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Thursday, 17 March 1904

Mr MAHON (Coolgardie) - In accordance with notice, I beg to move -

That, in the opinion of this House, the honorable member for Wakefield. Sir Frederick William Holder, K.C.M.G., has, by his acceptance of a fee or honorarium for services rendered to the Commonwealth between the 23rd day of November, 1903, and the 2nd day of March, 1904, vacated his seat as a member of the House of Representatives.

While congratulating you, Mr. Salmon, upon the dignity to which you have attained, I would point out that, according to my reading of the Constitution, you have no right to occupy your present position of DeputySpeaker. Of course, no one will imagine that I am now voicing any personal objection. I merely wish to point put that under the Constitution it is only in the absence of Mr. Speaker that any other member car. be appointed to take his place. Section 36 of the Constitution provides that -

Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

Although I am not prepared to defend the grammatical construction of that section, I contend that as, from the strictly legal point of view, the Speaker is not now absent from the House, we have no right to choose another member to take his place. I understand that Mr. Speaker merely requested you to do so.

Mr Kennedy - The Standing Orders make the necessary provision.

Mr MAHON - I know what is provided by the Standing Orders ; but no standing order can override a section of the; Constitution.

Mr McCay - The Constitution does not declare that there shall be no other way in which a member may be appointed to occupy the chair in the place of the Speaker.

Mr MAHON - I shall be very glad if the honorable and learned member will show me the section of the Constitution which makes provision for that. The section I have read provides for the choosing of another member to perform the duties "in the absence of the Speaker." What does that mean? Is the Speaker now absent from the House in the strictly legal sense? Moreover, it -is this House, and not the Speaker, who is to choose a substitute.

The DEPUTY-SPEAKER.- I will read the Standing Order bearing on the subject. I think that it will dispose of the matter. Standing Order 25 says -

The Chairman of Committees shall take the chair as Deputy-Speaker whenever requested so to do by the Speaker during a sitting of the House, without any formal communication to- the House.

The section of the Constitution read by the honorable member does not prevent the Chairman of Committees from taking the chair as Deputy -Speaker on other occasions than the absence of the Speaker. I have been duly elected as Chairman of Committees, and have been requested by the Speaker to take the chair as Deputy-. Speaker. I think that the honorable member will see that the proceedings so far are quite in order.

Mr MAHON - Personally I am very pleased to see you in the chair and presiding on this occasion, but I am perfectly well acquainted with the Standi ig Order which you have read, and my point is that no standing order prevails against a section of the Constitution. Can it be strictly held that the Speaker is at the present time absent from the House ? If that' can be seriously argued, I shall not press the matter further.

The DEPUTY-SPEAKER.- Does the honorable member contend that section 36 of the Constitution precludes the House from passing a standing .order providing that the Chairman of Committees shall take the chair as Deputy-Speaker on other occasions in the absence of the Speaker?

Mr MAHON - I am not here as an interpreter of the Constitution. All I can do is to read its provisions, and to ask honorable' members whether the conclusions I have drawn are not reasonable. If the Speaker choses to leave the chair and to retire to another room, he can not be said to be absent from the House within the stirct meaning of the Constitution.

Mr Conroy - Suppose he were ill, and wished to retire for a time?

Mr MAHON - Then the House could appoint a substitute. 'I do riot wish to go into the matter any further now. With reference to the motion which stands in my name, I do not think it necessary to offer any apology for my action in submitting it to the House. If this House has elected to the position of Speaker a gentleman who is not qualified to be a member, then nearly all its proceedings will be invalid. Section 35 of the Constitution enacts that -

The House of Representatives shall, before proceeding with the despatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant, the House shall again choose a member to be the Speaker.

Those being the words of the Constitution, I submit that my action in calling attention ' to this matter on the first day of the session, before a Speaker had been chosen, was perfectly justified. To show the seriousness of the matter, if the gentleman occupying the position of Speaker is not qualified to be a member of the House, >and it is afterwards discovered that he is not so qualified, every election held in pursuance of writs issued by him will be invalid, and the validity of the proceedings of this assembly will, I take it, also be open to dispute. My object is that this House shall erect and maintain on a solid foundation the traditional independence of the office of Speaker. I should not like to see the Speaker of this House dependent upon one party or the other for any favour. From the time he reaches that Chair until the day he finally leaves it, he should feel that he has done nothing to hope for and nothing to fear from any party in this House. Again, I would say that I am justified in submitting this' motion as a protest against the slipshod methods by which the Government carried the vote to Mr. Speaker through Committee. I would go further, and say that, if we condone these slipshod methods, we shall be establishing precedents which may lead to dangerous innovations later on. It is not my intention to cast any blame upon Mr. Speaker for having accepted this allowance. I say that the first wrong, if any, has been done by the Government, and the next wrong by the House which condoned their evil action.

Mr Fisher - A majority of the House, not the whole House.

Mr MAHON - That is so; but the majority is the House for the time being. Those who condoned that action are guilty of the greatest error ; and the smallest error is that committed by the Speaker in accepting the money. I regret that some person better qualified, one with more legal knowledge and fuller training, has not taken up the question. I have, however, with what small abilities I possess, applied myself to the study of the matter, and I can assure honorable members that I should not have taken the extreme step of submitting this motion if I had not been absolutely convinced that the position I am taking up is correct. When the Prime Minister spoke upon the opening day of the session, he said that if my argument held good it went much further than I had pressed it. He suggested ' that if the allowance ;at the rate of £1,100 yearly drawn by the honorable member for Wakefield between the 23rd November and the 2nd March had been illegally voted, no provision which this House could make for the remuneration of its Speaker would be constitutional. I cannot see how this view is to be sustained. Though the Speaker is the mouthpiece - if not the master - of this House, he is in another sense its servant. Upon him devolves the duty of giving effect to some of our decisions. He is our first executive officer. No one questions the right of the House to make provision for the payment of its other officers, and therefore I conclude that it has inherent power to make a proper allowance to its Speaker. It is probably in recognition of this inherent ;power that the Constitution avoids any specific authorization of a grant to the Speaker. But this authority may be inferred from section 48, and is, I think, indirectly conferred by section 49. Section 48 directs the appropriation, until Parliament otherwise provides, of an .'allowance of ^400 per year to each member. May it not be fairly inferred from this that Parliament can, in addition, make special allowances to certain of its members who have discharged duties in and to Parliament outside those duties imposed on every member in common? Will the Prime Minister say that it cannot be fairly inferred from section 48 that the House has power to vote additional remuneration to certain of its members? I do not think that it can be doubted. Then section 49 endows this Parliament with "the powers, privileges, and immunities" "of the Commons House of Parliament if the United Kingdom." Now one of the powers exercised by the House of Commons from immemorial times is the remuneration of its Speaker. This remuneration was fixed in the reign of William IV. (2 & 3 Wm. IV. c. 105) at ^6,000 per year, payable quarterly, free of all deductions whatever. I think that this provision should serve as a good hint to the Prime Minister in connexion with the demands made upon honorable members for the payment of the Victorian income tax. There he has a good precedent for exempting the allowances of members of Parliament from all taxation. A subsequent statute in the same reign reduced the allowance to £5,000, but apparently made certain salaries - previously payable out of the Speaker's allowance - a charge on the revenue. I conclude, therefore, that this Parliament has been partially invested with the power of the House of Commons in this regard, and that we have the right to remunerate our Speaker for his services to Parliament while he remains Speaker. But we have no authority to extend this provision beyond the life of a Parliament. This inherited power is necessarily subject to any limitations in our Constitution. We cannot put our Speaker in a position parallel to that of the Speaker of the British House of Commons, because the Constitution forbids it. Section 35 of the Constitution provides that the Speaker of this House " shall cease to hold office if he ceases to be a member." I take it that the word " if," in this connexion, is equivalent to " when ; " and, therefore, that thehonorable member for Wakefield ceased to be Speaker on the 23rd of November, when he ceased to be a member by the dissolution of the first Parliament. Now, the Speaker of the House of Commons is in an entirely different position. By the Statute 2 and 3 of William IV. c. 105, it is enacted - " That, in case of any dissolution of the Parliament, the Speaker of the House of Commons, at the time of. such dissolution, shall ... be deemed to be the Speaker of the House of Commons until a Speaker shall be chosen by the new Parliament." And this retention of office by the Speaker of the House of Commons over a dissolution and until his successor is elected, was confirmed by 9th and 10th Vic. c. 77. It is, therefore, apparent that, since the full power of the House of Commons has not been transmitted to us, we have no authority to continue a Speaker's allowance during the interregnum between a dissolution and the election of a Speaker by a new Parliament. It is contended that, if the honorable member for Wakefield has vacated his seat by accepting a Speaker's allowance when he was not Speaker, every other member who accepted his membership allowance before taking his seat has subjected himself to a similar disability. This contention is based on the supposition that our Parliamentary Allowances Act is ultra vires. This Act provides that a member's allowance shall be reckoned from the date of his election, whereas section 48 of the Constitution stipulates that the allowance shall be " reckoned from the day on which he takes his seat." But this direction, as well as the amount of the allowance, is governed by the introductory words, "until Parliament otherwise provides." Parliament, therefore, is able not merely to increase or diminish the amount of the allowance, but may also vary the time when the allowance begins. And this is what Parliament has done in the Parliamentary Allowances Act. I am unable to see any similarity between the position of the honorable member for Wakefield, as recipient of a Speaker's allowance, and that of an ordinary member who has benefited by the Parliamentary Allowances Act. That Act gives no authority for the payment of a Speaker's allowance during the interval between the dissolution of one Parliament and the creation of another. The authority is found in a footnote to the Appropriation Act, which footnote some authorities regard as a direction, rather than a command. Section 83 of the Constitution very clearly provides that no money shall be drawn from the Treasury of the Commonwealth except under an appropriation made by law. Now the question is, wasthat footnote a part of the law?

Mr Deakin - No.

Mr MAHON - By that admission the Prime Minister gives the whole case away.

Mr Deakin - I do not think so.

Mr MAHON - I am not prepared to enter into a legal argument as to whether a footnote is or is not part of the Act to which it is attached. Authorities differ, though our Acts Interpretation Act seems decisive. The footnote is certainly part of the schedule, and the schedule is part of the Act; but section 13 of the Acts Interpretation Act says that no marginal note or footnote is to be regarded as part of an Act. That point appears to have been recently brought under the notice of the Ministry. If they knew that a footnote to an Act would not be regarded as a part of the statute, what possible reason had the Prime Minister for inserting the footnote? Why was a provision not inserted in what is known as the corpus of the Bill as one of its main provisions? If there was any doubt upon the point, why was not the provision made in the ordinary] way ? It is not, at any rate, necessary to my argument to place any great reliance on mere technicalities. Whether the grant was legally or illegally made, its acceptance by the honorable member for Wakefield has brought him within purview of section 45 of the Constitution. That section declares vacant the seat of any member who " directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth." Superficially this might be considered to forbid the Parliament from making any provision for a Speaker, because, although his services are rendered directly to the House, it is difficult to understand how a service can be rendered to Parliament which is not at the same time a service to the Commonwealth. But in view of the inherent right of every legislature to pay its own officers, and of the transmitted powers conferred upon us by section 49, it seems to me that such a rigid interpretation is unreasonable. This opinion is strengthened by the latitude conferred on Parliament by section 48, which, while providing a uniform allowance, does not prohibit extra remuneration to certain members. I should like the House to consider for one moment the position of the honorable member for Wakefield. During a period when he was not Speaker, he drew the Speaker's allowance. I do not think that fact will be challenged. If it is, I believe that evidence can be produced in support of my statement. What I wish to know is, "Was this allowance a fee or honorarium, and if so, for what was it given?" Was it. a gratuity for services rendered to the Commonwealth ?

Mr Conroy - The honorable member for Wakefield was not a member then.

Mr MAHON - He was a member on the 3rd December, and the present Parliament did not come into existence until the 16th December. There is no escaping from the position by any quibble of that character. However, I should prefer, if the honorable and learned member for Werriwa will permit me, to preserve the continuity of my remarks. In my reply I shall be prepared to answer any points which may be raised in the course of the debate. , During the period I have specified, the Speaker received a fee or honorarium. - For what was it given? Was it a gratuity for services rendered to the Commonwealth ? What is the definition which is laid down by Webster of the word " fee " ? That authority says a fee is " a reward for services performed, or to be performed " ; and " an honorarium " is "a fee offered to professional men for their services." I scarcely think it will be denied that the allowance which was drawn by the honorable member for Wakefield does not come within one or other of these definitions. The only question which remains to be considered is, " What was this fee or honorarium paid for?" I think the allowance fairly comes within these definitions, and, further, that it is that character of payment which this section of the Constitution penalizes. The only -question remaining for our consideration is " For what services was this allowance paid to the honorable member for Wakefield?" Speaking off-hand, I would say, that if Parliament chose to vote a sum of money to any gentleman as a gratuity, it would be perfectly within its rights, and the individual concerned would be equally within his right in accepting it. But when this allowance is bestowed upon a member of the House, the obvious conclusion is that it was given for some service. Was that service rendered to Parliament? How could it possibly be? Upon the 23rd November, the first Parliament was dissolved. This service was continued from 23rd November until, I presume, the 2nd March. Was that allowance granted for any service rendered to this Parliament ? That could not be so, because, strictly speaking, this House did not come into existence until the 2nd March. At any rate, the conclusion is irresistible that it did not exist before the 1 6th December. Therefore, I hold that the honorable member for Wakefield, having drawn an allowance between the 3rd December and 16th December, has placed himself within the penal sections of the Constitution. Now, I desire to show that this money was not, in any sense, a gratuity to him. . I shall prove that by the Hansard reports of speeches which were made in this House by Ministers and other honorable members. The Appropriation Bill first, came up for discussion - or, at least, the particular portion of it with which I am now dealing - upon the 15th September last year. On that occasion the honorable and learned member for Angas drew attention to a certain footnote. He said -

I hold that this is unconstitutional. If it is to be done, it should be. done by Act of Parliament. Even then I doubt whether an Act can override the Constitution. .

There is no doubt that no Act which we can pass can override the Constitution. Then follows a statement from a gentleman in an authoritative position. I refer to the Treasurer. What did he say in regard to the item which was challenged by the honorable and learned member for Angas? He said -

I would point out that there is nothing in the Constitution which prevents the payment of his salary to Mr. Speaker during the general election.

The Prime Minister entertained a doubt as to the power of the House to pay the Speaker while he is Speaker, whereas the Treasurer thought that we have a right to pay him when he is not Speaker. That is a most extraordinary position for two Ministers to occupy. Then the Treasurer added -

It is quite competent for Parliament to vote this amount if it thinks that it is a fair, reasonable, and proper thing to do. I have been actuated in placing the item upon the Estimates by the fact that the difference in the case of the President and Mr. Speaker would otherwise be very marked. The President would be entitled to receive his salary for the full period, while Mr. Speaker would not. It is said that honorable members lose their salary during a general election. So does Mr. Speaker. He loses his ordinary salary as a member, but we propose that he shall not also lose his salary as Speaker.

Mr A McLean - As Speaker he does not receive his ordinary member's salary ?

Sir George Turner - Yes. He receives ^400 a year as a member, and £1,100 a year as Speaker.

I invite the attention of honorable members to what follows : -

Of course the salaries of Ministers are paid after a dissolution of Parliament until the meeting of the new Parliament, because they must continue to carry on their administrative work. In the same way it will be necessary for the Speaker, during the interval between the dissolution of one Parliament and the meeting of the next, to attend to his share of the business connected with the Departments of Parliament.

There is a statement by the Treasurer that a gentleman who ceases to be Speaker when a dissolution takes place is entitled to discharge the duties of Speaker, although he is not even a member of the House. As evidencing the wide difference of opinion which existed between Ministers . themselves, I would direct the attention of honorable members to a question which was put by Senator Matheson to the Vice-President of the Executive Council, on 18th August, 1903.

Mr Groom - Does the honorable member contend that the Speaker had no right to receive remuneration during the time that he was not a member of this Parliament ?

Mr MAHON - I am not referring to his member's allowance at all.

Mr Groom - But the honorable member says that he performed certain duties when he was neither member nor Speaker.

Mr MAHON - I say that the honorable member for Wakefield incurred no penalty by reason of receiving money for services rendered when he was not a member of this Parliament. From the 23rd November until the 3rd December, he could not incur any constitutional penalty for having accepted an allowance, because, at that time, he was not a member of this Parliament. But, on 3rd December, he became a member by reason of his re-election, and by receiving the allowance from that date onwards he undoubtedly exposed himself to the penal sections of the Constitution. When the honorable and learned member for Darling Downs interjected, I was emphasizing the difference of opinion that existed between Ministers themselves. The Treasurer had declared that the gentleman holding the office of Speaker was entitled to discharge all Executive functions. Only a month previously, in the other Chamber, Senator Matheson had put the following questions to the Vice-President of the Executive Council: -

1.   Do not the functions of the President and Speaker under the Public Service Act only appertain to them while lawfully President or Speaker?

2.   By what legal right, power, or authority can duties vested by law in the President or Speaker be performed by a person who by the Constitution is no longer President or Speaker?

To which the Vice-President of the Executive Council had replied as follows : -

1.   Yes.

2.   The .administrative functions of President and Speaker will be exercised as the circumstances arise in accordance with the law, and no payments will be made to them except in accordance with the law.

I think that a payment has been made to the Speaker which is not in accordance with law, and I shall be very glad to hear the Prime Minister defend the legality of his action. When this matter was again under review, on 21st October, 1903, the Prime Minister himself said -

I wish to direct the attention of honorable members to an item which relates to our own Chamber. Upon a former occasion the Committee decided to strike out the footnote upon page 8 which relates to Mr. Speaker, and which reads - "If again returned to Parliament, salary to continue, notwithstanding the dissolution, until the meeting of the new Parliament." That has been re-inserted in order that Mr. Speaker may be placed in the same position as the President of the Senate and certain Speakers elsewhere.

At another stage, when the honorable member for Kennedy questioned the right of the House to vote this amount, the Prime Minister interjected -

We have power to vote salaries to honorable members in respect of the same period.

That is, the period between the dissolution and the creation of the new Parliament. The Prime Minister said later on -

We are asked to vote £1,100 - which represents a full year's payment to Mr. Speaker. The money will be paid to Mr. Speaker, but, if he is not returned, his salary of course will cease on the day that he fails to secure re-election. On the other hand, if he be returned, he will receive the full sum of £1,100 for his twelve months' service, notwithstanding that there will be a month or more during which he will be out of office. The foot-note is simply a beacon-light to honorable. members, so that they may not be taken by surprise.

These quotations, I imagine, dispose of the suggestion that this grant was intended as a gratuity. Then, for what was it given? As I explained on a previous occasion, the allowance could not have been drawn for services rendered to the last Parliament, because it was dead ; and any duty which the honorable member for Wakefield had performed as Speaker was obviously fully paid for by the allowance which he drew up to the date of the dissolution. If this dictum be disputed, why was the allowance to honorable members summarily stopped when the House was dissolved? Section 48 directs that members "shall receive an allowance of ,£400 a year." I say that those who defend a payment, as Speaker, to a person who is not Mr. Speaker, must logically advocate payment, as members, to persons who are not members. If it be proper to pay a person who filled the office of Speaker the salary of Mr. Speaker until his successor is appointed, then it is equally proper to pay members their constitutional stipend until some other persons take their places. The notion that members have no duties to perform outside this House or until they take their seats in it, or even before they secure re-election, will be repudiated by every person possessing the most elementary knowledge of the facts. This is my case. I contend, in the first place, that Parliament had the authority to pay Mr. Speaker, and I think I have proved that contention. My second point is, that it has no authority to pay Mr. Speaker's allowance to any person not acting in that capacity.

Mr Conroy - It can make a grant to any person.

Mr MAHON - It can make a grant by way of a gratuity, but if it makes to a mem ber a grant which he accepts, then his seat becomes vacant. My third point is that the grant made to the honorable member for Wakefield during the period from 23rd November last to the date of his re-election was illegal, since it is in conflict with section 83 of the Constitution ; and, lastly, I hold that the honorable member, by accepting this money, has vacated his seat. I desire to thank the House for the kindly hearing that has been given to a very dry argument, and to say that I have not been led to take up this matter by reason of any personal feeling. I consider it to be the duty of every honorable member, however humble his position, to endeavour to see that the Constitution and the laws of the Commonwealth are upheld. That is what I have endeavoured to do; and having done it, I am content to remit the issue to the judgment of the House.

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