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Wednesday, 6 December 1905

Senator CLEMONS (Tasmania) - There are several matters connected with this agreement which cause exceedingly grave doubts in my mind as to whether I ought to vote for it. In the first place, I wish to point out that the agreement contains a recital. Now, any one who has even a superficial knowledge of legal documents, will be aware of the value of a recital. The recital sets forth that it is desirable that the provisions of the old agreements and the provisional arrangement - shall, subject to the modifications hereinafter appearing, be combined in one agreement, which shall be in substitution for the said recited agreements and provisional arrangement.

That is an expression of a desire and an intention. But I wish to indicate emphatically that this agreement which we are asked to ratify contains no operative words in any part of it whatever to give effect to that recital.I say, without fear of contradiction, that there is nothing in this agreement, if we assent to it now, that will prevent those old agreements with the States coming into force again when this new agreement lapses.

Senator Playford - The AttorneyGeneral says quite differently.

Senator CLEMONS - Well, I have a great respect for the opinion of the AttorneyGeneral.

Senator Mulcahy - Does not the question arise whether there is only a. temporary substitution?

Senator CLEMONS - It may. The recital is merely an expression of an intention as to something that is going to be carried out by the operative words of the agreement. The operative part of this agreement begins with the words-

Now this indenture witnesseth and it is hereby agreed and declared by and with the Commonwealth and its successors and the Extension Company their successors and assigns as follows, that is to say -

If you do not find a distinct clause subsequent to those words which enacts that this agreement shall cancel all previous agreements, then I say it does nothing of the kind.

Senator O'Keefe - The honorable senator maintains that the substance mentioned in the recital should be mentioned again in the subsequent part of the agreement?

Senator CLEMONS - That is what I say. The recital to a legal document contains nothing that is operative.

Senator Playford - If the recital says that the agreement shall be in substitution of another agreement it carries weight.

Senator CLEMONS - No, it does not.

Senator Playford - Then what is the use of a recital ?

Senator CLEMONS - It is the customary practice in the preparation of legal documents to set forth in the recital the purpose of the document and what it is intended to carry out. But if not provided for in the operative part, the statements in the recital form no part of the agreement. I point out another feature. The Pacific Cable Conference, whose report we have before us, dated 28thJuly, is signed by Mr. Alfred Lyttelton, Lord Jersey, Sir William Mulock, and Sir Sandford Fleming - men of high standing and repute. Clause 7 of their report says -

We are advised that the recital in the preamble of the Commonwealth agreement -

That is not merely the statement of these men. They say deliberately that they are " advised "- - that the recital in the preamble of the Commonwealth agreement, that it is desirable to substitute one agreement for certain other agreements, including the New South Wales agreement, and the similar agreement which South Australia, Western Australia, and Tasmania, cannot safely be relied upon to prevent the revival of those agreements on the termination of the Commonwealth agreement.

I ask honorable senators to observe that the members of the Conference do not say " in our opinion," but distinctly "we are advised."

Senator Playford - They do not say by whom, and we have the advice of the At torney-General absolutely to the contrary.

Senator CLEMONS - I do not wish to institute any comparisons, but I do say that we are assured by these gentlemen that they are " advised " that this, recital is of no use as an operative part of the agreement; and I know, with great deference to the Attorney-General, that it is of no use.

Senator Pearce - The Commonwealth Government's representative on the Conference, Lord Jersey, is here now. and they could soon find out by whom the Conference was advised.

Senator CLEMONS - Precisely. Whatever view we may take of the Eastern

Extension Company, or of the Pacific Cable, or the matters in dispute, I maintain that if any honorable senator feels a doubt that at the expiration of this agreement the old agreements will come into force, he is not justified in voting for the ratification of this new agreement.

Senator Macfarlane - Then the old agreements will remain in force?

Senator CLEMONS - Let us. get to the root of this matter. What is it? Senator Macfarlane says that the old agreements will come into force. But what are they? The position is that four States in the Commonwealth are, to use a phrase, "in the toils" of the Eastern Extension Company. They entered into their bargain voluntarily. This new agreement proposes' to drive the remaining States of the Commonwealth into the same toils, I will admit for a limited term of twelve or thirteen years. If this agreement is not ratified, the four States will remain in the same toils; but if the agreement is ratified, we shall add two more States for the twelve or thirteen years; and, in my opinion, we shall leave the other four States still in the toils of the company at the end of that term.

Senator Pearce - The inducement held out to tis is, that the States will be released at the end of twelve years.

Senator Playford - So they will be ; there is 'no doubt about it, in my opinion.

Senator CLEMONS - I leave the Senate to judge between the Conference and Senator Playford. At any rate, we are bound to respect the four members of the Conference.

Senator Sir William Zeal - There is no doubt about the point.

Senator CLEMONS - I have not the slightest doubt, so far as I am capable of forming an opinion. It may be wrong, but I express it without hesitation. Seeing that this doubt has been thrown upon the matter by four gentlemen, whose repute is beyond suspicion, and who not only sign this report, but distinctly say. " We are advised " - and when thev say that, we must, of course, understand that such men would be well advised, or thev would not have quoted the opinion - surely a senator should hesitate to make the States run the risk - because that is what we are going to do - at the end of the agreement of being in the s.ame toils as they have been in preceding years. If there were no other reason - and there are others - why I should refuse to be a party to the ratification of this agreement,

I say, deliberately, that that information is abundantly sufficient to justify me in refusing to assent to an agreement which is., at any rate, clouded with such doubt as to its real contents. There is another matter, which I mentioned two years ago. There is no question of policy about the matter at all, because 1 brought the same point under the notice of a previous. Government. This new agreement has been prepared as the result of negotiations. I have been unable to discover by whom those negotiations were instituted - whether by- the Eastern Extension Company or by some preceding Commonwealth Government. I should like to have some information on that point, although I may not be able to get it. I have said with regard to my own State - and I must be expected to look after its interests - that when those negotiations were commenced, it was perfectly easy for the then Government, just as it was for the present Government, to have made it a condition to leave Tasmania out for the remainder of this cable subsidy agreement. It is onerous, burdensome, and iniquitous to her, especially since s.he has entered into Federation. Tasmania suffers under the hardship of paying largely in excess of what she would have to pay if she were now free to make terms. This or any other Government, whose duty it is to look after the interests of every State in the Commonwealth, regardless of position, size, or other considerations, might, very well, when entering into these negotiations, have made a notification and expressly provided that Tasmania should escape, to that limited extent, from this special cable subsidy.

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