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Friday, 27 October 1905

Senator GIVENS - It is a question of principle whether Parliament shall or shall not have a right of review.

Senator Millen - I think that where Parliament has already delegated a portion of the work to somebody outside, it can only be said to be a question of degree, and not of principle, whether it delegates more or less of that work. Clause 12, you will see that it adds additional provisions to the machinery by which this work is to be carried out. Clause 14 distinctly does so by indicating the conditions which shall necessarily exist prior to the issuing of a proclamation ordering a fresh distribution. The whole of

Part III. of the Bill, while in no sense disturbing the principle of Part. III. of the Act, which provides for equal electoral districts, opens up the question of machinery ; and I submit that my amendment is simply a variation, not of the principle of section 12 of the Act, but of the machinery by which the' principle is sought to be given effect to.

Senator Givens - Senator Millen contends that there is a vital difference between the amendment he now proposes and the amendment of Senator O'Keefe, which was yesterday ruled out of order. Personally, I cannot see any such vital difference. A matter of principle is involved in both cases, and, in accordance with the President's ruling, the amendments are not in or[der, because neither principle was contained in the Bill on the second reading. Senator Millen says that his amendment is merely a question whether a part or the whole of our powers ought to be delegated to a body outside Parliament. The honorable senator's argument cannot possibly stand if we view it in the light of other powers which Parliament delegates. Is it not a fact that Parliament does not draft its own Bills, but delegates that power to the parliamentary draftsman ? But will it be contended that we ought to give the parliamentary draftsman power to, in effect, pass those Bills and make them legal enactments? Such an argument is ridiculous on the face of it. What will be the effect of Senator Millen's amendment if it be ruled in order, and carried? The effect will be to take away certain powers of review which Parliament already possesses, and to place in the hands of an outside body the power to say whether or not a redistribution scheme shall stand. That is an exceedingly important principle which was not in the Bill on its second reading. Such a proposal was not discussed on that occasion, save by Senator Millen himself, and, therefore, in accordance with the ruling already given, I respectfully submit that the honorable senator's amendment is out of order.

Senator Pearce - Senator Millen's argument that this amendment merely deals with machinery is, in my opinion, straining the position. The Act practically declares that, as it is inconvenient for Parliament to map out boundaries, the work shall be given to a Commissioner, retaining the power to Parliament to determine the boundaries. The amendment of Senator Millen, on the other hand, declares that the power to map and determine boundaries shall be exercised by Commissioners ? Surely there is a principle involved in such a proposal ? One of Senator Millen's own arguments was that Parliament could exercise the power in a way not in the best interests of the country.

Senator Millen - The honorable senator admits that it is inconvenient for Parliament to map out electoral boundaries, and I have endeavoured to show that it is equally inconvenient for Parliament to revise boundaries.

Senator Pearce - Parliament would not be inconvenienced in the slightest in accepting or rejecting, a distribution scheme; but it is unwise that Parliament should have the power to map out the .boundaries. Surely Senator O'Keefe's amendment, on which the President's first ruling was given, involved a question of degree ? The vote of an elector was not proposed to be taken away ; it was a question as to the degree in which the voter should exercise his power. There was no proposal to disfranchise or to confer additional voting power on anybody, and that amendment might well have been regarded as involving only a matter of degree. The amendment before us involves what is essentially a question (of principle, and it is a principle which I favour. If the ruling is to be that questions of principle not embodied in the Bill before its second reading cannot be dealt with in Committee, surely this is a question of the kind.

Senator O'Keefe - Senator Millen, in moving this amendment, has, I think, been prompted by the consideration that there is a principle involved in the parliamentary power to review the work of the Commissioner. The honorable senator and those who support him think that the question of electoral boundaries should be left to a body entirely outside Parliament, and that opinion is based simply on a question of principle. They contend that it is a bad principle that members of Parliament should be allowed to review, and either reject or accept, the work of the Commissioner, because members of Parliament themselves are personally interested. It is entirely because Senator Millen does not agree with the principle of parliamentary review that he submits the amendment ; and for him to contend that we are concerned merely .with' the question of machinery savours of the farcical. Senator Pearce has emphasized very strongly the point to which I myself had intended to call attention. It the amendment is to be considered merely a matter of degree, surely the amendment which I desired to submit, but which was ruled out of order - and thereby made the means of creating a precedent - was far more a question of degree. In disputing the

President's ruling yesterday, I said-

The PRESIDENT - It is not desirable that the honorable senator should discuss that matter now.

Senator O'Keefe - If that is your opinion, sir, I shall, of course, bow to your ruling.

The PRESIDENT - I feel that in this case I may permit the honorable senator to refer to the amendment on which the ruling was given yesterday.

Senator O'Keefe - I have no desire, sir, to question the ruling which lias already been given, except in so far as to institute a comparison with the present case. I yesterday pointed out that my amendment simply raised the question of whether an elector should have the power to vote for three candidates or one; and surely it is a question of degree, whether a voter shall exercise the power conferred on him under the Electoral Act, in whole or only in part. If the English language has any meaning, it must be evident to every honorable senator that my amendment involved a question of degree.' But that the amendment now under discussion is merely a matter of degree, I cannot accept for a moment. We have before us two alternative propositions. It is provided that the redistribution or revision of electoral boundaries shall be left in the hands of a Commissioner. But yesterday we decided that there shall be three Commissioners instead of one; but the Act still contains the principle that whatever schemes may be prepared shall be subject to revision by Parliament - they must run the gauntlet for acceptance or rejection by members of Parliament before they become law. I cannot conceive of a greater question of principle than whether Parliament itself shall have the power to review the work of its servants, or that the work of those servants, whether Parliament thinks it to be bad or good, shall become law. The question is whether Parliament shall definitely and finally place the whole of the power in the hands of Commissioners, or whether the right to review shall lie retained. Senator Millen can scarcely be serious in asserting that his amendment does not involve a question of principle.

Senator Millen - I was never more serious in my life.

Senator O'Keefe - We are now creating our own precedents, instead of relying, on precedents created a century or a century and a half ago; and in view of the ruling given yesterday, I trust that consistency will be observed, and this amendment ruled out of order. I do not take that stand because I object to the amendment - that is not a matter for discussion just now - but merely because I am of opinion that, in the light of the ruling already given, this amendment cannot properly be discussed by the Committee.

Senator Staniforth Smith - Thecontention that it is not competent for Senator Millen to submit this amendment is based on the ruling previously given, and the question to be decided is whether the present amendment is analogous to that previously moved by Senator O'Keefe. It seems to me that the two amendments arenot in the same category. The amendment of Senator O'Keefe involved a question of supreme importance, namely, whether an elector should, where six members had to be elected, give six voiles, or one, two, or three votes, as he deemed fit. That amendment struck at the very basis of our parliamentary representation, and I contend that it involved a great principle. I can quite understand the ruling that it was not competent for the Committee to discuss at that stage so drastic an amendment in our franchise. I contend, however, that the amendment now before us is in a. different category. This, as the President has stated, is a machinery Bill, and what is the purpose of the amendment? The Constitution lays down the quota, and provides that the electorates shall be numerically equal. The question raised by the amendment is not as to the size of the electorates, or the number of electors, but as to the conformation of the electorates. That is purely a matter of detail, and it cannot be elevated into a question of great principle. It is said that it is proposed that Parliament shall give away its right of veto, but I have shown that the question involved is merely one as to the boundaries of electorates, and there is no proposal to increase or decrease them numerically.

Senator Turley - They might be increased or decreased numerically.

Senator Staniforth Smith - That might be done in either case, by Par- liament or by the Commissioners. The amendment on which the President previously ruled certainly involved a fundamental principle, but in my opinion it is quite competent for Parliament to delegate to three Commissioners plenary powers or advisory powers, asit pleases, in connexion with the distribution of a State into divisions.

Senator de Largie - I do not base my objection to the amendment on the ruling given by the President on. a previous amendment. I do not agree with that ruling.

The PRESIDENT - The Senate accepted the ruling, and it is now the Senate's ruling.

Senator de Largie - I recognise that the Senate having accepted the ruling, it is now the Senate's ruling, and I am sorry that it is. I do not base my objection to the amendment on that ruling, but on the ground that constitutionally we have not the power to delegate to Commissioners any of the powers of Parliament. We are here being asked to delegate to three Commissioners work that this Parliament was called into existence to do.

The PRESIDENT -The honorable senator is now discussing the merits of the amendment. We have not at this stage anything to do with the merits of the amendment, but with whether it is in order or not.

Senator de Largie - I am pointing out that, in my opinion, we cannot constitutionally hand over powers vested in us, as senators elected by the people, to any body outside of Parliament. We are not by the Constitution authorized to hand over any power of legislation to any other body, and it is on that fact I base my objection to the amendment.

Senator Clemons - I regret that I was prevented from hearing the President's ruling on a previous amendment, which I understand is taken as the basis of the present objection to the Chairman's decision. I have, however, done my best to ascertain what the ruling was, arid if I had been present I should have supported it. I recognise that it is based on the very broad distinction between principle and machinery. In discussing the present amendment we have nothing to consider but this question of principle versus machinery. The objection urged to Senator Millen's amendment being regarded as a machinery provision is that the moment rights interfered with are the rights of Parliament a question of principle is involved. It is apparently assumed that, because the functions and powers of Parliament are in question, a matter of principle is directly and necessarily involved. I cannot agree with that reasoning. I agree entirely with Senator Millen, who has pointed out that the principle involved in this case is contained in section 1 2 of the original Act, which provides that each State shall be distributed into electoral divisions. The succeeding sections of Part III. of the Act indicate alternately principles and machinery provisions. The sections which the amendment affects, sections 20, 21, 22, and 23, really indicate that Parliament has decided that it shall itself be part of the machinery for giving effect to the principle contained in section 12. I can see no reason why Parliament should not be a part of the machinery established to carry out a law. In placing upon itself the responsibility of taking a part in carrying out the principles contained in section 12, Parliament, if it had chosen, might have adopted an alternative course, and delegated this power, for instance, to the High Court. If, instead of sections 20, 21, 22, and 23, as they now appear in the principal Act, there had been sections delegating to the High Court the final task and thereby employing it as a part of the machinery for carrying out completely the principle embodied in section 12, no one would have denied that Senator Millen's amendment was perfectly in order. In the very Bill which we have been discussing, we have in almost innumerable instances recognised that the functions of certain parts of the machinery provided for might be added to, or subtracted from. I remind honorable senators, for instance, of the duties assigned to assistant returning officers in giving effect to the principle of postal voting. In the original Act we decided, as a matter of principle, that postal voting should be allowed, and in. providing machinery to carry out that principle we invested assistant returning officers with certain powers. In the amending Bill while adhering to the principle of postal' voting, we have deliberately decided to add largely to the powers of the assistant returning officers as a part of the machinery provided to give effect to the principle. That is but one of many instances in which we have recognised that the machinery provided to give effect to the principles of our electoral law might be modified or altered in one form or another. I can see in the case before us no difference' whatever. The question of principle does not arise because section 12 of the original Act still remains. The onlyargument which we have heard on the other side is, that because Parliament is involved, principle necessarily .is affected, and that argument is not a sound one. I am unable to understand how honorable senators can take up the position that . the functions of Parliament as part of the machinery for carrying out the law involve a principle, and that we cannot in any circumstances convert Parliament into part of the machinery provided) to give effect to the law. Nothing seems to me to be further from the truth, and in innumerable instances in connexion with other Acts that has been done.

Senator O'Keefe - My opinion is just as strong in the other direction.

Senator Clemons - I point out to ^Senator O'Keefe that in many other measures which we have passed, we have reserved to Parliament purely machinery rights. Nothing could be a greater travesty of the meaning of the word " principle" than to say that the moment Parliament has duties imposed upon it by a law, no matter what the scope of those duties may be a question of principle immediately arises.

Senator Millen - We might just as well have reserved to Parliament the revision of the electoral rolls, and have called that a principle.

Senator Clemons - We certainly might. Honorable senators must agree that there are innumerable instances in which Parliament is made a part of the machinery to give effect to a law. If that has been recognised in the case of other legislative measures, why it should not be recognised in this case. We can regard Parliament in this matter as intrusted with a certain duty, and in the performance of that duty it is nothing else but a part of the machinery to give effect to the principles of the law. If the President rules in this way he will rule in accordance with the ruling which he has already given, and will again assert the important distinction between principle and machinery.

The PRESIDENT - I am afraid that the rulings I have given concerning cognate matters to this are still misunderstood. They certainly have been misquoted. It has been stated that, according to my ruling, no principle can be moved as an amendment which is not embodied in the Bill. I never said or thought anything of the sort. It has also been stated that according to my ruling no novel principle can be introduced into a Bill. What I said was -

There can be no doubt as to what the test is. Standing order No. 194 says : - "Any amendment may be made to any part of the Bill, provided the same be relevant to the. subject-matter of the Bill, and be otherwise iri conformity with the rules and standing orders of the Senate."

That is quite clear. We cannot get away from it. Therefore, we must consider the subjectmatter of the Bill, and whether Senator O'Keefe's amendment is relative to that subject-matter.

Those words govern everything I subsequently said, and it was not necessary that I should repeat them three times or four times. The test which is laid down by the Standing Orders, which bind me as they bind the Senate until they are altered, is that when' a Bill is before a Committee and an amendment is moved on it, the question to be considered shall be whether the amendment is relevant to the subject-matter of the Bill. There is no other test. The Standing Orders do not say anything about the title of a Bill, or about an amendment being relative to any Act of Parliament, or any other document. It must be relevant to the subject-matter of the Bill, and to that only. Any amendment relevant to the subjectmatter of this Bill can be moved, whether it contains a new principle, or whether it does not, and whether it refers to a clause in the principal Act proposed to be amended by this Bill, or does not. I can see no difference whatever between a Bill to amend, and a Bill dealing with a certain subject .for the first time.

Senator Pearce - Will you, sir, permit me to ask whether Senator O'Keefe could have moved his amendment on a Bill dealing with this subject for the first time?

The PRESIDENT - No, I do not think he could. The. reason which guided me in the ruling I gave was that I did not consider the amendment proposed by Senator O'Keefe to be relevant to the subject-matter of the Bill. I consider it a different subject-matter altogether. The question of voting is not dealt with by the Bill. By altering the method of the exercise of a power or right you can practically alter that power or right. Therefore I .-consider that trie amendment which was moved by SenatorO'Keefe did not come within the meaning of the words of the standing order, because it was not relevant to the subject-matter of the Bill.

Senator O'Keefe - May I ask a question, sir?

The PRESIDENT - I think that I ought to be permitted to finish what I have to say.

Senator O'Keefe - This is the only opportunity I have to say that I think you have inadvertently made a misstatement.

The PRESIDENT - I am not conscious that I have made any misstatement. An amendment may be of vast importance, or it may be of no importance, but in either case it can be moved, provided that it is relevant to the subject-matter of the Bill. To hold that an amendment was out of order, because the principle it contained was not embodied in the Bill would be to destroy the value of the Committee. It could do nothing, because almost every amendment introduces a principle, of smaller or greater importance.

Senator Givens - If you will excuse me for interrupting you, sir, in your ruling on Senator O'Keefe's amendment, you said that the proper test was " what was contained in the Bill when it was read a second time."

The PRESIDENT - Undoubtedly, but I read the standing order - and that governed all my remarks - that any amendment which was relevant to the subjectmatter of the Bill was admissible. I do not see that it binds us in any way, but perhaps it will not be amiss if, having already referred to the practice in the British House of Commons, I refer to the practice in the United States. Its House of Representatives has a standing order which, although not word for word the same as ours, in my opinion means exactly the same thing -

No amendment can be moved to a Bill in Committee unless it is germane to its subject-matter.

Here is a case which happened there, and which seems to me to be on all-fours with the case of Senator O'Keefe's proposed motion : -

A proposition to amend the Constitution by providing for the election of senators by popular vote is not germane as an amendment to a joint resolution to amend the Constitution by changing the date of the commencement and termination of the terms of senators and members.

In that case it was proposed to amend what we should call an Act of Parliament. The Constitution of the United States provides for the method of electing senators, and the period for which they shall sit. In a Bill to amend the period for which they can sit it was proposed to put in a clause referring to their election, and it was held to be not germane, and therefore not in order. I could not find a case in point in England, but here is a case where, on a proposal to amend an Act in a certain particular, it was ruled out of order to move to amend that Act in another particular, because the amendment was not germane to the subjectmatter of the Bill. I cannot see that anything can be clearer than that the practice of the Senate must be governed by the standing order. Now we come to the particular case : Is the amendment proposed by Senator Millen relevant to the subject-matter of the Bill now before us. As I have said over and over again, in my opinion the subject-matter of the Bill is to amend the electoral machinery. It contains a clause relative to electoral divisions. The whole question of electoral divisions is brought up for consideration, and two of the very sections of the Act which Senator Millen proposes to repeal are proposed to be amended by the Bill. How can it be said that this amendment is not relevant to the subject-matter of the Bill? That it contains an alteration of great importance I am quite willing to admit ; but that is not the point. If the matter of great importance which is proposed to be inserted in the amendment were not relevant to the subject-matter of the Bill, then undoubtedly I should rule itout of order. But it seems to me that it is in order. I think that honorable senators will see that, although there can be no doubt as to what our test is, as to what our practice is, as laid down by, the standing order, still in a great many cases of this nature it must be almost a matter of opinion as to whether a proposed amendment is or is not relevant to the subjectmatter of the Bill. Cases will arise on both sides in which it must be quite clear that the amendment either is or is not relevant, but there must be always a border-line : there must be always some amendments which are capable of beingsuggested, where it is difficult to arrive at a conclusion as to whether they are or are not relevant " to the subject-matter of the Bill. In this case I consider that the Bill is one to alter the electoral machinery, that part of the electoral machinery proposed to be altered relates to electoral divisions, and that this amendment, although it is of great importance, is relevant to the subject-matter and can therefore be moved.

Senator GIVENS(Queensland).- I object to your ruling, sir, and I, therefore, move -

That the President's Ruling, on amendment proposed in the Electoral Bill, by Senator Millen, be disagreed with on the ground that it is inconsistent with previous rulings given by the President on other amendments moved in the same Bill.

The PRESIDENT - The debate stands adjourned until the next day of sitting.

Senator Pulsford - I would appeal to Senator Givens to reconsider the matter.

Senator Givens - The honorable senator can appeal as much as he pleases.

The PRESIDENT - It is too late now to do anything.

Senator Macfarlane - Was not this point decided before, sir?

The PRESIDENT - No. I think that each ruling has been given on a different case and on a different set of facts.

In Committee :

Progress reported.

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