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Tuesday, 12 December 1905


Mr CONROY (Werriwa) - I certainly agree with the view taken by the honorable and learned member for Northern Melbourne. If we set aside the High Court as the tribunal to which disputed elections shall be referred, we shall take a distinctly retrograde step. It must be admitted that the High Court is better fitted to conduct an inquiry than is any body of men who have no special legal training. Having regard to the Standing Orders which we have passed, it seems probable that in the near future the dominant party will begin to recognise that a member of their own ranks must be chosen to act as Speaker. It is useless to mince matters, because, as the result of the passing of Standing Orders similar to those -to which we have agreed, the Speaker in the House of Representatives of the United States is vested with so much power that the dominant party returned from time to -time make no secret of their determination to choose from among their own ranks a Speaker who will represent them.


Mr Chanter - If Mr. Speaker were to act in the manner suggested by the honorable and learned member, the difficulty would be overcome by the provision for a ballot of the whole House.


Mr CONROY - A member of the legal profession who appeared as counsel for the successful party in a case which came before the Elections and Qualifications Committee of New South Wales within the last six years, told me that any Court of which he was aware would have decided against him, and that he was very thankful that he had to deal with a body of nonprofessional men. I would add that the expenses incurred in connexion with the settlement of that dispute by the Committee' were not one whit less than they would have been had the matter been dealt with by a Court. In the latter event, the probability is that it would have been settled in one day.


Mr Webster - May not the honorable and learned member's informant have erred in his judgment?


Mr CONROY - He thought that the law was so clearly against him that he would have been unsuccessful. Can it be said that the cost of petitioning against the return of a member, or of contesting such a petition would be reduced if we allowed such cases to be dealt with by an Elections and Qualifications Committee?


Mr Webster - If we referred them to such a Committee, and decided to exclude the lawyers, the expenses would certainly be reduced.


Mr CONROY - I think that the honorable member took that view of the position when we were dealing with the Conciliation and Arbitration Bill. But we all know that in two cases which came before the Arbitration Court of New South Wales, and in which counsel were not briefed, the decision of the Court was reversed on appeal. ' An Elections and Qualifications Committee would take just as long to deal with a petition as would the High Court, ana another point is, that upon the finding of the Court a criminal charge might be brought against one of the parties. Is it in our power to appoint a Court of such a nature that it cannot try a man judicially?


Mr Chanter - We have power to create any Court.


Mr CONROY - The honorable member must recollect the case in which the Chief Justice declared that the provision in the Customs Act, that the averment of the prosecutor shall be taken as proof of the charge until the contrary is shown, was such a departure from all the principles of law by which we are guided, that the Federal Parliament had no power to pass it. The case was tried on the assumption that this Parliament had exceeded its powers.


Mr Chanter - Is not this Court the highest in the land?


Mr CONROY - The Constitution provides for a Court outside, and beyond this Parliament. Surely the honorable member will see that the High Court is appointed by the Constitution, and until that is altered this Parliament cannot be a judicial Court. To refer election disputes to a Committee of Elections and Qualifications would be to lengthen, not to shorten, proceedings. It is proposed to allow such a Committee to try cases of bribery, or undue influence involving penalties of £200, or imprisonment not exceeding one year. Such a Committee would, in my opinion, be exceeding its powers for imposing such penalties.


Mr Chanter - The High Court has decided that it cannot impose these penalties.


Mr CONROY - They have done so in part. I ask the honorable member, therefore, if any other Court would have the power? There would be an appeal from the decision of the Committee to the ordinary Courts, and that would lengthen proceedings, and increase expenses. Some honorable members wish to substitute the Committee for the Court, to save expense; but, as -I have shown, it would increase expense. Our experience goes to show that a Committee would not be more trustworthy than the Court, and the proceedings before a Committee would be more expensive than the proceedings before the Court. As an instance of what happens in America under the system which some honorable members wish to adopt here, let me mention the case referred to by Mr. Lawson in Everybody's Magazine. A cer- tain Senator Clark having been returned, a petition was presented against him. In America these petitions are dealt with by the Senate, whose decisions cannot be upset. Senator Clark was so satisfied that he had been properly elected, that he resigned his seat to test the matter, and was again elected, when one of the agents of the Standard Oil Trust came to him, and said, " The first petition was brought against you because you are opposing the trust, and another petition will be brought against you, and you will be unseated, unless you side with the trust." Senator Clark laughed, and said, " You cannot persuade me of that. If you put into my hands proof that I shall be unseated, I will vote with you." Within a week, however, the proof was forthcoming that he would be unseated if the petition was proceeded with. He thereupon said, " If that is what politics have come to, I toss the whole thing up, and vote with you." Such a thing would not have happened had the case been brought before a Court, and in Amercia efforts are being made to have these matters dealt with by the Courts. It is only natural for a man to think that a member of his party is more entitled to be heard than a member of another party, but the point which I wish to specially emphasize is that there would be no saving of expense by allowing disputed elections to go before a Committee. The honorable member for Gwydir knows how a strict Chairman can keep a man to the point, so that even one with his powers of twisting round a subject cannot string out his speech for any great length df time, and in a Court Judges keep counsel strictly to the point. In some arbitration cases in New South Wales, where proceedings are supposed not to be in accordance with strict legal rules, we find the parties nine times out of ten going into side issues quite apart from those first submitted, and, consequently, cases take days to finish. The witnesses' expenses would be the chief item in the bill of costs in any case involving charges of bribery or undue influence or intimidation, and- that item would be no smaller if the case were heard by a Committee than if it were heard by a Court. I know of a case in New South Wales in which the witnesses' expenses, because of the delays which occurred, came to £1,200, while the other expenses did not amount to £300. Had that case not been heard before a man of legal training, it would have occupied much longer than it did. What took place before the Tariff Commission shows howirregular are the proceedings of bodies of this kind. Mr. McKay swore before that Commission that the price of harvesters in the Argentine was so much, and in Canada so much. He did not attempt to prove that statement, and it turned out to be absoluely untrue. The Government, however, accepted it, and sent to the Argentine and to Canada for confirmation, when they ascertained that the price of harvesters in the former place, instead of being £80, was £41, and In Canada, ,£36. The Commission could have forced Mr. McKay, in a very simple way, to prove his statement, but they were content to take it as it stood, with the result that the Government undertook heavy expense in making inquiries which came to nothing.


Mr Tudor - Does the honorable member desire that we shall finish this week ?


Mr CONROY - I am opposed to hasty legislation at any time. The effect of rushing through legislation at the end of a session, as I have pointed out before, is to make amending legislation necessary, and to give work to the lawyers, about whom honorable members are constantly complaining. If we wish to prevent opportunities for litigation, we should devote great care to the framing of our legislation. The experience of England and America shows that nothing will be saved by substituting a Committee for a Court. A Committee would allow any statement to be made by the witnesses appearing before it, instead of confining them to relevant evidence, and, consequently, a great deal of time would be occupied in putting forward and contradicting irrelevant testimony. That would not take place before a Court. Neither could it be argued that a Court would show favoritism. But we could not be sure that a Committee would not do so. Even honorable members possessing the best intentions would be affected by party bias. Therefore it would be unwise to make the proposed change. In a case of bribery, moreover, an immense number of witnesses would probably be called, and, as Committees cannot sit every day, the parties would be put to great expense in maintaining them.


Mr Chanter - The Tariff Commission has been sitting even' day.


Mr CONROY - All its (members do not attend every day, and if the Committee for Elections and Qualifications sat every day, some of its members would attend one day and others another day, and the cases would be dealt with by the men who had not heard the whole of the evidence submitted. If any member of a Committee, who had not been present for the whole of the time, joined in a decision to unseat a member on the ground of bribery, the finding might, in my opinion, be upset. We cannot cheapen the law in the way proposed. We cannot do more than provide that only a certain sum shall be allowed for expenses, and that only one counsel shall be employed1. That would be some slight check. It would have been very hard on the honorable member for Riverina if he had been unable to recover costs? The honorable and learned member for Northern Melbourne indicated that unless some safeguard were provided, it would be possible for a vindictive man to go on with a case in the hope of inflicting monetary loss upon his opponent. All my reading has shown that it is a mistake not to have a judicial body to decide questions such as those arising out of election disputes. A Court made up of partisans is not likely to approach the question in a judicial frame of mind. Therefore, it would be a mistake to dispense with the present tribunal. If we make the change proposed, we shall certainly not lessen the cost to litigants. I feel sure that the -very first time that the Elections and Qualifications Committee is called upon to deal with a case of bribery or undue influence, very heavy, expense will be incurred. Both the successful- and the unsuccessful party will be landed in such heavy expenses that honorable members will seriously consider the desirability of making a change.







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