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Thursday, 17 March 1904

Mr DEAKIN (Ballarat) (Minister for External Affairs) . - I do not think that the honorable member owed the House any apology for having addressed it on this subject, or at such length. It is very evident that he has taken pains to qualify himself to express his opinions on the question by a careful, elaborate and thorough study of the whole matter. Indeed, he appears to have unnecessarily involved himself in a number of inquiries, all of which, I may say in passing, he has conducted with great skill. That he has, as far as possible, mastered all the issues which he believes to be involved, no one who has heard him can doubt, and I am sure that the House will admit that he has discharged his duty in a worthy manner. He. has shown, if I may say so, a great deal of judgment in the manner in which he has framed his proposal. At first sight one - would have been tempted to attack this question rather on the ground that the breach of section 49 related back to that part pf section 45 whichrefers to an office of profit under the Crown. I dare say that the honorable member examined that proposition, and finding that it could not be sustained concentrated his attention-

Mr Mahon - I did not mention it.

Mr DEAKIN - I was under the impression 'that the honorable member referred to it on the first occasion upon which he brought this question before the House. Like a skilful general, he has now marshalled his- forces against what he saw to be the weakest position. He has this ground for his contention that, so far as my knowledge goes, no such provision as that on which he relies is to be found in other statutes relating to the office of Speaker. The history of the section throws a good deal of light upon its meaning. The provision of the Constitution that, if a senator or a member of the House of Representatives takes any fee or honorarium for services rendered to the Commonwealth, his place shall thereupon become vacant, was adopted by the members of the Convention after an earnest and, at times, somewhat heated discussion. Their object was to prevent members of the legal profession who might be members of the Commonwealth Parliament, from appearing for the Commonwealth in the High Court, or in any of the Courts of the States. It was alleged that this privilege which is possessed by the legal members of most other Parliaments of appearing in the Courts for the Crown, had been abused, or was subject to abuse, and the Convention therefore decided to lay down a new rule, and to ' prohibit members of this Parliament from accepting Government retainers. As no doubt honorable members are fully aware, the term " honorarium " is the customary word for describing the payment made to a barrister. The ancient doctrine was that he was not paid for his services, and the little pouch at his back was the receptacle for any honorarium a grateful client might be pleased to offer.

Mr Kingston - The provision in the Constitution is aimed at preventing the giving of Government patronage in the Courts.

Mr DEAKIN - Yes. But, of course, it is possible to aim at one particular mischief, and to bring down a great deal more than is aimed at. The honorable member for Coolgardie has quite legitimately argued that the words, " fee or honorarium," should be taken to have their natural and ordinary meaning. It is very gratifying that at every stage of his remarks he showed that his action is absolutely impersonal. He has drawn his bow, not at the honorable member for Wakefield, but at what he considers a possibility of abuse arising out of the relations of the Speaker and Parliament. He recognises that no demerit or error of any kind is to be attributed to Mr. Speaker, because the payment was made to him with the sanction of Parliament, upon the proposition of the Government, and the whole transaction had the fullest publicity. There is no suggestion of anything underhand or improper. The question is simply one of technical law; whether the payment to the Speaker for services rendered to the Commonwealth between the date of the dissolution of last Parliament and the meeting of this for services rendered during that period is, or is not, a contravention of paragraph 3 of section 45 of the Constitution. The honorable member has admitted, and it helps my argument a little, that provision for the payment of the Speaker during the time that elapses between the dissolution of one Parliament and the meeting of the next is customary elsewhere. It is provided for by law in England, and in one or two of the States, and by custom in. others of the States. Moreover, it has been recognised as a reasonable payment. Therefore, it was not a new departure for this Parliament to sanction. Moreover, it is not a special payment to be made to this Speaker and to no other ; it is a payment to be made to all Speakers. The only question is, as to the way in which it has been made. The solution of the question appears to lie in a rather stricter reading of the language of the Constitution than the honorable member has given to it, though he touched upon all the readings. The interpretation which' it seems to me necessary to place upon this part of the Constitution requires close attention to two sets of words - " fee or honorarium," in the first place, and " services rendered to the Commonwealth," in the second place. First of all, is this payment a fee or honorarium? The honorable member brought to bear upon that point a variety of considerations; but he did not deal with it from what I thought would have been his main ground. It must be remembered that the foot-note in the Estimates is not a legal enactment, and was not intended to be so. It was placed there to challenge the attention of Parliament to the item to which it referred. The appropriation of the money was sanctioned and made available by the Appropriation Act, and it would have been competent for the Government to pay the Speaker ^1,100, even if no foot-note had been inserted.

Mr Watson - And the ^1,100 could be paid in a lump sum.

Mr DEAKIN - Yes. on the first day of the year, if it were thought proper to so pay it. The foot note was, as I - said at the time, a mere beacon-light, so that there should be no secrecy about the matter. It was intended to call the attention of honorable members to what was proposed. The words used were -

If returned again to Parliament, salary to continue notwithstanding the dissolution until the meeting of the new Parliament.

The foot note had no legal effect. It merely indicated the intention of Parliament. It must be noticed here that the amount paid is not a fee or honorarium, but salary. If my honorable friend will refer to the speech of the Treasurer he will see that, throughout, the word " salary " is used. The money was voted as salary. Whatever was received between the date of the dissolution of last Parliament and the meeting of this was part of a salary, and not a fee or honorarium. The next point is that to render a member's place vacant a fee or honorarium must be taken " for services rendered to the Commonwealth." The honorable member for Coolgardie stated very fairly that it is hard to discriminate between the Commonwealth and Parliament, or between the Commonwealth and any other agency of the Commonwealth. There would be a difficulty if the section did not itself discriminate by showing that where it refers to services rendered in Parliament it does not refer to services rendered to the Commonwealth, and where it refers to services rendered to the Commonwealth it does not refer to services rendered in Parliament. I submit to the honorable gentleman's considerationthatthe money paid was for services rendered in Parliament, as distinguished from services rendered to the Commonwealth. The assumption of the honorable member is that Parliament was not in existence after the dissolution; but I think that such an assumption is not supported by fact. In the first place, half the members of the Senate were not compelled to seek re-election, and, therefore, did not cease to be members of Parliament, and in the next place the Governor-General, as representing the King, ispart of Parliament, and. he, of course, remained in office. Then from 3rd December those who, like the honorable member himself, were fortunate enough to be returnedby appreciative constituents without opposition, were members of this House. Consequently I think that it cannot be said that Parliament had ceased to . exist.

Mr Mahon - Was there a complete Parliament until the 16th December?

Mr Johnson - There is not to-day.

Mr DEAKIN - That is so, because at the present time the Melbourne seat is vacant.

Mr Fisher - Does not a quorum constitute a complete Parliament?

Mr DEAKIN - No. A quorum is the number of members necessary to constitute an effective meeting of one branch of the Legislature.

Mr Mahon - My point is that this House did not come into existence until the 16th December.

Mr DEAKIN - The services were rendered to a part of Parliament.. Parliament itself under our system of government, has a continuous existence. Even if there were a dissolution of both Houses, it might be argued that Parliament still continued to exist, because the Governor-General, who is part of Parliament, would still remain in office. The services rendered by Mr. Speaker were distinctly services rendered to Parliament. They had to do with the administration of the Parliamentary Departments - the control of the officers of the House, the management of the library, the building, and so forth. To pay the salaries of these officers special appropriation is made for Parliament, whereas advocates appearing in the Courts on behalf of the Commonwealth would be paid out of the general purse. Although at first sight, especially when supported by his arguments, the contention of the honorable member seems difficult to answer, when account is taken of the difference between a fee or honorarium' and a salary, and between services rendered to Parliament and services rendered to the Commonwealth, the difficulty disappears. The only services rendered in Parliament for which it is forbidden to take a fee or honorarium under section 45 are services to any person or State. That is, members are prohibited from appearing in Parliament as the paid agents of a State or of private individuals who have interests which. they wish represented and advanced. The honorable member fairly admitted that, although there is no provision for the payment of Mr. Speaker under the Constitution, it may be fairly contended that, under section 49, and in accordance with the general custom of Parliaments, that payment is legitimate in the same way as are the payments made to the President and the Chairmen of Committees in both Houses. There is no specific authority in the Constitution for the payment of those salaries ; but they are sanctioned by the general practice of Parliament under section 49 of the Constitution. Having admitted so much, I think that the honorable member admitted all that is necessary to meet his own contention, taking the words of section 45 strictly into account. Services rendered in Parliament, when they are distinctly such, are not services within the prohibition of section 45. I might dwell at greater length upon this argument, but it appears to me that this statement of the central point is sufficient. If I do not follow the honorable member in all his arguments, it is because I think that having admitted so much, his remaining contentions are unavailing. From his own stand-point, however, and without that admission, they were, of course, logical and effective.

Mr Mahon - What is a salary paid for?

Mr DEAKIN - For services rendered.

Mr Mahon - What is a fee paid for?

Mr DEAKIN - A fee is paid where the relationship between the person paying and the person performing the service ismerely temporary. It is paid generally for special services performed only at special times or on special occasions, services such as those of a doctor or lawyer. A salary is paid to a person whose service and remuneration are constant.

Mr Mahon - Is not the feealso paid for services rendered ?

Mr DEAKIN - Both are payments for services rendered ; but, whereas a salary is regularly paid for continuous services, a fee or honorarium is a payment for occasional services. Each payment terminates a contract, and leaves the person who makes it free to choose whom he will employ on the next occasion. Where a salary is paid there is a contract on the one part to serve for a certain time, and on the other to. employ to the exclusion of others. Such a contract is made in the case of the Speaker.

Mr Mahon - How could Parliament make a contract with the Speaker extending beyond the date of its dissolution?

Mr DEAKIN - Easily. By an Act of Parliament we could provide for the payment of a pension to the Speaker for a period of years, or for the term of his natural life even though he should cease to be Speaker or to be a member of Parliament. The real point, I submit, is that which I have just stated, though it is hardly fair to ask the honorable member to conclude upon it immediately, he not being a professional man. To listen to him, however, one might have supposed that he was, so close was the attention he gave to the subject. But if he takes time to look at the matter again, and places a reasonable, plain, and ordinary interpretation upon the words of section 45 of the Constitution, he will see that the general power to which he has alluded supports the contention that we are justified in paying the Speaker of this House in the same way as the Speaker of practically every other Parliament of Australia, and the Speaker of the House of Commons, are paid. We are not forbidden by the Constitution to do what has been done.

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