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Thursday, 26 October 1911

Senator ST LEDGER (Queensland) . - I hope to cause the Government to experience some hesitancy in regard to their advocacy of this Bill. It was said of the late President Kruger, by a char- 'acter known as Mr. Dooley, that he ought to have given the franchise to the Uitlanders of the Transvaal, but ought at the same time to have taken care to count the ballot-papers. If he had done that, Mr.

Dooley said, there would have been no war. This Bill is a Dooley-Kruger Bill, or, if not exactly that, it is, at any rate, a pretty big chip off that block. The Government, whether they knew it or not, have brought in a measure the effect of which will be very much what a similar measure drawn up by Mr. Kruger would have been. It is somewhat remarkable that the Bill when introduced by the Minister of Defence was defended by means of a quotation from an official memorandum which, to say the least of it, contained a gross inaccuracy - for which the Minister, not the officials, was responsible. That memorandum as quoted observed that the present Electoral Act under section 32, permitted of a proclamation being issued requiring the preparation of a new roll under a system of compulsory enrolment. If the Minister had referred to section 32 of the Act he would have found the provision to be that new rolls for any polling place, subdivision, division or State - shall be prepared whenever declared by proclamation and in the manner specified in the proclamation or prescribed by the regulations.

A proclamation 01 regulation under an Act can contain no more than the Act itself contains. If a proclamation or a regulation contained things not authorized by the Act, the proclamation would be to that extent invalid and the regulation would be ineffective.

Senator Pearce - The Government have power to prepare rules as prescribed.

Senator ST LEDGER - As prescribed by what?

Senator Pearce - By the regulations.

Senator ST LEDGER - No, the regulations cannot go beyond the Act ; and as the Act does not provide for compulsory enrolment, neither the proclamation nor the regulations could make enrolment compulsory. That that argument is sound as a matter of common sense - as I respectfully submit that it is sound as a matter of law - is proved by the fact that the Govern-, ment have brought in a Bill to make enrolment compulsory. If they could have made enrolment compulsory under the existing law there was no need for this amending Bill. The Minister is on the horns ofa dilemma right away. The very fact that an amending Bill has been brought in to' provide for compulsory enrolment shows at once that the former Act did not provide, for any such thing. The Minister is responsible, but the officials ought to be a little more careful when they submit to a-

Minister an official memorandum containing such a statement. Both Minister and officials ought to submit such a point to the Law officers so as to be quite correct.

Senator Pearce - That was done.

Senator ST LEDGER - Then I can only compliment the Crown Law office upon landing Ministers in a position which, whether as a matter of common sense or of law, amounts to an unanswerable dilemma. I mention this matter, following up the criticism made by the Leader of the Opposition, to show how absolutely necessary it is that the Government should carefully watch its officers and curtail the growing tendency towards beaurocracy. When the Minister of Defence introduced this Bill it was apparent to every one who listened to him1 that he was explaining a measure which was really within the province of an absent colleague. Throughout his most cursory explanation the Minister left important provisions to be further explained by his colleague. Of course, in his usual fashion, every portion of the Bill with which the Minister of Defence dealt was lucidly explained, and his explanation was perfectly intelligible. But it was insufficient. Furthermore, the Minister introducing this Bill exhibited a tendency which has previously been noted - a tendency to make charges against other people unnecessarily. I mention this tendency because it is growing into a habit, or degenerating into a disease, with him. The honorable senator repeats the offence nearly every time he addresses the Senate. Referring to the return required by this Bill in relation to expenses incurred by persons or organizations, he gave reasons why such a return should be furnished, and then threw out an insinuation which was unjustified. He said that a candidate might furnish a return of his election expenses which was absolutely bona fide, but he went on to say that, nevertheless, " in his election proper corruption and fraudulent practices might have been rampant." Where is there the slightest evidence - I will not say proof - that anything which can be stigmatized as corruption takes place in connexion with the elections in Australia, or has been rampant?

Senator Rae - The honorable senator must not expect Parliament to be a Court.

Senator ST LEDGER - That is not the point. My point is that the Minister insinuated that corruption has been rampant by saying, " Notwithstanding that it may have been rampant." There is such a thing as destroying a man's character - and more especially a woman's character - by a shrug, or even by silence, without committing oneself to any definite statement. Personally, so to do is the shabbiest of things; politically, it is contemptible. If there is any reason whatever upon which the Minister's statement is founded, it is the duly of the Government to bring forward their evidence at once. Is there a shadow of evidence for the suggestion that bribery or corruption have been rampant in any election in Australia ? No. Every time any honorable senator opposite has been asked to give a direct instance upon which such a suspicion or charge can be founded, it melts at once into thin air, or flies away into corners, where it is impossible to pursue it. What is the value of this kind of argument ?

Senator Vardon - I call attention to the state of the Senate. [Quorum formed.]

Senator ST LEDGER - Insinuations thrown out in this way can only lead people to think that attempts have been made, either by those on this side of the Senate or by politicians elsewhere, to bribe and corrupt the electors of Australia. I have no hesitation in saying that it is our bounden duty to attack and refute insinuations of that kind. There may be political sins which may be alleged against political organizations in reference to the conduct of elections. Sins of that kind may reveal themselves if one chooses to search for them. But if honorable senators opposite are quite candid, they will admit that those sins lie just as much at. the door of their own organizations as of those who support the Opposition. But they do not justify any such charge.

Senator Rae - What charge?

Senator ST LEDGER - The charge that we want to corrupt or improperly influence the conduct of politics in Australia. I take this opportunity of drawing attention to a matter of which we should all be proud. Apart from, the political parties to which we may belong, we can claim that, as far as the politicians and statesmen of Australia are concerned, and as far as our constituencies are concerned also, they have earned a reputation for incorruptibility, which ought to protect them from such insinuations as those to which I have referred. Charges and insinuations of the kind ought to be suppressed, because they. are in the main unjust to both parties, and can only inflame public opinion unwarrantably. Our object in framing an Electoral Bill ought to be simply to provide an effective political machine by means of which the people of Australia can express their opinions. One of my complaints against this Bill is that it conspicuously seeks to attain its ends, not by direct legislation, but by regulation. Nearly every clause in it refers to things to be determined afterwards " as prescribed " or "by regulation." Indeed, it may be pointed out that the drafting of Bills presented to this Parliament is becoming notorious in these respects. Crucial points of administration closely connected with matters of policy are determined by regulation. Such a practice of drafting must have a powerful influence in determining the form of our legislation - a still more powerful influence in determining administration - and frequently Parliament has to take the whole thing on trust and depend upon regulations of which they have no knowledge during the consideration of the Bill. I should like to say that a very different practice is now being followed in the Queensland Parliament. It has been introduced after repeated requests from members of both political parties, and now, when important measures are under consideration, they are accompanied by the regulations to be proposed under them in a draft form as a supplement to the Bill. In this way, the clauses of a Bill, and the regulations controlling their administration, may be considered together, and members of Parliament are placed in a position to understand how far the regulations, as drafted, will give effect to the policy of the Bill, and how they will influence its administration.

Senator Rae - We should need plenty of time for the drafting of Bills under those conditions.

Senator ST LEDGER - Possibly, it would take some time, but Ministers have at their command the full resources of the Crown Law Department, and the other Departments specially concerned in any measure. The Minister, or the permanent officials of the Department, when submitting to the draftsman the outlines and principles of a Bill, must have a definite idea of the way in which they intend that the measure, if passed, shall be administered. Side by side with the building up of a Bill must go the consideration of the regulations which will lie required to administer it.

Senator Millen - Where the Bill provides that certain things are to be done by regulations, the Minister must know the nature of those regulations.

Senator ST LEDGER - That is so. We have a right to assume that the officers of the Electoral Branch, in submitting their suggestions to the Minister for the framing of a measure of this kind, will have in view the requirements of its administration. If not, they are unfit for the positions they occupy.

Senator Rae - The honorable senator must know that regulations are frequently changed without any alteration of the Act under which they are made.

Senator ST LEDGER - How can .that apply in a case of this kind ? We have an amending Bill introduced giving expression to the principles it is desired to enact with a knowledge that its administration will be based upon certain regulations. The building up of the Bill, and the regulations necessary to administer it, must have been simultaneously in the minds of those who are responsible for it. Senator Rae stands up as an apologist for the neglect to supply some outline of those regulations. How does the honorable senator get over the fact that in the Queensland Parliament the course I suggest is followed ? I do not desire to give the practice of that Parliament any special prominence, and mention it only because I naturally know more about it than about the Parliaments of the other States. There is nothing to prevent the permanent heads of the Department, or the Minister, taking charge of a Bill submitting the regulations upon which its future administration is to be based.

Senator Millen - A skeleton of them might be supplied.

Senator ST LEDGER - We could not expect that they would be supplied in a finished form. Our view of some of the most important features of this Bill must depend entirely upon the form which the regulations for the administration of the different clauses will take. Many of the clauses are in themselves comparatively insignificant as compared to what will appear in the regulations framed to give them effect. One to which I shall refer honorable senators is the proposed new section 32A, sub-section 2, which will be found in clause 7 of the Bill. It provides that -

The regulations shall prescribe anything necessary or convenient to be prescribed for carrying a system of compulsory enrolment into effect.

I do not at this stage propose to consider the necessity for, or the merits of, a system of compulsory enrolment. But the most important feature in connexion with it is certainly the way in which it is to be administered. Senator Millen suggested a way, but that could be only conjecture. The Minister of Defence, in introducing the Bill, did not' suggest any method, and Senator Findley, who was in charge of the Bill, has said very little on the subject. Honorable senators who have spoken from the other . side have given us no light, and yet it will be admitted that a very great deal will depend on the way in which it is proposed to carry out the compulsory enrolment system. I confess that my mind halts on the question as to whether compulsory enrolment is necessary or judicious.

Senator Needham - Does it ever move?

Senator ST LEDGER - That is one of Senator Needham' s characteristic remarks. It is all that the honorable senator appears to be able to rise to when he descends, or ascends, to an interjection. I can understand that the adoption of a card system, or some modification of it, might remove my present objections to compulsory enrolment, but, so far, we have had no explanation of the way in which it is proposed to give effect to the system. If it were on the lines suggested by Senator Millen, some light having been thrown on the subject by Senator Findley, my objections to it might be weakened. There are advantages in the system. My chief objections to it at present are that it would be expensive and irritating, and possibly would be futile after all. Whether it will be expensive or irritating when in practice will depend very largely on how it will be administered. The Bill declares the principle; but the administration will be in accordance with regulations. Surely, on such a matter - when our minds are halting, and some on this side are prepared to accept the principle^ - the Government ought to give us information with respect to the proposed administration which would enable us to make up our minds. The words used in sub-section 2 of the proposed new subsection 32A are -

Anything necessary or convenient to be prescribed for carrying a system of compulsory enrolment into effect. '

There is here another obvious difficulty. What is to be understood by the word "convenient" ? Let me point out that a system which might be convenient and applicable to the circumstances of Victoria or Tasmania, and might be comparatively easy and inexpensive, might be quite inap plicable to such large States as Queensland, Western Australia, or New South Wales.

Senator Millen - What is the convenience to be considered ; that of the public or of the Electoral Office.

Senator ST LEDGER - Exactly. We do not know whose convenience is to be consulted. The Bill is framed, from top to bottom, to suit the convenience of the Department that will be called upon to administer the measure. That would be right enough if that were all we had to consider. But we have to consider also the convenience of the public and the various and varying requirements of the different States. I will mention a reason why I direct attention to this matter, and ask that at least a draft of the regulations shall be presented to honorable senators. In connexion with the last Senate election, one of the officers sent in his voucher to the Department for expenses. He was immediately carpeted. Inquiries and reports were made, and the officers of the Department were absolutely dissatisfied with every explanation of a particular- item of expenditure. The expenditure had been incurred, and the official was asked to come down to Melbourne in order that the authorities here might have the benefit of a personal explanation of the matter from him. He suggested to me that, as I happened to be going to Melbourne, I might look into the matter ; and I did so. The expenditure was incurred for the conveyance of a ballot-box which contained three ballot-papers. The cost of conveying it from the centre of the electoral division to an outside polling place and back to the centre of the division amounted to as much as the total expenditure for the conveyance of similar boxes throughout the whole of the State of Victoria. Naturally, the departmental officials down here seized upon this item, and concluded that the official had been careless in the performance of his duty, or had overlooked an extravagant demand. I pointed out that the box in question had to be conveyed over a distance considerably greater than the greatest distance which could be reckoned in a straight line through Victoria and some distance into New South Wales. 1 plead that, in matters of this kind, honorable senators should have the benefit of the perusal of skeleton regulations to be framed under a measure, in order that they may be in a better position to determine; not only the policy on which it is founded, but the extent to which the administration proposed will give effect to the principles it contained. I refer honorable senators now to clause 8, and the proposed new sub-section 6ie -

In any prosecution in any court of summary jurisdiction in respect of any contravention of any of the regulations - which we have not yet seen - relating to compulsory enrolment, instituted by any officer -

I remind honorable senators that, under the existing Act, "Officer" includes the following: - The Chief Electoral Officer of the Commonwealth, the Commonwealth Electoral Officer for a State, a returning officer, an assistant returning officer, an electoral registrar, a presiding officer, an assistant presiding officer, a doorkeeper, and a poll clerk. These are all officers, and each of them will be able, under this Bill, to institute a prosecution for any contravention of the regulations relating to compulsory enrolment. I confess that, in the circumstances, I should like very, much to see those regulations.

Senator Millen - Would the definition shut out a policeman?

Senator ST LEDGER - I think it would, since certain officers are specifically mentioned in the definition in the existing Act, which it is not proposed to amend by this Bill. It would not, I think, under this Bill, be possible to include a State police officer. That is an opinion cursorily formed, and given for what it is worth. The proposed new section goes on to provide that such a prosecution may be instituted, not only by any officer, but by any person acting under the direction of an officer. I doubt whether the Minister can point to a similar provision in any Act of Parliament. What precedent is there for this? I do not think that even the Customs Act contains such a provision. If my memory serves me correctly, prosecutions under that Act must be instituted with the consent of a Minister or of an officer mentioned in the Act. I doubt whether any Act of Parliament can be referred to in which an officer intrusted with the power of prosecution is allowed to delegate his prosecuting power in such a way. Whether that be so or not, this is an extraordinary provision. Usually such a provision in an Act is accompanied with a condition that the prosecution must be with the consent of the Minister, or some permanent responsible officer of the Department. We have complained that the Government in this measure are not doing much for the extension of the franchise; but they are running amok with the extension of facilities for prosecutions. We should certainly have some further information as to how it is proposed that these prosecutions shall be carried out. Here, again, I think that neither the officials nor the Minister have recognised the varying conditions of different parts of the Commonwealth. Under this Bill, as it stands, it would be possible for a doorkeeper at a polling booth at Boulia to delegate his authority to prosecute some person for an offence against the regulations committed at Windorah; and the alleged offender might be dragged from Roma to Boulia to answer the charge, although he might be a perfectly innocent man. The expense to which he would be put would be enormous; and if the charge against him were dismissed, he would never be able to recover his expenses. It might be said that I am pleading from an extreme case; but it is a case which might occur, and it would be no satisfaction to the man who might be made the victim of an extremely stupid, or even malicious, act, to say that his case was an extreme one, and, on that account, had not been provided for. It ought to be provided for. When Parliament is asked to give this power to officials, it should be told precisely how it is to be used and administered. Another very important amendment of the Act is the one which deals with regulations, and which is embodied in clause 17. It prescribes the making of regulations for any elector, who on polling day, will not be within any electoral division, to vote before any Electoral Registrar at any time after the issue of the writ and before polling day, subject to making the prescribed declaration. It has been pointed out more than once from this side, and it was practically admitted by the Minister of Defence when he introduced the Bill, that very wide powers are given in this clause which makes provision for absent voting. That statement is not cavilled at, but it has been pointed out that, in the circumstances, the Ministry intend that any person may vote at any polling-booth in the Commonwealth, whether he is in the divi-sion in which he lives or not.

Senator Pearce - There are some persons who are at sea.

Senator ST LEDGER - I can undersand that; but what about those persons who will not be at sea? The provision which is made for the former class, and with which I entirely agree, is quite different, because it requires the seamen to go before an Electoral Registrar of his State, to say he thinks that he will be outside the Commonwealth, and to record his vote. I hope that we shall be afforded an opportunity to see the regulations on this point.

Senator Millen - TheBill is specific on one point, and that is that there has to be a declaration.

Senator ST LEDGER - Yes, but not in regard to the man who is on land, for he may vote at any polling booth in the Commonwealth and for his own division.

Senator Pearce - He has also to vote on a form.

Senator Millen - The Bill does not say so.

Senator ST LEDGER - He has to vote on the form prescribed, but not to make a declaration. The very fact that he can vote anywhere outside his division isa reason why the form should be prescribed in the Bill. Parliament is surely entitled to this information. Unless the form is prescribed, any corruption or improper conduct which has happened will be but a small circumstance compared with that which may occur under this provision. Why cannot the Minister let us have a skeleton of the regulations? I should say, from its style, that most of the forms accompanied the Bill when it was under discussion in Cabinet. We are all familiar with the forms which are prescribed in the principal Act ; but this Bill proposes a new and important departure. The forms and regulations under which it will be carried out are everything. No one objects to give facilities and opportunities to vote to every person in the Commonwealth, apart from the question of whether he is inside or outside his division. The all-important point is : How is the provision to be administered ? Take the " Q " form, with which we are familiar. An applicant has to identify himself when he is outside his subdivision, and even when he is in it, and so the form prescribes. He has to set his handwriting to the form as a further safeguard, and it he is too weak to sign his name he has to make a mark in front of an officer, and a declaration, which is set out clearly in the Act, has to be made. Parliament has, I contend, the right to sec the safeguards intended to prevent any abuse of the extended facilities. Another clause to which I intend to refer shows the necessity of submitting the regulations. I cannot understand why it is included in the Bill at all. and I hope that the Minister will furnish an explanation. I think it must have escaped his observation. Proposed new section 139 a empowers the Department to define by regulation the grounds on which the ballot-papers of absent voters are to be rejected as informal. That power should, I think, be left tothe Court. I am not aware that in any other Act the power of declaring a ballot-paper formal or informal has ever been controlled by regulation or defined by the Electoral Department. In all Electoral Acts, State and Federal, the form of the ballot-paper is prescribed. It indicates certain formalities which the elector has to observe. It prescribes, as a rule, exactly what the ballotpaper shall contain, and provides thatany mark or writing on the ballot-paper shall have the effect of making it informal. But in this case the Electoral Office seems to be going further. It is left to the officials by regulation to determine when a ballot-paper shall be informal. What may happen if the regulations prescribe hardandfast conditions which, if not complied with, may make a ballot-paper informal? When that informality comes to be contested, the Court may be driven to consider the regulations only, and whether the elector has conformed with them or not. It may bind the candidate disputing down to the regulations rather than consider what was the intention to be gathered by the marks placed on the ballot-paper. It seems to me to be asking for a rather large and unusual extension of departmental powers when it goes so far as that. I ask leave to continue my remarks on a future day.

Leave granted ; debate adjourned.

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