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Thursday, 26 October 1905


Senator Sir JOSIAH SYMON (South Australia) - I do not think ( it would be possible to exaggerate the importance of this question, which, from the aspect of an in- struction, was dealt with! a few days ago, and which, from the aspect of an amendment, is now under consideration. It seems to me, as I said on that occasion, that it is extremely important that we should be very careful not to unduly- restrict our power of dealing with Bills. The amendment now in question is that proposed by Senator O'Keefe, which was debated more or less on the motion for the second reading of the Bill.


Senator O'KEEFE (TASMANIA) - I then gave notice that I intended to move the amendment.


Senator Sir JOSIAH SYMON - From my point of view that is not so very material ; but notice of the amendment having been given, the matter was then elucidated and formed the subject of argument by Senator O' Keefe. It was also a matter upon which I made a few remarks at the second-reading stage. So that we were all perfectly well aware that it was intended to submit the amendment, and that it affected the original Act which stands upon the statute-book. In my opinion the Committee is competent to consider or make such an amendment as that moved by Senator O' Keefe. Otherwise the Committee would be entirely limited to the amendments proposed by the Government in the Electoral Act. It seems to me that there is no middle course. Because the question is - What is the purpose of the Bill? " Principle" or " purpose " is in this connexion an interchangeable term with " subject-matter." And whilst I should be extremely sorry to see any attempt made to convert a Bill having one object into a Bill having another object, under cover of amending the existing Act, I nevertheless consider that within those limits our powers should be elastic rather than rigid. I cannot assent, and I think that lit. would be wrong of the Senate to assent, to any view which would have the effect of restricting us in relation to amendments to be made in an Act by means of an amending Bill introduced by the Government to the amendments which they propose. I have very anxiously considered this. matter, but I cannot consent to the view that, having regard to the subjectmatter of this Bill - that is, as interpreted by the word "purpose" or "principle " - we are confined simply to making the amendments proposed to us by the Government. I consider that the purpose and principle of the Bill now under consideration in Committee is to amend the electoral law. I can conceive of a Bill being introduced for the purpose of repealing a particular section. Upon such a Bill I consider that an amendment to amend the law relating to parliamentary elections generally would be irrelevant. The details of a Bill, by which its purpose is to be worked out, ' are the clauses which the Government submit to us. They are the means by which the Government suggest that the electoral law should be amended. But those details, it seems to me, do not. preclude us from making any amendment in the electoral law within the purpose of the Bill. The essence of the question is whether Senator O'Keefe's amendment is relevant to that purpose - whether it isrelevant to the subject-matter of this Bill. It may not be relevant to the amendments, which the Government have proposed.


Senator Pearce - If this Bill becomes an Act, it will be read as one with the principal Act.


Senator Sir JOSIAH SYMON - That emphasizes the view that I take, that it is impossible to dissociate this Bill from the electoral law which is to be amended. The Government say that the electoral law requires amendment. A Bill bs brought down for the purpose. When we read the Bill a second time we affirmed the principle that the electoral law required amendment. But we did not affirm that the amendments to be made are to be limited to what the Government proposes. We say, " We agree that the law requires amendment, and we will agree to some of your amendments, and make modifications in others. But we are going to make some other amendments of our own.". And- it seems to me that so long as the question is viewed from that stand-point, and our amendments are within that purpose of amending the . electoral law, which is the subject-matter under consideration, they are perfectly relevant. The view which I take is, I think, borne out by two authorities by whom the distinctionis clearly drawn. That is to say, the distinction is clearly drawn between a Bill dealing, perhaps, with an existing law which a House of Parliament may not amend by an amendment that is not relevant to the subjectmatter, and a Bill which a House of Parliament may amend by an amendment which is relevant to the intentions of the Bill. The intention of this Bill is to make certain amendments in the electoral law. That is what it is brought down for.


Senator O'Keefe - That is what it says.


Senator Sir JOSIAH SYMON - So it seems to me. I draw a distinction between this amendment and Senator Mulcahy's, although' the view which I expressed the other day was arrived at after considerable doubt. I frankly confess that I entertained a doubt as to whether we were quite right on that occasion, but I do not wash to say anything further about it. As to the principle involved, I find that May, on page 458, deals with amendments made in Bills. He says : -

Amendments are out of order that are irrelevant to the Bill ; governed by amendments already negatived ; inconsistent with or contradictory to the Bill as agreed to by the Com.mittee; or that are tendered to the Committee in a spirit of mockery ; and the Chairman would decline to put such questions from the Chair. The Chairman also, regarding an amendment offered to a Bill that was limited in scope to the repeal of a clause in a Statute -

We see the limitation there - a Bill introduced for the purpose simply of repealing a particular section in an Act, and not for a general amendment of the law - ruled that the amendment was out of order, because its object was the continuance and the extension of the clause to be repealed.

Clearly, of course, that could not be done. But May goes on to give another instance somewhat further emphasizing the same point.

The Chairman stated that, though the Committee had full power to amend, even to the extent of nullifying the provisions of a Bill, they could not insert a clause which reversed the principle which the Bill, as read a second time, sought to affirm.

Of course, we cannot do that by ian amendment. All that we have affirmed by reading this Bill a second time is that the electoral law requires amendment, and we have now to determine in what respects it is to be amended. There is even a stronger illustration in May's next paragraph : -

In like manner, it is not within the scope of a Committee on an expiring laws continuance Bill to amend the provisions of the Acts proposed to be continued.

Of course the difference between a Bill to continue an existing Act and a. BUI such as the one . before the Senate to make amendments in the existing law is obvious. A Bill to continue in existence an Act which would1 otherwise expire assumes that all the provisions of that law remain in full force -

Nor can an amendment be moved whereby an Act still in force would be included among the provisions of a Statute law revision Bill, which dealt solely with statutes no longer in force. It has been held, however -

And this is a strong authority, it seems to me, for the position that honorable senators opposite take up, and1 as to which I feel bound to agree with them -

That a Committee on a Bill to effect the consolidation of the law on the subject to which the Bill relates, may, without an instruction -

That is, it is relevant to the subjectmatter amend the provisions of the statutes which by the Bill are to be consolidated and fused together.

That, it seems to me, is direct authority for such an amendment as that proposed by Senator O'Keefe. In fact, it is, as lawyers say, a fortiori, because there was a Bill not brought down- for the purpose of amending the existing law, but simply for consolidating it; and although the Bill was brought down simply for the purpose of consolidating the law, an amendment on the Taw sought to be consolidated was held to be relevant to the subject-matter of the Bill. In Canada, the point has been expressly decided - so it seems to me, with great deference to Mr. President's view - in two instances cited in Bourinot's Parliamentary Procedure, at page 663 -

In the session of 1S75 the House w,ent into Committee on a Bill " to amend the general acts respecting railways."

Just as in the Senate we went into Committee on a Bill to amend the law affecting elections -

And a question arose whether it was competent to add a clause requiring the Government to purchase goods for the use of dominion railways upon public tender, and contract only.

That was a new matter of policy -

And the committee having arisen for the purpose of receiving instructions from the House upon the point at issue, Mr. Speaker Anglin decided that such an amendment would be regular without an instruction.

If that is the case there, it seems to me that it is impossible to differentiate that principle from that which applies to the position that has arisen here.

A similar decision was given in Committee of the whole on a Bill to repeal the Insolvency laws now in force in Canada.

Then the author cites the precedent in May with regard to a continuance bill -

On the other hand, it "has been decided that it is not within the scope of a Committee to which a Continuance Bill has been referred, to amend the provisions of the Acts which it is thereby proposed to continue, or to abridge the duration of the provisions contained in those Acts.

I confess that I opposed a similar amendment to that now sought to be moved by Senator O'Keefe, when we were dealing with the Electoral Act now upon the statutebook. My own1 inclination is not in favour of it, and I would rather not see it brought up for discussion again. But we have a higher duty, than to consider our own personal predilections either for or against a particular amendment. We have to consider the scope of the duties of the Senate. We have to pay deference to Mr. President's ruling and to the consideration which he has given to the subject; but having viewed the matter all round from its different stand-points, I am unable to see that Senator O'Keefe's amendment can for one moment be said to be outside the scope of or irrelevant to the Bill introduced and under consideration for the purpose of making amendments in the electoral law. I have great diffidence in dissenting from the view of the President, but, nevertheless, I think that this is an amendment which is relevant to the subject-matter of the Bill, and I also think that it would be greatly restricting the powers of the Senate to hold that we were excluded from considering it.







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