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Wednesday, 3 October 1906


Senator CLEMONS (Tasmania) . - I am very glad to take the opportunity afforded to me in common with every other member of the Senate who spoke before the amendment was moved, to point out, so far as I can, the position in which the Senate is placed at the present time. Before I deal with the state of business in the Senate, I have a few observations to make in respect of the urgency involved in connexion with this Bill. It was read a first time in the Senate on the 24th September. I invite attention to that date, because we know that the Prime Minister made one of his usual firm, declarations some time ago to the effect that Parliament would be prorogued on the 28th September. If the honorable and learned gentleman intended to adhere to what he said he certainly took a view of the Senate which we ought to resent. If he intended that Parliament should be prorogued on the 28th September, he offered a gratuitous insult to the Senate when he sent tip not only this, but, perhaps, half-a-dozen other Bills on or about the 24th September. Because hon orable members in another place spent a long, and I venture to say, an unprofitable time, in discussing these measures, the assumption! was that the whole difficulty would easily be solved by asking the Senate to deal with them in a few hours. Every member of the Senate should join with me in expressing his strong objection to such treatment of the Senate by Ministers here or in another place. I do not wish to say unkind things about Senator Playford, who, I feel, is in a difficult position, but I think I am justified in offering this criticism : I do not know how firm the honorable senator has been, but if he had been firmer, he might have convinced his colleagues in the Government that, to say the least, it was unwise to treat the Senate in this manner. The Bill may be urgent for Mr. McKay, and' other Victorian manufacturers, but I venture to say that nj one will contend that so far as the farmers who use these machines are concerned, there is any urgency whatever about the matter. The Bill provides that it is not to come into operation so far as they are concerned - and they are intimately concerned in the matter of the reduction of price - until the 1st February, 1907. Those of us who know anything about farming operations, will recognise that it is more or less a gratuitous act of deception for Ministers .to suggest that the Bill should come into operation on the 1 st February, 1907. So far as the farmers are concerned, it would have been more honest and frank to have provided that it should come into operation on the 1st October, 1907. No farmer is going to buy a stripper-harvester at the close of the harvesting season.


Senator Sir Josiah Symon - He will' not buy one at £81 to lay it up all the winter.


Senator CLEMONS - He is not going to buy a harvester on the 1st February in order to store it where it may rust and get into disrepair, when he knows that he will not need to use it until November. We have corroborative proof on the question of urgency in the figures relating to importation. A return submitted to Parliament this year is very instructive on this point. It is a return of the number of stripper-harvesters imported from' Canada and elsewhere. 1 find from it. that for 1904 no particulars were available. In 1905 the number imported from Canada was 1,000, and from elsewhere 730. In 1906, no imports whatever had been received up to the 31st May.


Senator Playford - Because they will not be wanted until later in the year.


Senator CLEMONS - -That is my whole contention on the question of urgency. The matter is urgent only to Mr. McKay and those who wish to see higher duties imposed. It is obviously not urgent so far as the farmers are concerned-, nor has it any urgency from the point of view of protectionists, who wish to check importations at once. We can predict what will happen next year from what happened this year, and assume that no importations of harvesters will take place during any one of the first five months of the year. It is fair to assume that Parliament will meet within the first five months of next year, and if so, the question can then be dealt with. No importation will have taken place in the meantime, and it is therefore a matter of no moment whether the Tariff remains as it is or the duties are lowered or raised. The amendment proposes that the Bill shall be read a second time this day six months, and I venture to assure Senator Playford that it is better that the Bill should be read a second time then than that the Government should compel the Senate to sit here in the hope that it will be passed in six weeks, for that is about the prospect which confronts the Ministry. Ever since we have been a Senate we have been fighting, and failing in our efforts to establish a position for the Senate which will bring into clear recognition the powers conferred upon us by the Constitution. We know that the Senate differs entirely from any Upper House known to British civilization. We have certain definite and valuable powers with regard to money Bills, and we know how we can use our powers in connexion with Appropriation Bills. We. know also the duty of. very member of either House in respect of the most important measure which is annually submitted to Parliament, and which involves the expenditure' of many millions of money. If the Government persist in their determination to go on with these unimportant Bills, the alternative is clear. Either they will ask us to dismiss the Appropriation Bill in an hour or two, or they will compel the session to be protracted to very much longer than the end of next week. I should like to know from Senator Play ford which of these alternatives he prefers. He must recognise that every member of the Senate feels himself compelled to carefully consider the Appropriation Bill. The Minister has listened to reiterated demands that an opportunity should be given to the Senate to properly consider that measure, and he must recognise that the request this year represents an accumulation of such demands.


Senator Playford - We have had it before the other House. Honorable senators have had copies of it and reports, and they have had every opportunity to study them.


Senator CLEMONS - The Minister says, " We have had it before the other House," and there again he has openly admitted his want of recognition of the position of the Senate.


Senator Playford - We could not introduce the Bill here first, and after it was introduced in another place honorable senators had an opportunity to see it and study it.


Senator Sir Josiah Symon - And we can now pass it in silence.


Senator Playford - No, but honorable senators should now be prepared to discuss it intelligently.


Senator Sir Josiah Symon - The Minister should remember that in every session during the last five years honorable senators have demanded that the Senate should be allowed a longer time to discuss the Appropriation Bill.


Senator CLEMONS - We want to give Senator Playford an opportunity to hear the result of the work which we have bestowed upon the Estimates outside the Chamber.


Senator Playford - The longest time which the honorable senator has ever suggested has been three days.


Senator CLEMONS - When I made the suggestion, I fixed that limit out of all friendliness to the Minister, because I was afraid that he could not afford to give more time. But my. suggestion was received with a perfect chorus from his own supporters that three days would not be enough. On the last Appropriation Bill, I have a clear recollection of bringing up the question of defence policy. Every, one will remember that at or about that time Senator Playford told the Senate that he intended to make a determined effort to bring before the Senate next session his defence policy.


Senator Playford - Before the Parliament, not necessarily before the Senate.


Senator CLEMONS -Senator Playford is not entitled to enter the other House of his own sweet will, and give its members the benefit of the knowledge which he ought to possess. His obvious duty is to enunciate his defence policy in the Chamber to which he belongs. I am sorry that he should think that he is in charge of a Department which is of no great importance. But I venture to say that the electors do not, regard the question of defence in that light.


Senator Playford - I do not regard it as of no importance. The Prime Minister has announced our defence policy.


Senator CLEMONS - The PrimeMinister cannot enter the Senate and announce the defence policy of the Government.


Senator Sir Josiah Symon - It means that the Senate is to be ignored.


Senator CLEMONS - Either the Senate is to be ignored, or Senator Playford does not recognise the position which it is entitled to occupy under the Constitution, and which, I am sorry to say, it has not defended more firmly. When Senator Playford moves the second reading of the Bill we should hear from him in his capacity as Minister of Defence the result of all his deliberations. He must have taken an active part in framing a defence policy, and, therefore, we have a right to expect that on that occasion he will deal at greater length with that subject than with any other subject. That he tacitly admits is a fair assumption for me to make. It was in my mind four or five weeks ago, when I asked him when we were likely to get the Bill.Sooner or later this session he will have to move its second reading, to enlarge upon the subject of defence, and to outline a policy which I hope--


Senator Playford - To submit to the country. We cannot deal with it.


Senator CLEMONS - Surely the Minister would wish honorable senators to consider it. in the usual parliamentary way, and not to insult him by dismissing it with a few casual remarks ! Does he suppose that we are. ever going to do justice to our position as senators, or to his position as Minister, if we slur over the question of defence, and put the Appropriation Bill through in an hour? Undoubtedly, we should be' disregarding our duty if we did. I desire to have ample time in which to thoroughly discuss the defence policy, and other questions, and so do others. Many members of the Labour Party take a very keen interest in several questions which are covered by the Bill, not merely on personal grounds, but because their constituents are also keenly interested. If they were free to express what they really think on the subject--


Senator Playford - They are as free as the honorable senator is.


Senator CLEMONS - No. If they were as free as I am they would say with one accord that they want at least three clear days in which to deal with the Appropriation Bill.


Senator Playford - The honorable senator will make it impossible for them to get three days if he goes on talking.


Senator CLEMONS - When Senator Millen was speaking just now he ventured to say that it was much more important that the Senate should hear his speech than that it should have the Appropriation Bill. Unlike Senator Millen, I hold that my speechis of very minor importance compared with that Bill.


Senator Col Neild - I rise to a point of order, and, so as to be strictly regular, I address myself to the Clerk. I desire to submit to the Senate that it is illegally constituted, because it is not proceeding as required by standing order 30, which says -

Should both the President and the Chairman of Committees be unavoidably absent, the senators present, if a quorum, may at once proceed to elect one of their number to act as President for that day only the question being put to the Senate by the clerk.

In order to comply with the standing order, Mr. Blackmore, I propose--

The ACTING PRESIDENT (Senator Dobson). - I rule the honorable senator out of order.


Senator Col Neild - The honorable senator cannot rule me outof order, because he is illegally in the Chair. At any rate, the point is settled by the return of the President.


Senator CLEMONS - The Minister of Defence has admitted that we should have as much time as the subject deserves for considering the defence policy of the Commonwealth. If he will only tell me that the debate on the Customs Tariff (Agricultural Machinery) Bill will be adjourned at once, and the second reading of the Appropriation Bill moved, I shall be willing to cease speaking to the amendment. Is there any chance of that being done?


Senator Playford - Not on this Bill.


Senator Sir Josiah Symon - Will not the Minister drop the Bill ?


Senator Playford - No, we cannot drop it.


Senator CLEMONS - To all intents and purposes the other House has completed its work, and so long as a quorum is maintained its members are at liberty to go home. Because of their mismanagement, they have imposed upon the Senate the responsibility of either prolonging the session or passing legislation in a slipshod way. That is a grievance which any honorable senator is justified in ventilating. If Senator Playford considers that he should pay some regard to the convenience of honorable senators, he ought to study the convenience of those who, in order to instruct the electors, conceive it their duty to traverse their States. In Queensland and Western Australia honorable senators, who cannot possibly get through their work properly in a less period than three months, are forced to accept from the" Ministry a limited period of two months, while a large number of the members of the other House, whose electorates are limited in area, and who therefore want far less time, have been practically told that they are free to go away now and address their constituents. Every one of us knows that it is doubtful whether half the members of another place are at present in Melbourne. They have escaped, and we in the Senate are paying the penalty. Every senator is compelled to remain here - those supporting the Government to make a House, and those in opposition - because measures of vital importance to the country have been crowded into the last few days of the session. We shall, be kept here indefinitely unless one of two things happens - that is, until either the senators who are supporting the Government and who are keeping them in office for a few days prior to cutting their political throats at the elections, decide that they have adequately discharged their obligation ; or until the members of the Opposition leave the Senate as a. protest against the way business is being conducted. I cannot help referring to another matter. The Federal Parliament has been sitting in Melbourne ever since Federation was commenced, and I am forced to recognise that the convenience of the representatives of other States is being entirely subordinated by the present Government to the interest of Victoria. There is scarcely an order of the day upon the notice-paper that has not especial reference to this State. If there is urgency with regard to the Bill now under discussion, it cannot be said that it relates to any other State than Victoria. The harvester question is a Victorian question pine and simple. The Excise Tariff Bill is cognate, and refers to the same people and the same State. The Spirits Bill, which will shortly be before us again, also by universal consent represents nothing but the urgent and imperative demand of Victorian manufacturers to be protected, not against importations from other countries, bm against the activity and energy of other States. But while the representatives of Victoria are able nearly every day in some part of the State to address meetings of their constituents, the representatives, of other parts of Australia! are being kept away from their electorates. I .cannot wonder that senators resent this treatment, and regard it as proof of the direct object of the present Ministry to improve its position in Victoria, to play up to the present position of affairs in this State, and to give a protectionist emphasis to every question that arises, because that is the issue in Victoria, though not in any other State in the Commonwealth. I cannot wonder that if other honorable senators were free, as I am, to express their opinion of the Government, they would say that they resent being kept here in order to allow the Ministry to play up to the propensities of the electors of one State only. Let me revert to the remark . of Senator Playford that we can deal with the Appropriation Bill in a short time. In the House of Commons an approximate average time for the discussion of the Estimates would be 60 days per session. You, sir, have always been extremely jealous of the rights, of the Senate in regard to money Bills, and ever since you have been President have been a strong advocate of the exercise of our powers in the adequate discussion of the Appropriation Bill. Three days is the least time we should have for that purpose. But Senator Playford wishes the measure to be dealt with in a few hours. Is that a fair way to treat the Senate? Senator Neild's amendment is based upon the contention that it is not urgent to proceed with the Bill.


Senator Col Neild - It is, I submit, urgent that we should have a quorum present.[Quorum formed.]


Senator CLEMONS - The question of urgency is, after all, one of comparison. It may be argued by Senator Playford that this Bill is comparatively urgent. But there is another question on the paper of which he says nothing. That is the question of preferential trade. Three years ago, when the general election was about to be held, the Prime Minister entered on a strenuous effort to make the sound of preferential trade echo and re-echo throughout the Commonwealth. His election cry was "fiscal peace and preferential trade." I should like Senator Playford to give some indication whether he intends to ask us this session to deal with the question of preferential trade?


Senator Playford - Oh, yes ; I think so.


Senator CLEMONS - Then I am extremely sorry that the Ministry should regard it as inferior from the point of view of urgency to the present Bill. If the proposal of the Government regarding preferential trade is a great, important, and statesmanlike effort of the Prime Minister to cement the bonds between Australia and the old country, surely it deserves a better place than a Bill to enable Mr. McKay to increase his profits from harvesters. Is the question of preferential trade of the importance which the Prime Minister once assumed ? Personally, I should be delighted to hear Senator Playford cordially and heartily indorse the preferential trade measure in this Chamber. Is a Bill which purports to Bring about preferential trade within the Empire not more urgent than the Bill before us? We have heard that the Minister does not see his way to give three days to the discussion of the Appropriation Bill.


Senator Playford - I never said anything of the sort. I hope to be ableto give three days to the discussion of that Bill, but I do not do more than express the hope.


Senator CLEMONS - I suppose there are many honorable senators in the same position as myself, and I may say that, practically. I have been booking and unhookingmy passage to Tasmania for the last fortnight, and now I have more than booked my passage for next Monday, because I have made all sorts of business arrangements in the hone of being in Laun- ceston on the Tuesday. But if there are to be three days devoted to the Appropriation Bill, and an adequate time allotted for the discussion of preferential trade, it means that we shall be sitting here next week.


Senator Playford - We are bound to sit next week under any circumstances.


Senator CLEMONS - I do not think that is at all certain. I . hope we may come to some arrangement whereby we shall be happily dismissed on Friday of this week.


Senator Playford - Where are the three days for the Appropriation Bill ?


Senator CLEMONS - They do not exist, but if Senator Playford will take a sensible view of the situation, and have regard to not only the convenience of honorable senators, "but the dignity of the Senate, he will introduce his Appropriation Bill to-night at a quarter to eight o'clock.


Senator Playford - And jettison all the other Bills ?


Senator CLEMONS - Why not? I assure Senator Playford that, even from the protectionist point of view, the case for the Bill before us will not be injuredinany way by a postponement until next session.


Senator Playford - If we had gone on with our work in the usual manner, we could have passed all these measures, and then proceeded with the Appropriation Bill.


Senator CLEMONS - One predominant cause of the present position is that for weeks and weeks during the present session the Senate had nothing to do.


Senator Col Neild - We adjourned for three weeks.


Senator Playford - That was a. long time ago.


Senator CLEMONS - But it was this session. That adjournment was, I think, nearly two months after the Tariff Commission had sent in a report, and therefore we might have been discussing the present Bill three months ago. Is it not a satire on our public business - a satire of which Ministers and senators alike may be ashamed - that when we are dealing with a congested business-paper we should be confronted by the fact that private business will be taken from 2.30 to 6.30 p.m. tomorrow ?


Senator Playford - That is clue to an inadvertence.


Senator CLEMONS - It is an inadvertence for which the whole Senate isbeing punished every day. When the whole of Australia is waiting for the Senate to finish its business, we shall be occupied to-morrow afternoon with a purely theoretical discussion, or, at any rate, with private business which cannot bear fruit this session.


Senator Playford - There are only five Bills on the notice-paper.


Senator CLEMONS - But I understand that three or four new Bills were introduced in another place yesterday.


Senator Millen - Is thequestion of South African preference to be brought before the Senate?


Senator Playford - I do notknow that that will come up here.


Senator Millen - Are the Government going to enter into an agreement without submitting it to the Senate?


Senator Playford - I do not know whether the Bill has been passed in another place.


Senator Millen - It is evident that the Minister should move the adjournment of the House in order to make himself familiar with the public business elsewhere.


Senator CLEMONS - I can quite understand that the Minister does not know the state of public business elsewhere, because he does not know what Bills are to come before the Senate; and it is hardly his fault. When Senator Symon suggested with a view to expedite business that some provision should be struck out of the Bill, Senator . Playford, with that frankness which characterizes him, admitted that the did not know the clause was there, or that he certainly did not know why it was there.


Senator Playford - I said that I did not know the reason, though there might be one.


The PRESIDENT - Has this anything to do with the Bill ?


Senator CLEMONS - Has the whole stateof the notice-paper anything to do with urgency ? Whv does Senator Neild want to shelve the Bill?


Senator Playford - Because he is a free-trader.


Senator Col Neild - Because of the state of business.


Senator CLEMONS - The Government are making a desperate effort to push through not only this, but every other Bill by sheer weight of numbers.


Senator Playford - The weight of numbers always does prevail. I suppose the honorable senator wishes to keep on speaking till half-past six.


Senator CLEMONS - If I could I would speak until half-past six this day month rather than see the Senatetreated in this contemptible and unjustifiable way. The Appropriation 'Bill is the only measure on the business-paper at present with which the Senate should deal this session, and its consideration should be commenced after the dinner adjournment to-day. It is important to honorable senators of every party in the Federal Parliament, and to none more than to members of the Labour Party, that they should be able to return to their States as quickly as possible to prepare for the elections. The proposal which Senator Playford makes is practically that these measures should be allowed to go through without debate.


Senator Playford - I have never said anything of the sort.


Senator CLEMONS - I admit that there has been fair debate on thesecond reading of this Bill, but it has yet to be considered in Committee.


Senator Playford - That will not give much trouble.


Senator CLEMONS - Is not the Minister aware that the amendment has been moved with the express purpose of preventing the Bill going into Committee. If it does get into Committee I ask Senator Playford, as a practical man, who knows the way in which parliamentary proceed ings are conducted, to say what he thinks the result will be? I direct his attention to the volume of evidence tendered to the Tariff Commission on the matters dealt within this Bill, and remind him that every word in that volume might be read without any departure from matter which will be relevant to the issues before the Committee. In the circumstances. I ask the honorable senator what, as a reasonable man, he can expect ?


Senator Pearce - That is very much like a threat.


Senator CLEMONS - In so far as it is a threat, I unreservedly withdraw it. My desire is to answer Senator Playford's interjection that the Bill will notgive very much trouble in Committee. No Bill is deserving of more careful consideration than is a Tariff Bill and I think no Tariff Bill could be introduced on which more diverse opinions might be properly held than are held in connexion with the measure now before the Senate. Surely Sena- tor Playford must recognise that if he wishes to get on with public business he had better withdraw this Bill. If he will not do so, I suppose it is his intention to ask honorable senators to sit up all night.

Sitting suspended from 6.27 to 7-45 f-tn.


Senator CLEMONS - Owing to the present unparalleled state of things, it is my bounden duty to endeavour to impress upon the Minister of Defence the necessity of intimating as early as possible to-night, his intentions in regard to the conduct of business. I wish it were possible for you, Mr. President, to express your views on the position with which the Senate is confronted owing to the determined attitude of the Government to force this Bill through. I hope that if the opportunity should arise in Committee you will point cut that it is inadvisable for the Government to attempt to pass, not merely this Bil!, but other measures on the noticepaper. During the adjournment^ for dinner, I have learned that in the other House a Bill is to be introduced relative to preferential trade with South Africa. In these circumstances, surely any one would be quite justified in supporting the amendment 'to read the present ' Bill a second time this day six months. It must have become obvious that unless we can obtain fair consideration from the Government, it will be our bounden duty to submit a similar amendment in respect of other Bills. If the amendment were accepted by the Government, the Bill could be introduced next session, and dealt with under more agreeable circumstances. In that case, it would be taken up in a new Parliament.


Senator Millen - Does the honorable senator anticipate being absent then?


Senator CLEMONS - The more I consider the position of the Senate the more do I contemplate the possibility of not being here in the next Parliament. Just such a situation as we are confronted with brings home to every honorable senator the fact that the Senate is not by any means the desirable place which he anticipated. During the last hour or two, if not before, T. have wondered whether there is much to be gained for my State bv mv continued representation of it ; in fact, whether the Senate any longer is adequately discharging, or is likely to adequately discharge, the important duties assigned to it in the Constitution.


Senator McGregor - Any honorable senator can resign !


Senator CLEMONS - Is it a pleasant thing that the conduct of business here during a period of five years should force an honorable senator who may be anxious to do his little share of duty to his State to consider whether it is worth his while any longer to wish to come to it? Surely thu Senate ought to be a place in which, irrespective of party, we could all take some pride ! Does Senator McGregor think that the methods of the Government in trying to force their measures through is conducive to that sort of feeling.


Senator Guthrie - Let us deal with this Bill to-night, and get on to other business.


Senator McGregor - Throw it out.


Senator CLEMONS - I do not see anyreason why it should be thrown out without fair debate any more than I see any reason why it should be accepted without proper consideration. I would point out to Senator Playford that the Bill would not be imperilled by a postponement. No one' nas yet said that it is imperative that it should be passed this session. If there is one measure which, because of all its surroundings, is not urgent, it is this Bill. I recognise with great regret that, in spite of my protest, the Minister of Defence has not yet given an indication of a desire to help the Senate out of its present difficulty. The question is whether we shall agree to the amendment in regard to this Bill or in regard to another Bill. I believe, sir, that if you were free to express your opinions you would say that the Senate will have to consider the question of urgency, because it cannot possibly pass, if tie ordinary procedure is observed, all the measures which have been mentioned. We are compelled to speak to the amendment because, so far, we have elicited no indication from Senator Playford that if it be disposed of a similar amendment will be accepted in relation to another Bill, or that he will take a smoother and easier way of getting through with the work. I fear that if i were to allow the present Bill to pass I, with others, would be expected to accord similar treatment to every other Bill. I can only assume that Senator Playford intends to treat every order of the day in the same way as he is treating this one. In spite of mv repeated appeals for an indication of his intention, he has remained dumb. We are confronted with, as it were, a wall of passive resistance. Practically, we are told that, willing or unwilling, we must pass the Bill.


Senator Trenwith - Either pass it or throw it out.


Senator CLEMONS - Is that a fair answer? Really, there is not proper time in which to throw them out, let alone to pass them. I am prepared at once to take into serious consideration, with Senator Playford, the possibility, and, if he likes, the necessity, of passing some of the Bills. I suppose that I shall have to object to the passage of certain Bills, when, perhaps, there might be some ground of urgency, simply because so much time has been spent upon the consideration of this Bill. I seem to fail to impress upon Senator Playford that sense of proportion which I think he ought to recognise. There surely must be some order of preference in reference to these Bills. I recognise that as parties are constituted it is impossible to take the business out of the hands of the representatives of the Government, even if it were desirable to do so. But a minority, however small, is justified in taking steps to secure consideration for its views. It is not unfair for a minority to say that it objects to such a Bill as this being thrust through the Senate in indecent haste, and at an indecent time. That is what is now happening. But in spite of these remarks Senator Playford remains absolutely silent.


The PRESIDENT - I am afraid the honorable senator is repeating many of his arguments,.


Senator CLEMONS - I am sorry to acknowledge that I am, but I repeat them in order to give emphasis to them. I have considered the means I am now adopting, and I say with a full recognition of the meaning of my language, that every member of the Opposition is justified in offering legitimate hindrance to the Government going on with business. When I say that I mean it to have the fullest significance it can have under our Standing Orders. I do not believe that I have ever before in the Senate stated that I considered it to be my duty to interpose obstacles of time against the proposals of the Government. But I say so now, because I do not believe that the present state of things has ever been paralleled in any Legislative Assembly in the world. In the whole history of State legislation Senator

Playford cannot instance a single case in which it was proposed to give a deliberative assembly practically no opportunity of dealing with an Appropriation Bill.


The PRESIDENT - I am afraid that the honorable senator is again repeating arguments.


Senator Playford - We have carried Bills with the closure in the Parliament of my State.


Senator CLEMONS - Let the Government carry this, with the closure.


Senator Trenwith - We do not want to.


Senator CLEMONS - We have Standing Orders, and Ministers are afraid to use them. I have no hesitation in inviting the Government to apply the closure. To do so would be on a par with their general treatment of the Senate.


Senator Playford - The honorable senator asked me a question,and when I give him an answer he treats it as a threat.


Senator CLEMONS - Some one else has threatened us.


Senator Playford - I never voted for the closure in my life.


Senator CLEMONS - The Minister has just a lingering sense of shame which some of the supporters of the Government lack. I do not believe that Senator Playford is bold enough to impose the closure. I should welcome it.


Senator Playford - The honorable senator should not say that. It is not fair.


Senator CLEMONS - Why is it not fair? I no longer agree to accept Senator Playford as an authority on fairness in parliamentary procedure.


Senator Playford - I am sorry for it.


Senator CLEMONS - I wish the honorable senator would express his sorrow in. a more practical way.


The PRESIDENT - Senator Playfordonly lengthens remarks which have already been prolonged, by making interjections. If he would not interrupt it would be far better.


Senator CLEMONS - It would be far better if Senator Playford, instead of talking about moving the closure, would do it. Why does he not ? He is not troubled with any sense of fairness,. What sort of fairness has he shown during the last few weeks of this session? Is fairness to be the obstacle which he cannot get over? Fairness is not going to stop him from using the closure ; cowardice may !


Senator Playford - I do not think the honorable senator has a right to attribute cowardice to me. If he said it outside he might form a different opinion.


The PRESIDENT - I call Senator Clemons' attention to standing order 407 -

The President or the Chairman of Committees may call the attention of the Senate or the Committee, as the case may be, to continued irrelevance or tedious repetition, and may direct such senator to discontinue his speech.

I have already intimated that I think that Senator Clemons has been guilty of tedious repetition on a great many points. I am not going to order him to take his seat at present, but I shall have to do so if he continues to repeat his arguments.


Senator Playford - I think he ought to withdraw the word " cowardice. 1 '


The PRESIDENT - I think the honorable senator ought to withdraw that word.


Senator CLEMONS - Of course, if the Minister thought for a moment that I attributed cowardice to Wm in the sense in which he is applying it I at once withdraw it; because it would be ridiculous.


The PRESIDENT - I ask the honorable senator to withdraw the remark.


Senator CLEMONS - I ' withdraw it without the slightest reservation. When I used the word "cowardice" Senator Playford ought not to have misunderstood me. I merely referred to his attitude relating to our Standing Orders. Instead of my being asked to withdraw, it should be the Other way. He has practically accused me of calling him a coward. I never did anything of the sort. I merely referred to the Standing Orders, and he knows it. I might as well be accused of cowardice in being afraid to debate this question or being ruled out of order for tedious repetition.


Senator Col Neild - Is the honorable senator afraid to go outside with the Minister ?


Senator CLEMONS - I object to anything of that sort being said. I shall be no party to that sort of thing.


Senator Findley - We had an exhibition of the kind on a former occasion.


Senator CLEMONS - Well, there will not be an exhibition from me. I am going to stop now, not because I am afraid that I shall repeat myself again, but because I shall have ample opportunity later on to discuss the question without the slightest fear of being challenged by any one for speaking irrelevantly. I fear that I have repeated myself, but simply and solely because I wish to urge the Government to give the Senate an opportunity of getting through the business.


Senator Sir Josiah Symon - 1 rise now, sir, to submit to you that neither the motion nor the amendment upon it can be put to the Senate, and to submit the point which I took the liberty of indicating in the remarks which I made earlier in the afternoon. I should like to say, in the first place, that this is a matter of vital concern to the Senate. It is not an ordinary point of order. I am afraid that points of order sometimes give rise to irritation, and occupy considerable time. Although in many cases they are of the greatest importance - because there is nothing more desirable than regularity of procedure - still I am free to admit that there are points of order and' points of order. This is not a point of order in the sense that we are ordinarily accustomed to deal with. It is a question that concerns the safeguards which the Constitution has thrown around the Senate, and the provisions which have been introduced in connexion with the procedure of the Senate, to enable this great States House adequately to exercise its highest functions for the protection of States interests. I do not think it necessary - in fact, I shall not presume - to appeal to you on any grounds respecting the status, powers, and privileges of the Seriate, because ever since you have occupied the chair - for a period of nearly sixyears - we have all observed the constant efforts which you have made to maintain those powers and to see that they are not infringed in any way, as well as to secure that our functions for the protection of States rights should be exercised as fully and freely as the provisions of the Constitution require. But I do appeal to honorable senators on both sides to look at the question, which I am going to submit very briefly, from an absolutely unbiased point of view. I am not submitting it with the intention of throwing obstacles in the way of the consideration of the Bill in Committee. I am not submitting it because it is a question which may occupy' some time. I am submitting it because, if the point is well founded, as I venture with great confidence to say that it is, it concerns the rights and privileges of the Senate and the interests of the States. I have made these preliminary remarks because none of us can fail to be influenced sometimes by our prejudices in considering points of order of the ordinary kind. I think I may say that without any disrespect to any one. We are all liable to be subject to influences of that character. I make these preliminary remarks, therefore, in the hope that honorable senators will listen to what I desire to say, and view the conclusion which I shall submit for your consideration from the point of view of what our rights and privileges are in relation to taxation Bills. I cannot just at present lay my finger on the reference, but I remember that in 1 901-2 there were several important discussions in connexion with the application to the business of the Senate of the financial provisions of the Constitution. I remember one particular occasion in which the discussion was so important, and was regarded as so vital, that it occupied the greater part of two days. On the first occasion the matter was debated, you, sir, made a valuable contribution to the discussion, not by way of a ruling, but by way of a paper which was laid before the Committee. That paper was afterwards printed, and it was spoken of by Senator Pearce in high terms, to which we all assented. The consequences of that were so far-reaching that Senator, now Justice, O'Connor, who was then leader of the Senate, took the responsibility of having the matter set down to be re- debated on a subsequent day ; but whether that was the followingday or not I do not know. I may have been right or wrong - that is not the question now - but I took the same view as Senator O'Connor, and that view was adopted, contrary to the opinion that you, sir, had expressed in the paper to which I have referred.


The PRESIDENT - The Senate first of all agreed with my view, but subsequently reversed their decision.


Senator Sir Josiah Symon - I am glad that my recollection is so far accurate.


Senator Pearce - On what Bill was that?


The PRESIDENT - On a Bill to give a bounty on sugar grown in Queensland by white labour.


Senator Sir Josiah Symon - Of course I could multiply instances of rulings of yours, sir, upheld by the Senate - rulings which were repeatedly given, particularly in connexion with the progress of the Tariff through this Chamber, and with messages and requests passing between the two Houses. I merely mention the matter in order to emphasize the naturally high importance that you, sir, the Senate, and all of us must attach to a rigid adherence to the provisions of the Constitution, which give effect to the privileges of the Senate in relation to these particular matters. I hope that if my views are not assented to, you will at any rate be assisted by the debate which will follow. First, I want to say that I shall not ask you to interpret or construe the Constitution. What I shall ask you to do is to apply the Constitution to the business of the Senate. We all recognise that it is not the business of the President to express an opinion as to whether a particular clause or enactment transgresses the Constitution in the sense which necessitates its submission to the High Court for settlement; it is not the function of the President, or of this Chamber, to usurp the powers of the High Court. That neither I nor any other honorable senator would ask. The first ruling to which I refer may be found on page 9 of the volume containing your decisions during the session of 1903-4; and it shows the distinction with very great clearness. On the 1st August, 1901, you said -

It is my duty to interpret and determine the Standing Orders, and to regulate the procedure of the Senate ; and, perhaps, to interpret the Constitution so far as the conduct of the business of the Senate is concerned. But the difference is great between the two cases. The Senate is the final and sole judge of the meaning of its own Standing Orders, whilst a law made in derogation of the provisions of the Constitution may in some cases be declared . invalid at the instance of any citizen.

A matter of the interpretation of the Constitution - of the validity or invalidity of a particular measure, as, for example, the provisions sought to be declared unconstitutional by the ruling in regard to the union label in the case of the Trade Marks Bill - is a matter to be dealt with by the High Court. But if it is necessary to interpret the Constitution so far as regards the procedure of the Senate, that must be done. Neither ofthese points, however, apply to the position where it is simply sought to apply the provisions of the Constitution to the business immediately before the Senate. The distinction is shown at the foot of the same page in two cases which I shall mention -

As a general rule, it is not proper for the President or the Chairman of Committees to give a ruling on the interpretation of the Constitution, but where a ruling is absolutely neces- sary in order to carry on the business, it ought to be given (#., pp. 4563 of 1903; 4127, 8571, of 1901). Such a case arose in the matter of Senator Saunders. His right to vote was challenged, and the business of the Senate could not proceed until the question was settled.

The ruling which you gave in the case of Senator Saunders may be found on page 4563 of Hansard for 1903. The Chairman of Committees, who was Senator Best, gave a ruling which was objected to by Senator Higgs. The then Chairman took, if he will allow me to say so, what seemed to many of us the very narrow view that to decide the question in reference to Senator Saunders involved the interpretation of the Constitution or of a Statute, and he therefore declined to give a ruling. That raised the very distinction which you, Mr. President, have since systematically drawn between a question involving the interpretation of the Constitution, and one which is absolutely and immediately relevant to the business before the Senate. Senator Higgs objected to Senator Best's decision, and the question accordingly came before you. The report in Hansard is as follows : -


Senator Playford - The contention of Senator Higgs, sir, is that the Chairman ought to have given a ruling, and the point is, do you think so, too?


The PRESIDENT - I think that if the vote of an honorable senator is challenged it is absolutely necessary, in order to carry on the business, that a ruling should be given on the question, whether it involves the interpretation of the Constitution or not. -As a general rule, it is not proper for either the Chairman of 'Committees or the President to give a ruling on the interpretation of a Statute, but where a ruling 'is absolutely necessary, in order to carry on the business, it ought to be given.

That is to say, even if it involves the question of the interpretation of the Constitution. The point which I am' about to submit does not involve any question of the interpretation of the Constitution, but merely invites you to apply the .plain terms of the Constitution to the business before the Senate. The second illustration, which may assist the consideration of this matter, is one quite of an opposite kind - that kind of interpretation which is confided under the Constitution to the High Court. This arose during the discussion of the Trade Marks Bill, when the point was raised whether the introduction of the original provisions moved by Senator Pearce for the application of a union label were constitutionally included in the Bill - that is to say, whether they were trade marks within the meaning of the Constitution. The Chairman, in the first place, was asked to rule what was meant by the sub-section of section 51 of the Constitution, which empowers the Com monwealth Parliament to legislate in"" reference to trade marks. In effect, you were asked to rule as you might have ruled, sitting as Chief Justice of the High Court, namely, what was the interpretation to be placed on those words in the Constitution, and whether the provisions sought to be introduced in reference to the trade union label came within the interpretation. That exactly illustrates what you have always declined to do, namely, to interpret the Constitution in the sense in which the interpretation is a function properly appertaining to the High Court. As reported on page 4127 of Hansard for 1904, you said -

It appears to me that the two objections takento the ruling of the Chairman, or the two socalled points of order which have *been raised, on investigation, resolve themselves into one, and it is not a point of order at all. It is a point of constitutional law. As I have formerly stated, and as has 'been the practice of the Senate ever since it has been in existence, the President is not called upon to interpret the Constitution. In the Constitution itself there is provided a tribunal for its interpretation, and that is the High Court. It would be altogether beyond the scope of my powers if I were to assume to laydown the law as to what the Constitution means'. The first point taken is that these suggestedamendments are not within the powers of theCommonwealth Parliament, and that they are not covered by the sub-section of section 51 of the Constitution, which gives the Commonwealth power to legislate concerning "copyrights, patents, of inventions and designs, "and trade marks."

This question really resolves into this : What does that sub-section mean, and what is meant by "trade marks" in that sub-section?

It could not possibly have been more plainly expressed. The Senate to decide that question was asking that you, sir, and the Senate itself, should be placed in the position of the High Court to determine the meaning of the Constitution, and to say whether marks of that character were included in its provisions. You continued -

If I were to give an opinion upon that, I should be in fact interpreting the Constitution, which I must respectfully decline to do.

This is an. instance which shows clearly what is meant by interpreting the Constitution. But even that rule, according to a wise exception, which you have engrafted upon it. disappears when - necessary for the purpose of the business of the Senate. The question I now submit does not involve an intepretation of the Constitution, but its application to the business of the Senate. What is it? It arises under section. 55 of the Constitution, which reads -

Laws imposing taxation .shall deal only with the imposition of taxation, and any provision therein dealing with an}' other matter shall be of no effect.

If the section stopped there, the point I am venturing to submit would not be so absolutely clear as to my mind it seems to be, but it continues -

Laws imposing taxation, except laws imposing duties of Customs or of Excise, shall deal with one subject of taxation only.

We can pass that also for the moment - but laws imposing duties of Customs shall deal with duties of Customs only, and laws imposing duties of Excise shall deal with duties of Excise only.

Therefore, under the Constitution, my sub- mission to you is this : That neither of these Bills is in order, that they both violate the Constitution, and that neither of them can be proceeded with in the Senate. It is necessary that we should consider what is the origin and purpose of this provision. I do not wish you, sir, to consider the matter from any narrow or technical point of view. In order to ascertain the origin, we go back to section 53, which places a limitation upon the powers, functions, and privileges of the Senate. It reads -

Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.

I do not think it necessary to recall to your mind the momentous debates which took place in the Convention in regard to these provisions for the maintenance of t|ie power of the Senate. I need not recall to you the fact that this method of clothing the Senate with, to a certain extent, unprecedented powers in comparison with most Upper Houses, originated, if not with- yourself , at any rate in the practice which prevailed in the Legislative Council of South Australia. It was to be developed in order that the Senate of the Commonwealth should occupy the highest possible place, and enjoy the greatest possible power in the interests of the States in relation to moneys Bills'. This was the disability; what was the safeguard? In the next paragraph of the section, it is obvious -

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

Is this a law imposing taxation? By no possibility can it be said to be a law imposing taxation within the meaning of the Constitution if it violates the provisions of section 55, to which, I have directed your attention. The only law which can be a. proposed law imposing duties of Customs or Excise is a law which deals with duties of Customs only, or with duties of Excise only. These are the only proposed laws imposing, taxation which can possibly come under the operation of section 53 of the Constitution. If that be iso, the operation of the Constitution is simple and clear. If it is not so, this will be the practical position in which we shall be placed : When we get into Committee, one of the first questions which must be raised is whether we are bound to make requests or can make amendments in the Bill. We might occupy a week in debating such questions in Committee, and the solution of the matter is now in applying these] provisions of the Constitution. I submit, with very great respect and deference, that it is your duty to apply these provisions of the Constitution to the business of the Senate. To you we look to apply them. You are trie repository of the powers of the Senate, so far as their application to the business of the Senate is concerned, and it is, therefore, to you we look to say whether this is or is not a Bill which is properly before the Senate; and whether, having allowed it to pass its second reading, the result of sending it to the Committee will not be to put us entirely at sea, since we will not know whether the Bill is one in which we can make amendments, or one in connexion with which we are compelled to make requests. I have endeavoured to explain the position as clearly, and, having regard to its importance, as briefly as I- possibly could. I feel that this is a matter possibly of as far-reaching importance in relation to your functions as you have ever had to bring your mind to bear upon. If my view is right, one of the privileges of the Senate is being invaded by these Bills. I look to you for a ruling, and I hope you will take the view I do, and will give a ruling which, given on the eve of the prorogation and dissolution of Parliament, maybe the most important ruling of the present Parliament, and a ruling which will go forth throughout Australia to show that we are determined to maintain the privileges and rights of the Senate, and the protection which the Constitution throws round its operations.


Senator Best - I am sure that we all sympathize with you, sir, in having, submitted to you for judicial consideration a question of such constitutional importance as that which has been raised by Senator Symon. Whatever may be my view as to the correct constitutional interpretation of the sections which have been quoted, I urge that essentially the question involves an interpretation of the Constitution by you, and comes under that well-defined rule which you have at all times observed, that that is not a function you are called upon to discharge, but one which must be discharged by that great and responsible body, the High Court. In the case quoted by Senator Symon, where it was held that as a question involved the immediate vote of a member of the Senate, it was a matter which applied to the business of the Senate--


Senator Trenwith - The business could not go on without it.


Senator Best - The business could not go on without it, because! that would have involved a partial disfranchisement of one of the States. That was essentially a matter for immediate determination by the Chair. But how it can be conceived that this is a matter which affects the business of the Senate, with very great respect to Senator Symon, I am unable to see.


Senator Dobson - How can we go into Committee unless the point is decided?


Senator Sir Josiah Symon - Are we to make requests or amendments?


Senator Best - Section 55 provides that -

Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.


Senator Sir Josiah Symon - The honorable and learned senator should read on.


Senator Best - Of course I will. There are certain provisions in this Bill which a majority of honorable senators deem essential to it. You, sir, are being invited to say that that majority is not to be at liberty to express any opinion on those provisions or to embody them in the Bill. The Constitution has in contemplation an ultimate judicial interpretation as to provisions which can be of no effect. That essentially implies that when they are referred to the proper tribunal it will be for that tribunal to say whether those provisions are valid or not. I assume, sir, that your anxiety will be to take the widest and most liberal view, and to give the widest liberty to the Senate to include such provisions as it deems desirable in dealing with any proposal for the imposition of taxation. It is not to be suggested for a moment that to do so will make the Bill invalid. It will make only those particular provisions invalid, and only at the instance and on the interpretation of the High Court.


Senator Millen - The honorable and learned senator ignores the question of procedure as between House and House.


Senator Best - If Senator Millen will allow me I shall endeavour to deal with that point. Senator Symon has recalled the circumstance that as Chairman of Committees I ruled that it was necessary in dealing with the Sugar Bounties Bill in Committee that we should deal with it by request, and not by amendment. The Senate was against me at that time, but subsequently the leader of the Senate, Senator O'Connor, with the concurrence of Senator Symon, felt that the matter should be reviewed, with the result that the former decision was overruled, and it was held that we could only make requests, anxious as every honorable senator was then to exercise our fullest rights in that connexion.


Senator Drake - That question will have to be decided again.


Senator Best - No doubt itwill. Certainly it is most important that where the Senate has the right to amend it should be exercised. This, point was decided on the Sugar Bounties Bill, which was also an Excise Bill.


The PRESIDENT - No; it was a Bill appropriating money out of the Consolidated Revenue.


Senator Best - Whether it was an Excise Bill or not we had to decide whether we should express our wish by amendment or by request.


The PRESIDENT - Surely the honorable senator has forgotten the facts ! I have looked up the case. The question which arose on the Sugar Bounties Bill was whether an appropriation of revenue imposed an increased charge upon the people. It had nothing to do with the imposition of Excise duties.


Senator Best - With all respect to you, sir, I think that the question was whether we should exercise our will by request or by amendment.


The PRESIDENT - No; I have the Bill before me.


Senator Drake - That question was involved.


Senator Best - Necessarily it was involved.


The PRESIDENT - Perhaps the honorable senator is right about the procedure, but the question was whether an appropriation of revenue imposed an increased charge upon the people.


Senator Best - Exactly. On that occasion we had to decide whether we should proceed by request or by amendment, and ultimately we decided to proceed by request. The point of order involves, the interpretation of the Constitution by the President.


Senator Sir Josiah Symon - Does not the Bill infringe the provision which says that " laws imposing duties of Customs shall deal with duties of Customs, only " ?


Senator Best - I am coming to that question. Clause 2 of the Bill provides for the levying of Customs duties on harvesters. Clause 3 says -

The duties of Customs specified in the schedule to this Act shall be charged, collected, and paid to the use of the King for the purposes of the Commonwealth on the dutiable goods specified in the said schedule, &c.

So far the effect of the Bill is to impose duties of Customs on certain goods. Then clause 4 says -

If the Governor-General is satisfied that the cash prices at which stripper harvesters and drills manufactured in Australia are sold exceeds the prices hereunder set out, he may by proclamation reduce the rate of duty specified in the schedule in respect of stripper harvesters, nut so that the reduction shall not reduce the rate of dutv below one-half the rate of duty imposed by this Act.

That imposes certain duties, subject, however, to a stipulation that the GovernorGeneral shall be empowered under certain conditions to lower the rate, following largely the lines of the Canadian Act.


Senator Millen - But the honorable senator is aware of a difference in the Constitutions ?


Senator Best - I am aware of that, but what I am urging' is that this Bill essentially relates to the manner in which; the duties shall be imposed. It imposes duties directly upon stripper-harvesters, but it provides that under certain circumstances the rate shall be modified. In other words, it empowers the Governor-General, if certain things take place, to modify the duties.

Surely that is the manner of imposing duties !


Senator Guthrie - Just as we provide that the Bill shall not come into force for six months.


Senator Trenwith - Just as we have provided that the duty on spirits shall be so much for one purpose, and so much for another.


Senator Best - Suppose that it was a Bill dealing with the imposition of duties on spirits. We could exempt a particular class of spirits from duty, and impose differential duties on other classes, to be collected from time to time. We could also say that, in respect of a particular class of spirits, the duties should not come into operation before a specified time. The point of order strikes at the very root of the liberty of the Parliament to impose duties in such a way, as it may think proper. Let me illustrate exactly what I mean by referring to the Excise Tariff (Agricultural Machinery) Bill, because if the point of order is good as regards one Bill, q fortiori it must apply to the other. The question would be whether that is a Bill dealing with duties of Excise only. Clause 2 says -

Duties of Excise shall on and from the 1st day of January, One thousand nine hundred and seven, be imposed on the dutiable goods specified in the schedule at the rates specified in the schedule.

There is a direct imposition of Excise duties, as fixed in the schedule, but the clause goes on to provide that it shall not apply to a particular class of goods. Practically it says that the duties shall only apply to a particular class of harvesters. In other words, the provision applies to harvesters generally, but not to harvesters made in a' particular way. It is a general qualification of the imposition of the duties just as, in a Customs Tariff Bill, we can discriminate as to goods which come here in British bottoms. No one would urge for a moment that we could not qualify our imposition of taxation by saying that goods coming here in other than British bottoms should be liable to certain duties, but that goods arriving in British bottoms should be subject to lower duties. In the present case we are attempting to discriminate as to the class of harvesters that we seek to tax. We can always levy a qualified tax. There is not a word in this Bill which does not deal with duties of Customs only. The utmost which can be said is that there is a qualification to the imposition of the duties.

We would be strangely limiting our power if we could not qualify the imposition of a duty.


Senator Dobson - Undoubtedly we could by passing a separate Bill.


Senator Best - This is the Bill which imposes the qualification.


Senator Sir Josiah Symon - In a Bill imposing duties of Customs, have we the right to fix the prices at which articles shall be sold?


Senator Best - I think so.


Senator Trenwith - But the Bill does not fix the prices.


Senator Best - All that the Bill provides is that if the Governor-General is satisfied that the cash prices at which locally-made stripper-harvesters and drills are sold exceeds the prices therein set out he may by proclamation reduce the rate of duty. It simply says that under certain conditions the Governor-General is to Se at liberty to reduce taxes which have been imposed. I submit with great respect that the matter, involving as it does, the interpretation of the Constitution, is essentially one for the High Court to deal with.


Senator Keating - It seems to me, as it does to Senator Best, that if you, sir, are to accede to the request made to you bySenator Symon, you will necessarily have to take up the position of giving an interpretation of the Constitution.


Senator Sir Josiah Symon - What have we to interpret in the Constitution ? We have to apply it.


Senator Keating - The honorable senator has asked you, sir, not to depart from the established rule which you have laid down of not interpreting the Constitution unless in exceptional cases in which the business of the Senate turns upon such an interpretation.


Senator Sir Josiah Symon - I did not put it in that way.


Senator Keating - I am sorry if I have misunderstood the honorable senator.


Senator Sir Josiah Symon - What I said was that I recognised, as I think we all do, that the President had ruled that it is not the function of the President to interpret the Constitution; and I said that the exception grafted on to that rule was where it was necessary to interpret the Constitution to enable the business of the Sentae to proceed. I added that the question which I have submitted did not involve an interpretation of the Constitution.


Senator Keating - That is just what I was saying. The honorable senator recognised that the procedure which you had followed in the past was one which should be followed in the future.


Senator Sir Josiah Symon - I did not say that.


Senator Keating - I do not profess to quote the honorable senator's exact words.-


Senator Sir Josiah Symon - I simplysaid that I recognised that the rule had been laid down, and the exception to it.


Senator Keating - In consequence of that, the honorable senator said that he was not going to ask you, sir, to depart from your rule, and to interpret the Constitution, but that he was going to ask you to apply the Constitution. I ask, in all reasonableness - how can any one apply the provisions of the Constitution without interpreting them? Is it possible to do so?


Senator Sir Josiah Symon - I should think so.


Senator Keating - Can any one apply particular provisions without first of all interpreting what they mean ? On the face of it, it seems to me to be an absolute impossibility. Interpretation must necessarily precede application.


Senator Sir Josiah Symon - I should think that interpretation is necessary where there is something in doubt.


Senator Keating - There is something in doubt in this case. The remarks already addressed to you by Senator Best clearly go to show that in his mind the provisions of the Constitution to which reference has been made have not the same application to certain matters in this Bill as Senator Symon believes that they have. The honorable senator has brought this matter under your notice as relating to certain sections of the Constitution. Section 53, to which reference has been made, deals with Bills when before Parliament, and to such Bills it refers as " proposed, laws." It says -

Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.

The second paragraph of the same section says -

The Senate may not amend proposed laws imposing taxation.

All those provisions deal with Bills. Section 54 also deals with proposed laws which appropriate revenue. Then we come to section 55, which drops the term "proposed laws," and deals with " laws imposing taxation " - that is, Acts. It provides that such laws imposing taxation - shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

If it is to be held that this Bill is a measure which, if it gets upon the statutebook in its present form, is a " law imposing taxation," and if it deals with any other matter than the imposition of taxation, then the constitutional consequence would follow that that law to the extent of such other matter would be invalid, and of no effect.


Senator Sir Josiah Symon - The point is that the provision to which I have taken exception would be a " tack," and the object of the sections of the Constitution quoted is to prevent tacking.


Senator Keating - What 1 am pointing out is that section 55 deals with Statutes, and simply says that so far as they transgress the principle that they shall deal only with the imposition of taxation, thev shall be invalid. The consequence attached to them on that account is the invalidity of the provisions which deal with more than taxation. But that consequence does not attach to " proposed laws."


Senator Sir Josiah Symon - Surely.


Senator Keating - There is a distinction clearly drawn between section 53 and section 55. In section 53 what is intended to be a law is at the Bill stage referred to as a " proposed law."


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. Gould. - Upon that argument, anything a Government liked could be tacked on to a Bill, and when it became law, the portion tacked on would be of no effect.


Senator Keating - I am going to deal with the question of tacking directly, but at present I deem it my duty to direct the attention of the learned President to the fact that there is a distinction between the term used in section 53 and in section 55.


The PRESIDENT - There was a great deal of debate in the Convention as to whether "laws" or "proposed laws" should be used, and the term "laws" in section 55 was inserted advisedly.


Senator Keating - I was not aware of that : but I thought I ought to draw your attention to the difference. Now, to come to the Question whether what is proposed in this Bill is or is not a tack. I suggest that the object of section 55 is to prevent, in connexion with taxation, Customs and Excise measures, the tacking on of additional matter - that is, matter foreign to the imposition of taxation, the imposition of Customs duties, or the imposition of Excise duties. Clause 4 of this Bill is as follows : -

If the Governor-General is satisfied that the cash prices at which stripper harvesters and drills, manufactured in Australia, are sold, exceeds the prices hereunder set out, he may by proclamation reduce the rate of duty specified in the schedule in respect of stripper harvesters, but so that the reduction shall not reduce the rate of duty below one-half the rate of duty imposed by this Act.

I submit, sir, that that provision is not to be construed as an addition to .the imposition of duties under the Bill. It is conditional to the imposition of duties.


Senator Sir Josiah Symon - Is it not intended to enforce a limitation of prices?


Senator Keating - It may have that effect.


Senator Sir Josiah Symon - But is not that intended ?


Senator Keating - We can ,only deal with the provision as it stands. When Parliament legislates for the imposition of any duty, the duty imposed has its direct, and its indirect, consequences. If you are going to judge of the quality of a measure by the indirect consequences of the taxation that it imposes, I submit that you embark upon a sea for which .you have no chart or compass.


Senator Sir Josiah Symon - May I ask my honorable friend whether the Senate is not asked to pass a schedule under which prices are fixed?


Senator Keating - What the Senate is asked to do is to provide that, in the event of a certain contingency, the duty shall be lowered.


Senator Sir Josiah Symon - Cannot the Senate, in Committee, increase the price from £70 to £75?


Senator Keating - I am not dealing with that question at this stage. What I am pointing out is that alL that this Bill provides is that in the event of certain prices ruling, the duty shall be so-and-so. If we say that that is a tack, we practically say the same about some of the most important matters that have been passed by this Parliament. Let me draw the attention of honorable senators to the Customs Tariff Act 1902. To that Act there is a schedule, division 6a, " Metals and Machinery " -

Te; come into operation on dates to be fixed by proclamation, and exempt from duty in the meantime, except as to iron, galvanized, plate, and sheet.


Senator Millen - The honorable senator surely does not call that .a tack.


Senator Keating - It is precisely analagous to the provision in this Bill. It goes on : -

Proclamation to issue so soon as it is certified by the Minister that the manufacture to which the proclamation refers has been sufficiently established in the Commonwealth, according to the provisions of any law relating to bonuses for the encouragement of manufactures, or for the establishment of manufactures under the direct control of the Commonwealth or State Governments, but no proclamation to issue except in pursuance of a joint address passed on the motion of Ministers bv both Houses of Parliament, stating that such manufacture is sufficiently established.

Those are the conditions in respect of which certain duties set out in the schedule will or will not be operative; and they are in that respect, I submit, on all-fours with the conditions contained in clause 4 of the Bill before the Senate. Now let me turn to the Excise Tariff Act 1902. Under that Act certain articles are excisable, and it is provided in regard to sugar that a rebate shall be given -

The rebate in the case of sugar cane to be 4s. per ton on all sugar cane delivered for manufacture, and in the production of which sugar cane white labour only has been employed after -Sth February, 1002. The rebate is calculated on cane giving 10 per cent, of sugar, and is to be increased or reduced proportionately, according to any variation from this standard.


Senator Millen - That is a method of gauging.


Senator Keating - Those are the conditions upon which, the Excise is to be reducible by means of a rebate. Surely honorable senators will see - I think I can urge this argument most strongly upon them - that the conditions in the case of a rebate of Excise duty on sugar, and the conditions of the Customs Tariff Act in connexion with metals and machinery are precisely on all fours with conditions of the character mentioned in this Bill. There may be differences in detail, but I submit that there is no . difference in principle. To illustrate further the argument that what is meant by section 55 of the Constitution is that we shall not insert in laws Customs or Excise measures imposing taxation, or foreign matter, I point out that we have, and neces sarily must have in all our Customs and Excise Acts, provisions which do not in themselves impose taxation. There are provisions of a preliminary character, and provisions such as Senator Guthrie suggested by interjection a little while ago, suspending duties for six months. It . could be quite as well argued by Senator Symon that if we inserted a provision to that effect we should be going outside the ordinary imposition of taxation and adding something to the measure. In the Excise Tariff Act 1902 there are seven sections. After dealing with definitions, the time of imposition of uniform duties of Excise, and what the duties shall be, there is a provision in section 6 of the Excise Tariff Act validating the collections under the proposals. If we were to read section 55 of the Constitution so strictly as to say that an Excise Bill shall deal with duties of Excise only, might it not be argued that this validating provision in regard to the collections already made was a tack? Then in section 7 there is a provision for future contingencies -

Whenever any goods are manufactured » which in the opinion of the Minister are a substitute for any excisable goods, or are intended to be or can be used as such substitute, or for any purpose for which such excisable goods can be used, or for any similar purpose, the Minister may by Gazette notice direct that such first mentioned goods shall be charged with Excise duty.

Is that not a contingency that may arise ?


Senator Millen - All the honorable and learned senator is affirming is that the objection cannot be taken on this Bill, because it was not taken on some previous Bill.


Senator Keating - That is not what I am affirming; I am affirming that this Parliament, in both Houses, has recognised in the past that these are not tacks - that these are not infractions of section 55 of the Constitution. When Parliament has recognised that, how can it for a moment be suggested that there is perfect unanimity in the Senate that this additional matter is contrary to section 55? I submit that before Senator Symon can ask you, sir, to apply the provisions of the Constitution without interpreting them, he -must satisfy you that there is absolute unanimity, not merely on the part of members of the Senate, but on the part of all reasonable men, that the additional matter complained of is an infraction of section

55.   If there can be a difference of opinion on the matter, how can the President be asked to apply the provision without interpreting the Constitution?


Senator Sir Josiah Symon - Suppose a Bill were introduced in the Senate by Senator Keating, as representing the Government, appropriating revenue, would the President not have to rule it out of order under the terms of the Constitution ?


Senator Keating - It is sufficient to deal with the case we have before us ; if I deal with hypothetical cases, I may be drawn off the thread of my argument. You, Mr. President, have been asked to apply the provisions of the Constitution, and have been practically assured that you need not interpret them in the sense of deviating from -your usual procedure. I say that the very fact that this legislation exists on our statute-book,, and the further fact that this provision objected to is precisely analogous, go to show that there cannot be that unanimity in the interpretation of section 55 which must necessarily precede your action in applying the Constitution. I said just now that it would be necessary, before you could apply the provisions, without infringing, if I may say so, your usual procedure there should be the absolute unanimity I have indicated. I think Senator Symon agrees with that.


Senator Lt Col Gould - It is very doubtful.


Senator Clemons - To what unanimity does the honorable senator refer?


Senator Keating - I was pointing out that Senator Symon does not ask the President to interpret the Constitution, but that it must be obvious that the President cannot apply the Constitution without interpreting it.


Senator Millen - How about the provision of the Constitution which says that there must be an absolute majority in the case of certain Bills? Does the President interpret that section when he applies it?


Senator Keating - The President cannot apply section 55 unless in relation to some matter before the Chamber, and it is for him then to determine whether the particular matter before the Chamber comes within that section. In doing that the President is necessarily interpreting the Constitution.


Senator Sir Josiah Symon - No; the President is interpreting the Bill.


Senator Keating - The President is interpreting the Bill in conjunction with the Constitution. The President interprets the Bill, but, before he can give effect to the provision of the Constitution, he must determine whether or not the particular matter so interpreted by him in the Bill is within or without the provision of the Constitution. That necessarily involves an interpretation of the Constitution. If it could be determined with absolute unanimity, not only on the part of honorable senators, but of all reasonable men, that the provision of the Constitution had application to the matter of the Bill, then the President, possibly, might apply the provision.


Senator Sir Josiah Symon - The honorable senator contends for nothing short of dogma.


Senator Keating - I shall quote the honorable senator's own words on the subject. Speaking on the Conciliation and Arbitration Bill in the first session of the second Parliament, Senator Symon is thus reported, at page 6332 of Hansard, volume 23 : -


Senator DAWSON (QUEENSLAND) - It will insure an immediate interpretation of the clause.


Senator Sir JOSIAH SYMON - None of us can be certain absolutely as to what is or what is not constitutional. That is a point with which I dealt at some length when moving the second reading. Neither the House of Representatives nor the Senate is the judge on the subject. I hold the view that unless, in an absolutely clear case, on which there 'is great unanimity, it would not be a safe course for Parliament to set itself up to determine on a doubtful question what was or what was. not constitutional.


Senator Sir Josiah Symon - I thoroughly agree with that.


Senator Keating - If we are to measure what is doubtful by differences of opinion, the question before us is as doubtful as any. Senator Symon and other honorable senators opposite mav be of opinion that those provisions complained of are additions under section 55 of the Constitution.


Senator Sir Josiah Symon - I say that the Bill, inasmuch as it embraces two different matters, violates the Constitution.


Senator Keating - Senator Symon and others may be of opinion that the Bill does embrace two separate matters, but I can assure the honorable senator that there are others, including myself, who are perfectly satisfied that the Bill does not include any matter foreign to Customs taxation.


Senator Sir Josiah Symon - That is the doubtful question.


Senator Keating - What I have tried to point out is that the matter objected to is not additional to the taxation, but conditional j and section 55 of the Constitution only operates to prevent adding to

Taxation measures foreign matter not relevant to the taxation. I submit, therefore, Mr. President, that if you are called upon to decide, you must necessarily determine for yourself whether or not the matter complained of is extra matter, which is provided against in section 55 of the Constitution, and that, in doing so, you must necessarily interpret that section in its application to the particular matter.


Senator Clemons - I think the reply we have heard may safely and conveniently be divided into two parts. First, there is the question of < whether you, sir, are now asked to interpret or to apply the provisions of the Constitution, and then there is the question of whether this Bill contains in it certain provisions which mav be properly described as conditions tacked on to a Money Bill. So far as I am concerned, I think there is little to be said as to whether you are now asked to interpret or to apply the section of the Constitution. The one sentence of. the Constitution to which your attention has been directed simply states that laws imposing duties of Customs or duties of Excise shall deal with duties of Customs or duties of Excise only. And it has been argued that you are asked not to apply, but to interpret, that provision of the Constitution. I venture to say that if such a request were made to you with regard to any other section in the Constitution which affects our procedure, it could be pointed out. in innumerable cases, that to strain the meaning so as to make you interpret where application is obvious was unreasonable. We have had an example to-day. It is provided by the Constitution that in any Bill to amend the Constitution there must be an absolute majority to carry it. The statement in the Constitution to that effect is just as simple in its meaning as the statement in reference to duties of Customs. I shall not prolong the debate on that point because I cannot conceive that in that sentence is, concealed any difficulty so far as you are concerned at the present time. The other point is obviously more within our own procedure and less within the ambit of the Constitution. I take it that you are now asked to place an interpretation on the contents of the Bill, just as you might be asked to settle an ordinary point of order. Yow

Sireasked to say whether in your opinion this Bill does contain anything in the nature of a tack. Perhaps I might digress for just one moment to refer to the distinction drawn by Senator Keating between laws and proposed laws. An investigation of the debates of the Federal Convention reveals the fact that that point was very fully discussed there. As a "matter of fact, the Constitution was put in its present form simply and solely to give it the precise effect which we say it ought to have now. That is to say, the word " proposed " was left out after long and serious debate in order to secure to the Senate immunity from tacking in any Bill sent from the other House. I shall not. refer at any great length to that point, which I think Senator Keating will agree is a minor one. Let me invite you, sir, to consider whether there is any clear evidence of tacking in the Bill now before us. Everyone of the illustrations or parallels submitted by Senator Keating for our consideration was, an ordinary application of ejusdem generis; to put that in another way, they dealt with nothing except conditions affecting the same article or an article of the same kind. What is proposed in the Bill ? A simple scrutiny reveals the fact that it purports to impose Customs duties, absolutely on condition that the price of totally different harvesters - that is the locally-made harvesters - shall be as the schedule states.


Senator Playford - Cannot we make any conditions we like when imposing taxation ?


Senator Clemons - There is a clear difference between the conditions which Senator Keating instanced and the conditions in this Bill. The conditions in the Bill do not affect the imported article on which it is proposed to impose a duty. Surely Senator Playford can see that the primary object is to impose a Customs duty on certain articles which are imported, while the conditions sought to be imposed are totally disconnected from those articles.


Senator Dobson - And from the subjectmatter of the Bill.


Senator Clemons - Of course. Let me put it in another way. . Can we in a Bill imposing duties of Customs do anything with respect to any article that possibly under no circumstances can ever be the subject of a Customs duty?


Senator Col Neild - An article which may never be manufactured.


Senator Clemons - An article which cannot be manufactured abroad, because we are dealing with articles which must be manufactured here.


Senator Col Neild - And the standard set up is for an article that may never be manufactured.


Senator Clemons - Precisely. It will be recognised that the Bill presents these difficulties, which to some of us appear to be insuperable. We cannot directly alter the Customs duties, because if we do we shall be altering the whole purport of the Bill, and why? Because the Customs duties themselves depend absolutely upon Something that has no relation to Customs duties, upon some conditions which, in the case of this Bill, relate clearly to the price of local machines.


Senator Keating - Before the honorable and learned senator leaves that argument, I remind him that I quoted the heading in the Tariff of division 6a, Metals and Machinery. That imposes duties upon imports of metals and machinery which are not to come into operation until local manufacture is certified as having been established.


Senator Clemons - I admit that, but that is not on a par with the conditions which arise under this measure.


Senator Keating - That condition does not apply to imported goods, but to locally - made goods.


Senator Clemons - I still say that that is by no means on the same footing as the measure before us. It offers a kind of resemblance, but goes no further. We must rely upon you, sir, to get us out of the difficulty as to the question of procedure in Committee. The object of the framers of the Constitution was distinctly to prevent the tacking on to money Bills of any conditions which the Senate could not alter by amendment ; that the Senate should not be embarrassed by finding in a Bill dealing with Customs or Excise duties some conditions which it could not alter in the exercise of its ordinary legislative functions by the usual process of amendment. Suppose we get into Committee on this Bill, how are we to exercise our right to amend if it is decided that this is a Bill which we cannot amend? The measure contains many things which are nothing but conditions. The whole of the schedule from our point of view is merely a condition. I take the first item -

Stripper-harvesters, 5-foot size and under, price £70.

Suppose some member of the Committee desires to alter that, how is he to do it ?


Senator Trenwith - He can only move a request that the alteration be made.


Senator Clemons - We say that our powers of amendment are limited specifically to a proposed law imposing taxation or burdens on the people, but if we were to say that in the opinion of the Senate the line to which I have referred should be altered, and should read, " Stripperharvesters 6-foot size and under," we should be endeavouring to impose no burden upon the people, and should be merely exercising our ordinary right of amendment. It will be admitted that in Committee we shall be confronted with that difficulty. I join . with Senator Symon in hoping that you will rule that the Senate shall not be put in the position of having to make a request for an amendment which will involve no extra burden upon the people, but which will merely alter certain conditions which might properly find a place in a Bill dealing with money in no way whatever, and which, we should have the undoubted right to amend.


Senator Trenwith - I respectfully submit that a tendency has been displayed to depart from the point presented. The point is not whether in this Bill there is a tack, but whether you, sir, should rule that this Bill is admissible. These are two very different things. 'The question whether there is a tack is not a question for the President, but for the Senate itself. If, in the opinion of the Senate, there is attached to a money Bill, which it may not amend a tack, which, if presented by itself, it might amend, it is for the Senate to refuse to pass that Bill,' and to return it to another placeon the ground that there is a tack attached to it.


Senator Sir Josiah Symon - No, it would not be in order, and it would be for the President to rule it out of order.


Senator Trenwith - The question whether this particular proposal is a tack has been decided so far as the Senate and this Parliament is concerned by legislation we have already passed. Senator Millen interjected that Senator Keating was contending that this is necessarily in order, because we have passed other legislation of a similar kind. That does not follow at all. It only follows that the opinion of Parliament is that it is in order because it is similar to legislation already passed; but it might still happen that the High

Court, which is the custodian of the Constitution, might, if appealed to, decide against what had been done.


Senator Millen - The High Court is not the custodian of the rights of the Senate.


Senator Trenwith - No, but it is the custodian of the Constitution. It might happen that laws we have passed would come under the review of the High Court on appeal from some citizen, and some of their provisions might be declared to be in contravention of the Constitution. That, however,, does not affect in the slightest degree the proceedings with respect to this Bill.


Senator Sir Josiah Symon - But we should have lost our right of amendment, that is the point. The High Court has nothing to do with that.


Senator Trenwith - That is not the point. The question now is whether this is a tack. What we are asked to do in this Bill is to legislate for duties of Customs. The Constitution says that a Customs Bill must deal with duties of Customs only. The question" is does this Bill deal with duties .of' Customs only, or with some other matters as well. I have not the slightest hesitation- in saying that there is not a single proposal for legislation in this Bill, except for the imposition or the remission of duties of Customs.


Senator Sir Josiah Symon - We have to legislate about these prices.


Senator Trenwith - No, we have not, that is where the honorable senator is entirely wrong, if he will excuse me for saying so. We have not to legislate about the prices ; all that we do is to say that if the prices vary, the taxation, on which we do legislate, shall vary also.


Senator Sir Josiah Symon - Can we not raise these prices if we think they are not sufficiently high?


Senator Trenwith - We might request that the conditions under which the duties may be imposed shall be altered by another place.


Senator Sir Josiah Symon - Can we not amend them ?


Senator Trenwith - No, we cannot. I have no hesitation in saying that this is a taxation . Bill, which we have no right to amend. Therefore, if we desire amendments in it, as we might legitimately do, all the power given us under the Constitution is to request that such amendments may be made in another place. We do not propose to legislate with reference to prices. They may be £75 or £1,075. The only thing is that if the prices should vary, the legislation for which we are providing shall vary accordingly.


Senator Millen - Are we not offering a premium to manufacturers of local implements to keep prices down to a certain figure ?


Senator Trenwith - That may be the intention, but, so far as our legislation is concerned, we are not. All that .we do is to provide in this Bill that certain duties of Customs shall be levied.

Seantor Lt. -Col. Gould. - And to persuade honorable senators to vote for them, certain conditions are imposed.


Senator Trenwith - That is another question altogether. We 'have legislated in the last few days in an exactly analogous case in connexion with spirits. We have said that the Excise duty in connexion with locally-produced spirits shall be so much, but that the duty on spirits used for certain purposes shall be so much less.


Senator Best - And we have stipulated that some spirits shall be matured in wood for two years.


Senator Millen - They are the particular spirits on which we levied a particular duty.


Senator Trenwith - No, the honorable senator is wrong. No spirit is described. It might be silent spirit, a wine brandy, a malt whisky, or any other kind of spirit, but if in the manufacture of scent, for instance, it is used exclusively in connexion with colonial products, the duty is to be 1 os. per gallon.


Senator Millen - The honorable senator is dealing with the particular spirit on which the duty is levied.


Senator Trenwith - My honorable friend is wrong; it might be any spirit. The duty does not depend on the nature or character of the spirit, or how it is produced, but on how it is subsequently applied on something entirely different from the spirit itself.


Senator Sir Josiah Symon - Does not the honorable senator think that this is fixing a maximum price with a penalty if it is exceeded, that other goods will be admitted at less duty ?


Senator Trenwith - I do not, though that mav be the intention.

Seantor Sir Josiah Symon. - Is it not the effect?


Senator Trenwith - It may be the effect.


Senator Sir Josiah Symon - Then that is the enactment ?


Senator Trenwith - The effect undoubtedly is that we have decided that these duties shall be contingent upon prices, but what we are legislating for is not the prices, but the duties. We cannot affect the prices, if persons have any other reasons which they might easily have, for raising or lowering them.


Senator Sir Josiah Symon - But they would suffer the penalty all the same.


Senator Trenwith - We only say that if in any case the price rises above a certain maximum, the duty shall not be imposed.


Senator Millen - That is to say, the manufacturers must keep their prices down?


Senator Trenwith - I direct attention to the fact that we have not the power to enforce these prices.


Senator Sir Josiah Symon - We should do it under this Bill.


Senator Trenwith - That is not proved ; we only say that if they vary, the taxation shall vary.


Senator Sir Josiah Symon - The penalty might be ineffective.


Senator Trenwith - We merely say that the duties shall operate subject to certain contingencies, exactly as in this State we say that a land tax shall be imposed, but do not make its application uniform.


Senator Sir Josiah Symon - The difference is that in that case the taxation is on those who own the land, but in this case the taxation is on a different set of people.


Senator Trenwith - What is dealt with in each instance is taxation. In this State we do not deal in the slightest degree with the extent to which persons shall hold land, but we provide that where men hold land to a certain extent the tax shall apply. In this Bill we seek to levy a duty of so much per stripper-harvester ; and we provide that if it should happen from any cause after a. certain date that the price of the locally-made harvester is higher than that which is therein prescribed, the duty shall not operate. We do not legislate as to the price of the machine. We can always enforce the payment of the duty, but we cannot send a policeman to impose a penalty upon a man who varies the price of his machine.


Senator Sir Josiah Symon - We can only do it by saying, " If you so reduce your price below what we have fixed, we shall admit other people in competition with you."


Senator Trenwith - We say that the Governor-General may suspend the duty.


Senator Sir Josiah Symon - That is an enactment of the price.


Senator Trenwith - In presenting his case, my honorable friend was compelled to exercise considerable ingenuity. He was confronted with the persistent and consistent ruling of the President that he is here to interpret the Standing Orders when a difference of opinion arises, but not the Constitution.


Senator Sir Josiah Symon - I am not asking the President to interpret the Constitution.


Senator Trenwith - I venture to think that the honorable senator is, because he is asking the President to say whether the Bill is in accordance with a provision of the Constitution, or as he put it, to apply the Constitution.


Senator Sir Josiah Symon - He must first determine that the Bill embraces more than the imposition of Customs duties, and then if it does, it violates the Constitution.


Senator Trenwith - As the President very properly ruled the other evening, the Senate is as competent as he. is to decide a point of this kind, and if it feels that its privileges are being infringed or its rights abrogated, it need not proceed with the Bill.


Senator Sir Josiah Symon - But in the first instance, it is for the President, as the repository of our privileges, to give a ruling.


Senator Trenwith - The President presides over our deliberations in accordance with the Standing Orders.


Senator Sir Josiah Symon - Does the honorable senator mean to say that the President is not guided by the Constitution ?


Senator Trenwith - There is a wide difference between the case of Senator Saunders - where, until the right of the senator to vote had been decided, the business of the Senate would necessarily have been brought to a stand-still, or a State would have been partially disfranchised, and the present case.


Senator Sir Josiah Symon - Suppose that a Minister initiated here a Bill to ap- propriate revenue. Would it not be the duty of the President to rule whether it was in order or not?


The PRESIDENT - I have always teen of opinion that the Senate can appropriate revenue.


Senator Best - That is an interpretation of. the Constitution.


Senator Sir Josiah Symon - 1 ask Senator Trenwith to say whether it would not be the duty of the President to rule on the point, and in accordance with the Constitution ?


Senator Trenwith - It is not an analogous case.


Senator Sir Josiah Symon - The President has just ruled that it is.


The PRESIDENT - No. I have always expressed that opinion; but I have given no ruling in the Senate.


Senator Trenwith - In conclusion, I submit that this is a case in which the President is not called upon by the Standing Orders to intervene.


Senator Millen - It has been contended, sir, by those who are opposed to the point of order, that you are not called upon to determine the constitutionality of any question which may arise. I submit that there must be a very sharp distinction drawn between the validity of a Bill which is challengeable in a Law Court, either by an individual or by a State, and the validity of procedure. I do not suggest for a moment, sir, that you should take upon yourself a function of the High Court, and that is to determine whether or not a Bill is constitutional. But I do hold that it is incumbent upon you to see that the rights of the Senate are amply protected. The purpose of section 55 of the Constitution was expressly and avowedly to secure the Senate against encroachments by the other House. At page 2000 of the official record of the debates of the Melbourne Convention, Mr. Isaacs is reported to have said -

What I am perfectly willim; to accede to, in view of what has been decided upon in other directions, is this : that the Senate shall have the full power under the Constitution to decline: to consider any measure, and shall have the warrant of the very words of the Constitution in declining to consider measures that do not comply with the provisions of the Constitution.

Dr., now Sir John,Quick, said at page 2007 -

There are two methods in which the privileges of the Senate can be defended. First there is the President, whose absolute duty it would be to rule out of order any Bill from the House of Representatives infringing or violating those privileges.

The discussion, I mav say, took place on a proposal of Mr. Isaacs to insert the word " proposed " before the word ' laws " in the clause.

It would be the prerogative of the President to do this, absolutely regardless of the opinion of the Senate 'itself. The President has not merely to act upon a point taken by a member of the Senate, but is placed in his position to act of his own motion without wailing to have his attention directed to any particular clause infringing the Constitution. It would be the duty of a President to say that the Bill was out of order, and it would then be sent back to the House of Representatives with an intimation to that effect. I venture to question whether even a majority of the Senate would dare to attempt to override a decision of the President.

I do not submit for a moment, sir, that the opinion of even a fellow delegate at the Convention should or ought to override your own opinion. I have quoted (he passage from Sir John Quick's speech, because it so clearly expresses my own opinion that you, sir, are the repository of the rights and privileges of the Senate, and the proper ' person to defend them if assailed. The question is whether this provision is an infringement of the powers and privileges of the Senate by the other House. Our powers and privileges are coequal with those of the other House, except in one important particular; but if this is a tack to a Bill imposing taxation, it does to that extent infringe upon our rights, inasmuch as it limits the manner in which we can seek to secure an amendment. It has been pointed out that we have already passed measures which, if the contention of Senator Symon be correct, are equally an .infringement of the Constitution.


Senator Sir Josiah Symon - That is to say, if they are analogous?


Senator Millen - Assuming, for the sake of argument, that they are analogous, the fact that those measures have been passed makes it all the more important that a decision should be given on the point now, because honorable senators are suggesting that we should condone the present departure from the Constitution simply because we have condoned similar departures.


Senator Trenwith - No, we argue that in the opinion of Parliament it is not an offence, because it has declared its view by enactment.


Senator Millen - Parliament has made no such declaration ; but by omission or negligence or oversight it has passed similar provisions. Every time we pass a measure which may slightly infringe upon the rights of the Senate, or may be thought to do so, our action will be used as a buttress by those who wish to aid, perhaps unconsciously, an effort by the other House to encroach upon our powers. I hold a very strong view as to the position which the Senate occupies in the Constitution. I submit, sir, that if there is a possible doubt as to what the Constitution intended, as to the respective powers of the Houses, you would be acting quite properly in giving the benefit of the doubt to the Senate, thus leaving the other House, if it felt aggrieved, to express its view in proper form, and that is by message.


Senator Pearce - I shall not presume to say anything on the point whether you, sir, ought to give a ruling on the issue raised by Senator Symon, because our experience of your rulings during die past five years is such that we can with full confidence leave that matter in your hands. But on the point whether what is proposed in this Bill is or is not a tack, I wish to direct your attention to one or two cases that have occurred in the history of the Senate, and which, perhaps, you have not had an opportunity to look up. I draw your attention to the test which was stated by Senator Symon. I think I quote him correctly when I say that he observed, when Senator Trenwith was speaking, that the test is - " Does the Bill deal with other subjects than Customs and Excise? If it does, it abrogates the Constitution." Now, I draw veur attention to the "fact that the first Customs Tariff Act, passed by the first Parliament of the Commonwealth - during the time you have occupied the position of President - did deal with other matters than the imposition of duties so far as those matters were conditions governing the remission or imposition of certain duties contained in that Act. I will also refer to another test stated by Senator Clemons. I took down his words as he used them. He said, " If we .alter the duties for some other purpose, then we alter them for some purpose outside the scope of this class of Bill altogether." Applying those tests to the Bill before us, both Senator Clemons and Senator Symon contend that you should rule the measure to be unconstitutional. The first instance to which I. direct attention is the Customs Tariff Act 1902, page 316 of the first volume of the Commonwealth Statutes. Under the heading, "Special Exemptions," you will find these words : -

Any machinery, machine tool, or any part thereof, specified in any proclamation issued by the Governor-General, in pursuance of a joint address passed on the motion of Ministers by both Houses of the Parliament, stating that such machinery, machine tool, or part cannot be reasonably manufactured within the Commonwealth, and that it should be admitted free.

That is to say, the duties were imposed ; but if such a proclamation were issued then-, without any alteration of the Customs Tariff Act, such machines were to be admitted free. That is a case in which duties were to be remitted on a proclamation by both Houses of Parliament.


Senator Drake - But that was to apply all over Australia. There was no distinction between classes or persons.


Senator Pearce - There is another instance on page 321 of the same volume, under the heading " Metals and Machinery " - .

To come into operation on dates to be fixed by proclamation, and exempt from duty in the meantime, except as to iron, galvanized, plate, or sheet.

There is a condition laid down altogether outside the province of taxation.

Proclamation to issue so soon as it is certified by the Minister, that the manufacture to which the proclamation refers has been sufficiently established in the Commonwealth, according to the provisions of any law relating to bonuses for the encouragement of manufactures, or to the establishment of manufactures under the direct control of the Commonwealth or State Governments, but no proclamation to issue except in pursuance of a joint address passed on the motion of Ministers by both Houses of Parliament, stating that such manufacture is sufficiently established.

In both those cases conditions were laid down. In the one case, under certain conditions outside the region of taxation, duties were to be imposed, and in the other case, under certain conditions outside the region of taxation, duties were to be remitted.


Senator Clemons - May I point out that, with regard to the last parallel quoted, the essence is time.


Senator Pearce - The essence is the payment of bounties in the one case and in the other the establishment of State or Commonwealth iron works. It is also worthy of consideration that Excise Tariff Bills and Customs Tariff Bills are or. all-fours with the measure now before us ; and, therefore, if the rule holds good as regards Customs Tariff Bills, it holds good as regards Excise Tariff Bills. There is an even stronger case afforded by the Excise Tariff Act, passed in 1902. On page 294 of the first volume of the Commonwealth Statutes there is the item -

Sugar, per cwt. of manufactured sugar, 3s., until 1st January, 1907, less, from the 1st July, 1902, a rebate to the grower of sugar cane and beet. The rebate in the case of sugar cane to be 4s. per ton on all sugar cane delivered for manufacture, and in the production of which sugar cane, white labour only has been employed after28th February, 1902.

Senator Drakejust now wanted to know whether there was any differentiation between classes of persons. In the last instance I have quoted, there is a differentiation between the colour of persons ; and Senator Drake was, if I remember rightly, the Minister in charge of the Act which I have quoted when it was before the Senate. There was a measure imposing Excise duties which allowed for a rebate according to the class of labour - namely, the colour of the labourer - employed in the industry.


Senator Clemons - Those conditions affected not the Excise duty, which remained the same, but the rebate. Surely there is a great difference?


Senator Pearce - I submit that if that is all that is wrong, all that it is necessary to do is to alter the form of the present Bill, and to provide for a rebate. But that is only another way of doing the same thing. What honorable senators opposite have asked you, sir, to rule is that the conditions in dispute must be put into a separate Bill. I point out, also, that when the Excise Tariff Bill, and the Customs Tariff Bill 1902, came before the Senate for their third reading, you were in the Chair, and did not rule that they were unconstitutional. There is yet another point. The Senate, within the last few weeks, has dealt with a Bill to amend the Excise Tariff Act of 1902, and it sent down a request to the House of Representatives in the following terms: -

No. 2, page 1, clause 2, at end of clause add- " Provided further that if the distillers -

(a)   do not, after the expiration of one year from the passing of this Act, pay their employes a fair and reasonable rate of wages per week of forty-eight hours ; or

(4)   employ more than a due proportion of boys to men engaged in the industry, the Governor-General may in pursuance of a joint address by the Senate and House of Re presentatives impose an additional Excise duty of one shilling per gallon on each of the items mentioned in the schedule."

Of course, I know that that requested amendment was agreed to in Committee, and, therefore, did not come under your notice officially while you were in the Chair.


Senator Findley - Some of the honorable senators who are taking exception to the Bill before the Senate voted for it.


Senator Pearce - These instances clearly show that both Houses of Parliament have, in every measure of this class that has come before us, followed the rule that we can impose conditions affecting the imposition of Customs and Excise taxation. Therefore, I submit that you will be acting rightly in upholding the precedents that have been established by ruling that the Bill is in order.


Senator Drake - I think I am justified in saying a few words in reply to those honorable senators who have adduced what they consider to be precedents for the Bill before us. In my opinion, not one of the cases quoted can be said to be parallel to that of this Bill. The reference was to measures providing that certain Customs duties are to come into operation under certain circumstances. But that is nothing like what is here proposed. The case that comes nearest is that cited by Senator Pearce with regardto a rebate being paid when sugar is grown by white labour. But there is this to be said in answer to that point : That, although the Act which the honorable senator quoted was passed in 1902, it was afterwards considered that what was done was not done in the proper way to attain the object. Consequently, in 1903, the Government came down with a Bill, by passing which Parliament repealed the provision of the Excise Tariff Act 1902, and provided in its place a system of bounties.


Senator Playford - That was because the second method was considered to be more convenient.


Senator Drake - At any rate, it was considered that the granting of the rebate allowed in the Excise Tariff Act was not the proper way of attaining the object.


Senator Trenwith - Not that it was not the proper way. but that it was not the better way ; that is a different Question.


Senator Drake - I do not know that anyquestion like the one before us has even been raised in Parliament. Senator Pearce also referred to a request made by the Senate in the Excise Tariff (Spirits) Bill, during the present session. That case is not analagous. In this Bill it is proposed to impose a certain Excise duty upon stripper-harvesters, and it is provided that that duty shall not apply to any person who conforms to certain conditions. An analogous case would have been presented, if we had inserted in the Excise Tariff (Spirits) Bill a provision declaring that the rates therein fixed should not be payable by importers who conducted their business upon certain lines. If the Government can do what is proposed in the Bill they can obtain complete control of any trade which deals with goods that are liable to duties of Customs or Excise. It seems to me that by means of this measure the Government are endeavouring to obtain a power which they do not possess under the Constitution - the power of interfering with private traders within the States.


The PRESIDENT - The honorable senator is now getting away from the point of order which relates to the question of whether the introduction of a particular clause is good or bad.


Senator Drake - The Government may send up proposals of this kind, and the Senate may not be able to prevent them from doing so, because you, sir, have ruled that you will not go out of your way to interpret the Constitution unless it is necessary to do so for the conduct of business. This Bill should not have been submitted in its present form. If the Government wish to do what they propose they should have stipulated that persons engaged in the manufacture of harvesters must comply with the conditions herein laid down subject to a penalty of£6 per harvester.


Senator Trenwith - This is not a penalty Bill.


Senator Drake - The Government desire to impose a penalty upon the manufacturer who does not comply with certain conditions. Had they followed the course which I suggest there would have been no doubt as to our absolute power to amend the measure in any particular. It appears to me that they have forwarded the Bill to us in the hope that we shall treat it as a Money Bill. In this connexion I would point out that section 53 of the Constitution refers not to a Bill, but to " a law imposing taxation." Clearly therefore the Senate is not prevented from amending a Bill which primarily does not. impose taxation. That portion of this measure which deals with the manufacture of harvesters is not a law imposing taxation. We cannot proceed much further unless the President decides whether or not we have power to amend this Bill.


Senator Trenwith - That is not the point which has been submitted to the President by Senator Symon.


Senator Drake - I understand that it is.


The PRESIDENT - It is for the Chairman of Committees to rule upon that point.


Senator Drake - The Bill is about to go into Committee, and that being so, it is not unreasonable that we should ask your ruling, sir, upon the point to which I have referred. It would then go into Committee with a clear instruction as to the class of Bill that it is. However, I will not press that point.


Senator Lt Col Gould - When this point of order was taken I certainly understood that the question raised was whether the Bill as submitted complies with the requirements of the Constitution. If you, sir, consider that the Bill does not comply with the requirements of the Constitution, but is really a Bill' which contains a tack, you will rule that it is out of order, and a waste of time in Committee will thereby be prevented. Senator Symon, it appears to me, submitted the question in very apt terms, and clearly drew the distinction between asking you to interpret the Constitution and asking you to interpret the Bill. I know that a similar question was raised on a previous occasion", but it was not presented to you in the same clear terms as to-night. It seems to me that the wording of the Constitution is perfectly plain. If it were argued that you could not interpret the Bill, and say whether the provision of the Constitution applied, it would not be possible to say whether or not a proposal dealt with laws imposing taxation. After all, it is not what the Constitution means,but what the Constitution actually says, and then there comes the application with regard to any Bill that is submitted for our consideration. The cases cited by Senators Keating. Pearce, and others have been fully replied to by speakers who have preceded me on this side, and therefore I do not propose to occupy further time in dealing with them. But I should like to elaborate one argument submitted by Senator Millen as to the necessity to give the Senate the benefit of any doubt, if you have .any doubt, as to the application of the section of the Constitution' to the present Bill. It may be said that a ruling in the direction desired by Senator Symon and others might prove rather serious with regard to the Bill before us. That, I take it, is hardly a matter to be considered, but, in any case, a ruling to that effect", even if it were mistaken, could only result in the Bill being sent back to another place, with a message stating the reason why it had not been proceeded with. It would then be perfectly competent for the 'Government to meet our wishes in another Bill, providing for the fixing of the prices to be charged for harvesters. We should have a Bill imposing taxation, which we could not amend, except by way of suggestion, and another Bill, which would fix the prices of the harvesters, and which we could amend in any respect. The only effect would be to cause a certain amount of delay, and some additional work to the Government. But if, on the other hand, your decision was against the view submitted by Senator Symon, the Bill would pass into law, and remain law until further action was taken by legislation. To this Ministers may reply that according to section 55 -

Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

We have to bear in mind, however, the further words -

Laws imposing duties of Customs shall deal with duties of Customs only.

If it were assumed that the High Court, on being appealed to, would eliminate the provisions of the Bill, which it was not strictly within our power to pass, it must not be forgotten that if would be possible for a Government to introduce taxation proposals, accompanied with" such conditions as to render the taxation unobjectionable to men who otherwise would not have approved of it. It is clearly the intention of the Government to charge these Customs duties until something else happens, quite apart from the Customs duties. Surely that is an evident tack, and an indirect process of fixing prices. It must bc abundantly evident to you, sir, with your knowledge of the intention and history of this particular section of the Constitution, that there is in this Bill an attempt 4o tack; and it is an important matter in reference to the rights and privileges of the Senate. Even if there has been an infringement of this section in past legislation, that should not affect our decision on the present occasion. If the question arose before the High Court of whether a Bill was within the Constitution, the decision would not be affected by the fact that some previous Bill, not within the Constitution, had not been challenged.


The PRESIDENT - In this case I am asked to rule that I ought or ought not to put the second reading of the Bill. That is clearly not a point of order, because if it were not for section 55 of the Constitution the point would not have arisen at all. It is therefore a constitutional question, which arises under the provisions of section 55. Now at the very commencement of the history of this Senate there w.as a ruling laid down by myself, and that ruling has been accepted ever since by the Senate. This is what I said -

It does not seem to me that I should, from the Chair, undertake the responsibility of interpreting all the provisions of the Constitution. The Constitution itself has provided for a tribunal, the High Court, which, after argument and consideration such as would be 'impossible and undesirable in this Senate, is empowered to finally determine its meaning in most of the cases which will arise. It is my duty to interpret and determine the Standing' Orders, and t< regulate the procedure of the Senate; and, per haps, to interpret the Constitution so far as thi conduct of the business of the Senate is concerned.

I then proceeded to point out the difference between the two cases. In one instance, I undoubtedly did interpret the provisions of the Constitution. That was in a ruling which I gave in the case where the vote of Senator Saunders was challenged. It was evident that the business of the Senate could not be proceeded with as long as that question remained in doubt. The honorable senator's vote might have been challenged on every division, and the whole proceedings of the Senate declared invalid. In that case, and, so far as I remember, in that case only, I undertook to interpret the provisions of the Constitution. It has been urged that it is unnecessary for me in dealing with this question to interpret the provisions of the Constitution. It is said that I can apply them. I fail to see how it is possible for me to apply the provisions of section 55 unless I make up my mind as to its meaning, or, in other words, interpret it. Section 55 provides that " laws imposing taxation shall deal only with the imposition of taxation. " It does not provide that laws imposing taxation shall only impose taxation, and it is possible that a different meaning may be implied by the use of the words " deal with taxation." It is contended that this Bill which is one to impose Customs duties, contains a provision that does not deal with the imposition of taxation ; and it seems to me that to decide the question that has been submitted to me, I should have to interpret not only the Constitution, but the Bill itself. In accordance with the rule that has been laid down, I do not think that I should be asked to undertake that responsibility. If - and I use the word "if" - the clause to which objection is taken ought not to appear in the Bill, it is for the Senate in Committee to vote it out. The Senate surely ought to take the responsibility of voting on the question whether a clause should remain in a Bill, or should be rejected. I think that, strictly speaking, I ought to say nothing as to the point raised in reference to what the procedure in Committee ought to be, since it is a matter for the Chairman to rule upon. But. perhaps, I may be permitted by the Chairman of the Committee to refer briefly to it. This Bill is undoubtedly one to impose dutiesof Customs. The fact - if it be a fact - that it contains a clause that it ought not to contain does not alter the character of the Bill. A question may arise as to whether there ought to be "requests or amendments made, and that, as I have said, is one with which the Chairman of Committees must deal. It seems to me quite clear, however, that, so far as the imposition of taxation is concerned, there ought to be requests. When we come to the clause to which exception is taken, if. it ought not to be in the Bill, it should be voted out If, on the other hand, it ought to be in - if, in the words of the Constitution, It properly deals with " the imposition of taxation " - there should be no question concerning the procedure on it. I regret that I cannot enter into a consideration of the very interesting point as to what ought to be the construction placed on the section of the Constitution, but I propose when we are in Committee, when I shall have a free hand to say something about it.







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