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Friday, 9 August 1912


The PRESIDENT - The honorable senator must not enter into the question of nationalization.


Senator Lt Colonel Sir ALBERT GOULD - I admit that I was going a little bit out of the way ; but I was drawn off by the interjections of honorable senators. In legislating we must abide by broad principles, and avoid unduly interfering with the private affairs of individuals. Why is it that the Government, in giving power to Commissioners to punish witnesses for not answering questions or producing documents, have been oblivious of the necessity for protecting _ witnesses ? It may be that, in the opinion of the Government, in the present instance, the witnesses do not deserve consideration. But this Bill is not designed solely for the present case. It may operate on any individual in the community. Any honorable senator may be summoned by a Royal Commission to appear, be examined, and produce books and documents considered material to the matter under consideration. The broad principle is that, when an inquiry is ordered to be made, a person summoned is bound to answer any material question. But now it is proposed that that power is to be enlarged, and a witness is to be compelled to answer every question put to him, whether material or otherwise. We are abandoning the safe principle by striking out the word " material," and making a witness subject to a penalty if he refuses to answer any question. Questions most remote from the subject of an inquiry might be put to a witness. When you omit the word " material," you are entering upon the unknown, and are bound to get into difficulty and danger. The only protection given to a witness is that he has not to answer any questions with regard to any secret process of manufacture. But questions affecting his profits, his manner of conducting his business, the payments he makes to his employes, and the work they perform, have to be answered, although such questions may be absolutely remote from the subject of the inquiry.


Senator McDougall - A working man who appears before a Wages Board, or Ar bitration Court, has to answer questions as to what he does with his money.


Senator Lt Colonel Sir ALBERT GOULD - But in cases of that kind, the information obtained cannot be disclosed without the authority of the person who has given the evidence. The object of the provision to which the honorable senator refers is that the body that has to determine shall be placed in possession of the fullest possible opportunities for coming to a conclusion. Would it be necessary, in connexion with this sugar company, to ascertain such particulars as I have indicated, in order to enable the Commission to find out whether there was an organization working injuriously to the public, or whether the company secured an undue advantage from the bounty paid by the Federal Government for the growth of cane?


Senator McGregor - The Commission could not find out unless the witnesses answered necessary questions.


Senator Lt Colonel Sir ALBERT GOULD - An inquiry into such particulars, held in public, would give a man's trade rivals an opportunity of finding out the particular things which enable one industry to be a success, whilst another, in the same line of business, conducted equally honestly and fairly, is, comparatively speaking, a failure. Then, again, a witness has no option under this Bill but to produce his books when they are demanded. He may say that his books do not relate to the matter of the inquiry. Nevertheless, the Commission can say," We intend to go through your books, and decide for ourselves what is material and what is not." Suppose that a trade rival happens to be the Chairman of the Commission? Under this Bill, he would have an opportunity of examining the books of his rival. Is it a fair thing that, an individual engaged in business should be prevented from having the particulars of his industry kept secret, unless they happen to be matters of public concern? I admit the value of Royal Commissions. I admit that they should have reasonable powers to enable them to obtain material evidence. But I decline to intrust the President or Chairman of a Royal Commission with the powers of a Judge of the High Court. Complaint is made of the long time taken to decide the case regarding the Sugar Company in Sydney recently.


Senator St Ledger - The Commission may blame itself for that.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - We. will assume, for the sake of argument, that a question had to be determined as to whether a witness who had been summoned had a reasonable excuse for not attending to give evidence.


Senator Guthrie - Would the honorable senator have excused any one concerned in the Titanic wreck inquiry if he had refused to give evidence before the Commission?


Senator Lt Colonel Sir ALBERT GOULD - Any person who could give evidence that was material to the inquiry should do so.


Senator Guthrie - This company is wrecking interests in Australia.


Senator Lt Colonel Sir ALBERT GOULD - What was the cause of the delay in this case? In the first place, it was said that a witness who had been summoned ought to have been allowed to put in a statement before being examined in the ordinary way. The person primarily concerned was not allowed to adopt that course. The Commission said that he must answer the questions put to him forthwith. As to whether the action of the witness was right or not, I offer no opinion just now.


Senator Guthrie - He was found guilty of breaking the law.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - Has not a man who believes in law and order a right to justice as well as the honorable senator who, I assume, disbelieves in both? I do not wish to shelter any man from the results of his actions. Whether he be a wealthy or a poor man, an influential or an uninfluential man, when he appears before a tribunal of his country, even-handed justice should be meted out to him.


Senator O'Keefe - W - Would the honorable senator allow the law to remain as it is?


Senator Lt Colonel Sir ALBERT GOULD - I am informed that there have been eighteen Royal Commissions in the Commonwealth, and this is the first in connexion with which any serious difficulty has been experienced.


Senator McGregor - There have been plenty of difficulties. The Harvester Commission had some.


Senator Lt Colonel Sir ALBERT GOULD - Why were not proceedings taken, if there was a disinclination on the part of witnesses to do their duty?


Senator de Largie - There was not a Labour Government in power.


Senator Lt Colonel Sir ALBERT GOULD - I do not disassociate either Labour or Liberal Governments from their responsibilities in matters of this kind.


Senator O'Keefe - D - Does not the honorable senator think that the fact that this difficulty has occurred shows the necessity for giving greater powers?


Senator Lt Colonel Sir ALBERT GOULD - No, and I will presently tell the honorable senator why. Complaint has been made about the long duration of the proceedings in the case in question. If this Bill had been an Act the proceedings taken before the Court would probably have been of exactly the same duration. It being the first case, many objections were raised which had to be determined. First, objection was taken to the scope of the Commission ; next as to whether there was reasonable excuse for not attending because somebody had been treated as a defendant unfairly. These matters had to be looked into. If honorable senators have read the reports of the fights that went on day after day, they will know that the respective counsel, Mr. Lamb and Mr. Bavin, were as much responsible for the prolongation of the proceedings as any one. Naturally they were doing their best for their clients. Eventually the proceedings came to an end. The result was that the magistrate considered that there had been no reasonable excuse, and inflicted a penalty of £25 upon the defendant, who has not been called upon to give evidence since then. If he had been, and still assumed the same attitude - if he had said, " I do not mind if I am fined£50 every time; the Court may fine me as often as it likes " - I admit that there would have been some cause for saying, " We cannot stand this flouting of the authority of a body constituted under the law, and we are going to punish the individual who commits that offence drastically, in order that people may learn that they cannot do as they like."


Senator Guthrie - The defendant asked for a stay of proceedings.


Senator Lt Colonel Sir ALBERT GOULD - An individual has a right to appeal to Court after Court until he gets a final decision, as long as the law permits appeals to take place. The delay was a natural incident of the first prosecution. If the Magistrate had been enabled to inflict a fine up to a maximum of he might not have imposed a heavier penalty than the £25.


Senator McGregor - Does not the honorable senator think that if afine of £500 had been permissible it would have made people more cautious?


Senator Lt Colonel Sir ALBERT GOULD - I do not think it would have made the slightest alteration in the attitude of this particular witness. I am not defending the action of the witnesses against whom the complaint has been made. I assume that they will accept the decision of the Court and obey the law. An honorable senator has asked, " What is a fine of £25tothe company ?" If it is the great, powerful corporation which honorable senators talk about what would be a fine of£500?


Senator O'Keefe - I - It would pay the company to be fined£5,000 if they could get out of giving evidence before the Royal Commission.


Senator Lt Colonel Sir ALBERT GOULD .- That is not correct. The statement which Mr. Knox desired to place before the Commission reviewed the history of the company, and went into full particulars, in order to enable them to deal fairly and justly with the company. The penalties provided for in this Bill are too heavy. It shows a tendency to go back to old times, and it is unjust. This is a Bill which bristles with pains and penalties. Honorable senators have not any evidence to justify them in saying that the law as it standsis insufficient to vindicate or protect the powers and rights of a Royal Commission appointed to inquire into any matter.


Senator St Ledger - It has shown its strength.

SenatorLt.-Colonel Sir ALBERT GOULD. - It has shown its strength so far ; for, notwithstanding the vigorous and determined fight which was put up, the law has come oat of the contest triumphant. This gentleman has been adjudged by the magistrate to have committed an offence against the law, and he has been punished. If the maximum penalty had been fixed at£500, he might possibly have been fined . £250; but for the value or effectiveness of the fine, it is useless to make it any heavier. If the gentleman who was convicted the other day and fined £25 would not give evidence then, probably, if he had been fined£250, he would not give evidence now. However much honorable senators may feel incensed against the action of the witnesses, let them sot do an injustice to anybody, as they pro pose to do. 1 have here an interesting extract which is taken from a work entitled Dictionary of Political Economy, by Palgrave. Alluding to commissions, the writer says -

A tribunal established to deal with a special class of cases is often the readiest instrument of injustice or oppression.

According to this writer's view this Commission was one of the readiest instruments of injustice and oppression. He continues -

Everybody is interested in the impartiality of a Court, before which he may appear as defendant. But many, unfortunately, will applaud partiality in a Court where defendants belong exclusively to an unpopular class. As compared with Judges who are also jurists Judges who have had no legal discipline are less likely to deal with causes in a severely judicial spirit, to consider sufficiently the consequences of making a precedent, or to uphold that stringency of procedure which, tedious as it may seem, is the best safeguard against passion or carelessness. Hitherto the predominance of the regular Courts of Justice has protected us from most of the evils which might have been feared from Commissions armed with judicial power. But the multiplication of extraordinary tribunals and of special procedures would break down this predominance, and, with it, the old English principle of submitting to a regular Court foradjudication in the regular way, every question which can be formulated in terms of law, a principle always precious, and always difficult to maintain, but in an age of popular Government especially invaluable, and yet specially liable to be overthrown.

I ask honorable senators if every word of these extracts is not applicable to the position of affairs in the Commonwealth with regard to Royal Commissions?


Senator Guthrie - Taken from the lawyer's stand-point, yes.


Senator Lt Colonel Sir ALBERT GOULD - It is none the worse for that.


Senator Guthrie - I think it is.


Senator Lt Colonel Sir ALBERT GOULD - The honorable senator wants to give to a Judge special powers, which he will deny to a layman.


Senator Guthrie - Nothing of the sort.


Senator Lt Colonel Sir ALBERT GOULD - The Bill which the honorable senator supports denies these special powers to a layman, while giving them to a Judge. Everyword whichI have quoted, whether it emanates from a lawyer or not, is worth considering.


Senator Guthrie - The bulwark of the profession.

Senator Lt.-Colonel Sir ALBERT

GOULD. - I ask the honorable senator how often have the people of the community owed their liberty and privileges to the legislation of gentlemen who were members of the legal profession?


Senator Guthrie - And they have taken their money.


Senator Lt Colonel Sir ALBERT GOULD - That is not a fair statement to make. If I were to ask the honorable senator to do any work for me in his line of business, he would expect to be paid for his services. In the other Chamber, many of the objections to the Bill were summed up in a very brief amendment which was submitted. I do not propose to allude to the debate in any way, but the Votes and Proceedings which have been placed before us show that the following amendment was moved to the motion for second reading -

That all the words after the word "That" be left out, with a view to insert in lieu thereof the words " while prepared to further endow Royal Commissions, according to the needs of each inquiry, with full authority to investigate all matters of public importance, this House protests against the excessive and unprecedented powers proposed to be conferred upon the President or Chairman of a Commission, against the absence of adequate protection to witnesses, and against improper attempts to stifle fair verbal or written comment."

That amendment sums up many of the objections which may be taken here to the Bill. I have made this quotation to show to what extent honorable members in another place were prepared to go in apposing the measure. We should not be less direct in our opposition here. There is one matter to which I have not yet alluded. I have referred to the unfairness of giving these excessive and unprecedented powers to the President or Chairman of a Royal Commission, and to the absence of adequate protection to witnesses. The Bill does not shield or cloak a witness with any protection at all. When a witness goes into a Court of justice, it is the duty of a magistrate to afford him a certain amount of protection, more especially if he has no one to look after his interests. But when a man goes before a Royal Commission, he may be, in many respects, ignorant. He may not know that he has any protection, but may think that as soon as the Commission utter a word he must obey them, and they may browbeat him as they please. Some protection should be given to a witness. When a Commission say to a witness, " You must answer the question, whether it is material or not," they treat him very unfairly. When they say to a witness, " You must produce your books, whether they appertain to the inquiry or not ; we will find out if they do," they treat him very unfairly. A refusal to answer any questions of this kind may be treated by a Judge, if he thinks fit, as a matter of contempt. If I go before a Royal Commission, a Judge may ask me a question which I recognise is not material " to the matter under consideration, while it may be very material to me that I should not give an answer. If I decline to give an answer he can say, " You are liable to a fine of £100, or three months' imprisonment." Having taken that course, he can put the same question to me again, and if I take the same attitude, he can impose the penalty. Is that a protection to a witness? Again, if a witness is prosecuted for not having produced a document, the onus of proof is thrown upon him to show that it was not material to the inquiry, and- that, therefore, he did not produce it. Should it turn out in the end that he was right in his view, he will have been very severely punished, because he will have lost his time, and probably a great deal of money, in putting up his defence. He will not be recouped for the loss of his time, or for a great portion of the money which he has spent. Simply because a witness has stood up before the Commission, and taken an honest and fair position, he is to be penalized by being subjected to heavy costs and a waste of his time. Then, if a man or a newspaper says outside that it is a partisan Commission, or makes any statement which would have a tendency to bring the Commission into contempt, the individual, or the newspaper, may be haled before a Court, and if convicted the individual is liable to a pecuniary penalty or to imprisonment, while the newspaper is liable to a pecuniary penalty ; or, if he can be got hold of, the editor may be sent to prison. This is the punishment to be inflicted where a man has made a fair and just comment on a public affair. On the platform we debate public matters and public men, and although the criticism is often very unpleasant to the individual, and frequently very unfair, still it is always regarded as being in the interests of the community that there shall be no "gag" placed on the mouth of any individual when he is commenting on public affairs and confining himself to that. I might comment upon an act of a Minister of the Crown in a most drastic way; but if I said that he was a thief, or ought to have been convicted as a thief, he would have a right of action against me, and very properly so. But if I said that he had administered the affairs of the country in such an unfair and unjust way that the people were suffering, and being deprived and robbed of sustenance and power, I would be within my right of criticism. It would be for. the public to judge whether my words were worth heeding, or should, be treated as an idle breath. Our nation has been built up on the principle of freedom for the people to follow their pursuits, to express their views on public affairs and public men, with no restriction except that they should not defame a public man in his private life and affairs. If we pass this Bill, it will not do any credit to this Parliament. It will be held up to the public as an attempt to pursue one set of people with a vindictiveness that is almost criminal, and when no good reason has been shown for its enactment. If the Act had broken down, or the magistrate had said that it did not enable him to punish the witness who was charged, honorable senators might say, " We are now taking such steps as we ought to take in order to make sure that the will of the people as expressed by the Commission is carried into effect." I urge honorable senators even now to try to disabuse their minds of the feeling that there is any party interest to be considered, or that a company not popular with them is being dealt with, and to do what is right between man and man by holding the scales of justice fairly and impartially. lt is necessary to make provision for a full and fair inquiry into every public matter, but the power of punishment should not be abused. Reasonable punishment, and the reprobation of the citizens of the Commonwealth, will always have a better influence than the infliction of vindictive or excessive punishment, or the placing of a particular class in the community under any special disadvantage. Since the commencement of Federation, we have had, I think, eighteen Royal Commissions appointed. I took the trouble to ascertain what we have spent upon them, and 1 find that Royal Commissions have cost us, so far, upwards of ^55,000. The Sugar Commission has cost, up to date, upwards of ,£7,000, and I believe that there is a further £3,000 on the Estimates to cover the probable future expenditure in connexion with that Commission, It would, in my opinion, be very much better if Ministers were to allow this Bill to stand aside, at any rate, until we know the effect of the decision given recently in respect of witnesses who have declined to give evidence. If we find that witnesses are still recalcitrant, and refuse to obey the law, it will be time enough then to provide these drastic powers to compel 'their obedience. We might then proceed with a measure such as this, but we should, even then, take care that the questions put to witnesses by members of a Royal Commission, and the documents demanded, shall in every case be material to the issue under consideration. We should thus be protecting the interests of the public at large, whilst recognising the right of every man, to the utmost freedom within the limits of the law, to pursue his own avocation as he pleases. We should be careful also to enact no provision intended to penalize the press or persons who venture to say >a word derogatory to the Royal Commission. We should be able to justify the passing of such a measure as I suggest. Honorable senators opposite would be wise if they declined to give the Opposition the opportunity to contend that the present Government are supported by people who do not like criticism, and are always impatient under it. We should not prevent the press from making public what really takes place. The Government have recently initiated a policy the tendency of which is to gag the press, which has always been regarded as one of the most potent instruments for securing and retaining the liberties of the people. To say that affairs shall be conducted in camera or in the presence of only a few people, and shall not be subject to criticism, or be brought under the notice of the public, is to undermine the liberties and rights of our citizens, and to reduce them from the position of free men to that of serfs. It is wrong for the Government to propose a measure to punish people who do not agree with them in opinion, if not by fine or imprisonment, at any rate, by interference with their business and ordinary avocations.







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