25th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
– Can the Minister representing the Postmaster-General indicate the present position in relation to the attempt by the Commonwealth Government to acquire a certain area of the Rippon Lea Estate, in Victoria, to extend the premises of television station ABV2?
– I do not know what the present position is, but I shall confer with my colleague, the Postmaster-General, and inform the honorable senator accordingly.
– Has the Minister representing the Minister for Primary Industry any information about meat that is held by the meat exporting firms and is ready for transit to the United States of America? Can he indicate whether it will be possible to export this meat to the United States? Have some meat exporting firms had their export licences cancelled? If so, why has this happened?
– I think it is fair to say it was as a direct result of representations made by the honorable senator to the Government last week that the Minister for Primary Industry made an urgent appeal to the Government of the United States of America to accept meat that had been packed ready for export by firms whose licences either were in jeopardy or had been withdrawn. The United States Government has agreed to accept all meat that had been packed and was in stock ready for export to the American market as at a given date. I do not know the specific date, but I shall ascertain it and inform the honorable senator accordingly.
Some export licences have been cancelled. I emphasize the term “ export licences “, because the Government has no jurisdiction over killing for home consumption. The cancellation of these licences highlights the tension that exists between Australia and the United States over the beef trade. For some considerable time the United States
Government has laid down conditions which must be fulfilled by our killing works if they are to enjoy the benefits of export licences. All abattoir managements who were required to improve their equipment and buildings to meet the American standards were advised of the repairs, alterations or additions that were necessary and they were given a considerable time in which to effect the improvements. Any licence which has been cancelled has been cancelled for only one reason - that the licensee has not complied with the requirements of the United States Government. In the interests of the maintenance of this trade, which is so valuable to Australia and in particular to the meat producers, I urge all licensees who have not satisfied these requirements to do so without delay. The conditions have been imposed not by the Commonwealth Government but by the United States Government. I repeat that it is in the interests of the licensees and of Australia as a whole that these requirements should be satisfied without delay.
– My question is directed to the Minister representing the Prime Minister. As many questions have been asked in the Senate, and in another place, about the training of anti-Communist Croatians in Australia, with a desire for action to be taken by the Government, will the Minister look into the training of Communist Croatians in Australia? Their active participation in sabotage can be gauged by the bombing outrage in Sydney, which is within Australia. Will the Minister have inquiries made to ascertain whether these Croatian Communists are trained at Minto, the Communist training centre near Sydney?
This is an unfortunate set of circumstances. The sooner that these people learn to enjoy the benefits of living in Australia, and to behave as Australians, the better. I think this is a matter that can be properly left to the police and security people who, I have no doubt, are actively on the job.
– My question is addressed to the Minister representing the Minister for Trade and Industry. As the tourist industry is a very important sector o( the Australian economy will the Minister ask the Minister for Trade and Industry to use his influence with shipping companies bringing passengers to Australia to arrange to have on each vessel a display of information in pamphlet form setting out the many famous tourist attractions in all Australian States? Will the Minister ask the shipping companies to ensure that a map of Tasmania, showing the places of great interest to tourists, is included in the tourist publicity advertising Australia?
From the information I have, J would say that a great deal is done in this direction already. At the present time pamphlets and booklets are distributed and, indeed, moving pictures are shown, publicising Australian tourist resorts on ships trading from Australia to England and the Continent and back again. Approaching the question from the broad national outlook, I will ensure that Tasmania is not overlooked.
– I preface a question to the Minister representing the Minister for Air by pointing out that on several occasions it has been necessary to raise in the Senate the subject of the use of the Royal Australian Air Force aerodrome at Newcastle by civil aircraft. Is the Minister aware that last Thursday night when a civil aircraft was due to landone lands only about once a day - jet aircraft including Mirages were in the air and caused alarm to passengers and people waiting at the airport? Will the Minister again ask the Air Force to allow the one civil aircraft to use the airport without having jet aircraft in the air at the same time?
– I am aware of the continuing interest of the honorable senator in the joint use of this airport at Williamtown. He has raised the matter with me before and I have communicated to him, from time to time, the difficulties attaching to the joint use of the airport by the Department of Civil Aviation and by the Royal Australian Air Force. There is a standing arrangement that, except in the case of service needs, the airport shall be available for scheduled civil aviation flights at various times during the day. As far as I know that arrangement is adhered to in all normal circumstances. 1 shall certainly take up the incident now raised by the honorable senator and will acquaint him with the circumstances which made it necessary.
– I direct a question to the Minister representing the Minister for Primary Industry. The northern press of Tasmania to-day discloses that the Department of Primary Industry has withdrawn the export licences for no fewer than five exporting firms in Tasmania, allowing only one export licence to remain with a firm in Launceston. Can the Minister say whether or not the letters advising these firms of the withdrawals had been drafted within the Department of Primary Industry and were known to the Minister at the time the Meat Industry Bill 1964 was before this House? I ask the Minister whether or not the conditions imposed by the United States regulations that have been invoked by the department to support the cancellations apply uniformly to meat processed and produced in the United States, and meat imported into the United States? Does the Minister realize how access to the United States market will be gravely curtailed to the beef producers in Tasmania if five out of six firms have had their licences withdrawn?
– I have no specific knowledge of what was in the mind of the Minister for Primary Industry as far as the drafting of the letters was concerned. I think it would be appropriate for the honorable senator to place his question on the notice-paper, and I will ask the Minister to supply the information.
– I direct a question to the Minister representing the AttorneyGeneral. I refer to a question asked by me on 14th April, now No. 100 on the noticepaper, concerning allegations made at the recent trial in Yugoslavia that an organization known as the Croatian Revolutionary Brotherhood was operating in Australia and training young people for terrorist activities in Yugoslavia. In view of the recent evidence of violence involving Croatian groups in Australia, I ask the Minister when I may expect a reply. Is the Government evading answers to questions on this subject? Will the Government order a proper and searching investigation of the activities of the Ustashi and any other of such groups ready to use violence in pursuit of ils political ends?
– I will ask the Attorney-General when he can give a reply to the honorable senator. I cannot obtain one from him until he is ready to give it.
– I think the best thing I can do is to ask the honorable senator to put his question on the noticepaper so that I can obtain a full reply for him from the Treasurer. By way of an interim answer, I merely say that there are sometimes traps in comparing ex parte statements of tax in one country with tax in another country. Indeed, it occurs to me as I answer the honorable senator’s question that some time ago, when it was necessary for me to have a look at a matter involving Japanese taxation, I found to my surprise that not only was a national tax levied on the income earned by commercial enterprise, but also there were what were called local taxes levied on the same basis, that of income earned. In the particular case which I was examining, the addition of the two taxes showed a greater rate of tax than that which would have applied in Australia. I do not know whether this particular circumstance has relevance to the honorable senator’s question, but I suggest that it might. I will obtain an answer from the Treasurer.
– I wish to ask the Minister representing the Minister for Shipping and Transport some questions which refer to an aspect of northern development in South Australia about which I and other honorable senators have asked questions previously. Has the Premier of South Australia, as reported in to-day’s issue of the Adelaide “ Advertiser “, now placed before the Commonwealth Government a request for financial aid to enable Port Augusta and Whyalla to be connected by a standard gauge railway? Does the proposal cover an additional link between Kimba and the Port Lincoln line? Do other requests for financial aid include requests for money to construct a pipeline for the purpose of exploiting natural gas resources in South Australia, and for beef roads? Is the Minister in a position to say whether Cabinet is considering these matters?
– I am not aware of the specific matters mentioned by the honorable senator. I do know that the Premier of South Australia interviewed the Prime Minister yesterday, and I assume that he made some requests for assistance. I do not know what the requests were or how much information about them can be made available to the Senate at this time. I will make inquiries and I will let the honorable senator know whatever I am able to tell him.
– Is the Minister for Customs and Excise aware of the proposal made by the Booksellers Association of Australia that the present Commonwealth Literature Censorship Board be reconstituted as an open Federal tribunal whose rulings would bind the Commonwealth and the States? Is he aware of any reaction by the State Governments to such a tribunal and would he care to give the Senate his own views on the proposal?
– I read with some interest the proposal emanating from the Booksellers Association of Australia. I have received from a number of sources in Australia many suggestions regarding a centralized censorship board. This shows that there is a pretty wide interest in attempting to establish a centralized system of censorship. These suggestions are all currently being examined by the board. If we are to have a conference between the Commonwealth and the States on the subject, this examination will provide a very useful background to our discussions.
– My questions are addressed to the Minister representing the Treasurer and the Minister representing the Minister for Air. Has the Treasurer received from the committee under the chairmanship of the honorable member for Maribyrnong a report on the Defence Forces Retirement Benefits Act? If so, what action docs Cabinet propose to take on the report? Will the Treasurer table the report for the information of honorable senators? Can the Minister representing the Minister for Air say whether it is a fact that the Air Board recently carpeted a senior Royal Australian Air Force officer and threatened him with a general court martial for having adversely criticized the Defence Forces Retirement Benefits Act? Has the Air Board taken such action or does it contemplate such action? If not, will the Minister give an assurance that this officer’s promotion will not be in any way adversely affected by this matter?
– In answer to that part of the honorable senator’s question which affects the administration of the Treasury, I can only say that I am not aware of a report made to the Treasurer over the signature of the honorable member for Maribyrnong. Therefore. I am not aware of the nature of the report. It may well be a private report. In that case, it would not be made available to the Parliament. All I am do is to make some inquiries and let the honorable senator know the answer later.
– I am afraid that Senator Cole’s question is too ambiguous for me to give him a specific reply to that part which concerns the Minister for Air. I have seen more than one report which might have some relation to the matters he has raised. If the honorable senator cares to let me have his specific requests in writing I shall take them up with the Minister.
– I direct a question without notice to the Minister representing the Minister for Labour and National Service. Has the Minister’s attention been directed to the figures released yesterday by the Commonwealth Statistician showing that the number of people in civilian employment rose by 28,300 during February and by 136,400 in the preceding twelve months? Can the Minister inform the Senate whether the figures showing the percentage of unemployment are approaching or are at an all-time low?
– I am afraid I have not in my mind the precise percentage of people registered as unemployed at the present moment. I think that all honorable senators know that the figures must be very close to an all-time low and, indeed, that in certain areas - particularly that of skilled tradesmen - a shortage of labour is developing.
– My question is directed to the Minister assisting the Prime Minister in relation to education and research. The Governor-General, in his Speech in this chamber on the 25th February, stated that the Government believed that the process of making available to the man on the land the benefit of rural research could be quickened and that the Government was prepared to work out arrangements with the States for this purpose. What has been done since then in this regard?
– I think Senator Murphy is probably referring to the provision of extension services throughout Australia which make known to farmers and men on the land the result of scientific research. Since the time mentioned by the honorable senator, the Department of Primary Industry, the Commonwealth Scientific and Industrial Research Organization and other departments have been examining this matter. They have been in touch with the various States in an endeavour to agree on a course of action which will put into effect what the Governor-General said that the Government intended to do.
– I wish to ask the Minister representing the Minister for Primary Industry a further question. I previously referred to the five firms in Tasmania whose licences to export meat from Tasmania to the United States of America had been withdrawn. I ask the Minister whether it is not a fact that the companies’ stock of export meat as at the 1st May had been processed in accordance with all the hygiene requirements laid down under Commonwealth law to maintain the purity of Australian meat for the export trade. 1 ask the Minister whether, if that is so, he would not consider it fair to lengthen the time for the imposition of this export embargo so as to give the companies concerned a reasonable time and opportunity within which to comply with further stringent American requirements.
– I think I answered the first part of Senator Wright’s question when I replied to a question asked by Senator Lillico. I informed the Senate that the Minister for Primary Industry had made very urgent representations to the Government of the United States of America in an endeavour to persuade it to accept the meat that had been slaughtered, packed and prepared for export under the requirements of the American people before 1st May. 1 think that was the date by which improvements had to be made at abattoirs. Under the original American requirements, meat in stock in Australia at that date would have been excluded from importation into the United States of America. The United States Government, under pressure, agreed to accept meat that was ready for export at that time. I think that answers the first portion of the question.
The second portion relates to the granting of an extension of time to persons whose licences have been cancelled. On this matter I cannot be as specific as I should like to be, but my understanding of the situation is that some months ago - I do not know specifically how many - the United States Government made it quite clear to the Australian Government that if exports of meat to the United States were to continue, compliance with standards set by the United States Government would be required. In other words, the United States Government would not receive into America meat that was exported from abattoirs that did not comply with United States standards.
My understanding leads me to believe, further, that exporters were advised of the requirements of the United States Government, and I venture to say that those persons whose licences might be in jeopardy to-day are persons who did not meet the requirements of the United States Government or who, since the information came into their possession, have not brought their premises up to the standards required by the United States Government.
I do not want to appear to be unkind, because I may not be strictly factual, but I should think it would be fair to say that those persons who to-day are threatened with loss of licence have, at least in some measure, themselves to blame for not complying with the requirements of the United States Government, which is the importer and which pays for the products. Therefore, I fail to see what good purpose could be served by the granting of an extension of time, unless those persons who are seeking restoration of licences withdrawn because of failure to comply with the United States Government’s requirements show that for certain reasons they could not comply with them within a given time. There might then be some justification for having a look at individual cases. It is true and fair to say that those persons have had ample notice and that they should have brought their premises up to the requirements of American importers.
– I direct a question to the Minister assisting the Prime Minister in relation to education and research. Has the Commonwealth committee on tertiary education yet presented its report to the Australian Universities Commission? If not, when is it now expected that the report will be received? Is it likely that the report will be available to the Senate before the end of the present sessional period of the Parliament?
– The answer to the first part of the question is, “ No “. Quite intensive meetings of this committee on tertiary education have been going on in Melbourne in the past week, in an endeavour to get the report into the hands of the Government, which is quite eager to receive it and, indeed, has been expecting to receive it for some time. ] cannot give any specific date as to when it is expected the report will be here, but the information that I have received indicates that it should not be very long. I have been in touch wilh persons on that committee.
I think it is unlikely that the report will bs available to the Senate during this sessional period. It will be, in fact, a report to the Commonwealth Government, and it will be for the Commonwealth Government first to consider the report, to decide what recommendations in it will be accepted or not accepted, and then to present the lot to Parliament, as it does with reports of the Australian Universities Commission. So I think it is unlikely that the report could be presented to the Senate during this sessional period.
– Will the Leader of the Government in the Senate give consideration to the sending of a delegation of seven senators to the opening early next month of the newly constituted House of Assembly in Papua and New Guinea?
This matter comes within the jurisdiction of the Minister for Territories. I am aware that he has in mind the sending of a delegation to the ceremony. I have seen a copy of the letter from him, but after reading it I was not quite sure of the size of the delegation that was contemplated. I am making further inquiries, but Senator Scott can rest assured that the delegation will include senators.
– My question is addressed to the Minister representing the. postmaster-General. Will he inquire from the Postmaster-General, and later inform the Senate, what action is being taken by the Australian Broadcasting Control Board to install either a television translator station or a television transmitter to provide the people of the west coast of Tasmania with an efficient television service? At the present time, television reception there is uncertain and often unsatisfactory.
– I will bring these representations to the notice of my colleague and ask him to communicate directly with the honorable senator.
– 1 wish to address a question to the Minister representing the Minister for Primary Industry. 1 beg of him - inasmuch as he requested me to treat his colleague as a court of appeal when he denied, in legislation recently before us, the establishment of another court of appeal - to forgive mc if I trespass unduly on his patience. 1 asked him, when he gave me an answer to a question about whether it would be fair to give those meat exporters whose licences had been withdrawn further time in which to comply with the American requirements, whether his colleague had informed himself of the facts relating to each individual establishment. If his colleague has not taken the opportunity to do that, will he do so and. after consideration of each establishment, say whether or not it would be fair to grant further time?
– I do not know whether the Minister for Primary Industry has informed himself of the requirements laid down for the improvement of each establishment. Indeed, 1 should think it might well be beyond the ability of any one to undertake that task. The honorable senator asks whether it would be possible to consider extensions of time in the cases under review. I do not think it lies within the jurisdiction of this Government to grant further time. The requirements are laid down by the importing government - the American Government. I think the American people could well say to the Australian Government, “ We have made our requirements known lc you for some considerable time “. The Australian Government could then rightly say: “ We have made your requirements known to the exporting interests throughout the length and breadth of Australia. If they have not brought their premises up to the standard laid down by the importing country, they do not place a proper value on the worth of the meat export industry to Australia.”
I suppose I will be accused of making a pretty critical comparison of those who have complied and those who have not complied with the requirements, but I have yet to learn of any one case where an exporter has not been given all the assistance possible in this field by the Department of Primary Industry. If an exporter asks for an extension of time, we might well ask, “ For how much longer after this will you want to have your time extended? “ I believe that in the main these people have had enough time to meet the requirements of the American people. I will bring the honorable senator’s submissions to the notice of my colleague, the Minister for Primary Industry. If he has other views than mine, I will let the honorable senator know.
– I ask the Minister representing the Minister for the Interior a question. Now that Lake Burley Griffin is full, following recent good rains, and presenting a magnificent body of water for the enjoyment of the citizens of Canberra and visitors, has thought been given by those in charge of the creation of this great lake to the dangers and risks of siltation? What steps, if any, have been taken to cope with this ever-present problem where large quantities of water are imprisoned?
– I imagine that a great deal of thought has been given to the possibility of siltation in the lake, and I would be surprised if the engineering brains of the Australian Capital Territory had not devised ways and means of dealing with it. Consideration has been given to the weed menace that Senator Kennelly brought to our notice as a result of his vast experience of Albert Park Lake. I shall bring the honorable senator’s question to the notice of my colleague, and if the information I have given him does not adequately cover the position, I shall ask the Minister to take the matter further.
– My question is directed to the Minister representing the Prime Minister. By way of preface I state that some weeks ago I asked the Minister whether attention could be given to speeding up consideration of applications by people from outside the Public Service for positions within the service. The answer I received from the Prime Minister was to the effect that if I referred to a specific application it could be dealt with. I have had referred to me specific applications which 1 have raised with the various departments and it seems that most of the delay is caused by the formalities demanded by the Public Service. I therefore ask whether the Minister will request the Prime Minister to discuss with the Public Service Commissioners ways and means by which the formalities required by the Public Service could be minimized so that people applying for these positions might have their applications dealt with before four or five months have elapsed, which appears to be the extent of the delay at present.
– I think that this sort of thing has to be dealt with in specific terms rather than in general terms. The Prime Minister, no less than any other Minister, wants to have before him specific cases rather than general statements. I suggest that if Senator Buttfield knows of a case in which there has been delay caused by the need to observe formalities, she should refer the case to the Prime Minister so that he may inquire into it rather than deal with a general inquiry.
– I direct to the Minister representing the Minister for Primary Industry a question relating to meat works in Tasmania whose licences have been cancelled. If and when those works bring their facilities up to the standards laid down by the Department of Primary Industry, can it be taken that the renewal of their licences will be automatic?
– The answer is, “ Yes “. The honorable senator has referred to the requirements laid down by the Department of Primary Industry. The department acts as the agent of the American Government which has laid down certain requirements that must be observed before it will permit the importation of meat from Australian abattoirs. I repeat: This is not a requirement laid down by the Australian Government. The American Government has said, in effect, “ If you want to export your meat from those works to our country you will have to comply with a set of standards that we stipulate “. It is as simple as that. The Department of Primary Industry merely conveys the information to the meat works. If the people who are in charge of the meat works do not bring their works up to the requirements laid down by the American Government, that is their business. Let nobody suggest for a moment that the requirements have emanated from this Government; they have not.
– I address to the Minister representing the Minister for Primary Industry a question similar to those asked by other honorable senators about meat exports. Is it fair to surmise that the requirements which are being insisted upon by the Government of the United States of America apply only to abattoirs that are killing for the American market and not to meat that is killed for export to other markets such as the United Kingdom and Europe?
– Often it is dangerous to surmise, but I understand that in this instance the surmise is soundly based. The requirements referred to have been laid down by the American Government. I have not heard of any other importing country having demanded (he satisfaction of particular requirements in relation to their imports.
-] address to the Minister representing the Minister for Territories a question relating to an announcement in various newspapers this morning that a company is to invest money in New Guinea, ls it a fact, as reported in the “ Sydney Morning Herald “, that the initiator of the company is a Canadian? Can the Minister say whether the money to be invested will be Canadian money or Australian money?
– I have not had an opportunity to discuss this recent development with my colleague. In the circumstances, I should not like to answer the question specifically. It is clear from the newspaper report that, whoever was the originator of the idea and whatever money will be invested from outside sources, a very large proportion of the capital will be provided by Australian people. I shall get a more complete answer for the honorable senator when I have an opportunity to see the Minister for Territories.
(Question No. 50.)
asked the Minister representing the Minister for Immigration, upon notice -
What was the intake of migrants from Italy, Greece and Malta during 1962 and 1963?
– The Minister for Immigration has provided the following reply: -
(Question No. 82.)
asked the Minister representing the Postmaster-General, upon notice -
– My colleague the Postmaster-General, has supplied this information: -
(Question No. 89.)
asked the Minister representing the Postmaster-General, upon notice -
– The PostmasterGeneral has furnished the following reply: -
(Question No. 91.)
asked the Min ister for Customs and Excise, upon notice -
– The replies to the honorable senator’s questions are as follows: -
(Question No. 94.)
asked the Minister representing the PostmasterGeneral, upon notice -
– The PostmasterGeneral has furnished this reply -
(Question No. 123.)
asked the Minister representing the Minister for Territories, upon notice -
– The Minister for Territories has now supplied the following answers: -
(Question No. 129.)
asked the Minister representing the Minister for Shipping and Transport, upon notice -
– My colleague has furnished the following reply: -
– I present the report of the Public Works Committee relating to the following proposed work: -
Construction of a regional laboratory for the Commonwealth Scientific and Industrial Research Organization at Shenton Park, Western Australia.
In brief, the estimated cost of the work, as recommended by the Committee, is £537,000. The construction of the laboratory and associated buildings to the sizes and designs proposed is recommended. Airconditioning of” the whole of the building at an estimated cost of £73,000 is also recommended. The committee recommended that special precautions be Oaken for the preservation of scientific records.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wade) read a first time.
.- I move-
That the bill be now read a second time.
Since 1962 when Parliament passed the Processed Milk Products Bounty Act, the Government has provided an export bounty on processed milk products which consist of sweetened and unsweetened condensed milk, full cream milk powder, infants’ and invalids’ foods, malted milk, &c. The main purpose of the bounty is to assist Australian processors to compete with subsidised exports from other countries and to encourage diversion of butterfat from the manufacture of butter and cheese which have been in surplus supply in recent years. The maximum amount of bounty was fixed at £350,000 for 1962-63 but, by an amendment of the act last year, the amount was increased to £500,000 for the current year, 1963-64.
The benefits derived from the assistance provided on exports of processed milk products since its inception in 1962 have been well in excess of expectations. For example, exports of these products in 1962- 63 containing 5,643 tons of butterfat exceeded those of 1961-62 by 46 per cent. and exports in the current year are slightly higher at this stage than they were in the same period of last year. The increase in exports in 1962-63 represented a diversion of nearly 1,800 tons of butterfat, equivalent to approximately 2,200 tons of butter, from the surplus butter market at that time. Export income from processed milk products in 1962-63 amounted to over £8,250,000 which was £1,250,000 higher than in 1961-62.
The intention is also expressed in the act that the final rate of bounty, on a butterfat basis, on exports of processed milk products should be not greater than the final bounty rate on butter production. Because the increase in exports in 1962-63 was greater than anticipated, the maximum bounty allocation of £350,000 was not sufficient to enable payment of an export bounty rate equivalent to that payable to butter producers. In fact, the final bounty rate for processed milk products was approximately 6.64d. per lb. of butterfat compared with the final butter bounty rate of 8d. per lb. of butterfat. To remedy this disparity and also having in mind the possibility that exports of processed milk products would continue to increase in volume under the influence of the bounty, the Government decided to make available a maximum amount of £500,000 for the 1963- 64 export season.
In the first eight months of the season the volume of exports has been maintained at a satisfactory level although the high rate of increase experienced in 1962-63 was not sustained.It is now apparent that exports in 1963-64 will be only slightly higher than those of 1962-63 and, consequently, it is not expected that the maximum bounty allocation for the current season will be wholly expended. The extent of the saving to the Government will not. however, be known precisely until some time after the end of June but it could be upwards of £100,000.
The intention of this bill is to extend the bounty assistance on exports of processed milk products for a further twelve months from 1st July next and to provide a maximum amount of £400,000 for this purpose.
The Australian Dairy Industry Council and the Processed Milk Manufacturers Association of Australia have expressed their appreciation for the assistance and their satisfaction with the results of the scheme since its inception in 1962. They agreed that a continuation of the bounty assistance on exports of processed milk products is of vital importance to both sections of the industry and pressed the Government to make a commitment for the next three years. The Government, however, is not prepared to make a commitment beyond the next twelve months but will consider the matter again early in 1965 to determine whether further assistance is warranted in the light of conditions then prevailing in the industry. I commend the bill.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wade) read a first time.
.- I move-
That the bill be now read a second time.
The Dairy Produce Levy Act 1958 imposes a levy on butter and cheese manufactured in Australia, the proceeds of which are used to finance dairy produce research and sales promotion programmes administered by the Australian Dairy Produce Board. Until recently all butteroil and ghee have been manufactured from butter on which the levy has already been paid. However, a new process has been established which will produce these products direct from milk or cream more efficiently, and at a lower cost. The new process is already being operated by several dairy manufacturers.
Under the present act, the products manufactured by the new process are not leviable while the same products made by the old method attract the levy. The purpose of this bill is to correct the anomaly by amending the principal act to provide that the levy is imposed on butteroil and ghee irrespective of the method of manufacture. The Australian Dairy Produce Board has requested that this anomaly be corrected and also has recommended that the levy be imposed on butter powder, a new product developed by the Commonwealth Scientific and Industrial Research Organization. I commend the bill.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wade) read a first time.
.- I move -
That the bill be now read a second time.
The purpose of this bill is to make certain amendments to the Dairy Produce Research and Sales Promotion Act 1958-1963 which are consequential upon the Dairy Produce Levy Bill 1964. The bill is purely a machinery measure to enable the proceeds of the levy imposed on the new products by the Dairy Produce Levy Bill to be paid into the Dairy Produce Research Trust Account and the Dairy Produce Sales Promotion Fund respectively. I commend the bill to the Senate.
Debate (on motion by Senator O’Byrne) adjourned.
Debate resumed from 5th May (vide page 925), on the following paper presented by Senator Sir William Spooner: -
Appropriation Measures - Change in Form of Annual Bills - Ministerial Statement, dated 5th May, 1964.
And on the motion by Senator Gorton; -
That the Senate take note of the paper.
– Mr. President, last week the Leader of the Government in the Senate (Senator Sir William Spooner) announced a decision of the Government in relation to an important matter of pro cedure. The motion was proposed that the Senate take note of the paper which he presented on that occasion. In themselves, the terms of the motion are quite innocuous. They do raise a matter of considerable interest and one that on a prior occasion has occupied the Senate, I think, with advantage. The terms of the decision, as announced by the Minister, are -
The Government has decided that from 1964-65 the contents of the Appropriation Bill and the Appropriation (Works and Services) Bill will be amalgamated subject to the separation out and the inclusion in separate measures of any particular items which, as a matter of interpretation, do not fall within the description of appropriations for the “ ordinary annual services of the Government “.
That statement brings the Senate to a consideration of its position under the Constitution itself. This takes us immediately to section 53 of the Consitution which deals with the powers of the two Houses - the House of Representatives and the Senate - in relation to one particular type of measure. The particular type of measure is covered by the words, “ Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate “. This is the first proposition laid down in the section; proposed laws of that type are not to originate in the Senate. The second matter of consequence is that the Senate may not amend any laws of that nature, namely, those imposing taxation or appropriating revenue or moneys for the ordinary annual services of the Government.
But whilst that is so, a further provision in section 53 provides that -
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein.
The other limitation of this particular section upon the Senate is -
The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
Those are the whole of the limitations that are expressed in relation to the Senate in its dealings with bills from the House of Representatives of the special nature that I have mentioned.
The section concludes with this very important provision -
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of al) proposed laws.
Perhaps 1 should say one word upon the next section of the Constitution, section 54, which provides that -
The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only wilh such appropriation.
The idea underlying that particular section is to protect this chamber against the Government or the House of Representatives attaching to what I will briefly, if inexactly, call a money bill, a provision in relation to another matter, and so putting a provision into the bill which, under the Constitution, would be non-amenable. Therefore, section 54 is in the Constitution for the protection of this chamber.
The question has arisen from time to time as to the relation of the two Houses with respect to a set of bills which are designed to appropriate moneys, one might say, for capital works and services. Yearly there has been - and I think this practice has continued since federation - an appropriation bill which, extraordinarily enough, included items of a capital nature as well as items that are annually recurring. In addition, there has always been a separate Appropriation (Works and Services) Bill under which most of the main capital works of the Commonwealth have been set out. The practice has been, whilst treating the Appropriation Bill as a measure for the ordinary annual services of the Commonwealth, lo regard it as a bill which, under section 53, the senate may not amend. However, the contrary practice has been adopted with the Appropriation (Works and Services) Bill. It has been treated as a bill which the Senate may amend.
The whole situation was under review fairly recently by the Joint Committee of Public Accounts. Some very interesting evidence was given before that committee and a good deal of it is dealt with in the committee’s report. Various witnesses pointed out that there were advantages, from an administrative point of view and for the purposes of convenience in debate, to have all matters connected with the one department in the one bill, whether they were annual recurring items such as salaries Of the officers of the department, or Occasional items such as the building of offices and works of various descriptions. That viewpoint was supported quite strongly by those connected with the preparation of Treasury papers, and a number of departmental officers.
Evidence was taken from the SolicitorGeneral, the Clerk of the House of Representatives, and the Clerk of the Senate. I point out that the question arose as to whether it mattered very much if the Senate could not amend the Appropriation Bill when it could not only make a request to the House of Representatives but also insist on repeating the request. In those circumstances, the question arose as to whether there was any difference in the procedure from a practical point of view, and whether anything more was involved than just practice. On the face of it, it is one thing to draw a particular amendment and send it to the House of Representatives for concurrence therein, and whilst it is another thing in form to make a request, the fact that the request can be insistently persisted with rather brings the two things to the one end result.
– Has the House of Representatives agreed to the Senate pressing requests?
– It has not agreed, but it has submitted to that on many occasions.
– That is the distinction that I wanted you to elaborate on.
– As I understand, the House of Representatives has never accepted the proposition that the Senate may press requests. In fact, the Senate has pressed requests. If the honorable senator refers to Mr. Odgers’ book, “ Australian Senate Practice “, he will find that matter dealt with under the heading “ The question of the Senate’s right to press the same request “, on pages 1 64, 1 65 and 1 66. The passage to which I particularly refer the honorable senator appears at page 166, where the following appears: -
Since Federation, the Senate has pressed requests upon the House of Representatives on eleven occasions.
They are listed on the ensuing page. The quotation continues -
With five exceptions, the House of Representatives, on receiving such reiterated requests, has passed a resolution refraining from the determination of its constitutional rights or obligations before taking the Senate’s message into consideration.
The House of Representatives did not, at that stage, insist upon pressing its view, that the Senate cannot insist upon pressing a request. Mr. Odgers then explains what happened on each occasion when the Senate pressed a request. I answer the honorable senator in that way. But I think the evidence which put the matter in very good form was that of Mr. Loof, which appears at page 17 of the fifty-fourth report ov the Public Accounts Committee where the following appears: -
What is the real significance of the two different powers of the Senate - the power to amend a bill and the power to request the making of an amendment in a bill that it may not amend? - (Mr. Loof) lt is largely - possibly solely - a question of responsibility. In the case of an amendment bill - a bill that the Senate may amend - the Senate actually makes the amendment in the bill, reads it a third time and sends it back to the House of Representatives. Then it is the responsibility of the House of Representatives, whose bill it is, to accept the amendment or see the bill destroyed, lt cannot force a direct vote of the Senate on the bill in its original form. It has to take it as the Senate has given it, and the responsibility is on the House of Representatives.
– Do you agree with that?
– Yes. I agree with the submission from the Clerk of the Senate that there is a question of ultimate responsibility involved. I am not dissenting from that. The quotation continues -
In the case of a request bill, the Senate makes the request in a message returning the bill to the House of Representatives. The bill is not a read a third time-
That is in the Senate - until both Houses have finished dealing with that request - until all the matters to be dealt with have been completed. Then and only then will the Senate read the bill a third time. If the House of Representatives will not agree to the request, the Senate can veto the bill - any bill at all. This is a great power. 1 think that what might be termed rather a vital distinction between an amendment and a request - 1 mentioned responsibility - is that although the Senate has power to veto a “ request “ bill, it will not consider every request so important that it will go to the limit of vetoing a bill. If it is a matter on which the Senate feels very strongly, and that threat of veto is imminent, the powers of the Senate in connection with requests and amendments are such that I cannot see any difference. As I have said, not every request will be treated in that way. You have a lot of lesser matters in respect of which the House of Representatives can successfully resist any requests which are made to it by the
Senate where it feels that the Senate will not exercise its veto power. In the case of an amendment, the responsibility is on the other side. The House of Representatives must lake the responsibility of destroying its own bill. The Senate, in connection with its responsibility, must have in mind section 57 of the Constitution, which relates to deadlocks. If, notwithstanding that, it feels that it can veto a bill, and it is prepared to do so, its power of request is very strong.
Of course, if the Senate does make a request and persists with the request, it may be deemed to have failed to pass the bill under the provisions of section 57 of the Constitution and, as the Constitution now stands, to have embarked upon a course of action which can lead to a double dissolution, involving every senator. I think Mr. Loof properly drew attention to the degree of responsibility involved in these two procedures and to the very interesting position that, according to which one is chosen, the prime responsibility shifts from the House of Representatives to the Senate or vice versa. The Constitutional Review Committee considered the position of what I again inexpertly call money bills. It proposed that section 57 of the Constitution should be completely rewritten. One of its proposals is set out in paragraph (2.) of the proposed draft section 57, which appears at page 33 of the report of the committee. It reads as follows: -
A deadlock shall be deemed to arise between the two Houses of the Parliament in relation to a proposed law imposing taxation or appropriating revenue or moneys for the ordinary annual services of the Government where the House of Representatives, in any session, passes the proposed law and transmits it to the Senate for the concurrence of the Senate and, at the expiration of a period of thirty days after the date on which the proposed law is transmitted to the Senate, the Senate has not passed the proposed law and the session has not ended.
I think eleven of the twelve members of the Constitutional Review Committee supported that proposal, which would be very drastic as compared, in particular, with the proposal that is now before us. It would mean that a deadlock could be deemed to have arisen after a bill imposing taxation or appropriating moneys for the ordinary annual services of the Commonwealth had been in the Senate for a period of thirty days. I draw attention to the power of thought on this subject that there is in the Parliament, as evidenced by that nearly unanimous finding on the part of the Constitutional Review Committee.
There is one advantage, particularly to an Opposition, in dealing with a bill which the Senate may not amend. Under the Senate’s Standing Orders - they are, of course, revocable if the Senate so wishes, although they have stood for a long time - there can bc a debate on the first reading of such a bill. The Senate may debate, on the first reading, a taxation or an appropriation bill of the right kind. It may deal, on the first reading, with matters which are relevant or are not relevant to the bill itself. In other words, honorable senators may talk about anything to which they wish to address themselves. Under our Standing Orders, any senator may address himself to the motion for the first reading of such a bill for an hour and a half - quite a marathon effort. These are great rights to an Opposimon. An Opposition would not very readily by-pass an opportunity to raise matters on the first reading when such a bill is being debated.
Opportunity has been taken in this chamber - 1 have taken it myself on a taxation bill - to open up a whole question on finance. Other honorable senators have taken similar action. I say, also, to Government senators that the ability to speak on the first reading of an amendable bill is a great advantage to them. I know that when I sat as a private member on the Government side of the chamber I had great difficulty in finding opportunities to speak about the things that I wanted to speak about. Even on the Government side, the first reading of a bill presented a very good opportunity. From the Opposition viewpoint, one would not be ready to give away the right of speech on the first reading of a bill that we may not amend.
I sum up broadly in this way: In practice I see very little difference between what transpires in the ultimate - whether or not we have power to amend in this chamber - as long as we have power to press requests. Unless we like to give way on this, as a chamber there is no court or other authority that can deprive us of that power. This is a very great power. In the event of a serious conflict between the two Houses, the proposal now being debated would not affect our right of absolute veto on any legislation that may come from the House of Representatives. That, too, is a very great power.
I recall an occasion in 1952 when I spoke on this issue. I refreshed my mind on this matter by glancing through the transcript of the debate which concerned a bill which, it was claimed, the Senate could not amend. After debate the President ruled against the submission that 1 had made, and I moved dissent from his ruling so that the whole matter might bc discussed. It was agreed between the Opposition and the Government that if I withdrew the motion of dissent an opportunity would be given at a later date to debate the proposition, which was all I was concerned about. That debate did take place on 4th November, 1952, when I affirmed the proposition that a bill of that nature was one that the Senate could not amend.
It was a most fascinating debate and it had a fascinating ending because the numbers were completely even. I was most intrigued to find - the vote having been left to the individual decision of each senator - that eleven Government members had supported the general proposition I put forward; that Senator Spicer had moved an amendment but the amendment was not inconsistent with the principle expressed in the motion; and that six of my own supporters had joined the dissenters. So it was one of the rare occasions on which there was a really free vote where each senator expressed himself exactly as he felt and thought.
– It is not a free vote this time.
– Well, I do not know how you are placed. The Opposition has made a decision in the matter. I will bc interested to see what happens on the Government side. It is a case of shifting reponsibility on this occasion, lt is like the difference between an amendment and the request for an amendment as the Clerk of the Senate has indicated.
It is now up to Government senators. I indicate immediately, now that the matter has been raised, that we on the Opposition side are not raising an objection to the procedure proposed by the Government which is certainly in line with the type of argument I addressed to this place in November, 1952.
– The Whips are out this time.
– I am just waiting to see whether they are or not. I will watch with very great interest and I can keep my eyes focussed in one direction on this particular occasion.
I want to refer to one matter that cropped up in the debate in November, 1952, when it was put most powerfully that Quick and Garran, the noted authority on the Constitution, had indicated that public works were matters that normally did not fall within the category of ordinary annual services of the Commonwealth as set out in section 53 of the Constitution.
I refer to page 13 of the Fifty-fourth Report of the Joint Committee of Public Accounts where a member of the committee is reported as having put this question to Sir Kenneth Bailey: -
What do you consider constitute extraordinary items of expenditure, of the kind that we should not put in the ordinary Appropriation Act?
After some preliminary comments Sir Kenneth Bailey said -
I think that this was the point intended to be brought out by Attorney-General Deakin at a very early stage in Commonwealth history, when he said: If these buildings are wanted in the ordinary course of business of a department, that is ordinary. It might be novel, it might be unprecedented, but if it is proper for the Department of Immigration or the Department of External Affairs, then it is ordinary from the Constitutional point of view and it can go into the ordinary annual services and in the ordinary, main, general Appropriation Act.
That was the opinion of Attorney-General Deakin. Sir Kenneth Bailey went on to say -
I find it very hard to offer an illustration of what I think would be an extraordinary service.
At page 14 of the committee’s report, the following question appears.
I come now to the term “ public works “. I understand that Quick and Garran, in their text book, included public works as items of extraordinary expenditure. I was just wondering whether that sort of concept is too simple. Would you care to comment on the question whether public works should be regarded as extraordinary expenditure or whether they should be viewed as something a little more sophisticated?
Sir Kenneth Bailey said ;
Perhaps the view that was taken was little more refined, but you can only read refinement into it by implication.
Sir Kenneth then referred to the book by Quick and Garran and said -
I think in that book they really did intend to give public works as an example of an extra ordinary annual service. 1 can only say with great respect that I think the opinion that was given was repudiated by those authors. I turned up Sir Robert Garran’s memoirs the other night for the purpose of checking one or two other points, but I also noted what he said about the preparation of “ Quick and Garran “. He said that he had never known previously what it was to be associated with a steam roller. Wilh a time schedule fixed by Sir John Quick this work had to bc completed by a certain date before the Commonwealth came into operation and therefore it was done in a tearing hurry. I think it is proper to say that the opinion of 26th September, 1901, from which I have quoted, was initialled by Sir Robert Garran. It was signed by the Attorney-General of the day but our copy in the opinion book bears Sir Robert’s initials. I have always myself regarded that as a piece of repentance on his part. Indeed, there was no authority for such a view in the State practice or the United Kingdom practice, and it is contrary to the words and also the general constitutional principle on which sections S3 and 54 rest.
– What does he mean by that last sentence, “ Indeed, there was no authority for such a view in the State practice or the United Kingdom practice, and it is contrary to the words and also the general constitutional principle “?
– I do not pretend here to interpret him as he would like to be interpreted, but my interpretation is that when he says, “ It is contrary to the words “, he has in mind the exact words of section 53, which are, “ appropriating revenue or moneys for the ordinary annual services of the Government. “ In a previous part of his evidence, he put particular emphasis upon the word “ services “, and indicated that it might be different if the words were “ ordinary items of expenditure. “
– The expression is, “ appropriating for services “.
– That is right.
– I find that extraordinary in itself, when it deals with services. I hope you can enlighten us.
– I think the view was taken by Professor Sir Kenneth Bailey that the word “ services “ extended to all of the acts of a governnent that could be done by a government department.
– Pardon me, if I am interrupting you. He says, “ Services in the Constitution are primarily organizations, instrumentalities, military services, civil services, departments and statutory corporations performing Commonwealth Government work. “ He says that services are primarily organizations. Do you take that view?
– I do not contest the view that the services of government are provided by departments. In that sense 1 would accept what Sir Kenneth Bailey has said. I think that is the point to which he was referring. I would accept it, and that is what is in my mind. In seeking to interpret it, I hope that I do not do him an injustice.
– Sir Josiah Symon, at the same time as Mr. Alfred Deakin, gave an opinion that differed greatly from Mr. Deakin’s. Sir Josiah was a great constitutional lawyer. He gave the Senate’s thoughts at that time.
– Mr. Deakin contended for what the Government of this day, in 1964, is proposing. I have thought it just to Sir Robert Garran or to Quick and Garran, the authors of the famous book, to point out that despite what Professor Sir Kenneth Bailey has said regarding the notation of initials upon the opinion, the practice for which he contended has been continued from 1901 till 1964. There were two bills. They were separated, and they were dealt with in different categories. Furthermore, I have been informed - I have not checked it but I am certain that it is right - that he never varied the opinion that he originally wrote, under pressure, before 1st January, 1901. As the argument - a powerful argument - was based upon the opinion of Quick and Garran, expressed before the Constitution came into being, and having regard to the great respect that everybody gives to that work and that book, I thought that I would bring the position up to date by reference to the rather interesting opinion that is made available here by the Solicitor-General.
– You are basing your case on the Solicitor-General’s opinion?
– No, not solely. Let me say to the honorable senator that, back in November 1952, I indicated very plainly that 1 did support the opinion that he then gave. I do support the opinion that he now gives, and I do not see any reason to change the view that I expressed to the Senate in November, 1952. I base it upon what 1 think is a proper consideration of the words, “ for the ordinary annual services of the Government “.
Let me refer to the provision of buildings. As somebody put it so well on an occasion long ago, how oan it be part of the ordinary annual services to provide for salaries for the staff of a department, and not that to provide for the office for them to work in? I have always thought that it was completely illogical, and I have said so in this place. Every year we have had the Appropriation Bill purporting to be for the ordinary annual services, and we would find in them annually recurring items along with items of expenditure of a capital nature that did not recur every year. We treated such a bill as one which we could not amend. There were two ingredients in it. By the mere transfer of a capital item out of that non-amendable bill into a bill called the Appropriation (Works and Services) Bill, the measure immediately became, in the practice, something that we could amend. What magic intervened to prevent amendment of an item of capital expenditure in an Appropriation Bill? When the item went into the Appropriation (Works and Services) Bill, it lost that character and identity altogether.
That position has always struck me as most illogical. That is one of the arguments that I addressed to the Senate back in 1952. So it is just with some minor measure of satisfaction that I see the Government coming fully to the position that I put in 1952. I shall be most interested to see it work out in practice and to see whether it will be better to deal with one bill. As one concerned very fully - I would say not less fully than anybody else in the chamber - with the rights of the Senate, not only as against the House of Representatives but as against the world, I am not in the least alarmed by what is proposed.
– And the rights of the less developed States - the weaker States - are involved in this, too.
– I do not see how they are. Whether States are strong or whether they are weak, they are in the same position on a bill of the type about which we are talking now, which we cannot amend. That is in the Constitution. We cannot change that. We can, however, make requests. We can keep on making requests ad infinitum. There is no limit; we have asserted that. We have done it on occasions. Even if we failed on that particular course through some obscure reason, there is always the right to reject any bill. That is not taken away.
It is with those thoughts in my mind that I say I feel no alarm at what is now proposed to be made the practice. I think it may well work out as quite a sensible practice. With those comments, I indicate that I voice on behalf of the opposition no objection to what is proposed.
– (New South Wales - Vice-President of the Executive Council and Minister for National Development) [4.38]. - This is an occasion of more than passing importance in the Senate. I have given a good deal of thought to what I should say, and I have clarified my own views. I propose to approach the task in a somewhat unusual way. For instance, I do not propose to reply to any of the points that the Leader of the Opposition (Senator McKenna) made. I want to present in my own words and in my own way what I hope will be a simple, concise story. I do not propose even to quote the sections of the Constitution. I do not propose to quote pieces from proceedings of the Public Accounts Committee, or from debates, or from legal opinions. I hope to put the purport of these things in simple terms and let lawyers, or those who may feel so disposed, subsequently refine and put a gloss on what 1 have said. I approach it upon the basis that in a discussion like this too much detail confuses rather than clarifies. If you arc listening to an argument and some one quotes a long extract from a report, you lose the trend of the argument and do not follow it as you otherwise would.
Let me start by putting in plain terms what is proposed. Up to the present time, the Senate had before it two appropriation measures. According to the title, the first bill was to authorize the issue and application the Consolidated Revenue Fund of a sum for the service of the year and to appropriate that sum. The important words are “ for the service of the year “. Then we had before us a second bill, the title of which included the words “ the appropriation of moneys for the purposes of additions, new works and other services involving capital expenditure and to appropriate that sum “. So the first bill was for the services of the Government and the second bill was for services involving capital expenditure.
The title of the second bill clearly leaves the impression that the bill covers all capital expenditure by the Government. In fact it does not. The capital works and services bill does not cover all of the capital works and expenditure of the Government. Many items of capita] expenditure are included in the other bill and are described as “ the services of the Government “. The Public Accounts Committee in its report cited, for one year, some twenty items of capital expenditure which were not in the Appropriation (Works and Services) Bill, but were in the other main bill. I think that when one sees those facts it is fair to say that, from the accounting point of view and from the point of view of putting the position before the Parliament, the existing procedure is rather a muddle. Capital expendure items are included in both bills, yet the title of one bill indicates that it contains ali of the capital expenditure items.
It is proposed to change this procedure. The new procedure will be to present two bills. The first one will be described as a bill for the appropriation of moneys for the ordinary annual services of the Government, and the title of the second bill will show that it relates to the appropriation of moneys for other than the ordinary annual services of the Government. That is the line of demarkation that the Constitution makes - whether the expenditure is for ordinary annual services or whether the expenditure is for other than ordinary annual services. We are going to have that differentiation made for us in the bills in future. We are going to have, in the Senate, a simpler procedure in our Estimates debates. We will have all of the expenditure for each department in the one bill under the headings “Current” and “Capital”. A senator will be able to see all the expenditure of the Department of National Development, or of any other department, in the one place - it may cover two or three pages - and he will not need to turn from one bill to another to see the full picture.
– How much will be in the other bill?
– I will come to that. I will not shirk any of the issues on this. When I have finished this speech, if Senator Scott can say that I have not put the position clearly before the Senate I will be surprised. I am not getting up to any unfair tactics on this. Each department’s estimates will show its expenditure, whether it is capital or current. Under this new form we will have before us for consideration legislation which is more properly in line with the terms of the Constitution. That is, I think, the practical angle.
Let me turn now to the point of argument. Under the old procedure the Senate claimed the right to amend the Appropriation (Works and Services) Bill and actually did so on several occasions, but all the legal advice that is available - I may be contradicted when I say “ all the legal advice that is available “, but I think I am right - is that on a proper construction of the Constitution the Senate has no right to amend a bill merely because it appropriates moneys for capital works. The Senate’s right is to amend a bill that provides for the appropriation of moneys for purposes which are above and beyond the ordinary annual services of the Government. It is not a question of works and services. It is not a question of capital expenditure. It is a question of whether the expenditure is for the ordinary annual services of the Government or is not for the ordinary annual services of the Government.
Senator Scott was raising, by interjection, a point about whether the vast majority of the expenditure in the appropriation bills is for the ordinary annual services of the Government. The supply bills when they come before the Senate shortly, will show what happens when you differentiate between ordinary annual services expenditure and expenditure which is not for ordinary annual services. A bill to come before us will be for the appropriation of £1,000,000 for expenditure on what are not ordinary annual services. It is not possible to identify that expenditure at this stage. So let us face the situation that the over whelming proportion of expenditure in these bills is classified as being expenditure for the ordinary annual services of the Government.
I do not want to digress, but I make the point that a custom has grown up, as a result of section 96 and as a result of parliamentary procedure, whereby the big expenditures which are not for the ordinary annual services of the Government come before the Senate in the form of separate bills. I instance the bills relating to the Mount Isa railway line and to the brigalow country, to mention matters affecting my own department. They were special developmental projects requiring special legislation. I make the point that under the new proposal the Senate will have before it two bills which protect the Senate’s rights. One will be a bill that the Senate will be able to amend and the other a bill upon which it may make requests. That procedure will protect the right of the Senate and permit the business of the Senate to be put before it in an infinitely better and more businesslike manner than under the present procedure.
I turn now to what is involved legally. We have to turn to the Constitution. I hope my legal friends will not smile at me. I do not propose to quote the actual words of the Constitution. I proposed to mention only those sections of the Constitution which relate to money bills, and sections which I think are relevant to this debate. The Senate can refuse to pass all bills, including money bills. It cannot amend bills which provide moneys for the ordinary annual services of the Government, but it can request that they be amended. Having requested amendment, the Senate can press the request. If it presses the request and it is refused, the Senate can refuse to pass the bill. As I think Senator Cormack said by way of interjection, in practice the right of the Senate to request an amendment, has been admitted. In fact, the right is specifically given to us in the Constitution. The Senate can amend any bill which appropriates money for other than the ordinary annual services of the Government. The provisions contained in sections 53 and 54 of the Constitution are appropriate to this debate. There are other provisions which are of great importance, but those are the milk in the coconut for the purposes of the debate.
Another point that I think should be kept in mind is that once a bill becomes an act it is law. No point can be taken regarding the respective rights of the two Houses from that stage onwards. If the Senate exercised the power to request an amendment, which in the view of the legal profession was not strictly in accord with the provisions of the Constitution, and it was accepted by the House of Representatives, the bill would become an act. The point that emerges is that this particular matter is one which cannot be decided by the courts. It has to be decided by agreement between the two Houses of Parliament. We are in the position where the House of Representatives has agreed to the new procedures, and the relevant bills will come before us in due course for our consideration. Looking at the position against the background of what we have done successfully in the past, we see that we have claimed and actually exercised a right which was not strictly legal in the view of all lawyers. I think that is a fair statement.
– Would you repeat that?
When the Senate has amended one of these appropriation bills and the House of Representatives has accepted the amendment, the Senate has done something which, according to legal advice, was not within its powers in the terms of the Constitution.
– Tn other words, we have done something that we should not have done?
Strictly legally, yes. I come back to the point that once a bill becomes an act it is good law. In the future a great majority of the expenditure on works and services will be included in the ordinary annual services bill when it comes before the Senate. When an appropriation bill comes before the Senate the change in procedure will be that instead of the Senate having the power to amend the bill, it will have the constitutional right to request an amendment. There is no dispute about the right of the Senate to reject a bill. The argument is: Can the
Senate amend bills dealing with particular items of expenditure, or can it only request that an amendment be made?
I am not going to stand here and say that in my view the right to request an amendment is as powerful as the right to amend. But I do claim that the right to make a request for an amendment is a most powerful right indeed for a House of Parliament to hold. I put the further point of view - which was put to me by one of my colleagues when discussing this matter and I think is worthy of a little thought - that on a fiscal matter it is really more appropriate for a house of review to request an amendment than to make an amendment because, after all, the whole foundation of government is the introduction of fiscal measures, upon receipt of a message from the Governor-General, wilh limitations in various directions. I think it is a better approach for a house of review to request an amendment than to amend a fiscal matter and throw it back into the teeth of the House of Representatives.
It is pertinent to mention that in 63 years the Senate has used this right to amend a capital expenditure bill on only three occasions. The last time it used the right was 54 years ago.
– You are not suggesting that that gives rise to the view thai the power is obsolete?
I am not suggesting that it gives rise to the view that the power is obsolete, but I am suggesting it has not been used. 1 have made the further point that it is not a power that we should properly use in the terms of the Constitution. It does seem to me that it is far more important to the Senate, and the Parliament as a whole, to have the financial affairs, which deal with millions of pounds, put before it in an orderly, methodical and clear manner instead of having them spread over two bills.
I am aware that during convention debates prior to the enactment of the Constitution and in the early Senate debates opposing views were expressed. Some one has mentioned Sir Josiah Symon. I point out that his view was expressed during a debate. As practising politicians, we all should know that there is a vast difference between what is said in the heat and flurry of debate and what is expressed in a considered legal opinion. As far as I am aware, no considered legal opinion supports the practice that we have followed in the Senate. Every considered legal opinion which has been given from 1901 onwards has stated that the claim of the Senate to be able to amend a capital works and services bill is not well founded.
It is repugnant to me that the Senate should be following a procedure which, in the terms of the Constitution, it is not justified in following. The Senate is a great House. It is a House of review which has greater powers than have most other Houses of review. Why should we follow a certain procedure when all our legal advice is to the effect that we are not justified in following that procedure? To continue to follow an unjustified procedure is more than repugnant to me when the Government says, in effect, “ Here is an alternative procedure which is in accordance with the provisions of the Constitution and which will enable you to do your job more efficiently than at present”. What I have said takes a little answering.
May I go back a little and remind honorable senators that in 1951, I think, the Auditor-General raised this point. He asked, very naturally, why there were two bills and what was the distinction between’ them. Further, he asked whether it was necessary to have two bills which both contained provision for capital works and services. He asked why there should be this muddle as between the two bills. Then he asked, “ Is the position being catered for on a proper legal basis? “ Those comments triggered off a series of opinions which emanated from the Attorney-General’s Department. The Solicitor-General, in his opinion given in 1951, referred to earlier legal opinions in which over and over again the point was made that the right of the Senate to amend money bills did not turn on the difference between capital and income or capital works and expenditure, but rather on what was expenditure for the ordinary annual services of the Government. The legal opinions expressed stated that when you attempt to approach this problem from an ordinary accounting basis of capital and income you create confusion.
The Constitution provides that the Senate can only request the amendment of a bill which is designed to appropriate money for expenditure on ordinary annual services. But the legal interpretation, as distinct from the ordinary accounting interpretation, is that the ordinary annual services of the Government necessitate expenditure on plant and buildings. Expenditure which would be treated as capital expenditure in ordinary accounting terms is not covered in the classification to which I have referred. The Solicitor-General has stated, in effect, that from the legal viewpoint the capital works and services bill serves no useful purpose.
I should now like to refer to the 1952 debate. On that occasion both Senator Spicer, as he than was, on behalf of the Government, and Senator McKenna, on behalf of the Opposition, moved in different terms that the Senate should agree with the opinion of the Solicitor-General. In fact, honorable senators on both sides agreed with the opinion. Senator Wright gave a most interesting and lengthy historical survey of what had transpired. The honorable senator agreed with the opinion of the Solicitor-General when he said that the accounting concept of capital and income was not the appropriate test.
Daniel come to judgment!
– I was merely repeating the word which I used on that occasion, as reported at page 4070 of “ Hansard “.
That provides the foundation for my next point. There is a vast difference between the background to the 1952 debate and the position to-day. The 1952 debate centred around a proposal that the Senate should forgo the right to amend the capital works and services bill - no more and no less than that. The Senate split evenly on that proposal. But that is not the position to-day. In the legislation that will soon come before us, the Government is saying something like this: “ We know that the Senate can amend legislation which provides for the appropriation of moneys other than for the ordinary annual services of the Government. We know that up to this stage the two bills which have come before the Parliament have not properly differentiated between the two classes of expenditure. We know that from the practical viewpoint it is a muddle having portion of certain expenditure in one bill and portion in another bill. That has gone on for a long while, but we cannot ignore the views of the Public Accounts Committee or our legal advisers. What we propose to do is to carry out Our responsibility and put two separate bills before the Parliament, one for each class of expenditure. If that procedure is adopted by the Parliament, we will have good law and good practice.”
This is a matter for the Parliament to decide. The Government is saying to the Parliament: “Things have been wrongly approached in the past. Here is the way in which they should be approached. It is good law and good practice and will preserve the rights of the Senate to the extent that the Senate’s rights need to be protected.” It is utterly wrong to assume that this debate is a repetition of the 1952 Senate debate. The procedure which the Senate is considering at present meets the points that were raised in the 1952 debate. To say that because someone voted one way in 1952 he should vote the same way in 1964 is quite wrong. The 1952 debate aired this whole question and, as a result of that debate and as a result of the legal opinion that was obtained, a new formula has been evolved which, as it were, puts our house in order, protects our rights and gives us a proper way to go about things. I shall be surprised to find that point of view challenged by subsequent speakers in this debate. The proposed procedure will rectify (he position that was disclosed in 1952.
I do not propose to deal exhaustively with the report of the Joint Committee of Public Accounts. As would be expected, the Public Accounts Committee decided that, from the accounting point of view, there was neither rhyme nor reason in the procedure that has been followed up to this stage. The committee obtained legal advice. It did not make any actual recommendations but said simply that this was a matter for both Houses of the Parliament to decide. That is the position. No bill can become an act unless both Houses of the Parliament agree to it. The Public Accounts Committee said that this was a matter for both Houses to decide but there is not the slightest doubt, from the tenor of its report, that it made it abundantly clear that the matter needed to be cleaned up. That, Mr. President, is exactly what the Government is proposing to do in a common-sense, business-like way by the procedure that it is now proposing to the Parliament. I should like to reiterate what I have said. In effect the Senate is being asked to forgo something that it has claimed to have the right to do for 63 years. That is the right to amend certain classes of expenditure. It will continue to have the right to request amendments. I do not think it is irrelevant to repeat that the Senate has exercised its right to amend on only three occasions in 63 years, the last occasion being no less than 54 years ago.
I pass to my next point. There is no doubt in the minds of the Government’s legal advisers - and I think there is no doubt in the minds of the members of the legal profession in the Senate although I hesitate to speak for some one else - that the terms of the Constitution do not give the Senate the right that it has exercised, and has claimed to have the right to exercise, over the last 63 years. The Senate has exercised that right by the use of certain procedures and the acquiescence of the other House of the Parliament.
I make the point that there is something unseemly in the Senate’s continuing to do something which it knows is really beyond its correct right on a fair interpretation of the Constitution. I repeat that it is unseemly and even repugnant, particularly when, if we change over and accept the new procedure, we still have extraordinarily powerful rights remaining to us. The Senate will still have the right to request amendments, to press amendments, and. in the final analysis, it will still have the right even to refuse to pass the bill. It is even more repugnant to think that the Senate should maintain its false position when the Government is saying, in effect, that in the future, it intends to put before the Senate legislation in a form which will be in accordance with the Constitution because it will differentiate between expenditure which the Senate can amend and that which it cannot amend. The Government is saying in effect, “ We will put the legislation before you in a way which preserves your rights under the terms of the Constitution. We will submit two separate bills - one which you can amend and one which you cannot.”
The only criticism that could be made - I think it would be unworthy criticism - is that the Government would not fairly divide the expenditure under the two headings. I do not think that thought can be entertained in relation to an important matter such as this which affects the rights of both Houses of the Parliament.
– I refer the Minister to Sir Kenneth Bailey’s remark when he said, “ 1 find it very hard to offer an illustration of what I would think to be an extraordinary service “.
– 1 do not remember the details but I think that in 1952 Senator Wright himself traced out what he thought would be ordinary annual servces and extraordinary annual services. I, myself - perhaps rashly - in my earlier speech indicated the sort of things that I thought would not be ordinary annual services.
I make the further point that the Senate has no right to oppose this new procedure under which business will be presented to the Senate in a way which will enable the Senate to carry out its business more efficiently than it has done in the past. Perhaps I am’ out of step with other honorable senators when I say that I have always thought that the debate on the Estimates in the Senate is the best debate in which the Senate engages. I think it it proper that we have bills presented to us in as proper, logical and methodical fashion as possible.
Finally, summing up, I think that we have to think carefully before we say that we do not agree with a method of presenting bills which is in effect, if not in fact, a form recommended by the Public Accounts Committee. I have given this matter a lot of thought even though my thinking may not be along the lines of some other members of the Senate. Speaking as a senator as distinct from’ a Minister, I think the Senate would be wrong to endeavour to continue a practice which all lawyers say is not entirely within the four corners of the Constitution in relation to the Senate powers when there is an alternative method of procedure which is in line with the provisions of the Constitution and a far more effective way of presenting accounts to the Senate. The alternative procedure will, in my opinion, at least, permit the Senate to deal more efficiently with these bills in the future than it has done in the past.
.- At the present time the Senate is discussing a statement that was submitted to it by the Leader of the Government in the Senate (Senator Sir William Spooner). That statement makes it very clear that it is the Government’s proposal to change the method which has been followed for very many years in presenting two Appropriation Bills to the Senate. One of the bills, over the years, has been known as the Appropriation Bill. It covered the ordinary annual services of the Commonwealth. Thi second bill has been referred to as the Appropriation (Works and Services) Bill. The statement we are debating makes it clear that the Government’s proposal is to amalgamate these two bills in the future and to allow the Senate to discuss them in that fashion. I do not propose to go back to 1901 and trace what happened then and over the years in respect of the rights that have been exercised by the Senate when dealing with these bills. It is easy for each honorable senator to ascertain what the Senate’s powers have been since federation to deal with these bills, and how those powers were formulated.
I was a member of the Joint Committee of Public Accounts which examined expert witnesses relating to this suggested proposal. I have nothing to say in regard to the evidence that was given before that committee. I admit that on several occasions I was greatly surprised with the replies I received to questions I asked. I never doubted those replies for a moment because I am one of those meek individuals who will always submit to superior advice when it is coming from such experts as Sir Kenneth Bailey, Solicitor-General, Mr. Hewitt, First Assistant Secretary of the Department of the Treasury, Mr. Loof, Clerk of the Senate, and Mr. Turner, Clerk of the House of Representatives.
It has been held that the Senate could amend the Appropriation (Works and Services) Bill whereas the Senate could only make a request in respect of the Appropriation Bill covering the annual ordinary services of the Commonwealth. These are things, of course, that confuse honorable senators very often. Honorable Senators, when they are told in evidence that the Senate has the right to reject any legislation at all, including the money bills, feel safe and consider that they cannot come to much harm in carrying out their responsibilities in the Senate.
– Do you think the Senate is likely to reject a complete bill as easily as it would amend one item?
– That is a question to which I have given some thought. I say that to amend the bill requires positive action, and it is action that can be carried out within the Senate: whereas a request, if it were made, would probably be for an amendment, and the amendment would have to be made in another place. Any request, of course, has to be referred to another place; whereas an amendment made here could then go back to another place in the form of that amendment. However, when dealing with the third aspect of these procedures, which is the rejection of a bill, most honorable senators have had experience of one double dissolution, and arc not anxious to precipitate another - not that we would not bring one about if we found it necessary to do so.
I said a little while ago that I do not propose to go over all the expert evidence that has been given before the Joint Committee of Public Accounts. I do not propose to quote the authorities on the Constitution as regards the powers of the Senate. I propose to deal with a few simple deductions 1 made when dealing with the evidence given before the committee. I asked an expert witness who appeared before it how the expenditure incurred on the making of Lake Burley Griffin, a sum of some £7,000,000 or £8,000.000 would be classified. He said that that would he an ordinary annual service of the Commonwealth. Of course, 1 found that reply very difficult to accept; but it was not for me to accept his advice. It was for me to invite him to give that advice. I asked him about the bridge over the Molonglo River, and he said, “ Yes, that is an ordinary annual service “. I looked at the situation this way: I tried to imagine myself going back to Queensland, out into the drought stricken areas, and telling some cattlemen in those parched places that they should have lakes along their watercourses, because the build ing of lakes was only a matter of the ordinary annual services of a government. Nevertheless, I had to accept that evidence and I found, after delving into o:her documents, that it was true.
– Who gave that opinion?
– It was given by Sir Kenneth Bailey. I will read to the Senate the questions I asked and the answers given by Sir Kenneth Bailey on that point, as they appear at page 42 of the Minutes of Evidence -
– I am looking al this thing broadly. No act of parliament prescribes the form of the Estimates; it stems from the provision in the Constitution. What we have to-day is the result of practice. If I pick up either the Estimates or the statement of receipts and expenditure I fmd an item there amounting to about £7,000,000 or £8,000,000 for the purpose of establishing a lake in the Australian Capital Territory. As a Queenslander can I tell my constituents that that sum of £7,000,000 or £8,000.000 is merely an appropriation of revenue for the ordinary annual services of the Government? Could T get away wilh that explanation? - (Sir Kenneth Bailey) I hope so.
The evidence continues -
– You are more optimistic than I am?- (Sir Kenneth Bailey) It would be right for you to say that. Might 1 add that the creation of a lake might nol be an ordinary item of expenditure but the provision of money for the public works programme of the Department of Works is an ordinary annual service of the Government.
Another matter which is of interest to me is that there was no sound evidence given to the Joint Committee of Public Accounts to the effect that this change would result in any saving to the Department of the Treasury. When the committee is operating in the normal way, it is always desirous of seeing what savings will be affected by the various departments concerned. I could not see, during the hearing, that the Department of the Treasury would effect any saving at all as a result of the amalgamation of the two Appropriation Bills.
The amount of work and printing involved in these two cases is almost identical. When the Senate examines the two bills, it has at least a dissection before it. We have the Appropriation (Works and Services) Bill separated from the Appropriation Bill, dealing with ordinary annual expenditure. It is an advantage lo the Senate to have that simple dissection. If we follow these things through we sometimes reach a very complex situation. There could be, in Martin-place in Sydney, two buildings of identical architecture, many stories high, and similar in every respect. One could be dealt with under an Appropriation (Works and Services) Bill. Provision for the other could be made under an ordinary Appropriation Bill, because it could be regarded as an ordinary annual service of one of the departments, but when you commenced to furnish the building, install partitions and do whatever work was necessary to prepare it for occupation you would be incurring capital expenditure, and for this you would have to look at an Appropriation (Works and Services) Bill. These things are confusing in the Commonwealth sphere. When you turn to the States, you see the expression “ public works “ and you immediately know what is meant by “ public works “. However, 1 do not know how the State Parliaments keep their accounts.
The policy of the Australian Labour Party is, broadly, to abolish the Senate, but we do not propose that it should be made to die a lingering death. It is not the policy of the Australian Labour Party to weaken the powers of the Senate in any way. lt is not known whether the proposal which is at present before us is likely to weaken in any way the powers that the Senate now exercises. I cannot calculate what the effect of the proposal will be, but I believe it will weaken the Senate’s powers. The Labour Party does not oppose this proposal. If it did so, I would have a great deal more to say in this regard, because much can be said in favour of retaining the present powers of the Senate. I have really nothing more to say. We will receive the bills this week and next week and debate them. We may then have some knowledge as to whether or not the situation will be improved as far as the Senate is concerned.
.- 1 move -
At end of motion add - “, but refrains from the determination of its constitutional rights in respect of the proposed change in the contents of the annual Appropriation Bills and resolves to consider such bills “. ] accept a substantial part of the reasoning of the Leader of the Government in the Senate (Senator Sir William Spooner) in relation to the change of circumstances since the early days of federation, first, as the result of two World Wars, and secondly, because of the now unchallenged omnipotence of the Commonwealth Government in the field of taxation. This change, together with the introduction of what might be called cyclical budgeting, has affected to a marked degree the consideration of appropriations for the ordinary services of the Government and appropriations for capital works or what might be described as nonrecurring items. I have moved this amendment, which 1 hope the Leader of the Government will accept, in order that we may deal wilh the bills when they come before us.
In order to make known my general views on the rights of the Senate I will traverse again some of the ground covered by both Senator McKenna and the Leader of the Government. In 1903, if I may go back a great number of years, a senator of that day said that the distinction between appropriations for the ordinary services of the Government and appropriations for works and services, the former being contained in appropriation bills in respect of which the Senate could make requests and the latter being contained in appropriation bills for works and services which the Senate could amend, could be a source of friction between the two Houses. This source of friction between the two Houses has never been resolved so far, and I do not think it will be resolved now, but it will be, in part, resolved in the course of time. Having reminded the Senate of the distinction between appropriations for the ordinary services of the Government, in relation to which the Senate may request amendments, and appropriations for works and services, which the Senate may amend, I turn my attention to the fifty-fourth report of the Public Accounts Committee, which I think was presented to the Senate in 1961. The committee was very careful not to tread on what some of us in the Senate believe to be the constitutional proprieties embodied in the Senate. In paragraph 76 it said -
The evidence obtained by your Committee revealed that the question of the necessity for the separate bills is dependent upon the nature of the expenditures involved. Further, the definition of the particular items to be included in separate works and services appropriations, and not in the main appropriations of expenditure “ for the ordinary annual services of the government “, is a matter for the two Houses of the Parliament to establish as the relevant sections of the Commonwealth of Australia Constitution Act refer to proposed laws.
The committee made it quite clear that, having put a comb through all the problems that came before it and having heard a great deal of evidence from people of one sort and another, it did not come to any firm conclusion but simply brought to the notice of both the House of Represenatives and the Senate the fact that an anomalous situation seemed to exist in relation to these two classes of bills. I may be entirely wrong, but it seems to me that by a simple definition the Government - I draw the historical and constitutional distinction between the Government and the Parliament - has unilaterally re-defined the powers and rights of the Senate in dealing with annual appropriations for works and services and annual appropriations for the ordinary services of the Government. The accounts, if I may so call them, will be introduced into the House of Representatives and passed by it in the form in which they will undoubtedly be presented to the Senate. This embeds in the House of Representatives the right to decide whether to grant a request by the Senate or even to allow the Senate to press a request. There is a marked distinction between the procedures that relate to an amendment and those that relate to a request. I remind the Senate that, on the last occasion when it pressed a request, because of the political circumstances in which the Government was then placed - we were in the middle of a war, in 1943 - and because of the overwhelming need it felt to avoid a conflict with the Senate at that stage, the Government agreed1 to meet the request of the Senate but the House of Representatives carried a resolution couched in the words of the amendment I have moved. The resolution was to the effect that the House of Representatives refrained from a determination of its constitutional rights in respect of the change proposed by the Senate in the bill. It resolved to consider the bill, and then passed it. In other words, in the circumstances in which it found itself, the House of Representatives bowed to the pressed request of the Senate but retained its right to consider on any future occasion de novo the problem of a pressed request from the Senate of that type.
I consider that, in the circumstances existing at the present moment, the Senate has not only a right but a duty, if it is agreeable, to provide for the change which seems to be required in the method of presenting appropriation bills. I do not say a change is not required. In fact, I think it is required to a substantial degree. But in no circumstances can I subscribe to the proposition that the Senate should delimit its powers in agreeing to change its procedures.
It seems to me it is not a question of what should be in a bill or what should not be in a bill. The issue is whether a process can be unilaterally decided by a device which breaches what I believe to be the Senate’s constitutional right. The Leader of the Government suggests it is a right which has been assumed by the Senate. I consider it is a right that is embedded constitutionally in the Senate by section S3 of the Constitution. It is not a right that has been assumed. The Senate should be in a position to decide what are the ordinary annual appropriations and what are the capital works and services. This right to define what are capital works and services and what is an ordinary annual appropriation for the services of the Government is a matter to be decided by a vote of the Senate on the floor of the Senate chamber.
It seems to me we start to cut away the roots of parliamentary forms of government when the Crown decides the methods by which money should be voted for the service of the Crown or the Government. This is a right on which the whole of parliamentary government is based. How much tax shall be levied, what the destination of the money will be and how the money shall be voted is a matter for Parliament to decide when it wishes to decide and for nobody else.
At the present moment we have a situation in which the Senate, to a substantial degree, has been confronted with a change in the pattern as to how moneys shall be appropriated and for what purpose. The Senate therefore has a right to scrutinize in the most careful manner how this money shall be voted and whether, in fact, senators are abdicating responsibilities which the Constitution has fairly and squarely placed on the shoulders of the Senate. 1 come to the question of the status of the Senate in relation to these matters. The Senate, of course, is coequal with the House of Representatives except that it cannot originate money bills, it cannot increase the charges on the citizenry and it cannot amend appropriations for annual services. But, apart from those three things, the Senate is coequal with the House of Representatives. I believe that that situation was part of the constitutional design - that the Senate would be coequal in every respect except for those three exceptions which I have enunciated to the Senate. Therefore, if a new pattern begins to emerge in the methods by which money shall be appropriated which takes away from the Senate a power that is constitutionally embedded in it by section 53 of the Constitution this becomes a matter which must be most carefully scrutinized by the Senate.
Sitting suspended from S.4S to 8 p.m.
– Before the suspension of the sitting, 1 was opening, as it were, the basis of the claims that I seek to make on my own behalf. I hope they are claims which will be acceptable to the Senate. I should like with your permission, Sir, to recapitulate for one or two moments the lines of the arguments that 1 was developing when the Senate rose. You will recollect that I suggested quite clearly that the Public Accounts Committee only canvassed the whole problem of the presentation of these accounts, whether they are annual appropriations for the services of the Government or whether they are appropriations in respect of capital works and services. The committee realized, of course, that in this was involved a fundamental principle in the relations between the House of Representatives and the Senate as to how the two matters were to be treated. I wish to emphasize that the Public Accounts Committee refrained from making any suggestion as to how the matter was to be handled, but it certainly put out some guide posts as to what should bc done. With that, I have a great deal of sympathy, for reasons which I elaborated.
The second point that I wish to recapitulate is that the Treasury, being Her Majesty’s Treasury, and the Treasurer, being Her Majesty’s Treasurer, may make all the assessments that they possibly can - and they do, of course - each year, not only for the provision of services for the Government but also for the provision for capital works and services that may be required by the Crown or by the Government. In the past fifteen or twenty years they have also become involved in the problem of managing the economy. Therefore, they are perfectly entitled to present to the Parliament in any way or order that they think proper those elements of the estimates which are required for the annual appropriations for the services of the Government and for capital works and services. But, constitutionally, it is the responsibility of the Parliament to decide which of those elements are annual appropriations for the services of the Government and which are for capital works and services. Parliament in the final analysis decides which is which. This matter, I suggest, has been unilaterally decided without any acknowledgment of the fact that in the final analysis the Parliament itself is the arbiter of how these matters arc classified. Parliament - and nobody else - is the instrument that votes the money for the Government and the Crown.
Finally, I suggested in my argument before the suspension that the Senate was co-equal wilh the House of Representatives except in three or four elements which I mentioned. I suggested that that function had been designed for the Senate in the Constitution. The Senate has been given these powers not in order to be able to behave in a fractious manner against the House of Representatives and to reject legislation without acknowledgment of ils responsibilities. The House of Representatives is given power to refuse a request from the Senate, and to go on refusing the request, forcing the Senate into the situation where it may reject Supply entirely. The designers of the Constitution, it seems to me - the Senate has held this point of view for 64 years - gave the Senate the right to make amendments in proposed appropriations for capital works and services. I admit the difficulty that Senator Sir William Spooner made quite clear this afternoon as to discerning quickly and easily what is an annual appropriation for the services of the Government and what is an appropriation for capital works and services. That decision has become increasingly difficult, but it is a difficulty that should be resolved by the Parliament and by nobody else.
Now 1 come to the question of the Solicitor-General’s intrusion into the proceedings of the Public Accounts Committee. The committee very properly began to quiz the Solicitor-General. Honorable senators have probably read the record of proceedings. If they have, they should have read it with a great deal of interest. I suggest to the Senate that some of the opinions expressed by the Solicitor-General, as I said by interjection to the Leader of the Opposition this afternoon, have a sinuosity which I have never previously discerned in anybody who claimed to have the legal eminence that the Solicitor-General should properly have. I suggest that some of the opinions that he expressed had no fooundation at all, and I suggest that no validity should be given to them.
– Pardon me, what is a sinuosity?
– I think I had better leave that to the honorable senator sitting beside me to explain in rather earthy terms which would not be appropriate, if made by me, when I am standing in my place in this chamber. For example, the Solicitor-General, notwithstanding the fact that Sir Robert Garran, who had been the original draftsman and original SolicitorGeneral, had never abated in any degree his opinion as to the rights of the Senate in relation to this matter, went into some long and laborious explanation, whereby he made a deduction from material obtained from the opinion book in the Solicitor-General’s office, to the effect that the Solicitor-General. Sir Robert Garran, had recanted at some stage, privately or within the privacy of the Solicitor-General’s office, his original decision, lt is a most extraordinary thing. Sir Robert Garran was a great SolicitorGeneral, from 1901 to 1938. He had ample opportunity in those 38 years to make a public recantation in the subsequent editions of his commentarries on the Constitution, but he never did so. Yet, Sir Kenneth Bailey suggested in his evidence before the committee that really and truly Sir Robert Garran was a very sorry man and that, if given an opportunity, he would have made contributions of another nature for the advice and acceptance of the Parliament.
I object also, if I may, to dragging in Alfred Deakin, as Attorney-General of the Commonwealth of Australia in the early days, for an opinion. We are all men of Parliament. We are politicians. We understand each other - nearly always. Any one who has the curiosity, or takes the care or trouble, to go to the Library and look at Murdoch’s biography of Alfred Deakin, will find that Mr. Deakin covered his tracks pretty carefully from the time he became an attendant on the early conventions until the time he retired. Amongst his papers is found reference to the fact - it is pretty well known - that from the very beginning he was a unificationist who believed in the paramountcy of the Commonwealth Government, who embedded in the Constitution a famous placitum or section which gives the Commonwealth paramountcy on taxing matters, with the end result that he wished to see the Commonwealth Government the paramount power, but who was not very happy about the Senate. Although as Attorney-General he probably had to give some opinions that were against the interests of the party he was supporting at that time, I do not rely on the late Mr. Deakin’s opinion very much as to what the powers of the Senate should or should not be.
I get back to my initial premise. It is not a question of the opinions of various lawyers one may pick up outside which will decide these matters. It comes back in the end to the expression of opinion and vote of the senators who sit in their places from time to time. I am fortified in this attack that I am making upon the legal fraternity by the very interesting contribution to a debate in 1943 by the present Treasurer (Mr. Harold Holt), who was then a member of the Opposition in the House of Representatives. He said quite truthfully, quite properly, quite vehemently, and historically quite correctly, that law officers tend to support the government of the day.
– In some periods.
– I change it to say that governments tend to accept the advice of law officers. I come to the question which was raised by the Government Leader in the Senate this afternoon when he suggested, I thought, that as the Senate’s power had been exercised only three times against the House of Representatives in amendments to Appropriation (Works and Services) Bills it was a moribund power. I do not agree with that for a solitary moment. If I may use an analogy, because there has not been a fire in Canberra for 30 years should we disband the fire brigade? Should we disband the Senate, which is the constitutional fire brigade? It is the fire brigade so far as constitutional properties are concerned, and while I occupy my place here I am prepared to be part of a constitutional fire brigade. I suggest that, if we do not accept this as our duty, when we are dust and clay a future generation of senators sitting here, as we are sitting here at the present time, will be regretful that the Senate had lightly abandoned the powers and the constitutional responsibility with which it was charged originally.
Finally, I come to a matter that has caused me some disturbance. Incidentally, my friend, Senator Benn, for whom I have a great affection because he has a charming and delightful honesty in these matters, said this afternoon, if I recollect correctly, “ You know, we are not anxious to see the Senate die of hunger, as it were; we just want to cut its throat and be done with it “. I should like to refer to an observation made by the member for Melbourne Ports (Mr. Crean) in another place. I have known the member for almost twenty years and I have a great deal of respect for his economic acumen. He is a man well versed in the intricacies of economics. I listened to him many times in the Victorian Legislative Assembly when I went there from time to time. I always read what he has to say in another place with the greatest of interest. Tn relation to the Appropriation Bill (No. 2) currently being considered in another place he said -
It simplifies the documentation which is presented to the House-
That is a statement with which most of us would agree - and also affirms something which T, for one, have always stressed, namely, that the financial initiative of the Parliament should lie in the House of Representatives. That is a fundamental principle of British constitutional government, as I see it, and I hope that some day our Constitution will be amended so that the Senate will have only the same powers with respect to money bills as are possessed by the House of Lords in the Parliament of Great Britain - that is, it may look at them, if it wishes, for a month or so and then the bills become law irrespective of whether or not the Upper House wants them to become law.
The member for Melbourne Ports is claiming in the clearest possible terms - no other member has made such a clear claim - the supremacy of one chamber of the Parliament over the other chamber in relation to all financial matters.
– What has that to do with this debate?
– It has a lot to do with this debate, because if you whittle away one power you begin to whittle away other powers. I want to establish that it is completely fallacious to argue that the Senate has no power in relation to money bills, or should have restricted power in relation to money bills. That argument is based on the fact that for many years the House of Commons has had almost complete power in this respect as against the House of Lords, which has always been regarded as the King’s House or the House of the Crown. But this Senate is elected by the same people as those who elect the members of the other place, although it is elected on a different franchise. The Senate has co-equal powers in relation to financial matters and controls its own rights in relation to those financial affairs, although it may have different flash points from the other House. Finally, for the benefit of those who care to listen, 1 say that the Senate’s function is not to thwart the will of the popular House; its function and responsibility are to see that that will does not prevail too easily.
– I rise to support the amendment outlined by Senator Cormack. He proposes, at the end of the motion, to add - but refrains from the determination of its constitutional rights in respect of the proposed change in the contents of the annual Appropriation Bills and resolves to consider such bills. 1 think that the statement that we have in front of us - announced and read out last week by the Leader of the Government (Senator Sir William Spooner) - is one of the most important statements that we have had before us since I have been a member of this Senate. I very much regret that after listening to my leader I am unable to go along with him on what he said to-day. He has said that it is the wish of the Executive to change the form of the annual Supply Bills and Appropriation Bills. lt is claimed that because of the change it will be much simpler for the members of another place and the senators in this chamber to peruse the documents and to be satisfied on any questions that they may wish to ask. It is evident from his speech, particularly in its initial stages, that this is better bookkeeping. I agree wholeheartedly that it may be better bookkeeping, but in my humble opinion it takes away certain powers that the Senate has held since federation. I look to the Opposition knowing full well what its policy is in relation to the Senate. I know that it will wholeheartedly support and go along with the statement we have before us. The Opposition does not believe in the functions of an upper house. This proposal if taken to its logical conclusion will, I believe, weaken the powers of the Senate.I wish now to refer to the report of the Joint Committee on Constitutional Review, 1959. I should like to refer to a dissentient report by Senator R. C. Wright. At page 176, Appendix B, he stated quite clearly the views of two of the political parties within this Parliament. He said -
The Liberal Party opinion is that a two chamber Parliament is one of the firm safeguards of the individual’s freedom - guaranteeing the ordinary citizen from impulsive parliamentary action whether of the Right or the Left.
He went on to say -
The Labour Party’s policy -
This can be contradicted by honorable senators opposite if they wish - is for the abolition of an upper chamber - in
Australia, the Senate - and legislation by a singlechamber Parliament.
I do not notice any honorable senator on the Opposition benches contradicting the statement that my colleague, Senator Wright, made in 1959 when he presented his dissenting report to the Parliament.
– So what?
– Do you agree with it?
– The Senate is only a rubber stamp.
– Do you want to abolish the Senate? If you do not answer me I will not answer you. You say by interjection that the Senate is only a rubber stamp. I say that Senator Wright laid the views of the Labour Party on the line in relation to upper chambers in State and Federal Parliaments. There is silence from honorable senators opposite. In my opinion, if we adhere to the request of the Leader of the Government in the Senate that the Appropriation Bill and the Appropriation (Works and Services) Bill be combined in the one document we will take away from the Senate its power to amend any item in the appropriation bills. The Senate will retain the right to amend the Appropriation Special Expenditure Bill, which this year will deal with expenditure of approximately £1,000,000. It is clear from the Constitution that certain powers have been given to the Senate under sections 53 and 54. With the concurrence of honorable senators I incorporate them in “ Hansard “.
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.
The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.
When this measure is brought before the Senate, the document that I have here will contain all the items in this appropriation for the ordinary services of the Commonwealth. If the Government’s proposal is accepted, no item in the document can be amended by the Senate. The only amendment that the Senate will be able to make will be in the Appropriation (Special Expenditure) Bill. Within the next week or so the Supply Bill, covering an amount of £423,704,000, will come before the Senate, but we shall be able to make amendments only in regard to the other bill I have mentioned. The Senate is to lose the right to amend bills dealing with amounts which last year exceeded £70,000,000.
When we go back to 1901 we find that the originators of the Constitution decided that the principles to be followed in determining the items that should go into additions, new works and buildings “ were confined entirely … to equipment to be installed therein “. The principles are referred to in the fifty-fourth report of the Public Accounts Committee in the following terms: -
In 1903-04, several items of military equipment, e.g., arms, rifles, pistols and reserves of amunition, were transferred to the separate Estimates.
In 1904-05 the title was altered to “Estimates of Expenditure for Additions, New Works, Buildings, etc.”, and it seems likely that the change followed the transfer to the separate document in 1903-04 of items of military expenditure such as arms, rifles, pistols and reserves of ammunition which bad been included originally in the main estimates.
Until 1937-38, “fittings” and “furniture” were included in the main Estimates, but in that year they were transferred to the Estimates for Additions, New Works, Buildings, etc., and associated with buildings under an item usually described as “ Buildings, Works, sites, fittings and furniture “, a form of description which, with the exception of sites, has endured.
In 1939-40 and 1940-41 expenditure of a capital nature for the Defence Services, which had been included in the Estimates for Additions, New Works, Buildings, etc., since 1904-05, was excluded as a result of a decision to finance that class of expenditure from loan moneys.” 1 do not think anybody will quibble if loan moneys for such a purpose do not come into this discussion. To-night one honorable senator stated that certain items which he believed were of a capital nature had been included in ordinary appropriation bills. I do not deny that. But I believe that at any time the Senate, if it so desired, could have made a request to the House of Representatives to have these items transferred to the Appropriation (Works and Services) Bill,
The Leader of the Government in the Senate based his argument on the statement that the Senate had no real power to amend a bill appropriating money for ordinary annual services. He claimed that in relation to fiscal measures we had only a power to request. Having made a request and having had the request rejected, on how many occasions has the Senate carried the matter to its logical conclusion? I suppose the Senate has exercised this power on only a few occasions in more than 60 years. Perhaps that is because for much of the time a good government has been in office. I repeat: How often has the Senate exercised its power to veto when it has made a request to the House of Representatives and that request has not been acceded to?
– No bills have been introduced that have seriously conflicted wilh the Constitution.
– That is because a good government has been in office in the majority of Commonwealth Parliaments.
– You are not saying that in all seriousness, are you?
– I did not want to have to say that.
– We want to make a dispassionate approach to this matter.
– 1 am making a dispassionate approach. The Leader of the Government in this place has stated that all the lawyers who have expressed opinions have been in favour of the proposed procedure. Let me quote from Quick and Garran’s monumental work on the Constitution - “The Annotated Constitution of the Australian Commonwealth “. This passage appears at page 670 -
Extraordinary charges, which do not come within the meaning of ordinary annual services, are appropriations of revenue or loan money for the construction of public works and buildings . . .
Quick and Garran’s work remains a strong and authoritative support for the practice of the Senate, which for more than 60 years has been that a separate appropriation bill should be introduced for works and buildings. Such a bill may be, and has been, amended by the Senate. All the authorities agree that it is for the Parliament itself to say what are ordinary annual services of the Government, and no court of law has jurisdiction to decide whether that view is correct. Why then have we heard the view expressed to-night that all the leading lawyers of this country do not agree wilh the point of view I have just expressed?
The Government has decided to include items for works and buildings in the Appropriation Bill for the ordinary annual services of the Government. The Senate has been invited to take note of the change. The effect will be to reduce the Senate’s powers on votes for works and buildings from the power of amendment, which I claim is the strongest power we have, to that of request for amendment. It is to be noted that since federation the House of Representatives has questioned the Senate’s right to insist on requested amendments.
When the Public Accounts Committee considered the form of the Estimates, evidence was given by Mr. Loof, the Clerk of the Senate. Paragraph 67 of the committee’s fifty-fourth report reads -
The matter of the practical difference in the powers to amend and to request an amendment was also discussed with Mr. Loof.
A member of the committee asked -
What is the real significance of the two different powers of the Senate- the power to amend a bill and the power to request the making of an amendment in a bill that it may not amend?
Mr. Loof replied ;
It is largely - possibly solely - a question of responsibility. In the case of a namendment bill - a bill that the Senate may amend - the Senate actually makes the amendment in the bill, reads it a third time and sends it back to the House of Representatives. Then it is the responsibility of the House of Representatives, whose bill it is, to accept the amendment or see the bill destroyed.
In other words, the ball is in the court of the House of Representatives. Mr. Loof continued -
It cannot force a direct vote of the Senate on the bill in its original form. It has to take it as the Senate has given it, and the responsibility is on the House of Representatives.
In the case of a request bill, the Senate makes the request in a message returning the bill to the House of Representatives. The bill is not read a third time until both Houses have finished dealing with that request - until all the matters to be dealt with have been completed. Then and only then will the Senate read the bill a third time. If the House of Representatives will not agree to the request, the Senate can veto the bill - any bill at all. This is a great power.
We agree with all that. The Senate would have to go the whole distance when probably it is seeking only an amendment to the bill. The witness continued -
I think that what might be termed rather a vital distinction between an amendment and a request - I mentioned responsibility- is that although the Senate has power to veto a “ request “ bill, it will not consider every request so important that it will go to the limit of vetoing a bill. If it is a matter on which the Senate feels very strongly, and that threat of veto is imminent, the powers of the Senate in connection with requests and amendments are such that I cannot see any difference. As I have said, not every request will be treated in that way.
That is the weakness. He continued -
You have a lot of lesser matters in respect of which the House of Representatives can successfully resist any requests which are made to it by the Senate where it feels that the Senate will not exercise its veto power. In the case of an amendment, the responsibility is on the other side. The House of Representatives must take the responsibility of destroying its own bill. The Senate, in connection with its responsibility, must have in mind section 57 of the Constitution, which relates to deadlocks. If, notwithstanding that, it feels that it can veto a bill, and it is prepared to do so, its power of request is very strong.
So, in the opinion of the Clerk of the Senate, the strength is in the power of amendment. He believes that the power to amend is much stronger than a request that an amendment be agreed to by the House of Representatives. I think that I must agree with him.
We have before us to-night the proposition that we should vote to have included in the contents of the Appropriation Bill matters which, in the past, have been included in the Appropriation (Works and Services) Bill. If we agree to this proposition it will mean ultimately that the Senate will be left only with the power to make requests for amendments and will not be able to amend a capital works and services bill, except as it applies to that part of the appropriation which will amount roughly to one-seventieth of the amount of which the Senate previously has had control. I mention that fraction because I understand that the figures in the bills to be presented are ?1,000,000 and ?70,000,000. So the Senate’s most powerful weapon - the power of amendment - will be reduced to oneseventieth of its present strength. Therefore I support the amendment moved by Senator Cormack.
– The Opposition has decided not to oppose the proposition of the Government. This has been indicated by the Leader of the Opposition (Senator McKenna). I am sure that some of the persons who have addressed themselves to this question have a great love for the Senate, but listening to what has been said I am reminded of the words of the poet who said that each man kills the thing he loves. A serious constitutional question is at issue. There is no doubt, when one considers the Constitution, that the true criterion is as stated by the Leader of the Government in the Senate (Senator Sir William Spooner) in relation to the ordinary annual services of the Government. Surely there should be a division based on that criterion. Because that criterion is difficult to apply in practice, very early in the history of federation a solution to the problem was adopted which, despite the criticism which might have been levelled against it, has worked for about 60 years. It has been decided now that there should be a change. If there is to be a change the important thing is to see that the Constitution is observed. An honorable senator on the Opposition side said earlier - I do not think any one has dissented from this proposition - that there is a clear distinction between abolition of the Senate and any attempt to whittle down iis powers.
It is not the policy of the Australian Labour Parly to leave the Senate in existence and, by some back-door methods, to deny it its constitutional rights, and to attempt to subvert the Constitution. The policy of the Australian Labour Party is that if the Senate is to be abolished it should be abolished by the people as a result of a referendum. There will be no endeavour to do something indirectly which the party is not prepared to do directly.
If the criterion of the Government is applied, as the Minister said it will be, fairly and reasonably and without any attempt to undo what is provided in the Constitution, what is the real position? There should be a clear distinction between the ordinary annual services of the Government and other matters. Each one of the four main words in the criterion stated by the Minister is important. I refer to the words “ ordinary “, “ annual “, “ services “ and “ Government “. When one considers some of the legislation which hitherto has been passed through this Parliament one can share the criticism which has been expressed. I should like to add some other criticisms. It has been said that the opinion of the Solicitor-General was so elastic that nothing could seem to be outside the criterion of the ordinary annual services, although I have noticed that references have been made to what was ordinary and what was extraordinary. That is not the criterion. The criterion is: What are the ordinary annual services of the Government?
One would think at first sight that, if the Senate were ever faced with a bill to make provision, interim or otherwise, for the appropriation of moneys out of the Consolidated Revenue Fund for the ordinary annual services of the Government, and one found provision in that bill for departments and services, one would be extremely surprised to find that included in what were apparently departments of the Government was the Parliament of this Commonwealth. I would like to know whether the Leader of the Government in the Senate and the Solicitor-General consider that the Parliament of the Commonwealth has become one of the departments of the Government.
– And one of the services of the Government.
– As Senator Wright interjects - and I accept his interjection - since when has this Parliament become one of the services of the Government? The expenditure may be ordinary and the expenditure may be annual, but how can the expenditure on the Parliament be a service of the Government. There are other matters which may concern the Senate when it comes to apply these criteria. One such matter is whether such bodies as the Commonwealth Scientific and Industrial Research Organization-
– What is the conclusion of your argument about the Parliament? Does it mean that what you are saying, in ‘effect, is that it is neither ordinary nor extraordinary, and therefore must be in a separate bill?
– In answer to what you are putting, Mr. Minister, I would say that the Parliament is not an ordinary annual service of the Government. It may be ordinary; it may be annual; it may even be regarded as a service; but it is not a service of the Government. If this criterion is going to be adopted - and it may well be that it is going to be adopted - I think that if one looks at this closely, in adopting it, it may be that the Parliament, the Senate, and the people may gain something out of this move. It may be that all has not been lost, as may have appeared at first sight, to the encroachment of bureaucracy. I have little doubt that if the bureaucracy in this country had its way the powers not only of this House but also of the other House of Parliament would be greatly whittled down. We in this Senate - those on this side of the chamber as well as those on the other side - are very much concerned to see that the powers of the Parliament, and the Senate as part of it, are not broken down by means of including in bills provisions such as that which would treat the Parliament as some service of the Government.
The other great question that arises is one of degree, lt may be that in. 1964 some things which were regarded as capital works in 1901 and which no doubt to-day are still regarded as capital works may come, nevertheless, to be regarded as an ordinary annual service of the Government. This must always be a matter of degree. One can understand that such a situation might arise in a bill which would deal with such appropriations, but if one were to adopt the view that projects to the order of millions of pounds such as, 1 think, were mentioned by Senator Benn were being treated as ordinary annual services of the Government, there would be, in my mind, a departure from what the Minister indicated would be the fair, reasonable and honest division between the bills which deal with the ordinary annual services of the Government and those which do not. For those reasons, it seems to me that what is inherent in the Minister’s paper is that this question will really arise upon the consideration of the bills themselves. I see that the Leader of the Government is nodding his head. I anticipate that this will be the view taken by the Opposition in this chamber, and it is what is incorporated in the amendment which has been proposed by Senator Cormack.
If there is to be this division, and if we are going to say, “ We will depart from the practical position which has been adopted over the years and act in accordance with the words in the Constitution “, it is hard to escape the logic of that. It is particularly so if we say, “ Well, let us do it this way because there are other anomalies about which we need to be careful; and care will need to be exercised not only over the next week or two but on every occasion when these matters come before the Senate, to sec that there are not being put into the bill dealing with the ordinary annual services of the Government matters which should not be there “. 1 repeat that, for a number of reasons, it may be that those matters should not be in the bill, lt may bc because they are extraordinary and not ordinary.
That is only one of the reasons why they should not be in the bill. Another reason is that they may not be annual. The word “ annual “ has some reason and some purpose in the Constitution. If you are going to build such projects as Lake Burley Griffin, and spend millions of pounds on them - projects which are done once and for all - you cannot say that those are annual matters at all. The Senate must be careful to see that these things are not included in such a bill and, equally so it must be careful to see that the services which are included are the services of the Government and not other services.
Serious questions will arise such as whether there should be included in such a bill provisions for services in relation to bodies such as the Commonwealth Scientific and Industrial Research Organization. Sometimes it would appear that the Government wants it both ways. When questions arise which might concern a statutory corporation it is said: “ The Minister cannot really be asked those questions because this is not a Government matter at all. This is outside the Government; this is not a matter for which the Minister is responsible. Parliament has set up a corporation, a body independent of the Government. Now, go and talk to that corporation. Do not get up and ask the Minister in the Parliament how some statutory corporation is operating. Go outside and ask the corporation.” Sometimes, a Minister, out of courtesy, will say: “ I will speak to the corporation, and 1 will get an answer if the corporation is willing to provide it. Then I will come into the House and provide you with the answer which the corporation has supplied to me. It is not my answer. I am not responsible for it or for any scandal which may arise in any such body.” If that is so, it is certainly difficult to see at first sight how an appropriation of money for such a body could be regarded as being for the ordinary annual services of the Government. Questions like this will constantly arise and the Senate will need to be on the alert to sec that such things are not included in bills of appropriation for the ordinary annual services of the Government and, perhaps more importantly, to see that they are not concealed under some item in a bill of this nature, where there is not a true statement of what is being done. It is not unknown that departments which wish to limit, in practice, the supervision of their activities by the Parliament, endeavour to conceal under the cover of some general item in the legislation a matter which should not be there.
It seems to me that, as this matter is developing, we are all conscious of the consequences which flow from the existence of these two types of bills. We are all conscious of the power of the Senate in relation to one type of bill and its lack of power in relation to the other. If we have this criterion, the real questions will be: What is going to be done and what will be attempted to be done under it? The great problem in any parliamentary democracy arises not from any supposed friction between the two Houses of the Parliament and not from any clash between those members of the Parliament who constitute the Government and those who are backbenchers on either the Government or the Opposition side of the House. The real problem in parliamentary democracy - and indeed in other spheres also - is how to prevent encroachment by the bureaucracy. I think the real concern of the Senate has been that, once you abandon a fairly easily understood approach to these matters - that is what we have had for some 60 years even if there have been, as there were bound to have been, borderline questions arising from time to time - you provide the opportunity for further encroachment by the bureaucracy by including things where they ought not to be included and acting in the way I indicated earlier.
It therefore seems to me that the amendment moved by Senator Cormack is good sense. It seems to me to accord with the logic of the proposal which is before the Senate, as contained in the paper presented by the Leader of the Government in the Senate (Senator Sir William Spooner). We cannot on this occasion deal with the matters which ought to go into either one bill or the other. If, then, we are to accept this strict constitutional criterion put forward by the Minister, of necessity the Seriate must refrain from the determination of its constitutional rights in respect of any particular bill and must resolve to consider the contents of each such bill as it comes forward for debate, not only now but on every occasion from now on when such legislation is presented to the Senate.
– May I express the pleasure to which I have been treated during this debate in hearing the exposition by Senator Cormack of the constitutional position this afternoon and this evening, and my appreciation of the contribution to what I think was a thoroughly appropriate operation of the Senate by Senator Murphy, who expounded the situation in a spirit worthy of the purpose of the Senate.
I begin my discussion of this matter by reminding myself that sections 53 and 54 of the Constitution find their place in that part of the Constitution which deals with finance and the powers of the two chambers in respect of finance. I remind myself, also, that it was these sections which took up by far the greatest part of the convention debates, involving, as they did, the sinews of the compact that was made between the six States to form the Federal Government. The smaller States no doubt insisted - the record shows that in fact they did insist - that the chamber in which they had equal representation should have, in respect of all legislative bills before the Federal Parliament, equal power except only in certain special cases. Those special cases, with reference to appropriation bills, are mentioned in this way. Firstly, an Appropriation Bill for moneys or revenues - this is not limited to the ordinary annual services of the Government, but covers an appropriation of any description of monevs or revenues - may originate only in the House of Representatives. Secondly, an Appropriation Bill for the ordinary annual services of the Government mav not be amended by the Senate. Thirdly - this is equally important as a provision - a bill for the appropriation of moneys or revenues for the ordinary annual services of the Government shall not contain any matter other than such appropriations.
Those words were penned in the 1890’s and became effective in 1900. We remind ourselves that it was in about 1861 that the House of Commons established ascendancy over the House of Lords, to the complete subjugation of the House of Lords, with regard to appropriation bills. In the forty years from 1861 to 1901 the energies of the reformation that was then going on - led by the Liberal Party, in the main, until the Labour Party had its birth at the end of last century or the beginning of this - caused the House of Commons to adopt the principle of tacking. Because it had established the constitutional understanding that the House of Lords was bound, not merely not to amend but also to pass an appropriation bill which had been approved by the House of Commons, that House said, “ Let us add some new facet of our policy as a last clause to the appropriation bill and see whether the noble lords will have the temerity to precipitate a constitutional issue “. This, of course, led to the device of tacking, it was in those circumstances that our federal fathers - to whose covenant 1 believe it is a tradition as well as sound constitutional purpose to adhere to-day - provided that whereas the Senate should not be able to amend bills for appropriation for the annual ordinary services of the Government, neither should the House of Representatives in any such appropriation bill include any provision except such appropriation.
It was in those circumstances that these provisions were penned. From time to time, as the original senators alerted themselves to the possible encroachment upon their newly conferred powers by the House of Representatives, different criteria were adopted for the purpose of describing items that found a proper place in the ordinary annual appropriation bill. Quick and Garran give several instances of items which were not proper for inclusion in that bill. Despite what Sir Kenneth Bailey says as to Sir Robert Garran’s initials being on Mr. Alfred Deakin’s opinion where he says that a building, if constructed for the ordinary purposes of a department, may legitimately find a place in an appropriation bill for the ordinary annual services of the Government, that weakens not in one degree the thesis propounded by Quick and Garran in the passage which was quoted in the debates in 1952 and which I quote again to-night.
It is not necessary to speak very long on the enunciation of these principles because a most prudent course has been offered to us, I believe, by my colleague Senator
Cormack. I want to explain it in this way: After certain indefinite criteria were adopted, as history proceeded from 1901, we settled down in the 1940’s to demarking the two different appropriations - on the one hand appropriations for the ordinary annual services of the Government, and on the other hand, appropriations - which were otherwise - by including the one in a bill which we referred to as an ordinary appropriation bill and including the other in a bill which we regarded as an appropriation for works and services of a capital nature.
I think most of us in this chamber, at any rate since the discussion in L952, have been cognisant’ of the fact that that was a misdescription. We have proceeded on the basis that it misdescribed a category of items included in the list of appropriations of the Government which were considered not to be ordinary annual services of the Government. Therefore, the Senate quite properly took the view over those years that that was a bill which it might amend. So that the record would build up, I deliberately chose on many of those occasions to begin my reference to the bill with that very proposition.
I mention that matter only to disown and reject quite formally, but with respect, (he proposition that my leader put. forward this afternoon that it is unseemly for the Senate to claim the right to amend a bill which it has no proper right to amend. I also reject the statement that we are now being asked to forgo the right to do what we have been claiming to do for 63 years. If 1 thought that that was the true interpretation of (he ministerial statement - and I am prepared to approve, with some degree of appreciation, of the motion that we take note of it - I would fight the proposal with every process available to me in this chamber. But that is not the proposition. The proposition before us in this carefully written statement - a statement which 1 believe has been carefully drafted - is that the criterion between an amendable bill and a nonamendable bill for Senate purposes is not whether the appropriation is, from an accountancy point of view, income or capital, nor, from a parliamentary point of view, whether it is revenue or capital moneys. That was pointed out - I am afraid repetitively - by myself in my speech in this chamber in 1952 to which I have referred. When the Minister says that the fact that the expenditure is incurred on an item of a capital nature is not a determinant in deciding whether an item of expenditure is ordinary or annual, I hope that nobody would think that disagreement would be provoked from me, I say that because, at page 4070 of “ Hansard “ of 1952, it will be seen that, when quoting the Solicitor-General’s opinion that an appropriation for the ordinary annual services of the Government could properly include or comprise appropriations for the expenditure of a capital nature, I interrupted my quotation by saying that I did not think that I could find any authority to suggest otherwise. Senator Spicer later on said the Constitution did not provide that the inclusion of a capital item excluded it from ordinary annual appropriation and Senator Wright is on record as saying, “ Certainly “. Senator Spicer is also reported as saying, “ That is all the opinion says “. Then other discussion followed. So when this statement submitted by the Government rejects the criterion which was rejected by the Solicitor-General for the purpose of classification of these two bills, it is on sound ground, in my view. It is on sound ground, also, when it goes on to state that what is relevant is not the distinction between capital and current but the distinction between those services which are, and those services which are not, ordinary annual services of the Government. This is the distinction that we have decided should obtain henceforth. There I think the Government has adopted the accurate criterion which the Constitution warrants.
Having established that point wilh very firm agreement so far as I am concerned I then go on and hearken to what has been said surrounding it, particularly the contents of my leader’s speech this afternoon. All the material that surrounds the Government’s proposition justifies a legitimate concern and anxiety that it is not yet understood and that it is going to be misapplied. Therefore, it is necessary to be vigilant, when we see the first applications of the new criterion; to be as resolute then as we are to-night; to show by practical judgment upon the measure whether we accept a bill that has as its description, “ A bill for the appropriation of moneys for the ordinary annual services of the Government “. If we find one or two or ten important items which legitimately do not belong to that description, our proper course will bc to return the bill before debate to the House of Represen tatives, requesting that those items be deleted from that bill, to ensure that a bill which is not amendable by us shall not extend further than items for the ordinary annual services of the Government.
The next thing to notice is that it is common ground that the decision on what items properly belong to that description is not a decision for the law courts. As my leader said this afternoon - and it is undisputed - if such a bill were to be considered and passed by the Senate and had the Royal Assent, it would become an indisputable act of Parliament and would bind all courts of law according to what was written in it. They are not concerned to see that the rules of the Constitution which are laid down for the regulation of parliamentary procedure in relation to bills between the two chambers are complied with. Ensuring that compliance is a responsibility that devolves upon each chamber, which each chamber cannot legitimately surrender. It is not a matter for the decision of the law courts, and still less is it a matter for the decision of the Government.
– Or of one chamber.
– Or of one chamber, as my colleague reminds me. I hope I can add, with full appreciation of the virtues but also with vigilance as to the vices, that it is not a matter for the decision of the Government’s advisers, whom I, inoffensively, may call the bureaucracy. I say that more emphatically than I would be wont to do because on reading the report of the Public Accounts Committee and such excerpts as it made from contributions by the civil service and officers of the Government, I failed to find anything but a deficient understanding of the true origin of this criterion. Insofar as I have read the advice and evidence given to the Public Accounts Committee, I failed to find any real statement that the criterion that divides these two bills is the constitutional criterion which is written into section 53 and the complementary section 54. I want it to be quite clear so far as I am concerned that the decision of this matter belongs to the Parliament, on the floor of this chamber as well as on the floor of the other chamber. It is a matter exclusively for neither one chamber nor the other. This is properly so. May I say again, as I said expressly in the 1952 debate, that this is not an accountancy matter. This is a parliamentary matter.
According to the proper operation of the Parliament in this decade, the Parliament ought to decide from time to time whether any particular item is properly described as an ordinary annual service of the Government. 1 am most grateful to Senator Murphy because he put to the Senate this phrase in this respect precisely as 1 intended to myself. Every one of those words has to be given its proper meaning, not in any tendentious spirit and not in any technical spirit. lt is sometimes imputed to the lawyer that he twists the language. The words must be given their proper meaning. The phrase is, “ appropriation of moneys for the ordinary annual services of the Government “. What is the meaning of “ordinary”? If a post office is to be built for £50,000 in one of the new suburbs of Canberra, that is quite ordinary. If £5.000,000 is to be expended on pulling down the General Post Office in Sydney and rebuilding it, that is very extraordinary. 1 say this tentatively, because the decision on these matters will come when the bills arc before us.
Then there is the word “ annual “. I was simply stunned this afternoon - 1 cannot forbear to put it any less strongly - when Senator Benn called our attention to the fact that implied in the statement oF the Solicitor-General, when giving evidence before the Public Accounts Committee in relation lo a vote of £6.000,000 or £7,000,000 for the National Capital Development Commission. a statutory corporation, in relation to a particular project - the Canberra lake - was the proposition that that would be an annual appropriation. I felt somewhat humbled. I would reject that strongly.
Then we come to the phrase, “ services of the Government “. The SolicitorGeneral permitted himself te go on record in this connexion, when advising the Public Accounts Commitee, as saying -
I think that the constitutional requirement is not directed to items of expenditure but lo services.
The Constitution in this respect deals with a proposed law appropriating revenue or moneys for the ordinary annual services of the Government. In what sense can one say that the constitutional requirement is noi directed to items of expenditure? lt is being directed to items of expenditure. It is an appropriation. What for? It is for the services of the Government.
Nobody needs to remind me. but if I am reminded I shall not be offended, of the inferior relation of my status to that of the officer with whom I am disagreeing. I am quite conscious of it, but I must go on record as stoutly rejecting this as a unique statement, for which I invite anybody in the chamber to find authority to support -
Services in the Constitution a e primarily organizations, instrumentalities, military services, civil services, departments and statutory corporations performing Commonwealth Government work.
The next part of the expression is “ of I he Government “’. That means of the Commonwealth Government, none other: not any State Government. We owe much to Senator Murphy for saying that when this new criterion is applied we will have the benefit of seeing the vote for the Parliament not in the non-amendable bill. We will see any vote for the new Parliament House, I suggest, not in the non-amendable bill. I am just offering tentative instances, well aware that each one of them may require further consideration. I will be quite willing to change my view if 1 am persuaded by appropriate reasoning to lake a different view. I remember what the late Chief Justice, Sir Owen Dixon, said in a constitutional case during the war when a servicewoman, I think, was met with a prohibition by the Minister against using the train service from Western Australia lo Melbourne. She took the case to the High Court and said, “ This is infringing an absolute freedom guaranteed by section 92 of the Constitution “. Sir Owen Dixon said: “ We have been trying lo expound these general words for quite a time. :ind sometimes we are not so happy live years afterwards. Generalizations are dangerous.” But, Mr. President, as nothing walks wilh aimless feet, if we apply our judgment to’ the proposition in hand and decide that conscientiously we will have the best chance of reaching a sound decision.
– If I may interject, what you are saying, in effect, is that what the Government proposes lo do is really the right thing, provided it is done carefully and correctly.
– I quite agree. I thank my leader for that statement. 1 was
Just about to offer a few instances - they can be likened to lamps on a road on a dark night - that may be taken notice of by some wandering civil servant who has the job of compiling the Budget papers. If the vote for the Snowy Mountains Hydroelectric Authority were included in the ordinary annual services of the Government, 1 would think that inappropriate. I would not think that a vote, such as we made the other night, for a grant to Tasmania for a hydro-electric commission road should be there, nor a grant to Western Australia for the establishment of an iron and steel industry, nor a vote for new construction on the uniform rail gauge, nor a vote for a new Commonwealth railway of any importance, nor a vote for the construction of the Tullamarine airport. Although we have established in the welfare State social services in abundance, I would not think the vote for aged persons’ homes could be a vote covering an ordinary service, although that is debatable; nor would 1 think a vote of £5,000,000 for new equipment for Trans-Australia Airlines, a statutory corporation, would be an ordinary annual service of the Government.
Having said that, let me say that I believe it is necessary for us to realize that we have to transplant our understanding from the parliamentary democracy of 1900 to the parliamentary democracy in this Commonwealth in 1964. I believe it is relevant in that respect to mention one or two matters. In 1900 a considerable percentage of members of the Parliament would have said, “ The Government has no right to expend money except upon the essential services of law and order, public health, roads, bridges and things like that. “. But we have greatly developed the functions of a government since then. The High Court has been considering the binding effect of contracts on the Crown - Bardolph’s case. Mr. Justice Kitto, dealing with the capital controls case - Marcus Clark - pointed out how in the evolution of parliamentary operation the ambit of government services has grown. In the welfare State, the conception has much expanded on the conception of 1900. The next thing that we will have to take notice of in giving understanding to the presentday position is that whereas in 1900 people would have been horrified at the idea of using taxation revenue to finance big capital projects, such as we did in the case of the Snowy Mountains authority only two or three years ago, to-day that is not a completely rejected proposition but a debatable proposition and one that is acceptable to a great many people. Furthermore, I think we must remember that we have to apply the concept to a federal sphere, not merely to a unitary sphere. So the House of Commons experience is not the most helpful in that respect.
Finally, we have to remember a matter to which Senator Murphy referred - the development that has occurred to get out of the region of political gerrymandering with expenditure. Particular undertakings are assigned to the control of Crown corporations, which in their day-to-day operations are not subject to questions in Parliament and are not amenable to Parliament with regard to matters of routine management. They have money appropriated by us entrusted to them so that they can exercise their independent judgments, free from the inquisitive control that Parliament may, in its irresponsibility or responsibility, impose. We create Crown corporations. But are we going to say that they are not subject to ministerial control and that a Minister has immunity in respect of any peccadillo which an independent corporation might commit, and for this purpose claim that it is a service of the Government? I form no final view. I simply mention the developments since 1900 that I think will be relevant when we come to deal with this matter in relation to particular bills.
In conclusion, when T found the civil service advice as it was before the Public Accounts Committee, and when I found the Solicitor-General for the Commonwealth giving evidence before that committee and saying, “I find it very hard to offer an illustration of what I think would be an extraordinary service “ I took up Quick and Garran and found on page 670 instances given of bills that the Senate might unquestionably amend - a public works bill, a railway construction bill, a harbour improvement bill, a bill relating to the salary of the Governor-General, a bill relating to the salaries of Ministers of State - that. I may say, I think is questionable - and a bill relating to the allowances of the members of the Federal Parliament. That certainly is nol a service of the Government, because we are not servants of the Government. Those are obvious instances which escaped the attention of the learned Solicitor-General and therefore 1 felt it prudent to place them on record. lt is because of the lack of perception that this evidence discloses in the departments that 1 feel that Senator Cormack has done us a great service by suggesting his amendment. Whilst the Government has fixed upon an accurate criterion, in view of what my leader said this afternoon and also in view of the understanding in the departments, it is most appropriate that the Senate take note of that accurate criterion but, at the same time, in the words of the amendment, “ refrains from the determination of its constitutional rights in respect of the proposed change in the contents of the annual appropriation bills, and resolves to consider such bills “.
– 1 address myself to the amendment only. The motion that wc are debating is that the Senate take note of the paper. I appreciate entirely the purpose that is sought to be served by Senator Cormack’s amendment. I would have been happier if it had been expressed a little differently. I want to begin by pointing out that when I opened the debate for thc Opposition 1 indicated (hat it did not oppose the decision of the Government. What was the decision of the Government? 1 thought it was stated in unexceptionable terms. The Leader of the Government in the Senate (Senator Sir William Spooner) stated -
Briefly, the Government tins decided (hut. from 1964-65, the contents of the Appropriation Bill and the Appropriation ( Works and Services) Bill will be amalgamated . . .
If the statement had stopped there, it would have been completely exceptionable, but it went on - subject to the separation out and inclusion in separate measures of any particular items which, as a mutter of interpretation, do not fall within the description of appropriations for the “ ordinary annual services of the Government “. 1 think that the decision, expressed in those terms, is not opposed to any of the views that 1 have heard expressed here to-day. Thai is the proposition which the Opposition has supported.
The debate has been excellent in opening up and giving significance to the meaning of the words “ ordinary annual services of the Government”, lt has been handled exceedingly well by various honorable senators. It never occurred to me that by supporting the decision in those terms we should be abdicating any single right of this Senate. I thought that when the Appropriation Bill and ancillary measures caine before us we could look at them to ensure that none of the principles and safeguards laid down in sections 53 and 54 of the Constitution were abrogated. I took il that that would apply automatically. lt is impossible for any of us at this moment to say what we will do wilh the next appropriation bill under the new design. As Senator Wright accurately said, we will want to see what is in it. It may well bs that the lime saved in dealing with the bills as one will be lost because there will be so many arguments about what is or what is not properly to be regarded ;is “ ordinary annual services of the Government”’. If wc find - and the members of the Opposition will be as vigilant as any Government senator in scrutinizing these measures - that there are included items (hal offend against section 54 of the Constitution, the section which provides against Licking, then the Opposition will not be wanting in ils duty to the Stales or to the country in dealing with the matter.
It has been most salutary !o address our minds to these matters. Again I express the tentative opinion (hat the vast sums of money that are spent by the post Office annually in expanding telegraphic, telephonic and other postal services year after year, are spent in providing ordinary annual services of the Government, ft occurs to me that it would be unexceptionable if those items were included in the Appropriation Bill. There are items in that category in the expenditure of other departments. It may be that the case cited by Senator Wright would come within that category. There could be the building of som» enormous new institution for the Post Office.
– What about Parliament House?
– Parliament House has been instanced as one item that would not fit into the description of “ ordinary annual services of the Government “. 1 think that a very good note of warning has been struck in this place. From my own viewpoint, 1 should have thought that it would not be necessary to go on and make the addendum to the motion, because it was implicit in all that the Opposition had in mind. What proposition can we affirm to-day positively in relation to the next appropriation bill under the new system? We cannot possibly affirm any proposition. We on this side of the chamber have no objection to the addition. It may well be a safeguard and it’ will help outside this chamber to attract more attention to the debate that has taken place than might otherwise be the case. 1 think that nothing but good can come from it. The Senate is indebted to Senator Murphy for his contribution to the debate which helped to clarify the importance of each of the words “ ordinary annual services of the Government “. 1 should think that after this debate the Senate leaders and officers would bc vigilant in their scrutiny of the estimates, since they know of the reception that any aberration would meet from both sides of this chamber when the bill came before us. Speaking with brevity at this stage, I indicate that the Opposition accepts the amendment and will support it.
[9.48]. - I indicate on behalf of the Government that the Government h;.s no objection to the amendment. For roy part I will vote for it and support it. I make it plain that I do not think the amendment has any meaning other than to indicate a kind of atmosphere. There cannot be any set of circumstances in which a house of Parliament expresses an opinion in abstract terms. When a House of Parliament has bills before it, it deals with those bills. This is in the nature of a preliminary discussion. I have no hesitation in supporting the amendment. 1 have listened to the debate with great interest. In a funny sort of a way something keeps coming back to my mind. It is the tail-end of a Shakespearian play - I do not remember which one - but it is -
Was ever woman is this humour woo’d?
Was ever woman in this humour won?
We have had a debate in which I think it is correct to say that every speaker has supported the Government’s decision and policy. Wc have had a few alarms and excursions off stage and all sorts of irrelevant statements have been made, but I tested the situation with an interjection addressed to Senator Wright, with which he agreed. We must keep our thoughts about this matter clear. The consensus in this chamber is that what the Government proposes to do is correct but that we must bc vigilant.
– What about the debate in 1952?
– I wish you would remain quiet. You never know anything about what is going on. You merely interrupt the orderly thinking of other people. The debate has revealed general approval in principle of the proposed change in procedure, but there has been some indication that in the future there will bc difficulty in differentiating between ordinary annual expenditure and extraordinary annual expenditure. It has been suggested that there will be differences of opinion about the category into which various items of expenditure will fall, and there will be a need for care in ensuring that particular items of expenditure do not fall under the wrong heading. That, Mr. Acting Deputy President, is my diagnosis of the result of this debate. If that diagnosis is correct - I believe it is - there is not a great deal of difference between any of us.
– The remarks of thu Leader of the Government in the Senate (Senator Sir William Spooner) make it necessary for mc to curtail what I had intended to say. I propose to speak to the motion that wc should take note of the paper that has been tabled by the Leader of the Government and to support, with all the talent I have, the amendment that has been moved by Senator Cormack. 1 am delighted to know that the Minister is willing to accept the amendment. I appreciate the change of heart that has occurred in the last few hours, because one or two statements were made this atfernoon to which I took great exception. The paper that was tabled set out the Government’s intentions. The Senate should note that it was the Government’s intention to amalgamate the appropriation bills, irrespective of whether the Senate agreed with the proposals. The Government had decided that in 1964-65 the ordinary appropriation bill and the appropriation bill for works and services would be amalgamated. It has been said that the Government believed that this decision affected the rights of honorable senators. I am glad the Government noted that fact.
I join issue with the Leader of the Government in this place when he says that the proposal we are discussing to-night differs entirely from the matter that was discussed by the Senate in 1952. In 1952 the Leader of the Opposition (Senator McKenna) was invited to disagree with a ruling given by the Chair. Senator McKenna moved -
That this Senate, having considered the opinion of the Solicitor-General (appearing in the annual report of the Auditor-General for the year ended 30th June, 1951) on the meaning of the expression “ ordinary annual services of the Government “ in section 53 of the Constitution, agrees: That the opinion of the Solicitor-General - to the effect that most appropriations now made by separate acts dealing with works and services might be properly regarded as expenditure on the ordinary annual services of the Government, because the works and services are those which the Government could have ordinarily been expected to provide within the framework of its powers - is well founded.
Later Senator Spicer, the then AttorneyGeneral, moved the following amendment -
That all words after “ that “ (first occurring) be left out with a view to insert in lieu thereof the following words: - “ the Senate, having considered the opinion of the Solicitor-General, appearing in the Annual Report of the AuditorGeneral for the year ended the 30th June, 1951, that an appropriation for the ordinary annual services of the Government can properly include or comprise appropriations for expenditure of a capital nature, resolves to act in accordance with that opinion in determining whether or net an Appropriation Bill is one which the Senate may not amend.”.
In my opinion, the matter we have discussed to-day has been on practically the same lines. Senator Spicer’s amendment was negatived, because the voting was even. Just as at that time honorable senators were big enough to preserve what they thought to be their rights, so in this year of grace 1964 honorable senators are jealous of preserving their rights. When all is said and done, it is not for the government of the day to determine the rights of the Senate. Honorable senators should be the masters of their own
House. If the Senate agrees to the proposed procedure, I shall have no quarrel. But in my opinion, for the Solicitor-General, the Public Accounts Committee or the Ministers to impose a decision on the Senate is quite wrong. We come back to the Senate being a House of review. In my view, when the Senate Ministers present in this place a bill or a decision of the Government they are committed to that bill or decision the moment they enter the chamber. How can they give an impartial opinion on the matter? I am not going to traverse the blanket opinion given by the SolicitorGeneral, Sir Kenneth Bailey, but he said that all works could come under the definition of ordinary annual expenditure. That is rather interesting because the very point was dealt with away back in 1901 when the Senate was discussing this matter. Dealing with the same question as we are dealing with to-night, namely the ordinary government annual expenditure, Senator Fraser who was a member of the convention said -
If the Government proposed to spend ?1,000,000 or ?2,000,000 in building a Federal Parliament House it would be a very proper subject for a message to the other House saying that it was loo much.
Senator Charleston interjected ;
I hope we should have power to amend in such a case.
You will notice he used the words “ to amend “ and not “ to request “. Then Senator Sir Josiah Symon, who was recognized as a leading constitutional lawyer, said -
Certainly we would.
Senator Fraser continued ;
We have full power to amend in cases like that.
Sir Josiah Symon who was a Queen’s Council and a member of the constitutional convention added later that it would not be an ordinarily performed service if a ministry built a new Parliament House or a post office. That was the original conception of the founders of the Commonwealth of Australia 60 years ago. I think that a good reason should be presented to us if we are to depart from that conception. I was going to say much more on this matter but as I believe we have achieved our objective in preserving the rights of the Senate, I will not say a great deal more.
I did regret very much this afternoon a remark which came from the Leader of the
Government. With all clue respect to him, 1 attempted by way of interjection to get him to correct what was perhaps an erroneous remark which obtruded into his speech. I believe that he made it in the heat of the debate and did not choose his words as carefully as he might have. I refer to his statement that the Senate had no right to query a decision that the Government had made. I sincerely regret that he made that remark and I do not think that he really meant it. 1 am not going to say any more except to fire one parting shot. We had a debate on this matter in 1952. The present Government has been in power for fifteen years. If this thing is repugnant now it must have been repugnant for fifteen years. Why has it taken the Government fifteen years to remove something that is repugnant? That is the question I pose. I am glad that the Minister has accepted the amendment, and I am very pleased that the Opposition has supported it. I am pleased to think that on this vital question of the constitutional rights of the Senate we are taking, as it were, a free vote. If honorable senators are prepared to act in this way 1 believe that the Senate will go from strength to strength. I support the amendment.
– 1 am very pleased indeed that the Minister for National Development (Sir William Spooner) has agreed to accept the amendment that has been moved. I am pleased too that the Opposition has seen fit to lend its support. I want to congratulate Senator Murphy on the speech that he made on this, 1 think, momentous occasion. Had wc accepted the implications contained in the statement that was presented to us, inevitably sooner or later - I am afraid it would have been sooner rather than later - there would have been ill effects, not only on the present Government but also on future parliamentary procedures in the Commonwealth of Australia. It was for that reason that 1 was bitterly opposed to the motion as it stood. I should have preferred the amendment to have been worded differently although I support it as it is. Instead of the words “but refrains from the determination of its constitutional rights “ I think it would have been better had the amendment contained the words, “ insists on the maintenance of its constitutional rights”.
What are the constitutional rights? This seems to have been a bugbear between the two Houses for many years and it looks as if it will continue to be so. Many of us in this chamber are jealous of the rights of the Senate. In adopting this attitude we believe we are safeguarding the rights of the States - particularly of the smaller States. This chamber is looked upon as a State’s House. Although in the minds of many people it is not regarded as a State’s House nhat was the original intention. Unless the Senate safeguards the rights of the States they will not have the protection that they should have.
On the point that this was a decision of the Government, 1 agree entirely with Senator Mattner. The Cabinet or the other place has no vestige or scintilla of authority to determine the rights of this Senate. That principle has been stated over and over again and 1 shall give some instances in a moment. It is not a question merely of legal rights. It has been stated by authority after authority as a matter affecting the two Houses of the Parliament. The proposed alteration in the procedure for the presentation of the appropriation bills was a decision of the Government without any by-your-leave of the Senate or anybody else. 1 am still suffering from amazement to think that the Leader of the Government in the Senate, who is always so jealous of the prestige of the Senate, and who has worked hard to see that the Senate’s prestige is preserved in every possible manner, should have brought in this proposition. I still find it difficult to believe.
The evidence on which the report of the Joint Committee of Public Accounts was based was taken on or about 14th March, 1961. I was appointed to the committee on 16th March, 1961, and took part in the debate that ensued amongst the members on the report which eventually became the Fifty-fourth Report of the Public Accounts Committee. I know that the comment has been made that the committee was not specific in its recommendation. The main reason was that senators were in the minority on the committee. I recall - I think it is quite obvious when one reads the evidence that was taken prior to the report being published and I suppose it is quite natural - that the members of the Public Accounts Committee, who came from another place, were naturally concerned with how this matter affected the members of that place. Time and again, I recall, reference was made to the difficulty that was experienced in that place in obtaining sufficient information from Ministers. I remember very well Senator Benn saying that senators did not experience that difficulty in the Senate, and that we were always able to get whatever information we needed from our Ministers. Therefore, the disadvantage under which those members were labouring in regard to the presentation of papers did not apply to us.
The other point is that those members were not concerned about the rights of the Senate. That is natural enough, I suppose. But those of us who represented the Senate certainly were interested in its rights. That is one of the reasons why the report was issued in the manner it was. I still cannot agree with the interpretations that the Leader of the Government in the Senate (Senator Sir William Spooner) has given from time to time concerning the effect of the statement and the proposed alteration of the method of presenting items of expenditure. Had any one else presented this statement in the manner in which it was brought in, I would say that the person was treating the Senate with contempt. I know that was the last thing in the mind of our leader, but I am afraid that any one reading the report of this debate in the years to come, and not knowing the Minister, would say that my assessment was a fair statement of the facts on the evidence we have before us.
Had the Opposition introduced this proposal, it would have been expected, because this is part of the policy of the Opposition. It is also part of the policy of the Opposition to abolish the Senate. I agree with the statement by Senator Murphy that while we have a Senate we should maintain its constitutional rights instead of nicking one of its veins, as it were, and letting it bleed to death. That would have been one of the effects of this proposal, I am afraid, if it had been adopted.
I remember that that great statesman, Sir Winston Churchill, said on one occasion during the Second World War that he did not become His Majesty’s Prime Minister in order to assist in the disintegration of the British Empire. I did not become a member of this Senate in order to assist in the Senate’s demise.
I mentioned a little earlier the question of the relations between the two Houses. I wish to refer to the evidence given before the Joint Committee of Public Accounts by Sir Kenneth Bailey. Question 260 reads -
You have also told us, in answer to a question by me, that legally the Estimates for Capital Works and Services and the accompanying Appropriation (Works and Services) Bill may be reduced to extraordinary items and this term “ capital expenditure “ deleted. We can assume that if this were done there would be an outcry that the Senate’s powers and the rights of the States, as a corollary, were being restricted. From the point of view of the law, can we take it that that- would not be so?
Sir Kenneth gave this reply ;
I could answer you, perhaps, in two propositions. The first is that there is no requirement in the law that the Senate shall be in a position to amend a bill dealing wilh works and services. If a procedure is adopted by the Parliament, it is a matter for the Houses themselves to determine. If the Houses adopted a procedure under which the power hitherto exercised by the Senate were not exercisable, there would no doubt be much controversy in the Senate and perhaps outside. But it would be not in any sense be contrary to law, and if the present Appropriation (Works and Services) Bill were reduced to extraordinary expenditure, it would clearly be in accordance with the Constitution that that could be amended by the Senate.
Sir Kenneth Bailey stated there that the problem should be resolved between the two Houses of Parliament. He made the same comment in questions 261, 263, 278 and 280. He is not the only one who has stated that opinion. In his book “ Australian Senate Practice” Mr. J. R. Odgers refers to the case of Griffiths C. J. and Osborne versus the Commonwealth, 1911 and says - “ No court of law has jurisdiction to decide whether that view is correct or not.”
That relates to the ordinary annual services of the Government. Again and again, authorities appear which state that this is not a legal matter at all; it is a question for discussion and solution between the two Houses. In the case now under consideration, the Senate was not given the opportunity to do this. The present debate is the only opportunity we have been given to express an opinion on the proposal. I do not think that is right. I am very pleased that the amendment has been accepted.
– What other opportunity could the Senate have?
– I think that rather than confronting the Senate with the statement that the Government had decided on a certain course of action, the Minister could have presented a paper saying that the Government thought that this should be done, or that that should be done - in the same terms if you like - but the Senate should not have been presented with a statement by the Government that it had decided that this action was to be taken before any reference to it had been made to the Senate. 1 will not have a bar of that.
– Because you do not understand it.
– If that is the case, 1 have a lot of friends. My understanding of the proposal is that it will reduce the powers of the Senate. That is my view, and it will be very difficult to shift me. In his statement, the Minister quoted remarks of Sir Kenneth Bailey, as follows: - . . 20. (i) strictly on the ordinary principles of constitutional interpretation, there are no legal objections to the inclusion in an ordinary annual Appropriation Bill of all the provisions that are now customarily included in an Annual Appropriation (Works and Services) Bill, with (he possible exception of certain types of grants.
Then the Minister said -
I should add that, in all his opinions, (he Solicitor-General emphasized that the question whether a particular Appropriation Bill dealt exclusively wilh appropriation for the ordinary annual services of the Government was one to be resolved between the iwo Mouses of Parliament and noi by the courts.
So, in my opinion, the Minister was a bit ambiguous there. He quoted an opinion to the effect that there was no legal objection to the proposal, and he also quoted the Solicitor-General as saying that it was a matter to be decided between the two Houses. I again refer to the fifty-fourth report of the Joint Committee of Public Accounts, the last paragraph of which says -
The evidence obtained by Your Committee revealed that the question of the necessity for the separate bills is dependent upon the nature of the expenditures involved. Further, the definition of the particular items to be included in separate works and services appropriations, and not in the main appropriations of expenditure “ for the ordinary annual services of the Government “, is a matter for the two Houses of the Parliament to establish as the relevant sections of the Commonwealth of Australia Constitution Aci refer to proposed laws.
Surely that is definite enough for anybody. As the amendment has been accepted there is no need for me to talk at greater length. I am delighted to see the amendment as proposed and 1 hope that once and for all we settle this question of infringing the powers of the Senate.
– I should like to take advantage of Standing Order No. 4.10 to register that I have been misquoted or misunderstood by Senator Mattner. I am sorry he is not present. As 1 heard his speech, over the soundamplification system. I think he took objection to the fact that I said that the Senate had no right to query a decision which the Government had made. I never said any such thing. 1 repeat that statement. I never said any such thing. Senator McKellar, too, is apparently, subject to the same misunderstanding.
– 1 was. but I did not hear your speech.
– Surely I made it abundantly clear that the Government was bringing forward the proposals in the light of what the Joint Committee of Public Accounts had said and as a result of its legal advice. But surely I was not so far astray from my prepared speech that 1. did not say, and reiterate, that this was a matter that could only be settled between the two Houses. I am sure my recollection is right that I said ad nauseam that whatever differences there might bc between the two Houses of Parliament, when a bill became an act it was the law and was unchallengeable. I made no statement to the effect that the Senate has no right to query a decision of the Government. The whole tenor of my speech was to the contrary - that this is a matter that has to be determined between the two Houses. The whole issue in this matter is: What is properly the “ ordinary annual services of the Government “? That is the point upon which Senator Murphy put his finger.
.- The Senate is indebted to Senators Cormack, Wright, Murphy and
McKenna for the quality of the speeches that we have heard in this debate. Under the circumstances, I do not intend to traverse the ground already covered by other honorable senators. As the Joint Committee of Public Accounts has been referred to by the Leader of the Government. (Senator Sir William Spooner) and by other honorable senators during the debate, I will confine my remarks, which will be brief, to the 1961 inquiry held by the committee and to the report which it made to the Parliament. As honorable senators are aware, the Public Accounts Committee is charged with the general responsibility of investigating the accounts of the Commonwealth. In the course of such investigation it is concerned frequently with procedures which, on occasion, have been found to be time-wasting, cumbersome or costly. I make the point that the committee is the servant and instrument of the Parliament, and that its powers and responsibilities are defined by act of Parliament. The committee reports to the Parliament and informs the Treasurer of the findings contained in a report. The Treasurer is required to consider the comments and recommendations contained in the report and to inform the committee, by minute, of the result of his consideration. The Parliament then determines what action, if any, is required.
Coming now to this particular inquiry, which involved both principles and practices of the Parliament, the committee sought and obtained all available expert evidence and finally, inits report, pointed out that this was a matter which could be resolved only by the Houses of the Parliament. Senator Sir William Spooner stated that the inference to be drawn from the report is that there ought to be a change in the present practice. But it must be remembered that the Public Accounts Committee was here engaged in a review on the form and content of the financial documents presented to Parliament. The committee’s purpose was to achieve a clear, orderly and consistent form of presentation, in accordance, I believe, with the Parliament’s aims and views on the papers concerned. In my opinion, the evidence - and the report based on the evidence - showed very clearly that the committee, as a servant of the Parliament, did not feel competent to comment on the practices of the Parliament. The committee was aware of the administrative and accounting advantages which would flow from an alteration in the form of presentation of the papers. The committee - the Minister said it refrained - most emphatically did not make any recommendation with respect to the practices. It felt that it was not proper for it to comment or to make recommendations in this regard.
I therefore agree with my colleagues who feel that it is regrettable that this report, which was furnished to both Houses of the Parliament on 6th September, 1961, was not fully discussed, that for practically two and a half years it remained just as it was presented to Parliament and that honorable senators, in particular, did not have ample time or opportunity to determine what were the issues inherent in the changes and to make considered judgments on them. I feel that by accepting Senator Cormack’s amendment the Government has agreed to leave in the hands of the Parliament decisions concerning any change. I therefore believe that it will be the responsibility of this Parliament to exercise a critical examination of the nature, extent and carrying into effect - in other words, the application - of any change that may be made. I am very pleased that the Government has seen fit to accept Senator Cormack’s amendment. This is, in essence, complete confirmation of the report submitted to both Houses of the Parliament by the Public Accounts Committee.
Amendment (Senator Cormack’s) agreed to.
Motion, as amended, agreed to.
Senate adjourned at 10.29 p.m.
Cite as: Australia, Senate, Debates, 12 May 1964, viewed 22 October 2017, <http://historichansard.net/senate/1964/19640512_senate_25_s25/>.