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Tuesday, 22 March 1927

The TEMPORARY CHAIRMAN (Senator Duncan (NEW SOUTH WALES) - The honorable senator has exhausted his time.

Senator Pearce - With a considerable portion of Senator Givens's contentions I do not find myself in agreement. I do not think that the constitutionality of the proposed clause can be questioned. The Chair is not called upon to interpret the Constitution. Neither do I think that the proposed clause could have no effect. To my mind, the whole question hinges on the relevancy of the amendment. Is it relevant to the subject-matter of the bill? On this point, our Standing Orders are clear. If it can be shown that the proposed clause is relevant to the subjectmatter of the bill, it must be in order, but it seems to me that the question must be answered in the negative. This bill is for the purpose of making certain grants to the States consequent on the termination of the per capita payments to the States. It is true that it contains a clause which provides that certain payments shall be made to the States, subject to any agreement that may be arrived at between the Commonwealth and the States. The honorable senator bases his amendment on that clause, on the assumption that, if an agreement is arrived at, these payments need not be made, and in the event of no agreement being made, he asks the committee to direct the Commonwealth Treasurer to present to Parliament certain proposals connected with the State debts. I submit that the contingency upon which he bases his clause has nothing whatever to do with the clause itself. By passing this bill, Parliament is saying to the Government, " You shall make these payments to the States until the 30th June, 1928, but if, in the meantime, you come to an agreement with them, you may cease making them." How can we make the taking over of part of the State debts in any way relevant to such a direction to the Government? Clause 6 is merely a machinery provision directing the Government to make these payments to the States under the rates set out in the schedule, unless, in the meantime, it makes an agreement with the States. The whole question is whether a direction to the Treasurer as to what he shall present to Parliament, if there is no agreement, has anything to do with the specific operation of clause 6.

Senator Kingsmill - Most certainly it has.

Senator Pearce - To my mind, it is in no way relevant to it. Possibly what the honorable senator suggests may be one of the contingencies that Parliament will have to consider, but honorable senators can gather that only from the speeches delivered by Ministers, and not from the bill itself. Ministers have indicated what they propose to do. For instance, they have told honorable senators that they propose to hold a conference with the States, and that if the conference is not held, or proves a fiasco, they will tell Parliament what they propose to do. That information is gleaned, not from the provisions of the bill, but from speeches delivered by Ministers. I contend that the fact that Ministers have made an explanation of what their future policy may be, does not make Senator Kingsmill's clause relevant to the bill, which contains no reference to the subject-matter of the clause. I contend, therefore, that we should leave out of consideration the constitutionality of the clause, and the question of whether it would have any effect, if carried, and confine ourselves to the mere matter of relevancy. It seems to me that the clause cannot be held to be relevant to anything in the bill.

Senator Givens - I propose now to quote the authority bearing on amendments which can have no effect. May, on page 408 of the 13th edition, says -

If it should appear in the course of discussion that an amendment which has been allowed to be moved, is out of order, the chairman directs the committee's attention to the fact, and withdraws the amendment from the consideration of the committee. The discussion of an amendment has shown that the question raised thereby had already been decided by the committee; that it was inconsistent with a previous decision of the committee; would not have any effect; was beyond the scope of the bill; or would constitute, if agreed to, a negative of the bill.

Thus amendments of that character are distinctly out of order.

Senator Kingsmill - I do not think honorable senators who have spoken to this point of order have confined themselves to it. They have brought forward certain references which might prove that my proposed clause was undesirable.

Senator Grant - I object to the statement made by Senator Kingsmill. Remarks which reflect on the Chair should not be allowed to pass by unchallenged. So far, Senator Duncan, you have performed your work in the Chair very well, but an honorable senator's assertion that you have permitted other speakers to wander far and wide should not be allowed to pass by unchallenged.

The TEMPORARY CHAIRMAN (Senator Duncan - I do not think that it was the intention of Senator .Kingsmill to reflect on the Chair. I understood him merely to be expressing his opinion of the views put forward by others. In any case, the Chair can be trusted to take whatever action is necessary to protect itself.

Senator Kingsmill - The point has been raised that my proposed new clause is not within the scope of the bill. This is a States grants bill, aud the provision of interest and sinking fund on debts as set out in my proposal, is merely an alternative to the course proposed in the bill. I contend, therefore, that the point that the claude is not within the scope of the bill is fully answered, and that my amendment is not out of order in that respect." In regard to the point that it is irrelevant, if hon orable senators will be kind enough to read clause 6, with which my proposal is so intimately connected, they will see that, it provides that, subject to the terms of an agreement which has been arrived at, a certain course shall be followed.

Senator Givens - But the new clause does not propose that anything should be done. It merely issues an instruction to the Treasurer to propose something to be done.

Senator Kingsmill - I do not like to describe as a quibble the point raised by the honorable senator who has had so much experience. Surely he must realize that instructions given by the Parliament of the Commonwealth are followed by action. That being so, if it is proposed to leave the Government entirely free to take what action it pleases in the event of an- agreement not being arrived at - an inference implicitly and not explicitly stated - surely it is most decidedly relevant to the purpose and the scope of this bill for this Parliament to say that, in the event of an agreement not being arrived at, such and such a thing must be done. The argument that has been advanced in opposition to my proposal most certainly does not prove that the taking of such a course would be out of order. Senator Givens is endeavouring to connect the proposed new clause with a proposal to which effect could not be given. The best authority in regard to the effect which the proposed new clause would have is the person most interested in this instance, and that is the right honorable the Leader of the Senate (Senator Pearce), who little as he likes the proposal, admits that it could undoubtedly have effect.

Senator Pearce - I said, however, that it had nothing to do with the subjectmatter of the bill.

Senator Kingsmill - I am endeavouring to show that it has. I want honorable senators to consider this point, and particularly you, Mr. Temporary Chairman, because, in your hands, the decision rests. If the subject-matter of clause 6 is relevant to and within the scope of the bill, .this proposed new clause must also be, because if clause 6 does not operate in the way intended, my amendment will fill the hiatus at the end of that clause. That being so, I submit that the proposed new clause is entirely within the scope of, and relevant to the subject-matter of the bill. Whilst the arguments adduced have directed attention to the undesirability of the proposed new clause, they have not indicated that it is in any way out of order.

Senator Sir HENRY Barwell - I agree with the Leader of the Senate (Senator Pearce) that the proposed new clause is irrelevant to, and outside the scope of the bill. These two grounds are closely related. The question of whether an amendment is relevant is decided partly by the title, and partly by the scope of the bill as disclosed by the clauses. If an amendment is relevant, it should be covered by the title; but it should also be relevant to the scope of the bill as disclosed by the clauses of the bill itself. It may be urged that the proposed new clause comes within the title of the bill, which is "a bill for an act to amend the Surplus Revenue Act of 1910, to grant and apply out of the Consolidated Revenue funds for the purpose of financial assistance to the States, and for other purposes," inasmuch as it embodies a form of granting financial assistance to the States; but it is not a form relevant to the scope of the bill as disclosed by its clauses.

Senator Kingsmill - Why not?

Senator Sir Henry Barwell - Because it provides a totally different form in which to grant financial assistance; to be in order, it must be relevant to the form of assistance contemplated by the bill itself. Senator Kingsmill contends that the new clause is relevant, because the bill provides that, subject to the terms of an agreement, certain things shall be done. He said, in effect, that surely if there is a provision under which, subject to an agreement being readied, certain things shall be done, we are entitled to insert a provision to the effect that, if no agreement is reached, other action may be taken. What is proposed is irrelevant to the subjectmatter of the bill, because there is in the bill nothing in regard to the Commonwealth taking over the State debts. The proposed new clause is totally irrelevant to the subject-matter of the bill as disclosed by its clauses, and is consequently beyond the scope of the bill.

Senator Kingsmill - I do not admit that. Is a State grant relevant to the bill?

Senator Sir Henry Barwell - Undoubtedly.

Senator Kingsmill - Is not the payment of interest and the provision of a sinking fund on behalf of a State a State grant?

Senator Sir Henry Barwell - No. The grants contemplated by the bill are in a different category, and, consequently, I think the proposal is irrelevant. It does not follow that, because the title is as I have stated, an honorable senator is entitled to move an amendment in which provision is made for granting financial assistance in other ways. The only financial assistance which can be covered by an amendment, or a new clause, must be in a form cognate to the form of financial assistance which the bill covers. Whilst Senator Kingsmill's proposed new clause may be taken to embrace a form of financial assistance, it is not a form of assistance which is in any way relevant to the financial assistance contemplated and covered by the bill itself.

Senator Givens - I have already quoted from May to show an amendment which can have no effect, is out of order. It is obvious that his proposal would have no effect. There have been instances where motions passed by this House and another place, determining that a certain action should be taken, have been ignored by the Government.

Senator McLachlan - Could any Government ignore a statutory provision in an act of Parliament?

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