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Thursday, 13 September 1906

Senator CLEMONS (Tasmania) . - Mr. President-

The PRESIDENT - The honorable senator will remember that when he moved the motion it was seconded, and that the debate was adjourned. He cannot speak again except in reply.

Senator Clemons - I do not propose, sir, to dispute your ruling, but to ask you to rule on a point of order. Standing order 415 reads as follows: -

If any objection is taken to the ruling or decision of the President, such objection must be taken at once, and in writing, and motion made, which, if seconded, shall be proposed to the Senate, and debate thereon forthwith adjourned to the next sitting day.

I submit, sir, that the standing order provides that immediately upon the dissent from the ruling being put in in writing the debate - the word is, I think, a little erroneous - must be forthwith adjourned.

The PRESIDENT - The standing order says " and motion made." I asked if the motion of the honorable senator was seconded, and it was seconded.

Senator Clemons - Precisely, but I am submitting to you, sir, that the standing order contemplates that the motion must be made and seconded. A motion must be seconded before there can be any debate.

The PRESIDENT - The mover of a motion can always speak before it is seconded.

Senator Clemons - I contend, sir, that this is a standing order which requires a particular interpretation. The practice which was adopted on a previous occasion, and which was followed last night, was that immediately the ruling was taken objection to, the debate, in accordance with the standing order, was adjourned practically automatically. I believe, sir, that if I had attempted last night to speak to the motion you would have ruled - and if you had done so I would not have taken exception to the ruling - that, in accordance with the standing order, the moment that the dissent was put in, the debate had to be adjourned.

The PRESIDENT - Not until after the motion had been moved. Will the honorable senator read the standing order?

Senator Clemons - It does not say " and motion debated."

The PRESIDENT - It says " and motion made."

Senator Clemons - I submit, sir, that it means that directly a motion is made without any speech, the debate is, for obvious reasons, forthwith adjourned. Suppose, sir, that after I had entered an ob- jectiontoyourrulinglastnightIhadpro- ceeded to debate the point at length, and that the seconder had also done so.

Senator Higgs - Did the honorable senator move a motion last night?

Senator Clemons - I simply entered an objection to the ruling of the President, and drew his attention to the fact that Tinder standing order 415 the debate must be forthwith adjourned.

Senator Pearce - But the honorable senator moved a motion.

Senator Clemons - I am not conscious that I did.

The PRESIDENT - The honorable senator moved a motion, and it was seconded.

Senator Clemons - I shall admit that, sir, if you like. I remember you asking if the motion was seconded.

The PRESIDENT - If the honorable senator had chosen to debate the point last night, I should not have stopped him.

Senator Clemons - If such a case recurs, there will be nothing to prevent an honorable senator who enters an objection to a ruling from proceeding to debate it at any length, or to prevent the seconder of the motion from following his example. The position, I take it, is that after the mover of the motion has spoken, and its seconder has spoken, the debate must be forthwith adjourned.

The PRESIDENT - That is the position.

Senator Clemons - Then it is extremely difficult for any one to understand what is the object of the standing order when it says that the debate shall be forthwith adjourned.

The PRESIDENT - I must look at the standing order as it is.

Senator Clemons - I submit, sir, that the standing order was framed in that way because it was considered that a motion to dissent from a ruling of the Chair was one of so important a character that the debate - that is to say, the whole question of debating it - should be forthwith adjourned in order that in the interval every one should have the fullest opportunity to consider the point involved. I submit, sir, that however you may rule on the mere wording of the standing order that is its true intent and purpose, and that for no other conceivable reason would it have been provided that the debate should be forthwith adjourned.

Senator Higgs - I distinctly remember thatonseveraloccasionsthepointraised by Senator Clemons has been decided. The motion to dissent from the ruling has been made, and seconded, and the debate has been forthwith adjourned. The reason why I asked the honorable senator whether he had moved a motion last night was because in the rough Hansard proof I. do not see his name mentioned as having moved a motion, nor do I see the name of a seconder. The object of the standing order is to give the President time to consider the arguments brought forward by the mover of the motion dissenting from his ruling, and to look up authorities.

Senator Clemons - Take the analogy of a dissent from the ruling of the Chairman of Committees. The motion of dissent is put in writing, and it is reported to the President.

Senator Higgs - I do not think that dissent from a ruling of the Chairman of Committees is so important as dissent from a President's ruling.

Senator Clemons - The standing order, makes the two distinctly analogous.

Senator Higgs - The standing order requires that the mover must submit his motion in writing. In doing so he may or may not use arguments. But in moving he makes his speech. Then, if the seconder chooses to speak he mav do so, and the mover may speak in reply at the termination of the debate. Senator Clemons had his opportunity last night. If he had chosen, he could have spoken for an hour or two.

Senator Millen - He should have an opportunity to look up authorities also.

Senator Higgs - An honorable senator should be sure of his ground before moving to dissent from a ruling of the President, and should look up authorities before he does so.

The PRESIDENT - The standing order is clear, and I do not think that any argument will alter my opinion.

Senator Millen - I wish to point out that the practice in New South Wales is in accordance with the principle enunciated by Senator Clemons - that upon dissent being handed in the whole proceeding is adjourned to the following day. I have a distinct recollection that on one occasion I moved a motion of dissent from a Speaker's ruling, and what I have indicated was the practice then followed.

The PRESIDENT - Was the New South Wales standing order the same as ours ?

Senator Millen - No, I am simply stating what the practice was. The New South Wales standing order, No. 161, was as follows: -

A ruling of Mr. Speaker may only be dissented from by Motion : provided that Mr. Speaker shall be entitled to put the question when Debate on any such Motion shall have exceeded thirty minutes, and that no Member shall, without concurrence, speak to such Motion for more than ten minutes. Notice of such Motion shall be given and set down to be considered within three sitting-days of that on which the ruling was given, and shall take precedence of all other business on the day appointed, and if not moved on that day, shall lapse.

The PRESIDENT - That is an entirely different standing order from ours.

Senator Millen - I am pointing out that the invariable practice was to adjourn immediately to another occasion within three days. The result was that when the matter came on again, the dissentient stated his case for the consideration of the House, and debate followed. It appears to me that if your ruling be correct, Mr. President, the standing order must be an extremely 'defective *one, because it imposes an obvious disadvantage upon the senator who challenges a ruling, and who should have a right to state his case for the consideration of the Senate.

The PRESIDENT - He has the right of reply.

Senator Pearce - Senator Clemons had the right to state his case last night.

Senator Millen - I am discussing whether he should have the right to-day. That is the whole point.

Senator Higgs - To carry out the hornorable senator's suggestion it would be necessary to give a day to the mover and another day to the President after the mover had spoken.

Senator Millen - That is stretching the point to an absurdity. The whole question is whether, when a senator takes upon himself the responsibility of challenging a ruling, there should be a reasonable opportunity for him and for other honorable senators to look up authorities, so as to be in the position to state his case clearly.

The PRESIDENT - The practice and procedure in the Legislative Assembly of New South Wales seem to me to have no bearing upon the point, because the standing order of the Senate and that quoted by Senator Millen are so absolutely different. Our practice ought to conform to our standing order, which seems to me to be perfectly clear -

If any objection is taken to the ruling or decision of the President -

That is the first thing to be done - objection taken - such objection must be taken at once -

That is clear - and in writing, and motion made.

So that four things have to be done and have to coincide. There must be an objection taken; it must be taken at once; it must be in writing; and then motion must be made and seconded.

Senator Fraser - The question need not be debated then.

The PRESIDENT - The mover may or may not debate it, according to his own wish. But, having moved, and the motion having been seconded, the question is put. Then what happens? The debate is adjourned. This matter has come up several times previously, and the practice has been in accordance with my ruling. For instance, I find amongst the decisions of the President of the Senate for 1905 the following : -

A senator having moved to dispute a ruling of the President, and having resumed his seat, cannot afterwards speak on the motion, but he has the right to reply.

It is a fundamental rule of the Senate that when a motion is moved and seconded the mover cannot speak again unless in reply. But the seconder of a motion who does not speak in seconding it has a right to speak subsequently. Therefore, I rule that that is the interpretation and meaning of the standing order, and the practice of the Senate.

Senator Lt Col NEILD (NEW SOUTH WALES) -Col. GOULD(New South Wales) [10-55]- - I regret that Senator Clemons has not had an opportunity to give his reasons as the first speaker this morning. As he has taken the responsibility of submitting a motion dissenting from your ruling, I think it highly desirable that the Senate should have an opportunity to know exactly what his reasons are. I do not wish it to be understood, however, that I am taking exception to the ruling which you have given. Personally, I concur in the opinion expressed by you as to the construction of the standing'' order. But it is unfortunate that it should be so. Last night I was under the impression that when the motion of dissent was moved and seconded formally, Senator Clemons would have an opportunity to speak this morning, . not simply in reply, but in support of his motion. Although it- is- true that a clever" speaker can make very effective points in reply, and may even manage to influence one or two votes upon a matter that is in doubt, still he loses an advantage if he is not allowed to speak before the debate is entered upon. Passing to the question now before the Senate, I think that the case which has been mentioned by the President in regard to the coal tax can be clearly discriminated from the present position. In that case, as I understand, there was an absolute dissimilarity between the amendment and the Bill under discussion. But where is the irrelevancy in the case with which we are now dealing? It is perfectly true that, having authorized the survey, another Act of Parliament would be required after the survey was made to enable the railway to be built. But still the survey is a preliminary step in connexion with the railway, which cannot be built until the survey has been made. In the English case which has been referred to the Lon,don Coal Mine Duties Continuance Bill was under discussion -

Mr. Ayrtonmoved, as an amendment to the question of the second reading - " That, in the opinion of this House, the coal tax and the London Bridge Approaches Fund should be continued until the 31st July, 1S62."

Mr. Speakersaid he did not see anything in the Bill about the London Bridge Approaches Fund, and, therefore, the amendment of the honorable and learned member for the Tower Hamlets was not in order.

The whole point was that the London Bridge Approaches Fund had nothing to do with the London Coal Mine Duties Continuance Bill. The coal dues were to be continued for a specific period. That, I presume, was a distinct fund, although possibly it depended on the revenue received from the coal duties. In that way, I submit, we may distinguish between the cases there and the case now under consideration. I know that if an honorable senator, on the second reading of a Bill, takes exception to it on the ground that it goes beyond the title or the order of leave, then that Bill may be ordered to be set aside; and, f admit that once that stage has been passed such a step cannot be taken- in Committee. I urge, however, that, in order to ascertain whether art amendment is relevant, we are entitled to refer to what would have been the position if the Bill had been initiated with such a provision in it. If we find that the presence of such a provision would not enable you, sir, to order the Bill to be set aside, it is strong evidence of~the relevancy of~ the amendment to the subject-matter of the Bill. If I am right in that contention, then any amendment proposed in Committee that would not have previously caused the Bill to be set aside, is thoroughly in order, although there is nothing in the Bill referring to the absolute construction of the railway. You, Mr.

President,have pointed out that each case of this kind must stand by itself. Nevertheless, every case forms a precedent in the respect that it lays down a certain principle which may be applied if an amendment of a like character be subsequently submitted. Therefore, the Senate ought to be "very careful in adopting a ruling that would, I submit, unduly restrict honorable senators in their legislative work.

Senator Stewart - This .'is " redtapism ' ' with a vengeance !

Senator Lt Col NEILD (NEW SOUTH WALES) -Col. GOULD. - I suppose that the honorable senator means that the red tape ties a little too tightly. If we tie ourselves up in so hard and fast a way, we may, on some future occasion, find ourselves unable to do justice to measures which come before us. There are honorable senators who are opposed to the measure, but whose objections might be removed at once if a condition of the kind proposed - which, after all, is a fair one - could be introduced. On the other hand, there are honorable senators who say that, even if this condition were imposed they would still oppose the Bill. Then, honorable senators who voted for the second reading, believing that every provision of the Constitution would be observed, might very well say that, if this addition be not inserted, they will vote, not only against this clause, but - in the event of the clause being carried - against the third reading. It is a matter of serious and great importance as to how far this ruling may be adopted by the Senate. This is not a question to be regarded from a party point of view, relating as it does to a matter of relevancy ; and only on the point of relevancy should the matter be argued. Although I voted against the second reading, I think I can free myself from any bias or prejudice. At any rate, I have endeavoured to discuss the question on its merits simply as one of the relevancy of the amendment.

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