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Thursday, 16 August 1906

Senator KEATING (Tasmania) (Honorary Minister) . - When Senator Stewart's motion was called on for the first time yesterday an inquiry was made by the President as to whether it was to be treated as formal or not formal. I intimated that, as far as the Government were concerned, it was to be regarded as "not formal." My object in doing so was not to prevent any honorable senator, or any member of Parliament, from obtaining a full knowledge from the papers of what has taken place in connexion with these cases. But it will be observed that the motion asks that, not only shall the papers be tabled, but that they shall be printed. There are peculiar circumstances in connexion with these cases which it is absolutely necessary that I should bi ins to the notice of the Senate before it commits itself to a proposal that the papers shall be tabled and printed. Senator Stewart quite recently asked some questions of me with regard to the legal proceedings instituted by the two gentlemen named in the motion, and the answers disclosed that in all they had put the Commonwealth to an expenditure of something like £3,500, and that there was little, if any. prospect of recovering any portion of that amount from either of them. That is one peculiarity of the proceedings upon which at the outset I wish to lay some emphasis. These gentlemen have occasioned the Commonwealth a considerable amount of expenditure, and I confidently ask honorable senators to consider whether it is desirable, for the purpose indicated by Senator Stewart, to saddle the country with further expense? It has been estimated that to collate the papers and to print them would cost at the very lowest estimate £100. It is, perhaps, advisable for me to make some remarks as to the circumstances of the cases, which have been engaging the attention of some honorable senators, and of the press in other parts of the Commonwealth. At the outset, I may say that the case of Mr. Gavegan is one that has occupied the attention of the Post and Telegraph Department and of the Public Service Commissioner for an extensive period. Mr. Gavegan was employed in the Post and Telegraph, Department, in the position of line repairer, and he was transferred to a station in Queensland, known as Bauhinia Downs. Evidently he did not like his situation there, and soon after he had been transferred he instituted a series of requests that he should be transferred from Bauhinia Downs to some other centre that would be possibly more congenial to him. As honorable senators are aware, officers of the Public Service have to recognise that the convenience of the public has to be met in all parts of the Commonwealth ; and it is a necessary consequence of that circumstance that some officers shall be located in centres that may not be as congenial to them as are others. This officer was determined at all costs to get removed from Bauhinia Downs. He made repeated requests to that effect, and the letters which he forwarded to his superior officers were in many instances couched in most unbecoming and intemperate language. When he found that he could not obtain the transfer that he desired he proceeded, as had been his constant habit, to ask for sick leave. At first 'he failed, but he was determined to get away, and he continued to apply. At a later date he asked for two months' sick leave. At first his application was refused, but on further consideration it was decided to grant him sick leave so that he might go to Rockhampton subject to the condition that he should report himself to the Government Medical Officer there. As soon as he found that that condition, was attached he refused absolutely to take the sick leave. He said he would not submit himself to the Government Medical Officer. However, some little time afterwards he decided to take the leave with the condition attached to it. The Government Medical Officer having seen him, reported as follows: -

I find Mr. Gavegan to be in good bodily and mental health, and there is no reason that he can give or show me why he should not or cannot do his work. There is no doubt in my mind that the whole matter is summed up in the fact that he does not like the station at which he is located.....

That did not end matters.

Senator Stewart - What did the other doctor say ?

Senator KEATING - I have not the opinion of another doctor upon the papers. He took with him his belongings from Bauhinia Downs, and when he had got to Rockhampton he made capital out of that fact, and pointed out that he ought to be transferred to Rockhampton, and the transfer would not entail the necessity to go back and get his belongings. A considerable amount of correspondence ensued, and Gavegan was requested to go back to Bauhinia Downs. The correspondence ended in his point blank refusal. At that time the Commonwealth Public Service Act had not been passed, and Gavegan had to be dealt with under the Queensland law. The course taken was to suspend him for being absent from duty without leave, and for disobedience of instructions. Mr. Inspector Bourne was appointed a Board of Inquiry into the matter, and he reported upon the charges made against Gavegan as follows : -

Both charges are, in my opinion, proved. Mr. Gavegan was placed in charge of Bauhinia Downs owing to the very unsatisfactory way he carried on the more important stations which were placed under his control, and being unable in any place to work in harmony with the public. One hundred and fifteen pounds were spent in enlarging the residence at Bauhinia Downs to meet his family's requirements, and £20 were also spent on the office. Mr. Gavegan presents the appearance of a healthy and wellnourished man. I am of opinion he is either a persistent malingerer or .a confirmed hypochondriac ; perhaps he. has qualities of both. He has a wife and nine children, but his conduct on this occasion, and his general behaviour as a public servant, gathered from official papers, is such that I see no course open but to recommend his enforced resignation.

As a consequence of that report by the Board of Inquiry, Mr. Gavegan was requested to resign. That he flatly declined to do, and said that he would throw upon the Department the onus of dismissing him, adding in effect, "If you dismiss me, I will serve you with a writ claiming ,£5,000 damages."

Senator Col Neild - Did he keep his word ?

Senator KEATING - Not to the figure, but he served the Commonwealth with a writ claiming £3,000 damages. He was dismissed in March, 1903; and in July, 1905, he claimed £3,000 damages for wrongful dismissal, and£84 for allowances and arrears of salary. The matter came before a Judge and jury in Brisbane on the 30th November, 1905. The trial occupied altogether sixteen days. Hundreds of exhibits were put in evidence, and a list of no less than . twenty-seven questions was submitted to the jury. Judgment was given in favour of the Commonwealth. But the plaintiff appealed to the Full Court. The appeal was heard on the 15th and 17th June, 1906, and resulted in an unanimous dismissal. In the course of his judgment, the Chief Justice remarked that the amount of time wasted over the case was greatly to be deplored. So much for Mr. Gavegan's case. I have said that there were hundreds of exhibits. I draw attention to that fact again, because after I have dealt with Mr. Hart's case, I shall have to allude to it once more. Hart's case was in some respect similar to Gavegan's, and in some other respects its features are peculiar. Hart was appointed an officer of the Post and Telegraph Department as far back as 1888. The case, so far as he is concerned, is contained in a pile of papers, which is of immense proportions, and the printing and collating of which would involve a considerable expenditure of time and money. Hart served in the Department for a number of years without inviting any particular attention. But after he had been there some time, he fell into the habit of writing on all and every occasionapparently inventing occasions for writing - to his superior officers. The letters which he forwarded were not at all characteristic of the communications that usually pass from a junior officer to his superior. In many instances he gave his superior officers advice as to how they should perform their duties.

Senator Stewart - Perhaps they needed it.

Senator KEATING - They may have, but it was not a proper course for him to follow. In addition to that he made repeated applications for increases of salary.

Senator Col Neild - Is that a crime under Commonwealth law?

Senator KEATING - It is very common, but his accompaniments to such applications are not, fortunately, so common in the Public Service. When Hart found that he could not get the increases of salary and the promotion to which he considered he was entitled, he conceived that there were some secret influences operating against him, and he wrote fully and frequently on the subject. Later, when he was ordered to be removed to Bundaberg,. he complained that the removal was due to some undercurrent, and that someone was constantly plotting against him.

Senator Turley - Did he go to Bundaberg ?

Senator KEATING - He did not. Although he was ordered to be removed there, he did not go. He continually wrote to the Department reiterating that secret malice was being used against him on the part of persons unknown to him. Early in 1903, after this Parliament had passed the Public Service Act, a ballot-paper was sent to every officer in the Public Service to enable him to vote for the appointment of the divisional representatives. The regulations had not then been framed in regard to the particular divisions for which particular officers should vote, and the Chief Officer in each State, pending classification, was left to decide in what division the officers subject to him should vote. Hart was appointed to vote in the general division. Accordingly, he received a general division ballot-paper. But he sent it back saying that he ought to vote either as an administrative officer or a clerical 'division officer. When it is remembered that the administrative officers include only the heads of Departments, one can see at once that this demand on the part of a travelling mail officer was something extraordinary. He actually claimed the right to be placed among the heads of Departments !

SenatorStewart. - The Department did not deal with him on that ground.

Senator KEATING - The Department dealt generously with him. It subsequently remitted for the Crown Solicitor's consideration his claim in respect of being entitled to vote in the clerical division, but it was decided that he should come in as an officer of the general division. So far, he was treated most generously, and very little notice was taken of his peculiar conduct. In November, 1903, he wrote a most extraordinary letter tothe Chief Officer, which is referred to by thePublic Service Commissioner in these terms -

He wrote a most extraordinary letter to the Chief Officer, recounting a certain dream in which snakes and Post Office string become inextricably entwined, and which, in his opinion, was a premonition of some vile conspiracy in which his official destruction was sought.

Later on, his case, after it had been inquired into by different tribunals under the Public Service Act, came eventually before the Supreme Court. With regard to this particular letter, the Chief Justice of Queensland in Full Court said -

How on earth a man, who writes a letter of this sort, can hope to continue in the Public Services passes my comprehension.

Eventually the mar. was given a position in the. Brisbane Post Office, and it proved that, so far as discipline was concerned, he knew none of it. He suited himself as to what time he arrived at the office, and what time he left, and absolutely disregarded an instruction that he was not, without permission, to leave the building for lunch. Mr. Justice Chubb, in reference to this conduct, said, during the hearing of the case, in the Supreme Court -

All I can say is that if you were in my service, and it was not agreed that you should go out for lunch, and you then went out without my permission, you would not stay in my employ for ten minutes, no, not for five minutes.

The Public Service Commissioner, in his report on the case, said -

He turned up late for duty, and desired to fix his own breakfast and luncheon hours, irrespective of existing departmental arrangements or the public convenience. He was suspended on 6th January, 1904, and charged with wilful disobedience of a lawful order, which charge, on 9th February, 1904, was found by a Board of Inquiry to be sustained, as a result whereof he was reduced £8 per annum, with a change in designation to that of Assistant, his transference to Bundaberg being at the same time sanctioned by the Governor-General on 6th April, 1904, to take effect from 2nd March, 1904. fx anticipation of the approval of this recommendation by the Governor-General, the Secretary to the Postmaster-General, through the Deputy at Brisbane, or rather the latter, on the 21st March, 1904, apprised Hart of the decision which had been arrived at, and directed him to proceed to Bundaberg. At that time, Hart was under suspension, and the action by the Deputy Postmaster-General was taken in order that the man should not be kept longer than absolutely necessary in that position. Knowing that Hart was under suspension, the Secretary to the Postmaster-General sent this notification so that Hart might te informed and be prepared to be at Bundaberg almost at the time the Governor-General approved the recommendation, and in this way have his period of suspension lessened. Hart, although this was done to help him, took advantage of the fact that this notification was given before the formal approval -by the Governor-General ; and the Commonwealth authorities, bv reason of the informality, had to proceed de novo. Fresh action was accordingly taken under the Public Service Act to effect the transfer; and on the 8th July. 1904, the GovernorGeneral approved of a recommendation dated the 22 nd June, to remove Hart from Brisbane to Bundaberg. Hart again refused to go, and alleged that the order was illegal. The Law officers advised, for extra Caution, that it would be as well to allow Hart to appeal against the transfer if he so desired. Hart took advantage of the opportunity offered, and on the 14th November his objection was heard bv a Board of Appeal, which recommended that the appeal should be disallowed, 'and that decision was duly confirmed. Finally the Governor-General ratified the transfer on the 13th December, 1904. Hart, however, still refused to go to Bundaberg; and, in accordance with the law he had to be again suspended, and charged before another Board of Inquiry. Although Hart absolutely declined to go to Bundaberg, and had been so declining from March of that year, still, in order to comply with the law, another Board of Inquiry had appointed to report on the alleged refusal by Hart in December. That inquiry was not held until February, 1905, when the Board unanimously found the charge to be. sustained ; and as a result Hart was dismissed the Service. He then took action against the Commonwealth ; and honorable senators already heard the remarks made by the Chief Justice of Queensland and Mr. Justice Chubb, who determined the question in Brisbane. Commenting on the conduct of Hart, the Public Service Commissioner in his report said -

From a perusal of the departmental papers, I have no hesitation in saying that Hart was one of the most unmanageable officers that have come under my observation. His conduct throughout was highly refractory and contumacious, and, as his letters to his superiors show (including also communications to the Governor-General), he exhibited an insolence unparalleled. As the Chief Justice aptly remarked, he was an officer who claimed to interpret the regulations in his own way, and to have them administered in his own way, and, failing this, to sue for damages; and an officer who also would have the last word.

Hart was not satisfied to sue the Commonwealth for £3,000 for wrongful dismissal, but sued for £5,000, and also for £198 allowances and arrears of salary. These proceedings extended over something like eight months, during which all the records and correspondence relating to the plaintiff from the date of his first appointment to his dismissal, a period of seventeen years, had to be made the subject of research and critical examination by the Department, and submitted to the Crown law authorities to be perused, annotated, and briefed. The hearing commenced in March last, and, after occupying no less than twenty-one days, ended in favour of the Commonwealth. As honorable senators will see, this man's case has been before more than one tribunal. It has not only been made a question for determination bv Judge and jury, and a matter of appeal, but it has also been made the subject of exhaustive and careful investigation by three Boards of Inquiry and one Board of Appeal. When Senator Stewart suggested that it is quite possible justice may not always be done in Courts of Justice and Courts of Law, I endeavoured, by way of interjection, to remind" him that the matters in question had already been dealt with by Boards under the Public Service Act. In every one of those inquiries', from that of the lower tribunals of the Public Service right up to the Supreme Court and the Full Court, Hart has had his claim investigated, and in every instance the determination has been against him.

Senator Sir Josiah Symon - Was there an appeal in Hart's case to the Full Court.

Senator KEATING - Yes.

Senator Stewart - Hart makes veryserious charges against the Department.

Senator KEATING - As the papers show, Hart has- not only made very serious charges against different officers, but he has for years been inundating his superiors with complaints that his promotion has been blocked, and his increases of salary prevented, by secret, maligning, and malicious influences operating against him from sources that he could not clearly indicate.

Senator Millen - It would be better, foi his own sake, to be out of a service where he is so treated.

Senator KEATING - Exactly. What the motion asks is that all the papers in possession of the Department with regard to these two cases shall be laid upon the table of the Senate and printed.

Senator Turley - There would be no harm, would there, in tabling the papers?

Senator KEATING - I am just coming to that point. If there were to be tabled simply the papers in the possession of the Department, they would not give honorable senators sufficient information to enable them to judge correctly. Some of the letters which have, been written by Hart to his superior officers would, in many instances, if read by themselves, cast very grave and serious reflections on the administration of the Department. They contain implications and insinuations which could only be properly answered, and the worth of which, could only be properly estimated, bv a consideration of other papers which, are not in the possession of the Department. In order to enable honorable senators to fully appreciate the importance of all the unfounded charges made against the Commonwealth, it would be necessary to have a full copy of the evidence taken in the proceedings in Brisbane, and also reports of the remarks made bv the learned Judges who tried the cases primarily and on appeal. These, of course, would not be contained amongst the papers indicated by the motion. I think I can meet Senator Stewart by agreeing to support the motion, or, at any rate, offering no opposition to it, if he will so amend it as to direct that, not only the official correspondence, but also all available records of the proceedings, such as the reports of the hearing in Queensland, be collated and laid on the talkie of the Library.

Senator Pearce - What would it cost to collate the papers?

Senator KEATING - I do not know that the collating would be very expensive, but a good many are, I think, at present in the hands of the solicitors in Brisbane.

Senator Sir Josiah Symon - Will the Minister indicate what earthly good object would be served by the course be' suggests ?

Senator KEATING - I make the suggestion only because I want to disabuse Senator Stewart and the two men concerned, along with any sympathizers they may have here or elsewhere, of any mistaken idea that the Government desire to shirk publicity.

Senator Sir Josiah Symon - There seems to have been plenty of publicity.

Senator KEATING - When an honorable senator moves a motion that papers shall be submitted -for the consideration of honorable senators, the Government do not desire to prevent his object being achieved. The wishes of Senator Stewart, and others who may feel that these men have laboured under systematic injustice, will be met if the course I have suggested be taken. If there are, then, any particular papers that Senator Stewart would like to have printed he can make them the subject of a further request or motion. If Senator Stewart will amend his motion in the way indicated, the Government will offer no opposition ; but I do not think the Senate should support a request that all these letters written over a period of seventeen years bv an officer who evidently suffers under an unfortunate delusion, should be laid on the table and printed. If such a motion were passed, the door would be open to a number of similar requests in the future, and_. under such circumstances, it is undesirable to increase our heavy printing bill. If Senator Stewart will fall in with my wishes, I shall see that he is given access to all the papers in the case, and then, as I have said, if there be any that he desires more perticularly brought under the notice of Parliament and the public by having them printed, he may make them the subject of a separate motion or request.

Senator Sir JOSIAHSYMON (South Australia) [3.15]. - No one can gainsay the desire expressed bv the Minister that any member of the Federal Parliament interested in any matter affecting the Public Service should have free access to all documents connected therewith. But I think that, instead of placing on the records of the Senate a motion in connexion with this matter, it would be equally 'efficacious and more in conformity with the usual practice if Senator Stewart were to withdraw his motion and accept an assurance which I am satisfied Senator Keating will be prepared to give him, that all the papers in these cases which are available will be collected and left open to his, inspection in, the Library or some other convenient' place. I make that suggestion because I object to a motion of this kind being carried in any shape. There is a very important principle involved in this. . We are all interested in cherishing the great function of every British Parliament to take care that all grievances affecting the Public Service shall be freely ventilated and receive redress where that is found to be necessary. But that great function is very apt to be weakened if we seek to apply it in mistaken direc tions or in inappropriate cases. There is one great means for the redress of grievances of which men may freely avail themselves in this country, and that is by seeking the aid of a Court of law. Senator Stewart laughs at that.

Senator Stewart - No wonder.

Senator Sir JOSIAH' SYMON - The honorable senator may be one of those who think that -

The good old rule, the simple plan,

That they should take who have the .r- .. -

And they should keep who -can should be the rule' followed, and that appeals to Courts of justice should be swept away. I make no appeal by way of argument to the honorable senator, or to any one who takes such a view ; but I say that so long as we have Courts established for the administration of justice, we should secure that their reputation shall be kept above reflection. Persons who have recourse to them in the ordinary way should certainly not be encouraged to bring their cases subsequently before Parliament, which is a most incompetent tribunal for the decision of such matters. I know nothing whatever of these cases, except from what Senators Stewart and Keating' have said.

Senator Stewart - That is verv evident.

Senator Sir JOSIAH SYMON - But I know enough from the remarks which Senator , Stewart made when moving this motion to enable me to say that the object of the motion is practically to bring the decisions of the Courts in Queensland that have dealt with these cases under the review of the Senate. The motion asks for the production of all the papers, and also of the questions submitted to the jury in these cases, numbering twenty-seven, according to what Senator Keating has said.

Senator Keating - And with subquestions, numbering about fifty.

Senator Sir JOSIAH SYMON - The learned Judge put to the jury twenty-seven questions, with a great number of subquestions, amounting altogether to fifty, and it is the tail of Senator Stewart's motion requesting the production of these questions which indicates the purpose of the motion. The honorable senator does not usually do things without some object, and his object in this case is clearly to invite the Senate ito constitute itself a High Court of Appeal from the decisions not merely of the Judges who tried these cases with juries, but of the Appeal Courts, who reviewed those decisions, and also of, I do not know how many, departmental or Public Service Boards, that had the same matters under investigation. It would be an intolerable farce that such a thing should take place. It would be degrading the functions of the Senate to entertain such a proposition for a moment. There may be cases in which the expressions of Judges should be brought under the review of Parliament. 'lt has been done before, and may be done again, but the honorable senator who says that the judgment of; the Courts of law should be brought under the review of the Senate should give some very goo3 reasons for adopting that course.

Senator Stewart - I said nothing of the kind. The honorable and learned senator is talking without his brief now.

Senator Sir JOSIAH SYMON - There may be instances in which it would be proper for Parliament to review those things, but when Parliament is asked to take such action, it should be only upon some strong foundation. The Senate should not be asked to constitute itself a court of review of the decisions of the Law Courts to. which these civil servants appealed.

Senator Keating - It was in Gavegan's case that the Judge, put twenty-seven questions to the jury. In Hart's case thirtytwo questions were put to the jury.

Senator S!ir JOSIAH SYMON - The request in the tail of Senator Stewart's motion for the production of these questions, sufficiently indicates what the honorable senator's purpose is. Unless he has some such purpose in view, the laying of the papers on the table qf the Senate must be an utterly useless proceeding. We certainly do not desire to have anything more to do with them, until some proof is given that the Courts which have dealt with these cases have done something, I will not say corrupt, but of an improper character requiring investigation. There is another matter to which I direct the attention of the Senate, and that is that we have a Public Service Commissioner. An attempt has been made, by statute, to remove the Public Service of the Commonwealth from the reach of political influence. That is art additional reason why we should not lightly, or at all, unless in some verv grievous case, interfere in matters affecting the discipline of the Public Service. We have heard from- the Minister what took place in connexion with the officers in question. I shall not sit in judgment upon them. Their cases have been dealt with judicially already, and it is abundantly clear in Hart's case, at all events, that that unfortunate officer, owing, it may be, to delusions or some affliction for which he is entitled to all our sympathy, had been guilty of gross defiance of every rule of discipline in the service. Whilst we may sympathize with him in respect to the cause of his action, we should be wanting in a sense of what is due to the Public Service Commissioner and to ourselves if we agreed to reinvestigate his case again in trie Senate. These officers have prosecuted suits for wrongful dismissal, for which they claimed very high damages, one claiming £3,000, and the other £5,000, and 110 one can suggest that there was not in the case of each of them a most complete investigation.

Senator Trenwith - There was a jury in each case.

Senator Sir JOSIAH SYMON - That is so, and in Gavegan's case the trial lasted' for sixteen days, during which all the ability of the Judge was carefully applied to the case, and to such an extent that in order to unravel its intricacies, and that every issue should be put to the jury, he submitted to them some fifty questions and sub-questions. Are we, on the motion' now before the Senate, to re-investigate the whole matter? It is an idle proceeding in every sense of the term. I hope that Senator Stewart will be content with an assurance from the Minister that he shall have access to the whole of the material available either in the Library, the AttorneyGeneral's office, or the Public Service Commissioner's office.

Senator Millen - During the recess?

Senator Sir JOSIAH SYMON - I do not know when the honorable senator !s_ investigation would take place. Letters such as that about snakes being mixed up with red tape we have heard of before. . Such! complaints are but the natural harvest which follows when a servant has been, discharged. It is usual always to take the statements of discharged servants with .a discount, or at least as re-' quiring careful investigation, and particularly the statements of a discharged servant who has also been defeated or has been' an unsuccessful suitor in the tribunal to which he has gone for the redress of his grievances. I hope that Senator Stewart will withdraw the motion, and that Senator Keating will convert his suggestion into, an assurance that Senator Stewart will be given every opportunity to inspect all the documents available.

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