2nd Parliament · 2nd Session
The President took the chair at2.30 p.m., and read prayers.
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Assent reported.
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Bill received from the House of Repre sentatives, and (on motion by Senator Playford) read a first time.
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– I have to lay upon the table a report from the Principal Parliamentary Reporter, which I promised toobtain in consequence of a request made by Senator Pulsford, and which I ask the Clerk to read.
Report read by the Clerk, as follows : -
Parliamentary Reporting Staff,
Melbourne, 29th September, 1905.
In attention to the request of the Honorable the President for information as to the practicability of complying with the requests of Senators for an earlier supply of the reports of Friday’s Debates in the Senate, I have the honour to state that similar requests by Members of the House of Representatives have been met by the issue early on Wednesday morning of corrected “proofs” upon galley slips. Many Members of both Houses strongly object to any circulation, however limited, of proofs unrevised either by themselves or by the Reporting Staff. It would therefore be impracticable to arrange for their issue before Wednesday. Galley slips could then be regularly supplied to any Senator requiring them.
Arrangements for a bi-weekly issue of Hansard were considered during the first session of the first Parliament, but were abandoned as involving too large an addition to the cost of distribution.
Principal Parliamentary Reporter.
The Honorable the President.
– The Government Printer wishes me to state that if many proofs are required by honorable senators, it would be better that sheets as they are bound up in Hansard, and not galley-slips, should be supplied; but that, if that were done, it would involve some hours’ delay in the supply of the corrected report.
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asked the Minister representing the Postmaster-General, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the Minister representing the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follow : -
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asked the Minister representing the Minister of External Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
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asked the Minister representing the Minister of External Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
It is not considered necessary to make representations in respect to a matter entirely within the control of the State.
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asked the Minister representing the Minister of External Affairs, upon notice -
Will the Minister make inquiries -
– The answers to the honorable senator’s questions are as follow : -
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asked the Minister representing the Minister of Trade and Customs, upon notice -
What is the aggregate number of the whole of the Customs decisions issued under the Tariff Act since its imposition in 1901 ?
– The answer to the honorable senators question is as fol- lows : -
The Tariff Guide and Supplements contain about 10,000 rulings as to duty. The greater number of these, however, are not decisions in the ordinary sense, being merely anticipatory statements made, for the information of importers, of the view taken by the Department as to the duty payable under the 16 divisions and 139 headings and 427 sub-headings of the Tariff.
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asked the Minister representing the Minister of External Affairs, upon notice -
In view of a statement made by a Mr. E. T. Jellicoe, of New Zealand, and published in the Morning Herald (Western Australia), 19th September, 1905, bearing on the industrial conditions of the Commonwealth, as follows : - “There are,” he said, “17,000 unemployed registered at the Government Labour Bureaus of five cities, and there is no sign of improvement. There has been serious loss of population for the last twelve months, and in Victoria, South Australia, and Tasmania the exodus continues,” will the Government procure and lay upon the table information showing the number of persons registered as unemployed on the books of the Government Labour Bureaus of the States of the Commonwealth?
– The answer to the honorable senator’s question is as follows : -
Inquiries are being made from the States.
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asked the Minister representing the Treasurer, upon notice -
Referring to the Minister’s reply, given on 28th September, to Senator Pulsford’s question on the subject of the Trust Funds : -
What amount of interest was received during the last financial year on the fixed deposit?
What was the rate or rates of interest obtained ?
What became of the interest so received ; how was it distributed?
Was any interest received, and if so how much, on the trust moneys held by the banks on current account, and which aggregated £119,816 on 30th June last?
What amount of interest is expected to be received during the current year?
– The answers to the honorable senator’s questions are as follow : -
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In Committee (Consideration resumed from 29th September, vide page 3025) :
Clause 62 -
Nothing in this Act shall take away from or lessen the protection enjoyed in Australia in relation to copyrights and performing rights, by virtue of any Act of the Parliament of the United Kingdom in force, at any time, in the Commonwealth or any State or part of the Commonwealth.
– In my view this is one of the most important clauses in the Bill, because it proposes to make our law entirely subsidiary to the Imperial Act dealing with copyright. In fact, if the clause is to remain as it stands the time which we have bestowed upon the Bill will have been so much time wasted, because the Imperial Act would apply without it. And if the Imperial law is to run concurrently with our law, and the latter is to be merely subsidiary to the former, I do not see the necessity for its enactment. I believe it to be exceedingly desirable that we should assert our full power of self-government, as granted in section 51 of the Constitution Act, and I entirely dissent from the view that our legislation must be either subsidiary to, or merely concurrent with, Imperial legislation. Further, if we do not take steps to protect our right of self-government in every matter, the probable result will be that it will be either filched from us or pared away until there will be practically very little left. I take it that it is the business of the Parliament of Australia to jealously safeguard this right and to bein no respect subsidiary to any other Parliament. I ask honorable senators to recollect that the Constitution, which gives us power to legislate with regard to copyright, is an Imperial Act, and that the Imperial Parliament has given us full power to deal with copyright in common with other matters. I shall be extremely delighted to find the Ministry - who for the time being are the guardians of the Constitution, and who, subject to Parliament, are also the guardians of the rights of the people of Australia, whom they are called upon to govern - adopting the attitude which was taken up by the Government of Canada in reference to the Canadian Copyright Bill of 1889. I should like Ministers to approach the consideration of this matter from the Australian, and not from the English point of view. The Government of Canada fought the Imperial Government on this matter, and the rights of the Canadian Parliament were fully conceded to them.
– No.
– If honorable senators will turn to the discussion which took place between, the Canadian Government and the Imperial Parliament, at the time the Canadian Act of 1889’ was in dispute, they will find it to be most interesting reading. A statement put before, the Imperial authorities by the Canadian Minister of Justice will well repay perusal. I do not intend to quote largely from it, but there are one or two passages which I would like to cite for the information of the Committee. The document from which I quote will be found amongst trie parliamentary papers of the House of Commons for the year 1895, vol. 70. It is a despatch sent to the Colonial Office by Sir John S. D. Thompson, who, as I have said, was the Canadian Minister of Justice, and who in this document has asserted the Canadian right to legislate upon this subject. After referring to an adverse opinion expressed bv the law advisers of the British Government, he says in paragraph 29 of his despatch : -
In face of such eminent authorities he would hardly venture to press upon the attention of Her Majesty’s Government the view of the Canadian Government which he has above presented if it were not, to his mind, perfectly plain that the people of Canada would hold him culpable if he failed to assert what was the only interpretation under which they received the Constitution, and under which they were willing to be content with that Constitution.
He there points out that the only interpretation of their Constitution which the Canadian people would be willing to accept, was that they had a full right to legislate upon the subject of copyright. He then proceeds to cite judicial decisions in support of his view that the Constitution Act gave full power to the Canadian Parliament to legislate exclusively upon- all matters referred to in section 91 of that Act, which is similar to section 51 of our Constitution. He points out that the section is part of an Imperial Act, and that the Canadian people insisted that it gave them full plenary powers to legislate upon every matter which was thus brought under the authority of the Dominion Government. I should like very much indeed to see the Australian Government and the Australian Parliament take up a similar attitude. Sir John Thompson goes on to say in paragraph 43 of his despatch : -
If the view which His Lordship takes is correct, it will be impossible for the Parliament of Canada to make laws in regard to any one of the twenty-one subjects which constitute the “ area “ of the Canadian Parliament when such legislation is repugnant to any legislation which existed previously, applicable to these subjects in the colonies.
In that passage he emphasizes the view that if the Canadian Government gave away anyone of its powers, it might be demanded that it should give away them all. Exactly the same remark applies to us. If we give away one iota of the full and plenary powers conferred upon us by the Constitution, we are likely to have them filched from us, and our right of selfgovernment so pared down and1 refined that practically it will not exist at all. Sir John Thompson points out frequently in this despatch, that the Canadian Parliament, in respect of every one of the matters referred to it by section 91 of the Constitution, has full plenary powers to legislate, that the Act conferring the powers was passed by the Imperial Parliament, and, further, that the Canadian Parliament, or any other Parliament, constituted by Imperial Act, could not, in any respect, be said to have delegated powers, but powers that were full and complete. Sir John Thompson goes on, in clause 45 of the despatch, to say : -
It is respectfully submitted that, in respect to all these subjects, the Parliament of Canada must be considered to have the plenary powers of the Imperial Government (to quote the words of the Judicial Committee), subject only to such control as the Imperial Parliament exercise from time to time, and subject also to Her Majesty’s right of disallowance, which the British North American Act reserves to her, and which no one doubts, will always be exercised with full regard to constitutional principles and in the best interests of the Empire when exercised at all.
Honorable senators will notice the language used in that passage. Sir John Thompson points out that the Imperial Parliament can only exercise its controlling powers by a specific Act of Parliament, and, further, that the only right of veto or disallowance is that which is possessed by the Crown - a right that can be exercised in reference to Imperial Acts, in common with all other Acts passed by a Parliament within the Empire. That is a power which no one intends to dispute, and which we must all recognise. His Majesty, for the time being, has power to disallow an English Act, or an Act of ours, or an Act of any other Parliament constituted under the Crown. But notwithstanding that power of disallowance, our right to legislate upon the subject of copyright in common with all the other subjects enumerated in section 51 of the Constitution, is in no degree impaired nor is our legislation rendered subservient to any Act passed by the Imperial Parliament, in paragraph 34 of his despatch, Sir John Thompson says -
It is respectfully submitted that the Canadian Parliament, except as to the control which may be exercised by the Imperial Parliament by a statute subsequent to the British North America Act, and except as to the powers of disallowance, possesses unlimited power over all the subjects mentioned in the 91st section, and that lt is necessary that, it should do so for the well-being of Canada, and for the enjoyment of selfgovernment by its people.
Sir John Thompson, in that paragraph, points out that any power which the Imperial Parliament may possess, must be enjoyed under an Act passed subsequent to the passing of the British North America Act, which is the Constitution Act of Canada; and that therefore the Canadian Parliament possesses full and absolute rights to legislate on all the matters referred to it under section 91 of that Act, which, as I have indicated, is similar to section 51. of our Constitution. That is the attitude which I should like to see the Commonwealth Government take up in this matter. I should like to see them assert our full right of self-government just as the Canadian. Government did. I am exceedingly jealous of our right of selfgovernment. If we are going to permit it to be limited in such a way as is proposed - making an Act of ours which is within the area of our jurisdiction merely subservient to an Imperial Act - we may have it practically taken from us. I have framed an amendment which meets my views, and if it is passed, it will be necessary to make an amendment in clause 60, which I understand the Minister will be willing to recommit for the purpose. My amendment will not injuriously mea : any rights which are possessed under the Imperial Act. It will leave them as they are. It will not impair or injure the property of any holder of a copyright, or performing right. But it will assert our right to say that our authority to legislate on the subject of copyright which is intrusted to us by section 51 of our Constitution is supreme. Further than that, it sets out in the first line that the Imperial Act within this Commonwealth is subject to our Act. That is the position which I wish to emphasize. I have no desire to labour the point., I think that the reasons which I have enumerated are sufficient. I have shown that the Canadian people, at the time they were dealing with a similar subject, maintained their right in conflict with the Imperial Parliament after a very long discussion. I hold that the same reasons are applicable to our situation .: and I trust that honorable senators will agree with me that we ought not to legislate upon this subject at all, without asserting our full and complete right to legislate altogether independently of legislation which has been passed, or which may be passed, relevant to this subject, by the Imperial Parliament. I beg to move -
That the words “ Nothing in “ be left out, with a view to insert in lieu thereof the words “ Subject to this Act, and any other Acts of the Parliament, the protection enjoyed in Australia in relation to copyright and performing right by virtue of any Act of the Parliament of the United Kingdom shall not be lessened or taken away.”
– The amendment which has been proposed by Senator Givens is most important, and would, if carried, be verv far-reaching in its effects. I hope that whatever attitude the Committee may exhibit towards the principle contained in it they certainly will not give it their support. I take it from what the honorable senator has said that he is motived by a; desire to jealously guard the self-governing rights which we enjoy. I, for, one - an3 I think every other honorable senator - will not yield place to Senator Givens in that jealous regard. I believe that in passing our legislation we shall always exercise a jealous care to maintain the rights of selfgovernment, which we enjoy.
– Then why propose to make our Act subject to the Imperial Act?
– We are not making our Act subject to the Imperial Act at all. We are doing nothing of the kind. But we must face the position exactly as it is; and in the enactments which we put upon the statute-book we must have regard to the position we occupy in relation to Great Britain. The honorable senator has made special reference to the case of Canada. He has cited the Canadian Constitution in connexion with Canadian copyright legislation, and urged that the Australian Government should follow Canada’s example. But I wouldpointout that the position of Canada is totally different in this regard from the position of Australia. In this and in many other matters Canada’s peculiar situation calls for special consideration. She is situated immediately north of the great rival of Great Britain - the United States ; and those who know anything about the history of copyright legislation in Canada are aware that the whole of the agitation originated in the peculiar set of circumstances that arose from this proximity.
– Is there not another principle involved?
– I shall deal in detail with that matter directly. The circumstances are as I have indicated; and the people mainly responsible for the agitation in Canada were not the general public, but those interested in the printing and publishing of books. I go even further, and say that if it were competent for us to legislate as Senator Givens proposes by his amendment, and we were to do so, we should be doing something distinctly disadvantageous. Copyright legislation occupies a peculiar position. It is one of the subjects of legislation provided for in what may be called the thirty-nine articles of section 51 of our Constitution, in regard to which we should, as a matter of policy, as far as possible, work with the United Kingdom, even if we were not compelled to do so by force of circumstances. The whole trend of legislation on the subject of copyright has, of late years, been towards international ism. I contend that the interests of authors, and of all concerned in the community, are better regarded by viewing this subject from the international, rather than from the local stand-point. I only say this in connexion with the possible position - which, I contend, does not exist - that we have power to legislate in. this way. It is not for Senator Givens, or any other honorable senator in supporting this motion, to bring into the discussion such terms as “ subserviency “ and so forth ; we are compelled to accept the position as it is. Although Senator Givens would have the Committee believe that Canada asserted the principle, and that the principle has been maintained, I venture to say that the honorable senator is the only authority in the Commonwealth, or outside, who would be bold enough to make that unqualified assertion.
– I have quoted the Canadian Minister of Justice.
-We know what Sir John Thompson said in his despatch ; but his contentions were never held to be sound. The very arguments which Senator Givens read out, in some instances, carry on their face their own refutation. In writing on this subject, a learned writer in our own community, Professor Harrison Moore, deals explicitly with our powers in relation to copyright, and speaks of Canada’s attitude in this connexion in the past. At page 147 of his work, The Commonwealth of Australia, Professor Harrison Moore says -
The power of Colonial Legislatures over Imperial copyright is apparently limited to supplementing the Imperial law to “ Enactments for registration and for the imposition of penalties for the more effectual prevention of piracy.”
– Only “apparently.”
– On page 169 Professor Harrison Moore goes on to say -
The second question is, how far does the express grant of power by the Constitution to the Commonwealth Parliament over the various specified subjects affect the past legislation of the Imperial Parliament thereon? Merchant Shipping Acts, Copyright Acts, Bankruptcy Acts - is the power to repeal or alter these Acts extending to the Commonwealth included in the power to make laws for the peace, order, and good government of the Commonwealth, in respect to “navigation and shipping,” “copyrights,” “bankruptcy and insolvency “ ? A similar question has. been raised in Canada, and Sir John Thompson has strenuously contended that in respect to all the subjects committed to the Parliament of Canada that Parliament must be considered to have the plenary power of the Imperial Parlia- ment, including the power to repeal Imperial laws thereon, operating in Canada at the establishment of the Dominion. The Provincial Courts of Canada, which have considered the question in relation to the specific powers conferred on the Provincial Legislatures by the British North America Act 1S67, have taken divergent views of it.
Then, as illustrating what Senator Givens has quoted, I may read the following from Professor Moore’s work: -
The Canadian Government has pressed the view of “ plenary power.” The Colonial Office, on the advice of successive law officers of the Crown, has uniformly determined against the view of Sir John Thompson -
– Of course, they wanted to maintain their authority.
– That may be the reason ; but I . think honorable senators will be disposed to give credit to those men for giving expression to what they, in the light of their learning and knowledge, held as an honest opinion. Professor Moore proceeds - and has on that ground disallowed Canadian Acts inconsistent with Imperial Acts passed prior to the Act of 1867.
Professor Moore then goes on to discuss the situation calmly and judicially, as a writer dealing with the subject before it came up as a concrete question in Australia. The learned professor, on page 1 7 1 of his book, concludes his consideration of the matter with this pertinent sentence -
Acts which are not merely part of English law, but are at the time of their enactment made applicable throughout the British Dominions, cannot be repealed by a Colonial Legislature. And it is to this class that the legislation now in question belongs.
In other words, Imperial Acts from 1842 have been made expressly applicable, not to the United Kingdom of Great Britain and Ireland only, but to the whole of the British dominions. Some of the Copyright Acts of Great Britain have not been made so, such as, for instance, the Fine Arts Copyright Act of 1862, which is confined to the United Kingdom. This was; decided by the Privy Council as recently as 1903,; on an appeal case from Canada, Graves v. Gorrie. Other Acts, however, from 1842, including that of 1886, are made expressly applicable to the whole of the British Empire. It is not competent for a Colonial Legislature, even though it be expressly vested with the power to legislate on the subject of copyright, to repeal the operation of those British Acts. What was the position taken by the Imperial Legislature in passing the
Copyright Act of 1886? Section 8, paragraph 1 of that Act provides- r
The Copyright Acts shall, subject to the provisions of this Act, apply to a literary or artistic work first produced in a British Possession, in like manner as they apply to a work first produced in the United Kingdom.
Then paragraph 4 of the same section sets forth-
Nothing in the Copyright Acts or this Act shall prevent the passing in a British Possession of any Act or ordinance respecting the copyright, within the limits of such Possession, of works first produced in that Possession.
There is no doubt as to our plenary power to legislate within our own limits with regard to the copyright of works first produced in Australia. But with regard te* the effect and: operation of the Imperial Acts, and of the Conventions that Great Britain has made with other countries - the Berne Convention, the AustriaHungary Convention, and the Paris Convention - we have not one tittle of power to take away, from any British subject, or any subject of the countries in treaty with Great Britain in this connexion, any rights in Australia conferred either by Imperial legislation or by the joint operation of Imperial legislation and any one of those Conventions. We find that principle recognised in the particular Acts to which I have referred. According to the authority of Mr. Hinkson, the authority whose handbook upon copyright has- already been referred to by me, it appears that, notwithstanding the construction which Senator Givens has endeavoured to place on the arguments of Sir John Thompson - arguments which were not conclusive and never have been accepted-
– They were acceded to.
– I shall show that Senator Givens is grossly misinformed when he makes such a statement. Mr. Hinkson on page 96 of his handbook. Sir John Thompson’s arguments having been published some considerable time before, says -
In the case of Black v. The 1m ferial Book Company and James Hales, heard at Toronto (1903), in which the plaintiff sought to restrain the defendants from importing into Canada a cheap American reprint of the Encyclopaedia Britannica, its duly authorized agents for Canada being the Clark Company, of Toronto-street. The Court, in giving the relief sought for, expressed the opinion that Canada possessed no copyright legislation which ousted the statute of 1842.
That refers to the main Imperial statute on which literary copyright throughout the
British possessions rests. Then we find a reference to an Order in Council of the 28th November, 1887, which was made in consequence of the power given by the Imperial Act of 1886, in contemplation of the Convention of Berne being adopted by the representatives who there met. In paragraph 3 of that Order in Council we read -
The author of a literary or artistic work which, on or after the commencement of this Order, is first produced in one of the foreign countries of the Copyright Union, shall, subject as in this Order, and in the International Copyright Acts 1S44 to 1S86, mentioned, have as respects that work -
Where?- throughout Her Majesty’s dominions, the same right of copyright, including any right capable of being conferred by an Order in Council under section 2 or section 5 of the International Copyright Act 1844, or under any other enactment, as if the work had been first produced in the United Kingdom, and shall have such right during the same period.
Honorable senators will see that the representatives of the countries which are parties to the Berne Convention, met at Berne in 1886 or 1887, and that the Imperial Parliament passed an Act in 1886 in anticipation of an agreement being arrived at, in order to enable the agreement to be ratified, so far as Great Britain was concerned, not on behalf of the United Kingdom, but on behalf of the British Dominions. That agreement has been ratified, and the Order in Council has been adopted, and Great Britain, as one of the parties to that Convention, has provided that the natives of any of those countries, parties to the Convention, who bring out works in any of those countries, shall enjoy, not in the United Kingdom, but throughout the whole of the British Dominions, reciprocal rights. It is not competent for this Parliament, unless it has been expressly endowed, to take away, not merely from His Majesty’s subjects, but from the people of those other countries, rights which they enjoy under Imperial legislation, the Convention, and the Order in Council.
– Is it not rather a pity that the Imperial Parliament did not omit this article from section 51 of the Constitution ?
– Certainly not. The position is that, prior to the passing of the Constitution, as an Imperial enactment - Senator Givens refers to the Constitution in these terms, and I shall do the same - each one of the Australian States enjoyed-
– Does the Minister dispute that it is an Imperial enactment ?
– No ; I refer to it as such. The States enjoyed a certain measure of legislative authority with re- gard to this subject, each having power to regulate copyright of local works within its own border.
– That is what I am seeking.
– But the honorable senator goes further, and deals with copyright which, though enjoyed here, has been acquired outside the Commonwealth by virtue of Imperial legislation. According to section 51 of the Constitution, we have power to make laws regarding copyright. The effect of this is not to confer on the Commonwealth any power not enjoyed in Australia before, but simply to apportion- the existing legislative power which was before vested in the several States. That is how the Constitution has to be read. This1 article of that measure is not to be regarded as a grant to us by the Imperial Parliament of the powers which the ImperialParliament previously held in reserve for itself, but simply as an apportionment of the powers separately and severally enjoyed previously by the States - as giving to the Commonwealth the sum total, or aggregate, of those powers. Nothing more is intended than to combine and make Federal the powers previously held by the States. Before ‘Federation, an excellent hand-book on the subject of Imperial law as applicable in Victoria, was published bv Mr. Thomas Prout Webb, who deals with this matter, not in the heat of controversy, but calmly and judicially. That hand-book was published in 1892, and shows the position with regard to copyright in Victoria. As I have argued, the Constitution confers no extended legislative powers, but simply allocates the pre-existing powers of the States in a different way. At page 127, in his edition of 1892, Webb says, in Note V.-
The law of copyright occupies a peculiar position in our system of jurisprudence, inasmuch as it is regulated both by Imperial law and local enactment. The Imperial Statutes regulating this matter extend to the colony -
That is speaking of Victoria - and their effect is recognised or maintained by the Copyright Act 1890, No. 1,076, section 57. They have a concurrent effect with our local Act No. 1076.
He shows there how the law of copyright stands on a peculiar plane, and that the local Legislature cannot have exclusive jurisdiction. I have already urged in my opening remarks that even if we had exclusive jurisdiction it would probably be unwise for us to take advantage of it, or to set up a separate system, because we would be denying to our own authors and bur own reading public the benefits to be derived from the international treatment of the whole subject. I made a reference to a Canadian case which came before an Ontario Court only two years ago, and honorable senators have heard the opinion expressed by the Court on that occasion. To come a little closer to Canada and to the curious position which she occupies, and which Senator Givens would have us try and get ourselves into, I would point out that in a very recent book which I have had the opportunity and advantage of quoting previously in this Committee, and an edition of which was brought out only last vear - I refer to Copinger’s Law of Copyright - the author deals somewhat extensively with the position. He says, at page 515 -
Unusual interest attaches to the question of copyright in Canada, and this interest seems likely to increase rather than diminish. Her proximity to the United States and the -extent of her frontier have peculiarly exposed her to the importation of unauthorized reprints, and the enterprise of United States publishing firms has threatened to strangle the native bookproducing industry. For over half a century the copyright laws have been a constant source of friction between Canada and the mother country, and the trouble does not appear even yet to have been finally removed.
That is the opinion of one of the greatest living authorities on this subject. Tie says that, although the trouble has been in existence for over half-a-century, it does not appear even yet to have been finally removed. Then he deals with the Canadian Acts of 1885 and 1886, and, at page 518, he makes these comments -
It must be remembered that the Imperial Copyright Act of 1842 confers upon any person first publishing in the United Kingdom copyright, not only in the United Kingdom, but in the colonies and the dominions of the Crown. It seems to have been considered in Canada that the Act of 1875 virtually repealed the Act of 1842 so far as it concerned that colony, and that, consequently, Canadian publishers were free to republish English copyright books in Canada without any consideration whatever, but this idea was dissipated by the decision in Smiles v. Belford.
This case is referred to in the Ontario Reports for 1877, page 436, and a later case is reported in the Ontario Reports for 1900, vol. 32, page 393. Copinger goes on to say -
This Imperial -Act is therefore in force in Canada - bearing out exactly what the Court in Ontario said in the case of Black v. The Imperial Book Company - and by section 17 of that Act it is forbidden to import into Canada or any other part of the British Dominions a work copyrighted in the United Kingdom. Canada, however, having taken advantage of the Foreign Reprints Act, this prohibition was suspended.
It was expressly suspended because advantage was taken of the Foreign Reprints Act, by which the importation of reprints was allowed on condition that a certain percentage or charge in the nature of an import duty Wes made the proceeds from which were to go to the authors. Even that proved to be a source of trouble between Canada and the mother country, because it Was urged that the Canadian authorities did not always collect the duty, and in consequence authors did not always get what they were entitled to. On the next page the author says -
The state of the law as to copyright gave great dissatisfaction to Canadian p’rinters and publishers. They complained that they were damaged, on the one hand; by authors belonging to the United States publishing in Great Britain, and thus securing copyright in Canada, and, on the other hand, by British authors making arrangements with United States publishers whereby the latter secured the Canadian as well as the United States market, the consequence being Canada was flooded with cheap -American reprints which Canada had no power to exclude, to the great detriment of their trade.
And I ask honorable senators to mark this-
The Berne Convention only added to these grievances; as it enlarged the class of persons who could obtain copyright in Canada without republishing there.
Canada actually wished Great Britain to allow her to be excluded from the operation of the Berne Convention. Then after dealing with the Act of 1889 - the Act of which Senator Givens has spoken so highly - and giving the substance of it, the writer of this work goes on to say -
The passing of this Act - conceived in the interests rather of Canadian printers and publishers than of either authors or the reading public - led to a long and bitter controversy between Canada and the mother country, which was not terminated till the year 1900. It does not fall within the province of this work to enter into the merits of this controversy, but the home Government resolutely refused to give its necessary assent to the Act, and the Act never became effective law.
It was passed by the Canadian Parliament, but was never assented to. Copinger further says -
When, in the year 1891, after the passing of the United States Act, known as the Chace Act, British authors were enabled to obtain copyright in the United States on condition that they printed and published there, the discontent of the Canadian publishers was greatly increased.
There is the old sore again, Canada’s trouble, proximity to the United States -
Canada has always refused to recognise the arrangement between Great Britain and the United States as an “ international copyright treaty,” and does not permit the United States authors to obtain Canadian copyright under her Copyright Act of 1886. Finally, in the year 1885, directions were issued by the Customs
Authorities in Canada to cease to collect the duties required by the Foreign Reprints Act 1847.
That is the Imperial Foreign Reprints Act, which Canada took advantage of in order to secure the suspension of section 17 of the Act of 1842.
At length, in the year 1900, a compromise was effected, and the assent of the Crown was given to a Dominion Act amending the Copyright Act 1S86.
Then at page 521, and this is the last extract I shall quote from Copinger on the subject, dealing with the Copyright Act of 1900, he concludes by saying -
This Act applies to books only, and, further, only to books that are copyright in Canada, for the’ “ Copyright Act “ mentioned in section 1 means the Canadian Copyright Act of 1886. The objectionable feature of the 1889 Act, whereby an author practically would have lost his copyright in Canada, unless “he acquired local copyright also, is removed. The Act does not touch Imperial copyright, and whether a British author takes advantage of the Act or not rests entirely with himself.
This is the Act by which, according to Senator Givens, Canada practically asserted a plenary power in the Canadian Parliament to deal with copyright, Copinger says -
If he desires to do so, he must make arrangement with a local publisher, and a special Canadian edition must be printed in Canada, though the type need not be set there. _ Thereupon the Canadian publisher will acquire local copyright for the Canadian edition, and the author, or anybody else, will be prohibited from importing copies of the work into Canada, but, otherwise, the authors of Imperial copyright will not be affected. If, on the other hand, the author does not desire to take advantage of the Act of 1900, that Act has no effect upon his rights whatsoever.
The Act has, it is believed, worked satisfactorily in practice, but, unfortunately, a section of the Canadian printing and publishing houses do not appear to be yet satisfied, and there are indications of another agitation in favour of the more stringent provisions of the Act of 1889.
Canada is not a party to the British Copy, right Treaty with Austria.
Incidentally I might mention that none of the Australian States is a party to that treaty either. The whole of these references go to show that the Dominion Parliament has not successfully asserted the right to plenary power equal to that of the Imperial Parliament in dealing with this subject. They show that there has been a great deal of trouble between the Canadian and Imperial Parliaments, and that the great cause of the trouble has been the proximity of the United States and the action from time to time of United States printers and publishers. They show, also, that the people most interested in fomenting the agitation and keeping alive the trouble have been the printers and publishers of Canada, and, as Copinger says, the Canadian Acts have been framed with a greater regard for their interests than for the interests of either authors or reading public. Recent negotiations between Great Britain and Canada go to show that the Act of 1889 derived no force or effect until the compromise effected between the two countries, as the result of which the more stringent and objectionable provisions of the Canadian Act were deleted. The present position under the Act of 1900 is that Canada does not in any way attempt to assert her right to control or affect Imperial copyrights. In 1902 an edition of MacGillivray’s work, The Law of Copyright, was published. In this work the author deals briefly with Canada, and I quote two extracts bearing on the question. He says, at page 188 -
The Canadian Legislature has recently passed a Copyright Act purporting to affect the importation into Canada of books published under an Imperial copyright.
Purporting to do so -
The Act provides that if a book has acquired Imperial copyright bv first publication in the British dominions outside Canada, and a licence has been granted for its reproduction in Canada, the Canadian Minister of Agriculture may prohibit the importation into Canada of any copies of such book printed out of Canada, and imported without the licensee’s consent.
He then makes reference to the case already ; referred to of Smiles v. Belford, reported in the 1877 reports. With refer- ence to that case, and dealing with the argument of the effect of the British North America Act - the Canadian Constitution, he says -
As regards the Imperial Act confirming the Canada Copyright Act “1875, the Court held that it was passed merely to resolve doubts which would otherwise have arisen as to whether the Canada Copyright Act was not repugnant to the provisions or the Foreign Reprints Act 1847, and the Order in Council thereunder, applicable to Canada.
Honorable senators will remember that on the second reading of this Bill I indicated that, in consequence of legislation passed by Canada, which gave rise to some doubt as to whether it was within the competency of the Canadian Parliament, the Imperial Parliament had to pass a special Act providing that Her Majesty’s Assent might be given to it. As mentioned here, that was necessary “ to resolve doubts which would otherwise have arisen as to whether the Canadian Copyright Act was not repugnant to the provisions of the Foreign Reprints Act 1847, and the order in council thereunder applicable to Canada. The writer of this work quotes from Burton, J. A. - I presume a Justice of one of the Appeal Courts of Canada - and he says -
I am of opinion, therefore, that they have stated the only reason which rendered it expedient to seek a confirmation of the Provisional Act, and that it was intended to preserve intact so much of the Imperial Act as prohibits the printing of a British copyright work in Canada, but giving to the author a further right on certain conditions of securing a Canadian copyright, and thus preventing the importation into Canada of foreign reprints.
That is all we propose to do in connexion with this Bill. In the main this measure affirms in a legislative form certain provisions which are in many instances taken from Imperial Acts, and in other instances from decisions which have been given by the Courts. There will be no necessity for persons working under the Act to have any recourse to Imperial statutes. But if the Imperial statutes which at the inception of the Commonwealth had force and effect throughout His Majesty’s dominions, should in any particular! be in conflict with, or should not be touched by, our legislation, then they will have force and effect.
– But if they come in conflict, what then?
– They cannot come in conflict, because we have only carved out part of the Imperial statutes, and instead of having to go through a number of statutes, the law is set out seriatim in this Bill. In addition, we have expressed in legislative form the decisions upon most important principles which have been given, and followed repeatedly until they are well-established law. So far as other matters are concerned, these are the cases for which the Bill provides. There are certain Acts of the Imperial Parliament, notably the Act of 1842, which provide that upon the fulfilment of certain conditions copyright shall be obtained throughout the British Empire; we cannot derogate from that right. The Act of 1842 made it necessary for a man to publish! in Great Britain, in order to get copyright throughout the British dominions. But the Act of 1886 affirmed this principle : That if a man published his book in any part of Her Majesty’s dominions, he should get copyright throughout them. In this clause we are simply saying that those rights shall not be in any way lessened. We are not attempting to assert a right which we do not possess.
– Which we shall not possess if the Minister has his way.
– If this clause were not in the Bill, our rights would not be lessened, the Minister maintains?
– I am certain that these rights cannot be lessened. If we were to insert this amendment, and affirm that hereafter it would; not be competent for the Imperial Parliament to pass a Copyright Bill which should have force throughout the British dominions, we should be taking up a position which we could not sustain. Canada was forced - bv a combination of circumstances, perhaps - to take up the attitude she did-. Set far from Senator Givens being right in connexion with the result of her action, the authorities I have quoted go to show that he has not been fully informed of all the circumstances, and that the difficulty, so far as Canada is concerned, has not yet been overcome, that her law is not in the satisfactory state which my honorable friend thinks it is, andi that the assertion of plenary power in this matter has been met by continued and successful opposition on the part of the Home authorities. If we had the power to establish a separate system of copyright for Australia, given the circumstances in which we are placed, we should be very unwise indeed if we were to exercise that power. We should fake advantage of the relations which exist between the principal countries of the world, except, perhaps, the United States, which, be it said, has had to climb out of her, isolated position. By the Chace Act of 1891, the United States has empowered the President to declare that certain countries are, so to speak, most favoured countries, and that the residents thereof shall be able to obtain copyright in the United States on the same terms as individuals, or residents of the latter. In pursuance of that power, the President has declared Great Britain to be one of those countries. Under our present circumstances an author who brings out his work in Australia is entitled to copyright, not simply in Australia, but throughout His Majesty’s dominions, Germany, France, and every other country which is a party to the Berne Convention. We, on the other hand, have to reciprocate. Great Britain on behalf of the British dominions reciprocated, and since then she has been a party to the Convention of Paris, by which, too, I think we are bound. She also made a separate Convention with Austria-Hungary, and expressly excluded from its operation the whole of the then six Australian Colonies, the Colonies of the Cape and Canada. Then there is the Act of 1886, in which the Imperial Parliament expressly declared the power of Colonial Legislatures to deal with the subject of copyright, but only in a limited way. We can best deal with the subject if it is regarded entirely from the international, and not purely from the local stand-point.
– The position in which we find ourselves in regard to the clause is in a sense interesting, but from another point of view it is almost) ludicrous. If we inserted this amendment, it would be worth nothing, and even if inserted it would be a disadvantage to Australia if it could have effect. No provision in the Bill could take away from or lessen the protection which is enjoyed under any Act of the Imperial Parliament in force in the Commonwealth. Therefore the clause is absolutely redundant and unnecessary, because, if omitted, the rights which it seeks to protect would still be safeguarded. I am prepared to vote with Senator Givens to strike out the clause, but I cannot assist him to insert any provision in place of it.
Senator GIVENS (Queensland). - We have had from Senator Keating a very long and interesting disquisition, which did not strike me as being of particular point in regard to the amendment. He seems to be so desirous of protecting his little bantling that he immediately kicks up a terrific dust when any one approaches it, even with friendly intentions. His speech would be all right if delivered by a member of the Imperial Parliament who was jealous of the Imperial power, but it is not all right when it is delivered in the Australian Parliament by one who apparently is willing to give away, or allow to be niched, a power which has been conferred upon us by an Imperial Act. When the Minister was trying to refute mv statement that we should adopt the same attitude as Canada, in order to assert our plenary power to deal with this subject, his only argument was that the two positions were entirely different, that Canada was forced into that position by reason of her proximity to the United States, and her liability to be constantly flooded; with cheap literary productions from that source.
– Together with the agitation on the part of the printers and publishers.
– What is the essential difference between. Australia and Canada in that regard ? In these days of leviathan steam-ships and rapid) communication, distance is practically annihilated, and Australia, although almost at the’ other end of the globe, is just am liable as Canada to be flooded with cheap literary productions, as Senator Keating knows. He says that nothing will alter the position we occupy in regards to Great Britain in this respect. I maintain that when the Imperial Parliament agreed to the Commonwealth Constitution it gave us plenary power to deal with every one of the subjects named in section 51. Senator Keating says that our legislation must be subject to Imperial law.
– In the three cases that I mentioned.
– New Zealand passed a Navigation Bill which was repugnant to the provisions of the Imperial Merchant Shipping Act, and yet Senator Keating says that we have not the power to pass a Navigation Bill if it is in any way repugnant to that Act.
– I did not say that New Zealand passed legislation which conflicted with Imperial legislation.
– It is well known that the Navigation Act of New Zealand has full force and effect. If we take up the position which he desires us to assume in this case, that fact will be used against us when we attempt ‘to ‘legislate on other subjects. The honorable and learned senator said that where an Imperial Act applied to the British dominions, before our Constitution Act was passed, we have no power to enact any provisions which would conflict therewith. Take the position of any State before the Commonwealth was established. The criminal law of England applied^ to every Colony in Australia before it was presented with a Constitution. Does the criminal law of the Imperial law apply now to the States? No.
– The honorable senator’s premises regarding the applicability of the criminal law are wrong.
– The criminal law of England applies to every part of the British dominions, whether it has powers of self-government or not, until it is superseded by local law. It will be just the same with our copyright law if we only have the pluck to assert our position. The Imperial Act will apply in just the same way where.it is not in conflict with our Act, but the latter will be supreme on the particular matters with which it deals. I maintain that, subject to our Act, the Imperial law should apply with full force, as it does to-day. But it must be subject to our Act, and wherever our Act is in conflict with the Imperial law ours must apply. Senator Keating also urged that we should work in with the Imperial Government. I have no objection to do so, and my amendment does not assert the contrary. If it is carried, there will be nothing to prevent us working in with, the Imperial Government. But we should be in a position to work in with it as a Commonwealth possessing independent powers, not as a mere fag end of the British Empire, having no rights except of a subsidiary nature. Senator Keating quoted a great authority in opposition to my argument - Professor Harrison Moore. But what that ,T great authority” said was that our power was “apparently” limited. He did not assert that our power was actually limited. If this great authority, who is evidently in favour of limiting our power by making the Imperial Act always supreme, can say no more than that our power is “ apparently “ limited, I do not think that the argument amounts to much. Senator Keating also quoted the case of our power to legislate in regard to bankruptcy. But, as a matter of fact, the English bankruptcy law does not apply even in the States. Until” the States’ laws were passed, the British Bankruptcy Act did apply ; but after they were passed the States’ laws were supreme and the Imperial law was superseded. What position would the Commonwealth be in if Senator Keating were right? If, in relation to the fifty-one subjects which have been relegated to us, we had merely a subsidiarypower, I maintain that our right of selfgovernment is a myth, and that this Parliament would be nothing better than a farce. The time that we have spent on this Copyright Bill would be wasted, because the Imperial Act would remain in operation even if it did not become law. Senator Keating says that the Imperial authorities were all against the opinion expressed by the Canadian Minister of Justice. Of course they were, because they were jealous of their own powers and privileges. But after the Canadian Minister had argued the matter with them for some time, and after representations had been made to the Imperial authorities - which are on record - the Imperial Parliament passed a special Act enabling the Royal Assent to be given to the Canadian Copyright Act of 1889. That was not done because it was absolutely necessary ; but, as was admitted by Senator Keating himself, the special Act was passed to remove any doubts that might arise. So that it is admitted that there was a doubt as to whether it was necessary to pass the special Act. Towards the close of his argument, Senator Keating said that it would be competent for the Imperial Parliament hereafter to pass an Act dealing with copyright, and that, therefore, if my amendment were carried we should be asserting something which was not correct. So that it appears that,o notwithstanding that we are attempting to legislate with regard to copyright, the Imperial Parliament can pass an Act which will largely nullify ours. If that be so, our authority to deal with the subject is a farce.
– They can pass an Act to take away our Constitution if they like.
– Of course; they could pass an Act taking away our right of self -government. But will Senator Keating assert that they are likely to do so.
– No.
– If it were attempted - although I must scout the possibility of it - I venture to say that it would require the assent of the Australian people before it became effective, just as an Act of the Australian Parliament requires the assent of the Crown ; and I am perfectly certain that the people of Australia would not assent to it. Therefore, an Act of that sort would have to be backed up by force, and that is a position which I do not think any one desires to see. I unhesitatingly say that full powers of self-government have been granted to us by an (Imperial Act, and embodied in our Constitution, which enables us to legislate upon all the matters mentioned in section 51, and upon all other matters which are referred to as being- within the area of our jurisdiction. We shall be false to the trust imposed in us by the people of this country if we do not assert to the full the powers that we possess, or if we allow it to be supposed that our powers are merely subservient to those of the Imperial Parliament in respect of the legislative functions intrusted to us.
– I am afraid that Senator Givens, who is so anxious to have the principle of his amendment embodied in the Bill, is running his head against a stone wall. While it is perfectly true that we have certain rights conferred upon us by our Constitution, we have to recognise that those rights were given by an Act passed by a Parliament which stands supreme in all matters connected with the British dominions. Whatever legislation we may pass can be disallowed by the Crown within a certain limited period. This Commonwealth has no power to enter into treaties or conventions with foreign nations. That power is reserved for the Imperial authority alone ; and while we remain a portion of the British Empire any treaty or convention that Great Britain may enter into is binding upon us, whether we like it or not. What is the position in respect of copyright ? In the convention that has been quoted, and to which the Imperial authorities were a party, it is set forth in the first schedule that -
This order shall have full -effect throughout Her Majesty’s dominions, and all persons are enjoined to observe the same.
So that in this case the only authority that has power to deal with copyright in this way has agreed to a convention which is binding on every British subject and every Parliament that is subordinate to the Imperial Parliament.
– Has not the British Parliament a right to make commercial treaties ?
.- The British Government can do so if it thinks fit. The honorable senator misconstrued what Senator Keating said when he attempted to make it appear that he had stated that it was impossible for us to pass any legislation in opposition to legislation passed in Great Britain. He has quoted the criminal law and the navigation laws, and has pointed out that, with regard to those matters, this Parliament can alter the law as it stands in Great Britain. That is perfectly true. But there is no treaty between Great Britain and foreign powers, binding the whole of the British Empire, in respect of those matters, nor did the Imperial Parliament when passing_legislation in reference to them declare that the Imperial law was to be binding upon the whole of His Majesty’s dominions. But in reference to copyright and performing right the Imperial Government has, under a convention, entered into obligations with foreign nations, and it would be utterly impossible for us to go behind the convention. To do so would be for a subordinate Parliament to destroy an engagement entered into by the Imperial Government itself. That can only be done by the Imperial Parliament. We must remember that whatever powers we enjoy have been conferred upon us, and that those powers cannot be exercised in derogation of treaties entered into by the Imperial authorities with foreign powers. Were it otherwise, the whole Empire would be thrown into a state of ferment, in the event of any treaty being made by the British Government with a foreign Government. A part of the Empire might say, “ We are not going to be bound by this ; this little portion of the Empire is going to be lopped off.” Under such circumstances a foreign nation would feel that it was no use to enter into a treaty with a power which could not control its own subjects.
– Does that not apply to commercial treaties?
.- Yes, if those treaties are made expressly to extend to the whole of the British Dominions.
– Except to selfgoverning portions.
.-Then those self-governing portions are expressly excepted. In the convention entered into with Austria-Hungary, it is expressly provided that the provisions shall not be applicable to self-governing States; and we could clearly do anything we liked in regard to that country. But I am quite clear, and I feel sure that’ Senator Givens must, in his own mind, be convinced, that we cannot interfere with a treaty that has been entered into by the Imperial authorities and other nations - a treaty which the Imperial authorities declare is binding on all British subjects. Whether it is necessary to insert the clause suggested, is another question. My own opinion is that it is not. We might insert this, or any other provision, but if it should prove to derogate from an Imperial treaty from which we were not expressly excluded, it would not be worth the paper on which it was written. It is certain that the Royal Assent would not be given here to a measure containing such a provision ; it would be reserved, and sent Home, where it would be quietly put on one side. The time and trouble devoted would have been wasted. Senator Givens may think that, under such conditions, it is utterly useless to have a Parliament in Australia. There are, however, numbers of subjects which are absolutely under the control of the Australian Parliament, and. in regard to which the Imperial authorities would never attempt to interfere. But once Great Britain has entered into a treaty with foreign nations, the Australian Parliament has no more power to interfere, than would a municipality or any local governing body in Great Britain itself.
Senator KEATING (Tasmania- Honorary Minister). - I understand, that in the legislation of the States, in many instances, a provision of the kind I suggested has been inserted. I do not know what the origin of this course was, but in the Western Australian Copyright Act of 1878, and in the Victorian Copyright Act of 1890, there is, in each case, a clause declaring that nothing in the Act shall be deemed to affect the law of copyright “ applicable to this Colony by any Imperial statute now in force.” It is common to have a provision of the kind in many other State enactments, which deal with matters likely to be the subject of Imperial legislation. The amendment proposed by Sena tor Givens will not affect the purpose that the honorable senator intends, and may very seriously embarrass us in getting the Bill assented to by the Crown. There is another argument which may be advanced against the amendment. In Tasmania, and also, I believe, in Queensland, there is no separate Statecopyright legislation, all copyrights being enjoyed by virtue of Imperial legislation. The only piece of copyright legislation in Tasmania is the Newspaper Copyright Act, and in Queensland, I think, copyright is mainly dependent on Imperial statutes, Under the circumstances, rights enjoyed in either of these States under Imperial enactments, could be lessened according to the amendment.
– I do not propose to take away any existing right.
– The amendment simply provides that rights shall not be lessened or taken away “ subject to this Act “ ; in other words, if the Bill did affect any Imperial copyright enjoyed, say, in Tasmania, it would operate to lessen that right. To insert this amendment would be to put a very serious blot on the measure, and to mar its efficacy, in addition, as Senator Gould has pointed out, to creating the danger of having the Bill hung up, perhaps, for all time.
– Canada was not afraid of that.
– I have dealt fully with the position of Canada, and the
Opinion of all authorities on that subject, is different from that outlined by the honorable senator. I ask honorable senators to be warned by the experience of Canada, and not to accept an amendment which seeks to affirm a right which we do not possess, and which, in any case, it would be very unwise for us to exercise.
Question - That the words proposed to be left out be left out - put. The Committee divided.
AYES: 0
NOES: 0
AYES
NOES
Question so resolved in the affirmative.
Question - That the words proposed to be inserted, be inserted - put. The Committee divided.
AYES: 0
NOES: 0
AYES
NOES
Question so resolved in the negative.
Amendment negatived.
Clause, as amended, negatived.
Clauses 63 to 71 agreed to.
Clause 72 -
An appeal shall lie to the High Court from any order for the rectification of any register made by a Supreme Court or a Judge under this section.
SenatorCLEMONS (Tasmania).- Subclause 2 establishes an appeal direct to the High Court from a single Judge of a State Court.
– We have invested certain States Courts with Federal jurisdiction, but I am not sure that it is right to say that an appeal under this clause should be to the High Court only, for that is what it means. The Minister might consider whether it would not be well to provide an intervening Court of Appeal between the Court to which application is made in the first instance, and the Federal High Court.
– In the Bill, as it came to me, there was no express provision made for any appeal against the decision of the registrar.
– Is it necessary?
– I think so. Such applications as are contemplatedunder this clause are not very often made. A State Court, in exercising jurisdiction under this Bill would be exercising a Federal jurisdiction directly under an Act of the Federal Parliament. I think it is desirable that finality in such cases should be reached as soon as possible, and therefore that the appeal should be direct to the High Court. Probably no one is better aware than is Senator Clemons that we have similar provisions in our Mining Companies Acts for the rectification of registers. I think, speaking from memory, that under the Tasmanian law an appeal in the case of an application for the rectification of a register of a company is made direct to a Judge of the Supreme Court, or to the Court itself.
– That is not quite a parallel case.
– No; but I think there should not be too many steps in a case like this, especially where we are expressly conferring a statutory Federal jurisdiction upon a State Court. I think it is desirable that the appeal should be direct to the High Court. I might mention that in the first instance it was thought that perhaps the application should be to the High Court, but I think it is desirable that every facility should be given in this case, and therefore provision is made that the application may be made to the Supreme Court of any. State or a Judge thereof. If persons interested desire to go further, we should not, I think, prolong the process, and theappeal should only be to the Federal High Court.
– Will this Bill do away with the State registers?
– There will be only one registry, though provision is made for deputy registrars in the different States. To give an additional right of appeal might be to confer an advantage on the person having the longest purse.
Clause agreed to.
Clauses 73 and 74 agreed to.
Clause 75 (False representation to registrar).
Senator CLEMONS (Tasmania). - I notice a reference in the marginal note to this clause to the Patent Act of 1903, section112. It would be interesting to know what the reference is, and whether the Patents Act provides for the same penalty as is provided for in this clause.
Senator KEATING (Tasmania- Honorary Minister). - Section 112 of the Patents Act of 1903 is practically the same as this clause, and provides for a similar penalty of three years’ imprisonment.
Clause agreed to.
Clauses 76 and 77 agreed to.
Clause 78 (Regulations).
– I notice that the usual provision requiring regulations under the Bill to be laid on the table of both Houses of Parliament is omitted from this, clause. Is the omission covered by the Acts Interpretation Act?
– Under section 10 of the Acts Interpretation Act, where an Act confers power to make regulations, unless the contrary intention appears, they are to be laid before both Houses of the Parliament within thirty days, or, if the Parliament is not then sitting, within thirty days after its next meeting. Since the passing of the Acts Interpretation Act, it has not been necessary to expressly insert in Bills under which provision is made for retaliations, a provision requiring the regulations, when framed, to be laid before both Houses of Parliament.
Clause agreed to.
Postponed” clause 4 (Definitions).
Senator KEATING (Tasmania- Honorary Minister). - Honorable senators will remember that some discussion took place on this clause, and certain suggestions were made to which I promised to give attention. When amendments are to be proposed by Ministers, it is desirable that they should be printed, and placed in the hands of honorable senators before they are asked to agree to them. I propose now to move that the Chairman report progress. In the meantime, I shall endeavour to get printed copies of the suggested amendments, and a reprint of the Bill showing the amendments, placed in the hands of honorable senators.
Progress reported.
page 3119
Debate resumed from 14th September (vide page 2284), on motion by Senator Keating -
That the Bill be now read a second time.
– This being merely an amending Bill, and therefore largely free from matters founded on any great issue, possibly it is one which invites closer attention in Committee than at this stage; but at the same time there are certain principles underlying the amendments, and to these I particularly propose to address myself. If there is one law on the statute-book which ought to be clear and understandable it is that dealing with our electoral machinery. It is not merely of interest to honorable senators, but of considerable interest also to the States as States, and to individual electors. There fore, every effort ought to be made to so frame its provisions that they can be understood by the average elector. I admit at once that electoral machinery has necessarily to be a little complicated, but every effort should be made to reduce that complexityto a minimum, so that the ordinary elector may at least understand without very much difficulty what he is required to do in order to secure a recognition of his electoral rights, and how he can exercise them. The Electoral Act is not a simple Act. It is a complicated one, and I am rather afraid that this amending Bill is going to add to rather than reduce that complication. I shall endeavour to indicate one or two portions of the Bill wherein simplicity could be obtained by certain alterations, but wherein the complications of the principal Act are made still more complicated. In view of the extreme desirability of having simple legislation dealing with our electoral machinery, and of the multiplicity of the amendments provided in this Bill it would have been far better for the Government to have brought in an entirely new Electoral Bill, instead of merely an amending Bill with a provision to the effect that the principal Act whenever reprinted shall be altered as amended. It would have been very much better for the average man if an entirely new Bill had been submitted. It would not have taken a very much longer time to deal with a measure of that kind, because the clauses which it was not desired to amend would go through Committee, as honorable senators well know, at a very rapid rate. In taking the other course we run the risk of proposing certain amendments to one clause that may have a bearing upon another clause which may escape our notice at the time.I shall indicate a provision of that character. Clause 15 reads -
Where the. boundaries of a division or subdivision are altered, the Minister may, by notice in the Gazette, give such directions as are thereby rendered necessary or expedient for the change of electors from one roll to another.
If honorable senators will now turn to section 63 of the Electoral Act they will find that-
On any change in the boundaries of a division the returning officer for the division shall make all alterations thereby rendered necessary in the roll for the division.
Possibly it may be shown by some legal method of reasoning that there is no great conflict between those provisions; but I hold that there is an overlapping, and that certainly is not desirable in any Act of Parliament, much less in an Act dealing with electoral machinery. I could multiply instances of that kind, and, in Committee, I shall point to them. I only desire now to suggest the nature of the difficulty which, I think, is likely to arise where we proceed by an amending Bill to make so many alterations in the existing law as are here proposed. I desire to point to the growing tendency, as illustrated by. this Bill, to legislate by executive act rather than by the ordinary machinery - that is, the Parliament. By this time honorable senators are painfully familiar with the frequency with which Bills provide that, by regulation, the Governor-General in Council may do this, that, and the other, until, little by little, the power of Parliament is steadily being appropriated by the Executive. This Bill goes a little further in this regard than any other Bill which I can at present call to mind, and it does so in some importantparticulars. It is the natural history of any evil that if it be allowed to go- unchecked it will tend to grow. It would be quite reasonable that Ministers who observed a tendency on the part of Parliament to grant them power to legislate by regulation should see nothing abnormal in asking for a further extension thereof. In Committee, I shall point out that there are several matters left to the GovernorGeneral in Council which might, at the time of their arising, be highly controversial, which might come to be utilized for the purpose of a strong party advantage, but which could now be legislated upon definitely. At this stage, I shall not refer to the weightier matters of that kind, which it is sought to provide for by regulation, but shall just deal with some of the minor matters. Clause 5 provides -
There shall be a chief electoral officer for the Commonwealth, who shall have such powers and functions as are conferred upon him by this Act or the regulations.
Either the words “or the regulations” are useless, or it is proposed to give to this officer a power which the Bill does not confer. Again, clause 14 proposes to amend section 23 of the principal Act, which provides for a redistribution of a State into electorates, whenever the GovernorGeneral in Council “may deem it necessary. It is proposed by clause 14 to replace that section with a provision beginning, “ Such proclamation may be made,” leaving this elastic power in the hands of the Ministry, when it ought to be specifically set out.
– It is more specific than the provision in the original Act.
– I do not think it is; but even if that be so, the Minister’s interjection is no argument, hardly an excuse. The question is - Ought it to be specified or not that such a proclamation may be made under certain circumstances? Here, again, for the purpose of avoiding even the appearance of party intrigue, of seeking a party advantage, there ought to be specifically set out in the Bill when and in what circumstances the State not “ may “ but “ shall “ be redistributed into electorates - because the sub-divisions may affect the whole basis of our electoral system, founded as it is on equality of voting power. Passing on to clauses 31, 33, 34, and other clauses dealing with the conditions under which the rolls shall be prepared, revised, and printed, honorable members will notice that the whole of the machinery is at the discretion of the Minister. The rolls may be prepared when he likes; they may be supplemented when he likes ; they may be printed when he directs. I should like to believe that all this machinery would be utilized fairly by the Ministry of the day. But we ought not to give to any Ministry the power to utilize our electoral machinery to secure a party advantage, or, to express my meaning in other words, to so work the electoral machinery that they might defeat t)he real wishes of the electors. Take, again, clause 46, which refers to the limitation of the electoral expenses of candidates. It provides - and it is a very necessary provision, I think’ - that the returns which candidates have to make as to their expenses shall be available for public inspection on payment of a prescribed fee. I only refer to this small matter, because it illustrates the general tendency to legislate by regulation instead of by enactment. The prescribed fee might be one shilling, or it might be £100 The Ministry might, by regulation, make the fee so prohibitive as to render the provision a dead letter, inasmuch as no ordinary elector would venture to claim the right to look at the return of expenses made by a candidate. The object of that clause, I take it, is to provide that, whilst there shall be no vexatious examination of accounts - no invitation to any dissatisfied elector to come forward and harass a candidate unnecessarily - still they shall be reasonably open to any one who. for sufficient reason is inclined to examine them. Why should not the Government put in the Bill itself what the fee shall -be to entitle any one to examine the accounts ? We should then know whether the idea of the Government as to what was a fair fee was also our own idea. I repeat that I am referring to these matters as showing the extent to which this power of dealing with legislative subjects by regulation is growing up, and as a. preface to the action that I shall take in Committee to endeavour to secure amendments in the direction I have indicated. I admit at once that it is necessary to leave a very great deal to administration. “That goes without saying with regard to many cases, and particularly does it apply to a measure like the Electoral Act, which, with its elaborate machinery, lies dormant for three years, and then requires to be put in operation. But I wish to point, as a proof of the desirableness of leaving as little as possible to administration, to the remarks made by the Committee of the House of Representatives which inquired into the conduct of the last general election. That Committee submitted a report, with which I have no doubt honorable senators are fairly familiar ; but there are one or two passages in it to which I wish to direct attention in support of my contention that it is not only right and proper, but extremely desirable, to limit the scope within which the administration shall move as much as possible. Senator Keating, in submitting this Bill, referred to the fact that the Committee had brought in what he described as a satisfactory report. Well, of course, it would be gratifying to all of us to know that, after an examination of the facts, the Committee was enabled to bring in a report which was termed by itself, and which Senator Keating terms, “ satisfactory,” especially as it followed a perfect tornado of criticism and
page 3121
abuse at the time the election was on. But I must admit that I am unable to share in that feeling after perusing the report’ in detail. All I can say is thai, in view of the facts to which the Committee itself invites attention, it was composed of gentlemen who were inclined to take the most lenient view possible of the grievances to which attention was dr,awn. Here are some of the matters which they alleged existed. In paragraph 3 of their report they state -
Though many causes of complaint were said to exist, with respect to the administration of the Electoral Act, your Committee cannot,, upon evidence submitted to them, find that their number or nature were such as to justify the adverse criticisms passed upon the Chief Electoral Office.
There is a general white- washing clause. Yet that passage is on the same page as the one which I am about to quote. After pointing out their satisfaction that there was nothing to lead them to believe that the causes of complaint justified the adverse criticisms, the Committee go on to say -
Many cases of omissions of names from the rolls undoubtedly occurred. These cases were due to inadvertence in collection, error in the compilation or revision of the rolls, or failure on the part of the elector to comply with the notice to appear before the Revision Courts.
Later on, they mention that difficulties arose in supplying sufficient copies of rolls to the presiding officers, and also that electors were not able, in some instances, to ascertain whether their names had been included in the revised rolls or not. In para.graph 15 of their report the Committee affirm -
In many instances the defective grouping of electors around polling-places caused great inconvenience.
In paragraph 17 they state -
Your Committee find that the charge of the Sydney office was placed- in the hands of Mr. F. W. Biden, who, by reason of his want of experience in connexion with electoral matters, and the nature of his previous occupation, was unfitted for the task. Mr. Biden himself gave evidence, in the course of which serious charges and statements were made by him, which were uncorroborated by oral or written evidence. Not one of these charges has been established, and, on investigation, the statements appear to have been made without any foundation, in some instances being amply controverted by Mr. Biden’s own written reports. No justification has been given to your Committee for his appointment to so responsible an office. . . The arrangements for the supervision and discipline of the office appear, however, to have been defective. Friction arose between Mr. Biden and an officer, Mr. Haigh, who was sent over from Melbourne to assist in the compilation of the rolls. It is possible that lack of supervision may have been occasioned by this friction.
Here are some more serious and more specific statements made by the Committee -
Your Committee find that as regards the roll for the Airly polling-place, Macquarie division, a printed list of some 250 names, after having been revised by the Revision Court, was not sent to the Government Printer for inclusion in the final roll, though he called the special attention of the Sydney Electoral Office to its existence. By this omission these electors were excluded from the exercise of the franchise. This revised list was, after the election, found in the Electoral Office at Sydney. Your Committee find that Mr. Haigh, an officer in the Department, must be held responsible for this omission, though the evidence does not disclose that it was deliberate. In view of the immense amount of work that had to be done, this omission is possibly one of inadvertence only.
There is an instance where 250 electors were disfranchised owing to the officers, for some reason or other, failing to send the roll to the Government Printer. In the very next paragraph the Committee say -
For the Bligh polling-place, in the electoral division of East Sydney, it was admitted that, owing to a list of names objected to not having been submitted to the Revision Court the names of 1,390 persons who had been objected to were allowed to remain on the rolls.
In the case of the Parkes election, an invalid nomination was accepted, and the candidate allowed to go to the poll, although the Attorney-General had expressed the opinion that the nomination was invalid. Once more, at Kurri Kurri, holders of State electoral rights, not on Federal rolls, were allowed to vote, the New South Wales Chief Electoral Officer having by wire authorized this. The Committee say -
Your Committee would draw attention to the instructions given by the Commonwealth Electoral Officer from Sydney which is contrary to the Act.
Then again the Committee say -
Your Committee find’ that the charge made against Mr. J. M. Falconer of having refused to receive the claims of electors for the Riverina district is sustained, and consider a serious irregularity was committed. The evidence does not show that the act was done with any improper motive.
There was a grave breach of the law committed.
The assistant returning officer allowed fortytwo non-electors to vote, and then next day attempted to legalize his action by obtaining the signature of the registrar to a list of the names of these persons. The report adds that there was no evidence that he was prompted by improper motives. It it also shown that polls were taken at Col Lal and Gol Gol, in Riverina, not being proclaimed polling places ; but -
Your Committee can find no excuse or justification for this grave irregularity.
I say, again, that it is marvellous that, in view of these facts, the Committee should have affirmed, as they did, that the number and nature of the complaints was not such as to justify the adverse criticisms upon the Chief Electoral Office. I do not know what stronger condemnation there could be of an electoral office than the admissions made in this report - that it left off the rolls numbers of men who were entitled to vote, that it allowed men to vote who were not on the rolls, and that men were allowed to vote on State electoral rights whose names were not on the Commonwealth rolls. All these matters, it seems to me, make the strongest possible indictment against the Administration under which they existed. In consequence of what then happened, I naturally desire that, apart . from the general principle involved, we shall see that this Bill sets out as clearly as it possibly can in every word the wishes of the Legislature, leaving as little as possible to regulation. Now I turn to the features of the Bill itself. Here again, in the very first portion of part 3, we have the pernicious principle of leaving everything to chance. Clause 9 provides that a quota shall be ascertained in each State “whenever necessary.” What is meant by “ whenever necessary “ ? It ought to be possible to state when the quota shall be ascertained; because the ascertainment of the quota would determine when the redistribution of a State was necessary. Who is to determine when it is “ necessary “ ? Surely it ought not to be left to an individual to say that he thinks, or does not think, that it is necessary. I can quite understand that the latter part of the provision might provide that the redistribution shall take place when the quota having been ‘found proves it to be necessary. But the verv first step towards the ascertainment of the quota is to be taken “ whenever necessary.” How is it possible to know when it is necessary, until the quota is found?
– Unfortunately for the Minister, the. same term is used in .that Bill-“ whenever necessary.” .It is , left optional with the officers whether they shall take action under it. It ought not to be left to a Minister or an officer to say when a thing of this sort shall be done. The Bill should set out in express terms the conditions under which the machinery shall be set in motion for the purpose of ascertaining the quota, and dividing the States into electorates accordingly. Passing from that, point, I wish to invite the attention of the Senate to the means by which these electoral divisions are to be adjusted. Honorable’ senators will see that the same option is left with the Minister to put the law in motion or not, just as he pleases. The present Act, in sections 19, 20, and 21, provides that the Commissioner appointed by the Government shall prepare a scheme of distribution, that that scheme shall be submitted to Parliament, and if both Houses of Parliament approve it shall be adopted by proclamation. A subsequent section in the Act provides that if either House of the Parliament disapproves, the Minister “may” direct the Commissioner to propose a fresh distribution. Honorable senators will see there, again, the same pernicious principle. If tooth Houses approve, all is right, but if either disapprove, then it is provided that the Minister, “ may “ direct the further distribution. This Bill, which seeks to amend the principal Act, still leaves the option, even in a more important particular, with the Minister. Clause 13 amends section 22 of the principal Act, the new words to be inserted being -
The Commissioner shall thereupon propose a fresh distribution in the manner hereinbefore provided.
The word ‘ ‘ may “ does not occur - there is no option in that clause. Thatlooks definite enough, but we have to remember that this new sub-clause is to be attached to section 22 of the main Act, which provides that if either House disapprove, the Minister “ may “ direct a further distribution. Clause 13, which applies to the Commissioner only, becomes operative if the Minister has exercised his option and directed the Commissioner to propose a fresh distribution. There is no compulsion on the Minister to send that direction to the Commissioner, because, as I have already pointed out, section 22 of the principal Act remains. If the Minister does send a direction to the Commissioner, the latter must prepare a new scheme, but if the Minister does not choose to take that step, the Commissioner is not in a position to revise his work. Unless the word” may,” in section 22, is altered to “ shall,” which finds a place in clause 13, it will be open to a Minister, who may desire to obtain an unfair party advantage by preventing the electors at that time from expressing a verdict which might’ be adverse to the Government in power, to hang up a redistribution scheme indefinitely. If there is one thing that honorable senators, irrespective of party, ought to earnestly labour in common to do, it is to provide in this Bill for such directions as will prevent the possibility of any particular Minister or party, tampering with the electoral machinery. The provisions ought to be so drawn as to place it beyond the option, discretion, or power of any individual to do anything which may not merely affect the composition of the Houses of Parliament, but may prevent the electors from’ registering their wishes in the only way open to them - that is by electing their representatives. Let me point to further indefiniteness in this division. Clause 14 is intended to amend section 23 of the principal Act, which reads: -
A redistribution of any State into Divisions shall be made in the manner hereinbefore provided, whenever directed by the Governor-General by proclamation.
We know, of course, that the GovernorGeneral means the Ministry of the day, and I should much prefer to see the conditions under which a proclamation shall issue clearly set out. This Bill recognises in clause 14 the desirability of such a course, but, as honorable members will see, the option is still left with the Minister of putting the clause in force. Clause 14 provides that the proclamation may be made whenever certain contingencies arise. Why should we not say that a proclamation “shall” be made, instead of saying that it “may “ be made? We know what we mean to enact. The conditions under which a proclamation ought to be made, and under which the Bill says it may be made, are : -
These are the simple facts which we all admit ought to determine a fresh redistribution. Why, then, should there be any indefiniteness ? Why leave it to a Minister who may wish to thwart the purposes of the Bill, to say whether or not a proclamation shall issue?
– A proclamation ought to issue automatically.
– Certainly; and I thank the honorable senator for the word. I should, in passing, like to point out what appears to me to be a serious error in drafting in clause 14. It will be noticed that the paragraphs 1 have quoted are connected with the word “ and,” .whereas, in my opinion, the word ought to be “or.” Clearly we desire to be able to direct the redistribution under any one of the contingencies set out, and not only when all three occur concurrently. Although this may appear to be a slight error, it is one which might have an important bearing on the operation of the clause. As to the word “ may,” we have had some reference to its use quite recently in this Chamber; and honorable members are aware of the perfect humility with which I received an avalanche of legal authorities that were hurled at me bv Senator Keating and other lawyers. I have since then been ‘fortified, but not by such an array of authorities as. Senator Keating was able to bring to bear. I desire to show that there is in existence an Act of Parliament which lends great support to the view I advanced, namely, that when we intend “shall “ we should say “shall,” and that when we mean “ may “ we should say “ may.” The Acts Interpretation Act of New South Wales, section 26, provides -
Wherever in an Act a power is conferred on an officer or person by the word “ may,” such word shall mean that the power may be exercised or not at discretion, but where the word “ shall “ confers the power, such word shall mean that the power must be exercised.
– That would make the decisions I quoted inapplicable, so far as New South Wales Acts are concerned.
– Exactly. I quite recognise that this section is in no sense applicable to Federal legislation. But I draw attention to the fact that one Legislature, at any rate, has had the courage to break away from the obsolete traditions of the past, and to recognise that whatever there may have been to justify the use of the word two or three centuries ago, when Acts passed were addressed to the Crown, the necessity for the word has passed away. There should be- no diffidence on our part in following the lead of New South Wales in this connexion ; in other words, we should give “ may “ and “ shall,” when used in an Act of Parliament, exactly the same meaning that they carry when otherwise used.
– To do- that it would be necessary to amend the Acts Interpretation Act.
– But the longer the delay the more difficult it will be to carry out such a reform.
– But we must do the right thing in the right way.
– I am not quarrelling with that view, but I point out that by every Act we pass, in which we use the word “may” when we mean “shall,” we make it more difficult to, later on, break away from tradition.
– “ May,” in this connexion, is a fetish.
– That is exactly what it is ; but the reason for its use in days gone by is understandable enough. In the early clays of Parliament, when an Act was really a resolution or petition printed by the Crown, in which Parliament probably may have stood in some awe, the word may have been- appropriate enough. But circumstances are different to-day, when the power of legislation, not merely in name or theory, but i’n actual fact, rests with the Legislature. However, I was referring to the clauses under which a redistribution takes place. The effect of the Bill, following, the original Act, is that a redistribution scheme, when it has been prepared by the Commissioner, comes to Parliament for approval or otherwise; and this opens up the whole question of the advisability of maintaining this parliamentary veto. I very much regret that the Government have not had the courage to break away from the existing law and practice which has already been shown to be pernicious. In my opinion, a redistribution scheme ought to Be prepared by authorities so high and so competent that whatever possible defects of detail there might be, it could be accepted. The very last body which I should regard as competent to exercise a veto is Parliament itself.
– One House is not competent, at any rate.
– Without wishing to make invidious distinctions, [ point out that Parliament, from its very nature, is opposed to any change. It is only human nature that members of Parliament, particularly of another place, where they represent local districts; should see in any change something to cause, at any rate, a feeling of temporary anxiety. Honorable members there are a force which must resist change. While they may believe they are acting for the public good, they are always, more or less, and, perhaps, unconsciously, biased by the fact that they are interested parties. It would have been much better if the Government had made a departure, and proposed the appointment of three commissioners one of whom might be a Judge of the Supreme Court of a State in which the Commission was called upon to act. Such a Commission should be intrusted with the duty of dividing a State into electoral divisions, leaving it open to any one to present objections; but when those objections had been listened to, and the Commissioners had finally revised the scheme, that scheme ought to be given the force and effect of law without any further reference to Parliament. The more we put the machinery of our electoral law above the suspicion of party or personal influence, the higher it will stand with the electors, and the better, in the long run, it will be for Parliament itself. I now come to that division of the Bill which deals with the electoral rolls, and here I would point out the confusion which I think may arise if this portion of the Bill be passed in its present form. It is provided, in the proposed substituted clause 30, that joint rolls may be adopted by the States and the Commonwealth; and, at first sight, I must admit that I was very much impressed with the practical advantage of this on the ground of economy. As a general principle, I quite accept the idea underlying this proposal, because it is very desirable if possible for the Commonwealth and the States to work together. But after carefully considering the clause, I have arrived at the opinionthat a great deal of confusion might arise, the effect of which would be to leave the elector in a more unfortunate position than that he occupies to-day. Economy is important, but I think it will be false economy if, as a result of saving the dual cost of preparing the rolls, we left the elector in such a position that, so to speak, he did not know exactly where he stood. The proposed substituted clause 30 is as follows : - 30. (1) The Governor-General may arrange with the Governor of a State for the preparation, alteration, and revision of the Rolls, in any manner consistent with the provisions of this Act, jointly by the Commonwealth and the State, to the intent that the Rolls may be used as Electoral Rolls for State elections as well as for Commonwealth elections.
When any such arrangement has been made, the Rolls may contain, for the purpose of such State elections -
The effect of this clause as it stands would briefly be that State electors who are not Commonwealth electors could be enrolled, and would be indicated as being only State electors. There is no provision for indicating Commonwealth electors who are not State electors. That may have been an oversight in drafting the measure. What is wanted is a roll which will indicate three sets of electors - thosewho are Commonwealth electors only, those who are State electors only, and those who are electors for both State and Commonwealth. The Bill provides for the classification of electors under only two headings. Mr. Garran prepared a memorandum on this subject for the present orthe previous Government, and he evidently intended that there should be provision made for three classes of electors, but in this clause provision is made for indicating only two classes - those who are State electors and those who are Commonwealth electors, and there is nothing to indicate electors who are entitled to vote at both State and Commonwealth elections. The clause says - provided that it is clearly indicated in the prescribed manner that those persons are not enrolled thereon as Commonwealth electors.
The effect of that would be that every Commonwealth elector could vote at a State election, but every State elector could not vote at a Commonwealth election. It is clear that something has been omitted there. I refer to this clause at some length, because it proposes the introduction, not of some amendment of the main Act, but of a new principle. The effect, in my opinion, will be this : We shall have electors, on seeing their names on a roll, assuming that they are there for all electoral purposes. An elector will ask if his name is on the roll, and he will be told that it is. He will not take the trouble, or will not know that it is necessary that he should take the trouble, to see whether he is qualified to vote at both State and Commonwealth elections. This may seem an extraordinary statement to make, but we know that at the last Federal elections it was proved that a number of electors on looking at the rolls found that their names were not there. What would happen if a large number of careless electors, seeing their names on the roll, and going away quite content, found out at the last moment that they were on. the roll for one purpose only, and not for the purpose of the particular election at which they desire to vote? I am inclined to think that this provision in respect to joint rolls ought to be limited to those States whose franchise is similar to our own. If that were done there would be no trouble.
– There is no State franchise similar to our own.
– Senator Trenwith volunteers the startling information that none of the States possesses a franchise similar to our own. I am aware of the fact. This clause, in any case, can only come into operation by an arrangement between a State and the Commonwealth, but I am contending that if we pass this clause there should be a proviso under which it would be operative only in the case of States which have a franchise similar to our own. The difference between the franchise in operation in many of the States and our own is quite nominal.
– I do not know of any State in which the difference is merely nominal. They all have a property qualification.
– If the honorable senator is aware of the existence of a State called “ New South Wales “ he will probably be interested to learn that adult suffrage is in force in that State, and the only material difference between the New South Wales franchise and the Commonwealth franchise is with respect to the period of residence anterior to enrolment.
– I think the same may be said of Tasmania.
– As Senator Keating reminds me, the same may be said of Tasmania.
– The same may be said of all the States except Victoria.
– I had in view the franchise for the Second Chamber in the States.
– I think it is only natural that Senator Trenwith should have had that in mind. The difference between the franchise of several of the States and that of the Commonwealth is so merely nominal that if they really desire to economize - and the economy will be for their benefit, and not for ours - it will be quite open to them to take advantage of the provisions of this Bill by making such slight alterations in their electoral laws as are necessary to bring them into uniformity with the Commonwealth law. Unless that is done, this clause will only lead to confusion. I am, therefore, not at all in love with this proposal, unless its application is limited to States whose franchise is similar to our own.
– Is not this rather a matter for discussion in Committee?
– It must not be for- gotten that the Bill in this respect intro- d uces an entirely new principle.
– Besides, the objection would be raised that the honorable senator had sprung this upon the Committee.
– I thank Senator Pearce for his interjection. One of the reasons why, in their second-reading speeches, honorable senators indicate what they regard as objectionable features in a Bill is in order that they may give the Senate some general knowledge of the form of amendment which they are inclined to submit for consideration. I am not in this case disposed to make any apology to the Senate, because I am dealing with an entirely new proposal. Arising out of the proposed joint rolls, further serious complications may take place. We have, under the existing law, in theory, at any rate, the practice of electoral divisions, with polling places within those divisions. In theory, the idea was to group electors around their natural polling places. In order to fall in with State requirements, an alternative subdivision is here proposed tobe called a” subdivision.” So that, instead of having an electorate with a division into polling places, we will have an electorate with a possible division into polling places, and with or without a pos- sible division into subdivisions. Honorable senators will recognise that no two electorates will necessarily be divided in the same way. One may have subdivisions with or without polling places ; another may have polling places without subdivisions ; and a third may have both. Arising out of this further proposed subdivision, there comes the question of the rolls, dealt with in substituted clause 31, which provides that -
Sub-clause 3 provides that he may have his name placed on any one polling place or subdivision roll for the division, whilst sub-clause 4 provides that he may have it placed wherever the regulations permit him to have it placed. This appears to me to be likely to lead to a very great deal of confusion. No one elector will be able to tell another what he requires to do, because the conditions of each may be different. In one case, where an electorate is divided into subdivisions, an elector may require to have his name on a subdivisional roll. In another electorate divided only into polling places, he may require to have his name on a polling place roll, and in another case the regulations may prescribe the polling place roll on which his name must appear. A further complication might arise, because we might have subdivisions coterminous with polling places, subdivisions embracing two or three polling places, or one polling place embracing two or three subdivisions. /The whole thing is going to be so complex that, without a map, the probability is that the average elector will never know where he stands. The principle of grouping men around their natural polling places was admirable; but now, in order that we may work in with an economical system of registering State and Commonwealth electors, we are proposing to do something which the Government have not really had the courage to do, and that is to divide the various electoral divisions into units which may be taken from, or added to, an electorate.
– The States and Federal polling places are nearly identical.
– There’ is no objection to that, but I point out that as the Bill stands we are being asked to depart from one excellent principle, and the framers of the measure have not had the courage to go the whole way towards the adoption of another principle. The principle of our existing law is the grouping of electors around their polling places. The suggestion on which this portion of the Bill is founded has been put forward by Mr. Garran in his very admirable paper.- He has proposed that the States should be divided as far as possible into areas, not equal in geographical extent, but fairly equal in the number of electors they contain. A sufficient number of these “units,” as he calls them, might be bracketed together to make an electorate, and if the population increased somewhat in one electorate, one or two of these units could be taken from it and added to another electorate. It reminds one somewhat of the bricks with which children are enabled to form all sorts of pictures. The adoption of this principle would have enabled States electorates to be arranged by the bracketing of these units, and the same process could have been gone through where a redistribution was necessary for Federal purposes. But evidently when the proposal came to be considered, the expense of dividing the whole of Australia, into sufficiently small parcels proved to be too appalling for contemplation, and it was therefore avoided. I can see no other reason for refusing to give effect to the principle proposed. Because honorable senators will recognise that, if that system had been followed, it would have been necessary to indicate by clear boundaries exactly where one unit commenced and another unit ended. All the boundaries of particular units would have had to be described, and that would have been a very heavy undertaking indeed. It is in order to avoid that expense that they seek to take the power to be utilized only in certain circumstances. In certain electorates, where it is convenient, they will utilize the power, but in other electorates, where it is not convenient, they will not do so. That is almost like saying, “ If there is an advantage in a certain direction, which we can only see under certain circumstances, why should we not use the power?”’ The great difficulty will be that no elector will know where he stands. Surely our electoral machinery is sufficiently complicated as it is. I have found great trouble in advising persons exactly what to do. How much more difficult will it be if we have the electoral divisions cut up in different ways? We may have a subdivision coterminous with a subdivision containing two or more polling places, or we may have a polling place without a subdivision, or containing one or more subdivisions. The whole thing will be so complicated that no elector, until he has made ordinary inquiry and special reference, will know exactly what he ought to do in his particular case. This brings me to the departures which have been made from the principle of the original Bill, which was the grouping of electors round their polling places. First, we said that an elector could get enrolled at a polling place other than that to which, by reason of his location, he really belonged; secondly, we allowed an elector to vote at any polling place by using form Q; thirdly, we allowed postal voting; and, fourthly, by a regulation, we allowed an elector practically to vote anywhere. These departures from the main principle are all extremely desirable in their way, because they allow odd scores of electors, who for some reason or other are not able to vote at their polling place, to exercise their suffrage.
– Not scores, but hundreds.
– That may be so. Whilst it is desirable to provide machinery to allow what I call odd scores of electors to vote, we must be very careful - and the inquiry of the Select Committee proves the necessity for exercising great care - that we do not make these openings so wide as to threaten the very existence of the principle of grouping electors round their polling place. In the absence of an electoral roll, the only effective check we have is by locating the electors. In this Bill the power of enabling an elector, by a mere regulation, to vote anywhere outside his division, appears to have been dropped.
– No; only two subsections of the section are proposed to be repealed. One sub-section will remain in force.
– If that is the case I have made an error. There are many provisions which I am pleased to see in the Bill. The fact that I am indicating provisions to which I object must not be taken as implying that there is not a good deal which excites my approval. It appears to me more advantageous to the Minister and to the Senate to point out what I regard as the defects of the Bill, rather than the portions which are improvements on the present law. The abolition of Revision Courts is, I think, a very wise departure. The Courts are costly and useless; they simply affirm, without any protest, what the officers have done. The proposal in the Bill is that the Courts shall only be set in operation when a dispute arises. That is the ordinary function of a Court anywhere. Honorable senators will notice that in clause 40 there is a discrimination against the Senate elector which I do not think is just or right. It provides that while an elector may vote outside his polling place at an election for the House of Representatives, the power which he previously enjoyed of voting outside his polling place at a Senate election appears to be taken away.
– If the honorable senator will look at clause 40 again, he will see that it proposes to replace only subsections 1 and 2 of section 139 in the principal Act, and not sub-section 3.
– That is power by regulation.
– That is all the power we had before.
– The clause places a specific embargo on a Senate elector when it says -
In an election for the Senate, an elector may vote only at the polling place for which he is enrolled, or a prescribed polling place for the subdivision for which he is enrolled.
As it is laid down that an elector may vote, by form Q and in other ways, at any polling place in his division at an election for the House of Representatives, why should he not also be entitled, without a regulation at all, to vote for a Senatorial candidate at any polling place?
– That is what we fought for in the first Bill, but we were defeated. We were only able to carry the provision for a regulation.
– I do not read the clause in the same way as my honorable friend. In view of this specific embargo which it places upon Senate electors–
– The honorable senator will find that it is only a consequential’ amendment.
– That shows the undesirability of amending the law in this way. Our work would have been greatly simplified if an entirely new Bill had been submitted. I had overlooked the fact that it is proposed to repeal only two subsections of section 139 of the principal Act. But I am not at all certain whether the question of limiting the right of electors wishing to vote for Senatorial candidates is not raised by sub-clause 2 of clause 40 of this Bill.
– Clause 40 in this Bill, being the later provision, would override sub-section 3 of section 139 of the principal Act.
– I take it that if the clause does contain the defect I have suggested, it is not the Minister’s intention that it should.
– No.
– That is satisfactory.
No provision appears to be made in the Act for the Court of Disputed Returns to decide whether a successful candidate is qualified when elected, or has become disqualified if the point be raised. It’ is desirable in an amending Bill to provide as far as possible for all contingencies which are likely to arise. A question which may be raised at any time is whether a candidate is qualified or has become disqualified. These two contingencies might reasonably be provided for in the Bill. SenatorPearce has given notice of an amendment dealing with voting machines. I have not had time to study its terms, but the Committee to whose report I have referred expressed the opinion that there was a great deal of utility in the machines, but that they were not able to specifically recommend any one. The report ought to suggest to the authorities the propriety of making an inquiry and, possibly, an experiment, with a view of testing their efficacy. A voting machine is certainly a more economical method of taking the votes of electors than the present manual method ; but we shall never know whether the claims advanced on its behalf are substantial or not unless we, by inquiry and experiment of some kind, test their efficiency. Some steps should be taken to determine practically whether or not we can by this mechanical means expedite both the work of the electors and the work of the electoral officers. In conclusion, I would express the hope that, in dealing with a measure which is necessarily free from party significance, and which. I believe, every one earnestly desires to make as workable as possible, the Minister will receive suggestions for its improvement with an open mind. He will, perhaps, forgive me for saying that apparently, in the case of another Bill, he rather resented suggestions, as being to some extent an attack upon it.
– It is a good principle for a Minister to stick to his Bill.
– I can understand an old warrior expressing that view, but the application of the principle can be carried too far. I hope that in the case of a Bill where the mind of every honorable senator will be directed to making its provisions as perfect and smoothly working as possible, the Minister will receive all suggestions with an open mind.
– I think that speeches such as the one which Senator Millen has delivered are very helpful to the Senate, and must be of service to the Minister in charge of the Bill. This is necessarily a Bill to be discussed in Committee rather than in the Senate. The main principles of our electoral law were discussed and defined in 1902.
– And very bad principles most of them are !
– What better proof can we have that our Electoral Act was framed on right principles than the presence of the honorable senator ? The points raised by Senator Millen are all well worthy of the attention of Ministers, and, if raised in Committee, would not have received that attention that they will receive now that they have been raised at this stage. The first point was in regard to (he provision for the quota. I certainly should advise the Government to recast those clauses altogether. They are bad in principle, and the machinery for carrying them out is vague. They will, I think, work out with bad results. The words “ whenever necessary “ undoubtedly give a wonderful scope to the Minister. They are altogether too elastic. Furthermore, surely in this Bill, which, in regard to the ascertainment of the quota, will have to be read in connexion with the Representation Bill, we should have some reference made to the means of arriving at the quota. There should be on the face of the Bill an instruction to those who are to ascertain the quota that they shall automatically adjust it whenever the machinery provided proves that an adjustment is necessary. I agree with Senator Millen that it ought not to be left to Parliament, and certainly ought not to be left to parties, to determine when a redistribution of seats is necessary. I contend that if we leave the Bill as it has been introduced, the matter will always be dealt with on party lines. Senator Millen fell into error, however, when he said that it is unwise to leave Parliament to settle the matter. Unfortunately, it is not Parliament which settles it. It is one House ofthe Parliament. It is the House that makes and unmakes Ministries. As he pointed out, the status quo is always satisfactory to the member who is in occupation, and any readjustment will be a disturbance. So long as we leave in the Bill a provision that there is to be no automatic readjustment, so long will it be a party readjustment. It is just as well to face that fact, when we can discuss it quite apart from party considerations. The Senate is also, to some extent, a party House.
– It ought not to be.
– But it is; and if we leave the Bill as it stands this question will be settled on party lines. I suggest the advisableness of redrafting that clause, and taking out the provisions allowing the electoral officer “ whenever necessary ‘ ‘ to readjust the quota, making it automatic and dependent upon the operation of the Representation Bill.
– The honorable senator means that all the clauses dealing with the redistribution should be redrafted.
– Yes. Then there is the question of the establishment of polling places. Hitherto the matter has been in the hands of the Governor-General in Council. In future, under this Bill, the establishment of polling places will be the act of the Minister. At the first blush, I was inclined to oppose that idea. But the experience of the last general election showed me that, in a growing State especially, it is absolutely necessary that the Minister should be able to proclaim polling places. Prior to the last election, there were numerous requests from my own State for polling places to be established at newly-discovered alluvial diggings ; but, because of the fact that this had to be done by the Governor-General in Council, it was practically impossible to get them established. The Minister is responsible for the working of this measure, which is one to enable the voters of the Commonwealth to exercise the franchise. It should be within his power to establish polling places -wherever required.
– Why should not that be done by the Chief Electoral Officer?
– I presume it means the Chief Electoral Officer when it says the Minister. It is certainly wise that the Minister should have control of the Chief
Electoral Officer, for the reason that the establishment of polling places carries with it the power to close polling places; and if the Minister were to abuse his power in that respect there would always be recourse to Parliament, whereas if a polling place had been closed by the Chief Electoral Officer, the Minister who might have prompted him to do it might shield himself behind the fact that the power was not in his hands.
– Does not this Bill make the Minister responsible?
– Yes, and I agree with that, because he ought to be responsible. When the power was left in the hands of the Governor-General in Council the Minister, although responsible for the administration of the measure, had not the power to make it work. I think the alteration is a very valuable one. The next point to which I have to allude is one with which I cannot agree. I refer to clauses 23 and 24, which amend sections 62 and 63 of the principal Act. Under these clauses we are extending the number of officers who may be able to alter the electoral rolls. I think it is quite justifiable that the divisional returning officer or the chief returning officer should be able to place names upon the roll or to remove them, because these officers are persons over whom we have control. They are not partisans, but are public servants carrying out their duty. But these clauses go further), and direct that the electoral registrar may alter and strike out names. Electoral registrars are very often by force of circumstances’ partisans. They are party politicians. It is surely inadvisable that persons holding party views, as many of these men do, should have the right to strike names off the roll or to put them on. Further, there is nothing in the Bill’ to show at what stage this can be done - whether at the time of an election or after the time that the alterations can be made by other means.
– There is a limit beyond which they cannot go.
– That is provided in the principal Act, but I understand that section 62 of that Act is to be repealed. I have compared this Bill with the principal Act, and I have not been able to find any limitation. I should like the Minister to make a note of that, and to explain if he can when this power ceases tobe given to the electoral registrar,- and also whether he thinks it is safe to give such a power to men who are not paid officers, who are beyond the control of the Minister, and who in many cases are political partisans.
– I think that section 64 of the Act still remains in operation, and that imposes the limit.
– I do not think that Senator Millen’s explanation is altogether satisfactory, because section 64 of the principal Act deals with the question of claims and applications for transfer. Clause 23 of this Bill seems to give very extensive powers to electoral registrars, and
I trust that before it leaves the Senate, unless good reasons can be shown for the extension of those powers, amendments will be made. In dealing with divisional returning officers the Bill says, in sub-clause 2 of clause 23 -
Rolls may be altered by the divisional returning officer by adding the names of any persons who he is satisfied are entitled to be enrolled.
That also seems to me to be very vague. What is to satisfy him? On whom does the onus of proof lie? There is a vagueness about the provision which we should certainly endeavour to remedy.
– Is not that in keeping with the whole Bill?
– It is certainly in keeping with the clauses regarding redistribution. In regard to the amending clauses by which voters may vote at separate polling places, Senator Millen is under the impression that some alteration has been made, and that some privileges which voters had in voting for the Senate have been taken away. I think that on reconsideration he will see that, although clause 40 amends section 139 of the principal Act. it does not do so in a way that takes away any of those privileges from voters for the Senate. Because, while it leaves out the words “except as provided in sub-section 3,” I think that the effect of amending the Act in this way will be that the altered statute will not take away the right conferred by the proviso in the principal Act. I take it that the Bill will be read with the principal Act.
– But any provision in the amending Bill which is inconsistent with provisions in the principal Act will override or repeal the latter.
– That is a legal point, and I should like the Minister to be thoroughly satisfied that Senator Gould’s reading of the provision will not have the effect I fear. I fought strenuously for this particular sub-section, and I know, from my experience during the last election, that it was the means of several hundreds of voters in my district being able to vote who otherwise would have been disqualified. Any amendment which would have the effect of nullifying sub-section 3 would be received with intense dissatisfaction.
– There is a distinct provision that in an election for the Senate an elector must vote only at the polling place for which he is enrolled.
– That is practically, in effect, the same provision that was made in section 139, except that the words are slightly different.
– Sub-clause 2 of clause 40 will override sub-section 3 of section 139.
– Surely, if the Government do not make regulations, or the regulations are disallowed, an elector for the Senate will have to vote at his polling place; but, in the event of regulations being made and put in force, he will vote according to the regulations.
– The honorable senator had better not rely on that.
– Senator Pearce will agree that, if there is a doubt, we had better be on the safe side.
– Certainly. I am glad that the point has been raised, so that the Minister may satisfy the Committee that the effect will not be as pointed out by Senator Gould, and that, if there is any doubt, the matter may be made perfectly plain. As to voting machines, it would be a pity, in an amending Bill, not to provide that any satisfactory appliance, which, while effecting saving in time and money, would safeguard the purity of the ballot, could be taken advantage of without the necessity to introduce an amending Bill. In! the amendment which I have circulated, provision is made for all details of any machine to be laid before Parliament, and, unless Parliament disagrees, to allow that machine to be used ; and I hope that some provision of the kind will be made.
Debate (on motion by Senator O’Keefe) adjourned.
page 3131
Assent reported.
page 3132
– I move -
That the Bill be now read a second time.
This Bill has been circulated for some days, and, in moving the second reading, I propose to confine myself to its main principles. Honorable senators are aware that in section 24 of the Constitution, provision is made for the composition of the House of Representatives, and for the method by which the number ofmembers for each State shall be decided. The section sets forth that the number of members for each State in the House of Representatives shall be in proportion to the number of people in the State; and sections 25 and 127 provide that, in estimating the number of people in a State for this purpose, certain persons shall be disqualified and not counted. Some discussion has taken place as to the proper construction to be placed on section 24. The second paragraph of that section is as follows : -
The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner : -
Then provision is made in two paragraphs for the ascertainment of the quota, and, by the division of the quota into the number of people in the State, the ascertainment of the number of members to which the State is entitled. The question naturally arises as to how the words “ be determined “ shall be understood - that is to say, by whom the determination shall be made; and there is the further question, how the words “ whenever necessary “ are to be construed.
– The Minister admits that the words are indefinite?
– No doubt.
– Whether they occur in the Constitution, or in an Act of Parliament?
– The question arises, how we are to determine the number of members ; that is to say, who is to be responsible for the determination of the number. Then, as I have already said, there is the further question as to the const ruction of the words “whenever neces sary.” That is - When shall the determination be made, or take place? In The Annotated Constitution of the Australian Commonwealth, prepared by Quick and Garan, some comments are madeon page 454, on this section. It is there stated by the learned authors -
The Constitution does not expressly say by whom this determination is to be made. Whenever it is “ necessary “ to re-apportion the members, the only data needed are the “ latest statistics of the Commonwealth,” showing the population of the Commonwealth, and of each State. Given those figures, the rest is mere arithmetic ; and according to the maxim - Id cerium est quod, cerium reidipotest - the numbers are then already determined.
Parliamentary authority would, however, appear to be required for two purposes : - (1) To provide for the preparation of the latest statistics, andto identify those statistics by law ; and (2) to declare when re-apportionment is “ necessary.” As the statistics are at the root of the representative system, it is important that they should be clearlyrecognized and identified by Act of Parliament; and even when that has been done, it would be most undesirable that the Executive should be left to decide for itself whether re-apportionment were necessary.
The Constitution does not prescribe any regular interval for re-apportionment, nor does it require that re-apportionment should take place at every general election, if later statistics are available ; it merely provides that apportionment shall be made “ whenever necessary,” and that when so made it shall be according to the latest statistics. The Parliament is apparently left to judge for itself when the necessity arises. The only reliable basis of population statistics is a census; and it may be presumed that the Parliament will provide for a periodical - probably a decennial - census, and will require that after each census the number of members for each State shall be determined afresh. Such determination, when made, will of course not take effect till the next general election.
This Bill has for its object to determine, according to general principles, the latest statistics of the Commonwealth for the purpose of giving effect to section 24 of the Constitution. There is the further object of taking away from the Executive the determination as to the necessity or otherwise to reapportion the representation in accordance with the principles referred to by Quick and Garran, in the note I have just quoted. In the Draft Constitution Bill of 1 89 1 provision was made for a decennial census to be taken by the Commonwealth, and for the apportionment of the representation amongst the States in accordance with figures which would then indicate the respective populations of the States. But the Federal Convention of 1897, for reasons best known to itself, departed from the principle laid down in 1891, which was -
A fresh apportionment of representatives to the States shall be made after each census of the people of the Commonwealth, which shall be taken at intervals not longer than ten years. But a fresh apportionment shall not take effect until the then next general election.
At present there is no provision in the Constitution that the census shall be taken at any fixed period. In accordance with the practice of the States in the past - a practice which we believe will be continued in the future - a census is taken every ten years, in the year ending with the figure 1 - 19 1 1, 192 1, and so forth. The question again arises as to what a>re the latest statistics of the Commonwealth, as the term is used in section 24 of the Constitution. Obviously, if we are to depend on the census as being the latest statistics, then we must take the figures disclosed by the censuses of 1901. It is true that the censuses’ were then taken in the several States simultaneously, but there was no agreement as to general principles. Since 1901 the Statisticians of the various States have assembled in conference in Melbourne, and have agreed on uniform principles, which will be adhered to hereafter in taking the censuses of the several States. The Bill proposes, in order to -meet the circumstances arising out of the duty that . devolves on Parliament under section 24 of the Constitution, not to confine the apportionment of the (representation to every ten-year period immediately after the taking of the census. We recognise that the circumstances of Australia are such as, in many instances, to cause great fluctuations of population during a very much lesser period than ten years. We have only to take the case of Western Australia, more particularly recently, to realize that it is quite possible, after the lapse of two or three years, to have disturbances of population so great as to entitle a State to an extra representative; or, on the other hand, to necessitate a reduction in the representation. The Bill deals with general principles, and not with any particular set of circumstances at a particular period. It is provided that there shall be what are called enumeration days, in order to ascertain the population of the Commonwealth for the purposes of the Bill, and in order to comply with section 24 of the Constitution. It is provided that until there shall be a Commonwealth census taken in accordance with the general principle, the States censuses shall be adopted as a basis. It is further provided that every census day - that is, a Commonwealth census day, or, until such shall have been instituted, a State census day - shall be an enumeration day;’ and that on the expiration of five years after each census day, whether Commonwealth or State, as the case may be, there shall be another enumeration day. The Chief Electoral Officer is charged with the responsibility of making an inquiry into the population of the Commonwealth and of the several States on each enumeration day. Whenever an enumeration day and a census day happen to be the same the returns from the census will be the basis* on which he will work. When an enumeration day does not happen to be a census day, but a day intervening between two censuses, and five years from the date of the latest census, the returns from that census shall be the basis on which he will work. He is charged under this Bill to work in this way. He will take the latest census returns of population as indicated on that day, if it be a census day, or on the latest preceding census day, if it be an intervening enumeration day, and he will take from the numbers indicated in the census returns the number of persons who are not to be counted in the population, in accordance with section 25 of the Constitution, that is to say, persons belonging to races which, by a law of a State, are disqualified from the franchise. He will further deduct the number of persons who, by section 127 of the Constitution, are not to be included amongst the population of a State, that is, the[ aboriginal natives. Before making these deductions, he will if the day be not a census day but one of the intervening enumeration days, have to make certain allowances in accordance with a schedule to this Bill.
– He has to ascertain the number of arrivals and departures.
– Ves; that is provided for in the Bill. Notice is to be taken of the increase or decrease of population arising from births and deaths, and from arrivals and departures, whether by sea or land. He will take these figures as supplied to him by the Statisticians of the various States. Of course, if we have a Commonwealth Statistical Department he will take them from that source. In addition to all this, he will have to make certain percentage allowances and deductions for unrecorded arrivals and departures
These percentages will be found set out in paragraph 5 of schedule A. The provisions of this schedule w,ere agreed upon by the several States Statisticians at the conference held in Melbourne in 1903, to which I have already referred, and they embody the principles on which they will hereafter uniformly act in carrying out the census for their respective States. This is the first time legislative effect has been sought to be given to these principles. They are not the invention of any one in particular, but the principles determined on at that particular statistical conference, as those which shall hereafter guide the statisticians of the various States in the preparation of their statistics. The Electoral Officer will make his enumeration whether it be on a census day or an intervening enumeration day every five years, by taking the population statistics from the returns of the census, making allowance wherever necessary for arrivals and departures, and excluding the number of the persons which must be excluded under sections 25 and 127 of the Constitution. Having thus ascertained what is the population of the Commonwealth, and what is the population of each of the States he is to return a certificate in the form prescribed in schedule B of the Bill to the Minister. This certificate must be forthwith gazetted, and it must also be tabled in both Houses of Parliament. The Bill provides, in clause 8, that the certificate shall be evidence, practically of the matters it contains, that is. of the population of the Commonwealth and of .the several States, for the purpose of carrying out the objects of this Bill and of section 24 of the Constitution. So soon, then, as these figures are ascertained, the effect of this Bill will be to adopt them as the latest statistics of the Commonwealth for the purposes of section 24 of the Constitution. Proceedings can thereupon be, taken in accordance with that section and clause 9 of this Bill for the re-apportionment of representation.
– The honorable arid learned senator has said, I think, that steps “ can “ be taken.
– Steps will be taken. I think there need be no doubt whatever about that.
– I merely point out that the Minister, in interpreting the Bill, has adopted language in absolute conformity with that it contains.
– When I say “can,” taken in this connexion, I mean can be taken with justice to all concerned, so that there can be no doubt that the reapportionment pf representation will, be carried out in accordance with the principles of the Constitution. I shall say that steps will then be taken by the Ministry of the day to give effect to section 24 of the Constitution. The only other provision of the Bill to which I need direct attention is that in clause 10, which is in conformity with the provisions of the Electoral Bill now before the Chamber, to the effect that in the event of any re-apportionment, of representation taking # place, or any fresh distribution of seats being on the tapis, it shall not take effect in the case of any bye election, but from the next general election thereafter. From the statement. I have made, honorable senators will see that the object of the Bill is to give effect to section 24 “whenever necessary.” The words “ whenever necessary “ are somewhat vague as used in the Constitution, but we are endeavouring to establish a fixed principle that practically to all intents and purposes the latest statistics of the Commonwealth shall be taken every five years, and that until a Commonwealth Statistical Department is in existence we shall avail ourselves of the work of the States Statistical Department. When the Commonwealth Statistical Department is established we shall take advantage of it, and though we may only have a decennial census, we shall still have every five years an enumeration day. We shall make each census day an enumeration day for the purposes of this Act, and so we shall be able to give effect to the provisions of the Constitution at least every five years.
– So that no State can gain or lose a member inside of five years.
– That is so.’
– I suppose we shall be able to get the census as it is taken now.
– Nearly all over the world the census is taken at the end of a. year ending with a “ 1.”
– Before the honorable and learned senator sits down he might say why, under the provisions of this Bill, everything is clear and emphatic up to the taking of the census, and after that everything is optional with the Minister.
– We can deal- with that in discussing the Bill in Committee, as we can deal with’ other matters to which the honorable senator has referred this afternoon. At present I ‘am indicating the general principles of the Bill for the guidance of honorable senators. The main principle of having an enumeration every five years is in conformity to a large extent with what is, or with what was, if it is not now, the principle adopted in New Zealand. In some countries the opinion is held that a ten years’ period is a sufficiently short one for a redistribution of representation. As I have said before, we recognise the peculiar circumstances of Australia, and are prepared by this Bill to adopt the principle that at least every five years any anomalies of representation which may have crept in shall be corrected.
– Presumably the first enumeration will take place at the next general election.
– I overlooked that point. It is provided that, as soon as possible after the passing of this Bill, an enumeration day shall be appointed.’ The enumeration that will then take place will be upon the basis of the last States census returns of population, so that effect may be given to the Bill as early as possible.
Debate (on motion by Senator Millen) adjourned.
page 3135
Motion (by Senator Playford) agreed to-
That the Senate at its rising adjourn until halfpast three p.m. to-morrow.
page 3135
Senator PLAYFORD laid upon the . table the following papers: -
Correspondence between the Prime Minister and the Premier of New South Wales respecting a draft Bill to expedite settlement of the Capital Site.
Ordered to be printed.
Regulations under the Customs Act of I90 - Statutory Rules, 1905, No. 61.
Senate adjourned at 6.28 p.m.
Cite as: Australia, Senate, Debates, 4 October 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19051004_senate_2_27/>.