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Thursday, 26 October 1905


Senator STEWART (Queensland) - Senator Symon has expressed so fully and clearly my views on the subject that, fortunately, it will not be necessary for me to dwell on it at any great length. It is important, as you, sir, seem to consider, that we should now lay down a distinct rule and practice with regard to the procedure in the amendment of Bills. What is the position with regard to the present Bill? The Government have brought down a measure, the title of which is " an Act to amend ihe law relating to parliamentary elections." It appears to me that that title embraces the whole law", and, as Senator Symon very forcibly pointed out, all that we affirmed when we carried the second reading was that we agreed to the amendment of the * law relating to parliamentary elections." You have raised as an objection to Senator O'Keefe's amendment' "the point that the Bill did not contain this principle when it was read a second time. That may be very true ; but in reading the Bill a second time the Senate could not insert the principle, because on the second reading the consideration of details is forbidden. All that we are required to do on the second reading is to agree to the principle of the measure, and the whole issue seems to resolve itself into the question: What is the principle of the Bill we are discussing? The principle, as I have already said, is to amend the " law relating to parliamentary elections." The Government, as a matter of fact, laid this Bill on the table, and said : " Here is the electoral law, and here are certain amendments we desire to make in that law." Immediately the BiU is laid on the table of the Senate it ceases to be the property of the Government, and becomes the property of the Senate, which can either assent to the principle or refuse assent, and in the latter case, of course, the Bill has to be withdrawn. But if the Senate agrees to the principle - that is, to the amendment of the Act - we may, in my opinion, not only consider the amendments submitted by the Government, but may amend the Bill in any particular we please. To my mind the whole Bill is placed before the Senate for amendment, if the Senate is so minded'. The parallel drawn by you, sir, does not appear to apply in this case. If the title had set forth that the Bill was to amend certain sections, or, say, Part I. of the " law relating to parliamentary elections," the argument which you have advanced might have weight. But the title, it appears to me, embraces the whole "law relating to parliamentary elections," and, if that be so, the, amendment of Sentor O'Keefe undoubtedly comes within the purview of the Committee. Just consider for a moment what would happen if the ruling of the President were upheld. When the Government brought in any Bill for the amendment of a law, not only the Senate, but the Committee, would be strictly limited in its consideration of the Bill to the amendments submitted. It is much better that we should know exactly where we stand than that each individual case should be, so to speak, dealt with on its merits. If it is clearly expressed in the title of the Bill what amendments the Government desire to make, nothing more can be said ; but if the title is, as we have it here, all-embracing, the only conclusion we can come to is that the Senate has power to make any amendment it pleases. If the contrary were the case, we should be strictly limited to the amendments proposed by the Government, and the consequence would be the utmost confusion in legislation. For each amendment, or each series of amendments, an amending Bill would be required, which would mean loading the statute-book with Acts, and causing a great deal of confusion to members of Parliament and the public generally.


Senator Pearce - And loading up Hansard.


Senator STEWART - That is so. Would it not be much better, when amendments of a particular Act are desired, that all the amendments deemed to be necessary by the Senate should then be embodied in one Bill, instead of being contained in a number of Bills, each dealing with a particular part or section of the original Act? These being my opinions, I regret very much that I shall be compelled to support the motion dissenting from your ruling.


Senator Lt Colonel Sir ALBERT GOULD (NEW SOUTH WALES) -Col. GOULD(New South Wales). - I quite agree with Senator Stewart that it is very desirable to lay down a rule which we shall be able to follow, and not have debates of this character recurring from time to time. I also agree with what Senator Symon has said, as to the great importance of the matter we are now called upon to consider; and when I addressed myself to the question on a previous occasion, I expressed my opinion in much the same way. The question is really not whether we are in favour of the proposed amendment, but one of greater importance, because we are laying down a principle for the guidance of the Senate on future occasions. The other day., when we were considering Senator Mulcahy's proposed instruction to the Committee, the Senate accepted the ruling of the President without a division ; and, I think, with all due respect to what Senator Symon may say, that if this amendment of Senator O'Keefe is one that can be properly submitted, so was the amendment which Senator Mulcahy desired to propose. Senator Symon has relied' on what was the practice many years ago. He contends that the title of the Bill gives us the widest possible scope, and that we are not confined to the amendments proposed by the Government. There have been different tests applied in the House of Commons in questions of this character. The first test was contained in the question : Does the matter come within the title of the Bill ? The title of the Bill before us is very wide,_ and if that were the only test, possibly the amendment of Senator O'Keefe could properly be considered. I look "to the House of "Commons, with its centuries of experience behind it, as the guide to us in matters of this kind ; and that legislative chamber has altogether abandoned . the principle to which I have just referred. It was found that that test was not effective, and did not assist Parliament in its work; and there was applied the second test contained in the question : Does the amendment come within the scope of the Bill in a general way ; that is, can it be said to be an amendment of the law which the Bill is designed to amend ? In turn, that test was abandoned, and, finally, the third test was ap plied, as contained in the question : Does the amendment come within the frame-work and scope of the Bill? In other words, in this instance the question is whether the proposals placed before honorable senators in the Bill are to guide them as to the amendments they can make in the principal Act. That, I believe, is the practice of the House of Commons at the present day, and it was clearly laid down by Mr. Speaker Peel a great many years ago. The reason for the practice is found in the Standing Orders, which provide, first of all, that an amendment must be relevant to the subject-matter of a Bill, and, in the next place, that, as soon as the second reading has been carried, the Speaker shall leave the chair, and the House go into Committee without any further motion. It has been; pointed out that if other amendments could be introduced we should be permitted to have another second-reading debate on the particular principle sought to be enunciated or object attempted to be attained. Senator Symon said that Senator O'Keefe, on the second reading, had indicated his intention to move this amendment, and that Senator Symon himself had addressed a few words in opposition to it. But Senator Symon failed to point out the further fact that this amendment was not embodied in the Bill placed before us for our consideration. If Senator Symon's view be the correct one, honorable senators 'might feel called upon to vote against the second reading of a Bill, the whole of which they approve, in apprehension of some amendment being subsequently inserted, which they would not have accepted in the first instance. Does it not appear to honorable senators that there is very strong reason for laying down that principle? It is true that Parliament may be restricted to a great extent ; but, after all, liberty consists of essential restrictions on the individual. We alt of us have to observe certain conditions with regard to our neighbours, in order that we ourselves may enjoy liberty - each one has to respect the rights of others. In point of fact, our liberty is preserved by laws which place many restraints upon us, and it is essential, if we are to proceed with business, to have certain restrictions. If, for the sake of argument, this Bill had been introduced simply for the purpose of making one amendment, then, according to the argument of Senator Symon, honorable senators would have been at liberty to deal with the whole of the electoral law in any wa\ they thought fit. It may be said that the Government, by this means, may be enabled to place undue restrictions on honorable senators, but there can be no restriction other than that imposed by the subjectmatter of the Bill and the Standing Orders. There is a proper way of proceeding; a resolution can always be passed, requesting the Government to introduce a measure containing certain provisions. Senator Symon says that we have affirmed the principle of the Bill that the electoral law shall be amended, but what we have affirmed is only that it shall be amended in certain respects, and my contention is that under the rule as to relevancy we can deal only with matters cognate to the amendments proposed in the Bill. Otherwise we should be entitled to go entirely outside the scope and objects of the Bill in submitting amendments. If we assume, for the sake of argument, that Senator O'Keefe succeeds in embodying his amendment in the Bill, the effect may be to provoke a prolonged debate on the third reading, not because any honorable senator is opposed to the principles of the Bill as introduced by the Government, but because it will have been so drastically altered in Committee that honorable senators who do not approve of the alterations made will not be prepared to support the third reading. Senator Symon quoted the following from May: -

It has been held, however, that the Committee on a Bill to effect the consolidation of the law on a subject to which the Bill relates may, without instruction, amend provisions of the Statutes which by the Bill are to be consolidated and fused together.

But honorable senators must see clearly that In a Bill for the consolidation of the law on any particular subject we have a measure which purports to embrace every single detail connected with the law proposed to be consolidated. Let us take this case: We have the Commonwealth Electoral Act, and assuming that this Bill is passed, a Commonwealth Electoral Act Amendment Act. If the Government should then bring down a measure to consolidate these two Acts, the whole of the matters embraced in both would be before Parliament, and open to consideration. It must, therefore, be evident that the rule quoted by Senator Symon does not assist the contention of those who are opposed to the ruling of the President. The Bill before us is not a Bill for the consolidation of the electoral law, but to submit for our consideration certain portions of the law which, in the opinion of the Government, require amendment. If honorable senators revert from the present position to the position many years ago, when we looked to the title of a Bill to ascertain what amendments might fairly be moved on it, we must also go back to the old practice of having very lengthy titles. I have seen a title which covered a full page of print. That was necessary to set out the objects of the Bill, and to confine debate within those limits. When the standing order was made, requiring every amendment to be relevant to the measure under consideration, with the interpretation that no amendment must go beyond the scope and framework of the Bill, there was noi longer any necessity for those very long titles - which I can assure honorable senators were pitfalls for every one who had to deal with legislation. It was quite sufficient then to submit a brief title which enabled the Bill to be cited very much more readily, and which, at the same time, did not leave the door more widely open for the acceptance of irrelevant amendments than was ever intended bv Parliament. I again refer honorable members to this reference regarding instructions in May -

When a Bill has been read a second time, the House has assented to the principle of a Bill. In the last few years a standing order has been passed, stating that when the House is prepared to go into Committee, the Speaker is to leave the chair without question put ; but there is a reservation made with regard to instructions to the Committee. It would be obvious to the House that if an instruction moved on that occasion were to traverse the principle of the Bill, or go so far outside the limits and scope and framework of the Bill, so as to set up an alternative scheme or a counter proposition to the Bill, that would virtually be a second reading debate over again. It would be an amendment to the principle of the Bill, and would, therefore, reduce to a minimum, and would nullify altogether, the provision which the House has passed in the standing order which states that when the House is prepared to go into Committee, I should leave the chair at once without any question put. There is nothing in the precedents, I believe, which go beyond an instruction of this nature - an instruction to amplify the machinery of the Bill to carry "out the general purpose and scope of the Bill within the general framework and idea of the Bill.

The general idea and framework of this Bill are before us, and they involve only partial amendments of the principal Act, which are set out in the Bill itself. If a different rule to that to which I have referred is followed the Senate will be landed in such a position that it will be impossible for us to get through the work which we ought to do. If this had been a Bill to amend the principal Act in only one particular, would it not have been monstrous for honorable senators to contend that because its title was " a Bill to amend the law relating to parliamentary elections," it would be competent for honorable senators to roam all over the principal Act to suggest amendments?


Senator O'Keefe - The proper procedure would have been for the Government to set out the particulars in which it was intended to amend the principal Act.


Senator Lt Col GOULD .- I have already pointed out that that was the former practice, which was abandoned, as the result of an alteration in the Standing Orders, and the interpretation given as to the relevancy of amendments to the measure under consideration.


Senator Trenwith - Is there anything in this Bill dealing with the method of voting ?


Senator Lt Col GOULD - There are clauses in the Bill which deal with voting by post, but they are purely machinery clauses.


Senator Trenwith - To carry out the principle.


Senator Lt Col GOULD .- That is so.


Senator O'Keefe - It is a matter of opinion whether my amendment would1 hot be a machinery provision.


Senator Lt Col GOULD .- It could not be a machinery provision, because it would alter the principle embodied in the main Act, with respect to the number of candidates for whom electors must vote. Senator Pearce drew special attention to clause 51 of the Bill, which provides that -

After section 198 of the Principal Act the following section is inserted.

Section 198 of the principal Act provides that-

The Court shall inquire whether or not the petition is duly signed, and so far as rolls and voting are concerned, may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct, but the Court shall not inquire into the correctness of any roll.

To that section it is proposed in clause 51 that we should add the following: - 198a.(1)IfthecourtofDisputedReturnsfinds thatacandidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void. . . .

Senator Pearcecontends that, as there was no power in the Court under section 198 of the principal Act, to declare the election void, this clause introduces a new principle. But does not this clause merely supply a manifest omission in the principal Act? This provision is not in derogation of anything contained in section 198 of the principal Act, but is simply an amplification of it, without laying down any- new principle. Then the honorable senator said, with regard to voting by post, that this Bill might make an alteration in the number of votes that would be recorded. That does not in any way affect the principle. We have adult suffrage, and these provisions for voting by post are only machinery to provide the electors with a means of recording their votes. The principal Act "provides that if an elector be five miles away from his polling place on the day of an election, he may obtain permission to vote by post. The alteration of the law proposed by this Bill is that he shall obtain that permission only if he is ten miles away from the polling place on the day of election. That does not introduce any new principle.


Senator Trenwith - A further principle which we adopted in the original Act is that every man must vote for the total number of members required to be elected.


Senator Lt Col GOULD .- That is so, and that is distinctly a matter of principle. Senator O'Keefe's amendment would reduce the number of candidates for whom an elector must vote, and it is clear that there is a distinct difference between plumping ant? voting for the full number of members required to be elected. To permit plumping is to affirm the principle of minority representation, whereas the principle affirmed by the main Act is the principle of majority representation.


The PRESIDENT - I do not think that the honorable and learned senator will be in order in discussing the merits of the amendment.


Senator Lt Col GOULD - I have no desire to do so, but I say that we have affirmed the principle of majority representation by requiring every elector to vote for the full number of members required to be elected, and we are being asked to affirm the principle of minority representation when we are asked to permit plumping.


Senator O'Keefe - My amendment does not necessarily involve plumping.


Senator Lt Col GOULD - It might or might not; that is left to the judgment of the elector. I submit that on the whole this ruling clearly recognises the right of the Committee, that any restriction which it may impose will be in accordance with parliamentary practice i'n the old country, and1 that it will conserve to a much greater degree the possibility of legislating and the liberty of honorable senators in dealing with questions from time to time.







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