Senate
6 November 1901

1^st Parliament · 1^st Session

PETITIONS
PAPERS
ASSENT TO BILLS
ELECTIONS AND QUALIFICATIONS COMMITTEE
PAPER
POST AND TELEGRAPH BILL
IMMIGRATION RESTRICTION BILL
- Second Reading

The President took the chair at 2.30 p.m., and read prayers.

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PETITIONS

Senator CHARLESTON presented a petition from nine electors of the State of South Australia and members of the Legislative Council thereof, praying that the Senate would reject the Matrimonial Causes Bill.

Petition received and read.

Senator CHARLESTON presented similar petitions from sixteen electors of South Australia and members of the House of Assembly, from six electors of South Australia and from two citizens of South Australia being members of the Society of Friends.

Petitions received.

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PAPERS

Senator DRAKE laid upon the table

Minute by the Prime Minister to the Governor

General in reference to preferential duties of customs in Canada.

A despatch, dated 17th May, 1901, from the Secretary of State for the Colonies to the GovernorGeneral, with enclosure.

Ordered to bo printed.

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ASSENT TO BILLS

Royal assent to the following Bills re ported -

Service and Execution of Process Bill.

Supply Bill (No 4).

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ELECTIONS AND QUALIFICATIONS COMMITTEE

Saunders v. Matheson.

The PRESIDENT:

– Before Senator Glassey moves the contingent notice of motion which, I understand, he is about to do at the request of Senator Symon, I think I ought to state to the Senate that I have been considerably exercised in my mind as to whether Senator Downer, chairman ofthe committee, who is in charge of the order of the day, ought or ought not to have priority with his contingent notice of motion. But inasmuch as I am informed that he has no objection to the contingent notice given by Senator Symon being taken first, I am relieved of that difficulty, and therefore I call on Senator Glassey.

Senator GLASSEY:
Queensland

– I move -

That the petition against the return of Senator Matheson be not further entertained.

I regret, as I am sure every honorable senator does, that Senator Symon is unable to be present to move this motion. I believe that I express his sentimentwhen I thank Senator Downer for the very courteous position which he has taken up. It is also due to Senator Downer to say that, throughout the proceedings of the Elections and Qualifications Committee, he was uniformly courteous and considerate to his fellow members. I am only doing my duty in putting on record this acknowledgment of his urbanity and courtesy in the chair. I desire to correct a misstatement which has been made in the press that members of the committee have taken strong political sides. I do not believe that any honorable senator has been actuated by political bias. I cannot be charged with political bias, inasmuch as the opinions of Senator Matheson and myself on some political questions are as wide asunder as are the poles. Having met him on several occasions, not only in the Senate, but in the old Federal Council, I know that he is a very strong free-trader, and, as I take the opposite side of the fiscal question, I cannot be charged with being biased in favour of him. In the inquiry, I took the course which my judgment and conscience dictated to me as correct. Iconsiderthatthemajority of the committee have all along taken the correct view - namely, that the petitioner had been negligent in the presentation of the petition, and that, inasmuch as he had not complied with the conditions of the procedure which ho adopted, he was out of court. Senator Matheson ought therefore, in all fairness, to be allowed to take his seat in the Senate. This is a matter to which I gave some thought and consideration while I was a member of the committee, and some time ago I moved accordingly. Therefore, this is not a new proposal so far as I am concerned. I hope that the Senate will adopt the motion and that the sitting member will consequently be entitled to take his seat. When this question was before the Senate on the 24th J uly last, I regretted verymuch that I was notable to be present. I communicated with the Vice-president of the Executive Council witha view of having the subject postponed, if possible, until I was able to be present. Unfortunately, circumstanceswere such that the honorable senator could not comply with my wish. I thank the honorable senator who paired with me on that occasion, so that my vote was not really lost. The elections for senators in the State of Western Australia, as in some of the other States also, took place on the 29th March of this year. I presume that the elections in that State, as was the case in the other States, were conducted in accordance with the existing law of the State. Therefore, if any dereliction of duty occurred on the part of any candidate, or if he violated any law, he must necessarily have violated the law of his own State. I am not aware that there is any other law under which the elections could have been held Senator Matheson was elected at that particular time. I understand that some time elapsed before the actual declaration of the poll was made, but that does not alter the fact that he was duly elected on the 29th March. If Senator Matheson violated any provision of the law of Western Australia, surely there was sufficient time for the petitioner and his friends to take any action which they deemed advisable, and to lodge a petition in due form and in due time in accordance with the practice which was ultimately adopted by- them. It is alleged in the petitioner’s behalf that Senator Matheson was guilty of bribery and illegal practices, that he used undue influence in promising certain persons sums of money for supporting his candidature, and that he or his agent gave to Mr. Croft, the Secretary of the Political Labour Party and the Trades and Labour Council of Western Australia the sum of £50. These are the charges which are alleged against the sitting member. If they were proved, then undoubtedly Senator Matheson would have some difficulty in retaining his seat. Indeed, speaking as a person who has had considerable experience in political matters, and in the conduct of elections, I say that if these charges were proved or could be proved, the sitting member, would not bo entitled to retain his seat. Petitioner Saunders, after a long delay, which is inexcusable, took action under the law and practice of Western Australia. He did so of his own free will. I presume that he waa’ advised by his legal advisers to take that course. At any ‘rate, he voluntarily elected to proceed under the Western Australian law and practice. Therefore, it was most natural that, inasmuch as he was advised to adopt that procedure, he should of course and of necessity have complied with the provisions of the Western Australian Act. “Under that law, a certain course has to be taken, and certain rules must be adhered to, before a petition can be heard. The question arises - did the petitioner comply with those rules and provisions under which he and his legal advisers choose to proceed t I contend that he did not. Some honorable senators have contended that he did all that he was capable of doing. I contest that statement. That is the view I have taken all along, and my position is strengthened by the evidence given by the Clerk of this

Senate in accordance with the resolution passed by the Senate on the 25th July last. When this matter was before the Senate on the previous occasion, it was said that the petitioner had done all he could to get a hearing. Let us see how far that is the case. Sections 146 of the Western Australian Act lays down certain rules to be followed. Those are the provisions under which the petitioner elected to proceed - I presume in accordance with the advice he received from his legal advisers. Those rules lay it down, first, that there shall be a petition, and, secondly, that the petition shall be addressed to the House affected, and presented by a member or left with the Clerk within 40 days after the return. Further, it is laid down that the petition shall be signed and attested, and, fourthly, that it shall be accompanied by a deposit of .£50. It has been alleged that petitioner Saunders complied with every one of those conditions, and that that is all he had to do and could do. How very innocent the petitioner was ! So the allegations made in his favor would lead us to believe. But I do not agree that the petitioner was so innocent ; and certainly I do not believe that his advisers were either innocent or ignorant regarding the law. There was no innocence in their conduct in the petitioner’s case, but an exceeding lack of activity and vigilance. For that lack tho petitioner was entitled to pay the penalty, and not the sitting member. Of course the petitioner and his advisers had before them all the rules with which they had to comply. It has been contended that so soon as the petitioner left the petition with the Clerk he had done his duty. That is the whole point. I think Senator Sargood went so far as to say on the last occasion that it was ‘not the duty of the Elections and Qualifications Committee to enquire whether all the rules of procedure had been complied with, but to go on with the case. Nothing in the instructions given by the Senate could be taken to have that effect. The Senate gave certain instructions to tha committee, who very justly and properly found that, inasmuch as the rules adopted by the petitioner had not been complied with, the petition should not be further considered. In deference to the resolution passed by the Senate on the 25th Jul)-, the committee made further investigations, and exercised, so far as they were capable of exercising, all the care they could in endeavouring to obtain evidence, with the view of presenting their report to the Senate. They examined the Clerk of this Senate as to whether the petitioner had complied with all the rules with which he was bound to comply, and whether he was the innocent person some honorable senators would have us believe. I will take the liberty of reading the evidence tendered by the Clerk as to whether the petitioner and his friends actually were in a state of innocence, and whether they knew what action had to be taken, not only with regard to the lodging of the petition and having it signed and attested, and with regard to the deposit of £50, but also with regard to the time when the petition should be presented, and as to its presentation by a senator. The petition was presented to the Clerk, and, in so presenting it, the petitioner and his advisers were perfectly cognisant of what had to be done, in addition to the fulfilment of the conditions to which I have referred. The Senate met on the 9th May, but the petition was not presented to the Clerk until the 23rd May. The majority of the committee, after hearing the evidence of the Clerk, presented their report, together with the reasons for the position taken up by them. By so doing, they vindicated this Senate and the Clerk against any implicit charge of negligence on their part. It cannot be contended that the Clerk was to blame or that the Senate was to blame. The only person to be blamed, and the person who should suffer, is the petitioner himself. Surely it is wrong and manifestly unjust that the sitting member should be harrassed, and put to enormous expense in view of the fact that the neglect to which I have referred rests entirely with the petitioner. In Parliamentary practice nothing is more strongly insisted upon than rigid adherence to the conditions as to time in the lodging of a petition. No blame attaches to the sitting member, and he ought to be held innocent untilhe is proved guilty. From my own experience in connexion with election petitions - which goes back as far as1880, when in the town of Lichfield, I had something to do with the unseating of a member - as well as from reports I have read of proceedings on petitions in the English courts the utmost vigilance is insisted upon on the part of a petitioner. If any concession is to be made it should be given to the sitting member, and particularly to the State which has suffered the loss of one representative in the Senate for months past. The Senate met on the 9th May. The petitioner was here on the8th of May, but he did nothing for a fortnight. The petition was not even signed until 23rd May, 35 days after the return of the sitting member, and onthe verge of the 40 days’ limit. On 23rd May, it was taken to the Clerk of the Parliaments, Mr. Blackmore, who never regarded the lodging of it with him as equivalent to its presentation to the Senate. Nor did the petitioner regard it in that way. Mr. Blackmore was examined before the committee on the 15th August, and gave evidence as follows : -

Senator Sir J H Symon:

– You have the original petition against the return of Senator Matheson ? -Yes.

Do you see the indorsements on the printed petition ? - I am satisfied that the indorsements are correct.

When was the petition left with you? - On the 23rd of May of the present year.

Who left it with you ? - It was brought in by two gentlemen who, at the time, were unknown to me. I believethey were Mr. Saunders and Mr. Ward.

You mean Mr. Saunders, the petitioner ? - I believe he was one of them.

Some statements were made, and some discussion took place in the Senateduring the recent debate on this subject, as to what took place between yourself and these two gentlemen when the petition was left with you. Will you kindly tell the committee what did take place ? - Two gentlemen entered the room which I was then occupying, and came to the desk where I was writing, and said - “ We have a petition to lodge with you.” I said - “Certainly.” It is a common thing for honorable members to leave petitions with me, so that I may hand them to them in the Senate when they are wanted. They said - “This is a petition referring to a disputed return which will be challenged,” and they referred me to a section of the Constitution, and said that it had to be presented under conditions prescribed by the law in Western Australia, the Commonwealth not having yet provided the modus operandi. As it happened, my attention had never been drawn to the law of Western Australia, and I did not know it ; but they were good enough to produce the Electoral Act, and show me the sections governing the procedure in regard to presenting a petition against the return of a member. Then they opened the petition, and showed me that they had complied with the provisions of the sections of the Western Australian Act. Then they went on to say - “ You will observe by this Act that we have to lodge £50 with you as a deposit.” I said - “ Very well, I shall receive that, and indorse on the petition that you have lodged it as security for costs. I shall give you a separate receipt, which you can take, so that you may have an extra guarantee.” Then we got into conversation, and they began to talk about further procedure. I said at once then - “As an officerof Parliament, I cannot give you any advice or take any action myself in a matter referring to the unseating of a member, but I may tell you what is the common law of Parliaments with regard to all petitions, and that is, that they should be presented by a member of the House, to whom the petition is addressed.” I particularly guarded myself against referring to any class of petitions ; I said - “All petitions.” Then, of course, as is natural, there was a little more conversation. I said - “ Mind, whatever I say to you is nonofficial. Being an officer of Parliament, I cannot interfere in this matter.” But as we got on in conversation, I simply made this remark - “By the way, I might pointout to you that there is some difference of opinion as to whether the Constitution Act refers bo the mere technique or modus operandi of getting a member returned, or whether it goes further, and applies to matters after the return. My own opinion is that it does not.” To the best of my recollection, and I think I am right, that is the extent of what passed between us.

Was anything said about a member ? - I beg pardon, I am glad bo be reminded. When I mentioned aboutthe common law being for a member bo presentthe petition,they said, bo the best of my recollection -“ Oh, yes, we have thought of that, and we have a member in our eye.” Then they asked - “ Would there be any difficulty in gettingthepetition from you ?” Isaid, “No,I shall lockit up, and I shall bake it down to the chamber every day, and put it in my drawer of thetable, and as soon as a member comes up bo me and saysthat he has undertaken to present it, I shall hand it to him.” I said - “ Until some one comes up to me for the petition,it will go back to my office each day.” That istheextent of what passed between us.

Mr. Fink (counsel for petitioner) Was that an unofficial conversation? I do not know.

You were speaking unofficially ? - With regard to taking the petition down, you may take that as official or unofficial as you like. It was simply saying what I should do.

By Senator Walker. - You told them unofficially that there was a difference of opinion ? That was a sort of conversation.

I then examined the Clerk as follows : -

You told the gentlemen who waited upon you that you would bakethepetition and keepit in your drawer from day to day until such time as some member would call upon you for it? - Yes.

Did you do that?- Yes.

How long did you have the petition before any member called upon you for it? - I could not tell you exactly the number of days, but some two or three days - at least three days I think - before it was presented. Speaking from memory, the Vice-President of the Executive Council, through his secretary, asked me if I would allow him to see the petition, and, of course, I did ; and they had the petition in their custody until it was presented.

That was about three days’ after you received it ? - No ; I should say not more than three days before it was presented. It did not return to me until it was presented.

The Vice-President of the Executive Council, through his secretary, got thepetition from you, and, I presume, he held it for several days ? - I would not say how many days. I doubt if it was more than three days.

The witness was then examined as follows : -

By Senator Sir J. . H. Symon.- Had you any conversation with any one else about the petition ? -No, exceptthat fromtime to time, as we were crossing the passage, Senator Matheson asked me if it was going bo be presented, and I said - “ I have heard nothing more.” He never came to my room to ask the question.

By Senator Walker. - I think you said that yon told them unofficially that there was a difference of opinion ? - That is a different matter. When they came in they naturally got into conversation. It was an ordinary conversation ; it was not official. We discussed the whole thing, and I said - “ I may tell you that there is a difference of opinion as to whetherthatsection of theConstitution applies to matters after a member is elected.”

– I was very glad to hear from the speech made by Senator Glassey that he recognised at all events the fairly judicial position I endeavoured to assume throughout this inquiry, although I may tell the-. Senate that I had great temptation at times to be a little injudicial. It appeared to me, to use the words of my friend, to. be a matter which did not require any temper or any feeling of compassion; but simply and solely a sense of justice, and that is the point of view from which I propose to deal with it. This is not a question of compassion for the sitting member, or for the petitioner, or of mercy here or there, but we have to see that we do not begin our record with a refusal to inquire into that which needs inquiry, and with a determination to resist justice at any price. I know no more about the merits of this case than a man in the moon. But the principle of it seems to me to be in a nutshell. “We are sitting under a new Act of Parliament, which provides that a question relating to a disputed election shall be determined by the House concerned, and that the conduct of the election shall follow the law relating to the Lower House in the State where the election took place. The elections for the Senate, as the elections for the House of Representatives, had to take place according to the law of Western Australia. Whether the return was disputable depended on the law of that State, but the tribunal to decide thequestion was nota tribunal appointed by the law of Western Australia, but the Senate itself. There you have the whole thing in two or three words, absolutely and utterly beyond question. We had no rules, and immediately we met came a petition relating to a disputed election. The petitioner did not know what law to go under, or what procedure to follow. The Clerk said to the petitioner - “The common law of Parliament is that a petitioner has to get a member to present the petition, but I do not know how it is governed by this Constitution. It seems to me that the election had to take place under the law of the State, but when it goes beyond that point I do not think that law does apply.” I am pleased to know that the Clerk’s views and my own agree on that point. The question we have to try is whether this is a bona fide petition or not. If it is not bona fide, away with it. But, if it is bona fide, has there been gross negligence? On the 23rd May the petition was left with the Clerk ; on the 6th Junenotice was given for the appointment of a committee of disputed returns; on the 12th June that committee was appointed, but by the standing orders it was inoperative until about the 23rd June. On the 27th June the Vice-President of the Executive Council moved that the petition be referred to it.

The petitioner showed his bona fides in doing everything he could do.

Senator Playford:

– Except get the petition presented.

Senator Sir JOHN DOWNER:

– The Clerk did not know whether that was the proper way for the petitioner to proceed. May I be allowed to say that the course followed was in accordance with the usage not merely of Western Australia but of Victoria. We talk of negligence. There is no fixed statutory duty, as Senator Glassey said, for a petitioner to present his petition within a certain time. If there is a fixed statutory duty, it comes under the law of Western Australia, and that has been complied with. The law of Western Australia requires the petition to be left with the Clerk, and the House to send it on. The law in Victoria is the same, and gentlemen in both Houses in this State have told me that they know of no case in which there hasbeen a motion to refer a petition about a disputed return, but that it has been left with the Clerk as a matter of course, and sent on by the Speaker without a motion from any honorable member. I do not say that that is conclusive in the slightest degree, but we have no fixed time, and it is only a question of whether the man was diligent or negligent? If there is a fixed law it will be the Western Australian law, and the petitioner complied with it.

Senator Clemons:

– We say he did not.

Senator Sir JOHN DOWNER:

– But the Senate ruled that he did, the other night.

– Either there is an absolute rule, and if there is, it was not complied with ; or there is not an absolute rule, and then it is a question of negligence. Whether the petitioner assumed that he had to act under the law of his own State of Western Australia, or under the law of the State in which the Senate was meeting, Victoria, the lodging the petition with the Clerk was equivalent to its presentation to the Senate, and the rest was a matter of course, a perfunctory act.

If the petition had been presented by 20th June, what could the Senate have done more than it actually did 1 The view I have taken about this matter throughout, knowing nothing about the merits, and anxious to be relieved from one of the most painful positions I have ever been in in the course of my life - a position in which I have endeavoured to do justice, but have obtained great offence and great indignity - is what I have explained. No one could be more happy to be relieved of the position I occupy than myself ; but, at the same” time, if this Senate wishes it to go forth that we are not a mere political body, allowing party considerations to tread upon the sanctity of justice, we should continue this inquiry. “Whether it be continued by the present committee or some other body I care not. I shall be glad to be out of it. At the present time I look upon the subject simply as a person knowing nothing of the merits of the case, but as a fair-minded man of the world accustomed to studying cases, with a desire to arrive at reasonable conclusions. From that point of view, I say that nothing on the part of the petitioner would justify this Senate in denying to bini the right to an inquiry, and to the justice which he demands.

Senator PLAYFORD:
South Australia

– I think that if this Senate has anything to deplore since we first met in this Chamber, it has been the illness of Senator Fraser. If he had not been ill we should undoubtedly have had at the present moment a majority report from the Elections and Qualifications Committee, as it was at first appointed to inquire into this petition. That majority report would have met with the approval of the majority of the Senate. But Senator Fraser’s resignation from the committee resulted in a dead-lock, and led to the difficulty with which we are now faced. On the last occasion when this question was before the Senate - leaving out the time when we had to decide whether the chairman of a committee had a deliberative as well as a casting vote - I contended that there was no evidence to prove that the petitioner had not done all that he could possibly have done under the circumstances. It was my belief at the time that the petitioner really thought that when he presented his petition to the Clerk of the Parliaments, Mr. Blackmore, he was doing all that he ought to have done under the law of Western Australia. Being under that belief, I thought we had no right to take advantage of the ignorance of any individual on a matter of this kind, particularly as it was the first time any petition had been presented to the Senate on a matter relating to a disputed return. As there was no law on the subject, I thought that we had no right to take advantage of a mistake that an individual might easily fall into. Therefore I voted with the majority, in favour of referring the matter back to the committee for the purpose of making still further inquiries. The committee have taken no evidence on the merits of the petition, but they have, I understand, heard the lawyers on each side. “We have before us no report as to what was said hy these learned gentlemen. But we have before us the evidence given by Mr. Blackmore, our Clerk, and that evidence shows that the advisers of the petitioner are not such wonderfully ignorant persons as might have been supposed. I entirely disagree with the statement of Senator Downer when he says that there is no fixed law on the subject, and that if there is a fixed law the petitioner complied with it. I contend that, so far as the Commonwealth is concerned, there is no law on the subject, but it was certainly understood that the elections of senators were to be conducted under the laws of the States concerned. There is no doubt in my own mind that that was the intention of the framers of the Constitution. It is the commonsense position. Therefore, there was a law on the subject, and the petitioner’s advisers knew it thoroughly. Yet in the most unaccountable manner they failed to comply with the conditions of that law. Take the evidence of Mr. Blackmore. The petitioner or his representatives came to that gentleman with their petition. Did they look upon the mere fact of lodging the petition with the Clerk as a compliance with the law of Western Australia ? Decidedly not. The)’ said, “ We have in our eye a senator who will present the petition.” Is it to be supposed that, if they had their minds thoroughly made up as to the procedure they ought to adopt, and if such procedure had been in the direction of simply leaving the petition with the Clerk, they would have thought it necessary to do any more? Nothing of the sort. But they distinctlysaid, “ We leave it with you “ - to do what with it ? Was the Clerk to present it to the Senate? Decidedly not. Was he to hand it to you, Mr. President ? Decidedly not. He was to hold it in his hand for the purpose of safe custody, and give it up at the proper time to a senator who would present it to the Senate - the very procedure which the law of Western Australia prescribes. Therefore, the petitioner knew thoroughly well what he had to do, and it is not for us to inquire how it is that he neglected his duty. I suppose that there is scarcely a senator who would not have presented that petition if he had been asked. I should never refuse to present any petition if it were respectful, even though I disagreed with what it asked for. There is never any difficulty in obtaining a senator to present a petition. But the petitioner’s advisers waited day after day, although they knew exactly what procedure had to be taken. They absolutely neglected the petition and the procedure. So far as the deposit is concerned, they had paid the money. They had complied with the whole of the law of Western Australia, except in regard to the presentation of the petition, which they had prepared in proper form, and had ready for presentation. It was not left with the Clerk as a compliance with the law of Western Australia. Therefore, the petitioner did not comply with the law’ of Western Australia, and Senator Downer’s contention, that if there is a fixed law governing the case they compiled with it, is a mistaken one. There is a fixed law, but they did not comply with it, and as they neglected to do so, they must suffer the consequences.

Senator O’Connor:

– What, in the honorable senator’s view, is the fixed law 1

Senator PLAYFORD:

– The law of Western Australia, whatever that may be. That has been shown to be the case in regard to a petition presented to the House of Representatives against the return of Mr. E. Solomon. But in the present case the petitioner did not comply with the law, and under the circumstances I think that the best course the Senate can adopt is to pass the motion moved by Senator Glassey. ‘ If I thought that this petitioner was ignorant in what he had done, and made a mistake through his ignorance, I should take a different course, because I believe that we should not. judge matters of this sort in accordance with the strict letter of the law, but should consider the equities of the case. But here we have a man deliberately coming to the Clerk of this House, knowing what to do, and doing it up to a certain point, and then neglecting to attend to a certain matter. Therefore I shall vote for the motion.

Senator O’CONNOR:
“Vice-President of the Executive Council · New South Wales · Protectionist

– I sincerely hope that the Senate will not be led into taking the course involved in Senator Glassey’s motion. To do so would be, in the first place, to absolutely stultify the Senate itself, and, in the second place, to deny justice to the petitioner, on grounds which are in themselves not only untenable, but, it appears to me, absolutely farcical. I cannot understand how any honorable senator who remembers that we are dealing with the question of the rights of the petitioner, as well as the rights of the sitting member, could come to the conclusion that, on the flimsy grounds which have been put forward by one section of the committee, and by the mover of this motion, we should deprive any one of the slightest right which any mau might claim, much more than that we should deprive him of the right of sitting in this Senate. A great deal of time has been expended already upon this matter. I do not wish to devote any more time to it than is absolutely necessary, but I feel that the credit of the Senate is involved in the course which is to be taken now, and, therefore, I think it necessary to state, in a very few words, the position in which the matter now stands. The Senate referred this petition, on 27th June last, to the Elections and Qualifications Committee. The committee was appointed for the .express purpOSe of dealing with this question, because, although it is a standing committee, open to consider any other petition, there was actually no other petition in existence when it was appointed, and it is unlikely that any other will come before it. The committee having been appointed as the tribunal to consider this question, the petition was referred to it on 27th June last. Since that time the matter has been before the committee, and now a member of it asks us to take action. In what circumstances ? It has been considering the matter from the 27th June until the 6th November, and has at last arrived at a position in which it is equally divided and cannot determine upon any conclusion. That is the report which it brings before us.

Senator Clemons:

– And it has kept thesitting member out of the Senate all this, time.

Senator O’CONNOR:

– I hope it will beunderstood that I am not attempting in any way to attach blame to any member of thecommittee. Every member of it has a right to his own opinions, and if, unfortunately, the committee is so divided that it cannot agree, there is no other course open to it than to come to the Senate itself which has delegated its power to it, and to inform! it of the condition of affairs which prevails. But whatever the reason may be, the committee, being absolutely unable to agree,, has brought up a report to the Senate which deputed it to inquire into the matter. In that report the members say practically - “ We are equally divided ; we can come tono conclusion.” That being the case, Senator Symon .gave notice of the motion, which has been moved by Senator Glassey, to the effect that the petition be no longer entertained. That is to say, that is the view of one section of the committee. But on what grounds ? On the grounds that thelaw of Western Australia has not been complied with, and that -

There has been unexplained delay and want of diligence on the part of the petitioner in such presentation and prosecution prejudicial to the sitting member and his State.

Those two grounds are absolutely the same. They both depend entirely upon the question of whether the law of Western Australia, applies. The question was thoroughly thrashed out in the Senate on the occasion of the first report. The committee, havingconsidered the matter from the 27th of J une until the 11th of July, brought up a report on the latter date, in which they said that -

The petitioner has not conformed with theelectoral law of the State of Western Australia ; and your committee recommend, therefore, that the petition be not entertained.

- Senator Symon, on that occasion, said this -

What the majority of the committee felt was that they, at any rate, could not sanction any evasion of the Act of Parliament.

I inquired, “Of what Act of Parliament1!” and Senator Symon replied -

Of the Act of Parliament prescribing the practice which they had adopted.

In answer to my further inquiry, “ What Act of Parliament 1 “ Senator Symon said -

The Act of Parliament of Western Australia. As I have said so far as my own opinion is concerned, I hold that the Act and practice of Western Australia have no application whatever. The committee never said so for a moment. But .there was no practice and no procedure. The Senate might have adopted- and I venture to think it was the duty of the Vice-President of the .Executive Council when lie moved in this matter to have formulated - sessional orders governing the limitation of time within which petitions should be presented, and the procedure that should have been adopted. That has been done in every instance with which I arn acquainted

– Considering the circumstances in which we find ourselves, and considering the report of the committee in which it confesses its inability to do any thing more, it should not be surprised if the Senate comes to the conclusion that it be asked to hand over its functions toanother committee which will be able to, arrive at a conclusion. I move -

That the question be amended by the omission of all the words after the word “That” with a view to insert in lieu thereof the following, words : - 1. The committee be discharged from further consideration of the petition. 2. Steps be taken if necessary for rescinding in accordance with the standing orders the resolution appointing the committee. 3. Action be taken in accordance with the standing orders for the appointment of a new Committee of Elections and Qualifications, to which the petition shall be referred.

They referred me to a section of the Constitution, and said that it had to be presented under conditions prescribed b)’ the law of Western Australia, the Commonwealth not having provided the modus operandi. As it happened, my attention had never been drawn to the law of Western Australia, and I did not know it; but they were good enough to produce the Electoral Act and show me the sections governing the procedure in regard to presenting a petition against the return of a member.

The motion of Senator Glassey is the only reasonable one which we can adopt, and in the light of the evidence of the Clerk, there is nothing left for the Senate to do but to reject the petition.

Senator Dobson:

– I feel it my duty, sir, to rise to a point of order. Senator Glassey is asking the Senate to undo the resolution which it passed some weeks ago -

That in the opinion of the Senate the law does not prevent the committee from entertaining the petition, and that the . petition be referred tack to the committee for further inquiry and report.

My point is that the word “ entertaining “ meant that the committee should inquire into the matters of the petition, and that they should then have given us a further report on the merits of the case after hearing the evidence. They allege that because they have taken the evidence of the Clerk, therefore something new has arisen which justifies them in reporting again, on the ground that they have made further inquiry. I desire, if I am in order, to cut that ground from under their feet, by saying that I do not recognise the Clerk as having given any evidence affecting this matter, excepting the fact, which everybody knew before, that he did on a certain day receive the petition and the £50 deposit. Another point is that the Senate has already decided that the law - it does not say what law - does not prevent the petition from being entertained. As I understood their arguments, it appears to me that Senators Glassey, Playford, and De Largie, are relying on the ground that the law of Western Australia does apply, that that law has not been complied with, whereas the resolution of the Senate was that the law of Western Australia did not apply, and that there was no law whatever to prevent the petition from being entertained. I would also point out that Senator Symon himself ridiculed the idea of the law of Western Australia applying. He emphatically stated his opinion that that law did not apply at all. I am sure, Mr. President, that we shall look to you to prevent the Senate stultifying itself, and to see that whatever resolution we pass is in accordance with constitutional practice, and is not a resolution which, by a side wind, undoes something which we did weeks ago after the most thorough inquiry. My first point is that no law prevents the petition from being entertained; and my second point is that the petition was referred back to the committee to be entertained for inquiry, and that that has not been done. The committee have not entertained the petition except by simply examining the Clerk on matters which any court would be bound to take cognisance of. They have by doing that sought to show that they have taken evidence which justifies them in their further report. I contend that it does nothing of the kind.

The PRESIDENT:

– The point upon which the honorable and learned senator asks me to rule is this - that the Senate is precluded by its own standing orders from considering the motion moved by Senator Glassey, because on a former occasion it passed the following resolution : -

That in the opinion of the Senate the law does not prevent the committee from entertaining the petition, and that the petition be referred back to the committee for furtherinquiry and report. This point has not taken me by surprise, because it struck me when I first heard the contingent notice of motion that it was, if not contradictory of the former resolution of the Senate, at all events something like it. I considered the matter before I came into the chamber to-day. If honorable senators will look at the resolution passed by the

Senate, they will see that what was decided was that -

The law did not prevent the committee from entertaining the petition.

The motion moved by Senator Glassey does not contradict that. It simply says that the petition “be not further entertained.” It does not say whether the law does or does not prevent the petition being entertained. It simply asks the Senate to arrive at the conclusion that the petition be dismissed. The second portion of the resolution passed by the Senate on the 25th July was -

That the petition be referred back to the committee for further inquiry and report.

– Against what law has Senator Matheson offended ?

Senator Sir FREDERICK SARGOOD:

– He has not offended against any law. I believe he could have taken his seat in the Senate from the first without rendering himself liable to any penalty. Section 47 of the Constitution provides that-

Until the Parliament otherwise provides -

This Parliament has not provided anything up to the present time - any question respecting the qualification of a senator or of a member of the House of Representatives, or respectinga vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.

The matter must necessarily be determined by the Senate in any mode it thinks fit. Then again Senator Glassey takes up the ground that the committee was authorized only to take the preliminary steps in this matter.

Senator Glassey:

– No ; I said the committee received no instructions whatever.

Senator Sir FREDERICK SARGOOD:

– I took down the words as Senator Glassey uttered them, but I am prepared to accept the statement he has just made. Letme remind him that on the the 6th June the Postmaster-General, by leave of the Senate, moved -

That the President be requested to lay upon the table as early as practicable his warrant for the appointment of a Committee of Elections and Qualifications, consisting of seven members of the Senate, to inquire into and report on all questions respecting the qualification of any member of this House, or respecting a vacancy in this House, and all questions of disputed elections to this House…..

Not “ some “ questions, but “ all “ questions. On the 27th June the Vice-President of the Executive Council moved -

That the petition be referred to the Elections and Qualifications Committee, for inquiry and report…..

Question - That the words proposed to be omitted stand part of the question - put.

The Senate divided -

Ayes……… 15

Noes………6

Majority ………. 9

Question so resolved in the affirmative.

Amendment negatived.

Original question resolved in the affirmative.

page 6861

PAPER

The PRESIDENT laid upon the table

A letter from Mr. J. B. Marsden, architect, with tracing of a design for small desks for the members of the Senate.

page 6861

POST AND TELEGRAPH BILL

In Committee (consideration of message and amendments of House of Representatives resumed from 4th October, vide page 5641).

Clause 27 (Registration of newspapers).

Senator DRAKE:
PostmasterGeneral · Queensland · Protectionist

– There are only two comparatively unimportant points on which the Senate is not in accordance with the other House. When the Bill came back from that House, it was accompanied by a schedule of 104 amendments. We disagreed with seven of those amendments and agreed to a number of others with consequential amendments. The other House has given way in the case of six of the amendments on which we disagreed, and has taken exception to our consequential amendments in only one case. I would not like to say that either of the two points of difference between the Houses is in itself unimportant, but I think as compared with the great importance of the Bill they sink into insignificance. It is exceedingly desirable that the Bill should be passed. The date which is fixed for the Bill to come into operation is the 1st of December, and there is a general feeling throughout Australia that as soon as possible uniform regulations should come into operation. I desire to have regulations ready to be tabled immediately the Bill becomes law. It is also desirable that a Bating Bill should be introduced dealing with newspaper postage and telegraphic rates, and I hope to be able to bring it forward during the present season. For all these reasons, it is very desirable that we should come to an arrangement with the other House, and seeing that it has met us very fairly, it is not unreasonable that we should yield to them in the two matters which are outstanding. There are only two, because the three amendments are substantially the same. The question is whether the word “ seditious” shall remain. The objection which has been taken in the other House to it is that sedition is a thing which it is impossible to define.

Senator Playford:

– -They do not say that it is impossible, but that there is a difficulty in the way.

Senator DRAKE:

– It is a difficulty almost amounting to an impossibility, and their contention has been that it is not desirable that there should be a power to interfere in any way with correspondence on the ground that it contains matter which could come under a word, the definition of which is so difficult, if not impossible. The offence can be dealt with in another way. My sympathy goes always in the direction of maintaining the utmost secrecy with regard to correspondence. My inclination is to preserve everything passing through the POstoffice inviolate as far as that can possibly be done. I should prefer that the PostmasterGeneral should not be charged with the duty of stopping any correspondence on such grounds. I move -

That the committee do not insist upon the amendment inserting the word “seditious” in sub-clause (1) of clause 27.

Senator DAWSON:
QUEENSLAND · ALP

– We are very often against the Government of the country.

Senator FRASER:

Senator HARNEY:

– The answer to that is obvious. The Postmaster-General, in carrying out the provisions of this measure, has to do a great deal at his own risk. If he removed a newspaper from the register on the ground that it contained not merely seditious but offensive or indecent matter, and action were taken with the result that it was proved that it did not contain that matter, then this measure would be no answer by the Postmaster-General for his action. I have nothing further to urge. It certainly does seem to be somewhat extraordinary that this exception should be asked for in the case of seditious language. What is the difference between that class of offence and the other evils that we deal with in the clause, that it should have this exemption ?

Senator DAWSON:
QUEENSLAND · ALP

– It cannot be defined.

Senator HARNEY:

– It is more easy to define than either obscenity or indecency.

The true object of putting all these words in the clause is not that the PostmasterGeneral may become captious in his criticism of newspapers filed on the register, but that the power may rest in his hands, if the occasion arises, to destroy that which, according to public opinion and the laws of the land, ought not be allowed to exist on a record available to the public. I think we should insist upon the word being retained in the Bill.

Senator O’CONNOR:
Vice-President of the Executive Council · New South Wales · Protectionist

– It appears to me that Senator Hanley has not given sufficient weight to the reasons which exist against a provision of this kind, altogether outside the domain of lawyers. It is right that what is seditious is merely a question of degree, that the sedition of today may be the popular parliamentary cry of a few years later. If the honorable and learned member’s definition is to be accepted - and no doubt it is a true and proper definition of what is seditious - then anything which involves an attack upon the existing state of things, and suggests that it should be carried out by unlawful means might be sedition. As Senator Harney knows, the term unlawful is not confined merely to offences of violence. The term may apply to means that are not recognised by the law. If a combination to bring about an alteration of the law, or it might be a strike, or any combination which in the old days was unlawful, no doubt a Judge would have to hold it to be seditious. The difficulty of giving a power of this kind may be described very shortly. The power is to be exercised by the Postmaster-General upon his own initiative and responsibility. He has an arbitrary power, before the matter is decided, of saying whether the newspaper is to be carried through the post or not. The question of sedition will involve in most cases political considerations, and that is the great difference between dealing with this and questions of indecent and obscene matter. In dealing with indecency or obscenity one deals with something upon which the whole community are in a certain sense agreed. The whole community are certainly against what is indecency or obscenity, but in regard to what is seditious the people are not unanimous. There is a party always trying to bring about a certain condition of affairs. It is not a wise thing to place within the power of any administrative officer the light to decide a question of this kind, which may be very largely a political one.

SenatorFraser. - That right has rested with the Postmaster-General since the beginning of Australian history.

Senator O’CONNOR:

– The giving of that power was probably the blind adoption of some words which were contained in the English Postal Acts. Every honorable senator will recognise that freedom of speech has ad vanced very much since the days - some 30 or 40 years ago - when thesewords were recognised as proper. We have to legislate according to the times.

Senator Harney:

– In some respects Shakespeare would be indecent to-day.

Senator O’CONNOR:

– And seditious also in some respects. Is it wise to place this power in the hands of a Minister controlled by the decision of a Judge of the High Court? If the question came before the High Court, the Judge would have to decide simply whether, according to the definition laid down by the law, the matter complained of was seditious or not, and he would be bound to follow such a statement of the law as that which Senator Harney read. That is to say, we might have a question of whether or not a newspaper should be carried through the Post-office determined by the Judge on a statement of the law pronounced by some eminent Judge 50 years ago. This discretion of the Minister is to be controlled by the cast-iron rule, which must be administered by the Judge who has to deal with the matter under this measure. The question is whether, considering all the powers that have been given already to the PostmasterGeneral, considering the other remedies still left for dealing with seditious matter, it is wise to place a power in the hands of the Postmaster-General, in the exercise of which there might be a great deal of doubt and difficulty. I think it must be evident that it is an exceedingly arguable question whether this power should be given. It certainly is against all tendencies of modern thought and freedom of speech to give such a power. We have to remember that this Bill contains many matters with which the other place disagreed in the first instance. We have come almost to a conclusion, and if there is a fair reason whywe should give way in regard to any of these amendments, then for the sake of completing legislation we should give way on this particular point.

Senator PULSFORD (New South

Wales). - It is somewhat remarkable that the Senate should now be listening to Senator O’Connor, asking it to omit from the Bill a word which was inserted by the Government, and the inclusion of which he supported on a previous occasion. I should like the Senate to remember that the remarks we have had from Senator O’Connor amount to very little more than special pleading ; he has been showing us what we know : that there are questions of sedition which may be difficult at times to define. But honorable senators are not likely to imagine that the Postmaster-General would for a moment think of removing from the register of newspapers, or of stopping from transmission through the post, any newspaper because of the fact that it contained an article simply of a debatable character. The clause is inserted in order that the Potmaster-General may have power where liberty - which is precious to us all - has degenerated into licence, and where evil is likely to follow. In these circumstances I hope that the Senate will retain the words originally inserted in the clause by the Government and always supported by the Senate.

Senator McGREGOR:
South Australia

– I wish I were a lawyer, because lawyers can argue always in so many different directions. It does not matter whether they want to prove that black is white or white is black ; they have always got arguments to support their case. I should like honorable senators to look at the position in which Senator Harney has placed himself. Not many months have elapsed since that honorable and learned senator was using all his oratory and eloquence in an effort to convince us that the Postal Bill should not be made an instrument to carry out the law. That was in connexion with another matter that was discussed at very great length. To-day, because something in connexion with the political morals of the people cropped up, he takes the opposite direction. One day he is flying with the wings of an eagle, and the next with the wings of a dove. Senator Pulsford was continually croaking that we were getting away from the condition of things that existed 50 years ago. A couple of years ago, if any individual had expressed certain opinions in connexion with the action of the British Government in South Africa, people would have called for his scalp, and Senator

Fraser would certainly have said that he was seditious. Do not honorable senators know that in some of the States civil servants have actually been discharged for expressing an honest opinion in a certain direction?

Senator Fraser:

– I would discharge any man who was against the British flag. I would string him up mast high.

Senator McGREGOR:

– There have been a great many patriots in times past–

– If the honorable senator had lived in the days of Cromwell, would he have hanged him ?

SenatorFraser. - We need not go back that far.

Senator McGREGOR:

– If the honorable senator had lived in the days of King William, I suppose he would have hanged him. They were all seditious in their turn, but they came out on top, and of course they were great men. That is the reason why I think we should not further delay an important measure of this description by going into the particular phases of loyalty or disloyalty which may be involved in such a term as seditious. It depends upon the administrationof the department at the time, and upon the administration of justice afterwards. One honorable senator sitting as a judge in the case of a certain expression might declare it seditious, while another might declare that it was not. The history of Great Britain has furnished hundreds of examples where, even in connexion with the administration of the law, party prejudice has led people astray. I hope that, in the interests of the country, nothing will occur to retard the passage of this Bill. We have ample opportunity in the Commonwealth or in the different States to pass laws to deal with those who act against the interests of their country, and we should not introduce our party inclinations or feelings in the discussion of this measure. I hope the Bill will be carried in the way in which it left the House of Representatives, and that it will become law as expeditiously as possible.

Senator Major GOULD:
New South Wales

– This is by no means a new question. Wo are aware that certain honorable senators were opposed to the inclusion of the words “ seditious “ and “ blasphemous “ in the Bill, but the Senate determined to insert those’ particular words, and at the instance of Ministers. Clause 27 was debated at considerable length, and amendments were made in it, but the words “ seditious “ and “ blasphemous “ were left in by the Senate. The other House struck those words out, and when the Senate was called upon to consider the matter again, we met the other House by omitting the word “blasphemous,” and retaining the word “ seditious.” Now the Senate is asked to say that the matter is so little worthy of consideration that it is prepared to back down at the request of members of the House of Representatives.

Senator Drake:

– Look at the number of matters in which they gave way to us.

Senator Major GOULD:

– I admit that they did give way in certain matters, but not in matters upon which strong opinions were expressed. It has been said that “ seditious “ is hard of definition. We have heard a definition of it, and honorable senators must bear in mind that the matter will be entirely in the discretion of the PostmasterGeneral. He will not be compelled, because of a legal definition, to say that a paper shall not be permitted to go through the post-office. We may assume that the discretion will be exercised wisely, and that it will not be merely for a technicality that a newspaper will be interfered with. Admitting, for the sake of argument, that the

Postmaster-General would not usehis discretion wisely, how long would honorable senators keep a Postmaster-General who grossly abused his position, and depended upon pure technicalities ? I ask, is it not desirable that the Government should be able to exercise this power in order to prevent what might be really seditious, and might be attended with serious consequences to the well-being of the Commonwealth 1 The Government, through the Attorney-General, advised the House of Representatives not to insist upon taking out this word “ seditious, “ and now they ask us not to insist on its retention. I hope that honorable senators will determine this matter according to their own good judgment and common sense. If they do so I believe they will insist upon retaining this word, and adhering to their previous decision.

Question - That the committee do not insist on the amendment - put. The committee divided -

Ayes … ……14

Noes … … … 14

Question so resolved in the negative.

Senator DRAKE:
Protectionist

– The next amendment of the Senate to which the House of Representatives has disagreed requires a little explanation. It will be noticed that two amendments in the clause were rendered necessary by the omission of the words “seditious blasphemous,” in the other House. The Senate proposed to re-insert the word “ seditious,” but in order to make the sub-clause read grammatically, it became necessary to insert the words “ if such issue contains,” before that word. The two amendments hang together. If our amendment to which the other House objects is insisted upon, then of course we insist upon the consequential and grammatical amendment. I feel myself obliged to ask the committee not to insist on the amendments. I regret the result of the division on the lost amendment, because I think it is calculated to hamper the passage of the Bill. Perhaps I should have explained before, that the Bill has made three passages backwards and forwards, and that according to our standing orders our power of dealing with the matter by means of messages will be exhausted on this occasion. If we insist upon disagreeing with the other House, it will be necessary to ask for a conference. I think that the importance of getting the Bill into operation is so very great that it far transcends–

Senator Major Gould:

– Any matter of principle?

Senator DRAKE:

– No, not any matter of principle. The honorable and learned senator was not present when I pointed out that the other House has made a very great concession in regard to very important amendments. In seven instances we disagreed with their very important amendments, and they have given way to us, and insisted practically on only one amendment,

Senator Major Gould:

– There is one very memorable case in which we assented toone of their amendments, although we originally held a very strong opinion about the employment of black labour on mail boats.

Senator DRAKE:

– That was one out of 104 amendments, which the other House mode in the Bill. Seeing that there are only two points of difference between the Houses, we might very well have given away. I do not think it is a concession of principle.

Senator Harney:

– It is a trifling matter.

Senator DRAKE:

– I would not speak of either matter as being unimportant, but in comparison with uniform regulations, and the Rating Bill, these are matters of comparatively slight importance. I move -

That the committee do not insist on the amendments in sub-clause (3) of clause 27, inserting the word “ seditious,” and agree to the amendment transferring to stand before “seditious,” the words “if suchissue contains.”

Senator Major Gould:

– I ask, sir, whether it is in order for Senator Drake to go behind the decision of the committee on these particular words?

The CHAIRMAN:

– Sub-clause (1), as now amended, provides that -

The Postmaster-General may remove from the register any publication a posted copy of which containsseditious, indecent, or obscene matter.

– Licence.

Senator O’CONNOR:

– Licence may be an abusive epithet, but that does not help us to settle the question. What one person might call licence, another would call liberty. I am speaking of the substance of the matter - I do not care what we call it - and the tendency is to give more perfect freedom of speech. Where freedom of speech is such that it obviously outrages the systemof government itself, there are abundant opportunities for bringing the culprit to justice through the ordinary process of the law. This proposal does not take away the right to prosecute for seditious libel, nor to deal with an offender in any way which the criminal law will permit. The person so charged may be brought before the court, and have his case tried in a proper way, with a jury to decide whether he has been guilty of sedition or not. This puts the power of appeal ultimately, however, in the hands of a Judge, who has to decide as a naked question of law whether the particular publication is seditious or not.

Senator Harney:

– At the risk of the Government. If the Government take action upon an article which is not seditious they are not justified by this Bill in doing so.

Senator O’CONNOR:

– But we must have a definition of what is seditious. If there was an appeal to a Judge, the only question which he could decide would be whether the matter complained of was seditious within the meaning of the law. Senator Harney frankly admitted a little while ago that the law as to what is sedition has been laid down consistently. If the Judge decided that the matter brought before him was seditious, there would be no remedy whatever against the stopping of the publication, because the Postal Bill goes on to say that the decision of the Judge shall be final. I do not care about quoting law books, as a general rule, but the whole matter turns upon the question of what is seditious, in the sense of the way in which a Judge would be called upon to determine it. I should like to quote now from a great authority - Stephen’s Digest qf the Criminal Law. It gives a definition of what is a seditious intention, and it is a definition which would be acted upon by any Judge who was called upon to decide the matter -

A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of Her Majesty, her heirs or successors, or the Government and Constitution of the United Kingdom, asb)’ law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to raise discontent Or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.

An intention to show that Her Majesty has teen misled or mistaken in her measures, or to point out errors or defects in the Government or Constitution as by law established, with a view to their reformation, or to excite Her Majesty’s subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, in order to their removal, matters which are producing, or have a tendency to produce, feelings of hatred and illwill between classes of Her Majesty’s subjects, is not a seditious intention.

– I may be dull of comprehension, but I see a great deal of difference in the position the Senate is in now and that in which it was previously. Previously the penalty for what was interpreted as sedition by Heaven knows who - for no one can tell who the Postmaster-General or his deputy might be - was the removal of the publication from the register. The object of a newspaper being registered at all was that it might be carried at newspaper rates. Is there not a vast difference that, when a paper is removed from the register under the amendment we have carried here, yet it may be carried under this amendment at a higher postal rate ? That is where the difference comes in. I am not arguing in favour of any difference, but on the principle that it is an evil thing to put it into the power of any one or two individuals to determine what is or is not sedition. No one knows better than Senator Harney that it is very nearly time that this combination, to which he has referred so repeatedly, should be done away with altogether. Not only the country to which the honorable and learned senator belongs, but the country also to which I belong, has had many martyrs to the term we are discussing to-night, and yet to-day they are considered to be patriots. I am getting a little light, however. I was getting it when this party reference was made by Senator Harney. I know how Senators Harney andClemons and myself fought for the exclusion of the clause dealing with Tattersall’s sweeps. Is this a back-door attempt to destroy the Bill that is going against our inclinations in that direction? Is this the result of the fine weather and the win the public had on Cup Day at Flemington? I would like to ask Senator Sargood and other honorable senators who were so strenuous in their resistance to Tattersall’s sweeps, and so economical in the direction of saving the postage of Victoria, whether they are going to be parties to destroy the Post and Telegraph Bill simply because it will prolong the evil they objected to before ? Is it for the purpose of defeating the intentions of the Government in that direction that there is such opposition to the Bill now ? If so, although I fought honestly and fairly on the former occasion, I am not going to take part in a fight of this description just now. Something was said by Senator Pearce in connexion with the consideration that should be given to majorities or minorities in the Senate. Senator Pearce never for a moment intended to thrown any reflection on the Constitution when he referred to the memorable fourteen who voted one way or the other. Senator Harney would like to make it appear that the fourteen who, by the Constitution, got the advantage of the position, should receive more consideration. I do not deny that they should, so far as the Constitution would give it to them, but are the other fourteen not to be considered if their attendance in the Senate is more earnest, and more regular, than that of the fourteen who are so earnest in their advocacy of the Constitution when it suits them. I hope the question will be reasoned fairly, and that party considerations of all kinds will be kept out of the Senate. I hope we shall consider the question from the point of view of having the Post and Telegraph Bill passed as speedily as possible that the people of the Commonwealth may get the advantage of it. While the people of the Commonwealth have power by their laws to deal with those who are seditious or blasphemous or in any way violate the statutes, I do not think the importance attaches to this amendment that Senator Harney would have us believe. I hope the amendment will be agreed to, and that the previous decision will be reversed.

– Owing tothe broad meaning which might be placed* upon the word by different persons, according to their temper of mind at the time, itwas thought advisable at this period, when we boast of freedom of speech, that it should not be retained. I do not think weshould gain anything by continuing thestruggle any longer. A time may comewhen we shall have to insist uponcertain things in the interest and forthe benefit of the States we representAs this is not particularly a State matter,, and as it is essential in the interest of the Postal department that this Bill should become law, it would be extremely unwise towreck the measure by insisting upon, the amendment. If we are. determinedto be stubborn without any particularcause, another place will be inclined to be stubborn upon other questions ; andi how can we justify our votes before thepeople by maintaining a sort of pigheadedness which has no reason to be urged in; favour of it?

Senator DOBSON:
Tasmania

– When in the last division I voted against the

Government upon this matter, I had not thoroughly considered the position in which the Bill stood. We have no standing orders of our own, and in consequence of the complicated and tedious procedure which has to be gone through if there is to be a conference, it will not be wise to reject the .amendment made by the House of Representatives. If there is a conference it will practically be a dumb conference. We shall have to appoint managers, and a committee to draw up reasons, and they will have to come away without being able to discuss the subject. Then another place may also move for a conference, which will also be a dumb conference ; and not until then can a free conference be held. The principle contained in the word “seditious” is an important one, but as a matter of practical results it is a small j>oint, because the PostmasterGeneral never seems to be inclined to put such powers into operation. Is it worth our while, therefore, to embarrass the Government and run the risk of the loss of the Bill, by insisting upon the retention of the word “ seditious “ ? I shall feel inclined to vote on the ground of pure expediency, and to help the Government, which I think wo ought to do in a matter of this kind. I must say, however, that I have been greatly disappointed all through the discussion because when honorable senators have been determined, time after time, to retain the terms of legislation which in practice have been found to be desirable, there has been a strong inclination on the part of other honorable senators in the opposite direction. Personally I am absolutely in favour of the retention of the words, “blasphemous, sediditious, indecent, and libellous.” So far from thinking that the time has come when we ought to have free speech, free songs, and free everything else of a blasphemous and indecent description, I think that we ought to go in the other direction. I know that newspapers are published which frequently contain matter that is positively seditious and blasphemous. These papers are sent through the post. What is more, there are novels lying on the drawing-room tables of some of our good people in Melbourne - and for the matter of that, in Hobart also - which seem to have been written with the one idea of being indecent, and really are indecent.

Senator Clemons:

– Yet the honorable and learned senator is voting for the striking out of this wor! on the ground of expediency !

Senator DOBSON:

– It is not so many hours since Senator Clemons determined tohold his tongue on the ground of expediency. I intend, however, to have the courage of my opinions. I should like to givea little illustration of what I think might be called seditious. I was residing in Sydney for 48 hours some few Sundays ago. Finding there were two Sunday newspapers I bought one. I happened to buy Truth. I had not looked at it for many minutes, when I saw some doggerel rhymes about Lord Kitchener and the South African warThe proprietor of that journal, Mr. Norton - a gentleman whom I do not know by sight - had inserted this doggerel under theinitials of the Postmaster-General, “ J.G.D.” These lines positively called Lord Kitchener a butcher, and stated that he was absolutelygloating over the position of the women and children who were dying of measles in therefugee camps. There is one line which alludes to the fact that this “ butcher,” Lord Kitchener, is congratulating himself upon how well he appears to have succeeded1, in practically bringing about, wilfully and deliberately, the death of the people by measles.

Senator Clemons:

– That is the sort of paper Senator Dobson would allow to gothrough the post.

Senator DOBSON:

In House :

Senator BEST:
VICTORIA

– I beg to report that Senator Pulsford was proceeding to read from Hansard the report of a speech by another senator in connexion with the Bill immediately before the committee. I ruled in the terms of Standing Order 133, that he was not strictly in order in doing so. The rule is -

No member shall read from a printed newspaper or book the report of any speech made in Parliament during the same session.

Senator Gould has taken exception to my ruling.

The PRESIDENT:

– I understand that it is admitted that the honorable senator was about to read an extract from a speech made by another senator on the same Bill during the present session. There are two standing orders dealing with the subject. Standing Order 132, says -

No member shall allude to any debate of the same session, upon a question or Bill not being then under discussion, except by the indulgence of the House for personal explanations.

According to the admission, as I understand it, this was more than an allusion, and was a proposal to read an extract from a speech upon the Bill now under discussion, and

Standing Order 132 therefore does not prevent the proposed reading as the Bill is “ now under discussion.” We come then to Standing Order 133-

No member shall read from a printed newspaper or book the report of any speech made in Parliament during the same session.

I do not think that refers to Hansard. One of the main objects of Hansard is that members of Parliament should have a proper record of the speeches delivered by other members during thesession, and it has always been ruled, not only in the Imperial Parliament, but also in the Parliament from which these standing orders have been adopted, that all discussions upon a Bill are part of the same discussion. I am therefore of opinion that the senator who proposed to read an extract from Hansard was strictly in order, and that he ought to be permitted to do so.

In committee :

Senator PULSFORD:
New South Wales

– On the 10th October, speaking upon tin’s very subject, I find that Senator Downer said -

In my opinion, we should adhere to our decision so far as the word “seditious” is concerned. Sedition is a term which is very well known, and there is no possibility of misunderstanding it. In this respect I think the alteration made by the House of Representatives is a distinct weakening of the protection we give to the community. further on, the same honorable senator said -

Sedition is a well-known term, and it means defiance of good order and Government, and is very much the same as conspiracy.

Ayes .. … … 13

Noes … … … 11

Majority ….: … 2

Question so resolved in the affirmative.

Senator DRAKE:
Protectionist

– The next amendment is practically the same as the last, and proposes the omission of the word “ seditious “ in si subsequent part of the clause. It is not necessary, I think, to say anything in regard to it, seeing that the reasons urged on the last amendment apply with equal force to this. I move -

That the committee do not insist on the amendment inserting the word “seditious” in subclause (4) of clause 27.

Senator Major GOULD:
New South Wales

– I do not propose to create any debate that can be avoided upon this question. We have already had a division, and I have no reason to assume that there would be any chance through the absence of two or three senators or the presence of two or three others to again jump Jim Crow, and reverse the last decision arrived at. I think we may recognise the victory the Government have gained in the last division, and make them a present so far as debate upon this amendment is concerned. We may, however, have another division to show that there are eleven or twelve men who are consistent, and who stick to their principles.

Question - That the committee do not insist on the amendment - put. The committee divided -

Ayes . . . Noes …

Majority

12 11

Question so resolved in the affirmative-..

Senator Higgs:

– I should like, on a point; of order, to ask whether Senator Harney is entitled to have his vote counted, when it appears that he has paired with another honorable senator.

The CHAIRMAN:

– I cannot take any notice of pairs at all.

Senator Harney:

– As a matter of personal explanation may I be allowed tosay that I had agreed to pair with Senator Dobson, and had written my name in the pair book, but before the vote came off Senator Dobson entered the chamber and ~E considered the pair off. Honorable senators’ will recollect that Senator Dobson and myself voted in the last division.

Clause 3 (Interpretation of terms).

Senator DRAKE:
Protectionist

– Amendment No. 6 is of a somewhat different character from the others. We disagreed with seven important amendments of the other House, but in this one case it will not give way. It was purely from sentimental reasons that I objected to the amendment. I did not like to see the clause in the Bill, but I can see perfectly clearly that it will not do any harm. I understand that the other House insists upon the provision, because it is considered advisable that in- the case of those States which have legislated on the subject there should be no chance for any confusion as to the correct definition of the words, “indecent or obscene matter.” Whatever we may have said in regard to other amendments, no one can contend that there is anything vital in this amendment.

Senator Harney:

– It is unnecessary.

Senator DRAKE:

– If the other House thinks that in the interests of certain States it is desirable to have the clause in order to prevent confusion or ambiguity, we may yield to the argument without loss of honour. It is so exceedingly desirable that the Bill should become law at the earliest possible moment that I do not think its progress should be hampered by a consideration of this character. I move -

That the committee do not further disagree to the amendment of the House of Representatives in clause 3, denning “indecent or obscene matter.”

Senator Major GOULD:
New South Wales

– When this amendment came before the committee it was disagreed to on the voices and without debate, no doubt on the ground that honorable senators thought that the Bill had better not be disfigured by a provision of this character. I recognise that Senator Drake is assenting to the amendment on the ground that the other House considers it necessary, and in some of the other States I am told it has been held necessary to have an interpretation of what is indecent or obscene from the postal stand-point.

Senator Sir FREDERICK SARGOOD:
VICTORIA · FT

– That clause was passed in a special Act.

Senator Major GOULD:

– Under these circumstances, and as I do not regard it as a matter of great principle, it is not intended to oppose the motion.

Motion agreed to.

Resolutions reported.

Motion (by Senator Drake) proposed -

That the report, as far as regards amendment No. 16, be referred back to the committee for reconsideration.

Senator Pulsford:

– I desire to ask you, air, whether the report can be referred back without due notice being given?

The PRESIDENT:

– The standing order is as follows : -

The resolutions reported from a committee may be agreed to or disagreed to by the House, or agreed to with amendments, recommitted to the committee, or the further consideration thereof postponed.

Senator PULSFORD:
New South Wales

– It must be perfectly obvious why I raised the point of order. Under the circumstances of the division which took place to-day, it ought to be the desire of every honorable senator to get a decision about which no doubt can arise. It must be obvious that when snatch divisions have been taken to-night, doubt must arise as to whether the Senate was fairly represented or not. Certain honorable senators left the Chamber at the dinner hour without any knowledge of the matter which had once been voted upon being likely to come up again. If the Government desire to have Any reputation for what is fair and straight they will consent to take this reference to the committee to-morrow afternoon. I ask Senator O’Connor whether he will consent to that course?

Senator O’CONNOR:
Vice-President of the Executive Council · New South Wales · Protectionist

– We have spent a great deal of time in discussing this question. We have arrived at a stage at which, if this motion is carried, asl believe it will be, wre shall have practically finished with the Bill. Why should we postpone this matter until to-morrow ? It has been said by Senator Pulsford that there has been a snatch division. There have been three divisions to-night : which was the snatch division ?

Senator Pulsford:

– The one i» the afternoon.

Senator O’CONNOR:

– No doubt the honorable senator would like to have a postponement in order to get a division to suit him.

Senator Pulsford:

– One in which everyone could take part.

Senator O’CONNOR:

– AVe shall not consent to anything of the sort, and we hope that the Senate will lose no time in coming to a decision and thereby bring to a close the laborious and very useful work which has occupied its attention so long.

Senator Major GOULD (New South Wales). - It is all very well from the Government’s point of view to say that they desire, for the purpose of expedition, to get rid of the matter to-night, but, if they do, it will lie open to honorable senators to cast this reflection upon them - that finding twelve to eleven voters, with the exception of pairs, they think that if notice of this proceeding had been given the decision they desire to see reversed would noc be altered. Perhaps from the stand-point of the Government these tactics may be perfectly legitimate, but I ask whether it is a fair position to take up in regard to honorable senators? When notice appears on the business paper that certain work is to be taken in hand the Government cannot be expected to postpone its consideration to suit the convenience of honorable senators whose business does not permit them to be present. But when it is proposed to take up practically new work, to re-open a question which has been decided, without honorable senators having had previous notice it is treating them very unfairly. It may act well one day from the Government’s point of view, but on another day it may act to their detriment because it will always be competent for any honorable senator, when the Government have obtained a victory, and their opponents find that certain of their supporters have gone away to quietly jump their claim and go back into committee, and by means of a snatch vote reverse a decision which had been given after due deliberation. I ask whether it would not be much more honest for the Government to say, “We do not want to carry our views by means of a snatch division. We wish to get the good sense of the committee on the question. A decision was given this afternoon which we want you to reverse, therefore we ask you to come here to-morrow and to give your voice on the question.” It is fair and reasonable, even where the division was so close, for the Government not to snatch a vote, but to give honorable senators every opportunity to state what they think is best and to accept the decision of the majority. It is only fair and reasonable that we should not go on with the matter at the present time. The Senate is asked deliberately to go behind its decision, and to say that it made a mistake in the afternoon. The Government know that a majority of honorable senators are not in favour of the course whichis being taken, but because the standing order gives them an opportunity of taking a snatch di vision, they are going to do so. If the Government will agree to take a formal division on the question to-morrow I am satisfied that honorable senators will be content. Will they promise not to take a division until honorable senators have had an opportunity to attend to-morrow ?

Senator O’Connor:

– Certainly not.

Senator Major GOULD:

– The honorable and learned senator is determined, because he thinks he will succeed in getting this business completed, so that there may be no chance of getting a vote from a majority of the Senate. If he believed that he had the support of a majority of the Senate, he would agree to my suggestion. But the Government see that possibly tomorrow they will not only lose the opportunity of making the change they wish to make, but that the Senate may feel inclined to change what has been done to-night. That is not the way to get a deliberate expression of opinion. It is a double-edged sword which will be used against the Government. They may rest assured that when the opportunity serves it will be used against them.

It may be party warfare, but it is distinctly unfair to those honorable senators who are absent, because they did not think there was a possibility of this question coming up for reconsideration to-night. The Government are determined, if possible, to go back upon what the Senate has done. Of course they will say that the opinion of a smaller number is much better than the opinion of a larger number.

Senator Drake:

– The numbers were equal in the division.

Senator Major GOULD:

– Would it not be much better to get a few more instead of a few less to determine the question ? It is a distinct attempt to catch, by means of a snatch vote, something which Ministers believe they cannot catch by means of a deliberate vote. It is distinctly unfair to honorable senators It is, however, a two-edged sword that may strike back upon the Government; and while their policy may be successful now, it will neither redound to their credit, nor to the credit of honorable senators who are so far willing to surrender their principles as to give way on this matter.

Senator Lt Col NEILD:
New South. Wales

– I must express my extreme surprise that the Vice-President of the Executive Council should take advantage of what I regard as an unfortunate standing order amongst those under which we are temporarily working - a standing order which, I venture to say, will not be included amongst the permanent rules of the Senate. This afternoon the committee came to a. conclusion, but now an attempt is being; made to reverse the decision in the same sitting, and without the knowledge of those honorable senators who have given their votes, and have since been occupied with other matters which have caused their absence from the chamber. Senator Gould has correctly said that if this course is to be pursued, it will be a two-edged sword, which will undoubtedly be used at some time or other to the disadvantage of the Government.

Senator O’Connor:

– The honorable senator’s sword is always ready !

Senator Lt Col NEILD:

– My honorable and learned friend is perfectly accurate, but this is no joking matter. Some time ago the committee arrived at a deliberate conclusion. At the instance of the other branch of the Legislature we were asked to reconsider our decision. We did so, and resolved that our decision should stand. Now, without notice, the Postmaster-General asks us to reverse that decision which we have twice affirmed. If the Government succeed in obtaining a reversal of the decision under these circumstances, it will be a most unfortunate and undesirable interference with the ordinary course of business as transacted by British Legislatures. If the South Australian Parliament ever acted under such a provision as this I regard it as a most dangerous one, as most undesirable, and as absolutely at variance with the practice of the House of Commons, and of all other Houses of Legislature throughout the wide dominions of Great Britain.

Senator Stewart:

– Still, we may improve upon the practice of the House of Commons.

Senator Lt Col NEILD:

– Perhaps we are trying to improve backwards, but I do not think that reversing a decision previously arrived at in the same evening is an improvement. It is the reverse. It is a pernicious procedure, and I venture to promise the honorable and learned senator who is responsible for it that his chickens will come home to roost some day, and that he will then find that they are very much in the way.

Motion (by Senator Clemons) negatived -

That the Senate do now adjourn.

Motion (by Senator Pulsford) proposed -

That the debate be now adjourned.

Question put. The Senate divided -

Ayes . . … … 9

Noes … … …16

Majority … … 7

Question resolved in the negative.

Original question agreed to.

In Committee :

Senator DRAKE:
Protectionist

– I move -

That the committee do not insist on the amendment inserting the word “seditious “in sub-clause

1 ) of clause 27.

– Honorable senators present heard sufficient of the debate, and if the decision is adjourned until to-morrow we shall have a full House, and there will be a larger majority against the Government proposals. Surely the Government is not going to start the Commonwealth with a reputation for getting the Senate to change its votes every two or three hours ? After the division taken at half-past 6 o’clock I leftthe Senate with the deliberate intention of not returning, because I was engaged elsewhere. I had no conception that a vote taken at half-post 6 o’clock would be reversed again at half-past 10 o’clock by a smaller number of senators. That is unheard-of, and it is notcommendable. The public will not like it. The public like honest votes to be taken, and decisions come to without any snatch victory. It will not redound to the credit of any party, whether Opposition or Government supporters, to maintain their position in that way. I hope that even now the Government will see it to be their high duty to postpone this question till to-morrow. If they can then secure a majority, I shall not ask them to reverse that vote, and I shall even support them in such a case if a snatch vote is attempted to be secured against them. As we have already arrived at an honest decision on the question, it is utterly unconstitutional and unusual to force this question to another division at this late hour.

Senator HIGGS:
Queensland

– I wish to know whether I have not understood Senator Clemons. When the Postmaster-General proposed the second deletion of the word “ seditious,” SenatorClemons invited an expression of opinion from the Vice-President of the Executive Council as to what the Government proposed to do in order to make the Bill consistent. I think the honorable and learned senator said that if the Govern ment succeeded in getting a majority in connexion with the latter amendments, he would assist them in making the Bill consistent. In that case, I should say that Senator Clemons now proposes to vote with the Government.

Senator Clemons:

– By way of personal explanation, I wish to say that I shall certainly adhere to my expressed intention to obtain consistency. The largest division we have had during all the divisions that have taken place upon these amendments was that in which the side on which I sit was represented by fourteen. So far, in all these later divisions, the Government have not been supported by fourteen senators.

Question - That the committee do not insist on the amendment - put. The committee divided -

Ayes…………12

Noes………… 11

Majority … … … 1

Question so resolved in the affirmative.

Resolution reported ; report of committee adopted.

page 6885

IMMIGRATION RESTRICTION BILL

Second Reading

Senator O’CONNOR:
New South Wales · Protectionist

– Vice-President of the Executive Council. I move -

That order of the day No. 2 be an order of the day for Wednesday next.

I fix that date for the consideration of the measure, and I hope that in the meantime good progress will be made with the Public Service Bill, which must be gone on with.

Senator CLEMONS:
Tasmania

– It would be for the convenience of every honorable senator if the Vice-President of the Executive Council would give us an assurance that no matter what progress is made in the meantime with the Public Service Bill, next Wednesday will be- definitely fixed for beginning the consideration of the Immigration Restriction. Bill. *

Senator O’Connor:

– I thought I had conveyed that clearly. I fixed the date for the consideration of the Bill, that we might definitely be able to go on with it then.

Senator Major GOULD:
Now South Wales

– With Senator Clemons, I was doubtful as to whether the taking of this Bill, as proposed by the Government on Wednesday next, would not be contingent upon certain progress being made with the Public . Service Bill. I understand now that no matter what progress is made with the Public Service Bill, tho Immigration Restriction Bill will be dealt with on Wednesday next. Honorable senators, seeing the position which the Immigration Restriction Bill has occupied on the business paper on several occasions, have thought it was the intention of the Government to go on with that Bill before the Public Service BUI, more especially in view of the fact that it had been represented that it was a measure of very great importance, which they were determined to push on with as speedily as possible. I think that most honorable senators would have been prepared to go on with the Bill to-morrow, if the Government had been ready to proceed. At any rate, I hope that the order of the day is being postponed till Wednesday next with the intention of proceeding with the second reading.

Question resolved in the affirmative.

Senate adjourned at 10.41 p.m.

Cite as: Australia, Senate, Debates, 6 November 1901, viewed 22 October 2017, <http://historichansard.net/senate/1901/19011106_senate_1_5/>.

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Senate 6 November 1901

PETITIONS

PAPERS

ASSENT TO BILLS

ELECTIONS AND QUALIFICATIONS COMMITTEE

The PRESIDENT:

Senator GLASSEY:Queensland

Senator Sir J H Symon:

Senator Sir John Downer:

Senator GLASSEY:

The PRESIDENT:

Senator GLASSEY:

Senator Sir Frederick Sargood:

Senator GLASSEY:

Senator Sir Frederick Sargood:

Senator GLASSEY:

Senator Sir JOHN DOWNER:SouthAustralia

Senator Playford:

Senator Sir JOHN DOWNER:

Senator Clemons:

Senator Sir JOHN DOWNER:

Senator Macfarlane:

Senator Sir JOHN DOWNER:

Senator Clemons:

Senator Sir JOHN DOWNER:

Senator Clemons:

Senator Sir JOHN DOWNER:

Senator Clemons:

Senator Sir JOHN DOWNER:

Senator Clemons:

Senator Sir JOHN DOWNER:

Senator PLAYFORD:South Australia

Senator O’Connor:

Senator PLAYFORD:

Senator O’CONNOR:“Vice-President of the Executive Council · New South Wales · Protectionist

Senator Clemons:

Senator O’CONNOR:

Senator Clemons:

Senator O’CONNOR:

Senator Clemons:

Senator O’CONNOR:

The PRESIDENT:

Senator O’CONNOR:

Senator Fraser:

Senator O’CONNOR:

Senator Fraser:

Senator O’CONNOR:

Senator Fraser:

Senator O’CONNOR:

Senator Clemons:

Senator O’CONNOR:

Senator Clemons:

Senator O’CONNOR:

Senator De Largie:

The PRESIDENT:

Senator O’CONNOR:

Senator Sirjohn Downer:

Senator O’CONNOR:

Senator McGregor:

Senator O’CONNOR:

Senator McGregor:

Senator O’CONNOR:

Senator McGregor:

Senator O’CONNOR:

Senator Fraser:

Senator O’CONNOR:

Senator Fraser:

Senator O’CONNOR:

Senator Glassey:

Senator O’CONNOR:

Senator Fraser:

Senator O’CONNOR:

Senator Glassey:

Senator O’CONNOR:

Senator Glassey:

Senator O’CONNOR:

Senator Glassey:

Senator O’CONNOR:

Senator DE LARGIE:Western Australia

Senator O’Connor:

Senate
6 November 1901

Senator GLASSEY:
Queensland

Senator Sir JOHN DOWNER:
SouthAustralia

Senator PLAYFORD:
South Australia

Senator O’CONNOR:
“Vice-President of the Executive Council · New South Wales · Protectionist

Senator DE LARGIE:
Western Australia

Senator DOBSON:
Tasmania

Senator Sir FREDERICK SARGOOD:
Victoria

Senator FRASER:
Victoria

Senator O’KEEFE:
Tasmania

Senator BARRETT:
Victoria