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Wednesday, 5 September 1906

Senator KEATING (Tasmania) (Honorary Minister) . - I listened with attention to Senators Gould and Millen when offering objections to the Bill on account of what appeared to them to be its incompleteness. Although I admit that they have maintained their arguments very strongly, I have not been forced to the conclusions which they seem to draw from them. It seems to me that their contention is that if this Bill is passed,' adopted by the people, and receives the Governor-General's assent before the 31st December next, the operation of the 'Constitution as amended by the provisions of this measure will establish what might be called a hiatus for the next six months. In other words, that eighteen senators who will be elected towards the end of this year will take office not from the ist of January, but from the ist July next, and that during the period intervening between those dates there will be only eighteen senators, comprising those who are not required to go to the country at the end of this year. I do not agree with honorable senators opposite in that. First of all, the election would be held simultaneously with the submission of this proposed amendment to the people. Consequently the proposed amendment would not then be law, and would not govern the election. Further, for what purpose would the election be held? It would be held under the existing provisions of the Constitution, and under section 13 of the Constitution it is provided that -

The elections to fill vacant places shall be made in the year at the expiration of which the places are to become vacant.

Eighteen places are to become vacant on the 31st December next. Prior to that date a senatorial election must be held to fill those vacant places, and the moment the eighteen new senators are elected, they are elected to fill the places vacant from the 31st December next, and will hold office as from the ist January next. We will assume that on the same day the proposed law is submitted to the people, receives the ratification of the electors as required by the Constitution in a majority of the States, is subsequently submitted to the Governor-General for the Royal assent, and is assented to. I maintain that it can have no effect to make vacant the places which the eighteen new senators will have already been elected to fill. The vacancies will have been filled by the election.

Senator Lt Col Gould - Filled as from the ist January following, and the day before that date the Constitution is altered, so that the senatorial term shall be counted as from the ist July.

Senator KEATING - No; the newlyelected senators will have been elected to nil the places vacant on the 31st December, and neither the Constitution nor this proposed amendment of it contemplates the creation of any such hiatus as the honorable and learned senator suggests.

Senator Trenwith - Suppose that Parliament and the people desired that there should be such a hiatus, could we alter the Constitution to provide for it?

Senator KEATING - Certainly.

Senator Best - Not at the next election.

Senator Trenwith - We could certainly do it if we thought fit.

Senator KEATING - If honorable senators will permit me to continue my remarks, I will say that so far as the vacancies are concerned which must be in contemplation at the time the Senate election is held, they are vacancies which date from the termination of office of the eighteen senators who are required to go before the electors .before the 31st December next. And unless we were to expressly provide that we were going to make that radical alteration in the Constitution which would involve the existence of only half the Senate for half a year, it must be taken that the Constitution and the proposed amendment of it contemplate no such abnormal condition of things. With respect to clause 3, which has been referred to for the purpose of illustrating the argument built up on clause 2, I would say that it is competent for us to amend the Commonwealth 'Constitution by providing with respect to particular sets of senators that their term of service shall end on a certain date. I may be permitted to analyze clause 3 to some extent, in order to illustrate the argument used in connexion with clause 2. The clause provides that-

The terms of service of the senators whose places would, but for this Act, become vacant at the expiration of the year One thousand nine hundred and nine, are extended until the thirtieth day of 'June, One thousand nine hundred and len.

That refers to honorable senators who were elected to fill places which became vacant on the 31st December, 1903. There can be no doubt as to the commencement of the term of service of those honorable senators. Under the terms of the Constitution, it commenced on the ist January, 1904, and in the ordinary course, under the existing law, the expiration of their term would take place on the 31st December, 1909. But we propose specifically with regard to those honorable senators - and the specific mention of them excludes all others - to extend their term from the. 31st December, 1909, to the 30th Tune, 1910, in order to carry out .the general principles of this Bill. I £do not think it can be said that that part of the clause is in conflict with the Constitution. The second part reads -

The terms of service of the senators whose places would, but for this Act, become vacant at the expiration of the year 1012, are extended until the 30th day of June, 1013.

The very statement in that sub-clause that the terms of certain senators would expire at the end of the year 1912 but for this Act shows by way of implication that the commencement of their terms would be on the ist day of January, 1907.

Senator Millen - The Minister's argument would be good but for the fact that we expressly alter the date on which the term shall commence.

Senator KEATING - That is where my honorable friend and I come into conflict. 1 do not feel any doubt about what would be the construction of the Constitution as amended by this Bill, if adopted by the people, and subsequently assented to by the 'Governor-General. I have listened to the argument which has been put forward by other honorable senators, and I must say that I realize that there certainly is room for a legitimate difference from my opinion. If - we do not always find that our belief is founded upon facts, we all like to believe that our Constitution has at least been made so plain that practically he who runs may read it. I know that all honorable senators desire that our characters should above everything else be free from ambiguity. I have no objection to an amendment for the purpose which they have suggested. 1 have said, however, that so far as the proper construction of the clause goes, I think that it is quite clear. But as doubts have been expressed, we have no' objection to offer to an amendment to make the intention abundantly clear. It will be remembered that when introducing the measure some time ago I said that the Government would welcome the assistance of honorable senators all round the Chamber in endeavouring to perfect its provisions as much as possible, so that the object which we had in view, and which we hoped we shared with honorable senators on the other side, would be best and most clearly attained.

Senator Lt.-Col.GOULD (New South Wales) [9 47]. - I wish to reply to the contention of the Minister about the effect of the amendment of section 13 of the Constitution upon any honorable senator who mav be elected in November next. Let us assume for the sake of argument that the Bill, if approved at the referendum, was assented to by the Governor-General on or before the 31st December. If I followed the Minister correctly, he contends that, the elections having taken place under section 13 of the Constitution as it now stands, the Governor-General's assent to the Bill would not interfere with the right of the new senators to take their seats here on the 1st January. Take the case of a law which is repealed. So far as future matters are concerned, the law has to be taken as not to have had any existence.

The repealing Act only validates anything which may have been done under the old law. But when a law has been altered to make a senator's term of service begin on the ist July following the date of his election, the true construction would be that a man who had been elected before the end of December would have to conform to the altered circumstances.

Senator Keating - Would the honorable senator say that the retiring senators would hold office up to July, even although they had not been re-elected?

Senator Lt Col GOULD - No; because the law is clear that a man vacates his seat at the end of a! period of three or six years, as the case may be. We want to amend the law so that a senator's tenure shall take effect as from the 1st January - that is, directly a vacancy arises. But suppose that we pass a law which says that a man shall not take his seat until the 1st July. The mere fact of the man having been elected under a law which would enable him to take his seat on the ist January would not get over the difficulty which had been raised. Let me now put the position in another way. Assuming, for the sake of argument, that, in the middle of a senatorial term we wished to provide that the senators who were elected in January should only hold office for a peroid of two years. Surely we have the right to make that provision if we can get the Constitution amended. The position would be exactly parallel, only that the Parliament would not be required to sit during the whole of the time when an amendment of the Constitution was in process of submission to the electors. After it has done it work the people have to do their work, and the GovernorGeneral has to perform his duty. From the time His Excellency has given his assent to a measure, I contend that it is the law of the land, and that any rights or privileges which were given under the repealed law have ceased to exist. But anything which, has been done legally cannot be interfered with. So soon as the alteration is made the whole aspect of affairs is changed. Suppose, for instance, that the Parliament should pass a law giving me certain rights for a period of five years, and that two years later it should come to the conclusion that it had made a mistake, and decide to limit the concession to three years. It would be acting perfectly within its powers. In this case we are not to consider, what the Parliament intended when we have clear and distinct words to guide us, because the Minister said, " Unless the matter was expressly provided." Here it would be expressly provided. Although the Parliament, when, enacting that the term should only commence from the ist July following, the date of election, might have intended the provision not to apply to the senators just elected, still I hold that, if it did not see fit to use apt words, we must take the ordinary natural construction of the words used. If we were to put the Bill into the hands of a stranger, and say to him, " Here is an Act which says that when a man1 has been elected he shall not take his seat until the ist July," would he not come to us and ask was there a law under which this person obtained rights? Even if there was such a law, it would be quite competent for Parliament to take away his rights, or to take away rights granted to him under the Constitution in its original form. I am glad that the Minister recognises that it may be desirable to insert an .amendment in order to prevent the possibility of any difficulty occurring hereafter. It would be a very serious thing if, when the new Parliament met in February, the senators who took their seats in the Senate for the first time were called upon to show by what right they were there. They would have to say, " We are here by virtue of our rights under the Constitution." The dispute would be referred to the High Court, and in its turn it would say, " The Act means that these men have no right to be in Parliament until the ist July." Consequently, the new senators would be excluded for the intervening period, but during that period one-half of the representatives of the people would be shut out. If there is a possibility of such a peculiar position arising it ought to be guarded against by means of an. amendment, I admit that this objection and others are capable of being met in that way. I hope that the Minister will take such steps as will enable us to get over the difficulty which exists in the minds of some honorable senators. It may be that Senator Best is quite right in his contention that the true construction of the Constitution, as amended, would be that the term of (he new senators would be extended' by six months. At the same time, is it not just as well to overcome the possibility of any difficulty by inserting a few words?

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