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Friday, 12 June 1914

Senator O'KEEFE (Tasmania) . - The smaller States look to the Constitution as it stands to protect them, and as a representative of one of them, the duty devolves upon me, quite apart from personal considerations, to demand, and if possible enforce my demand, that the reasons which brought about the double dissolution shall be made public. We are entitled to be suspicious as to the nature of the reasons advanced by Mr. Irvine. Only recently he has expressed most peculiar opinions about what the Senate is, and ought to be. We believe that he drew up a written memorandum to present to the Governor-General in favour of a double dissolution, and we are entitled to know what that document contains, seeing the remarkable opinions that its author holds about the rights and powers of the Senate. In one of his recent speeches he said, "It is one of the most sinister aspects of Australian politics at the present time that a body, in no sense representative of the Australian people, should hold supremacy in the political arena." A gentleman holding that opinion might very well advance to the Governor-General reasons entirely opposed to the spirit of the Constitution. It would be interesting to know whether he holds the same views about the Legislative Council of Victoria as he holds about the Senate. I venture to say that he does not. In another speech he asked if any one believed in a system under which one man in Tasmania had seven times the voting strength of a man in Victoria. He is entitled to his opinion on that question, but I am entitled to the opposite opinion, because what he complains about is provided for by the Constitution itself. Any man holding the position of responsible legal adviser to the Government may naturally be expected to put to the Governor-General reasons in accordance with the opinions he has expressed - reasons which will not hold water, if we read the Constitution aright. The representatives of the smaller States in particular should demand the fullest information on this matter, both as to the Attorney-General's advice and the Governor-General's reply. It is not a question of party. Something higher than party is involved in the present crisis, because the rights of the Senate are imperilled. It is a coordinate branch of the Legislature, and was intended to be such when the ten wise men from each State framed the Constitution at the Convention. It was meant to be co-equal in every respect with another place, except in regard to the initiation of money Bills. With that slight difference, it has co-equal powers, even in money matters, because where we cannot amend money Bills we have the right to make requests. If I know the meaning of the English language, the right to request is absolutely equal to the right to amend.

Senator de Largie - Not absolutely.

Senator O'KEEFE - It is, in effect, when we know that if our requests are not agreed to by another place, and we insist upon them, all the work of the other chamber may be rendered null and void. I say that there is no real difference between the powers of the two Houses of this Parliament, even with regard to money Bills, other than the difference that such Bills must be initiated in another place. In respect to every subject on which this Parliament may legislate, under section 51 of the Constitution the Senate has co-equal powers with another place. Mr. Irvine may honestly believe that the Senate has not these powers, but I propose to quote an authority whose views are of greater value than are those of Mr. Irvine.

The PRESIDENT - I hope the honorable senator will connect this quotation with the motion before the Senate.

Senator O'KEEFE - I recognise that I may appear to be travelling somewhat beyond the scope of the question.

The PRESIDENT - I do not wish to confine honorable senators too closely to the question, or to unduly restrict their remarks, so long as they can be reasonably connected with the subject of debate.

Senator O'KEEFE - I am quite satisfied, sir, that yon never restrict debate. I think that I can connect what I wish to say with the motion. Mr. Irvine gave certain reasons why the Governor-General should grant a double dissolution. We are asking that those reasons should be made known to the Senate, which has certain powers still in reserve. We want to know what those reasons were, because we have a right to be suspicious of the views which Mr. Irvine expressed, and we require to know whether he adopted a correct reading of the Constitution in the reasons he submitted to the Governor-General in support of the request of the Government. I hope I shall be allowed, in the circumstances, to quote a more eminent authority side by side with Mr. Irvine. I have quoted the views expressed by Mr. Irvine, and I wish to quote side by side with them the opinions of the late Mr. Justice R. E. O'Connor, a gentleman who was not only a member of the Convention that met to frame our Constitution, but was one of the Drafting Committee of the Convention. The opinion of the late Mr. Justice O'Connor as to the privileges of this chamber will be considered by every fairminded elector as of greater value than that of Mr. Irvine, who was not a member of the Federal Convention, did not help to draft the Constitution, and has come into this controversy at a very much later date. I think it is important to quote the opinions of the late Mr. Justice O'Connor as to the powers of the Senate, because I cannot but feel that at the present time the Constitution is on its trial, and that if the double dissolution takes place, the Senate, as the safeguard of the interests of the smaller States, will be swept out of existence. As a representative of one of the smaller States, I am not prepared to allow that to be done if by any vote of mine I can prevent it. I had the honour of hearing what the late Mr. Justice O'Connor said on this question when I occupied the seat which is now graced by Senator Maughan. At page 118 of Hansard for 1901-2, I find the late Mr. Justice O'Connor, who was then Senator O'Connor, in discussing the question of the privileges of the two Houses, and of a conflict between them,, said -

The only difference that has been made in the powers of the two Houses is the difference which is absolutely essential to the carrying on of responsible government. Inasmuch as the essence of responsible government is the power of the purse, the initiation of expenditure, it is in the House of Representatives that that power has been placed; it is in the House of Representatives that taxation is initiated, and can be amended in that House. In those respects the power of this House is curtailed; but in every other respect it is coequal, and I hope it will always assert itself to be co-equal with the representative House.

Senator Oakes - Whoever asserted anything else?

Senator O'KEEFE - It is because we have asserted our power to be co-equal with that of another place that we are to be scattered to the four winds of Heaven by the dissolution of the Senate.

Senator Oakes - Every one admits that, with the exception stated, the two Houses are co-equal.

Senator O'KEEFE - No. The point of my argument is that Mr. Irvine does not admit that the Senate has co-equal powers with the House of Representatives, and it is possible that if the reasons he submitted to the Governor-General are placed before the Senate, it will be seen that they are based upon an assumption that our powers are not coequal with those of the House of Representatives.

Senator de Largie - Where is the equality when twenty-nine votes in this chamber are not considered equal to one vote in another place?

Senator O'KEEFE - I am speaking of the constitutional aspect of the matter, and not of the condition created by the electors of Australia. Senator O'Connor went on to say -

Holding that view, it is the intention of the Government to introduce as many measures as possible into this House, in order to have the principles discussed, the details settled, and to have a great deal of the useful work of legislation done in this House while Bills are being similarly treated in the House of Representatives. We hope in that way that not only will the Senate find abundant and useful occupation, but that time will be saved by work being carried on simultaneously in both Houses. I have no fear on the score of there being any difficulty in carrying out this policy, as suggested by Senator Neild. I am well aware that the provision with regard to dead-locks applies only to legislation which is initiated in the other House. The limitation was expressly placed there for the reason that the dead-lock provision was inserted only for the purpose of preventing the continuation of disputes which would stop the moving of the machinery of government-

Senator Millen - Hear, hear !

Senator O'KEEFE - Let the honorable senator wait a moment. The quotation continues - and inasmuch as those disputes can only arise wheremoney is involved-

Does Senator Millen say "Hear, hear! " also to that? Senator Neild objected to that, and Senator O'Connor went on to say-

I think the honorable member will see that what I am saying is perfectly correct, if he will wait for one moment. Inasmuch as those disputes are only likely to be of such a nature as to stop the work of the machinery of the Commonwealth in cases where money is involved, it was thought that it was only in those kinds of cases that it was necessary to have this mechanical provision, if I may so call it, for bringing dead-locks to an end.

Senator Millen - It was thought that the Senate would never take up the attitude it has taken up.

Senator O'KEEFE - That is beside the question.

Senator Pearce - On the occasion on which Senator O'Connor spoke, Senator Millen had himself moved an amendment on the Address-in-Reply, and took up the same attitude with regard to legislation brought forward by the Government.

Senator O'KEEFE - That is so. And when the other day the Senate followed the same course, and carried an amendment to the Address-in-Reply, the honorable senator, like a school boy who had been whipped, refused to present the Address to the Governor-General.

The PRESIDENT - That is outside the scope of the question.

Senator Millen - It is outside the realms of truth, also.

Senator O'KEEFE - I feel that I am entitled to place on record the opinion of a great constitutional authority side by side with that expressed by Mr. Irvine.

Senator Oakes - The opinion the honorable senator is quoting is against his view on the referenda questions, even though it be in his favour on the other question.

Senator O'KEEFE - I shall deal with one question at a time. By our referenda proposals we seek to ask the people to amend the Constitution in a constitutional and straightforward way, and not by a side wind, as the Government are doing now.

Senator Millen - We are using the Constitution, not amending it.

Senator O'KEEFE - Mr. Irvine,perhaps honestly, holds a wrong view of the privileges of this branch of the Legislature, and so may give a misleading interpretation of the Constitution. The opinion he has expressed is certainly opposed to the views of the constitutional authorities of the smaller States. I am safe in saying that the delegates sent to the Federal Convention by the smaller States would not have been sent there, and the people of those States would have prevented their Parliaments from making them parties to the Federal compact, if they had dreamed at the time that such a use would have been made of the Federal Constitution. We should know exactly where we stand, and we cannot do so until the reasons submitted by the Government in support of their request for a double dissolution are laid before the Senate. I find from last Monday's Tasmanian newspapers that, twenty-four hours before the announcement was made that the Governor-General had agreed to grant a double dissolution, the Hon. A. E. Solomon, recently Premier of Tasmania, and a member of the Liberal party, expressed the opinion that it was impossible that a double dissolution should be granted on the plea put forward by Mr. Irvine.

Senator Oakes - In what newspaper did the honorable senator see that?

Senator O'KEEFE - In one of the Tasmanian newspapers. The statement was made that when Mr. Solomon was informed, on Saturday, that a double dissolution had been granted, he said, " Well, I am a very bad prophet, because I said only yesterday that I did not think it possible that a dissolution would be granted on that particular measure." Mr. Solomon is no mean constitutional authority, and he expressed that opinion as a leading parliamentary representative of one of the smaller States. Constitutional authorities in the smaller States hold that the Senate has certain powers, and we certainly should not abrogate them, or yield them up, without knowing the reasons for which we are asked to do so. If the double dissolution takes place, a confidence trick will have been played by the present Government upon the smaller States. They have made His Excellency the GovernorGeneral the unwitting instrument to give effect to their desire. In saying this I intend no disrespect to the GovernorGeneral. I believe he has been made the unwitting instrument of the Government, because I think that he has been misled. That is why honorable senators are right in demanding that the reasons submitted by the Government shall be laid before the Senate.

Senator Long - If the Government had any decency, they would relieve His Excellency the Governor-General of any such suspicion.

Senator O'KEEFE - Yes. His Excellency has been misled in being told that the rejection of the Government Preference Prohibition Bill was a sufficient reason for the granting of a double dissolution.

Sitting suspended from 1 to 2.30 -p.m.

Senator O'KEEFE - When the sitting was suspended for lunch I had adduced a number of reasons why, in my opinion, the Senate should press for the production of these papers. I may mention, as a further reason in favour of the motion, that this documentary evidence is an Imperial record of a Vice-Regal act. Surely it ought to be made the property of electors of Australia ! I am very properly asked by Senator Pearce how will constitutional authorities be able to deal with this crisis if the reasons for granting a double dissolution are not published. There will be no record, and in the future a Governor-General who may be called upon to exercise the same discretion will be without the reasons for this precedent, because we all recognise that it is establishing a precedent of a very grave and far-reaching character. The consequences of the decision of His Excellency are so far-reaching that nobody can say where they are likely to stop in connexion with the future government of Australia by this Parliament. I do not desire to detain the Senate, as I understand that a number of honorable senators wish to speak to this motion. But it may be interesting to them to learn that a large number of persons outside the Senate who hold very strong views on this question think that all the reasons adduced for a double dissolution ought to be made known. Perhaps I may be allowed to read a quotation from a news paper, which gives certainly the opinion of only its editor, but he is a journalist who possesses a good deal of constitutional knowledge as regards politics in the ©Id 'Country and in Australia. "His view is expressed in these words -

So far as we can see, there would be nothing to prevent the Prime Minister from introducing a Bill declaring that senators should wear dog chains. If they refuse to pass it, apparently all the Governor-General has to do is to turn up section 07 of the Constitution, and regard the rejection of the dog chain as a dead-lock.

That is a very clear parallel. The writer thinks that a measure asking us to wear a dog chain would he about just as important as the measure the rejection of which has brought about a so-called crisis, and, as Senator de Largie interjects, just as ridiculous. Another very fair authority may be quoted. The Sydney "Bulletin of 11th June contains a very brief but very powerful article, headed " The Double Trick Dissolution." The writer says -

Technically, if no more, the GovernorGeneral was utterly wrong in granting a double dissolution. It is true that Cook was unable to induce the Senate to pass two Bills which he sent up to it. But those two Bills were deliberately designed to insure their rejection. So far, then, as there is any known dead-lock between the two Houses, it is a carefully manufactured dead-lock. On a hundred matters there is no more violent disagreement between these two Chambers than there is between any other two. It certainly is not proved that the two cannot work together at all. It is not even proved that they disagree over big matters of national policy. The two trick Bills specially designed to create a deaddock involved nothing momentous.

I do not wish to quote further from the article, 'but I may mention thai it contains a number Of very powerful reasons why the test Bills were absurd, and should not have been held as of sufficient importance to create a dead-lock. I now desire to call the attention of honorable senators to a very powerfully written article which appeared in the Melbourne Age of "Wednesday week. The Age 'is not a Labour organ, and therefore cannot be said to be 'prejudiced on the side of 'the Labour party and the views it holds as . to the privileges and powers of its 'majority in "the 'Senate. This article is very 'powerfully written, indeed, from beginning to end. It points out the absurdity of the so-called measures which were sent up here for the sole purpose of creating a dead-lock. It goes so far as to say in effect that if His Excellency

Were to grant a double dissolution on these measures he would be taking a very foolish step. The concluding portion of the article contains this passage -

A political crisis impends, and the fate df the Government hangs on two Bills which havenot a shred of rational justification for their existence. The crisis, however, is real, and it cannot be averted. How will it be solved t We have shown that a double dissolution is impracticable without a violent straining of the terms and the spirit of the Constitution - and that is an outcome not to be thought of.

There is the view held by another constitutional authority. It would be interesting to us to know what were the powerful reasons advanced by the AttorneyGeneral and the Prime Minister, who persuaded His Excellency to grant a double dissolution in the face of the views and opinions held by so many constitutional authorities as I have quoted. In conclusion, I desire to read a few pertinent quotations from ParliamentaryGovernment in the British Colonies, by Mr. Alpheus Todd. On page 774 of this work will be found cited a precedent which has not been followed by the GovernorGeneral. In May, 1872, Sir Charles Gavan Duffy, Premier of Victoria, asked Lord Canterbury, the Governor, for a dissolution of the Legislative Assembly because he had been defeated', and the request was refused. I shall not weary the Senate by quoting the reasons stated by the Governor for his refusal, but the comment made on- those reasons by this acknowledged constitutional authority is expressed in these terms -

It is not a legitimate use of the prerogative of dissolution to resort to it when there is no important political question upon which contending parties are directly at issue, and merely in order to maintain in power the particular Ministers who are in office at the time.

That comment absolutely fits the present case.

Senator Oakes - In what way does that affect the question of the production of .the papers ?

Senator O'KEEFE - There was too great question at issue .between the two parties on which a double dissolution was sought or brought about, but it was a so-called dead-lock, engineered for one purpose, and that is " merely in order to maintain in power the particular Ministers who are m office at the time." Some wonderful reason, I repeat, must have been given by the Attorney-General to influence the Governor-General in giving the decision he did. On page 776 of the same book I find a reference to a request for a dissolution made by Sir George Grey, Premier of New Zealand, to the Marquis of Normanby, who was then Governor of that Colony -

In the same Colony, in November, 1877, the Premier, Sir George Grey, requested the Governor, the Marquis of Normanby, to dissolve the House of Representatives, on account of the evenly-balanced state of parties therein. The Grey Administration had taken office on October 13 previous, on the defeat of their predecessors upon a vote of want of confidence. On October 24, before the new Ministers had announced their intended policy, a vote of want of confidence was submitted against them. This was negatived on November 6 by the casting vote of the Speaker. Shortly after a similar motion was proposed, during the debate upon which Ministers asked for a dissolution of Parliament.

They based their claim to a dissolution upon the fact that at the last general election the ex-Ministry were in power, and upon their conviction that the new elections would give them a large majority of supporters.

In reply, the Governor expressed his opinion that a dissolution was, at present, undesirable : principally because (1) he believed that the existing difficulties might be disposed of without recourse to such an act;

Will any one dare to say that the difficulty between the two Houses of this Parliament could not have been disposed of without such an act? If the Parliament was unworkable,, it was the action of the Government which made it unworkable. Had the Government shown a desire at any time to make the Parliament workable, it could have been made workable.

(2)   because the Parliament was now only in its second session, and legislation was contemplated upon the question of representation, which would probably necessitate a dissolution; (3) because no great question wasat issue upon which to appeal to the constituencies; (4) because he had no assurance that a dissolution would produce a working majority in favour of Ministers;

Havethe Government any assurance that a double dissolution will produce a working majority in favour of Ministers? and (5) because no Supply had yet been granted ; and unless the House shouldfirst vote Supplies for at least three months the Governor could not undertake to consider the question of a dissolution.

Apparently a similar condition has been attached by the Governor-General to the granting of a double dissolution; but we want to be absolutely clear on the point. We desire to know the reasons of the Governmentfor making the request, and the exact conditions laid downby His Excellency in his reply. We want to know whether a condition was attached to the promise of a double dissolution thatthe Parliament should grant three months' Supply ? Concerning the New Zealand case, in November, 1877, Todd continues -

Furthermore, it did not appear that from the outset this Administration had been able to command a majority of the House.

The present Government of the Commonwealth have not been able to command a majority of the House except by the Speaker's vote.

The Speaker's vote, which alone had. saved them from defeat, is, according to Parliamentary usage, always given with a view not to preclude the House from reconsidering a question so decided upon. A Speaker's casting vote, given to negative a vote of want of confidence, can hardly be taken as an expression of confidence on the part of the House.

The present Government of the Commonwealth, on at least more than one occasion - once this session - have only been saved on the Speaker's casting vote, so that the circumstances in New Zealand are an absolute parallel to some of the circumstances surrounding the present crisis. On page 788, Todd states that, in 1877, Sir Hercules Robinson, Governor of New South Wales, was asked to dissolve the Legislative Assembly, and supplies some of the reasons given by His Excellency for refusing the request. These are the comments upon it -

Anxious to secure for the colony the benefit of English constitutional practice in such cases, Governor Robinson determined to withhold his consent to any application by Ministers for authority to dissolve Parliament until adequate provision had been made to defray the indispensable requirements of the Public Service in the interval which must elapse before the new Parliament could meet; or, at any rate, until every effort to obtain Supply had been first exhausted.

Accordingly, on two occasions of the occurrence of Ministerial crises, in the months of March and August in 1877, His Excellency approved of the advice of his Ministers to dissolve Parliament, but reserved to himself the Tight of reconsidering his decision inthe event of their appeal to the House for the grant of Supply preliminary to a dissolution being refused.

There are quite a number of other authorities which may be cited in this connexion.Amongst them is the following:

Itis theduty of a Governor to consider the questionofdissolution of the Parliament or Legislature solely in reference to the general interests of the people, and not from a partystand-point. He is under no obligation to sustainthe party in power if he believes that the accession to office of their opponents would be more beneficial to the public interest. He is, therefore, justified in withholding a dissolution requested by his Ministers when he is of opinion that it is asked for merely to strengthen a particular party.

Again, we are told -

When Ministers advise a dissolution on the ground of disputes between the two Houses of Parliament, it behoves a Governor to be cautious in acceding to such a request. It is not the duty of the Governor to take sides with one branch of the Legislature against the other, or to criticise the action of either House in party conflicts.

Finally, if an existing Administration be not prepared to accept the Governor's decision in regard to a proposed dissolution, and to assume responsibility for the same, they are bound to resign office and give place to other Ministers who are willing to facilitate and become responsible to Parliament and to the country for the intended exercise of the Royal prerogative.

I hope that the Senate will continue to demand these reasons until it gets them. Question resolved in the affirmative.

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