Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 2 November 1911


Senator ST LEDGER (Queensland) . - Senator de Largie has urged that, inasmuch as we are going to institute compulsory enrolment, therefore the proclamation which is to give effect to the principle is to go in a compulsory form to the Governor-General . The Defence Actis based on the principle of compulsion. Compulsory service is created in the Act. But what do we find in section 140? It says that the Governor-General may by proclamation exempt from training certain persons.


Senator Rae - That is an exemption from compulsion.


Senator ST LEDGER - The basis of the Defence Act is compulsion ; and in order to give effect to the Act certain proclamations have to be made, and certain things have to be done through the GovernorGeneral. But in every section " may " is used in regard to the GovernorGeneral. It occurs twice on the page I have before me. Again, in the Naval Defence Act, I find four sections dealing with proclamations by the GovernorGeneral. Sub-section 1 of section 7 reads -

The Governor-General may appoint a Board of Administrators for the Naval Forces to be called the Naval Board.

Section 16 of the Act says that -

The Governor-General may appoint any person to be an officer, or promote any officer -

In any provision relating to an act to be done by the Governor-General " may " is used. Take section 22 -

The Governor-General may raise, maintain, and organize such Permanent and Citizen Naval Forces as he deems necessary for the defence and protection of the Commonwealth and of the several States.

The present Government are entirely responsible for the wording of the Naval Defence Act.


Senator Rae - Do you think that if we put in " shall " it will invalidate this measure ?


Senator ST LEDGER - No one is talking about that. This is a matter which, unfortunately or fortunately, the Minister himself has raised. Hitherto we have used "may " in our Acts in relation to the GovernorGeneral, even in Acts containing the principle of compulsion.


Senator Rae - If "may" means "shall," what is the objection to putting in " shall "?


Senator ST LEDGER - Because it would make the Bill look utterly stupid. Any person reading the Bill as a document, and seeing " may " used in some parts, and "shall" used in other parts, would be liable to form a misconception as to what was meant. He might say, " This section is permissive," and " That section is mandatory."


Senator de Largie - But we have not a multitude of Governors-General.


Senator ST LEDGER - We all know that. But, notwithstanding all that knowledge, it has been the invariable practice of Parliament, for excellent reasons, not to make any distinction as to the acts of the Governor-General, and to always use the word " may." Because, as a matter of constitutional practice, " may " means " shall " with a certain alternative only attached to it, that is, where he will not take the advice of his Ministers in matters arising under an Act in which "may" is used. Ministers have a power over the Governor-General all the time, because if their advice is not taken they can at once tender their resignations. Once or twice it has happened. Fortunately it does not often occur.


Senator de Largie - Except as regards the question of taste or politeness of language, I see nothing at all in the point raised.


Senator ST LEDGER - Why is "may" right when it is used throughout the Defence Act, which is based on compulsion? What mysterious thing has happened in the consultation between the Minister in charge of the Bill and the AttorneyGeneral ? If the object of this alteration is only to give effect to compulsion, the whole Defence Act is gone. Do honorable senators want compulsory enrolment to be more fast and more binding on the GovernorGeneral by employing the word "shall than they want the Defence Act to be binding on him so far as administra-. tion and authority are concerned? Is he to say, " 1 am more distinctly bound down by Parliament in the compulsory enrolment provisions of the Electoral Act than in the Defence Act"? Unless there is some new legal light thrown on the matter by reason of the consultation with the Attorney-General, the more his proposal is explained and analyzed, the more indefensible it becomes, and the assumptions given by the Government supporters only help to make the thing more ridiculous.







Suggest corrections