionary, “ shall “ is imperative. Whenever it is used in a legal document it is imperative that the thing in question be done. Suppose, for instance, that a person were brought up for trial, and the law was that if he was found guilty he should be sentenced to two years’ imprisonment? The Judge could not pass a sentence of one year and eleven months’ imprisonment, but must pass the full sentence, because no discretion would be left to him. In ordinary criminal cases, if the Judge is not satisfied, the prisoner gets the benefit of the doubt. I did not use the word “must” in regard to the language of the Bill, but certainly the word “ shall “ is mandatory. We are here to legislate in the interests of the people, and to do an injustice to nobody. So long as the word “ shall “ is retained in the clause, the Justice, if in doubt, must give the benefit of the doubt to the Crown. What justice or fair play is there in a provision of that kind? I do not find fault with the first provision in paragraph c, but I do object to the second part, which reads - is not satisfied that the undervaluation was not made with a view to evading taxation.
– With emphasis on the words “made with a view to evading taxation.”
– The honorable senator must have a different print “of the Bill from mine, because no emphasis or stress is laid, by the use of italic letters, on a single word in my copy.
– The English of the paragraph shows that emphasis is laid on the words I quoted.
– If the Justice is not satisfied that the undervaluation was made for that purpose, he must make the declaration.
– No; if he is satisfied.
– I really cannot understand the honorable senator’s contention. I do not think that he understands it himself.
– I do not understand the honorable senator.
– There is nobody so deaf as those who do not want to hear, or so blind as those who do not want to see.
– The honorable senator is getting blind.
– The honorable senator is getting impertinent, and I do not thank him for his interjection. Last night he had to be called to order several times for interjecting.
Senator Needham. - I rise to a point of order. The honorable senator has stated that several times last night I had to be called to order for interjecting. He has told a lie.
– Order !
– His statement is an untruth.
-The honorable senator must withdraw the remark that Senator Sayers has told a lie.
– I was not called to order at ail. I do not see why the honorable senator should say that I was called to order when I was not.
– I ask the honorable senator to withdraw the remark.
– I will withdraw my statement that what the honorable senator said was a lie, but I wish to say that last night I was not called to order.
– Well, the honorable senator ought to have been.
– I do not thank Senator Millen for his interjection ; if he were called to order as often as he ought to be, he would not be here now.
– That is a reflection upon the Chair.
– I ask Senator Needham to be good enough to state his point of order.
– My point of order is that Senator Sayers was absolutely incorrect in saying that I was called to order last night.
– I cannot see any point of order in that. It may have been an incorrect statement.
– Then I ask that Senator Sayers be called upon to withdraw his incorrect statement.
– I take so little notice of anything Senator Needham says-
– I direct your attention, sir, to the fact that Senator Sayers has accused me of having been called to order several times last night. I say the statement is incorrect, and I ask Senator Sayers, through you, sir, to withdraw it.
– I have already stated that I see no point of order in theremark made by Senator Sayers.
– I have already withdrawn my remark that the statement was a lie, and Senator Sayers should be called upon to withdraw his incorrect statement.
– Senator Needham got up with the full intention to make the remark he did, but I treat the honorable senator and his remarks with utter contempt. He was called’ to order last night. I did not say that he was called to order by you, sir, but he was called to order by other honorable senators for making trie interjection he did.
– You are the most contemptuous article in the place.
– Order ! The honorable senator must withdraw that remark.
– I withdraw it.
– I regard the honorable senator and his remarks as beneath contempt.
– The matter is closed, and ought not to be referred to again.
– I shall not allow Senator Needham, Senator McGregor, or anybody else to get up and give me the lie on the floor of this chamber.
– Then why make lying statements?
– I said what was perfectly true. I said the honorable senator was called to order by honorable senators here.
– The honorable senator said nothing of the sort.
– I did not say that the honorable senator was called to order by the Chair.’ I said he was called to order for his interjections.
– The honorable senator said nothing of the sort.
– If the honorable senator were worth taking notice of, I would take notice of him.
– Order ! I ask Senator Sayers to continue his speech. The incident is closed.
– That is all right, sir, but when an honorable senator tells another that what he says is a deliberate lie-
– Order ! I ask Senator Sayers to resume his seat. I ask the honorable senator to withdraw the remark that Senator Needham told a deliberate lie.
– I did not say that. What I said was that Senator Needham remarked that I had told a deliberate lie.
-Then, in the confusion, I misunderstood the honorable senator. I ask honorable senators generally to refrain from noisy interjections, especially when a point of order is before the Chair. If they will not assist the Chairman in keeping order, it is impossible for him to perform his duties properly. I again ask honorable senators, especially when a point of order is before the Chair, to refrain from so many noisy interjections until it has been disposed of.
– I must be allowed to say-
– Oh !
– Well, I do not make these remarks across the floor of the chamber to other honorable senators; I do not think I have interjected while other honorable senators have been speaking during the last two days.
– Great Scott !
– I rise to a point of order. A point of order was raised and settled. The incident was closed, and I now direct your attention, sir, to the fact that Senator Sayers is not discussing clause 46 as he ought to be. I hope you will ask him to do so.
-I have asked Senator Sayers to proceed with his speech. Immediately I find that he is not discussing the question I shall call him to order.
– We will go back to the clause now.
– I am glad the honorable senator has got back to it now.
– AmI to be pestered by this individual?
– Order !
– It is all very well, but I am not used to this kind of thing.
– The honorable senator would make other honorable senators used to it.
– It seems, sir, that your ruling is not taken much notice of. I maintain that under this clause the Justice will have no discretion. He must make the order applied for by the Commissioner, even though he is not satisfied that the taxpayer has undervalued the land with the intention to evade the tax. We should not make laws to punish people who are innocent of evil intent. I suppose that the clause will be forced through, as the Government are powerful enough to be able to do that; but I protest against such a provision being made the law of this country.
– I have so far refrained from taking part in the debate upon this Bill in Committee. I cannot understand why my antagonist who has just resumed his seat should lash himself into a fury about this clause. He has contended that the Justice of the High Court, who will hear the application from the Commissioner, must make the declaration applied for, right or wrong. The honorable senator supports his contention by the use in this clause of the word “shall.” A man is assumed to be innocent until he is proved to be guilty, and I can see nothing in this clause to justify the contention that an innocent man is to be regarded as guilty before he is given a chance to be heard in his own defence. I can recollect the case of a man who was engaged in making the laws of the country in which he was living, and who, when called upon under a Land Tax Bill to state the amount for which he was liable to be taxed, undervalued his estate. He was his own valuator, and sent in a return in which he undervalued his property. The case came before the Commissioner, with the result that the gentleman to whom I refer was fined. If a law maker may be a law breaker, it is not difficult to imagine that some persons will deliberately endeavour to evade this taxation. If the Commissioner is satisfied that an attempt is being made to evade taxation by the undervaluation of a property, he may apply to a Justice of the High Court under this clause for a certain declaration, but the taxpayer will be heard, and the declaration will not be made by the Justice unless he is not satisfied that the undervaluation was not made with a view to evading the tax. Honorable senators opposite have lashed themselves into a fury over this simple matter, and one honorable senator who has taken part in the debate has so far permitted his passion to control him as to become insulting. I have no desire to assist in passing any legislation that would inflict the slightest injustice upon any citizen of the Commonwealth. I remind honorable senators that there are Statutes already in existence under which officials are given as much, if not more, power than is proposed to be given to the Commissioner under this clause. Under the Customs Act a man may be called upon to disclose books and documents and the secrets of his business. This is one of the simplest clauses in the Bill, and will inflict no injustice upon any honest citizen.
– Under it, we may penalize a man whose honesty is not proved, although we cannot prove his guilt.
- Senator Millen approved of a provision in the Industries Preservation Act under which the Comptroller of Customs is given power to seize documents in order to prove the existence of a combine. Under this clause a man who, in the opinion of the Commissioner, has endeavoured to defraud the revenue will be allowed to state his case.
– That is what every one would expect, but the honorable senator speaks as though it were a great concession to the land-owner.
– I do not look upon it as a concession, but as a right. I am replying to the contention from the other side that a man may be convicted under this clause without being heard.
– No one on this side ever said so.
– Under the clause every honest citizen will have an ample opportunity to prove his honesty, and the man who cannot do so may fairly be left to the Justice of the High Court.
.- Under this clause the Justice shall make the application applied for, namely, that the Commonwealth is entitled to acquire the land, though he may not be satisfied of the guilt of the taxpayer.
– Let us get to a vote.
– I am surprised that the honorable senator should give his consent to such a clause. I repeat my statement.
– And the honorable senator is wrong.
. -I do not propose to argue this question again.
– Is the honorable senator “ stone-walling “ ?
– That is a very unfair remark. In speaking upon this clause earlier in the afternoon, I pointed out that the Government, upon their own initiative, had substituted the word “may” for “shall” in the Commonwealth Conciliation and Arbitration Act in connexion with the granting of preference to unionists.
– More is the pity.
– My honorable friend did not vote against their proposal on that occasion. Section 3 of that Act reads -
The President may whenever required, &c.
Section 8 reads -
The Court may, &c.
Section 10 reads -
The Court may by award, &c.
That Act lays down the rule which is to guide the President of the Conciliation and Arbitration Court. But, under this clause, we say that, in certain circumstances, a Justice shall make a certain declaration. The Government will act reasonably if they adopt similar language in this Bill to that which is employed in the Act to which I have referred. Our Justices will then be vested with a reasonable measure of discretion. As the clause now stands, if the Justice be not satisfied that an undervaluation was made by a land-owner, with a view to evading taxation, he must make a declaration that the Commonwealth is entitled to acquire the property which has been undervalued.Why not drop the negatives which are employed in the clause? Why not provide that if the Justice be satisfied that the undervaluation was made with a view to evading taxation, he shall make an order? But in this provision the Government have used the word “not” twice; and I venture to say that before long they will find that they are Gordian knots.
Question - That the word proposed to be left out be left out- put. The Committee divided.
Majority … …9
Question so resolved in the negative.
Question - That the clause stand as printed - put. The Committee divided.
Majority … … 9
Question so resolved in the affirmative.
Clause agreed to.
Senator PEARCE laid upon the table the following papers : -
Defence. - Papers relating to the Employment of Members of the Royal Australian Artillery at Williamstown Rifle Range.
Census and Statistics Act. - Census Regulations.
Census Regulations, 1910, No. 2.
Motion (by Senator McGregor) proposed -
That the Senate, at its rising, adjourn until
– Why should we adjourn until Wednesday next? We have been working longer hours than has been the case in any other session, and surely some reason ought to be advanced for abandoning the Tuesday sitting.
– Tuesday is a public holiday.
– This is the first time the Senate has been asked to adjourn for the purpose in view. I must enter my protest against an adjournment for such a purpose.
– The honorable senator does not want a holiday?
– I want the business of the session to go ahead. We have often heard it said that the House of Commons adjourns for the Derby.
– The House of Commons does not adjourn for that purpose now.
– The Labour newspapers have often commented upon that fact, saying that the aristocrats of Great Britain hung up legislation in order that they might go to a horse-race. Now, we have the business of the Senate being hung up by the Labour party for the same purpose. The only reason is that the race for the Melbourne Cup is to be run on Tuesday next.
– Do not start “wowsering.”
– No matter what the honorable senator chooses to call it, I know that he has been one of the strongest opponents of having adjournments of the Senate from time to time. I have heard it said, however, that when people become wealthy they get a little more conservative, and like to enjoy themselves at the public expense. We ought not to stop the work of the Senate for such a purpose. Towards the end of the session, the Esti mates will be rushed upon us, and there will be no time to consider them carefully, because honorable senators will want to get to their homes. I protest against following this course, and shall certainly call for a division.
– -There is always a danger of confusing a coincidence with the operation of cause and effect; and it seems to be assumed by some honorable senators that we are asked to adjourn over Tuesday because of something that is going to happen in Melbourne on that day. It is assumed that that event is the cause of the adjourn-? ment. Probably honorable senators recollect the story of Mark Twain who, when he was last in London, saw on a newspaper placard the headings “ Mark Twain in London: Ascot Gold Cup stolen.” There is no more necessary connexion between the Melbourne Cup and an adjournment of the Senate over a particular day than there was between those two circumstances. I would, however, suggest that, in view of the fact that the trains may be running late on Wednesday, the Vice-President of the Executive Council might agree to make the time of meeting 3 o’clock instead of 2.30.
– There will be a quorum present.
– We will not take a mean advantage of the honorable senator’s absence.
– Sometimes the trains do not arrive promptly when there is a public holiday ; and honorable senators are put to inconvenience in having to rush from the station to Parliament House. I recognise, however, that the adjournment is to meet the convenience of honorable senators, and am in favour of it.
– The object of the Leader of the Opposition must be apparent to every one. He is not only in favour of the proposed adjournment, but I suppose would also be in favour of any adjournment which the Government might be foolish enough to propose.
– I think the country would be well served by shutting up the place altogether.
– I have not the slightest doubt about that. My reason for opposing the adjournment is exactly the reason which the Leader of the Opposition has given for supporting it. I believe that the business of the country is so urgent that we cannot afford an adjournment. At a very early period rf the session, the Senate was asked to sit four days a week. Notwithstanding that we have done so, the business-paper is still loaded with measures, some of which must be passed before the session ends.
– A little well-earned rest will lead to a saving of time in reality.
– We are now engaged upon, one of the most important measures that has ever come before this Parliament - the Land Tax Assessment Bill. It must be passed this session.’ The Navigation Bill has also to be dealt with. There are seventeen other Bills upon the Government programme which Parliament will have to pass before it is prorogued. In addition to this business, we were some time ago promised- ‘that an opportunity would be afforded for discussing the financial proposals of the Government and the census paper. Pressure of business has hitherto prevented those questions being dealt with. Private business has been put on one side altogether, except that one honorable senator was, as an act of grace, last night afforded an opportunity of submitting a motion standing in his name. In addition to all this business, we have to consider the Estimates of the various Departments in detail. I ask those who have had any experience of parliamentary procedure what likelihood there is of the Estimates receiving anything like fair consideration unless we work all day, and every day, from now until the end of the session? There is a plethora of business before the Senate at the present moment ; and, in addition to that, the Government have a programme which they desire to see carried through - unless Ministers are prepared to throw overboard . a number of important Bills. Consequently, the present motion is entirely out of place. No reason has been given by the Minister for the adjournment. It is usual, on such occasions, to give a reason.
– We want to go to the Melbourne Cup.
– The Leader of the Opposition was particularly careful to try to cover up the reason.
– Honorable senators all know the reason.
– Of course, we know the reason ; but why was it not publicly stated ? Was it because the Government and members of Parliament are ashamed of the reason ? If it were in any way creditable, would it not be blazoned forth so that every one in the country could hear it? The reason why the Senate is asked to adjourn until Wednesday is because a horse-race is to be run on Tuesday.
– Hear, hear !
– Imagine the Parliament of a country adjourning to see a few horses running a race 1 Imagine the directors of a company leaving their offices, putting aside all their business and running off to sp.p. a few horses competing with each other !
– Business people will all do that on Tuesday.
– If that would be regarded as improper in such an instance, how much more improper is it for the members of the Parliament of a country to abandon their work when there is plenty of it before them, simply for the purpose of going to see a few horses running against each other?
– They may have an interest in the event !
– I have no objection whatever to honorable senators going to see the Cup race. They can go if they please. What I object to is hanging up the business of the country in order that these gentlemen, for their own personal enjoyment, may go to see something which is agreeable to them. I shall not say much about the associations of the racecourse I have heard a great deal about those associations. I have very seldom attended a race-course, and know very little about racing.
– The honorable senator was away at the beginning of the session ; what was he doing then?
– I think that honorable senators will admit that when they go to see a race run, they have no more idea of what horse is going to win than they have of whether they will ever get to Heaven.
– We wish we had.
– Not only do they not know which horse is going to win, but they do not know whether the best horse is going to be allowed to win. Every one of them knows that there is not a single race run in Australia on straight, honest, fair lines. They know that the associations of the race-course are invariably of such a character as one would not expect to be patronized by members of Parliament.
– Do not give it away.
– I know nothing about the matter except what I have heard from honorable senators. They know that horse-racing is conducted on the most strictly dishonest principles. They know that there is a squaring of jockeys, trainers, owners, bookies - in fact, everybody - for one purpose, and that is to take down stupid people like honorable senators who attend races and back horses with their money.
– Is the honorable senator speaking from experience?
– I may be a fool, but I am wise enough to know that I am not equal to the bookies. I am not such an ass as to believe that at a game in which they are experts I am likely to have a chance with them, and, therefore, I do riot put my money on racehorses. We ought to show an example to the people. I have no doubt there are a great number of honorable senators who respect the Mother of Parliaments. On four successive occasions, up to 1895, the House of Commons rejected, by a huge majority, any proposal to adjourn over the Derby, and, naturally, no member has the temerity to rise now and propose such a motion as this. Melbourne Cup Day has come and gone, but never until now, has a Government dared to propose that Parliament should adjourn over that event.
– Because hitherto the Senate has always re-assembled in that week on the Wednesday, not on the Tuesday.
– It was reserved to a Labour Government to set this vile precedent.
– The Senate has never met on Melbourne Cup Day.
– It has.
– The other House has sat on that day.
– The Parliament has been sitting. No proposal was ever made before to adjourn over Melbourne Cup Day ; no Government had the temerity to make such a motion. I can rememberin the Old Country, when the great mass of the electors used to pass very uncomplimentary remarks about the gilded parasites who sat in the House of Commons, when they were in the habit of adjourning to see the Derby run. I have heard remarks of the same tenor made in Australia. I have often heard it said before I was fortunate, or unfortunate, enough to get a seat in Parliament, that members of Parliament simply played at legislation. We have more play now than ever. We are actually asked to do what has never been done before, and that is to adjourn over a horse race. I suppose that the next thing we shall be asked to adjourn over will be a dog or cock fight.
– Or a garden party.
– I have just the same objection to adjourning over a garden party as I have to. adjourning over a horse race. All these society functions and ideas ought to be boycotted when we have a Labour Government in power. We are sent here to do the work of the country, not to engage in social functions of any kind or colour. If honorable senators wish to go to a garden party, dog fight, horse race, or prize fight, they are quite welcome to go. But why should we hang up the business of the country for that purpose? I intend to vote against the motion.
– Although the holiday on Tuesday next is limited to Victoria, I want to congratulate the Government upon having had the courage to take a definite stand - a thing which no previous Government ever did. For nearly fifty years in Victoria the first Tuesday in November has ;>cen recognised as a holiday, not merely for the purpose of horse-racing, but for the most innocent purpose of Sunday school picnics.
– Are you going to a picnic on Tuesday ?
– It has been ray pleasure to see about twenty-two Melbourne Cups won, and whatever decision the Senate may come to on this motion, it is my intention to attend the next race. I believe that I have been about as regular in my attendance as has Senator Stewart ; I think that I have done about as ‘much work, within my limited powers, as he has done ; but I do not believe that Australia has yet reached that stage when it will loudly applaud representatives who take up a hypocritical attitude, namely, desiring to go to the Cup, in common with the rest of the community, and lacking the necessary courage to vote a holiday to themselves. The Melbourne Cup race on Tuesday will bc witnessed by, I suppose, about 120,000 citizens of Victoria. A similar number will be here, if it is possible for them to come, from country districts to join in the various gaieties of the city. That accounts for practically 250,000 o’f the population of the State. Any holiday which has the support of that number of citizens can undoubtedly be proclaimed, if not a national, at least a State, holiday. I recognise that at the Cup meeting there may be many doubtful characters, but I do not know of any similar aggregation of people in any other part of the world, where doubtful characters will not be found. I believe that, as regards the 250,000 Australians who will be interested in the running for the Cup, their civilization, morality, and standard of life will compare more than favorably with those of any similar number of persons in any other country. I do not desire it to be understood that I am in the habit of following racing. I do not, as a rule, follow that sport ; but I have always taken an interest in the annual Cup meeting, and intend to continue to do so. The employés of the Parliament are employés of the Commonwealth. I do not know of the employés of any other employer in Victoria being likely to be called on to work on Tuesday next. Nor do I know anything connected with the Labour Government which should make them hostile to genuine sport, and if a sport is not properly conducted, it is the duty of the State to intervene. Surely a Labour Government is not going to be the only employer on Tuesday next that will refuse toits employés the right to enjoy a holiday in common with the rest of the citizens? I intend to vote for the motion, and I trust that my fellow senators will have the courage to vote for the holiday, which I know they desire.
– I take it for granted that the motion will be carried, as I know that there are not many “ kill- joys “ in the Senate. I join with Senator Millen, however, in asking the Government to fix the hour of meeting on Wednesday next at 3 p.m., instead of 2.30 p.m., because the rule now is to meet at 3 o’clock on the first sitting day in the week. Probably a number of honorable senators will not spend Tuesday in Melbourne, but in other States, and I think on the first sitting day next week we should meet at the usual hour. I ask the Government to consider whether their business would not be just as far advanced by meeting at 3 p.m. as by meeting halfanhour earlier. It is not too late to make an alteration.
– It isnot my motion, and I cannot alter the hour without consulting the Vice-President of the Executive Council.
– But it belongs to the Senate.
– The Minister of Defence has only to ask leave to amend the motion.
– I think that, in proposing to adjourn over Melbourne Cup Day, the Government have taken a right step.I think it is a pity that it did not exhibit equal courage in another place, and propose to meet on Wednesday afternoon, instead of on Tuesday evening, thus extending consideration to all persons connected with Parliament, and giving them an opportunity to spend a recognised holiday as they like.I am not afraid to say that if on Tuesday I am as well as I am now, I shall be on the Flemington racecourse. I have much pleasure in supporting the motion.
Question put. The Senate divided.
Majority … … 15
Question so resolved in the affirmative.
Bill received from the House of Representatives, and(on motion by Senator Pearce) read a first time.
Senate adjourned at 4.20 p.m.
Cite as: Australia, Senate, Debates, 28 October 1910, viewed 22 October 2017, <http://historichansard.net/senate/1910/19101028_senate_4_58/>.