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Wednesday, 12 September 1906


The CHAIRMAN - The point of order is that Senator Givens should state his amendment before bringing forward his arguments. I rule that the honorable senator is not called upon to state his amendment before addressing himself to the clause.


Senator Croft - How are we to know that the arguments are pertinent to the amendment until we know what it is ?


The CHAIRMAN - When Senator Givens uses arguments that are out of order no doubt some honorable senator will draw my attention to them.


Senator GIVENS - After this display of virtuous indignation, perhaps I may be allowed to proceed. The honorable senator who has raised a point of order knows as well as I do what amendment I intend to move. Without the consent of- South Australia we have no power to follow up the expenditure of any money on the survey bv effective action. I challenge the Minister of Defence, as well as other representatives of South Australia, to tell us now that we shall obtain the consent of that State to build the line.


Senator Dobson - He has already said that we shall not.


Senator Playford - I have not said anything of the kind. Let the honorable senator speak the truth.


Senator GIVENS - As a matter of fact, the majority of the senators representing South Australia have on various occasions plainly intimated that, while they were in favour of the survey, they were altogether opposed to the railway. I am not concerned with protecting any rights that South Australia may have, because they are amply safeguarded by the representatives of that State. But I am anxious to conserve the rights of the people of the Commonwealth, and am also anxious that the money of the taxpayers shall not be fooled away in wild-cat schemes, which may or may not end in practical work. We are proposing to spend £20,000 - or it may be £50,000 - upon the survey of a line. When we have incurred that expenditure South Australia may step in, and tell us that she refuses her consent to its construction.


Senator de Largie - I rise to order. There is not a word in the clause under discussion about the construction of a railway. The clause simply states that a survey shall be made. I hold, therefore, that to discuss the construction of the railway atthis stage is entirely out of order.


Senator Givens - I ask, in all seriousness, what on earth we are doing with a survey Bill if it is not proposed to build the railway afterwards? I. contend that my remarks were perfectly relevant, because it would be foolish for us to be discussing a survey Bill if it were not intended afterwards to follow it up by the construction of a line. Any one with common sense must see that the survey is part and parcel of the whole project.


Senator O'Keefe - I - I submit that the Committee cannot possibly discuss the question of the survey without having in mind the railway which it is intended to build. The clause itself says that the Minister can cause a survey to be made of a route for the construction of a railway. Senator Givens was proceeding to argue that it would be wise not to proceed with the Bill until we had the unconditional consent of the South Australian Parliament to the survey being made along a particular route. Senator de Largie's point of order seems to me to be absurd. Senator Givens' argument was entirely relevant to the subject-matter of the Bill.


Senator Trenwith - Clearly, I think Senator Givens was in order in pointing out why the clause should not be adopted. His argument is that if we spend money on a survey, and are afterwards satisfied that it is desirable to make a railway, we shall still have to obtain the consent of the South Australian Government. That may or may not be a sound argument, but I submit that it is relevant and in order.


Senator Stewart - The clause appears to me to have a wider significance than honorable senators imagine. The whole question of whether a railway shall be constructed appears to me to be involved in the clause. Paragraph xxxiv. of section 51 of the Constitution bears upon it. It gives the Commonwealth power in the matter of railway construction in any State with the consent of that State. The survey of a route is a necessary part of the procedure, for the construction of a railway. There can be no construction without a survey. Further, there can be no construction in a State without the consent of the people of that State. We have no power to enter South Australian territory even for the purpose of surveying without the consent of the people of South Australia. If my argument be sound, surely Senator Givens was in order.


Senator Styles - I think the wording of the clause explains why the Western Australian senators are so anxious that the Bill should be passed. As soon as the first peg is put in by the surveyors we shall have commenced to make the railway. As a matter of fact, the earthworks, the construction of culverts, and so on might begin as soon as a few miles of the survey were made. A survey is part of railway construction. This accounts for the persistency of the Western Australian senators in endeavouring to get the Commonwealth committed to the survey. I think that Senator Givens' argument was entirely relevant to the clause.


The CHAIRMAN - I understand the point of order to be that Senator Givens is not in order in arguing that the consent of the people of South Australia has not been obtained for the construction of the railway. He contends that the consent of the people of South Australia is necessary before the line can be constructed. Those might have been good arguments against the proposal to read the Bill a second time; but the second reading having been carried, and the principle that a survey shall be made having been affirmed, I do not think that the honorable senator is in order in arguing that the consent of the people of a State must be obtained for the construction of the railway before this clause can be passed.


Senator Styles - Suppose it had been overlooked during the debate on the second reading that the construction which I have suggested might be put upon the clause.


The CHAIRMAN - I am not here to give rulings upon supposititious cases. It is not for me to say whether a point was overlooked or otherwise. It is not my duty, I say, with all respect to the honorable senator, to pass an opinion on such a point. It will be observed that the clause under discussion concerns the proposed survey. It has nothing to do with construction. I take it that if a railway is hereafter to be constructed, another Bill will have to be introduced. In that case the honorable senator will be quite in order in moving an amendment, and in using arguments to the effect that the consent of the people of South Australia must be obtained before the construction can be carried out.


Senator GIVENS - I do not like, at this hour of the evening, Mr. Chairman, to move that your ruling be disagreed with, though I feel strongly inclined to do so. I hold that a survey is a necessary part of the construction of a railway just as the plans and specifications of a building are a necessary part of the' work for its erection. Would any one commence to lay the foundations of a building upon a piece of land without first ascertaining whether he 'had the- right to build there at all?


The CHAIRMAN - The honorable senator says that he has no desire to challenge my ruling, but he is not obeying it now.


Senator GIVENS - I will submit my amendment, in order to ascertain whether the Chairman will rule that it is out of order. I move -

That the following words be inserted at the beginning of the clause: - "Upon the State of South Australia giving the necessary permission authorizing the construction of a railway through that State."

This amendment will insure that any money spent on the survey will not be wasted, and it provides for a necessary preliminary - namely, the necessary authority - to our proceeding with the construction of a line.


The CHAIRMAN - I shall take this amendment as being merely formal, seeing that I have already ruled that it is out of order.


Senator Millen - I take it, sir, that you have not ruled as to this amendment ; and I should like to address to you one or two arguments if you will permit me to do so.


Senator Clemons - The Chairman could not rule out of order an amendment which had not been moved.


The CHAIRMAN - I ruled Senator Givens out of order in using certain arguments which I deemed to be irrelevant.


Senator Givens - But you did not rule the amendment out of order. I think there will have to be a fresh ruling in regard to the. amendment, and, therefore, I should like to be allowed to speak on that point.


The CHAIRMAN - I was about to give a ruling. It is my duty to try to expedite the progress of business within reason; and I think that it will facilitate business if I at once rule this amendment out of order, so as to give Senator Givens an opportunity to carry out what I believe to be his intention - to challenge the ruling.


Senator Givens - I do challenge the ruling, and I shall put my objection in writing.


The CHAIRMAN - I have received from Senator Givens his objection to my ruling stated in the following words: -

I disagree with the Chairman's ruling on the ground that my amendment is perfectly relevant to the subject-matter of the Bill.

In the 'Senate:

The Chairman of Committees. - I beg to report that when in Committee on the Kalgoorlie to Port Augusta Railway Survey Bill, Senator Givens proposed to amend clause 2, which gives the Minister power to make a survey of the route, by inserting at the commencement the words -

Upon the State of South Australia giving the necessary permission authorizing the construction of the railway through that State.

I ruled that amendment out of order because standing order 194 provides -

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 in conformity with the rules and orders of the Senate.

I take it that the subject-matter of the Bill is the subject-matter as carried at the second reading. That subject-matter is as stated in the title to the Bill -

To authorize the survey of route for a railway to connect Kalgoorlie, in the State of Western Australia, with Port Augusta, in the State of South Australia.

I hold that the question of the survey of the route is quite different from the question of the construction of the railway. My ruling may be made clearer if I state that had the honorable senator moved to insert the words, " Provided that the consent of South Australia shall be first obtained for such survey," he might have been in order. But I hold that the honorable senator is not in order in moving that the consent of South Australia shall first be obtained to the construction of the line.


Senator Givens - On the point of order I submit that clause 2 of the Bill, if passed, would commit the Commonwealth to the expenditure of a very large sum of money for a certain purpose, which, at present we have not the right to complete. The proposal is to spend £20,000 in surveying a route for a railway, and if we have not the consent of South Australia to the building of the railway, or it should be withheld at some future time, the £20,000 spent on the survey will be absolutely wasted, so far as the purpose of this Bill is concerned. The Bill, in making provision for the survey of the route of a railway, presupposes that the Commonwealth will require to build the line. It cannot be assumed that the Commonwealth Parliament would be so foolish as to agree to the expenditure of £20,000 on a project which it had no prospect of completing. Until we obtain the consent of South Australia to the building of the line, we are powerless to complete this project. I therefore maintain that it was in order for me to move, as a necessary condition precedent to the spending of the money on the proposed survey, that the consent of South Australia to the construction of the railway should be had, in order that the money voted for the survey might not be absolutely wasted.


Senator Clemons - Senator Givens' proposed amendment means neither more nor less than a condition imposed on the Minister. It means that the survey is to be made if the Minister complies with a certain condition. If it should be carried, its effect will be that the Minister will be empowered to carry out the survey if he complies with a certain condition which the Senate thinks should be inserted in the measure. This is a consideration quite apart from the question of the construction of the railway, a point which might properly be submitted, but which might just as well be left out. There is nothing in the words of the proposed amendment which would have the effect of doing any more than to impose some condition and limitation on the Minister's action, and the amendment in no way violates the authority given by the order of leave to authorize the survey. The amendment would authorize the Minister to proceed with the survey if he complied with a certain condition which I maintain is quite relevant to the measure, and is paralleled by many conditions which the Senate has imposed in agreeing, to other Bills. Nothing is more common than for the Senate, in giving power to the Minister to do certain things, to say that he shall do them subject to compliance with conditions which must be observed beforehand.


Senator Styles - This position might arise : We authorize the survey, and spend £20,000 on it. Assuming that that will be sufficient to carry out the work, the survey is made along what is considered the most suitable route in the interests of the Commonwealth, and the gauge is fixed at what is considered suitable from our point of view. The Premier of South Australia has said that, before the Government of that State can give their consent to the construction df the railway, they must be consulted as to both the route and the gauge. Their idea of both might be widely different from that of the surveyor. He might make the best survey that could be made from our point of view, and recommend the adoption of the best gauge, say the 4 ft. 81 in. gauge. The South Australian Government might say, " We will not have that, because it will not fit in with our railway system, which is built on the 3 ft. 6 in. gauge." Another contingency which might arise is that, if the 3 ft. 6 in. gauge were adopted at the outset, it might lead to the route taking an entirely different direction; to that which would be chosen for the railway if the 4 ft. 8J in. gauge were adopted. It therefore seems absolutely indispensable that, before we take any action or spend a sixpence under this measure, we should know what route and what gauge will be approved by the Parliament of South Australia.


Senator Trenwith - The Chairman of Committees in ruling Senator Givens' proposed amendment out of order relies on standing order 194, which reads -

Any amendment may be made at any part of the Bill, provided the same is relevant to the subject-matter of the Bill, and be otherwise in conformity with the rules and orders of the Senate.

The question is: Is the proposed amendment relative to the subject-matter of the Bill, which is a proposal for the survey of a route? Clearly it is relevant to that subject to impose any condition the Senate considers wise, provided that such condition is not in some other way out of accord with the Standing Orders or with the Constitution. It seems to me that the amendment proposed is perfectly relevant, because it does not propose to alter the subject-matter of the 'Bill, but merely prescribes a condition which will make the survey, if undertaken, more beneficial to the Commonwealth. It must be remembered that the Constitution prescribes that, if we have decided to make a survey of a railway, and the survey shows that it is wise that the railway should be built, we cannot proceed to construct the line without the consent of the State through whose territory it will pass. It therefore appears to me to be perfectly relevant and proper that, as we are going, to spend £20,000 on the proposed survey, we should first have the consent of South Australia to the making of the railway, if the information disclosed by the survey should lead us 10 the conclusion that it ought to be made.

The Chairman of Committees. - Should not the constitutional point have been raised against the passing of the second reading of the Bill?


Senator Trenwith - On the second reading we were all in accord on the issue that under certain circumstances it would be desirable to make the survey of a route. But now we have come to the question of how and under what conditions it should be made. It is only proposed to lay down a condition which prudential considerations lead some honorable senators to think should be imposed. I submit that, as it is distinctly relevant to the subjectmatter of the Bill, the amendment is in order.


Senator Pearce - If the contention of Senators Styles and Trenwith were upheld, it would be competent for the Committee to lay down in this clause conditions as to the route or the gauge of the proposed railway. And if that could be done, it could also lay down conditions as to the weight of rails to be used, and the class of buildings to be erected. If the condition that the consent of South Australia shall be first obtained is inserted in the clause, as Senator Styles has contended it should be, why should she not be con sulted as to the route and the gauge of the proposed railway? The object of the amendment is not to secure the consent of South Australia to the making of the survey, but to something which is quite outside the scope of the Bill. I contend, sir, that as the Bill deals with a survey, and not with construction, it is not in order to lay down in clause 2 any conditions in regard to construction, no matter what they may be.


Senator Mulcahy - Before you, sir, rule on the point of order, I desire to draw your attention to the constitutional aspect of the question. In the case ofl this Bill, as in the case of other measures, we have to rely on our constitutional powers, whether given to us directly or indirectly. It seems to me that the only constitutional power we have to pass this Bill is granted in paragraph xxxiv. of section 51 of the Constitution -

Railway construction and extension in any State with the consent of that State.

If the view of Senator Pearce were carried out, we should not be entitled to do more than enact that the survey of a route shall be made. When we are asked to expend £20,000 on a survey, it is of the greatest consequence for us to know whether it would be ample for the purpose or not. Therefore, the question of whether the railway shall be built on a gauge of 2 ft., or 3 ft. 6 in., or 4 ft. 81 in., or 5 ft. 3 in. is a very important one. because the variation of the gauge would involve a considerable increase in the cost of the survey, the taking of levels, and the taking out of quantities. It seems to me, sir. that the whole question from first to last is not that of a survey of the line, but the committing of the Commonwealth to its construction.


Senator de Largie - In mv opinion, the amendment is not relevant, for the simple, reason that the clause does not refer to the construction of the railway, but solely to the survey of a route. Another Bill would be required to authorize the construction of the railway. It would be just as relevant to the clause to discuss the financing of the railway as the question of its construction.


Senator Lt Col Gould - Suppose, sir, that the Government had embodied the amendment of Senator Givens in the clause, would it then have been possible for am honorable senator to take the point that the provision did not come within the order of leave, or the scope or title of the Bill? I take it, sir, that that contention could not be advanced. The wording, " To authorize the survey of route," is quite sufficient to cover a proposal that there should be certain conditions attachable to the survey. An amendment which went beyond the title of the Bill would be out of order, but in this case it is not sought to superimpose any conditions that are not implied in the title. In fact, we could provide that the survey should be for a railway of 5 ft. 3 in. gauge, or for any other gauge we chose. It is important that the powers of the Committee should not be restricted in this respect. It should be able to amend any Bill that comes before it, so long as the amendment have a reasonable degree of relevance to the subject-matter.


Senator Playford - I contend that an honorable senator has no right to move an amendment imposing conditions such as that the survey shall not be made unless the consent of a State is given. The title of the Bill' would have to be altered if an amendment were permitted so as to include some such words as " Subject to the following conditions." There are no conditions in this Bill.


Senator Lt Col Gould - There is the condition that the survey is not to cost more than , £20,000.


Senator Playford - I contend that the ruling of the Chairman of Committees was perfectly sound. Of course, we do not want to limit the Committee unnecessarily in respect of making amendments, but in this instance I hold that Senator Givens' amendment is undoubtedly irrelevant to the subject-matter.


Senator Millen - I think I can suggest an illustration which has some bearing upon the question. Senator Givens' amendment stipulates that a condition shall be attached to the survey. I do not think that any one would contend as a general principle that conditions cannot be imposed so long as thev do not violate the purposes of the Bill. Suppose that instead of moving the amendment which he has done, Senator Givens proposed an amendment in the words, " Conditional upon South Australia paving the sum of £1,000." Surely that would be relevant. Yet it would only be a condition to be complied with before the survey was carried out. If it would be in order to provide a condition of that character, I fail to see how the condition that the survey shall not be carried out without the consent of the Government of South Australia can be ruled to be out of order.


Senator Stewart - I submit that under paragraph xxxiv., section 51, of the Constitution, Senator Givens' amendment is quite in order.







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