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Friday, 9 August 1912

Senator VARDON (South Australia) . - I think it is a pity that, in the discussion of this subject, accusations should be made such as have been hurled across the chamber by the speaker who has just sat down. He has represented that one party is here simply to promote all kinds of injustice, and that the other party is trying to prevent them. That kind of criticism is neither fair nor creditable to the Senate.

Senator McGregor - Is it creditable to call Mr. Justice Gordon a " chartered bully " ?

Senator VARDON - No. I regret the reference that was made to Sir John Gordon. Senator McGregor, Senator Guthrie, and myself have been associated with him in the South Australian Parliament, and 1 have had relations with him in a good many other matters. 1 do know that Sir John Gordon is one of the most courteous, kindly-hearted, and honorable gentlemen that one can have to do with.

Senator Guthrie - And an eminent lawyer.

Senator VARDON - Of course, he is a prominent lawyer, also. I do not wish to excuse any rude remark he may_have made to Mr. Knox.

Senator McGregor - He did not make one.

Senator VARDON - But I think it ought to be said in palliation that Sir John Gordon at that time was ill. His weak state of health was generally known. I dare say that his nerves were unstrung. I know that if I am in ill-health, I become exceedingly impatient, and, perhaps, say things which I would not say if I were in a normal condition.

Senator St Ledger - When a man makes such statements, he must expect retorts.

Senator VARDON - I am quite certain that, under ordinary circumstances, Sir John Gordon would have exercised a great deal more patience and forbearance than he did.

Senator McGregor -- With a recalcitrant witness ?

Senator VARDON - I am not excusing the witness. I think it is only just to say this concerning a man with whom I have had a good deal to do at various times; and 1 am very sorry that he was referred to as a " bully," because conduct which that word would describe is altogether contrary to his disposition and character.

Senator E J RUSSELL (VICTORIA) - The honorable senator properly reprimands his leader.

Senator VARDON - I do not wish to reprimand anybody. I make this explanation because I think it is fair to the man himself. I do not like the measure now proposed to us, because it aims at legislating for a particular occasion. No legislation, in my opinion, ought to be framed in that spirit. Legislation should be on broader lines, and should lay down principles. This savours of panic legislation.

Senator Guthrie - It applies to all combinations.

Senator VARDON - We have had eighteen Royal Commissions since the establishment of the Commonwealth, and this is the first occasion on which a difficulty of the kind has arisen. Immediately we are faced with drastic legislation.

Senator Guthrie - The same difficulty was experienced by the Harvester Commission, and the Navigation Commission.

Senator VARDON - It is curious that we did not hear of the difficulty before. The Bill seems to me to be unnecessarily severe. I do not uphold any one who refuses to give evidence before a Royal Commission. Certainly I would not shield any combine or trust. I am looking at the broad effect of this legislation.

Senator Barker - When an Act is found to be ineffective, is it not a proper thing to propose to amend it?

Senator VARDON - Of course it is; but it is a question whether the Act is altogether ineffective. When the Bill was introduced in another place, two reasons were given for it. One was to compel the attendance of witnesses. Has not the law already been vindicated in that regard? Has not the recalcitrant witness been prosecuted and fined?

Senator de Largie - The difficulty may happen again.

Senator VARDON - Then the witness can be prosecuted and fined again. The mere fact that he has been once fined does not relieve him in any way from responsibility for attending when summoned again.

Senator de Largie - The fine was a trifle to the big Sugar Trust. A fine of $6,000,000 did not frighten a big trust in the United States.

Senator VARDON - We used to hear a good deal in the Senate at one time about the iniquities of the Tobacco Trust ; we have not heard so much about it lately. I remember that some years ago the Tobacco Trust was denounced as one of the most horrible evils in Australia ; its nationalization used to be advocated. We do not hear of that now.

Senator de Largie - As soon as we get the power the honorable senator will hear of it.

Senator VARDON - I say again that the law has been vindicated in the case of the witness who refused to attend. He might be fined a hundred times if he refused to attend a hundred times. I feel sure that even the Sugar Company would get tired of paying fines and costs. At any rate, the prosecution that has taken place proves that it was not necessary, for the first reason given, to amend the law. The second reason was, to insure that witnesses shall answer questions. I have no objection to that. Certainly any man who is summoned before a Royal Commission ought to answer questions. In this particular case, I read the Police Court evidence - pages and pages of it - until I grew sick and tired of following the proceedings. I believe that the secretary of the Commission admitted in evidence that some witnesses who were called produced written statements. That was proved in the proceedings before the Police Court. I understand that Mr. Knox took up exactly, the same position - that if others had been allowed that privilege it should be extended to him. I think that the same treatment should be extended to every witness. Perhaps it would be better to lay down the exact procedure, so as to make it clear and distinct whether a witness has the right to make a statement before he gives his evidence, or whether he must give his evidence first and make a statement afterwards. But I do not see any provision of that kind in the Bill. We might have the same trouble arising over and over again if witnesses think that they are not receiving exactly the same treatment as others have received. I do not excuse in any way a witness who refuses to answer questions or to give evidence, but I hold that we ought to put all witnesses on exactly the same footing. If a privilege is given to one witness, it should be extended to all witnesses. This Bill would have met the position if it had made quite clear what the privileges of a witness are, and what he can do when he is put in the box and called upon to answer questions. There are some peculiar parts of the Bill to which I wish to refer. Clause 2, for instance, amends section 2 of the Act, which gives power to the President or Chairman of a Commission to summon a person - to give evidence and to produce any books, documents, or writings in his custody or control, material to the subject-matter of the inquiry.

That seems to me to be very reasonable, but it is now proposed to delete the words " Material to the subject-matter of the inquiry," and to substitute the words " which he is required by the summons to produce." That may be something altogether different. A witness may be asked to produce documents which are not at all material to the subjectmatter of the inquiry.

Senator Barker - Yes; but they must be relevant to the inquiry.

Senator VARDON - Where does it say so?

Senator Givens - Amongst his papers the honorable senator will find an amendment to that effect to be proposed by the Minister.

Senator VARDON - All that I have now is the Bill. Lower down I see an alteration of section 5, which provides that if a witness does not produce the books he shall " be liable, on summary conviction, to a penalty not exceeding £50." It is proposed to delete the words I have quoted, and to substitute the words, "he shall be guilty of an offence." That is followed by another alteration, and the penalty is put down, not at £50. but at . £500. Section 5 of the Act is also to be amended by the addition of the following sub-section -

(2)   It shall be a defence to a prosecution under this section for failing without reasonable excuse to produce any documents, books, or writings, if the defendant proves that the documents, books, or writings were not relevant to the inquiry,

I am sorry to say that, over and over again in our legislation, we have adopted this rule, which has always been looked upon as the exact opposite of the British maxim that a man shall be considered innocent until he is proved guilty.

Senator Findley - That is to be found in more than one Act.

Senator VARDON - I am sorry that it is.

Senator Findley - Are you sorry that it is in the Customs Act?

Senator VARDON - I am sorry in almost every case. There may be one or two cases, perhaps, in the Customs Act where the only proof can be produced by the defendant himself. In this Bill we find a provision requiring a man to prove that the books and documents asked for were not relevant to the inquiry. Why should not the old British rule be maintained, and proof be required that the witness refused to produce books or documents which were relevant to the inquiry? It is only just that a man should be placed in that position. It is bad in principle to put the onus of proof on a man who is under prosecution.

Senator O'Keefe - S - Suppose that the Commission believe that the books will show that the question is material; how can they prove that it is unless the witness is made to produce them ? Have they not a right to call for the books?

Senator VARDON - Clause 6 inserts the following provision in the Act - 6f. A Royal Commission may inspect any documents, books, or writings produced before it, and may retain them for such reasonable period as it thinks fit, and may make copies of such matter as isrelevant to the inquiry, or take extracts from them.

I confess that I do not like the idea of a man having to leave his books and documents in the hands of people like that.

Senator Barker - -Why ? Do you not leave your papers and books with the Judge of a Court?

Senator VARDON - If I were a member of a Royal Commission inquiring into the business of the honorable senator, and I were a competitor with him, would he like me to be in a position to go through his books, and to furnish my mind with all sorts of information?

Senator Barker - But you are now assuming something which will not occur.

Senator VARDON - Am I ?

Senator Barker - Do you mean to tell me that books deposited with a Judge are open to any person to secure information from ?

Senator Millen - This appliesto a Chairman other than a Judge.

Senator Barker - He is in the position of a Judge.

Senator VARDON - I do not see a reference to a Chairman or a member of a Royal Commission. It provides that a Royal Commission may inspect documents, and as a Royal Commission is composed of so many persons, any member of it has the right to inspect books and documents, and to take extracts therefrom. I do not know the members of the Sugar Commission, but

I am told that the business of one Commissioner is considerably affected by the inquiry, and that is the chairman of a jam company which uses a quantity of sugar. When the books of the Colonial Sugar Refining Company are handed over to the Commission, is it right for him to peruse them and take extracts from them?

Senator O'Keefe - D - Do you mean to say that he would break his oath?

Senator VARDON - There is no oath to be broken.

Senator O'Keefe - E - Every man on the Commission is sworn to do his duty.

Senator VARDON - The provision simply says that any member of a Commission has the right to inspect books, to take extracts, and treat them, in any way he likes.

Senator E J RUSSELL (VICTORIA) - There is no such thing as a rival in the jam trade.

Senator VARDON - I said that a member of the Commission, who is chairman of a jam company, and, therefore, largely interested in sugar, will have an opportunity under this clause to go through the books of the Colonial Sugar Refining Company and take extracts. It is not fair that he should be allowed to do that. The members of a Royal Commission should be altogether impartial. No member of the Sugar Commission should be connected with sugar or the sugar industry. The Chairman, who is a Judge, should be able to get the necessary evidence to enable the Commission to arrive at a conclusion.

Senator Barker - You have admitted that the Chairman of the Sugar Commission is a man of honour.

Senator VARDON - Sir JohnGordon is an impartial man, who could extract the evidence and present it to his colleagues, and the Commission could bring up a report founded on the evidence. But when you get men on a Commission who are biased from the start - and, whether it is true or not, that is the complaint which has been made with regard to some members of the Sugar Commission - we are not likely to get justice. It is not fair to put a biased man in a position in which he can examine books and documents in regard to a business which would give him information.

Senator Barker - We hear that accusation of bias hurled at nearly every magistrate on the Bench.

The PRESIDENT - Order !

Senator VARDON - Even the books which a witness is bound to produce under this Bill may contain his trade secrets and methods of doing business which ought to be held sacred to him, and ought not to be interfered with by anybody These are matters in which, I think, the Bill goes a little too far. Of course, I know that it provides that the secrets of a man's trade shall not be revealed; but they are certainly revealed when the members of a Commission have access to his books and take extracts.

Senator McColl - Only a secret process ; not his financial secrets.

Senator VARDON - A man's books may reveal his financial position, and that will be bad for him. There is another provision which seems to be pretty drastic - 6 o. - (1) Any person who wilfully insults or disturbs a Royal Commission, or interrupts the proceedings of a Royal Commission, or uses any insulting language towards a Royal Commission, or by writing or speech uses words false and defamatory of a Royal Commission, or is in any manner guilty of any wilful contempt of a Royal Commission, shall be guilty of an offence.

If evidence is given in a public way it may be reported in the press, and if it is com- *mented upon in any way insulting to the Commission, it may give offence, and if the Commission thinks that it is wrong, what is to happen? Is the person concerned to be taken before a Court? No. The Chairman of the Commission, if he is a Judge of the Supreme Court, or a Justice of the High Court, has the power to deal with the matter straight-away.

Senator Findley - If the words are false and defamatory, why should they not be dealt with?

Senator VARDON - If a man has been guilty of an offence, why should he not be put on trial before his peers, or before a Court in the ordinary way ? A Judge may be sensitive sometimes, and think that he has been insulted, or that something offensive has been said, and then he will have the power of immediately dealing with the witness.

Senator Barker - Why should he mot ?

Senator VARDON - Because he is not in a position to do it.

Senator Barker - Cannot witnesses deliberately do this for the purpose of holding up a Court to ridicule?

Senator VARDON - If they do, who is to try the cases? The Chairman himself, who has already made up his mind.

Senator Barker - Should he not be clothed with power sufficient to maintain the dignity of the Court?

Senator VARDON - I reckon that any Chairman ought to be able to uphold the dignity of the Court. If a man is adjudged to have been guilty of the offence of insulting, or using words false or defamatory of, a Commission, he ought to have the same right to be tried as has another man. The Bill provides that -

If the President or Chairman of a Royal Commission or the sole Commissioner is a Justice of the High Court, or a Judge of the Supreme Court or County Court, or District Court of a State, he shall, 'in relation to any offence against sub-section i of this section committed in the face' of the Commission, have all the powers of a Justice of the High Court sitting in open Court in relation to a contempt committed in the face of the Court, except that any punishment inflicted shall not exceed the punishment provided by sub-section i of this section.

I have known Supreme Court Judges to be so touchy and peppery that one could hardly say a word to them without getting into trouble. I have known Judges in my own State so exceedingly sensitive and impatient that if a man offended them in Court they would be tempted to punish him almost immediately.

Senator Barker - Justices may punish for contempt in the lower Courts.

Senator VARDON - I understand that Senator Barker has sat on a Bench for a great many years, and knows all about the procedure. If he were Chairman of a Commission and thought a witness guilty of contempt, he would, no doubt, be ready to fine him or send him to prison.

Senator Barker - He could not think iti The contempt would need to be obvious.

Senator VARDON - Of course, if Senator Barker said something was contempt, it would be contempt, but men might differ in opinion as to what is contempt of Court. Is it necessary by the introduction of all the proposed new sections included in clause 6 of this Bill to scare people by making provision for these fearful penaltie's? Under this Bill, a fine of ^500, or imprisonment for a year, two 'years, or five years, 'may be imposed. I repeat that the Government appear to have got into a panic in connexion with this matter.

Senator McGregor - The penalties stated in the Bill are maximum penalties.

Senator VARDON - The Vice-President of the Executive Council appears to have the word " maximum " on the brain. Every one knows that these penalties are maximum penalties, and that, although a fine of ^500 is provided for in one case, the Chairman of a Royal Commission may impose a fine of only 500 pence if he thinks it well to do so.

Senator Barker - The Industrial Peace Preservation Bill, at present under consideration in the Queensland Parliament, makes provision for a fine of £I,000 for a less offence than many dealt with in this Bill.

Senator VARDON.That settles it, and it must be right. Why is not a penalty of ^1,000 proposed in this Bill. Senator Barker would have us believe that the Government are exceedingly lenient in the penalties they have provided in this Bill for the punishment of offenders against the law. I see no need whatever for frightening people by making provision for these maximum penalties.

Senator Long - There is an easy way to avoid them - obey the law.

Senator VARDON - I am very much obliged to Senator Long for his interjection. I was always under the impression that the law was for the doer of evil, and for the praise of those who do well. I have known the law to be appealed to in connexion with some industrial matters, and have heard some of my honorable friends in such cases say terrible things about the law. Provision is made in this Bill that it shall be retrospective. It is to apply to Royal Commissions appointed .before it will come into force, but it is, at the same time, provided that it shall not apply to offences committed before that time. I doubt whether it is a good thing to make this kind of legislation retrospective in any way whatever.

Senator Givens - Does the honorable senator believe that any person, no matter how exalted or wealthy, should be allowed to flout a Royal Commission?

Senator VARDON - I do not ; but I say that this drastic legislation has been introduced under the influence of a panic, and because something has happened in connexion with the proceedings 'of a Royal Commission which never occurred in connexion with the proceedings of sixteen or seventeen other Royal Commissions that have conducted various inquiries. It is held that a certain trust has flouted* the Sugar Commission. That may be true, but honorable senators should not forget that the provisions of this Bill will apply to the most innocent people in the world, as well as the trust which has been referred to.

Senator Long - It should apply to them if they adopt the same methods.

Senator VARDON - 1 take it that, generally, the people who will be brought before Royal Commissions will be honest people, prepared to give their testimony in an honest way, and I therefore think there is no necessity for legislation of this kind.

Senator Long - If they are honest, they will have nothing to fear from legislation of this kind.

Senator VARDON - I have already said that those who obey the law have no need to fear it. Trouble may arise somewhere, and a proposal may be made under the law to enforce the law, and, if Senator Long be right, there should be no outcry about it.

Senator -Long.- No, there should not be.

Senator VARDON - If the law is Tor the protection of the just man, and is intended to deter the man who would do wrong, let the principle be applied generally, and I shall be quite content. I believe that our Royal Commissions should be invested with all the powers necessary to enable them to secure the information they are appointed to obtain. I say further that if any one deliberately flouts a Commission he should be punished for doing so. But if there is some other Royal Commission appointed after the Sugar Commission has completed its labours, and some one commits an offence in the face of that Commission, I hope we shall not have another Bill introduced to make provision to meet that offence. That is the course which has been followed in this case. If the Government intend to introduce an amendment of the Act to meet every new offence committed before a Royal Commission, we shall have more panic legislation. I say that the law should be laid down broadly enough to cover all offences that may require to be dealt with, and we should not pass special legislation to meet particular cases.

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