4th Parliament · 3rd Session
The President took the chair at 10.30 a.m., and read prayers.
– I move -
That this Bill be now read a second time.
This is a very short Bill for the purpose of bringing the Commonwealth Fleet under the provisions of the Audit Act. When the original Audit Bill was passed, the Australian Fleet was scarcely in contemplation, and therefore no provision was made for the peculiar circumstances that must exist in every navy in comparison with other portions of the Public Service. The object of this Bill is to make the same provision with respect to the Australian Navy as exists in connexion with the Imperial Navy. It will enable the captains of vessels to pay their men, as is done in the Imperial Navy, without it being necessary to get receipts, and also to obtain credit, in a manner different from that which is necessary in the ordinary Public Service. All the transactions will be subject to a report by the Auditor-General, but the same hard-and-fast rules will not apply to the Navy as apply to other portions of the Public Service. I am sure that every honorable senator will realize the necessity for passing the Bill owing to the different circumstances which now prevail.
– I think that this is a suitable opportunity to draw the attention of the Government to the fact that we do not get the Auditor- General’s report at a reasonable time. On the 30th April last, the AuditorGeneral stated in his report that on that date he had received the last figures of the Budget-speech, which was delivered by the Treasurer in October of the previous year. The result of this delay was that the Auditor-General’s report appeared in the Gazette, and did not appear as a separate document. Obviously, it appeared long after the time when it could possibly have been of any value to members of Parliament in discussing the Budget-papers. Of course, this Bill only deals with the appli cation of the provisions of the Audit Act to naval establishments. But I think it is up to the Government to see if it is not possible for the Treasurer, when he has delivered a Budget-speech, to hand the papers straight away to the Auditor-General; in fact, I think that the Auditor-General ought to have the papers even beforethe Treasurer delivers his Budget-speech. The position is getting worse and worse. We have Budget-papers before the Senate at the present time, and the Auditor-General’s report will probably appear some time after the next general election. Whether the delay is the fault of the Auditor-General or of anybody else, I am not prepared to say, but if it is possible, the Government should try to speed up the Auditor-General. When the members of a State Parliament are discussing financial matters, they have in their hands the Auditor-General’s report, and are therefore able to check any statements made by the Government or appearing in the Budget-papers.
.- When I read the Bill this morning, it seemed rather an alarming one, doing away with desirable safeguards; but the Minister’s explanation has put a different complexion upon the matter. At the same time, we are asked to take a good deal on trust. We cannot but agree to the Bill, though I hope that the Government will see that in giving the necessary authority for the expenditure of money, there will be an absolute check, so that the expenditure can be capably supervised. We do not want to get into a loose habit with the Navy. We all know that naval men are prone to be extravagant, and, therefore, I hope the Government will exercise that care that is demanded in connexion with all such matters.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [10.37].- Before I had an opportunity of looking at the Audit Act, or hearing the explanation of the Vice-President of the Executive Council, I feared that some undesirable course was being introduced in connexion with the auditing of our accounts. But after that explanation, and also an explanation which I had privately from the Minister of Defence, I see no possible objection to the passage of the Bill. It seems to be necessary in order to facilitate the payments in connexion with our ships, and, to a certain extent, payments to the Naval Force, and it should therefore, be safe to pass the Bill. I should
Hike to emphasize what Senator Chataway has said in regard to the desirability of feeing supplied with the Auditor-General’s report within a reasonable time after the close of the financial year. If honorable senators take the trouble to refer back, they will find that it has been laid upon the table of the Senate at a period very remote from the event. Exception has been taken to the action of the AuditorGeneral in. delaying the presentation of his report, but in one or two reports which I have examined I have found that the delay has not been due to any negligence or carelessness on his part, or on the part of his officers. The delay has generally been due to the default pf the Treasurer in not more promptly providing the Auditor-General with the accounts and the returns which are required by the Act to be submitted. The Auditor-General is directed to send in his report as soon as possible after he has received these documents; but, of course, until they are supplied to him, he cannot complete his report. He has to certify that the payments have been made, and correctly made, and that proper vouchers have been produced; and generally to report on the financial position of the Commonwealth, not, of course, from a party point of view, but for the guidance of members of Parliament. It is very unfair that members should find themselves confronted with the Treasurer’s statement, and with the necessity of voting large sums, without having had the opportunity of knowing authoritatively how the previous votes were expended. The whole safety and the whole value of the Auditor-General is that he can exercise supervision in this direction. He examines the documents, and gives his certificate as to whether he has found everything in order or not; and if he finds anything out of order it is his duty to call the attention of Parliament to that fact. When it is provided with his report, it has the report of a man who is under the control of neither Ministers nor the Opposition. He has been placed in an independent position, and is called upon to discharge his duty independently. He recognises the importance of his position. His salary is provided by Statute, in order that he may occupy this independent position ; and I recognise that invariably he so discharges his duties. I hope that Ministers will take steps to urge upon their colleagues that Parliament - at any rate, a large section of
Parliament - is not satisfied with the delay that occurs year after year in connexion with the presentation of this report.
– Which section of Parliament is dissatisfied?
.- The Senate.
– Why did not you say so?
– Because I attributed some sense to honorable senators. I do not know that present Ministers have been greater offenders in this respect than were their predecessors. My remarks are applicable to Ministers generally. I hope that Parliament will see that the Auditor-General has a full opportunity to prepare his report in good time, and that we shall not be called upon to vote money for another year without having any knowledge or an opportunity to obtain knowledge as to the expenditure of the votes for the previous year, or as to how Ministers have discharged their duties. We ought to be in a position to determine with our eyes open what money we shall vote, and to satisfy ourselves as to the way in which the votes of Parliament were distributed during the preceding year.
– I may be permitted to add a little to, and emphasize, what has been said by Senators Chataway and Gould with regard to the presentation of the Auditor-General’s report. I have looked up a concrete instance, which will make clear to the Government, and also to Senator Guthrie, what is meant by our contention. The Treasurer’s statement for the year ending 30th June, 1910, was ordered to be printed on the 5th September, 191 1. Without going into the question of any sectional aims or views, honorable senators will all agree that the Treasurer’s statement for the year ending 30th June, 1910, should have been presented long before the 5th September, 191 1. I wish to ask Senator McGregor to explain, if he can, in Committee, what is meant by sub-section 2 of the proposed new section 63A. The verbiage is not good, and, having read it carefully, and consulted the principal Act, I am unable to discover what it really means. It reads -
The regulations made in pursuance of this section may direct that any of the provisions of sections thirty-three, thirty-four, and forty-six of this Act shall not apply in relation to any matter in respect of which regulations are made under, this section.
I like to read something that I can understand. No doubt, this is capable of explanation, and I ask the Vice-President of the Executive Council to tell us, in Committee, what this cumbersome and elaborate phraseology means?
– I should like to emphasize the necessity for the presentation of the Auditor-General’s report to Parliament at as early a date as possible. I have some particulars which I think honorable senators will admit justify our contention as to the unsatisfactory position in which we are placed by the lapse of time which is permitted to occur between the receipt of the Treasurer’s statement and the presentation of the Auditor-General’s report. I give the date on which the Treasurer’s statement was received by the AuditorGeneral, each year, from 1902 to 191*1. That for the year ending June, 1901, was received by the Auditor-General on the nth August, 1902. The date on which the statement for 1901-2 was received by the Auditor-General is not available. In 1903, the Treasurer’s statement was received by the Auditor-General between the 20th October, 1903, and 21st January, 1904 - others in February, 1904. The statement for 1903-4 was received, part on 18th November, and the’ balance later in the month. That for 1904-5, on the 28th November, 1905. For 1905-6, on the 18th September, 1906. For 1906-7, on the 5th December, 1907. For 1907-8, on the 10th December. For 1908- 9, 1st and 7th December, 1909. For 1909- 10, on the 10th March, ipu, and the Treasurer’s statement for the year ending 30th June, 1911, was not received by the Auditor-General until the 30th April, 1912. It will be seen that the interval between the delivery of the Treasurer’s statement and its receipt with the necessary accompanying vouchers by the Auditor-General has, year by year, and especially of recent years, been increasing. If this is to continue, the result will be that Parliament will not have an opportunity to consult the Auditor-General’s report in order to make their criticisms of the Treasurer’s statement effective. I hope that some action will be taken to remedy the existing state of affairs.
Senator McGREGOR (South Australia - Vice-President of the Executive Council) D10.52]. - I did not expect that this Bill would give rise to so much discussion. With respect to the delay which has been com plained of in the presentation of the AuditorGeneral’s report, honorable senators must bear in mind that the Commonwealth is very different from any of the States. The delay referred to arises from the fact that adjustments and re-adjustments have to be made in connexion with accounts from different places in all of the States. The Auditor-General is supplied with the figures from the Treasury, not en bloc, but as they come in, and even during the present year, when a special effort is being made, it wilt be impossible for him to have his report ready before some time in November. Even though the General Estimates and the Works and Buildings Estimates are prepared early in the session, ft is impossible to have the advantage of the AuditorGeneral’s report for the same year in dealing with them.
– If it be possible to have the report presented in November this year, how does the honorable senator account for the fact that the report for the previous financial year was not presented until April of this year?
– I have no information with respect to that. If the staff of the Auditor-General’s Department has not been correspondingly increased, the growing expenditure and business of the Commonwealth may account for the later presentation of his report. It may be that it will be found necessary to increase the Auditor-General’s staff to enable him to submit his report for each year before Parliament goes into recess.
– I think that the difficulty arises from delay in giving necessary information to the Auditor-General.
– No information is delayed after it is in the possession of the Treasury. The honorable senator should know that all the information does not come into possession of the Treasury at the same time, but as it comes in it is forwarded to the Auditor-General without delay, and everything is done to facilitate the work of the Auditor-General’s Department.
– The honorable senator ought to know that, though everything is done to expedite the balancing of the finances up to the 30th June of each year, it is only after that date that the figures can be forwarded to the AuditorGeneral. He has then to verify statements and accounts from all the States. He is admittedly a careful man, and will not accept responsibility except on reports of his confidential officers. I am informed that it would be impossible for the Auditor-General to have his report for this year ready before November. But every effort will be made to lay it before Parliament before’ the close of the session. I do not think it is necessary to wait until we get into Committee to explain the matters referred to by Senator Clemons. If the honorable senator had a copy of the principal Act before him he would see that sections 33 and 34 apply to officers on land in touch with the Treasury. Naval officers being employed at sea move about from piao* to place, and the regulations which apply to land officers cannot be applied to them. With respect to section 46, it is provided that vouchers shall be given for every payment, but we propose in this Bill to enable captains to pay their men without getting receipts. The Auditor- General will still have a sufficient check upon the vouchers presented by captains, because they will know the ratings of all the men.
Question resolved in the affirmative.
Bill read a second time, and reported without amendment.
Standing Orders suspended, and Bill passed through its remaining stages.
Bill returned from the House of Representatives with a message intimating that it had agreed to the amendments made by the Senate.
Bill returned from the House of Representatives, with amendments.
– I move -
That so much of the Standing Orders be suspended as would prevent the message of the House of Representatives returning the Defence Bill, with amendments, being considered forthwith, and all consequent action taken.
The schedule of amendments made by the other Chamber contains no new principle, and I will be pleased to give a full explanation upon each of them in Committee. As it is necessary that this Bill should be placed on the statute-book as soon as possible, I ask honorable senators to consent “to the motion.
– The request of the Minister places honorable senators in a rather awkward position. 1 am sure there is a very general desire to pass into law as speedily as possible those altered provisions in our Defence Act having reference to defaulting cadets, so as to put the Department in the best possible position to overcome the difficulties which have arisen. But I say that the amendments which we are now asked to swallow, without being afforded an opportunity of thoroughly understanding them, are of a totally different character from those which have been under review in this Chamber before. The first one, for example, relates to the date upon which certain officers completed an examination for promotion. In view of statements which have been made to me, that amendment opens up a very debatable question indeed. The Minister will recognise that whilst we have every desire to help forward that poi tion of the Bill which has behind it the general sympathy of honorable senators, he is asking rather much. He requests us to suspend the Standing Orders, and thus depart from the usual safeguard which they provide, for the purpose of dealing’ with matters the purport of which is not at all clear, and which to my mind are highly contentious.
– Senator Millen will find, upon examination, that the amendment to which he has referred is not a highly contentious one. Perhaps it would be more satisfactory if I were to explain it now, because all the other amendments relate to the prosecution of cadets.
– It would be better to make the explanation in Committee.
– I would prefer to make it there. If the Leader of the Opposition will not oppose this motion, I will defer my explanation till the Bill is in Committee.
Question resolved in the affirmative.
In Committee (Consideration of House of Representatives’ amendments) :
House of Representatives’ Amendment. - After clause 1 insert the following new clause : - “ ia. Section two of the Principal Act is amended by omitting therefrom all references to sections.”
– I move_
That the amendment be agreed to.
I am informed by the drafting officers that at the commencement of Federation it was the practice to refer in clauses of amending Bills to the sections of the Act which they proposed to amend, but that that practice has now been discontinued. This clause has been inserted in order to conform with the existing practice.
– Is the object to make the clauses easier to understand?
– It has that effect ?
-If the sections are not named, will not one have to hunt through the whole Act in order to find the part which it is proposed to amend ?
– The honorable senator has misunderstood my explanation. The reference to sections will only be omitted from section 2 of the principal Act. Suppose that clause 6 seeks to amend section 35 of that Act, that reference will still be retained. But it is not considered necessary to put the references to sections in this clause, which is almost in the nature of a preamble.
Senator Sir JOSIAH SYMON (South Australia) [11. 13]. - I understand from the Minister that in section 2 of the principal Act reference is made to the description of the parts into which the Act is divided. For instance, the introductory portion comprises sections 1 to 7. I understand that the only object of this clause is to delete that reference?
– That appears to be all right.
Motion agreed to.
House of Representatives’ Amendment. - After clause 1 insert the following new clause : - “ ib. Section twenty-one a of the Principal Act is amended by inserting in sub-section (3) thereof after the words ‘officers’ the words ‘who prior to the first day of January, One thousand nine hundred and eleven, completed the examination for promotion to the rank of LieutenantColonel Or Major respectively, or to officers.’ “
– I move -
That the amendment be agreed to.
The necessity for this amendment cannot be found so well by reference to the Act which it seeks to amend as by a statement of the reasons underlying it. Section 21a reads -
The facts are these : A number of officershad gone up for examination under conditions prescribed prior to the passing of theAct of 1 9 10. They had passed the prescribed course then laid down under the regulations, but for various reasons had not been promoted. Thus, a man might pass his examination and fulfil all the conditions ; but a vacancy might not exist, and he would therefore have to wait before he could be promoted. A number of officers, as I have said, had passed the prescribed examination and fulfilled the conditions. Then the Act was amended, and a new prescribed course came into existence. The question came up very shortly afterwards, when vacancies arose, as to the officers whohad passed the prescribed course under the old Act, but who had not passed the prescribed course under the new Act. The Chief of General Staff, the late Sir John Hoad, brought the question before me, and recommended that a regulation should bepassed accepting the passing under the old Act as an equivalent of passing under the new. That is to say, the regulation would legalize and recognise the former pass as a pass under the new Act.
– It would respect existing rights.
– Yes. I approved of the regulation, and under it a number of officers - I think about ten’ - have been promoted from the rank of major tolieutenantcolonel. That procedure was believed to be legal, and the Department continued to think so. There remain only about four officers holding the pass under those conditions who have not been promoted. A case arose in New South Walesrecently where two officers were competingfor the command of a regiment. I do not. desire to mention names, but I can give them to honorable senators if desired. One of” the two officers held the pass under the old Act. The other officer had gone up for his pass under the new Act, but had failed.
The Military Board recommended the officer who held the pass under the old Act. The other officer happened to be a solicitor, and he challenged the recommendation, on the ground that the pass held by his rival was not in conformity with the Act.
– The one who had failed challenged the recommendation?
– Yes. He had an opportunity of going up for examination again.
– Had he not failed more than once?
– I believe he had. But this was the first time the position had been challenged. I felt that it was a serious matter, which ought to be cleared up, and referred it to the Crown Solicitor, who gave it as his opinion that the Act did not give us power to recognise the pass under the prescribed course under the old. Act; in other words, that the action that had been taken by me, under the advice of the Chief of General Staff, was ultra vires. This amendment of the law is brought forward in order to recognise as legal the promotions that have been made under the method I have described. The matter ought to be set at rest. I give the Committee the undertaking that the case of the two officers whom I have mentioned will not be affected, because I have decided that the officer who has previously failed shall be given an opportunity of go;ng up for his examination again under the new Act. It is true that he has already had an opportunity and has failed, but I think that under the circumstances it is fair that he should be given another opportunity, and he is going up for examination again at an early date. Should he pass, it will be for the Military Board to recommend as to which of the two officers shall hold the command of the regiment in question.
– Is there any limitation as to an officer going up for examination again?
– He can go up -again.
– Does the Minister mean to say that the appointment will not be made until this officer has had another opportunity ?
– Yes ; it will not be :made until he has had his opportunity.
– In the meantime the Minister holds up the man who has been baiting ?
– According to the Crown Solicitor’s opinion, he is .not qualified, but under this clause he will be qualified. I think it would be unfair to regard him as qualified under present circumstances. It would be passing an Act of Parliament to give him an advantage which the Crown Solicitor advises he has not at present. The other promotions were made in ignorance. We did not know that we were transgressing the law. Our eyes having been opened. I do not think that we should make the promotion until the other officer has had his opportunity, and then the Military Board, on the advice of the Inspector-General, will have the right to decide which of these officers shall hold the command.
– The Minister surely has not been accused of harsh treatment to this officer who has failed?
– No, there is no accusation of harsh treatment.
– I hope the Minister will not be accused of treating harshly the officer who has failed. He has been treated with great leniency.
– There has been no accusation of the kind.
– The man who has been treated harshly is the one who has been waiting for promotion which has been accorded to others in a similar position.
– No, that is not quite correct.
– The point is whether this amendment of the law is intended to meet a special case or is meant for general application.
– It is meant for general application - that is to say, to ratify what has been done, and to enable us to recognise those who have passed the prescribed examination under the old Act. Of course, it is not an easy situation. It is not satisfactory by any means. I am asking the Committee’ to make this alteration in the law on the one hand to legalize what has been done, and, on the other hand, to recognise those, who hold passes under the old Act. As I have said, they do not exceed four, but those officers have not had an opportunity of promotion, and ought to be in the same position as others in regard to their eligibility.
– I venture to say that the statement just made by the Minister of Defence confirms the suspicion which induced me to object to this clause when I saw it.
His statement of the facts is abundantly clear. They are these : A number of officers have passed an examination which, at the time they passed it, was what the law required. They had qualified themselves for promotion. The Minister proceeded to promote some of them to higher positions. But one of them, who had qualified and applied for promotion, has been held down until another officer is given, not one, but three, opportunities of qualifying, to enable him to come into competition with the gentleman who is denied the promotion which has been given to other officers similarly situated.
– That is not quite correct.
– The Minister has said already that these are the facts. He has admitted that there is this competition of two officers for a vacant position.
– This position has arisen within the last three months.
– It is more than three months since the position arose, and correspondence took place. Speaking from memory, it is a great deal more than that since I first heard of the matter in Sydney. But that is not material.
– It is not more than three months since I heard of it.
– The position now is this : The Minister proposes to give, if not a fourth, at any rate a third, chance to an officer to pass an examination which he has failed to pass before, whilst another officer, who has qualified for promotion, is kept waiting and held back. Am I not justified in assuming that there has been some special influence or favouritism in this case? A number of appointments have been made under exactly similar circumstances. The officers so treated are now in possession of higher positions. Does the Minister propose to say to them that they shall vacate their positions and stand down, in order that other officers, who have passed later examinations, shall come into competition with them ?
– The position of the other officers is different. We have only recently discovered that these appointments are illegal. They will be validated by this amendment of the law.
– Similarly, the Department ought to validate the position of an officer who, having qualified, has been waiting for promotion, and who apparently has only been kept .back by influences which I have suggested.
– Will the Military Board take that into consideration?
– The Military Board may be guided by the influences to which I have referred. Here is a gentleman who is qualified for a position under an examination, which is now being legalized, and who was a candidate for a higher position. Another applicant, who failed to qualify, wants the qualified man to be held back in order to give him a further chance of qualifying for the position.
– What influences does the honorable senator suggest have been brought to bear upon me?
– I do not suggest that the Minister himself has been subjected to influences, but I do say that those who made the reports to him may have been; and I ask the Minister for a reasonable explanation as to why this particular officer, who is highly qualified for a position and has every claim to it, should not get it?
– The reason is that when it was proposed to appoint the officer to whom Senator Millen refers, the other officer put in his claim, and raised the question of whether we could legally appoint the other officer, because he had not passed his examination in conformity with the Act. Immediately I received that objection, I referred it to the Crown Solicitor, and he said that the point was correct. I should -have appointed the officer, as othershave been appointed, except for* that opinion.
– The Minister can legalize the appointment now. If, to get over the difficulty, he will make the appointment at once, he will place this office! in the same position as others who are already in positions obtained in exactly the same way.
– Does not the honorable senator see the difficulty ? In the other cases I believed that I was acting within the law. Now I see that I was acting outside the law.
– I put this position’ - that in view of the circumstances theofficer to whom I am referring is as much entitled to his promotion as were other officers who had precisely the same qualifications and whose promotion is now being validated. If it is a fair and right thing, why should not this Bill take the legal power which is necessary to extend a measure of justice to that officer?
– I think that the twoof them should be put on an equal footing.
– The same opportunity should be extended to other men.
– So it will.
– .Is the Minister going to put the men out of their offices?
– No; there are three cases.
– I am speaking of men who were fortunate enough to get their appointments prior to the discovery of this defect in the law. They ought to be put on an equal footing with the man who qualified a month ago.
– In many cases there was no competition for the appointments.
– I have not the slightest doubt that there are men who will say that if the Minister will treat them in the same way as he is treating this particular officer, and give them a chance to qualify, they will start to do so. All that I ask for is absolute fairness to an officer who has qualified, and who, but for the discovery of a defect in the law, would have received an appointment. Why should he be penalized1 when other officers, who are no more highly qualified than he is, are not interfered with ? Why should this special and tender consideration be shown to an officer who has twice failed to pass the examination ? It is carrying favoritism to one man to such an extent that it represents a gross hardship to the other officer who is concerned.
– It is quite obvious that Senator Pearce is in a very difficult position. He has been advised by the Crown Law Officers as to this case. But let me point out that one of the most elementary maxims of law is that ignorance of the law does not excuse. The Minister asked just now, “ What am I to do? I made a certain appointment in ignorance of this defect in the Act. It has now been suggested to me that I should make another appointment with full knowledge of that defect. There is a difference in my position.” I would point out to the Minister that, legally, there is no difference. He cannot shield himself by the statement he has made. That position is absolutely untenable. If he is anxious, as I am sure he is, to do equity; if he is satisfied that the man who has passed this rigid examination is well qualified to hold a better position, he ought to make an appointment, and let this validating Bill cover that case, as well as previous cases; because, in the eyes of the law, there is no distinction between the act of a Minister with knowledge and the act of a Minister with ignorance. I know that the Minister dees not like the position, as it is most invidious, unpleasant, and difficult. But what is he going to be confronted with? He will be confronted with this statement, that this man, who is qualified under the original Act, is not going to get certain advantages which were given to other officers who were appointed before this defect in the law was discovered. The Minister is in that position.
– I would also be charged with passing a validating Bill in order to give the other man the position.
– I should say that the Minister win have a complete answer. He can say, “ I appointed these men believing that the examinations which they had passed fully qualified them to hold the position. I placed them on that footing. I am going to place this other man on the same footing, and I intend to validate the whole of the appointments. I shall not discriminate between D and those who have gone before D, and certainly 1 am not going to put myself in the awkward and invidious position of saying that, because E., intimates that he will again endeavour to qualify for this appointment, 1 shall do an injustice to D, as I would do if I acted in that way.” That is his clear position it seems to me. I know nothing about the circumstances of the case, or the names of the individuals, concerned. ] merely recognise that the Minister is in a dilemma, .and I put it to him as a matter of equity and fairness, having regard to the maxim that ignorance of the law does not excuse any man, that his best way out of the difficulty is to do what is suggested. To my mind, it is the only equitable course to take.
– Like Senator Clemons, I know nothing of the circumstances of this case, or the names of the parties affected. On the statement of the case which has been made to the Minister I certainly think that he is following the right course. I should be very sorry, indeed, to see him, or any other Minister, fully conscious of the fact that he was going to make an invalid appointment, deliberately do so in anticipation of a validating Bill being passed. The position appears to be that these two competitive applicants had their applications under consideration by the Military board, and that the Board decided to recommend one as against the other, apparently on the sole ground that one had qualified for appointment and the other had not. The latter, whose nonqualification is undoubted, raised the legal objection that the applicant who had received the recommendation had been recommended on the ground that he was qualified, whereas, in the opinion of the objector, he was not legally qualified. For the first time a suggestion came before the Department that what had been deemed a qualification was not so in law. The opinion of the Crown law authorities was taken, and it coincided with that of the objector, and at once the Department found that there were a number of appointments which had been made on what were assumed to be qualifications, and which were consequently invalid. The appointments of these men stand in a totally different position from the case of a man whose appointment is recommended and under consideration. This validating legislation confirms them in their positions. He is in a totally different position from those who have been acting in the offices to which they were appointed, although invalidly. I think that there is a clear distinction between the two kinds of cases. Immediately this validating legislation is passed for the first time the recommended applicant will become qualified for appointment, and inasmuch as the other officer offered himself for examination and raised the objection to an appointment, I think that the Minister is entitled to consider his position.
– An inefficient man.
– Not necessarily. It may be that when this man presented himself for examination he entertained the opinion that the passing of the previous examination was not a qualification, and would not give the other competitor any advantage over him when it came to the test. Any way, as soon as’ this legislation is passed, the recommended competitor will become qualified for appointment, but there is to be no appointment made until the other candidate has had an opportunity to present himself for examination. Assuming that he qualifies, it will not follow, as a matter of course, that he will be appointed to the position.
– I would like to make you a wager about it.
– I am dealing with the case in the abstract, and just on the facts submitted by the Minister. If the non-qualified candidate qualifies at a subsequent examination it will remain for the Military Board to make a recommendation. They will have the opportunity, after considering all the circumstances, of determining whether he is the better qualified of the two. Previously they could not consider his application at all.
– Now you are shutting out the other man.
– He is not being shut out, but is being made by the Bill qualified for appointment.
– Why should he not be appointed when the Bill becomes law?
– He will be considered.
Senator MILLEN (New South Wales) [11.43J. - The Minister of Defence made a statement just now that, but for the discovery of this defect in the law, he would have made the appointment which the Military Board recommended.
– If that is so, 1 want to know why the Minister should not, when the difficulty is removed by the passage of this Bill, stay his hand then?
– If the Military Board make a recommendation I will accept it.
– We are coming now a little nearer to the point which I have been more than suggesting. The Minister said a little while ago that he would have made the appointment some time since, but for the timely discovery of a defect in the law. Was he doing that himself, or as the result of a recommendation of the Military Board?
– As a result of a recommendation of the Board.
– Then the Military Board recommended as fit for this position this particular officer, and the Minister was on the eve of making the appointment when his attention was drawn to a defect in the law.
– By the other claimant.
– We are now making the defect good, and the moment the GovernorGeneral’s signature is given to the Bill the Minister will be in a legal position to do that which a little while ago he thought was right, and which he would have done but for the discovery of the defect. What has happened to change his mind in the matter?
– If that is so, why is not the Minister prepared to carry out what he intended to do?
– I say that if the Military Board recommend the same man as they did before I will appoint him.
– That is not what the Minister said just now. His statement then was that he would hold up the appointment until the non-qualified man had a further chance of qualifying
– I say it again.
– The Minister is making two statements. If, to-morrow, the Bill becomes law, and the Military Board repeats its recommendation, is the Minister going to act upon it, or will he carry out his other statement - to give the nonqualified officer a chance to qualify?
– Which is the Minister going to do?
– The Minister cannot appoint one man to the position tomorrow, and at the same time keep it open in order to give the non-qualified man a chance to qualify.
– I shall do what I have stated.
– Then, if the Military Board recommend that the matter should be tied up for another six months to give this unqualified man another chance to qualify, the Minister would follow that recommendation.
– No, I should not do anything of the kind.
– The honorable senator is 011 the horns of a dilemma. He said a little while ago that he was satisfied that this major was qualified for promotion, and that he was about to make the appointment. Surely the reasons which induced the honorable senator to consent to make the appointment, which was frustrated only by the discovery of a defect in the law, must operate to induce him to go on and make the appointment the moment the defect in the law is remedied. The position almost suggests that the opportunity to remedy the defect in the law is being seized upon as an excuse to give an officer who failed twice to qualify for promotion a further opportunity to qualify for the position in competition with an officer who has previously qualified.
– “ Suspicion ever haunts the guilty mind.”
– I cannot be said to be guilty of anything in connexion with this matter. Assuming that the defect in the law is remedied, what is there to pre vent the Minister giving effect to a recommendation upon which he would have acted but for the defect in the law ? I cannot too strongly emphasize the fact that we have been informe’d that the Minister satisfied himself either directly or by reports from the proper officers that a particular gentleman was qualified for the position, and he was on the point of putting his name to a paper authorizing the appointment, when suddenly a legal point was taken that there was a defect in the law. The Minister proposes, by this Bill, to remedy that defect, and I ask what ought to be the natural and just consequence when the defect is remedied? Surely it should be for the Minister’ to give effect to the decision at which he had previously arrived.
– Then the honorable senator would get up and say that we had passed an Act of Parliament, in order to put into the position one , if our favourites.
– It appears to be evident that we are be.ng asked to pass an Act of Parliament to keep out some one who is not liked by some of the honorable senator’s officers. The Minister talked of suspicion just now, but he has himself suggested a suspicion that the matter is to be held up to give an officer, who has failed twice, a further chance to qualify for this position.
– The honorable senator is not in order in imputing improper motives.
– I direct the attention of the honorable senator to the fact that he has repeatedly made use of the same statement. The clause deals with a matter of administration, and is of general application. I would ask him whether he does not think that he is stressing too much one particular case.
– If an injustice is being done, the matter cannot be stressed too much. The Minister brought this case forward as one of the reasons for the introduction of this new clause, and, with all respect to you, sir, I think I am entitled to discuss the bearing which it may have upon the case brought forward by the Minister as a justification for it. I can quite understand the honorable senator proposing to follow the advice pressed upon him, as we all know him to be a busy Minister; but I say that statements have been made here to-day which will justify him in reviewing the whole position. When viewed from different stand-points, the same matters wear different aspects, and I ask Senator Pearce to again consider the position in which he is placed. A little time ago he was prepared to make this appointment, and he then discovered a defect in the law. He proposes now to remedy that defect. But what for? Surely it is in order that he may carry out the intention at which he had previously arrived.
– More than that; it is to validate what has been done in the past as well.
– Exactly. It is necessary to validate what was done in connexion with officers who were fortunate enough to secure their appointments. But this other officer who has been referred to would have secured his appointment except for the influence which held him back.
– Except for a legal quibble.
– No. Before the legal quibble was discovered, there was delay in the making of this appointment. It was held back to give a further chance to a man who had failed to qualify.
– As far as I know, that is incorrect.
– I accept the Minister’s statement on that point ; but I can inform him that there was a good deal of correspondence, extending over three months, and probably it never reached head-quarters in Sydney. An appointment of a qualified officer, which should have been made long ago, was kept back for one reason or another, in order to give his competitor a further chance ; and the Minister is now proposing, not to carry out the original intention, but to use this Bill as an excuse for tying the matter up to give a non-qualified man a further chance in competition with a man who has been qualified for many months.
Senator Sir JOSIAH SYMON (South Australia) [11.52]- - This discussion has been valuable to many of us who are not familiar with the details of military administration. It has revealed an extraordinary situation; and I am sure honorable senators would like to assist in extricating the Minister from what is undoubtedly a difficult and delicate position. As the debate has proceeded, I have come to the conclusion that .the p’oint of view just put with so much force by Senator Millen is the true point of view from which we ought to approach the consideration of the amendment of the law now proposed. Its object is to remove a defect ‘n the law under which these officers were examined for promotion. Three officers, who passed examinations which have turned out to be, in some respects, irregular, were actually appointed. The effect of this Bil), so far as they are concerned, will be, as it ought to be, to confirm their appointments. Nothing has been said on this side in opposition to that. The Minister, in dealing with a very complicated system, which, perhaps, no one else has more thoroughly mastered, has committed an unintentional error which any one might commit, and which is entirely excusable, because it arose from an incorrect interpretation of the law by his officers. At the time the discovery of the defect in the law was made, as the result of an objection taken by an unsuccessful candidate, a recommendation existed for the promotion of a particular officer who was, subject to the defect in the law, considered to be absolutely qualified. The Minister tells us that the appointment of this officer would have been made but for this interposition on the part of an unsuccessful candidate. The effect, in all fairness and justice, ought simply to be to suspend the consideration of the recommendation until the defect in the law is remedied, in order that it may subsequently be given effect to. I venture to say that it is not a mere matter of administration, as suggested by the Chairman, which arises under this clause, but a question whether an injustice may not be done. We should hesitate about passing a clause which may have that effect. This Bill certainly ought not to be used in order to bring, as a competitor against an officer who has already been recommended for a position, a man who has failed twice in the examinations necessary for promotion, and who, apparently, is to be given a third opportunity to qualify. I think that the amendment of the law had far better be withheld, until the Minister is in a position to tell us, as I think his sense of justice would induce him to do, that the recommendation which has been in suspense will be given effect immediately the defect in the law is remedied. The Minister has properly put the obverse to that, and says that he might be accused of having sought to pass legislation for the benefit of a particular individual.
– That could not be fairly brought against him.
– I think that that would be said.
– I do not think so at all. The Minister has one object with two results. The object is to remove a defect in the law. The two results are: first, to confirm those things which were do.ne irregularly under the law as it stands; and, second, to enable the Minister to give effect legally to a recommendation for promotion in favour of an officer who is absolutely qualified. And I say that that ought to be done in justice and fairness, without bringing into competition with him an officer who has tried twice to secure qualification, and has failed on both occasions. We ought to look at the amendment from the point of view of the justice or injustice which it may work. 1 think it will work absolute justice and fair play, if applied, as I have respectfully suggested; but it will work the grossest injustice if it is applied with the result of cancelling a recommendation which is only in suspense, and enabling an unqualified person to come into competition with the officer recommended, for promotion.
– I am rather surprised at the direction which the debate has taken. Senator Millen has introduced a personal element into the discussion, and we have been getting away from the clause. Too much stress is being laid on what it is anticipated the Minister will do if the clause is passed. That should have no weight with the Committee. I assume that the Minister will do the fair thing when the clause is passed. The object is to validate certain acts which have been discovered to be illegal. From the hints and insinuations which he threw out, the Leader of the Opposition evidently believes that some obstacles have been placed in the way of the gentleman who was recommended for this appointment. Those obstacles, I take it, have been interposed by the Military Board.
– Why cancel the existing recommendation?
– It has been decided that effect cannot be given to it.
– But effect can be given to it the moment this Bill becomes law.
– It appears to ;me that Senator Millen is more anxious to get from the Minister an expression in the nature of an assurance that the friend for whom he is fighting will get the appointment. I am of opinion that the whole of this discussion would have been at an end, if the Minister’ had announced that he intended to make that appointment. I am rather pleased, with the way in which he has acted. He has told us what is the intention of the clause, and what he proposes to do under it. I take it, too, that the Military Board is a fair-minded body which will not hold up the appointment of a man who is entitled to the position. If it does so, Senator Millen can bring the matter before the Senate, and it can be discussed upon its merits. The clause is designed to remedy a defect in the principal Act. Let us remedy that defect, and trust to the Minister to do the fair thing to the person who has been recommended for this appointment. I take it that it is not a fair thing to hold up that gentleman until somebody else has an opportunity of qualifying for the position. I am perfectly satisfied that as soon as the Military Board possesses the legal power, they will do the right thing.
– The whole trouble has arisen over the statement of the Minister that he will not act upon the authority of this Bill until time has been given to an unqualified man to qualify.
– I do not think that the Minister will make an appointment which is not recommended by the Military Board.
– But for a technicality a certain officer would have been appointed.
– It is very hard upon the gentleman who was recommended for the office that the Government could not legally appoint him. But there is an old maxim that “ hard cases make bad laws,” and I am glad that on this occasion the Minister is sticking fast to the letter of the law. I shall not be pleased if after the Military Board have made a recommendation which they have the right to make, the appointment is held over until somebody else has an opportunity of qualifying. Senator Millen is evidentlywell posted in this matter. He knows the case from ont side. I hope that the Minister will adhere to his position, and that the Military Board, as soon as it can legally recommend this gentleman for appointment, will recommend him. But, as far as keeping this debate going until there has been a surrender of opinion on the part of the Minister, I hope that we have not yet reached that stage.
– I think that the Minister ought to recognise that, as soon as this Bill becomes law, he will be in the position of having a recommendation sent to him by the Military Board, of which he has previously approved.
– Not of which I have previously approved.
– The Minister stated that he was prepared to approve of it.
– I would have approved it.
– As soon as this Bill becomes law, the Minister will have a recommendation sent to him By the Military Board - a recommendation which he was prepared to approve. It will be extremely difficult for him to convince himself that he ought to wait until an examination has been held in order that somebody else may have an opportunity of becoming a competitor. Why should he do so? I cannot discover any reason in the world why he should. He is armed on all sides. If he makes the appointment, I venture to say that he will occupy a perfectly invulnerable position. I should be the first to resist any attack which was afterwards made upon him on the ground that he did not wait for an examination to be held months hence in order that somebody else might become a competitor. I had intended to ask him a question, but I will not do so, because if I did, I recognise that be would be justified in refusing to reply to it. I think that the Minister has abundant warrant for saying, “ I will make no promise of any sort.” I merely wish to say that, directly we validate this proposed appointment, I hope he will make it.
– The tone of the statements which have been made by Senators Clemons and Symon are distinctly helpful to one in this difficult matter. I am sorry that I cannot say the same for the statements of the Leader of the Opposition. The veiled insinuations which he made are quite unworthy of him. He ought to look at the position from this stand-point. Here was an appointment about to be made. A man who was interested in that appointment raised a legal objection to it, which was then disclosed to me for the first time. I forwarded it to the Crown Solicitor, and the Crown Solicitor said that he was right. Then if I come to Parliament, and endeavour to get an amending Bill passed to legalize what would have been an illegal appointment, if it had been made, am I not open to a» charge by that man ? Could he not say : “ You would have appointed this officer illegally. When I showed you that his appointment would be illegal, you immediately rush a Bill through Parliament to enable you to do a legal thing for his benefit.” That was the position in which I found myself, and that is the way in which I viewed the matter, notwithstanding the innuendoes which have been indulged in by the Leader of the Opposition. But the arguments of Senator Clemons and Senator Symon have brought to my mind a .different, view. They have raised the question of whether I would be justified in holding upthis appointment until another officer had an opportunity of going up for examination. I say frankly ‘and honestly that the other view which I put was that which waspreviously in my mind, and to which I could not find any adequate answer. Senator Millen must admit that I did not attempt to disguise what the” clause meant , although I could, if I had chosen to be so unworthy, have said that its object was merely to validate what had been< done. The honorable senator did not know of this particular case until I brought it forward. But I thought it right to let honorable senators know, not only that the clause would validate what was at present invalid, but that it would have an important effect upon an appointment which is now pending. I could have got the clausepassed without letting the Senate know that. But I would have been dishonest to do so. Consequently, the Leader of the Opposition was ungenerous in the statement which he made. I can assure him’ that I have endeavoured to do the fair thing.
Senator MILLEN” (New South Wales> [12. 11]. - The Minister has suggested that I have been unfair to him. He forces me to return the accusation. Just now, when> I made a charge of favoritism, I distinctly stated that I did not make that charge against the Minister. I cannot understand how he can manufacture a grievance out of what I then said, since I specifically exempted him from the accusation.
– It all comes back tethe Minister, because he Has to accept responsibility for the appointment.
– If the Ministerwishes to go into the whole matter, the result will be the production of all the papers- here.
– I am prepared for the honorable senator to move in that direction.
– Will the Minister postpone the consideration of this clause until the papers are produced ?
– No. But before I make the appointment, I will lay the papers on the table.
– Another statement which was made by the Minister was not correct. He affirms that I knew nothing of this particular case until he informed the Senate of it. That statement is best answered by the fact that when he moved to suspend the Standing Orders this morning, I specifically asked about this clause, knowing very well that there was a case of this kind pending, and that the clause would have some bearing upon it. At the same time, I did not suggest that I suspected the Minister would have sought to get the clause through by unfair methods. But I did know the purpose of the clause. Now, I wish to come back to the matter which we were debating. I accept fully the reasons which the Minister says induced him to take the action which he did. I have no fault to find with him for bringing forward this clause. The whole point of my argument is that when this Bill has become law, the Minister will be in a position to appoint a legally qualified officer to a certain position. He has intimated what his attitude will be. “I am not going,” he says, “to make that appointment until some other person has had a chance of qualifying for it,” which will mean for an indefinite period.
– Can a man be appointed without examination?
– Some time ago a certain standard of examination was held to be sufficient. Under a later law, I understand that the examination has been stiffened somewhat. This particular officer qualified under the earlier law, and but for the fact that no vacancy occurred then, would have received promotion. But when a vacancy did arise, it was found that there was a defect in the law. Consequently, the appointment was not made, although a number of officers who were similarly qualified had been appointed to positions which they are filling to-day.
– Will not the position be open to applicants from all quarters?
– I do not mind that a bit. My objection is that the Minister intends to delay the appointment until men who to-day are unqualified have been afforded an opportunity of becoming quali fied. The Minister’s remarks in answer to the arguments of Senator Symon and Senator Clemons almost convince me that he recognises there is an element of unfairness in this case which he will remedy immediately after this Bill becomes law by appointing the officer who is admitted to be qualified, and whom the Minister tells us he would have appointed if an objection had not been raised. He induces me to hope that he will not carry out his intention of holding back that appointment further in order to give somebody else a chance of trying to qualify for it. If the Minister will say, “ I propose to call for a further recommendation from my advisers,” I shall have no objection. That disposes of the idea that I am particularly concerned about one particular officer getting the position. All that I ask is that, after this Bill Becomes law, the Minister will proceed to act under it. Let the Military Board make their recommendation as to men who are qualified. But the Minister should not hold the new law in suspense until somebody who is not qualified to-day, and who has failed to qualify on previous occasions, is given a chance of qualifying.
– I am sorry that the Minister takes things to himself so much. There is, no doubt, some dissatisfaction with the action of the Military Board in other arms of the Service. It seems peculiar that, we cannot find out these defects in the law until somebody is hurt. I know of another arm of the Service in which the regulations have distinctly been broken, and an officer has been appointed to a position to which he is not entitled. I intend to bring under notice the case of an officer who has been appointed lieutenant, a. position to which he is not entitled under the regulations.I know nothing about the present case, but it seems to me that some amount of undue influence has been brought to bear in certain quarters.
Motion agreed to.
House of Representatives’ Amendment. - Insert new clause 2A.
– This is a comparatively unimportant provision. Part 4 of the principal Act deals with liability in time of war. Part 12 deals with universal training. Under section 35, voluntary enlistment applies only to part 4. We want it to apply as well to part 12. It may be necessary to apply voluntary enlistment, not only to the Light House, but to the
Artillery ; and that is the effect of the amendment. It extends our power to continue the system of voluntary enlistment. I move -
That the amendment be agreed to.
Motion agreed to.
House of Representatives’ Amendment. - Insert new clauses 3A and 3b.
– The first of the new clauses inserted by the House of Representatives adds the words “ aerial machine” after the word “bullock.” It practically gives power to commandeer things in time of war; and as aerial machines are becoming more and more important in warfare, we desire to have power to commandeer them also.
– The words “ aerial machine” read very awkwardly after the word “ bullock.” It seems awful.
– The second new clause, 3B, deals with the question of prosecutions. The provisions are technical. They remedy defects which have been discovered as the result of prosecutions under the existing Act. They are proposed under the advice of the Crown law authorities, and will facilitate prosecutions. I move -
That the amendment be agreed to.
– The Minister will recollect that when this Bill was before the Senate previously, he made a statement as to the general policy of the Department regarding prosecutions of cadets. I take it that these new clauses give effect to the policy then outlined.
– That is so.
Motion agreed to.
Clause 7 (Amendment of section 127).
House of Representatives’ Amendment. - Insert the following new paragraph : - “ (aa) by omitting from paragraph (a) the words ‘ one hundred and twenty ‘ and inserting in their stead the word ‘ ninety.’ “
– I move -
That the amendment be agreed to.
Under the Defence Act as it stands, the number of hours for junior cadet training which is carried on in the primary schools, State and private, is 120 per annum. The time is devoted to physical training and miniature rifle shooting. We have recently had a conference of school authorities in Melbourne, and they have reported that that number of hours interferes too much with the ordinary school curriculum. They have discussed the matter with the Defence Department, and, as a result, it was agreed to reduce the number of hours to ninety per annum. This proposal is submitted to carry out that agreement.
Motion agreed to.
Clause 8 (Amendment of section 135).
House of Representatives’ Amendment. - Omit paragraphs d and e, and insert the following paragraph in their stead : - ” (d) by adding thereto the following subsections : - (8.) A person liable to be trained under the provisions of paragraphs (a) and (b) of section one hundred and twenty-five of this Act shall not be committed to gaol in default of payment of a pecuniary penalty imposed for an offence against the provisions of this section, but the Court may order that, in default of payment of the pecuniary penalty imposed, the person shall be committed to the custody of any prescribed authority for such time, not exceeding the time for which the Court could, but for this sub-section, have committed the person to gaol in default of payment of the pecuniary penalty imposed, as the Court thinks fit. (9.) Where a person liable to be trained under the provisions of paragraphs (a) and (b) of section one hundred and twenty-five of this Act, has been convicted before the commencement of this sub-section, of an offence against this section, and but for sub-section (8.) of this section would be liable to be committed to gaol in default of payment of the pecuniary penalty imposed for the offence, and makes default in payment of the penalty, he may, on the application of a prescribed officer, be committed to the custody of any prescribed authority for such time, not exceeding the time for which, but for sub-section (8.) of this section, he might have been committed to gaol in default of payment of the pecuniary penalty imposed, as the Court thinks fit. (10.) Any pecuniary penalty imposed on a person liable to be trained under the provisions of paragraphs (a) and (b) of section one hundred and twenty-five of this Act for an offence against the provisions of this section shall be deemed to be a debt due to the Commonwealth, and may, in addition to any other means of recovery, be recovered in any civil court of competent jurisdiction. (11.) In places where Children’s Courts exist, offences against this section committed by cadets under the age of sixteen years shall be prosecuted in such Courts as far as is reasonably practicable.’
– When the Bill was last before the Senate, clause 8 dealt with the question of fines. We reduced the amount, and altered the principle of the Act by which we couldnot prosecute till the end of the year, and allowed prosecutions to take place at any time during the year. We also did away with thepossibility of cadets being committed to prison, and substituted a “ place of military detention.”
– What does that mean ?
– A “place of military detention “ is “ as prescribed.” And we have issued regulations providing that barracks, area offices, drill-halls, forts and other military buildings are to be deemed places of military detention.
– What is the nature of the detention?
– When a cadet is committed to a place of military detention, he will usually be committed to an area office or drill-hall in charge of an Area Officer. If there are a number of the cadets to be so treated, they will be compelled to attend at 8 or 9 o’clock in the morning, and will be kept there until the evening. They will be liable to turn up the next day until the time they have to serve is completed. While there they will be drilled, or set to clean rifles, or to clean the drill-halls until the number of hours is completed.
– Suppose a cadet does not turn up the next morning ?
– Then he can be arrested, and his failure to attend becomes a criminal offence, because he has disobeyed an order of the Court, and may be sent to prison.
– It will clear up a good bit of misunderstanding if the Minister will make that public.
– I have made statements through the press, but I am afraid they have been submerged amongst a considerable number of other things. The new clauses are comprehensive, and provide more effectively for carrying out the desire of Parliament. I move - That the amendment be agreed to.
Senator Sir JOSIAH SYMON (South Australia) [12.31]. - I ask the Minister what possible good service is to be done by this provision which declares that a pecuniary penalty may be recovered in any Civil Court of competent jurisdiction. I would like to ascertain how it is going to be recovered, because the duty of enforcing the penalty rests with the Court which imposes it. It is an extraordinary thing, indeed, it will be a most oppressive thing, that cadets, after they are fined in a Court, are to be brought into another Court and made the subject of a civil action to recover the amount of the penalty.
– It is impossible.
– It is, I think, the most extraordinary thing which has ever been contemplated. It is no kind ness to the cadet to subject him to a double set of proceedings.
– There is, not only the question of the cadets, but also the question of the parents to be considered. There is the question of registration for which the parents are also liable.
– I should be no party to exempting parents from the ordinary proceeding under an order of the magistrate. Why should that be done?
– What about the Children’s Courts?
– I think it was a very great mistake that the provision relating to Children’s Courts was introduced. It is an absurd piece of unnecessary sentiment in regard to hearing a case of this description against a cadet in what is called the Children’s Court. The Children’s Court is not meant for that sort of thing. It is more detrimental to a cadet to be brought before the Children’s Court, as it has to do with incorrigibles and children beyond the control of their parents.
– You are quite wrong there.
– It is in our State. What is the Children’s Court for?
– To save publicity.
– We have the publicity just the same in our State.
– Not in ours.
– lt ought to be. I was not aware before that there was any State in which there were proceedings iti camera.
– The proceedings take place in camera, but they are not flourished all over the State.
– The report is published all over the State.
– No; because the proceedings are not reported.
– They ought to be reported, as in South Australia.
– In Western Australia the circumstances of the case are reported, but the names are always excluded from the report.
– The ‘ proposed new sub-sections will harass a man twice. If a penalty is inflicted upon a parent it is recoverable in the ordinary way. There is complete machinery for the purpose of enforcing it in the Magistrate’s Court, where the penalty is imposed. Why he should be subjected to another proceeding in a Civil Court I cannot understand. In the case of a cadet it would be absolutely ineffective. I do not see how a child of tender years could be sued in a Court. It is not an action for a wrong. I know of no process which would enable it to be clone, and to merely say that it may be recovered in any Civil Court of competent jurisdiction would not make the lad liable, and, if he was liable, how are we going to get the money ? He has no furniture which can be seized under an execution. If there is a fine inflicted everybody must agree that it is desirable that the youth should not be sent into the common gaol in the first instance. That is one way of enforcing the penalty. The Minister has, I think, with great tenderness, provided that the enforcement of the penalty is to be by the sending of the young cadet into the custody of the authorized officer. If the lad does not turn up to perform the work set him by way of punishment he should be sent to goal for disobeying the order of the Court. Surely that is enough? It is the proper means of enforcing the penalty. Suppose that an ordinary soldier or grown-up person who does not attend to his drill is brought before a Court and a penalty is inflicted. He is ordered into custody if he does not pay the penalty. But I think that a soldier would laugh at the idea of being made subject alternatively to civil action for the recovery of the penalty in a Small Debts Court. I think that the provision has been put in inadvertently, and I suggest to the Minister that it should be disagreed with.
– Suppose that action is taken under the Act against a parent, a monetary penalty can be recovered in two ways, namely, by imprisonment or by execution. We do not want to put the man in gaol, and he may have no goods. The third alternative is to garnishee his wages or salary; and in order to do that it is necessary to have this power to proceed in a Civil Court.
– Does this apply to the parent?
– It does not say that it applies to the parent, but that is what is contemplated. It applies to all those who are liable under paragraphs a and b of section 125.
– Paragraphs a and b apply to lads in the Junior Cadets.
This provision is not extended to any other section.
– Assuming that it does apply to Junior Cadets, we want power to recover the penalty.
– Surely the Commonwealth does not attach the 10s. a week which a lad of twelve years of age receives ?
– Suppose that the Court fines a cadet because of his contumacy, we cannot distrain upon his goods ; we do not want to send him to gaol, and under this provision we can attach his wages or salary.
Senator Sir JOSIAH SYMON (South Australia) [12.41]. - This is going a very long way for a very small result. If the object is to eventually secure a garnishee order and an attachment on the petty wages of a lad, I think it is a blemish on these proceedings. It ought to arouse a good deal of resentment amongst parents and cadets. Without something more in the Act an action cannot be brought, because it does not create a debt. We all know that persons under the age of twenty-one years are not liable to be sued on debts or contracts. A penalty is not a tort or a wrong in that sense. To say the very least of it it is extremely doubtful whether any such proceedings can be taken unless we add some words to declare the penalty to be a debt recoverable against the person upon whom it was imposed, just as though he were twenty-One years of age.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [12.42].- It is undesirable to make a pecuniary penalty against a lad between the ages of twelve and eighteen years recoverable as a debt. We have already determined that these youths shall not be liable to be sent to gaol if they do not attend their drills, but shall be sent to a place of military detention. I asked the Minister to tell me what would happen in the event of a cadet being allowed to go home at night, and refusing to return next day, really treating the order of the Court with contempt, and he told me that the lad could be prosecuted.
– He could be arrested and taken to the Court, but the Court could not send him to gaol.
– Why not?
.- I understand the Minister to say that he did not contemplate that.
– They could do so then.
– That obviates the difficulty which I saw. It is perfectly clear that if a penalty is imposed it can only be recovered by virtue of this proposed subsection, and it will be rather undesirable to get, as the Minister suggested, a garnishee order in order to attach the lad’s few shillings a week.
– The lad may be earning 40s. a week.
– The object has been, as far as possible, not to create dissatisfaction or difficulty in administering the Act. It is perfectly clear to my mind that if a lad is contumacious, and will not attend to the order of the Court, and put in the drills, there is no alternative but to imprison him for the offence. It ought to be clearly understood by the people that, while Parliament is desirous that every possible consideration shall be paid to those who have to serve, the law is not to be laughed at, and those who insist upon disobeying should lie punished after every reasonable means has been observed to insure the due fulfilment by them of the duties imposed by the law.
– - I have been astonished by the statement of the Minister, that it is proposed that if a fine is not paid it may be recovered by a garnishee order.
– I venture to say, with great respect, that the Minister has been badly advised on that point.
– It does not appear to me that a fine can be regarded in the nature of a debt, but, even if it were, I should still be against its recovery by garnishee order.
– I think I may ease the honorable senator’s mind. I am nearly certain that you cannot garnishee a penalty.
– The Government propose, by this legislation, to take the power to do so, and I am distinctly against that.
– If it be a debt, and recoverable, surely it can be garnisheed ?
– It all depends on how we make the law. No one who has lived for any time in Australia can fail to have known enormous hardships to be inflicted under the pernicious garnishee system. In many cases the few shillings necessary to keep the children of a household have been garnisheed by some fat man or other.
– Does the honorable senator not recognise that every facility is given to cadets to avoid being placed in that position?
– I should prefer to see the offenders punished in any other way. I object altogether to the issue of garnishee orders against them. We have taken the necessary power to commit them to the custody of the authorities.
– Suppose they run away ?
– Surely the Government are not so helpless as to be unable toarrest a cadet? They might be committed to the charge of an officer.
– We must make the power effective.
– The offender might be kept in actual custody if he could not be dealt with in any other way. No one who has seen the cruel hardships which are inflicted under the garnishee system will countenance the introduction of such a system into our defence legislation. Nothing could be more calculated to render our defence system unpopular. We have taken the power to commit the offender to the charge of an officer, and, if necessary, he could be kept in custody until he had” completed his drills.
– Suppose he wilt not do it?
– Is the Commonwealth so utterly helpless as to be unable to compel a boy to do its will ? If it is it will be equally helpless to make the proposed garnishee system effective. The cadet may say, “ If the Commonwealth are going to take my wages, I will not work.” It is proposed to compel these boys to lose their positions or work for the Commonwealth, when the few shillings; they earn may be the only money which i* keeping up the homes in which they live. Any other method of dealing with the matter would be preferable to this.
– What does the honorable senator suggest ?
– I say that we should1 give effect to the provisions to which wehave already agreed. If a lad will not perform his drills, we should arrest him, and? commit him to the charge of an officer,. and compel him to perform them. I should prefer that he should be sent to gaol than that we should adopt the garnishee system, which is about the most pernicious system that could be introduced in any civilized country.
– The honorable senator has a lot of consideration for the outlaw.
– I fail to see how Senator Story can regard a boy who refuses to attend a drill or two as an outlaw. An outlaw is liable to be shot at sight. Because a boy fails to attend a couple of drills, Senator Story would declare him an outlaw, who should be shot at sight. That is the honorable senator’s contribution to the debate. To garnishee a cadet’s wages is the most cruel method we could adopt.
– Worse than shooting him ?
– No one but Senator Story suggests anything of the kind. It is he who has said that he would regard the cadet who does not attend drill as an outlaw.
– He makes himself an outlaw when he defies the law.
– He does not do anything of the sort. I doubt whether Senator Story has not, in common with every other honorable senator, broken the law at one time or another. I appeal to the Minister to propose some method of dealing with this matter other than the introduction of the garnishee system into our Defence Act. I have never voted for such a system, and I never shall. We should not be placed in the position of leaving the Minister of Defence helpless in this matter, or of having to accept a proposal which we regard as pernicious and objectionable.
– I join in the protest against this proposal. It should be borne in mind that there is a difference of opinion amongst the people of the Commonwealth with respect to the compulsory military training system, however unanimous we may be in this Parliament in favour of it. There is outside a reaction against the system because of the publicity recently given to the many hard cases which have resulted from the imposition of these fines. I had to. bring one case under the notice of the Minister, the particulars of which were widely circulated in my district, and have done an immense amount of harm. In the case to which I refer, the father of a lad actually handed him over to the officer in command, but, unfortunately, the lad did not subse quently put in the necessary number of drills, and a fine was imposed. The particulars of that case have been circulated, as I have said, and people are beginning to look upon the military authorities as monsters. Those who believe in compulsory military training ought to be very careful to do nothing which might create a prejudice against it. There are not many desperadoes amongst the boys of Australia, but, if there be even a considerable number of unruly lads, we might establish something in the nature of an industrial school to which they could be committed.
– Does the honorable senator think the public would appreciate that?
– I do not think so ; but I do not think there would be the prejudice against it that there is against the garnishee system. There is no reason why a sentence against an offender should not be made indeterminate, so that he need not be discharged from such an institution as I suggest until he has made himself efficient. I sincerely hope that no action will be taken to further prejudice the system of compulsory military training in the eyes of the public.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [12.55].- I doubt very much whether it would be any helpto send a lad to an industrial school for an indeterminate period. The difficulty might be overcome by having some place of military detention to which an offender might be committed for the period he was sentenced to serve. We cannot permit the lads to defy the law, and I do not think they should be sent to an ordinary gaol; but there is no reason why they should not be kept in some place of detention where they could be put through a proper course of military training.
Proposed new sub-sections 8 and 9 agreed to.
Question - That proposed new subsection 10 be agreed to - put. The Committee divided.
Majority … … 5
Question so resolved in the negative.
Proposed new sub-section n agreed to.
– I am glad to see the provision which is included with respect to Children’s Courts.
– As a matter of fact, we put it in in the Senate.
– I am very glad that it is to be in. My honorable colleague* Senator Symon, referred to the matter, and said he thought that the details ought to be published. I do not think they ought to be published ; but whether they are published or not, it is a good thing to keep these lads away from the evil influences which very often surround a Police Court.
Amendment, as amended, agreed to.
Motion (by Senator Pearce) proposed -
That the report be adopted.
– Before the report is adopted, I should like to direct attention to the fact that it is three or four minutes later than the usual time for adjourning for lunch. Some honorable senators, assuming that the Senate would adjourn at the usual hour, have left the building, and I do not think it is right that we should depart from the usual rule.
Sitting suspended from 1.4 to 2.30 p.m.
Question resolved in the affirmative.
MINISTERS laid upon the table the following papers: -
Lands Acquisition Act 1906. - Land acquired at Port Augusta - For Commonwealth purposes.
Public Service Act 1902-1911 - Promotion of H. J. Rowlands to the position of Clerk, 4th Class, Accounts Branch, Department of Home Affairs.
Debate resumed from 15th August (vide page 2215), on motion by Senator McGregor -
That this Bill be now read a second time.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [2.32].- In dealing with this Bill, it is well that honorable senators should have a clear understanding of our financial position. I would remind them that, whilst we have been experiencing years of abundance, which have resulted in an overflowing Treasury, we ought not to lose sight of the fact that we cannot expect those conditions to continue indefinitely.
Commonwealth to return a certain proportion of revenue to the States; but the Commonwealth returned to them large sums in excess of that.
Senator Lt.-Colonel Sir ALBERT
GOULD. - The honorable senator may say that, but it should be a very easy matter to refute the charges that have been made, if there is no truth in them. I do not say that the Government should take any notice of mere tittle tattle, but when a challenge comes from a reputable quarter it is up to the Government, either to admit that a mistake has been made, or to produce evidence to show that the charges are untrue, and that the employes of the Department have been seriously maligned.
.- Whilst giving the Government every credit for the expenditure of money in certain directions, I must take exception to the proposed allocation of the vote for new works for the Postal Department in Victoria. I find that a sum of .£36,950 has been set down for new works in Victoria for the Postal Department ; but I very much regret to say that it is proposed that no less than £28,800, or about 66 per cent, of the vote, shall be spent in Melbourne and the metropolitan area. It is proposed to erect twenty new post-offices, in this State, and of that number nine are to be erected in the vicinity of Melbourne, and only eleven in the rest of the State. In the circumstances I am of opinion that the Government are not dealing fairly with the toilers of the country districts, who are after all the backbone of the State.
– Does the honorable senator propose to conclude with an amendment?
– I do not. Though honorable senators opposite often say that we, on this side, are “ gagged “ by the Caucus, I have a right, as a member of the Labour party, and a Victorian senator, to criticise the Government if I believe they are acting wrongly in the allocation they propose of expenditure upon public works.
– The honorable senator may criticise them, but he must not vote against them.
– I commenced by saying that I give the Government every credit for the large amount of money they propose to expend on public works.
-. - They have the cash.
– I am very pleased to know that they have the cash. They have not to resort to the borrowing policy to which my honorable friends opposite would like them to resort. They have the cash, and, therefore, do not require credit. I think that the Government have been wrongly advised by their officials, seeing that they practically affirm that out of every £3 expended upon postal works in Victoria £2 shall be spent in Melbourne and only _£i in the country. I have nothing to say against Melbourne. Indeed, I am rather proud of it. But it is not the hub of the universe, or even of Victoria ; and, although more than half the population of this State is settled in it, that is no reason why 66 per cent, of the money to be expended upon postal works in Victoria should be spent in this city. I am strongly opposed to centralization. I hold that the Government are spending too much in the metropolis, and are thereby inflicting a wrong upon the country. I would prefer to see a greater amount upon the Works Estimates for expenditure in other portions of Victoria rather than such a large sum for expenditure in Melbourne.
– Where the people are.
– Where half the people are. If the Government, had proposed to expend in Melbourne one-half instead of two-thirds of the money which appears upon these Estimates for postal works in Victoria, it would not have been so bad. But when they propose to expend two-thirds of the money devoted to postal works in Victoria upon half the population of this State, they are doing an injustice to the country districts. Under the division “ Telegraphs and Telephones,” I find that £60, 1 50 is to be spent upon the “ construction and extension of telephone lines, instruments, and material, including construction of conduits and placing wires underground.” If we are to attach any importance to the remarks which have fallen from the lips of Senator Gould, we must come to the conclusion that out of this expenditure of £60,150, possibly £150 will be spent upon postal works, and £60,000 upon the upkeep of the man who is loafing on the job. I, for one, repudiate the statements which have been made by Senator Gould to-day, and on a former occasion by Senator Vardon. The allegations that the men who are employed by the Postal,
Defence, and Home Affairs Departments are unworthy to be called men-
– The honorable senator is defying the allegator.
– The statements which have been published in the press from time to time have been effectively answered by the Leader of the Government in another place. Those statements were made only with the object of damaging the system of day labour in the eyes of the electors of Australia. We know perfectly well that the great daily newspaper in Melbourne, whose motto is such a paradox, has always been persistent in libelling the person who is obliged to earn his living by the toil of his hands and the sweat of his brow.
– That is what politicians are complaining of.
– They are not. If a single charge can be proved against any man employed in a public Department which the Government have to administer - I do not limit my statement to those who are employed in the undergrounding of our telephone wires - that individual should be reprimanded, and, if the necessity arises, should be dismissed from the Service. I am not here to advocate the claims to special treatment of any person in the Service who happens to be in sympathy with the views of the Labour Party. Neither am I actuated by any bias towards the individual who may be an opponent of that party. I merely say that, irrespective of their political opinions, the Government should pay a fair wage to the men they employ, and should expect a fair day’s work in return.
– And they should see that they get it.
– They do see that they get it. It comes with very bad grace from honorable senators opposite to jibe at the manual labourers in the employ of the Commonwealth, and, for party political purposes, to follow the lead of newspapers which ought to have better sense.
– There is not an officer in the Commonwealth who has so many sweated men under his charge as has the officer in control of those who are engaged in undergrounding our telephone wires.
– At the present time there is in charge of them a gentleman whom I have never had the pleasure of meeting - I refer to Mr. Sullivan. He has sole charge of the work which is being carried out in the metropolitan area. I hold no brief for him, but, in my opinion, he is carrying out that work conscientiously, effectively, and economically. He has under his control a body of men ranging from 600 to 1,000. At the present time there are 600 men employed in undergrounding our telephone wires over whom he has direct or indirect supervision. It is absolutely impossible to find a body of men of that character in which there will not be a few loafers or shirkers.
– That is all that has ever been alleged.
– It is all very well for the honorable senator, in his dictatorial style, to declare that that is all that has ever been alleged. But Senators Gould and Vardon both made wholesale charges against men, in support of the statements published in the Melbourne Argus. They backed up all the insinuations and accusations that were levelled against the man on the job.”
– Surely the honorable senator does not contend that one man can supervise the work of 600?
– I do not say that he can attend to all the details, any more than one general can control the operations of an army. I do not suggest that Mr. Sullivan is a Kitchener in the control of his men. But, as far as seeing that the men under him do an honest day’s work for a fair day’s pay, I do say that he has rendered good service to the Commonwealth.
– Why would not Mr. Fisher give the name of the official who signed the report which he read?
– If honorable senators opposite will read the statement which was made by the Leader of the Government in another place-
– Without a signature.
– The statement came from Mr. Charles Bright, the Deputy PostmasterGeneral.
– A covering letter did, but not, the report.
– If honorable senators will refer to Hansard, they will see that each of the charges made by the Argus two or three weeks ago has been absolutely refuted.
– By an anonymous report.
– Whose report was it?
– I presume that the anonymous report to which Senator Chataway refers was that which appeared in the columns of the Argus. The denial of the accuracy of that report was not an anonymous one. Knowing Mr. Bright as I do, I have no hesitation in saying that, as a man of honour, he would not send.-to any Prime Minister a report which was inaccurate, misleading, or dishonest.
– Does the honorable senator think that he would not forward to the Ministerial head of his Department a report from an official merely because he did not agree with it?
– In my opinion, the Deputy Postmaster-General would not forward to the head of any Government a report from one of his subordinates which was nothing more nor less than a’ tissue of lies. In my opinion the whole of these villainous charges which have been made about “the man on the job” have absolutely failed, just as have other charges which have been made with the object of injuring the Government. The accusations in regard to the appointment of Mr. Chinn as an engineer on the transcontinental railway broke down in very much the same way. That, also, was a mare’s nest. The evidence shows that the appointment of Mr. Chinn was not only thoroughly justified, but that, if everybody had his due, he was entitled, by reason of his abilities and character, to be, at all events, second in charge, if not, indeed, principal engineer of the line.
– He was not appointed in consequence of those testimonials.
– Order ! The honorable senator should confine himself to matters contained within the Bill.
– I observe an item of£312 set down for the construction of drill halls in Victoria.. That sum is totally inadequate. Recently I had the pleasure of introducing to the Minister of Defence a deputation from representatives of various public bodies in Warragul, in Central Gippsland. They pointed out the difficulties and disadvantages under which youths are receiving their military training in that part of the country. These youths are absolutely imbued with the spirit of patriotism and are keen to participate in the defence of their country. At present, however, they are deterred owing to the difficulties under which their training is undergone. The climatic conditions of the part of Gippsland where they reside, the state of the roads, and the distances to be traversed, are in themselves handicaps ; but, in addition to that, there is a serious want of proper drill halls. Under existing circumstances, the youths are not doing justice either to themselves or to their Area Officers. With all respect to the sympathetic administration of the Minister, I do not think that £312, the amount set down on page 9 of this Bill, for drill halls, can be anything like adequate. It is only a drop in the ocean. Requests will come in from various parts of the country, as well as from the metropolitan districts. I give all credit to some public bodies, especially at Footscray, Victoria, as well as other towns that I could instance, in loyally coming to the assistance of the Government in placing at our disposal public buildings for drilling purposes.
– For their own defence.
– Certainly; because they realize that however little they may have to lose, they have a common interest in defending this country, and warding off risk of attack by a foreign foe. I am very pleased that the Minister was so emphatic, definite, and logical in the answers that he made to a deputation of worthy people, representing a certain body, that waited upon him during the last day or two. He pointed out that every man, woman, and child in Australia has something to defend. Those of us who have not property have our liberties, our hearths, and homes,and our native land. I know that I am not appealing to deaf ears when I make this appeal to the Minister, and point out that £312 is a paltry and utterly inadequate sum for drill halls in Victoria.
– The honorable senator is barking up the wrong tree. Thereis £80,000 appropriated for that purpose
– I am very pleased, indeed, to know that there is another vote under another heading. I have absolute confidence in the Government, and was satisfied, from thesympathetic attitude of the Minister, that the amount which I have called attention to could not be the total. I thought it was either a clerical or typographical error. I also feel keenly as to the determination of the Defence Department to deprive certain worthy citizens of this community of the right to wear a certain uniform when they join the Defence Forces. I refer to the kilts of the Scottish Regiment. There is not a drop of Celtic blood in my veins, as far as I am aware, and I have no especial reason for appearing here as an advocate for the canny Scot But I recognise that it has come down as a tradition that one of the factors which has made the British Empire what it is to-day is the fighting power of the Scotch, and one of the things that the Scotsman loves almost above everything, else - next, indeed, to the diabolical bagpipe - is the kilt. I honour the Scot for his reverence for national tradition. I sympathize with him in that respect. I see eye-to-eye with him, though I am not, so to speak, ear-to-ear with him in respect of the barbarous sounds emitted from the bagpipe. I do trust that the Minister of Defence will give careful and deliberate attention to the request that has been made that he will not abolish from our Defence Forces that picturesque garment which’ the Scotch, perhaps in their folly, regard as essential to the maintenance of a spirit of military ardour within them. Some of my friends who are keenest in the defence of Australia, and in their love of our military system, have the greatest adoration for the dress of their forefathers.
– I hope that the honorable senator will not continue in that strain, because there is nothing about kilts in this Bill.
– I will say a word or two about the Northern Territory. 1 observe that the sum of £2,000 is set down for artesian water bores and dams, and similar purposes. I am pleased at that, because it is a useful vote. I am afraid that this sum will not go far in the direction of boring for artesian water, but after having had the pleasure of listening to Captain Barclay, who pointed out how essential to the development of the eastern portion of the Northern Territory, between .the Macdonnell Ranges and Borroloola, was a full and adequate supply of . water, I thoroughly realized how necessary it is that efforts should be made in this direction. It is also necessary, in my opinion, that adequate railway construction should be undertaken for the development of the Northern Territory. For that reason I hail with delight the sum of money put down for the survey of a railway line from Pine Creek to the Katherine River, ,£4,200. That amount will not go far, but it is a start. As one who has recently travelled between Pine Creek and the Katherine River, I am convinced that, no matter how much opinions may differ with regard to the connexion of Queensland with the Northern
Territory by railway, a line’ from Pine Creek must be built.
– It is an inevitable link.
– It is. Even if it is decided afterwards not to continue the railway southward through the Macdonnell Ranges - if we carry the Tine over to Camoo-weal - the little piece from Pine Creek to the Katherine River’ must be built. I an glad that the Government are showing that they are earnest in their desire to link up the empty north, the Achilles’ heel of this continent, with the great, populous districts of the south. I trust that mining grants will be given to the Northern Territory. I am even pleased to observe a vote on these Estimates for a steam laundry, £1,000. It may seem a peculiar item - ‘ rather childish to some, perhaps - but those who have been north, and have seen that the only means of getting clean linen is at the hands of the “ yellow agony “ - which means getting under the thumb of our almond-eyed Mongolian friends - will welcome this vote. Unfortunately, at present the white race of the Territory are too much dependent upon the other races, who may contaminate their clothes with diseases peculiar to yellow men.
– Does the honorable senator know that they are steadily clearing out?
– Of course, I know that the honorable senator was always a lover of black, brown, yellow, and brindled races. He must be sorry that they are gradually clearing out. I hope that they will do so soon.
Question - That the Senate do now adjourn - put, under sessional order, and resolved in the affirmative.
Senate adjourned at 4 p.m.
Cite as: Australia, Senate, Debates, 16 August 1912, viewed 22 October 2017, <http://historichansard.net/senate/1912/19120816_senate_4_65/>.