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Friday, 15 December 1905


Mr Higgins - They are worse than that. They cause confusion.


Mr GROOM - I ' admit that it is difficult to know exactly what they mean. I believe that they were taken from the South Australian Act.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Do I understand that the Minister is prepared to adopt them, although he is not clear as to their meaning i


Mr GROOM - No. The amendment has been suddenly sprung upon us, and I think it would be dangerous to agree without consideration to the omission of words which have been deliberately inserted in an Act of Parliament. I confess, however, that it is somewhat difficult to arrive at the meaning of these words. I ask the honorable and learned member not to press his amendment, and promise him that I shall look into the matter. 1

Mr. JOHNSON(Lang).- I trust that these words will be struck out since the Minister himself admits that they are inexplicable. The honorable and learned member for Northern Melbourne has shown that they are, practically a repetition of the preceding part of the provision, and that their retention is likely to lead to confusion. I, therefore, support the amendment.

Amendment of the amendment agreed to. Proposed new clause, as amended, agreed to.

Mr. DUGALDTHOMSON (North Sydney). - It is not my intention to proceed with my proposal to move the insertion in the Bill of a new clause providing that the seat of a member of either House, who directly or indirectly takes or agrees to take any fee or honorarium for doing work in connexion with the Parliament, or any Department of the Public Service, or for making representations to any Minister, Department, or officer of the Commonwealth, shall be declared vacant. Whilst I believe that it would be well to place such a provision on the statute-book, in order to let the public of Australia know that this Parliament sets its face against such practices, I recognise that it hardly comes within the scope of the present measure. I have consulted the Chairman, and find that he is of opinion that the clause is beyond the scope of the Bill, and that being so, I am reluctantly compelled to .refrain from moving its insertion. I think that the bulk of honorable members would favour the passing of such a provision, as indicating that we have set ourselves a certain standard, and that it is our desire that it shall be observed. It would certainly not cast a reflection on any honorable member, nor do I believe that such a reflection could be cast upon any member of the Parliament, but as, in the opinion of the Chairman, the proposed new clause is beyond the scope of this Bill, I shall have to await some other opportunity to embody it- in the electoral law of the Commonwealth.

Mr. CHANTER(Riverina).- I would point out, Mr. Chairman, that the proposed new clause which the honorable member for North Sydney has just withdrawn has been taken in preference to proposed new clause 48a and several others of which I have given notice, and which appear earlier in the list of amendments.


The CHAIRMAN - The principle involved in the honorable member's amendment has already been dealt with.


Mr CHANTER - No.


Mr Groom - We had a test vote which decided the question. That was the. object of the vote.


Mr CHANTER -The principles involved in my amendment are altogether different from those which were dealt with on the occasion to which the honorable and learned member refers.


The CHAIRMAN - If I were to allow proposed new clause 48a to be discussed at this stage, it would be found that the Committee had already dealt with' the matter to which it relates, and that if it were carried, the decision would be inconsistent with one that has already been arrived at by this Committee. I understand that the honorable member intends, at a later stage, to take some action which will permit him to reopen the question dealt with in these clauses, and I would suggest to him that he should wait until that time arrives.


Mr CHANTER - With all due deference to you, Mr. Chairman, I would point out that proposed new clause 48b, standing in my name, embodies a principle which was not affected by the vote to which the Minister has referred.


The CHAIRMAN - The proposal which the honorable member wishes to submit is inconsistent with the provision which this Committee has already decided shall remain in the principal Act. If the honorable member desires to ask the Committee to reverse its decision he must wait until a later stage.


Mr Groom - The honorable member may take action at a later stage.

Mr. CHANTER(Riverina).-I move-

That the following new clause be inserted : - "48p. Any offence against the provisions of this Act shall be reported to Parliament by the Court Of Disputed Returns, and the Attorney- General shall take immediate steps to prosecute any and all offenders."

During the proceedings before the Court of Disputed Returns, to which reference has already been made on several occasions, offences were alleged to have been committed by some of the candidates, and it was naturally thought that any breaches of the electoral law which had been proved before the Court would be punished by it by the infliction of the penalties provided for. But, to the surprise of even a great many of the members of the profession, the Court decided that it had no jurisdiction in such matters, and that some person, a candidate, or his agent, or any one else, would have to turn himself into a public prosecutor, and charge the offender before one of the minor Courts, with the possibility of appeals from Court to Court, until finally the High Court was reached again. Our Electoral Act was based on the

British Act, and on that of South Australia. The British Act provides for the appointment of a public prosecutor, whose duty it is to charge persons said to have committed offences. Undoubtedly Parliament, having said that certain things are wrong, and punishable, meant that they should be punished, and I now ask the Committee to provide that, when an offence has been discovered by the Court of Disputed Returns, it shall be reported to Parliament, and the Attorney -General shall then take steps to immediately prosecute the offender.

Mr. GROOM(Darling Downs - Minister of Home Affairs). - I agree with the honorable member that offenders against the electoral law should, when discovered, be prosecuted and punished.


Mr Batchelor - Does not prosecution follow as a matter of course?


Mr GROOM - I think so. It seems to me that the clause imposes upon the Court of Disputed Returns something which is outside judicial work, and converts it into a sort of administrative body, whose business it is to go through the evidence, to ascertain if offences are alleged to have been committed.


Mr Cameron - Who is to prosecute?


Mr GROOM -The Attorney-General . However, I am getting the clause looked into, and I promise to give the honorable member an opportunity to bring it forward for discussion again when the Bill is recommitted. I ask him to withdraw it now.

Mr. GLYNN(Angas). - I would, point out that this is a most dangerous provision. If it were adopted, the Attorney-General would have no option but to prosecute, which would be practically taking away a prerogative of the Crown, it being one of the first principles of Magna Charta that, even though a grand jury may have committed a man, the Attorney-General may intervene. Most offences against the Electoral Act are taken cognizance of by Courts of summary jurisdiction, but the honorable member is practically providing for a prosecution in the superior Courts in all cases.

Mr. CAMERON(Wilmot). - Unless some person is instructed to prosecute, many offences against the Act will go unpunished. I know of a case in which bribery was committed, but I was unwilling to prosecute, and I know that in many cases there will be no prosecutors unless some public official is appointed to prosecute.

Mr. CHANTER(Riverina).- On the promise of the Minister, I am prepared to withdraw my proposed new clause for the. present, though I repeat that the High Court has ruled that it can take no notice of offences against the Act, such as bribery, corruption, treating, and so forth.


Mr Groom - The committal of such offences is a ground for the avoidance of a member's seat.


Mr CHANTER - What I desire is that some public official should be appointed, whose duty it will be to prosecute those whom it is alleged have committed breaches of the Act. Unless some such appointment is made, the penalties provided for will never be enforced.

Amendment, by leave, withdrawn.

Mr. MALONEY(Melbourne). - I move-

That the following new clause be inserted : - " When any newspaper during any Federal election publishes in its columns remarks injurious to any candidate, such candidate shall have the right of having published his explanation in the same column in any subsequent issue of such paper to be named by such candidate, and the refusal of the editor, publisher, or owners of such newspaper to publish such candidate's explanation shall be punishable by a penalty not exceeding twenty pounds; and on demand of such candidate, shall, at the end of said explanation, publish the name and address of the writer of the injurious statement."

This proposal may seem somewhat strange to some honorable members ; but I understand that a similar provision has been in operation in Japan for some years. In that country, any man who is slandered by any newspaper has the right to demand that an explanation shall be published in the following issue of the newspaper, and in the same column as that in which the original statement appeared. Honorable members may say that the Courts are open to any one who may consider himself aggrieved, but I would point out that by the time that a newspaper can be proceeded against in the ordinary course the election is probably over, and all the injury is done. I know of one candidate who issued a writ against a newspaper after he had lost an election, and the newspaper paid the penalty and published an apology in its, columns next to those devoted to the European cables. The gentleman referred to devoted a portion of the sum recovered from the newspaper to defraying the cost of an advertisement in a prominent place in another newspaper. I am willing to support any proposal that will safeguard candidates against unjust treatment on the part of newspapers. I do not care one jot so far as I am concerned, because I have had to fight the newspapers all my life, and I shall continue to do so. If I go down, I shall not squeal. If a statement published by a newspaper is injurious, or libellous, or malign, a candidate should have the right to demand that his explanation shall be published in the following issue of the journal under the conditions I have described. If the proprietors of a newspaper will not comply with the requirements of the case, they, should be brought to book at once.

Mr. GROOM(Darling Downs- Minister of Home Affairs). - I trust that the honorable member will not press his proposal. We have reached a very late stage in the consideration of this Bill, and honorable members have had no notice that this very important question would be raised. The honorable member may be justified in taking action to accomplish his object, but I do not think that it is altogether reasonable to expect us to insert the proposed new clause in an Electoral Bill - certainly not at this stage. The dealing with remarks published by the newspaper " with results injurious to any candidate " might be quite beyond the scope of an Electoral Act. I would point out that we are dealing merely with the machinery in connexion with the conduct of elections. The new clause which is to be proposed by the honorable member for Bourke will, to a very large extent, accomplish the purpose which the honorable member for Melbourne has in view.

Mr. BRUCESMITH (Parkes). - I should like to approach this matter by a more Socratic method, and ask a questionor two. I should like to know what tribunal is to settle the question at issue. Who is to decide whether the remarks published by the newspaper are injurious ?


Mr Maloney - The candidate himself would be a very good judge.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - How could the candidate possibly settle that question? I quite admit that a provision of this kind could be made effective, but a number of other clauses would be required to prescribe the procedure to be adopted in properly raising and afterwards settling the issue.


Mr Maloney - The matter might be referred to the same tribunal that the honorable and learned member would appeal to, in the event of his having a grievance against a newspaper.

Mr.KING O'MALLEY (Darwin).-I shall support the proposal, and I hope that the honorable member for Melbourne will "press it. At the last general election in Tasmania, a newspaper called the Burnie Server, attacked me persistently, and refused to publish my replies. That journal was backed up by all the combinations of slanderers and " boodliers ' ' in Australia who subscribed to it, in order to defeat me. I think that a candidate should be in a position to compel a newspaper to publish his replies to their injurious statements.

Mr. MAHON(Coolgardie).- I am very much in sympathy with the honorable member for Melbourne, but I cannot support a proposal which is utterly impracticable. The honorable member will be well advised if he yields to the request of the Minister. It would be absurd to make a provision of the kind proposed without fixing upon some tribunal to determine whether the statements published were injurious. The candidate could not be a judge in his own cause. The editor of a newspaper would be as much entitled ti> say that the statement was innocuous as the candidate would be to declare that it was injurious. Provision might, however, be made that a candidate who feels himself aggrieved by the action of a newspaper should have the privi-lege of applying to a Supreme Court or District Court Judge in Chambers. An application could be made upon twentyfour hours' notice - and if the Judge decided that the article was injurious to the candidate, he might order the offending newspaper to set apart certain space for the publication of a reply.


Mr Cameron - What would happen if the article were published on election day?


Mr MAHON - There would be no remedy in that case; but, as a rule, newspaper articles published under such circumstances have little effect, because the majority of electors make up their minds long before polling day. In city electorates, perhaps, opinions may change from day to day, but in country electorates such as that represented by the honorable member for Wilmot, the electors would probably take a long time to make up i their minds, and having once done so, would be very difficult to move. Articles | published on the morning of the election day do little harm to candidates, because the public recognise that it is unfair to attack a man when he is unable to make a reply. If it were thought desirable we might prevent candidates ot newspapers from discussing election matt'ers within twenty-four hours of ' the declaration of the poll. I understood the Minister to say that he wanted time to consider the matter.


Mr Groom - No; I mentioned that the proposal standing in the name of the honorable member for Bourke would go a long way towards, accomplishing the object of the honorable member for Melbourne.


Mr MAHON - But that proposal applies only to " false statements in relation to the personal character or conduct " of a candidate.


Mr Groom - That covers everything.


Mr MAHON - No. I "should read that as applying to me personally, and not as a candidate for Parliament. It would not relate to my political character or conduct. If the word "personal" were eliminated, I should say "Yes." The "personal conduct" of a candidate, I take it, is his conduct as a private individual, and not as a public man. Further, this proposal is confined to false statements, and I would point out that some of the most damaging statements which can be made in respect of persons are not necessarily false. They are frequently half-truths, which are rauch worse than absolute lies.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Some criticism may be injurious, and yet may be perfectly true.


Mr MAHON - Exactly. That is why I tHink that this proposal requires a good deal more consideration than the honorable member has bestowed upon it. I think a candidate should have a remedy in respect of any criticism based upon untruths, misrepresentation, or distortion which was injurious to him. But he should not have any remedy in respect of criticism which was based upon the truth or upon a fair statement of facts.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - A tribunal would then have to determine whether it was based upon untruths?


Mr MAHON - That is so. I suppose that in many cases the upshot would be that the Judge would refuse to interfere. But if a candidate were given the right to which I have referred, no great harm would be done. The honorable member for North Sydney must admit that the Melbourne newspapers, for instance, are very unfair.


Mr DAVID THOMSON (CAPRICORNIA, QUEENSLAND) - Absolutely. If we could get at them effectually, I would not object.


Mr MAHON - Surely,, because we cannot reach perfection, we ought not to 'stand still. I suggest to the honorable member for Melbourne that the Minister should be afforded an opportunity of looking into this matter, with a view to devising some provision which will give effect to his intentions.

Amendment, by leave, withdrawn. Mr. McCOLL (Echuca). - I move -

That the following new clause be inserted : - " No general election shall be held during the months of November, December, January, and February, except in the case of an election following a penal dissolution."

There is one class of the community who are very peculiarly situated; I refer to the farmers. Their income is entirely dependent upon their gathering their crop at a certain season, when the loss of a day may have very serious consequences. At the last Commonwealth elections, general indignation was expressed throughout the country districts because they were held in the midst of harvesting operations. I claim that some consideration should be extended to this large and important class. There is no other section of the community which occupies an analogous position.

Mr. GROOM(Darling Downs - Minister of Home Affairs). - I quite sympathize with the object which the honorable member has in view. At the same time, I do not see how it is possible to accept his amendment, in view of the fact that under the Constitution Parliament must continue to exist for a period of three years, and that writs must be issued within a certain time of the dissolution. Moreover, the elections for this House should be synchronous with the Senate elections.


Mr McColl - That is not necessary. Mr. GROOM. - It is not necessary, but it is very desirable. I fear that the amendment would limit the prerogative of the Crown in a most extraordinary way, and I would ask the honorable member to withdraw it.

Mr. BROWN(Canobolas).- I trust that the Committee will reject this proposal, which would not achieve all that the honorable member desires to accomplish. I would point out that in New South Wales a number of the farmers are also graziers, and it is just as important to them that they should get the wool off the backs of their sheep at a certain period of the year as it is that they should gather in their ) crops at a certain season. To comply with their requirements, all the months from August in each year would require to be exempted. Moreover, if we, extend1 special consideration to one class, why should we not extend it to other sections of the community ?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I might as well move that no election shall take place while the Law Courts are sitting.

Mr. SPENCE(Darling). - I should like to see some provision made for my squatter friends. If we are to adopt the principle suggested we should have to exempt the entire vear.

Mr. 'BATCHELOR(Boothby).- I intend to support the proposal of the honorable member for Echuca. I do not think that a majority of electors are concerned as to when an election takes place, but undoubtedly it is a matter which affects the farmer very materially. Though I fail to see how effect can be given to the proposal, I intend to support it.

Mr. FISHER(Wide Bay).- I quite sympathize with the representatives of farming divisions who wish to secure a special benefit for their constituents. Under existing arrangements, it is impossible to hold an election far from December unless it is held during the middle of the year.


Mr Batchelor - What is the matter with October?


Mr FISHER - If the elections were held in October, it would mean that three months after some senators had been rejected they would still be drawing their salaries. I trust that the amendment will not In.- pressed.

Mr. BAMFORD(Herbert).- Last year I compared the results of the polling in seven country electorates in Victoria with the results in seven metropolitan divisions, and I applied a similar test to constituencies in New South Wales. That comparison conclusively proved that in every instance the country electorates polled more heavily than did the city divisions, and consequently the argument of the honorable member for Echuca is absolutely worthless.







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