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Friday, 22 November 1912


The TEMPORARY CHAIRMAN - I have to inform the honorable senator that his amendment is not applicable to the portion of the clause now under consideration by the Committee.


Senator Millen - We are now dealing with an amendment to insert after the word " Australia " the words "or to act as pilots for any port at which pilotage is not compulsory under this Act," and there is a distinct connexion between that amendment and the amendment suggested by Senator Guthrie. I am satisfied that, so far as the Standing Orders permit, you, sir, will allow honorable senators to discuss the amendment suggested by Senator Guthrie as an addition or alternative to the amendment of the House of Representees. We may be prepared to accept the House of Representatives' amendment if the words suggested by Senator Guthrie are added ; and if honorable senators are not prepared to accept Senator Guthrie's suggestion, they may then feel disposed to reject the amendment made in another place.


The TEMPORARY CHAIRMAN - Senator Guthrie has proposed to insert his amendment in a part of the clause which is not now before the Committee, and it would not be in order in its present form if moved as an amendment upon the part of the clause which is before the Committee.


Senator Millen - I recognise that, but Senator Guthrie did not submit his amendment until you, sir, called upon him to do so.

The TEMPORARY CHAIRMAN.I did not call upon the honorable senator to do so, but informed him that I could not allow him to discuss it until it was submitted. I could not say whether it was in order until it was submitted1.


Senator Millen - Senator Guthrie is putting forward his suggestion as a way out of the difficulty. The amendment of the House of Representatives might be accepted if the objection to it were removed by the adoption of that suggested by Senator Guthrie, and to that extent I submit that a reference to it would be entirely in order.

The TEMPORARY CHAIRMAN.Senator Guthrie's amendment could only be attached to the amendment now before the Chair if it were preceded by the word " and ".


Senator Pearce - Has Senator Guthrie indicated where his amendment is to be introduced ?

The TEMPORARY CHAIRMAN.There is no indication on the written statement of the amendment handed1 in to the Chair.


Senator Pearce - I submit that the amendment cannot be accepted. The motion before the Chair is that the House of Representatives' amendment be agreed to. How is it possible to attach. Senator Guthrie's amendment to that motion ?

The TEMPORARY CHAIRMAN.I have already intimated to Senator Guthrie that I think his amendment would be in order if it were preceded by the word1 " and ". The House of Representatives have amended the clause by inserting after the word "Australia" the words " or to act as pilots at any ports at which pilotage is not compulsory ". I think that Senator Guthrie might submit his amendment as an addition to those words if it were preceded by the word " and ".


Senator Guthrie - I am prepared to accept that suggestion.


Senator Pearce - Before Senator Guthrie's amendment is accepted in that way, I wish to raise a point of order. My point of order is that the amendment is not relevant to the subject-matter of the clause now before the Committee. If you, sir, will refer to clause 331, you will find that it provides that -

The Governor-General may proclaim the ports at which the employment of a pilot shall be compulsory. (2.) At any such port the pilotage shall be performed by a pilot in the Public Service of the Commonwealth.

I submit that that is the clause of this Bill which deals with the employment of pilots in the Public Service of the Commonwealth. The object of Senator Guthrie's amendment is to make it obligatory on the Government to take over and employ in the Commonwealth Public Service certain licensed pilots. The clause we are now dealing with has no reference whatever to pilots in the Public Service of the Commonwealth, but only to licensed pilots. It reads - (1.) The Minister may subject to the regulations license persons (in the Act called licensed pilots) to conduct ships from one port to another in Australia.

It does not deal with coastal pilots or pilots in the Public Service, and I therefore submit that Senator Guthrie's amendment is not relevant.


Senator Lt Colonel Sir Albert Gould - The amendment of the House of Representatives inserts after the word " Australia " the words "or to act as pilots at any port at which pilotage is not compulsory under this Act." Senator Guthrie desires to add to those words other words which would provide that licensed pilots already operating in ports which, under this Bill, may be proclaimed compulsory pilotage ports, shall be taken over as public servants of the Commonwealth. Suppose a port where there is no compulsory pilotage to-day, and that it is made a compulsory pilotage port. The pilots there would become public servants, because it is only intended to have public servants at such ports. I submit that Senator Guthrie's proposal is necessary in order to protect those persons who are pilots at present. I think the suggestion of the Chairman that the proposed words should be put in as an addition would meet the requirements. During the consideration of this matter, we have gone so far as to amend another clause in the Bill because of an amendment made in a clause amended by the House of Representatives. The Minister said that he proposed to accept that amendment, provided an addition were made to another clause. No objection was raised to that procedure. Now we are only proposing to amend the very clause which is under consideration, and to make an addendum to it which would induce many honorable senators to accept the amendment submitted by the other Chamber. I submit, therefore, that it is competent for the Committee to consider the amendment.


Senator Millen - I direct attention to standing order 219, which, I think, make* very clear the very wide measure of liberty given to this Committee in dealing with amendments that come from another place. The standing order reads -

No amendment shall be proposed to an amendment of the House of Representatives that is not relevant thereto; nor can an amendment be moved to the Bill unless the same be relevant to, or consequent upon -

I direct attention to those words " or consequent upon " - either the acceptance, amendment, or the rejection of a House of Representatives' amendment.

It is quite clear from that standing order that whilst the amendment might not have been in the first instance strictly relevant to the subject-matter of the clause, still, something has been introduced by the other Chamber affecting, not merely the technical construction of the clause, but the whole effect of it, and its whole effect on the Bill. It is impossible to take a brick out of a wall without having an effect upon the whole structure.


Senator Pearce - Unfortunately for the honorable senator the whole structure is not now before us.


Senator Millen - We have a right to ask ourselves whether this amendment does not open up an entirely different position, and whether we are not, therefore, at liberty, not merely to accept or reject the House of Representatives' amendment as it stands, but to insert a proviso as a preliminary to accepting it. I submit that the amendment that Senator Guthrie has proposed is consequential to a consideration of the amendment of the other House and that we ought to be at liberty to consider it.


Senator Vardon - I think that the addendum proposed by Senator Guthrie is quite relevant to the clause. Certain alterations have been made in the Bill affecting pilots. All that Senator Guthrie is endeavouring to do is to protect the interests of those men who are taken into the Commonwealth service. I hope that the Minister will not endeavour to defeat the amendment by a technicality. We ought to consider it from the point of view of the justice of the case. We know that it is quite possible for a Department to be taken over by the Commonwealth and for its officers to receive very scurvy treatment, as was the case with the South Australian post and telegraph officers.

The TEMPORARY CHAIRMAN.The honorable senator is not entitled to allude to that matter.


Senator Vardon - It is a very strong argument to show that the interests of those taken over should be protected. The amendment appears to me to be relevant, and one that ought to receive fair consideration from the Committee. Personally I am prepared to give it my strong support.


The TEMPORARY CHAIRMAN - I have considered this matter in the light of the arguments put forth on both sides. I feel that I am compelled by the Standing Orders, though very reluctantly, to rule in favour of the view given by the Minister of Defence. I say " reluctantly " because I recognise that no opportunity has been given to honorable senators to consider clause 331 of the Bill, upon which the amendment would have been distinctly relevant.


Senator Pearce - That clause was considered when the Billwas before us.

The TEMPORARY CHAIRMAN.Yes, but we are now dealing with the Bill as reviewed and revised by the House of Representatives. Having to do that, we are placed in a new position. I think that it is a pity that under the Standing Orders I am compelled to give my ruling against Senator Guthrie's amendment and in support of the view submitted by the Minister of Defence - that the amendment is not strictly relevant to the amendment of the House of Representatives which we are now discussing. I say again that I give that ruling reluctantly.


Senator De Largie - Why " reluctantly," when you are obliged to follow the Standing Orders?

The TEMPORARY CHAIRMAN.Yes, but I regret that I have to do it, because this Committee has had no opportunity of dealing with clause 331, under which the amendment would have been relevant.


Senator Millen - May I ask, for future guidance, whether I understand you to say that the amendment would be in order at some other time?

The TEMPORARY CHAIRMAN.I can only give a ruling on this amendment.


Senator Millen - With very great reluctance I feel called upon to dissent from your ruling. I will state my objection in writing.

In the Senate:

The Temporary Chairman of Com mittees. - Mr. President, I have to report that during the proceedings in Committee I gave a ruling concerning which Senator Millen has handed me the following notice of objection : -

That the ruling of the Temporary Chairman, Senator Givens, disallowing, the following amendment submitted by Senator Guthrie on clause 333 of the Navigation Bill, be objected to : - " On any port being proclaimed a port at which pilotage is compulsory all persons holding licences from any State Act as pilots of that port shall become officers of the Commonwealth Public Service."

I ruled, somewhat reluctantly, that Senator Guthrie's amendment was out of order, because it was not relevant to the amendment of the House of Representatives which the Committee was discussing. Clause 333 of the Navigation Bill, on which an amendment had been made by the other Chamber, has reference only to the licensing of coasting pilots, and, in my opinion, has nothing whatever to do with the employment of pilots in the Public Service; nor has it any relation to those ports in which pilotage will be compulsory. In fact it goes further and prohibits coastal pilots, where pilotage is not compulsory, from having anything to do with ports where pilotage is compulsory. I further ruled that the amendment was not in order on the ground that such an amendment, if moved at all, could only have been relevant to clause 331 of the Bill,, which was not then under discussion, and which dealt with compulsory pilotage and with the employment of pilots who were officers of the Public Service. Senator Millen has dissented from my ruling, and I have much pleasure in leaving the matter for your decision.


Senator Millen - I wish, first of all, to direct your attention, Mr. President, to standing order 219. I do so because the ordinarily observed rule as to amendments being strictly relevant is in that standing order varied in a direction that necessarily, and I think for obvious reasons, widens the range of discussion. Standing order 219 reads as follows: -

No amendment shall be proposed to an amendment of the House of Representatives that is not relevant thereto.

If the standing order stopped there, I should admit that the decision of the Temporary Chairman was unchallengeable. But it does not stop there. I think you will observe from what I am about to quote, not merely that there is an addition, but that there is a qualification in the direction of enlarging thepower of discussion, and necessarily the making of amendments upon amendments of the House of Representatives. The standing order continues - nor can an amendment be moved to the Bill unless the same be relevant to or consequent upon either the acceptance, amendment, or the rejection of a House of Representatives' amendment.

That phrase "consequent upon" is entirely different from " revelant to," and suggests that we are entitled under the Standing Orders to take the view that where an amendment is made by the other House, which viewed in a technical sense would require either a negative or an affirmative decision from the Committee, we are entitled to consider an amendment upon that amendment, realizing that animportant amendment must have an effect upon the structure of the Bill itself. I submitted to the Temporary Chairman of Committees that the amendment made by the other House might be likened to taking a brick out of a wall. It would be absurd to say that we can only deal with the removal of the one brick. We have a right to consider the effect the removal is likely to have upon the wall of which it forms a part.


Senator Givens - We can only deal

Avith amendments that come from the other House.


Senator Millen - But we are entitled to make amendments which are " consequent upon " amendments made elsewhere. Just as the effect of removing one brick from a wall may be so to weaken the structure that wehave to put in iron bolts and to underpin it, so we may have to make amendments in a Bill before us, in order to make allowance for amendments made elsewhere. Having dealt generally with what I conceive to be the rights of the Committee under the standing order, I want to deal with the amendment itself in its relation to clause 333. The Committee was engaged in considering an amendment which inserted in the clause the words "or to act as» pilots in any port at which pilotage is not compulsory." Those words have reference to the issue of licences to pilots who are to be intrusted with pilotage duties in ports where pilotage is not compulsory. It was useless for the Committee to ask whether or not it was favorable to the issue of licences unless it could also consider the "rights and privileges conferred by the licences. We have to turn to clause 335 to ascertain what is to be done in regard to these licences. Taking the two clauses together, it is proposed that the Commonwealth shall issue a licence to pilots to act in non-compulsoTy ports, or, where licences are in existence to-day, renew them under Federal authority. In the port of Melbourne, and perhaps in other ports, there are licensed pilots who are not Government employes, but act under licences issued by the Government. Under this clause and the one to which I have just referred, licences will be issued by the Commonwealth to these men, but as Melbourne will be a compulsory port, by the addition of these words we would say to the present holders of State licences, " Although we provide for the issue of a Federal licence to you,we shall not allow you to use it," because under the clause the licences are only to be issued in respect to ports which are not compulsory. That being so, we have to accept the words of the amendment from the other House, or to reject them, or to accept them with an addition. The object of the addition to the amendment is to safeguard existing rights. Can it be said that the words are unconnected with, or irrelevant to, or have no bearing upon, the words which the Committee is asked to add ? Suppose, for instance, that two men are bargaining about a horse, that the intending purchaser offers £20, and that the vendor says, " I want £25." And suppose that the would-be purchaser says to the vendor, " If you will throw in the saddle and the bridle I will give you £25." Will any one say that the saddle and the bridle are not relevant to the deal ? Now, the other House has made an addition to clause 333, and we say that we are prepared to accept that amendment with the addition of certain words. I submit that any alternative condition that we like to put in asa reason for the acceptance of the proposal from the other House must be in order.


Senator Pearce - Senator Millen has contended that the concluding words of standing order 219, " nor can an amendment be moved to the Bill " widen the scope of the Committee's power.


Senator Millen - No; "consequent upon " were the words I quoted.


Senator Pearce - The standing order reads -

No amendment shall be proposed to an amendment of the House of Representatives that is not relevant thereto ; nor can an amendment be moved to the Bill unless the same be relevant to or consequent upon either the acceptance, amendment, or the rejection of a House of Representatives' amendment.


Senator Lt Colonel Sir Albert Gould - It may be either " relevant to " or " consequent upon."


Senator Pearce - Senator Millen tried to induce you, sir, to take the view that the words " nor can an amendment " widen the scope of the power of the Committee. Were that the intention, the framer of the standing order would not have used the words " nor can," but the word " but," or the words " provided, that." The use of the words "nor can" indicates a still further prohibition.,

Again, Senator Millen misread the standing order. The first part of the standing order deals with an amendment of the other House, but the second part deals with an amendment which we can make, not upon the amendment of the other House, but upon the Bill. The honorable senator did not stress the word " Bill." My contention is that we can do one of two things. We can amend the amendment of the other House, but our amendment must be relevant to the subject-matter of their amendment, or we can amend another portion of the Bill, as we have already done, on the ground that the amendment is consequential upon our acceptance or rejection of the amendment of the other House. In the previous case, we have an amendment of the other House to a certain clause. There was another clause which was not amended by the other House, but which was affected by the amendment with which we were dealing, and the latter portion of standing order 219 deals only with that class of cases. Consequent upon our acceptance or rejection or amendment of an amendment of the other House we are entitled to amend a clause with which that House has never dealt. That is what the latter part of standing order. 219 means, and I think that no one knows that better than does Senator Millen. Clause 331 deals with two points, namely, the question of compulsory pilots as dis. tinct from licensed pilots,' and, secondly, with the question of what pilots shall be in the Public Service of the Commonwealth. Before the Bill was sent to the other House the Senate was entitled to say that licensed pilots under certain conditions should come into the Public Service of the Commonwealth, but it did not avail itself of that opportunity. We have now to deal with clause 333, only so far as it has been amended by the other House. Here we find two limitations. First, the clause does not deal with compulsory pilots at all or with the Public Service of the Commonwealth, but simply with licensed pilots. The amendment of the other House deals with neither of those points, but only with the name of the licensed pilots, that is with the question of whether they shall be called "coastal" or "licensed" pilots. As regards the other limitation the clause simply lays down what a licensed pilot may do. Neither the clause nor the amendment deals with compulsory pilotage, but solely with licensed pilots, but Senator

Guthrie's amendment deals with twothings. It says, in effect, that the Commonwealth shall make licensed pilots compulsory pilots, and take them, into itsPublic Service. The amendment cannot,. I contend, be held to be relevant either to the amendment of the other House or to the clause with which we are dealing, nor can we under the latter part of standing order 219 amend clause 331, which deals with both those matters, because it is not relevant to our acceptance or rejection or amendment of the proposal of the other House, which deals entirely with licensed pilots. For these reasons, sir, I think that you should uphold the ruling of the Temporary Chairman.


Senator Lt Colonel Sir Albert Gould - The point which Senator Millen, strongly emphasized was that an amendment may be moved which is consequent upon our acceptance or rejection or amendment of a proposal of the other House. Let us assume, for the sake of argument, that we had decided to omit from the amendment of the other House the words- " port at which pilotage is not compulsory," so that the clause would read -

The Minister may, subject to the regulations,, licence persons to conduct ships from one port to another port in Australia, or to act as pilotsfor any port in Australia.

Then it would have been necessary to see whether, consequent upon that alteration, another clause of the Bill ought to have been amended, and we could haveamended clause 331, which reads as follows^ - (1.) The Governor-General may proclaim theports at which the employment of a pilot shaft be compulsory. (2.) At any such port the pilotage shall be performed by a pilot in the Public Service of the Commonwealth.

We could have amended sub-clause 2 by providing that at any such, port the pilotage should be performed by a licensed pilot. That amendment would have been consequent upon an amendment which we had made in clause 333. I submit that we can adopt Senator Guthrie's amendment as being consequent upon our acceptance of the amendment from the other House, just as we are entitled at the present moment to alter the, words " or to act as pilots for any port at which pilotage is not compulsory." We can so alter that provision as to enable these persons to act as pilots for any port within the Commonwealth. If we can do that we can turn to the other clause, and provide, by omitting certain words and adding a word, that at such ports the pilotage shall be performed by licensed pilots. If we can make a consequential amendment in that way, can we not make an amendment in the straightforward way proposed by Senator Guthrie? We want not simply to leave it within the power of the Minister to do this thing whether he likes it or not, but to provide that pilots who are now licensed by States may act in ports in which pilotage is made compulsory. We want to provide that licensed pilots shall continue to act as they have hitherto done.







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