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19011106_senate_1_5.xml
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19011106_senate_1_5.xml
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<hansard xsi:noNamespaceSchemaLocation="../../hansard.xsd" version="2.1" xmlns:xsi="http://www.w3.org/2001/XMLSchema-instance">
<session.header>
<date>1901-11-06</date>
<parliament.no>1</parliament.no>
<session.no>1</session.no>
<period.no>0</period.no>
<chamber>SENATE</chamber>
<page.no>6838</page.no>
<proof>0</proof>
</session.header>
<chamber.xscript>
<para class="block">Senate. </para>
<business.start>
<day.start>1901-11-06</day.start>
<para>The President took the chair at 2.30 p.m., and read prayers. </para>
</business.start>
<debate>
<debateinfo>
<title>PETITIONS</title>
<page.no>6838</page.no>
<type>petition</type>
</debateinfo>
<para>
<inline font-weight="bold">Senator CHARLESTON</inline>presented a petition from nine electors of the State of South Australia and members of the Legislative Council thereof, praying that the Senate would reject the Matrimonial Causes Bill. </para>
<para>Petition received and read. </para>
<para>
<inline font-weight="bold">Senator CHARLESTON</inline>presented similar petitions from sixteen electors of South Australia and members of the House of Assembly, from six electors of South Australia and from two citizens of South Australia being members of the Society of Friends. </para>
<para>Petitions received. </para>
</debate>
<debate>
<debateinfo>
<title>PAPERS</title>
<page.no>6839</page.no>
<type>papers</type>
</debateinfo>
<para>
<inline font-weight="bold">Senator DRAKE</inline>laid upon the table </para>
<para>Minute by the Prime Minister to the Governor </para>
<para>General in reference to preferential duties of customs in Canada. </para>
<para>A despatch, dated 17th May, 1901, from the Secretary of State for the Colonies to the GovernorGeneral, with enclosure. </para>
<para>Ordered to bo printed. </para>
</debate>
<debate>
<debateinfo>
<title>ASSENT TO BILLS</title>
<page.no>6839</page.no>
<type>bill</type>
</debateinfo>
<para>Royal assent to the following Bills re ported - </para>
<quote>
<para>Service and Execution of Process Bill. </para>
<para>Supply Bill (No 4). </para>
</quote>
</debate>
<debate>
<debateinfo>
<title>ELECTIONS AND QUALIFICATIONS COMMITTEE</title>
<page.no>6839</page.no>
<type>miscellaneous</type>
</debateinfo>
<para>Saunders <inline font-style="italic">v.</inline> Matheson. </para>
<speech>
<talk.start>
<talker>
<page.no>6839</page.no>
<time.stamp />
<name.id>10000</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">PRESIDENT, The</name>
<name role="display">The PRESIDENT</name>
</talker>
<para>- Before <inline font-weight="bold">Senator Glassey</inline> moves the contingent notice of motion which, I understand, he is about to do at the request of <inline font-weight="bold">Senator Symon,</inline> I think I ought to state to the Senate that I have been considerably exercised in my mind as to whether <inline font-weight="bold">Senator Downer, chairman</inline> ofthe committee, who is in charge of the order of the day, ought or ought not to have priority with his contingent notice of motion. But inasmuch as I am informed that he has no objection to the contingent notice given by <inline font-weight="bold">Senator Symon</inline> being taken first, I am relieved of that difficulty, and therefore I call on <inline font-weight="bold">Senator Glassey.</inline></para>
</talk.start>
</speech>
<speech>
<talk.start>
<talker>
<page.no>6839</page.no>
<time.stamp />
<name.id>KLW</name.id>
<electorate>Queensland</electorate>
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">GLASSEY, Thomas</name>
<name role="display">Senator GLASSEY</name>
</talker>
<para>- I move - </para>
</talk.start>
<quote>
<para>That the petition against the return of <inline font-weight="bold">Senator Matheson</inline> be not further entertained. </para>
</quote>
<para>I regret, as I am sure every honorable senator does, that <inline font-weight="bold">Senator Symon</inline> is unable to be present to move this motion. I believe that I express his sentimentwhen I thank <inline font-weight="bold">Senator Downer</inline> for the very courteous position which he has taken up. It is also due to <inline font-weight="bold">Senator Downer</inline> to say that, throughout the proceedings of the Elections and Qualifications Committee, he was uniformly courteous and considerate to his fellow members. I am only doing my duty in putting on record this acknowledgment of his urbanity and courtesy in the chair. I desire to correct a misstatement which has been made in the press that members of the committee have taken strong political sides. I do not believe that any honorable senator has been actuated by political bias. I cannot be charged with political bias, inasmuch as the opinions of <inline font-weight="bold">Senator Matheson</inline> and myself on some political questions are as wide asunder as are the poles. Having met him on several occasions, not only in the Senate, but in the old Federal Council, I know that he is a very strong free-trader, and, as I take the opposite side of the fiscal question, I cannot be charged with being biased in favour of him. In the inquiry, I took the course which my judgment and conscience dictated to me as correct. Iconsiderthatthemajority of the committee have all along taken the correct view - namely, that the petitioner had been negligent in the presentation of the petition, and that, inasmuch as he had not complied with the conditions of the procedure which ho adopted, he was out of court. <inline font-weight="bold">Senator Matheson</inline> ought therefore, in all fairness, to be allowed to take his seat in the Senate. This is a matter to which I gave some thought and consideration while I was a member of the committee, and some time ago I moved accordingly. Therefore, this is not a new proposal so far as I am concerned. I hope that the Senate will adopt the motion and that the sitting member will consequently be entitled to take his seat. When this question was before the Senate on the 24th J uly last, I regretted verymuch that I was notable to be present. I communicated with the Vice-president of the Executive Council witha view of having the subject postponed, if possible, until I was able to be present. Unfortunately, circumstanceswere such that the honorable senator could not comply with my wish. I thank the honorable senator who paired with me on that occasion, so that my vote was not really lost. The elections for senators in the State of Western Australia, as in some of the other States also, took place on the 29th March of this year. I presume that the elections in that State, as was the case in the other States, were conducted in accordance with the existing law of the State. Therefore, if any dereliction of duty occurred on the part of any candidate, or if he violated any law, he must necessarily have violated the law of his own State. I am not aware that there is any other law under which the elections could have been held <inline font-weight="bold">Senator Matheson</inline> was elected at that particular time. I understand that some time elapsed before the actual declaration of the poll was made, but that does not alter the fact that he was duly elected on the 29th March. If <inline font-weight="bold">Senator Matheson</inline> violated any provision of the law of Western Australia, surely there was sufficient time for the petitioner and his friends to take any action which they deemed advisable, and to lodge a petition in due form and in due time in accordance with the practice which was ultimately adopted by- them. It is alleged in the petitioner's behalf that <inline font-weight="bold">Senator Matheson</inline> was guilty of bribery and illegal practices, that he used undue influence in promising certain persons sums of money for supporting his candidature, and that he or his agent gave to <inline font-weight="bold">Mr. Croft,</inline> the Secretary of the Political Labour Party and the Trades and Labour Council of Western Australia the sum of £50. These are the charges which are alleged against the sitting member. If they were proved, then undoubtedly <inline font-weight="bold">Senator Matheson</inline> would have some difficulty in retaining his seat. Indeed, speaking as a person who has had considerable experience in political matters, and in the conduct of elections, I say that if these charges were proved or could be proved, the sitting member, would not bo entitled to retain his seat. Petitioner Saunders, after a long delay, which is inexcusable, took action under the law and practice of Western Australia. He did so of his own free will. I presume that he waa' advised by his legal advisers to take that course. At any 'rate, he voluntarily elected to proceed under the Western Australian law and practice. Therefore, it was most natural that, inasmuch as he was advised to adopt that procedure, he should of course and of necessity have complied with the provisions of the Western Australian Act. "Under that law, a certain course has to be taken, and certain rules must be adhered to, before a petition can be heard. The question arises - did the petitioner comply with those rules and provisions under which he and his legal advisers choose to proceed <inline font-style="italic">t</inline> I contend that he did not. Some honorable senators have contended that he did all that he was capable of doing. I contest that statement. That is the view I have taken all along, and my position is strengthened by the evidence given by the Clerk of this </para>
<para class="block">Senate in accordance with the resolution passed by the Senate on the 25th July last. When this matter was before the Senate on the previous occasion, it was said that the petitioner had done all he could to get a hearing. Let us see how far that is the case. Sections 146 of the Western Australian Act lays down certain rules to be followed. Those are the provisions under which the petitioner elected to proceed - I presume in accordance with the advice he received from his legal advisers. Those rules lay it down, first, that there shall be a petition, and, secondly, that the petition shall be addressed to the House affected, and presented by a member or left with the Clerk within 40 days after the return. Further, it is laid down that the petition shall be signed and attested, and, fourthly, that it shall be accompanied by a deposit of .£50. It has been alleged that petitioner Saunders complied with every one of those conditions, and that that is all he had to do and could do. How very innocent the petitioner was ! So the allegations made in his favor would lead us to believe. But I do not agree that the petitioner was so innocent ; and certainly I do not believe that his advisers were either innocent or ignorant regarding the law. There was no innocence in their conduct in the petitioner's case, but an exceeding lack of activity and vigilance. For that lack tho petitioner was entitled to pay the penalty, and not the sitting member. Of course the petitioner and his advisers had before them all the rules with which they had to comply. It has been contended that so soon as the petitioner left the petition with the Clerk he had done his duty. That is the whole point. I think <inline font-weight="bold">Senator Sargood</inline> went so far as to say on the last occasion that it was 'not the duty of the Elections and Qualifications Committee to enquire whether all the rules of procedure had been complied with, but to go on with the case. Nothing in the instructions given by the Senate could be taken to have that effect. The Senate gave certain instructions to tha committee, who very justly and properly found that, inasmuch as the rules adopted by the petitioner had not been complied with, the petition should not be further considered. In deference to the resolution passed by the Senate on the 25th Jul}-, the committee made further investigations, and exercised, so far as they were capable of exercising, all the care they could in endeavouring to obtain evidence, with the view of presenting their report to the Senate. They examined the Clerk of this Senate as to whether the petitioner had complied with all the rules with which he was bound to comply, and whether he was the innocent person some honorable senators would have us believe. I will take the liberty of reading the evidence tendered by the Clerk as to whether the petitioner and his friends actually were in a state of innocence, and whether they knew what action had to be taken, not only with regard to the lodging of the petition and having it signed and attested, and with regard to the deposit of £50, but also with regard to the time when the petition should be presented, and as to its presentation by a senator. The petition was presented to the Clerk, and, in so presenting it, the petitioner and his advisers were perfectly cognisant of what had to be done, in addition to the fulfilment of the conditions to which I have referred. The Senate met on the 9th May, but the petition was not presented to the Clerk until the 23rd May. The majority of the committee, after hearing the evidence of the Clerk, presented their report, together with the reasons for the position taken up by them. By so doing, they vindicated this Senate and the Clerk against any implicit charge of negligence on their part. It cannot be contended that the Clerk was to blame or that the Senate was to blame. The only person to be blamed, and the person who should suffer, is the petitioner himself. Surely it is wrong and manifestly unjust that the sitting member should be harrassed, and put to enormous expense in view of the fact that the neglect to which I have referred rests entirely with the petitioner. In Parliamentary practice nothing is more strongly insisted upon than rigid adherence to the conditions as to time in the lodging of a petition. No blame attaches to the sitting member, and he ought to be held innocent untilhe is proved guilty. From my own experience in connexion with election petitions - which goes back as far as1880, when in the town of Lichfield, I had something to do with the unseating of a member - as well as from reports I have read of proceedings on petitions in the English courts the utmost vigilance is insisted upon on the part of a petitioner. If any concession is to be made it should be given to the sitting member, and particularly to the State which has suffered the loss of one representative in the Senate for months past. The Senate met on the 9th May. The petitioner was here on the8th of May, but he did nothing for a fortnight. The petition was not even signed until 23rd May, 35 days after the return of the sitting member, and onthe verge of the 40 days' limit. On 23rd May, it was taken to the Clerk of the Parliaments, <inline font-weight="bold">Mr. Blackmore,</inline> who never regarded the lodging of it with him as equivalent to its presentation to the Senate. Nor did the petitioner regard it in that way. <inline font-weight="bold">Mr. Blackmore</inline> was examined before the committee on the 15th August, and gave evidence as follows : - </para>
<interjection>
<talk.start>
<talker>
<page.no>6841</page.no>
<time.stamp />
<name.id>K7V</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">SYMON, Josiah</name>
<name role="display">Senator Sir J H Symon</name>
</talker>
<para>- You have the original petition against the return of <inline font-weight="bold">Senator Matheson</inline> ? -Yes. </para>
</talk.start>
</interjection>
<para>Do you see the indorsements on the printed petition ? - I am satisfied that the indorsements are correct. </para>
<para>When was the petition left with you? - On the 23rd of May of the present year. </para>
<para>Who left it with you ? - It was brought in by two gentlemen who, at the time, were unknown to me. I believethey were <inline font-weight="bold">Mr. Saunders</inline> and <inline font-weight="bold">Mr. Ward.</inline></para>
<para>You mean <inline font-weight="bold">Mr. Saunders,</inline> the petitioner ? - I believe he was one of them. </para>
<para>Some statements were made, and some discussion took place in the Senateduring the recent debate on this subject, as to what took place between yourself and these two gentlemen when the petition was left with you. Will you kindly tell the committee what did take place ? - Two gentlemen entered the room which I was then occupying, and came to the desk where I was writing, and said - " We have a petition to lodge with you." I said - "Certainly." It is a common thing for honorable members to leave petitions with me, so that I may hand them to them in the Senate when they are wanted. They said - "This is a petition referring to a disputed return which will be challenged," and they referred me to a section of the Constitution, and said that it had to be presented under conditions prescribed by the law in Western Australia, the Commonwealth not having yet provided the <inline font-style="italic">modus operandi. As</inline> it happened, my attention had never been drawn to the law of Western Australia, and I did not know it ; but they were good enough to produce the Electoral Act, and show me the sections governing the procedure in regard to presenting a petition against the return of a member. Then they opened the petition, and showed me that they had complied with the provisions of the sections of the Western Australian Act. Then they went on to say - " You will observe by this Act that we have to lodge £50 with you as a deposit." I said - " Very well, I shall receive that, and indorse on the petition that you have lodged it as security for costs. I shall give you a separate receipt, which you can take, so that you may have an extra guarantee." Then we got into conversation, and they began to talk about further procedure. I said at once then - "As an officerof Parliament, I cannot give you any advice or take any action myself in a matter referring to the unseating of a member, but I may tell you what is the common law of Parliaments with regard to all petitions, and that is, that they should be presented by a member of the House, to whom the petition is addressed." I particularly guarded myself against referring to any class of petitions ; I said - "All petitions." Then, of course, as is natural, there was a little more conversation. I said - " Mind, whatever I say to you is nonofficial. Being an officer of Parliament, I cannot interfere in this matter." But as we got on in conversation, I simply made this remark - "By the way, I might pointout to you that there is some difference of opinion as to whether the Constitution Act refers bo the mere technique or <inline font-style="italic">modus operandi</inline> of getting a member returned, or whether it goes further, and applies to matters after the return. My own opinion is that it does not." To the best of my recollection, <inline font-style="italic">and</inline> I think I am right, that is the extent of what passed between us. </para>
<para>Was anything said about a member ? - I beg pardon, I am glad bo be reminded. When I mentioned aboutthe common law being for a member bo presentthe petition,they said, bo the best of my recollection -" Oh, yes, we have thought of that, and we have a member in our eye." Then they asked - " Would there be any difficulty in gettingthepetition from you ?" Isaid, "No,I shall lockit up, and I shall bake it down to the chamber every day, and put it in my drawer of thetable, and as soon as a member comes up bo me and saysthat he has undertaken to present it, I shall hand it to him." I said - " Until some one comes up to me for the petition,it will go back to my office each day." That istheextent of what passed between us. </para>
<para>
<inline font-weight="bold">Mr. Fink</inline>(counsel for petitioner) Was that an unofficial conversation? I do not know. </para>
<para>You were speaking unofficially ? - With regard to taking the petition down, you may take that as official or unofficial as you like. It was simply saying what I should do. </para>
<para>
<inline font-style="italic">By</inline>
<inline font-weight="bold">Senator Walker.</inline>- You told them unofficially that there was a difference of opinion ? That was a sort of conversation. </para>
<para class="block">I then examined the Clerk as follows : - </para>
<quote>
<para>You told the gentlemen who waited upon you that you would bakethepetition and keepit in your drawer from day to day until such time as some member would call upon you for it? - Yes. </para>
<para>Did you do that?- Yes. </para>
<para>How long did you have the petition before any member called upon you for it? - I could not tell you exactly the number of days, but some two or three days - at least three days I think - before it was presented. Speaking from memory, the Vice-President of the Executive Council, through his secretary, asked me if I would allow him to see the petition, and, of course, I did ; and they had the petition in their custody until it was presented. </para>
<para>That was about three days' after you received it ? - No ; I should say not more than three days before it was presented. It did not return to me until it was presented. </para>
<para>The Vice-President of the Executive Council, through his secretary, got thepetition from you, and, I presume, he held it for several days ? - I would not say how many days. I doubt if it was more than three days. </para>
</quote>
<para>The witness was then examined as follows : - </para>
<quote>
<para>
<inline font-style="italic">By</inline>
<inline font-weight="bold">Senator Sir J.</inline>
<inline font-style="italic">. H. Symon.-</inline>Had you any conversation with any one else about the petition ? -No, exceptthat fromtime to time, as we were crossing the passage, <inline font-weight="bold">Senator Matheson</inline> asked me if it was going bo be presented, and I said - " I have heard nothing more." He never came to my room to ask the question. </para>
<para>
<inline font-style="italic">By</inline>
<inline font-weight="bold">Senator Walker.</inline>- I think you said that yon told them unofficially that there was a difference of opinion ? - That is a different matter. When they came in they naturally got into conversation. It was an ordinary conversation ; it was not official. We discussed the whole thing, and I said - " I may tell you that there is a difference of opinion as to whetherthatsection of theConstitution applies to matters after a member is elected." </para>
</quote>
<para class="block">I think that evidence proves clearly that both the petitioner and his legal advisers had full knowledge of the fact that it was necessary for an honorable senator to present the petition to the Senate in due time and that form, and theClerk was merely to be the custodian of the petition for the time being. That condition the petitioner did not comply with, and it remained for the Vice-President of the Executive Council to obtain the petition from the Clerk and present it to the Senate. He presented it on the 27th of June, whereas it should have been presented to the Senate on the 28th of May, therefore it was nearly a whole month too late. If ever there was neglect on the part of any person having dealings of this kind it was shown by the petitioner in this case. In view of the evidence, which has been given clearly, distinctly, and concisely, showing that the petitioner and his advisers had full knowledge of the conditions it is now too late In the day to try and persuade honorable senators that the petitioner believed he had performed his duty and complied with the rules of the Western Australian Act when he handed the petition to the clerk. He and his friends deliberately adopted the Western Australian Act, and so far as they knew there was no other law by which theyweretobe guided. They fulfilled some of the obligations of that measure, but did not comply with the condition that the petition should be presented by an honorable senator within a certain time. I cannot swerve from my position in the slightest degree that the petitioner's neglect is unpardonable, and that the penalty of his neglect should be that the petition should not be entertained. The honorable senator petitioned against should be entitled to take his seat. <inline font-weight="bold">Senator Matheson</inline> even asked the Clerk whether the petition was going to be presented. The Clerk was unable to tell him, but the petitioner was here all the time from the 8th of May. What was he doing'] "What were his legal advisers doing ? </para>
<interjection>
<talk.start>
<talker>
<page.no>6843</page.no>
<time.stamp />
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<name role="metadata">DOWNER, John William</name>
<name role="display">Senator Sir John Downer</name>
</talker>
<para>- The honorable senator knows more about the petition than others do. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6843</page.no>
<time.stamp />
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<in.gov>0</in.gov>
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<name role="metadata">GLASSEY, Thomas</name>
<name role="display">Senator GLASSEY</name>
</talker>
<para>- I know from <inline font-weight="bold">Senator .De</inline> Largie, who travelled on the same ship as the petitioner, that he came over on the 8th of May. With regard to the merits of the petition I know absolutely nothing, and I care nothing ; but with regard to the seat of the sitting member I care a great deal. I care not upon what side in politics an honorable senator may be against whom a petition has been presented, but I care a great deal about having justice done. It was not my business to inquire into the merits until the preliminary necessary proceedings had been complied with. They were not complied with, and I know of no court in the world in which one can secure the hearing of a case except upon complying with certain conditions. It was the 27th of June before <inline font-weight="bold">Senator O'Connor</inline> presented the petition, and it was then received for the first time by the Senate. It has been contended that the Senate is the court, but if so the petition should have been before the Senate in due time. If it was impossible for the petitioner to comply with that condition he should have moved the Senate in the matter. He should have explained that it was impossible to comply with that condition, and he should then have asked :for further time. There was no effort or attempt to do that. The petition was not presented to the Senate in time, nor was any extension of time asked for. I think I said in the earlier part of my remarks that it was contended, on the 24th of July, that the Senate instructed the committee to inquire into the merits of the case, and report upon them to the Senate. When were those instructions given, and by whom ? I believe that that was the contention set up by <inline font-weight="bold">Senator Sargood,</inline> but I deny that any such instructions were given. I want to know where those instructions are. If the Senate has given instructions, I shall be very pleased to see ' them. Certainly the Senate appointed a committee to make an inquiry and report, but upon what <inline font-style="italic">1</inline><inline font-weight="bold">Senator Sargood</inline> says, upon the merits of the case, but I deny that. I say that it was with regard to the preliminaries being taken into consideration prior to the merits of the case being inquired into by the committee, whether the court was the Senate or the committee. It was to consider whether the rules voluntarily adopted by the petitioner and his legal advisers had been complied with or not. If the Senate were the court, the Senate would be very guarded indeed in entering upon the consideration of the merits of the case, without inquiring whether the necessary preliminaries had been complied with prior to the hearing of the case being granted. So far as I am concerned the contention positively falls to the ground, inasmuch as I am not aware of any definite instructions having been given by the Senate. When this question was before the Senate very great compassion was bestowed upon the petitioner, inasmuch as he was an innocent man and had clone all he could do. The Vice-President of the Executive Council was exceedingly strong on that point. He told us that no person could gainsay that it was an utter impossibility for the petitioner to do anything else than what he did. I do not agree with that statement at all. I should be very slow indeed to question the authority of <inline font-weight="bold">Senator O'Connor</inline> on legal matters, but I say that this petitioner did not do all that he should have done. He complied with certain of the rules ; why did he not comply with them all <inline font-style="italic">1</inline> Who is to blame for his want of compliance <inline font-style="italic">1</inline> It certainly could not be his legal adviser ; otherwise that gentleman could not have given the question the consideration which he should have given it. I should be very slow to believe that the petitioner or his legal, adviser were without knowledge that a further condition had to be complied with, It was not complied . with. I think the sitting member is entitled to all the consideration and compassion, and not the petitioner. I have no prejudice in the matter, but I have a great desire for fair play and justice. Whether the person whose seat is petitioned against is a political opponent of mine or not, .as a member of this Senate, he shall have the fullest consideration and compassion from me, and I shall consider also the State which he has the honour of representing, rather than a petitioner who is absolutely at fault and guilty, according to the snowing of the Clerk, as is demonstrated beyond question and beyond doubt, of the grossest negligence. I say that this element of innocence, so much talked of, and the statement that the petitioner had complied with every condition he was capable of complying with, greatly influenced the Senate in dealing with the question in July last. If my advice had been taken before the report was presented on the 11th of July, and the committee had presented, not merely a bald report, but giving reasons in detail to guide the Senate, I am vain enough to think that a different conclusion would have been come to. Unfortunately a bald statement, exceedingly concise, but without any explanation as to what led the committee to adopt the report, was presented, and in consequence of the lack of detailed information which, I think, should have been supplied, the Senate acted hastily, and, I think, in a way contrary altogether to that in which it would otherwise have acted. </para>
</talk.start>
</continue>
<continue>
<talk.start>
<talker>
<page.no>6844</page.no>
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<name role="display">The PRESIDENT</name>
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<para>- The honorable senator must not reflect upon a vote of the Senate. </para>
</talk.start>
</continue>
<continue>
<talk.start>
<talker>
<page.no>6844</page.no>
<time.stamp />
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<name role="metadata">GLASSEY, Thomas</name>
<name role="display">Senator GLASSEY</name>
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<para>- There is another element which I think should not be overlooked. There is the contention that the Senate is the court, and that there should be no limit to the time within which a petition may be presented. If that contention holds good, what is the position of honorable senators ? A petition may be lodged against any honorable senator to-day, to-morrow, next year, or at any time during the term for which he has been elected. Are honorable senators prepared to take up that position, and contend that there should be no time limit for the presentation of a petition. I, for one, decline to do so. I know of no law which one may violate, and with respect to which there is no rule laid down, fixing a limit of time within which a prosecution for such violation shall take place. I am sure honorable senators will see that to adhere to the doctrine that there shall be no time limit in the case of the presentation of the petition against a member of the Senate would be most dangerous. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6844</page.no>
<time.stamp />
<name.id>K54</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
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<name role="metadata">SARGOOD, Frederick</name>
<name role="display">Senator Sir Frederick Sargood</name>
</talker>
<para>- It is so at the present. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6844</page.no>
<time.stamp />
<name.id>KLW</name.id>
<electorate />
<party />
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<in.gov>0</in.gov>
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<name role="metadata">GLASSEY, Thomas</name>
<name role="display">Senator GLASSEY</name>
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<para>- Well, the sooner the insecurity is removed, and a time limit stipulated, the better. If I have violated a law of my State, under that law I am liable to be prosecuted. The Commonwealth has as yet no special law, and I must of necessity be tried in accordance with the rules and practice existing in the State whose laws I have violated. If honorable senators are prepared to adhere to the doctrine that a petition may be lodged against any one of' us to-morrow, our seats may be challenged -r we may be obliged to incur expense which few of us may be prepared to meet, and noend of inconvenience, injustice and wrong may be done, not only to the sitting member but to the State he lias the honour to represent. I shall be no party to subscribing to> such a doctrine, and I, at any rate, disputethe contention of <inline font-weight="bold">Senator Sargood</inline> on this point. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6844</page.no>
<time.stamp />
<name.id>K54</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
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<name role="metadata">SARGOOD, Frederick</name>
<name role="display">Senator Sir Frederick Sargood</name>
</talker>
<para>- Thenew standing orders provide for it. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6844</page.no>
<time.stamp />
<name.id>KLW</name.id>
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<in.gov>0</in.gov>
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<name role="metadata">GLASSEY, Thomas</name>
<name role="display">Senator GLASSEY</name>
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<para>- So much thebetter. I think it is common sense if, it benothing more, that there should be sometime limit fixed. I do not know that I have anything further to say upon this, matter. I hope the question will be debated, free from personalities and technicalities, with good taste, and in good temper. <inline font-style="italic">T</inline> trust sincerely that inasmuch as thepetitioner and his friends voluntarilyadopted certain rules of procedure, because they knew of no other, and, inasmuch as they have not fully complied with them,, whatever compassion is to be extended by the Senate shall be reserved, not for the* petitioner and his friends, but for thesitting member and the State he has the; honour to represent. I hope that the Senate1 will this afternoon deal with the matter onceand for all, and that if a penalty has to be> paid it should not have to be borne by the: sitting member, and indirectly by the State: of Western Australia, but by the petitionerwho showed gross negligence and a lack of that vigilance, attention and care, which heand his legal advisers must of necessity have: known were required when the petition, was presented. </para>
</talk.start>
</continue>
</speech>
<speech>
<talk.start>
<talker>
<page.no>6844</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate>SouthAustralia</electorate>
<party />
<role />
<in.gov>0</in.gov>
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<name role="metadata">DOWNER, John William</name>
<name role="display">Senator Sir JOHN DOWNER</name>
</talker>
<para>- I was very glad to hear from the speech made by <inline font-weight="bold">Senator Glassey</inline> that he recognised at all events the fairly judicial position I endeavoured to assume throughout this inquiry, although I may tell the-. Senate that I had great temptation at times to be a little injudicial. It appeared to me, to use the words of my friend, to. be a matter which did not require any temper or any feeling of compassion; but simply and solely a sense of justice, and that is the point of view from which I propose to deal with it. This is not a question of compassion for the sitting member, or for the petitioner, or of mercy here or there, but we have to see that we do not begin our record with a refusal to inquire into that which needs inquiry, and with a determination to resist justice at any price. I know no more about the merits of this case than a man in the moon. But the principle of it seems to me to be in a nutshell. "We are sitting under a new Act of Parliament, which provides that a question relating to a disputed election shall be determined by the House concerned, and that the conduct of the election shall follow the law relating to the Lower House in the State where the election took place. The elections for the Senate, as the elections for the House of Representatives, had to take place according to the law of Western Australia. Whether the return was disputable depended on the law of that State, but the tribunal to decide thequestion was nota tribunal appointed by the law of Western Australia, but the Senate itself. There you have the whole thing in two or three words, absolutely and utterly beyond question. We had no rules, and immediately we met came a petition relating to a disputed election. The petitioner did not know what law to go under, or what procedure to follow. The Clerk said to the petitioner - "The common law of Parliament is that a petitioner has to get a member to present the petition, but I do not know how it is governed by this Constitution. It seems to me that the election had to take place under the law of the State, but when it goes beyond that point I do not think that law does apply." I am pleased to know that the Clerk's views and my own agree on that point. The question we have to try is whether this is a <inline font-style="italic">bona fide</inline> petition or not. If it is not <inline font-style="italic">bona fide,</inline> away with it. But, if it is <inline font-style="italic">bona fide,</inline> has there been gross negligence? On the 23rd May the petition was left with the Clerk ; on the 6th Junenotice was given for the appointment of a committee of disputed returns; on the 12th June that committee was appointed, but by the standing orders it was inoperative until about the 23rd June. On the 27th June the Vice-President of the Executive Council moved that the petition be referred to it. </para>
</talk.start>
<para class="block">The petitioner showed his <inline font-style="italic">bona fides</inline> in doing everything he could do. </para>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>K0X</name.id>
<electorate />
<party />
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<in.gov>0</in.gov>
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<name role="metadata">PLAYFORD, Thomas</name>
<name role="display">Senator Playford</name>
</talker>
<para>- Except get the petition presented. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate />
<party />
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<in.gov>0</in.gov>
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<name role="metadata">DOWNER, John William</name>
<name role="display">Senator Sir JOHN DOWNER</name>
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<para>- The Clerk did not know whether that was the proper way for the petitioner to proceed. May I be allowed to say that the course followed was in accordance with the usage not merely of Western Australia but of Victoria. We talk of negligence. There is no fixed statutory duty, as <inline font-weight="bold">Senator Glassey</inline> said, for a petitioner to present his petition within a certain time. If there is a fixed statutory duty, it comes under the law of Western Australia, and that has been complied with. The law of Western Australia requires the petition to be left with the Clerk, and the House to send it on. The law in Victoria is the same, and gentlemen in both Houses in this State have told me that they know of no case in which there hasbeen a motion to refer a petition about a disputed return, but that it has been left with the Clerk as a matter of course, and sent on by the Speaker without a motion from any honorable member. I do not say that that is conclusive in the slightest degree, but we have no fixed time, and it is only a question of whether the man was diligent or negligent? If there is a fixed law it will be the Western Australian law, and the petitioner complied with it. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
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<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- We say he did not. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate />
<party />
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<in.gov>0</in.gov>
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</talker>
<para>- But the Senate ruled that he did, the other night. </para>
</talk.start>
</interjection>
<para>SenatorClemons. - It never did. </para>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>KSH</name.id>
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<party />
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<in.gov>0</in.gov>
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<name role="metadata">MACFARLANE, James</name>
<name role="display">Senator Macfarlane</name>
</talker>
<para>- That it did nob apply. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
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<name role="metadata">DOWNER, John William</name>
<name role="display">Senator Sir JOHN DOWNER</name>
</talker>
<para>- The Senate ruled that there was no law to prevent the petitioner from being heard. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
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<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
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<para>- According to the honorable and learned senator the Senate ruled that the law did not apply, and the petitioner complied with the law. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate />
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<para>-The Senate ruled that there was no law to prevent our going on with the inquiry. What undoubtedly was the original position was that the law of Western Australia did apply, that the petition was presented within forty days, and that therefore the law was complied with, but that it had not been sent on. within ten days. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
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<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- No. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6845</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
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<name role="metadata">DOWNER, John William</name>
<name role="display">Senator Sir JOHN DOWNER</name>
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<para>- That was the question at issue between the minority and the majority of the committee on the first occasion. Now, approaching this matter with a desire to do even-handed justice, I ask where was the negligence ? The petitioner left the petition with the Clerk on the 23rd May. No one complains that it was not left in time. Where is his negligence after that? He left the petition with the Clerk, and that, according to the law of Western Australia and Victoria, is the proper course, and it is the only course in other places, which have statutory courts, and complete methods of procedure by which the thing works itself out without any motion. Therefore, there would seem to be no negligence. But it is said that there was negligence because the petitioner spoke to the Clerk of the Senate, who said that he did not know what the law of the Constitution was, but that under the law of Parliaments some one ought to present the petition. That, however, was not the law of Western Australia, or of Victoria. What had been going on <inline font-style="italic">t</inline> On the 23rd May the petition was presented to the Clerk. On the 6th of J une, notice of motion was given for the appointment of the committee. On the 12th .June, the committee was appointed. On the 23rd June, the committee became operative and could proceed with business. On the 27th June, the petition was presented to the Senate. .During the whole interval from the 23rd May to 27th June, between the time when the petition was lodged, and when it was referred to the committee, the petition lay with the Clerk. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6846</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
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<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
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<para>- Is the honorable and learned senator's point that as there was no committee there could be no presentation ? </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6846</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate />
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<in.gov>0</in.gov>
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<name role="metadata">DOWNER, John William</name>
<name role="display">Senator Sir JOHN DOWNER</name>
</talker>
<para>-It could have been presented to the Senate. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6846</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
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<in.gov>0</in.gov>
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<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- Of course it could; the appointment of the committee has nothing to do with the presentation of the petition. </para>
</talk.start>
</interjection>
<interjection>
<talk.start>
<talker>
<page.no>6846</page.no>
<time.stamp />
<name.id>JVG</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">DOWNER, John William</name>
<name role="display">Senator Sir JOHN DOWNER</name>
</talker>
<para>- Either there is an absolute rule, and if there is, it was not complied with ; or there is not an absolute rule, and then it is a question of negligence. Whether the petitioner assumed that he had to act under the law of his own State of Western Australia, or under the law of the State in which the Senate was meeting, Victoria, the lodging the petition with the Clerk was equivalent to its presentation to the Senate, and the rest was a matter of course, a perfunctory act. </para>
</talk.start>
</interjection>
<para class="block">If the petition had been presented by 20th June, what could the Senate have done more than it actually did <inline font-style="italic">1</inline> The view I have taken about this matter throughout, knowing nothing about the merits, and anxious to be relieved from one of the most painful positions I have ever been in in the course of my life - a position in which I have endeavoured to do justice, but have obtained great offence and great indignity - is what I have explained. No one could be more happy to be relieved of the position I occupy than myself ; but, at the same" time, if this Senate wishes it to go forth that we are not a mere political body, allowing party considerations to tread upon the sanctity of justice, we should continue this inquiry. "Whether it be continued by the present committee or some other body I care not. I shall be glad to be out of it. At the present time I look upon the subject simply as a person knowing nothing of the merits of the case, but as a fair-minded man of the world accustomed to studying cases, with a desire to arrive at reasonable conclusions. From that point of view, I say that nothing on the part of the petitioner would justify this Senate in denying to bini the right to an inquiry, and to the justice which he demands. </para>
</speech>
<speech>
<talk.start>
<talker>
<page.no>6846</page.no>
<time.stamp />
<name.id>K0X</name.id>
<electorate>South Australia</electorate>
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">PLAYFORD, Thomas</name>
<name role="display">Senator PLAYFORD</name>
</talker>
<para>- I think that if this Senate has anything to deplore since we first met in this Chamber, it has been the illness of <inline font-weight="bold">Senator Fraser.</inline> If he had not been ill we should undoubtedly have had at the present moment a majority report from the Elections and Qualifications Committee, as it was at first appointed to inquire into this petition. That majority report would have met with the approval of the majority of the Senate. But <inline font-weight="bold">Senator Fraser's</inline> resignation from the committee resulted in a dead-lock, and led to the difficulty with which we are now faced. On the last occasion when this question was before the Senate - leaving out the time when we had to decide whether the chairman of a committee had a deliberative as well as a casting vote - I contended that there was no evidence to prove that the petitioner had not done all that he could possibly have done under the circumstances. It was my belief at the time that the petitioner really thought that when he presented his petition to the Clerk of the Parliaments, <inline font-weight="bold">Mr. Blackmore,</inline> he was doing all that he ought to have done under the law of Western Australia. Being under that belief, I thought we had no right to take advantage of the ignorance of any individual on a matter of this kind, particularly as it was the first time any petition had been presented to the Senate on a matter relating to a disputed return. As there was no law on the subject, I thought that we had no right to take advantage of a mistake that an individual might easily fall into. Therefore I voted with the majority, in favour of referring the matter back to the committee for the purpose of making still further inquiries. The committee have taken no evidence on the merits of the petition, but they have, I understand, heard the lawyers on each side. "We have before us no report as to what was said <inline font-style="italic">hy</inline> these learned gentlemen. But we have before us the evidence given by <inline font-weight="bold">Mr. Blackmore,</inline> our Clerk, and that evidence shows that the advisers of the petitioner are not such wonderfully ignorant persons as might have been supposed. I entirely disagree with the statement of <inline font-weight="bold">Senator Downer</inline> when he says that there is no fixed law on the subject, and that if there is a fixed law the petitioner complied with it. I contend that, so far as the Commonwealth is concerned, there is no law on the subject, but it was certainly understood that the elections of senators were to be conducted under the laws of the States concerned. There is no doubt in my own mind that that was the intention of the framers of the Constitution. It is the commonsense position. Therefore, there was a law on the subject, and the petitioner's advisers knew it thoroughly. Yet in the most unaccountable manner they failed to comply with the conditions of that law. Take the evidence of <inline font-weight="bold">Mr. Blackmore.</inline> The petitioner or his representatives came to that gentleman with their petition. Did they look upon the mere fact of lodging the petition with the Clerk as a compliance with the law of Western Australia ? Decidedly not. The)' said, " We have in our eye a senator who will present the petition." Is it to be supposed that, if they had their minds thoroughly made up as to the procedure they ought to adopt, and if such procedure had been in the direction of simply leaving the petition with the Clerk, they would have thought it necessary to do any more? Nothing of the sort. But they distinctlysaid, " We leave it with you " - to do what with it ? Was the Clerk to present it to the Senate? Decidedly not. Was he to hand it to you, <inline font-weight="bold">Mr. President</inline> ? Decidedly not. He was to hold it in his hand for the purpose of safe custody, and give it up at the proper time to a senator who would present it to the Senate - the very procedure which the law of Western Australia prescribes. Therefore, the petitioner knew thoroughly well what he had to do, and it is not for us to inquire how it is that he neglected his duty. I suppose that there is scarcely a senator who would not have presented that petition if he had been asked. I should never refuse to present any petition if it were respectful, even though I disagreed with what it asked for. There is never any difficulty in obtaining a senator to present a petition. But the petitioner's advisers waited day after day, although they knew exactly what procedure had to be taken. They absolutely neglected the petition and the procedure. So far as the deposit is concerned, they had paid the money. They had complied with the whole of the law of Western Australia, except in regard to the presentation of the petition, which they had prepared in proper form, and had ready for presentation. It was not left with the Clerk as a compliance with the law of Western Australia. Therefore, the petitioner did not comply with the law' of Western Australia, and <inline font-weight="bold">Senator Downer's</inline> contention, that if there is a fixed law governing the case they compiled with it, is a mistaken one. There is a fixed law, but they did not comply with it, and as they neglected to do so, they must suffer the consequences. </para>
</talk.start>
<interjection>
<talk.start>
<talker>
<page.no>6847</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'Connor</name>
</talker>
<para>- What, in the honorable senator's view, is the fixed law <inline font-style="italic">1</inline></para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6847</page.no>
<time.stamp />
<name.id>K0X</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">PLAYFORD, Thomas</name>
<name role="display">Senator PLAYFORD</name>
</talker>
<para>- The law of Western Australia, whatever that may be. That has been shown to be the case in regard to a petition presented to the House of Representatives against the return of <inline font-weight="bold">Mr. E.</inline> Solomon. But in the present case the petitioner did not comply with the law, and under the circumstances I think that the best course the Senate can adopt is to pass the motion moved by <inline font-weight="bold">Senator Glassey.</inline> ' If I thought that this petitioner was ignorant in what he had done, and made a mistake through his ignorance, I should take a different course, because I believe that we should not. judge matters of this sort in accordance with the strict letter of the law, but should consider the equities of the case. But here we have a man deliberately coming to the Clerk of this House, knowing what to do, and doing it up to a certain point, and then neglecting to attend to a certain matter. Therefore I shall vote for the motion. </para>
</talk.start>
</continue>
</speech>
<speech>
<talk.start>
<talker>
<page.no>6848</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate>New South Wales</electorate>
<party>Protectionist</party>
<role>"Vice-President of the Executive Council</role>
<in.gov>1</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>. - I sincerely hope that the Senate will not be led into taking the course involved in <inline font-weight="bold">Senator Glassey's</inline> motion. To do so would be, in the first place, to absolutely stultify the Senate itself, and, in the second place, to deny justice to the petitioner, on grounds which are in themselves not only untenable, but, it appears to me, absolutely farcical. I cannot understand how any honorable senator who remembers that we are dealing with the question of the rights of the petitioner, as well as the rights of the sitting member, could come to the conclusion that, on the flimsy grounds which have been put forward by one section of the committee, and by the mover of this motion, we should deprive any one of the slightest right which any mau might claim, much more than that we should deprive him of the right of sitting in this Senate. A great deal of time has been expended already upon this matter. I do not wish to devote any more time to it than is absolutely necessary, but I feel that the credit of the Senate is involved in the course which is to be taken now, and, therefore, I think it necessary to state, in a very few words, the position in which the matter now stands. The Senate referred this petition, on 27th June last, to the Elections and Qualifications Committee. The committee was appointed for the .express purpOSe of dealing with this question, because, although it is a standing committee, open to consider any other petition, there was actually no other petition in existence when it was appointed, and it is unlikely that any other will come before it. The committee having been appointed as the tribunal to consider this question, the petition was referred to it on 27th June last. Since that time the matter has been before the committee, and now a member of it asks us to take action. In what circumstances ? It has been considering the matter from the 27th June until the 6th November, and has at last arrived at a position in which it is equally divided and cannot determine upon any conclusion. That is the report which it brings before us. </para>
</talk.start>
<interjection>
<talk.start>
<talker>
<page.no>6848</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- And it has kept thesitting member out of the Senate all this, time. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6848</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- I hope it will beunderstood that I am not attempting in any way to attach blame to any member of thecommittee. Every member of it has a right to his own opinions, and if, unfortunately, the committee is so divided that it cannot agree, there is no other course open to it than to come to the Senate itself which has delegated its power to it, and to inform! it of the condition of affairs which prevails. But whatever the reason may be, the committee, being absolutely unable to agree,, has brought up a report to the Senate which deputed it to inquire into the matter. In that report the members say practically - " We are equally divided ; we can come tono conclusion." That being the case, <inline font-weight="bold">Senator Symon</inline> .gave notice of the motion, which has been moved by <inline font-weight="bold">Senator Glassey,</inline> to the effect that the petition be no longer entertained. That is to say, that is the view of one section of the committee. But on what grounds ? On the grounds that thelaw of Western Australia has not been complied with, and that - </para>
</talk.start>
</continue>
<quote>
<para>There has been unexplained delay and want of diligence on the part of the petitioner in such presentation and prosecution prejudicial to the sitting member and his State. </para>
</quote>
<para class="block">Those two grounds are absolutely the same. They both depend entirely upon the question of whether the law of Western Australia, applies. The question was thoroughly thrashed out in the Senate on the occasion of the first report. The committee, havingconsidered the matter from the 27th of J une until the 11th of July, brought up a report on the latter date, in which they said that - </para>
<quote>
<para>The petitioner has not conformed with theelectoral law of the State of Western Australia ; and your committee recommend, therefore, that the petition be not entertained. </para>
</quote>
<para class="block">The Senate listened for hours to everything that was to be said upon the question. In addition to that, most of the evidence given subsequently by the Clerk was before the Senate, although only as hearsay and rumour. Having heard all these matters the Senate came to the conclusion that the law of Western Australia did not apply. </para>
<interjection>
<talk.start>
<talker>
<page.no>6848</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- It did not hear the Clerk's evidence on that occasion. No evidence of that sort was heard before. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- What I said was that the matter subsequently given in evidence by the Clerk was substantially before the Senate on that occasion as hearsay and rumour. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- The honorable and learned senator asks honorable senators to attach the same value to rumour as to -evidence. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- The Senate had to consider the grounds upon which it was said at that time that the law of Western Australia applied. It was admitted by <inline font-weight="bold">Senator Symon</inline> that, apart from the action of the petitioner himself, the law of Western Australia did not apply. Of course that is the only conclusion that any reasonable person, much less any senator knowing anything of the law, could come to. </para>
</talk.start>
</continue>
<continue>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>10000</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">PRESIDENT, The</name>
<name role="display">The PRESIDENT</name>
</talker>
<para>- I wish to point out that strictly speaking, reference cannot be made to the former debate, but inasmuch as the matter now before the Senate is so much mixed up with it, and really a continuation of that debate, I feel justified in relaxing the rule. </para>
</talk.start>
</continue>
<continue>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>
<inline font-weight="bold">- Senator Symon,</inline>on that occasion, said this - </para>
</talk.start>
</continue>
<quote>
<para>What the majority of the committee felt was that they, at any rate, could not sanction any evasion of the Act of Parliament. </para>
</quote>
<para>I inquired, "Of what Act of Parliament1!" and <inline font-weight="bold">Senator Symon</inline> replied - </para>
<quote>
<para>Of the Act of Parliament prescribing the practice which they had adopted. </para>
</quote>
<para>In answer to my further inquiry, " What Act of Parliament <inline font-style="italic">1</inline> " <inline font-weight="bold">Senator Symon</inline> said - </para>
<quote>
<para>The Act of Parliament of Western Australia. As I have said so far as my own opinion is concerned, I hold that the Act and practice of Western Australia have no application whatever. The committee never said so for a moment. But .there was no practice and no procedure. The Senate might have adopted- and I venture to think it was the duty of the Vice-President of the .Executive Council when lie moved in this matter to have formulated - sessional orders governing the limitation of time within which petitions should be presented, and the procedure that should have been adopted. That has been done in every instance with which I arn acquainted </para>
</quote>
<para>And so on. I quote from <inline font-style="italic">Hansard,</inline> page 2890. Therefore the honorable and learned senator admitted that the law of Western Australia did not apply. But the law of Western Australia has been dragged in to the detriment of the petitioner in a curious way. -It is said that it is quite true that the law of Western Australia does not apply ; that there is no procedure which does apply ; that no procedure has been laid down by the Senate which could have been followed, but, because the petitioner himself followed the law of Western Australia. </para>
<interjection>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>KKL</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">FRASER, Simon</name>
<name role="display">Senator Fraser</name>
</talker>
<para>- In part. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- In part, therefore he is bound to follow it out altogether, notwithstanding that it does not apply. In other words, if the petitioner had chosen to follow no particular law, but had simply lodged his petition without any deposit, or in any way he thought fit, who could say that he had not complied with the law <inline font-style="italic">1</inline> But, because he took it upon himself to be more accurate, and to follow the law in certain . particulars, then it is said he was bound to follow it in a way which was absolutely impossible. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>KKL</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">FRASER, Simon</name>
<name role="display">Senator Fraser</name>
</talker>
<para>- There may be still more petitions in that case. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- I sincerely hope that no honorable senator is going to allow himself to be influenced in dealing with this matter by the consideration that he has been making his seat safe by creating a precedent of this kind. I trust that the matter will be decided entirely upon the consideration of the rights and justice of the case. Of course it is true that the Senate might at any time lay down rules relating to the presentation of petitions. But these rules in effect would be standing orders which practically could not apply to a case of this kind, the petition having been presented before they were formulated. No rules could have been formulated before, because in the nature of things a court of this kind is created only after election, and it has no power to create standing orders until the Senate itself is elected. It could not make rules in regard to the presentation of petitions which would have a retrospective effect. It is, therefore, idle to say that petitioner was bound <inline font-style="italic">by</inline> rules which had no existence. It is because he adopted to a certain extent the law of Western Australia, but did not adopt it in full, that we are asked to say that he must be taken to have failed in his compliance with the conditions necessary to be observed before he can be heard on the facts. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>KKL</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">FRASER, Simon</name>
<name role="display">Senator Fraser</name>
</talker>
<para>- The House of Representatives adopted that view. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6849</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- Never mind the House of Representatives. The Senate has decided that the law of Western Australia does not apply. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6850</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- What ? </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6850</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- The Senate has decided that there is no law which prevents the petitionfrombeingheard. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6850</page.no>
<time.stamp />
<name.id>K6M</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">CLEMONS, John</name>
<name role="display">Senator Clemons</name>
</talker>
<para>- No. It has not been decided that the law of Western Australia does not apply. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6850</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- Then the honorable and learned senator contradicts a resolution passed by the Senate. </para>
</talk.start>
</continue>
<interjection>
<talk.start>
<talker>
<page.no>6850</page.no>
<time.stamp />
<name.id>JU7</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">DE LARGIE, Hugh</name>
<name role="display">Senator De Largie</name>
</talker>
<para>- No. The Senate neglected its duty. </para>
</talk.start>
</interjection>
<continue>
<talk.start>
<talker>
<page.no>6850</page.no>
<time.stamp />
<name.id>10000</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">PRESIDENT, The</name>
<name role="display">The PRESIDENT</name>
</talker>
<para>- Order. The honorable senator must not reflect on a vote of the Senate. </para>
</talk.start>
</continue>
<continue>
<talk.start>
<talker>
<page.no>6850</page.no>
<time.stamp />
<name.id>JYD</name.id>
<electorate />
<party />
<role />
<in.gov>0</in.gov>
<first.speech>0</first.speech>
<name role="metadata">O'CONNOR, Richard</name>
<name role="display">Senator O'CONNOR</name>
</talker>
<para>- I will read the exact words of the resolution. The report I have referred to already was presented on the 11 th July, setting forth that - </para>
</talk.start>
</continue>
<quote>
<para>The petitioner has not conformed with the electoral law of the State of Western Australia; and your committee recommend, therefore, that the petition be not entertained. </para>
</quote>
<para class="block">The Senate then passed this resolution - </para>
<quote>
<para>That in the opinion of the Senate the law does not prevent the committee from entertaining the petition, and thatthepetition be referred back bo the committee for further inquiry and report. </para>
</quote>
<para class="block">That is to say the committee having reported that the law of Western Australia prevented an inquiry because the petitioner had not complied with it, the Senate taking even a wider ground than that said, "There is no law which prevents a petition being inquired into." If there is no law to prevent that, then the law of Western Australia does not prevent it. I hope that no honorable senator has so mean an opinion of the intelligence of the Senate as to advance the opinion that because the words " the law of Western Australia" were not used in that resolution, therefore the Senate expressed no opinion as to whether it applied or not. The sole ground for the report of the committee was that the law of Western Australia did not apply, and, therefore, that the petition could not be entertained. The Senate, however, sent back the petition with the intimation that there was no law - meaning the Western Australian or any other law - which prevented it from being entertained. The petition was considered, but the committee could not arrive at any conclusion. Now they report again with the sole difference in regard to the facts that in the meantime they have taken the evidence of the Clerk. I appeal to any honorable senator who looks at this matter in the same way as he would look at any case involving the decision of the smallest possible claim or right, to say whether there is anything in this evidence except in regard to the law of Western Australia. And if the law of Western Australia has no application, is there anything whatever which is relevant in this evidence given by the Clerk? What is the effect of it? The effect of it is simply this : This petition was lodged with the Clerk with a deposit. A conversation took placeas to what the procedure was. I am not going into the details now, but the petitioner seemed to intimate that he was inclined to think that the petition might have to be presented by somebody. The Clerk stated what he believed to be the general parliamentary rule, but expressed no definite opinion about it, and he told the petitioner and his friend, very properly, that there was some doubt as to whether the Constitution applied the laws of the. State after the election or not. </para>
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<page.no>6850</page.no>