Infuntik [17 AUGUST, 1937.] Paralysis. 585

Tuesday, August 17, 1937.

The PRESIDENT (Sir Frank Clarke) took the chair at 4.57 p.m., and read the prayer.

NEW MEMBER. Mr. O. P. Gartside was introduced and

sworn as a member for the South-Eastern Province, and delivered to the Olerk the declaration required under Act No. 3660.

STATUTE LAW REVISION BILL. This Bill was received from the Leg-

islative Assembly and, on the motion of Sir JOHN HARRIS (Minister of Public Instruction), was read a first time.

SEWERAGE DISTRIOTS BILL. This Bill was received from the Leg-

islative Assembly and, on the motion of the Hon. G. L. GOUDIE (Minister of Public Works), was read a first time.

SUPERANNUATION (INVESTMENT OF FUND) BILL. This Bill was received from the Leg-

islative Assembly and, on the motion of the Hon. G. J. TUOKETT (Honorary Minister), was read a first time.

"\V AREHOUSEMEN'S LIENS BILL. This Bill was received from the Leg-

islative Assembly and, on the motion of the Hon. G. L. GOUDIE (Minister of ~ublic Works), was read a first time.

CONSOLIDATED REVENUE BILL (No.2).

This Bill was received from the Leg· islative A.ssembly and, on the motion of Sir JOHN HARRIS (Minister of Public Instruction), was read a first time.

INF l~NTII .. E PARALYSIS. OLOSING OF STATE SCHOOLS.

The Hon. W. H. EDGAR (East Yarra Province) asked the Minister of Publjc Health-

Will the Government consider the advisa-bility of closing all State schools in the metro-.politan area in order to prevent as far as pnssible the children in areas not aff~cted by

Sessioll H!37.-[25]

infantile paralysis coming into contact with any children who may ha.ve been in contact with children in the affected areas?

Sir JOHN HARRIS (Minister of Public Health) .-The answer is-

The Consultative Council on Poliomyelitis is of the opinion that the simultaneous closing of all schools in the metropolitan area. would be a grave mistake and would have beeD. so at any stage of the epidemic. It cannot view with approval either the crowding in their homes of children in industrial areas over a long period or on the other hand the greatly in-creased dispersal of children over rural districts. It is of the opinion that the present policy is in the best interests of the com-munity.

OONSTITUTION (REFORM) BILL.

The debate (adjourned from August 3) on the motion of Sir John Harris (Minister of Public Instruction) for the second reading of this Bill was resumed.

The Hon. C. H. A. EAGER (East Yarra Province).-The circumstances in which this Bill is brought forward by the present Government tend to create an unfavorable impression of the measure. It has, however, passed the Legislative Assembly, and I think this House should give it full and careful consideration. But we should not hesitate to criticize, and if necessary reject any provisions 9£ the Bill which in our considered judg-ment should not be passed into law. On the other hand, we should not fail to perform our proper function of review-ing and offering constructive criticism of the proposals for reform contained in tho measure and giving effect to such criti-cism, if the Bill goes into Oommittee, by making such amend men ts, or inserting such further provisions as the sense of this House shall determine. The Bin is one in the consideration of which this :flouse has powers as ample and unre-stricted as the Legislative Assembly. If this Ohamber feels, as it has the right to feel, that it is strongly founded in the esteem and respect of its constituencies and of the people, it can afford to be, and will be independent and determined in its views. This House, equally with the Legislative Assembly, is the guardian of the Oonstitution of the people of this State, and exercising its own independent judgment, it should, be convinced of thp. wisdom of the constitutional change pro-posed by the Bill, or of any change in the Constitution, before assenting to it.

586 Constitution [COUNCIL·l (Reform) Bill.

The- consideration by - this House of the Bill is made difficult by the fact that the people of this State have not yet had any opportunity of expres~ng an opinion upon or considering the Bill. - The Bill has no mandate from the people. The last general election for the Legislative Assembly was held in the year 1935, and. at that election none of the three recog-nized parties in this State brought before the electors, or mentioned to them, any proposal for the reform contained in the measure or any.proposal for reform of the Constitution, except, of course, the Labour party and its candidates, part of whose recognized political platform was and i~ the abolition of the Legislative CouncIl. As a result of that election and any by-elections which have sinc~ been held, only 18 of the 65 members of the Assembly are of the Labour party, so that even though the present Bill be regarded, as it is by the Labour party, as the first step towards abolition the Bill clearly has no mandate fron; the people. When one remembers the addi-tional fact that the party of the present Government-the Oountry party--faced th~ last general election in alliance with the other of the three parties-the United Au~t~alia party-upon the same general polItlcal platfor~, and in combined and ~~~ressed oppositi?n t~ the Labour part;)', It IS clear that thIS BIll has not only no mandate from, but cannot be said to have even been ~ons.idered b:y the people. So great a constltutlOnal wnter as Keith has said-

It is a fundamental principle of democracy that changes of substance in the Constitution shouJ.d only be c~rr.ied out after they have been detlllltely and dIstInCtly made the subject of a general election. -

An Australian constitutional writer Mr. J~stice EYB:tt, in his book The King and H~s Dom~nwn Governors, cites this state-ment as one having "great force." In-deed, the leader of the Government in this House, in moving the second reading of the Bill, referred in general terms to the ~tatement in the Bryce report con-cermng one of the functions of a second Chamber, and it might be well to quote the relevant passage of the report in full. It states the function as follows-

The .interposition of so much delay (and no more) In the passage of a ~i1~ into law as may be needed to enable the OpInIOn of the nation to be adequately expressed upon it. This

'rite H on. C. H. A. Eager.

wo?ld be specially needed as regards Bills winch affect the fundamentals of the Constitu-tion or introduce new principles of legislation.

In . another part of the report, Bryce agam states the duty of a second Cham-ber to give effect to the will of the people " :vhen adequately expressed." This House could not therefore be said to be acting improperly if it were to reject the B.ill, because the people have not yet been given ~n opp~rtun~ty of considering or e~pressmg then WIll upon the constitn-tlonal change proposed by the Bill. I

-have mentioned these matters in order ~o . demonstrate that the suggestion that It. IS ~he. duty of the Oouncil to pass this BIll m Its present form, and that it would be refusing to give effect to the will of the people if it did not do so has no foundation. The House is fre~ to con-sider the Bill entirely on its own intrinsic merits, and is at full liberty and is indeed, under a duty not to consent t~ any proposals unless such proposals are ~p~rove~ by its considered judgment. It IS m thIS way that I have approached the consideration of the Bill; and I may say at once, speakmg for myself t1iat I think the Bill should be read ~ second t~me S? that it may be taken into con-SIderatIOn in Oommittee of the whole House, in orde; that the House may thoroughly conSIder every aspect of the proper legislative powers of and the relations between the two Houses-because that is the real subject-matter ?f the ~ill-~nd determine what change, If any, IS desIrable in the distribution or limitation o~ their respective legislative powers,_ or In the method provided by statute for settling any differences be-tween them. I am prepared to enter upofl that task in Committee· and if the Bin . ' , goes mto Oommittee, I would urge that every honorable member should do the ~ame, a?d without regard to any party ms~ructIOn or party prejudice-things whICh should be abhorrent to this House -endeavour first to ascertain whether an~ in what. ~espect the existing consti-tutlOnal prOYISIOnS are insufficient and if they are so, to determine the best' method of improving them.

In that view it might be sufficient for me to stop here and reserve any detailed expression of my. own views for the OOin-mittee stage. But the dangerous tend-ency of the Bill, and the desirability of

o onstitution [17 AUGUST, 1937.] (&form) Bill. b~'1 full and free expression by every honor-able member of his views in order that they may receive ample ,consideration from every other honorable member, re-quire, I think, that I should state my views upon the general principles opened up by the Bill. Reduced to simple terms the pith of the Bill is that any Bill whatever--'except a Bill to abolish the Council, or to alter certain salaries fixed by the Constitution, or to alter the pro-visions of clause 2 of the Bill itself-if passed by the Legislative Assembly" alone in two successive sessions separated by a dissolution, may b~come law without the consent of the Council. I am entirely and unequivocally opposed to this pro-vision. It would destroy the bicameral legislative sygtem established by the Constitution, which system, in my opinion, should be pr~served. We speak a good deal about the bIcameral system, but as I understand that system the full term should be bicameral legislative system. Quite true it is that the Legislative Coun-cil under this Bill is not abolished and that the Bill provides that it cannot be abolished without its own consent. But the necessity for the insertion of this provision in the Bill shows the danger of the Bill. If the Dill is so dangerous that express provision has to be .made against the abolition of the Council, then the Bill goes very far indeed, in that it re-quires such an exception to be introduced into it. The matter of substance in the bicameral system is, not the mere exist-ence of the two Ohambers, but the existence of two Chambers with legis-lative power-which means, of course, the power to consent or to refuse to 'consent to legislation. The Bill now before us would deprive the Council of effective legislative power i~ relation to the whole of the political, social, and economic laws of the State, and to the maintenance of the Constitution of the State, because the words "any Bill," in clause 2, are J;he widest words that could be used. In re-lation to the whole political, social, and economic welfare of the State, this House might be deprived of effective legislative power, if the Bill now before us were passed, except that the Council could not be formally abolished, that certain Schedule D salaries could not be altered, and that the provisions of clause 2 of the

Bill itself could not be altered without the consent of the Council. That follows from the use of the words in clause 2-

If any Bill is passed by the Assembly in two successive sessions--

and so on-that Bitl shall on its rejection . . . by the Council . . . become an Act of Parlia-ment upon the Royal Assent being signified thereto-

I emphasize those words, "any Bill." The clause would make the Council sub-servient to and place it at the mercy of the Assembly. The constitution of Parliament, and of each lIouse, the qualification and number of members of each House, the term of Parliament, may all be altered without the consent of the Council. The political and social system may be fundamentally changed by the Assembly alone. The whole education system the licensing legislation, the system' of local government, the criminal laws the taxation laws-to mention but a f~w of the many laws now on the statute-book-may be altered without the consent .of this House. Matters at pre-sent within the sole competence of the State Parliament may be refer~'ed and handed over to the Parliament of the Commonwealth by the Assembly alone. This follows from section 51 of the Oom-monwealth Constitution, which, in effect, gives the Parliament or Parliaments of any State, or States, the power to amend the Commonwealth Constitution without a referendum by handing over, so far as such State or States are concerned, the referred State powers to the Common-wealth. The Legislative Oouncil would. become a mere consultative Chamber or advisory body, with no real power or significance. It could be deprived of all its substantial powers and reduced to im-potence by the Assembly alone; and its abolition would not then be worth dis-cussing. Shorn of any real power,' it 'would become a defunct Chamber; with-out being literally abolished, it could be destroyed as a legislative Chamber, exist-ing merely as an historical landmark 'without life and without power.

The Bill has been well described by those who speak with authority for tlie Labour party as the" starting point," the "first step towards the abolition of the Oouncil." It has been more crudely de-scribed by the Deputy Leader of the

588 Oonstitution [COUNCIL.] (Reform) Bill.

Labour party as "slow poison" for the Council. The Bill, as it stands, un-doubtedly tends in that direction-the administration of slow poison.

The Ron. J. R. DISNEY.-It will be-come much quicker in the near future.

The Hon. C. H. A. EAGER.-We must always watch the first step. That is the step to be watched, especially when on the down grade. Here I would point out that under the present party system an organized minority in the Assembly can ensure the passage of legislation in that House. That fact may be shortly illustrated in this way: A Bill is passed by the Legislative Assembly, the voting for which is as follows:-

Party. Members. Aye. No.

A. 23 23 B. 20 20 C. 18 18 Independent 3 3

Total 64 38 26

But party B, in the party room, may be only 12 to 8 for the Bill, and party C, 14 to 4; so that the real number for the Bill is only 26 while that against it is 38; yet the Bill passes by reason of the party system. If, in the party room, the party is unanimous-and if all parties are unanimous in the party room-the criticism I have made as to the operation of the party system is not appropriate. But as we know, although we do not enter the room of a party to which we do not belong, sometimes a matter is Agreed upon on the 12 to 8 basis, such 11S I indicated just now. Subsequently, in the House, however, the party votes unanimously as a party; then we have a majority vote which nevertheless represents a real minor-ity of members. What an abdica-tion of our duty to our constituents and to the people of the State it would be to C01l3ent to a Bill which would allow legit'lation to reach the statute-book in that way, with only an Assembly elec-tion, conducted on party lines, as j con-dition precedent, and against the will of the Council, and without its CO.tlsent. And here I would warn any who are toying with the Government's p\.·oposal that such use of the present Bill; if passed in its present form, wou](J be made

available not only to the present coali-tion which dominates the Assembly, but to any other party or combination of parties that may hereafter, by fair means 01' foul, be able to dominate that Chamber, or to an organized minority strong enough to extort from the Government the kind of legislation it desires. Those things I have mentioned are not merely fanciful; they exist in practice.

The Hon. E. L. KIERNAN.-Ras not an organized minority here dictated to the Coouncil in the same way?

The Ron. C. R. A. EAGER.-I am not aware of it; it may have been so, but I do not know of any instance. The Constitution of this State has been built up with great pains, and with skill, and is now working rea-sonably well in practice. Viscount Bryce has been referred to in the course of recent debate. Indeed, his words have been, so to speak, the Bible of the Government. On many public occasions, both in the Assembly and in this House, both in con-nexion' with the Bill of last year and that now before us, Viscount Bryce has been quoted. I too shall make a quota-tion. Speaking of the changing of a Constitution, Viscount Bryce said-

Any fool can with one blow of his hammer destroy a statue that took Michael Angelo years to perfect.

We must examine the Bill now before us to see whether it may not resemble such a blow of the hammer. In. doing this we must review the whole Constitution in order that its several parts may be brought into proper relation with each other; and that proper checks and balances may be provided and maintained. The powers and functions proper to be conferred upon or retained by a second Chamber cannot be determined in the abstract. They must be related to its constitution and character. Is it ::m hereditary, nominee, or elected Chamber? What are the qualifications of its mem-bel's? If it is an elected Chamber, what are the qualifications of the electors? Olearly the considerations applicable to an hereditarv Chamber differ from those applicable t~ an elective Chamber. I shall presently apply that observation to some comparisons which have been made between the House of Lords and this Chamber, because this Chamber is of a representative character. In favour of

Constitution [17 AUGUST) 1937.] (Reform) Bill. 589

the retention of wide powers by the Legis-lative Council is the fact that it has such a representative character, and the faet that it is broad-based upon a household franchise. I think that substantially ex-presses the basis of the franchise of thjs House. There are, of course, other quali-fications. Wh

590 Oonst'itution [COUNCIL.] (Reform) Bill.

3. To reject any legislation which is in its considered judgment unwise, unless such legislation is shown to have the approval of the people;

4. To preserve the existing Constitu-tion of the State in its essential fea-tures, until satisfied of the wisdom of any proposed alteration or of its being the considered will of the people.

I might here point out that in the Bryre report, attempted to be relied UDon by the Government to support this Bill, the following statement is made:-

Only in one respect does the subject of legis-lative functions of the second Chamber present Ilny serious difficulty. It has always been llnderstood in this country-and this is the practice in nearly every country where H second Chamber exists-that the second Cham-ber should be entitled to full power in the sphere of such legislation as is not of a financial character. It may revise and amend, and in some cases refuse to proceed with a Bill brought to it from the other House. j t may initiate o]'(linary Bills both public and private. It may discuss all questions of gene-raJ domestic and imperial policy. In financial matters alone is its range of aetion limited by the long established snperior rights of the popular House.

Acceptance of this proposition is fatal to the Bill as put forward by the Govern~ ment. The Government, in its blind re~ forming zeal, or perhaps with less injus~ tice to its members, I should say under the urging of those by whose grace it holds office, does not even restrict the proposed unicameral legislative power to finance Bills, but extends it to all Bills whatever other than as provided in sub-clause (7) of proposed new section 37 of the Oonstitution Act Amendment Act.

For my part, I think we should strive to adhere to the fundamental provision of the Oonstitution, stated in section 1 of the Constitution J\..ct in these words:-

There shall be established in Victoria one JJegislative Coullcil and Olle Legislative ·As-sembly . . . and Her Majesty shall have power, by and with the advice and consent of the said Council and Assembly, to make laws in and for Victoria. ill all cases whatsoever.

This Bill prop.oses that His Majesty shall have power to make laws in and for Vic-toria in all cases whatsoever, other than the trifling exceptions to which I have referred, without the advice and consent of the Legislative Council, but on the adyice and consent of the Legislative Assembly alone, with, of course, an elec-tion interposed between the two sessions

'l'he Hon. O. H. A. Eager.

of the Assembly. This innovation, in my opinion, would be full of danger to the people of this State and would remove the best safeguard for the good govern-ment of the State, namely, the existence of a second Chamber with a constitution and powers sufficiently wide to enable it effectively to exercise the proper powers of a second Chamber under the bicameral legislative system, and at the same time to allo'w that the will of the people when properly ascertained and adequately ex-pressed, shall always be given effect to. r know of no occasion, at any rate in this ?entury, when the will of the people, hav-lllg been expressed in some reasonable way, has not been given effect to by this House. r suppose we may well say that the present sound social and econo~ic conditi.on .of this important State IS good eVIdence of the beneficial effect of the operation of the Oonstitution providing as it does for a second Chambe~ such as I have described.

This Bill proposes a certain remedy for an alleged disease. We must be careful that any remedy we prescribe does not promote the disease alleged to exist. The Minister of Public Instruction will know that it is true, not only of political science but also of medical science that some-tin~es there are remedies 'and viruses w hlOh may promote the disease they are alleged to prevent or cure. This Bill if p~ssed into law, may be used to cr~ate dIfferences, because, if I may add this further observation once the means of do~ng something, o~ dealing with some-tlung are created-whether in business or domestic life, in politics or in any other way-being there, the means are used under the illusion sometimes that they ought to be used, and that it is ridiculous for them to be lying idle. To give the Legislative Assembly, or the Government for the ti.me .being, a coercive power, such as thIS BIll would give, would tfmd to make the Assembly or the Government unreasonable. We may also be certain that the party that had the initiative in the Assembly would use this Bill to secure its own party advantage, and the rule of a party may ,veIl be, and sometimes has been, the basis of a tyranny. This House is here to protect the people of the State against the use of powers such as I have outlined, at any rate until the considered will of the people is expressed in favour

Constitution I J.7 .AuGUST, 1937.] (Reform) Bill. 591

of their use, because whatever we may think of the wisdom of a proposed law, once it appears that the people want that law they are entitled to have it, under a democracy, even though it be unwi~e. But until the people do say they want It, until, in the language of the Bryce report, they do adequately express their opinion on it, this House is entitled and, I sug-gest, bound not to give them bad laws.

If the speech of the Minister of Public IJtstruction correctly states the view of the Government on this Bill, the Govern-ment is looking in any direction other than that in which it is going; it is being swept along by its supporters in the direc-tion of abolition. There is no doubt that the majority in the Assembly at the pre-sent time is opposed to the party which gives the Government its majority and desires the abolition of the Oouncil. That is the way in which the Government is being swept, perhaps against its own views, but nevertheless by force of cil'-tumstances. One is compelled to' treat this Bill as having been conceived in tbe present companionate alliance of the IJabour party and the Oountry party.

The burden of the Minister's reasons for bringing in the Bill was the alleged un-compromising attitude of the Oouncil in the exercise of its powers, and in particu-lar the alleged stubbornness of its managers in conferences between the two Houses. An examination of the facts does not support this complaint. I have made an analysis of the legislation in-troduced by the present Government since it assumed office in April, 1935. Apart from the Oonstitution (Reform) Bill, which was much the same as the present measure, and was rejected last session, the I_egislative Oouncil has since April, 1935, rejected two Bills only. One of them waR a small Local Government (Rates) Bill of no great importance, and the other was a Stamps Bill, which was to tax transactions in shares, and was intro-duced three times in various guises. The Melbourne Metropolitan Oouncil Bill, of 352 clauses of an involved and highly contentious nature, was introduced near the end of last session, but it could not he properly dealt with in the short time ~~vailable for its discussion, and was post-poned. The Legislative Oouncil has never in recent years~I think I can say in this century-persisted in opposing

laws shown to haye the will of the people behind them. I shall not deal with the results of conferences between managers of the two Houses upon differences which have arisen between them, further than to say that the Minister's suggestion that managers of this House have always in-sisted upon their views without compro-mise, is not borne out by the facts.

The Hon. E. L. KIERNAN.-Were those the conferences with which the present Minister of Public Instruction was con-nected ~ He has prided himself on his obstinacy.

The Hon. O. ·H. A. EAGER.-He js like the reforJIled sinner who says" I was a terrible man in the past." Like many a repentant sinner the ),Iinister has painted himself in a blacker light than he deserves.

The Hon. E. L. KIERNAN.-I think we have to agree with him.

The Hon. O. H. A. EAGER.-I hope that other honorable members who have been present at these conferences will deal with the Minister's statement. I have been a member of the House for seven years, and have been on nearly every con-ference that has taken place in that period. and I know that almost without exception the conferences have proved fertile in mutual compromises and concessions to the views of the managers of either House. 1 shall give Mr. Kiernan a specific instance of such a compromise, and tell him what was said at the time in the early hours of the morning by those who took part in the conference. I think that the Minister of Public Instruction was one of the members who took part in that com-promIse.

Sir JOHN HARRIS.-What compromise was that?

The Hon. O. H. A. EA.GER.-I shall come to that.

The Hon. E. L. KIERNAN.--The only occasion when the Minister of Publi'c I nstruction compromised was when he was accused of being a jellyfish.

The Hon. O. H. A. EAGER.-I could support my statement by reference to the .Minutes of the Proceedings and to the reports of the debates of this House, but to do so would be to extend this speech to an inordinate length. I shall merely sup-port the interjectory remark made by me when the Minister was speaking, in which

592 Oonstitution rCOUNCIL·l (Reform) Bill.

I referred to the compromise and agree-ment reached between the managers of the two Houses on the Financial Emergency (Mortgages) Bill in 1932 as one instance sufficient to disprove his allegation that the attitude of the Oouncil's managers at conferences has been one of no compro-mise. The Leader of the Labour party -one of the Assembly managers-when moving in the Assembly that the recom-mendation of the conference be agreed to said-

Unanimous agreement was arrived at be-tween all parties. . . . There was a con-siderable amount of give -and take on both sides, and I think both parties came out of the conference with credit to .themselves. I believe the result of their deliberations will be of benefit to the community as a whole and undoubtedly will improve the legislation:

Sir JOHN HARRIS.-He was licking his wounds.

The Hon. O. H. A. EAGER.-Not at all. If he was, then we should see that the whole tribe was licking its wounds. The Minutes of the Proceedings of this House have nothing to do with the licking of wounds, but they tell the facts as recorded by the Olerks at the table. I will quote from the records which show what the compromise was.

The Hon. E. L. KIERNAN.-Was that the occasion when the Minister of Public Instruction was attacked for giving some-thing away? . The Hon .. O. H. A. EAG ER.-I always ~lke to mentIOn my authority; I was quot-Ing from page 4045 of volume 190 of Hansard. On the same page the present Minister of Water Supply, who was then the chairman of the committee of the Oountry party, is reported to have made certain statements. I do not know whether he was licking his wounds.

Sir JOHN HARRIS.-Very likely. The Hon. O. H. A. EAGER.-How-

ever, the present Minister of Water Supply said-

In common with Mr. Tunnecliffe I desire to say that the conference met in an exceed-ingly good spirit and considered the matter not so much from the point of view as to what the respective parties could get out of it, but as to what was the right and proper thing to do under all the circumstances in the interests of the people concerned.

The Hon. M. SALTAu.-That is always the attitude here.

The Hon. O. H. A. EAGER.-I agree with thnt statement. If the House is not

satisfied with the opinions of the Leader of the Labour party, or of the present Minister of Water Supply, I will quote the views of Mr. Blackburn, who was also a member of that conference. He is not a man who licks his wounds. He states the facts without hesitation.

The Hon. J. H. DISNEy.-He is full of fight.

The Hon. O. H~ A. EAGER.-He said-

The representatives of another place ~re trying to get the best for all persons. I can assure the House that the result of the con-f rence is, in my opinion, satisfactory; the result is an integration of ideas.

Mr. J ones announced the compromise to this House. The full extent of the· compromise can be seen by an examina-tion of the lYI inutes of the Proceedings of this House for the year 1932, and par-ticularly of those reported on page 90. This was only one of a number of success-ful conferences held between the two Houses.

The Hon. M. SALTAu.-Oould you in-dicate any unsuccessful conferences?

The Hon. O. H. A. EAGER.-The only conference that would approach a want of succeqs that I can recall in the seven years, is the one on the Farmers Debts Adjustment Bill. This House was insistent on the retention of the dis-claimer provision, and on the retention of the clause for the protection of creditors providing that they should be informed of all applications that were made. The Government said it would not have the legislation with that provision. How-ever, it took it, and the latest pronounce-ment of the Premier is that the Act is a splendid one. The Government says that the legislation is working well. .

The Hon. M. SALTAu.-The disclaimer provision proved to be very necessary.

The Hon. O. H. A. EAGER.-Yes, and we were. proved to be right in insisting on it. I have mentioned that case in answer to Mr. Kiernan. That is an in-stance in ·which we were not obstinate, 'but we were determined that the two clauses should go into the Bill. We con-ceded other provisions. That is the only conference which I remember in which we were so determined, unless it was the conference in connexion with the trans-port regulation legislation, when our managers were led by the present

Oonstitution [17 AUGUST, 1937.] (Reform.) Bill. 593

Minister of Public Instruction. We were fairly determined on certain clauses being put in the Bill so that road transport should not be slaughtered in favour of State transport. I think that some members of the present Govern-ment had a good deal to do with the framing of the legislation in the way in which this House assisted to frame it.

Sir JOHN HARRIS.-I have not claimed that this House was not always right.

The Hon. C. H. A. EAGER.-There is a double negative in the Minister's statement. The general burden of the honorable gentleman's charge was that in connexion with conferences the Council's managers were obstinate men who refused to compromise. The one instance I have given is sufficient to prove that that state-ment is wrong. I hope that other members will take up the question and show what the -Minister said was not correct. As the honorable gentleman remarked, records are pot kept of what is said at conferences, but the Clerks at the table keep records and honorable members who' were present are entitled to say what was said at the conference.

The Hon. M. SALTAu.-Have you looked at the A.ppropriation Bill that was referred to?

The Hon. C. H. A. EAGER.-I have not, but I know enough about it to say that we did not reject the Appropriation Bill in such a way as the Minister sug-gested. However, there are certain facts that I shall not go into as they would stretch my speech to an inordinate length, and I hope the subject will be dealt with by other members. I have only stopped to deal with one successful con-ference because, as the Minister said, no records are kept of what is said at con-ferences. The general statements made by the Minister of the alleged uncom-promising attitude of the Council managers at conferences might mislead those who heard or any who might read his speech, unless they were shown to be wrong. I trust that some other members who have sat upon these conferences will deal more particularly with this question than I feel myself at liberty to do in this speech.

We have also heard a good deal about " deadlocks" between the Houses; but I only know of three, each of which con-

cerned a money Bill and was concerned' with the expedient of "tacking." The last of those occurred 60 years ago. In ' 1865 the McCulloch Ministry included. in its Appropriation Bill a provision for' tariff and gold duties repeal. The Council' objected to the "tacking." After some delay the Government gave way and acceded to the Council's objection to the " tacking." In 1867 the Government proposed a grant of £20,000 to Lady Darling, wife of the former Governor, and placed it in the A.ppropriation Bill. The Council rejected the Bill. Again, after some delay, the Government intro-

'duced the grant in a senarate Bill, but before it was dealt with by the Council Sir Charles Darling accepted a pension from the Crown and the Bill lapsed. In 1877 the Berry Ministry introduced a vote for payment of members of the A.ssembly into the Appropriation Bill. The Council laid the Apnl'opriation Bill aside and refused to pass it. Then fol-lowed the well-known dismissal of public officers and servants on what came to be known as "Black Wednesday," the 9th of January, 1878, and the govern-ment of the State 'became disordered. The Government finally submitted a separate Appropriation Bill, which the Council accepted and passed. The Council, on the three occasions to which I have referred, incurred con-siderable public criticism, and even odium in some quarters.

The Hon. W. H. EDGAR.-Were the powers of the Council used illegitimately?

The Hon. C. H. A. EAGER.-No, I think not.

The Hon. W. H. EDGAR.-It has been said that this House has used its powers illegitimately.

The Hon. C. H. A. EAGER.-Sixty years have elapsed since the events which I have just related occurred, and, looking at the matter in a clearer perspective than was possible at the time, I think it can be said that the victory of the Legisla ti ve Council on those three occasions resulted in the protection of the true interests of the people. Honorable members arC3 aware that in those days there was great criticism of the Legislative Council, par-ticularly with respect to what I may term the Darling grant, because Sir Charles Darling was a popu1ar man, who was thought to have done a great deal for the

094 Oonstitution [COUNCIL.] (Reform) Bill.

State, and many great politicians and orators of that time attacked the Oouncil severely on this question. But the fact stands out that in that case, as in the other two instances to which I have re-ferred, a matter which should have been '~onsidered entirely on its own merits was Included in an Appropriation Bill-'H tacked on to it" is the term-in such a way that the Council was restricted in the exercise of its powers in the considera-60n of the Bill. How often have I heard the Minister of Public Instruction as unofficial Leader, protest against' the practice adopted by Governments-it is a favorite device with all Governments-of l'estricting the proper exercise of the judg-ment of the Oouncil by including two or three separate matters in one Bill! A case in point is the Stamps Bill submitted last 'year, to which I shall refer presently.

Smce 1878 the relations between the two Houses have been relatively smooth with an occasional flare-up of n~ great importance. Since 1903, when the relations between the two Houses were placed on their present statutory foot-Ing, they ha ve been, on the whole, excellent, with, of course occasional differences, generally of little account and sometimes deliberately created by ~ Government for political reasons.

Sir JOHN HARRls.-To which Govern-ment are you referring now?

The Hon. O. H. A. EAGER.-I think all Governments are apt to do that at t~mes. ~f a Gov~r~lment is sinking a httle ~ow III ~he opmlOn of the people, it sometImes tl'les to create a disturbance h.etw~en the two Houses. The old prac-twe IS to abuse the other side if you have 110 case, and it is an enlargement of that maxim which induces a Government when its stocks are running low to attempt to obtain. a little popular approval by at.tackmg what are called the big Tories.

The Hon. E. L. KIERNAN.-Is that due to the fact that there are generally lawyers in the OabineH

The Hon. O. H. A. EAG ER.-I do not think so, because it exists with the present Government, and to a very marked degren,

Sir JOHN HARRls.-And there are 110 In wyers in that Governmen t ?

The Hon. O. H. A. EAGER.-There is of course, no member of the Oabinet with the technical qualifications of a lawyer. but I do not wish to convey any disrespect

to the Attorney-General, who has shown a very great knowledge of the principles of the law, and has done his work perhav as well as a technical lawyer would.

Sir JOHN HARRIs.-I am glad I gave you the opportunity of saying that. . The Hon. 9. ~. A. EAGER.-I say It, and I beheve It too. The Bill pro-ceeds on the assumption that a Legis-lative Assembly election is a means, and the best means, of ascertaining the ~ill of the people upon any matter in differ-ence between the Assembly and the Ooun-cil, and that the will of the people is thereby ascertained with such certainty that any Bill in difference may become law against the will of the Council. Other members will probably deal with this assumption and I shall leave a good deal on that point to be said by them. I know that it is the opinion of a number of honorable members that such a course as the Bill proposes would be entirely futile. They have other proposals in view, but I would point out that an election. for the Legislative Assembly is an electIOn conducted upon party policies within the Assembly itself. A great many is.sues, of which in many electorates the dIfference between the Houses might not even be one, would be brought forward at this as at every election. Personal issues would also enter into the election. The i~su~ upon a .Bill rejected by the Oouncil IS not an Issue between parties or members in the Assembly and the Legislative Council would not 'nor would ~ny of ~ts members, have the right to Intrude mto an Assembly election upon such a matter.

The Hon. 'l\L SALTAu.-At the recent Council election, members of the Legis-lative Assembly went out to fight for the so-called reform Bill.

The Hon. O. H. A. EAGER.-Sup-pose, for example, there is an Assembly election at Brighton and a member of the Legisl~tive ~ouncil says, "I want to come Into thIS election and present my views." What would those candidates who were concerned for instance with foreshore erosion and local problems say to such an intruder? They would say' "A d . , tten to your own business. This election is being fought upon matters of local interest and personal concern. None

Oonstitution [17 AUGUST, 1937.] (Reform) Bill. 59&

of us is troubled about the dispute be-tween the Legislative Assembly and the Legislative Oouncil. We are concerned with the dispute between us as candidates of the Labour party and the United Aus-tr~lia party respectively." Or, they mIght say, ," We are concerned about the covering of the Elster Oreek because of the outbreak of in£antile paralysis." That is what goes on at an election. Of what use is a Legislative Assembly elec-tion to determine a difference between the Assembly and the Oouncil? The ~ssue upon. a Bill rejected by the Council IS not an Issue between parties or mem-bers in the Legislative Assembly at all. The ground of dissolution as far as the Governor and his advisers are con-cerned would, of course, under the Bill now before us, be the difference between the two Houses) but the Bill does not prov~de-and it would be impossible to provIde-that at such an election that difference should be the issue or even one of the issues between the parties. Inevit-ably also, the Government in power at the relevant time would be likely to use th.e pow~r of dissolution given by the ~Ill for ItS own party purposes, in addi-tion to or apart altogether from its proper purposes as related to the Bill.

Further, under the Bill the election is an election at the option of the Go-vernment. This would give the Govern-ment of the day a weapon to be used at its own cho~ce, with. the opportunity to create occaSIOn for Its use. It will be recalled that the Bill does not provide for an election automatically to follow any d~fference between the Houses. If there IS a di.fference, the Ministry may seek an occaSIOn to ask for a dissolution. If the Governor grants a dissolution -I shall not at present discuss his power t? refuse or accept the advice-an elec-tIOn follows, at which the Government can choose its own issues. The fact that a dissolution has been granted because of the difference between the two Houses do.es not limit the question to be sub-mItted to the electors to that difference. An election as a means of settling any differences between the Houses would also tend to ;e!i~ve members from the duty and responslbIhty of themselves settling their own differences. It would thus be a weakening of Par liamen t and of its re .. sponsibilities. Viscount Bryce in discussing

this proposed method of settling a differ-ence between two Houses, put the matter' well in his work on Modern Democracies" in which he said-

An election is an election, a choice between: candi?ates as well as b,etween policies, an o~caslOn when so many Issues of policy a.re' sImultaneously presented, that it is seldom: possible to treat anything as having been really decided. After the election one party claims that the electors gave a "mandate" on .one particular. issu:e; another party or sectIOn makes a lIke claim, and there IS no means of telling which is right.

He then went on to state his view that "only a consultation of the people can decide." In the report of the Bryce com-mittee, which deals with second Chambers generally, an election does not even re-ceive mention as a method of settling differences between the two Houses.

If some' method of settling differences between the two Houses other than that already provided by section 37 of the Con-stitution Act A.mendment Act should be devise~., the method that seems least ob-jectionable is either that of extending the free conference procedure, or submitting the matter in difference to a joint sitting of both Houses, and providing that any Bill shall be deemed to have the consent of the Legislative Oouncil and Legislative Ass~m.bly if it is passed by an absolute :r:r;ta~ority of both Houses at such joint sIttrng. I would be more in favour of ~his latter method if the preponderance In number of members of the Assembly over the Oouncil was not so great as at present, namely, 65 to 34. If the number of Assembly members were reduced from 65 to 51 upon a reduction and a very necessary redistribution of Assembly elec-torates, so that the ratio of members of the Legislative Assembly was three to two of the Legislative Oouncil, I think you would have that prenonderance-of 50 per cent.-which should perhaps rightly b~l~ng to the Assembly in such a joint sIttrng, but would not be calculated to swamp the Oouncil. Such a method would h~ve the great a~valltage of having any ~Iffere~ce determrned by representatives In ParlIament. The joint sitting would not reliev~ ~embers from their duty and re-sponslbilIty to compose their differences if possible, as an election might b~ tho~ght to do. The Bryce committee-I agaIn refer to that committee, because the more one reads and examines its report

596 Oonstituti.on· [COUNCIL.] (Reform) Bill.

the more one is convinced that it is de-structive of arguments in support of the Bill-considered the joint sitting of both Houses as a method of settling differ-ences but it failed to command general assent that committee being of opinion that the free conference between both Houses was the best method of settling differences between them. If the Govern-ment desires a dissolution of the ~t.\.ssembly to follow a difference on a Bill, I would say that we should agree to that, so long as we recogni~e that the ~ere result of the election IS not conclusIve, and that in the event of a continued dif-ference between the Houses the parlia-mentary representatives in a joint sitting, or a free conference of members of both, Houses shall be the final arbiters.

The 'Hon. E. L. KIERNAN.-That is exactly what I proposed la~t' year-that if the two Houses were stIll unable to agree following a dissolution of the As-sembly the matter should be settled by , ... . both Houses at a ]omt slttmg.

The Hon. M. SALTAU (to the Hon. E. L. Kiernan).-Would you do that on the present numbers?

The Hon. E. L. KIERNAN.-Yes. The Hon. C. H. A. EAGER.-I am

glad to hear that expression of opinion by Mr. Kiernan. At present I am en-deavouring to describe several practical methods of overcoming a difference be-tween the two Houses, and to point out their advantages and disadvantages.

The Hon. E. L. KIERNAN.-That is a practical method of ending a deadlock.

The Hon. C. H. A. EAGER.-I have suggested already an extension of the free conference system, and the joint sitting of both Houses, with a decision by an absolute majority of members of both Houses. There is a third method to which I shall refer, because it has very great merit. Failing either of these methods, a referendum of the people on the specific matter in difference might be taken at the same time as a general elec-tion. The referendum would add little to the cost of the proceedings, and the specific answer of the people to the ques-tion in difference would set at rest all arguments and doubts as to the proper inferences to be drawn from the success of particular candidates or parties at the eJection. It seems ridiculous to suggest

that you can find the people's will on a question which is or may be Ol1e o~ hun-dreds agitated before them by lookmg at the particular candidates elected and examining their general policy or that of the party to which they belong, but cannot find their will on the question when it is separately and directly sub-mitted to them and specifically answered. That will not bear examination for onf-! minute. The refusal to accept a referen-dum can only be dictated by a fear of the people, or by a refusal or unwillingnesH to accept their will. Experience shows that the result of a referendum is gene-rally against what is supposed t.o be popular agitation. We had an instanc(! of that within the past six months. The truth is that those immersed in politics, particularly in party politics, are often the least fitted to judge of the people s minds. So obsessed by party are they and so continually surrounded by peOPJl~ of their own cast of thought, or who play up to them and flatter them, that the,V lose all sense of proportion. Further, most Governments, and many members of the so-called popular House, live in t(lrror of dissolutions and premature general elections, and have their minds concentrated on these things. I think the members of a House such as this, who have llOt the perpetual election complex, and are able to take a more detached and independent view, are perhaps as well able to know, und to give effect to the true will of the people as are the members of the other House.

Although I have been doubtful UpfJll this point, I think that, consistently with the views I have stated, I can support the second reading of the Bill, in order to see whether some satisfactory measure can be constructed in Committee for the bettel' solution of any differences that may here-after arise between the two Housel:!, as I feel might be done if Ministers and mem-bers generally will allow themselves the dignity of using and acting in accordance \vith their own jUdgment in considering any proposals that may be put forward. If, in Committee, ,vhere all proposals fall to be decided by a simple majority cf those from time to time ·present, a reason-able Bill is not produced in accordance with the reasonable judgment of iudi-' vidual members of this House, I shull hold myself at liberty to vote against thi~ Bill on its third readinJ!'.

Oonstitution 1)7 AUGUST, 1937.] (Reform) Bill. 597

I shall reserve, until the Committee stage, certain observations upon the neces-sity for providing safeguards in certain events against the inclusion in one Bill of several subjects of taxation, against including matters other than the ordinary uppropriations in Appropriation Bills, and otherwise against "tacking" of Bills by the Government. If this Bill, or any other Bill of a like kind, were to be passed, particularly if it were to provide for nothing lJUt an election, and even if i.t were to provide for a referendum in addition to an election, it should contain safeguards against issues being misrepre-sented. There is nothing more prolific of trouble making than "tacking" of Bills. Ey "tacking" of Bills, I mean the inclu-sion of different subject-matters in OIle Bill. If this House rejects such a Bill, it is said that the Legislative Council has rejected the good por-tion of the Bill, but no one troubh-3s about the bad part. An example of the use to which Bills of that nature might be put by an unscrupulous Govern-ment, in an attempt to place this Hous~ in a false position with the people, is furnished by the Stamps Bill, to whi(:h I have already referred. That Bill was first brought forward by the present Government as a single Bill to raise rE'venue by means of a stamp tax on transactions in shares. The Bill was rl?--jected by this House. When the Council rejected the Bill, the Government Hgain sent the Bill up with what was, in effect, a second Bill tacked to it for an equivalent reduction of stamp duty on transfer of land. This was either by way of a bribe or a threat directed at members of this House. "When this House again rejected the Bill, Ministers entered into the recent Legis-lative Council election campaign and per-sistently asserted that the Council had rejected a Bill for the relief of farmers and other persons having dealings in land. Such conduct as this must be guarded a~ainst.

Sir ALAN CURRIE.-It is not playing the game.

The Hon. C. H. A. EAGER.-I have given other instances of that device being used. One of those instances occurred 60 years ago, and the practice has been re-sorted to since. I shall move in Com-mittee, if no other member does so,

that safeguards against "tacking" be inserted in the Bill. The Government's eonduct in connexion with the Stamps Bill is a striking argument in support of the futility of an Assembly election alone as a means of settling differences between the Houses, because it shows clearly how any action by this 'House can be misrepre-sented to the people by a statement which gives a part but does not reveal the whole of the truth. I shall also bring forward in Committee a matter whieh is too diffi-eult and eomplicated to be added to the speech I am now making, namely, the extent of the power of repealing or alter-ing the present Oonstitution possessed by this Parliament, or by the Assembly alone, if a Bill such as this should be passed. This Bill proceeds upon the assumption that, without expressly amending section 1 of the Constitution Act, and in spite of section 1 of the Con-stitution statute of the Imperial Parlia-ment, any Bill may become law upon the consent of the Assembly alone, even, ap-parently, one repealing or altering the fundamental provisions of the Oonstitu-tion itself. This has both a legal and a political aspect about which I shall say no more at present, except that the Bill in its present form, if passed into an Act of Parliament, would apparently auth-orize the Assembly alone to destroy the existing Constitution, because, as so clearly appears upon looking at clause 2 of the Bill, any Bill, other than those trifling' exceptions to which I have re-ferred, may become an Act of Parliament upon the advice of the Assembly alone. Section 60 of the Victorian Constitution Act gives to the Parliament, as consti-tuted by that Act, certain powors of repeal and amendment of the UOllstitu-tion. The supposition of the Bill is that it includes po'wer to authorize the As-sembly alone to repeal" alter, or vary [my of the provisions of the Oonstitution.

The Hon. M. SALTAU.-Would a refer-endum, or a joint sitting of both Houses, stop that?

The Hon. C. H. A. EAG ER.-A re-ferendum, or a joint sitting, would inter-pose another authority between the will of the Assembly and the act of Parlia-ment. I do not say it would stop it be-rause if, as would appear to be the case, this Parliament is sovereign within its own sphere, as it has been laid down th:1t it is under the Constitution Act,

598 Oonstitution [COUNCIL·l (&form) Bill.

and the Oonstitution statute of the Imperial Parliament, and it has t~e powers set out in section 60 of the Consti-tution Act to repeal, alter, or vary any of the provisions of the Constitu~ion, I 's~ppose this Parliament as. constIt~ted, wIth such checks, if any, as It may Impose by way of referendum or joint sitting of both Houses, may do any of those things. The point about having a referendu~, or. a joint sitting or a free conference, IS thIS: It would ~ot be the majority in the Assembly alone that was going .to upset the Constitution. That is the pOInt to be guarded against. My view is t~at any Bill repealing, altering, or varyI~g ~ny of the provisions of the Constitutlon, should be entirely excluded from the operation of this Bill, so that any such Bill shall not become law except upon the advice of the Assembly and the Coun-cil. In other words, fundamental altera-tions in the Oonstitution should not be permitted without the consent of both Houses. That organic law stands on quite a different footing from ordinary legis-lation. I do not wish to be an alarmist, or state things which may be thought to be improbable, but we all know what rapid changes can take place in the form of government. This Bill, if passed, would undoubtedly allow a majority-perhaps, a chance majority-in the As-sembly to alter fundamentally the system of government in this State. I shall deal further with that in Committee.

This Bill raises no question of the right of this House or of its members considered otherwise than as instruments for the good government of this State. We are not concerned with our own individual rights or powers, but with this House as part of the organ of governm~nt. But if, as I think, the good government of this State requires the continued existence of this House in its full integrity as a legis-lative Chamber, and if, as I think, the people of this State themselves are of the same opinion, I shall not, and I hope this House will not, in the final resolution assent to any Bill the real effect of which is, or may be, to destroy this House as a legislative Chamber, and to endanger the Constitution of this State.

(Af 6.27 p.m. the sitting was suspended until 7.55 p.m.)

The Hon. O. H. A. Eager.

The Hon. J. 14. BALFOUR (Gippsland Province).-Wheh explaining the Bill the Leader of the House expressed the opinion that it was the most important measure that had been introduced during the past 30 years. I would be tempted to go further, and say that it is more important than any other Bill which this House has been called upon to consider since the Australian Federation Enabling Bill of 40 years ago. It is certainly more important than the 1903 legislation, be-CEmse it is designed to accomplish in regard to settling disputes between the two Houses what that legislation failed to do. Unfortunately, it has been thought in some quarters that the mea-sure now before us has been brought for-ward a's a matter of discipline for the Legislative Oouncil. I was very sorry to h8ar Mr. Eager refer to "the blind reform-ing zeal urged by those by whom they are kept in power." I hope that I noted correctly what he said. I wish to 'say that this legislation was really initiated at the Bendigo conference of the United Country party in 1935, at which more than 700 delegates from all parts of this State attended. Without minimizing the importance of the proposals or of our responsibility in connexion therewith, I feel sure that this House welcomes the opportunity of dealing in some way with the method of settling disputes between

. the two Chambers. Mr. Eager said that consideration of the Bill has been made difficult by the fact that there is no mandate from the people. I venture to say that there is no political question upon which the people are better informnd to-day than this issue. It is almost twelve months since the matter was before Parliament. It was dealt with in another place and also in this House. Since then we have had a triennial election, and throughout the whole of the campaign great attention was paid to the question by the press, by speakers on political platforms, and in broadcast addresses. No question received more attention through-out that campaign than did the question of reform of the IT pper House.

It is natural that when important con-stitutional questions are before the people there should be great controversy, and at times that cop.troversy is made difficult by the manner in which those concerned

Oonstitution [17 Al!Gusl', 1937.] (Reform) Bill. 599

act. I suppose that the two most im- to continue it as a House of review. Mr. portant landmarks in the political history Eager stated that the Bill will help the of England are the Reform Act of 1832, Assembly to destroy the Oouncil, that it and the Parliament Act of 1911. That will destroy the Oouncil's powers and legislation was passed through the House give the Government a coer~ive pow~r. of Lords only because the respective Kings During the debate on the ParlIament BIn had threatened to use their prerogative in the House of Lords, Lord Selborne and create sufficient peers for the passing said-of the legislation. It will be remembered Any form of nationalization of property might h · 3 h D k f W 11' t 1 take place; if under guise of finance in one t at In 18 2 t e u e 0 e lng on all( session, if otherwise, in two years. Land may

more than 100 other peers refrained from be nationalized, railways, ships, banks, or, voting. In 1911 Lord Lansdowne and a indeed, the whole of our industrial system as great number of Conservative peers re- at present known, might be abolished. frained from voting in order that He was right. That could happen if the Parliament Bill should pass. public opinion desired it. When public

The manner in which this House has opinion does desire it it will take place, received the Bill now before us leads me but not before. The Government desires to believe that it will receive full con- this House to be a House of review. One sideration and will be dealt with on its of the important reasons for the exist-merits. I was exceedingly gratified to ence of the second Chamber is that it is hear Mr. Eager say that he would support a place where non-contentious legislation the second reading. We know too well can very properly be initiated. As a that proposals for reform have been comparatively new member it appears to killed by heated argument and impotent me that this House could serve the country debate. The Leader of the Govern'ment to a greater extent if more non-conten-in this House, when moving the second tious legislation were initiated here. We reading of the Bill, referred to the im- know that because of the pressure of pregnaple position of the Legislative business in another ulace it is not pos-Oouncil up to 1903. There are some who sible for all the legislation brought for-would like to see it retained in that posi- ward to be properly dealt with there. If tion, and on the other hand there are a greater amount of legislation were some who want this' House abolished. initiated in this House and sent to another The proposals of the Government take place ready for it to consider, this 110use the middle course. It desires to retain would be serving the country to a greater the Legislative Oouncil, and its proposals extent than it is now. At the present provide a reasonable method of settling time, because of the pressure of business disputes between the two Houses. The in another place there is great danger remark of Mr. Eager that democracy of government by the Executive. It is requires the continuation of the second very rarely that a private member can Ohamber would be supported in full by bring forward a major Bill and get it the Government. We who support the placed on the statute-book. This House Government desire the Legislative Ooun- is required for the examination and re-cil retained. We believe that it is serving vision of legislation sent up fro,m the the purposes of the country to the ad- Lower House. Mr. Eager said that it' vantage of the country, and that is why was the duty of this House to protect the the Government, in preparing the legis- people against the Lower House. It is lation, inserted the safeguards which it interesting to recall the fact that this contains. There is one thing that can development is only the result of the

600 Constitution ~COUNCIL.] (&form) Bill.

element, with the result that legislation introduced by certain Governments had an easy passage, while legislation from a Liberal Government met with short shrift. It has been said that in Victoria legisla-tion from certain Administrations has not received the same consideration in this House as that from other Administra-tions. I shall quote an extract from the speech delivered by the unofficial Leader of thjs House on the 24th of October, 1936. It will be found on page 2212 of Hansard-

The one thing that has struck me during the whole time I have been in thp House is the reasonable way in which it has exercised its undoubted powers. There have been many occasions, as honorable members will remember, on which we in this House have had an overwhelming majority against. the Government, and on which, if this House had liked to assert its power, it could have sent any Government about its business.

Although there may be difference of opinion as to the reasonableness or other-wise with which this House has exercised its powers, I do not desire to deal with that point. I wish to refer only to the statement that this House has the power to send any Government about its busi-Bess. In the modern democracy that is not a proper power for the second Oham-her to possess. I think that this House is in agreement with the Government as to the need for a strong revising body which would interpose the delay required to en~ble the opinion of the electors to be adequately expressed on any question regarding which there was difference of opinion between the Houses. The con-stitution of this House, as it is at present would not be satisfactory if a Labou~ Administration were on the Treasury bench. Such a Government would natur-ally like to see a majority of its sup-porters in this House. While we do not think that it would be possible to create a second Ohamber that would be sa tis-factory to all shades of political opinion we ~ust ~s_k ourselves what is the prope; relatIOnshIp between the two Houses in a mod~rn democracy. The only test of protectIve powers to my mind is this: What happens when the two Houses disagree and each persists in its own view and what weight should be given to th~ opinion and desires of a Ohamber repre-sent.ing princi1?ally property interests agamst the welght of the opinion and

The Hon. J. lIf. Balfon?'.

desires of the Chamber which represents the whole community ~ We have to deal with that question in fairness to all sec-tions of the community and the best interests of the State. I was unable to follow Mr. Eager's suggested powers for a second Ohamber because I was not able to take them down in writing, but when II ansard is published I shall have much pleasure in reading his statement. I understand that the main function of a second Ohamber is the interposition of so much delay, and no more, in the pass-ing of a Bill into law as may be needed to enable the opinion of the nation to b~ adequately expressed upon it.

Reference has been made to the uncom-promising attitude of managers at con-ferences between the two Houses. I do not think any good purpose would be served by dwelling on that subject at length. We have sufficient knowledge of human nature to realize that at a con-ference of that kind the representatives d each House would stand as firmly as possible. There might be occasions when they would be able to give way. I remind honorable members that when the trouble over the reform Bill reached a crisis in England, Edward VII. approached with the. object of exercising his prerogative, gave his view in definite terms. Unfor-tuna tely he died soon afterwards, and the whole matter was thrown into the melting pot. When King George V. came to the throne the Government felt that it llad .to approach him on the same subject, but It was generally considered that everv-thing necessary should be done before su~h a very important constitutional question was put to what might be termed an in-experienced monarch. A conference was held. Eight honest gentlemen sat down to consider the matter, four from each side. They commenced in June, but when November had arrived the confer-ence was futile. The reason given was that neither party had sufficient smaH change to give a round of assents. That was the language of one who took part in the conference.

We can always expect that there wilT b6 differences in regard to conferences be-tween the Houses, which makes it all the· more necessary for us to have some proper method of settling disputes. The Leader' of the House has pointed out that tho ..

Constitution [17 Aul'lus'f, 1937.J (RRform) Bill. 601

present procedure for dealing with dis-agreements is lengthy and inconclusive. It would be possible for the Government, after being twice returned with increasing majorities, to experience the rejection of its legislation by the Oouncil. The Oouncil has the final say. I believe that the proposal contained in the Bill will meet with the approval of members of this Ohamber. Last session the Oonstitution (Reform) Bill was passed in the Assem-bly by 40 votes to 9; in the Oouncil 14 members voted for it and 12 against-that is a total of 54 votes against 21. Then came the Oouncil elections. Thereafter, the Bill now before this House passed its second reading in the Assembly, and only three members were against it. The Bill provides that a definite question at issue must receive the approval of a majority of the people in the majority of the elec-torates. Mr. Eager has suggested other means than those provided in the Bill. I feel that these matters can be best dealt with in Oommittee, and I shall content myself now by expressing the hope that the House will agree to the second read-ing. The measure has received the careful and anxious consideration of the Government, and I believe that the Government's sole desire is to do what is in the best interests of the State, and what is best for the preservation of our bicameral legislative system.

The Hon. W. TYNER (South-Eastern Province).-I have been in this House just over fifteen years, and I think that the Bill now before us is one of the most important introduced during that time. The only Bills of equal importance with this have been those to regulate the finan-cial position between the Oommonwealth and the States, and to cope with the financial emergency during the great de-pression. To my mind, this Bill is one of major importance. A similar measure was dealt with last session, as Mr. Balfour has just mentioned; it was defeated because a statutory majority did not vote in its favour .. The title to the Bill shows tha tit is a measure-

to make provision with respect to the rela-tions between the two Houses of Parliament, and for other purposes.

In my opinion, the first part of the title deals with the question of deadlocks, which was so ably debated by the Leader of the House; the other portion-that

"for other purposes "-seems to have some political significance. Perhaps the "other purposes" might have been dealt with in a separate measure; however, they have been tacked on to this Bill. This measure has been referred to at great l(,ngth in the daily press, and I express my appreciation of the many articles that have been written on the subject from various angles. To-night I have to make up my mind regarding my attitude to the Bill. The responsibility falls on me, as an elected representative of my province, to vote in the best interests of the State. I have made an intensive survey of tho measure, and, first, I have to ask myself, has there been a mandate for this Bill? In my survey of the measure I have gone back to the policy of the National Govern-ment in 1935, announced by the Premier at that time, Sir Stanley Argyle, at :Malvern, in the presence of the present Premier and the Minister of Public "Vorks. I think Brigadier Bourchiel', who was then leader of the Oountry party, was also present. I cannot find any reference on that occasion to any inten-t~on to bring forward legislation to deal 'with the constitution of the Oouncil. There was no reference to such legislation by the leader of the Oountry party, who is now in London acting as Agent-General, when making his policy speech. So to my mind the Country party could not have had any intention of introduc-ing legislation of this character. The elec-tion took place. Subsequently the N atiol1~l government was defeated and the present Premier took o~ce; he was supported then, and has been smce, by the Labour party.

To my mind, the Bill is a gesture t.n the Labour party, or was formulated in collaboration' with that party. The Labour party has a definite objective in connexion with this legislation, and I shall have nothing whatever to say in that regard, because the Labour party is quite definite that it is out to destroy the Council. Its platform prescribes that. It makes no secret about the matter. As Mr. Eager mentioned, the Labour part.v wishes to administer slow poison so far as this House is concerned. It is my opinion that the Bill was born in confusion. I want to visualize the attitude of those gentlemen seated on the Ministerial bench when the measure was propounded in Oabinet.

602 Oonstitution rCOUNCIL., (Reform) Bill.

The Hon. R. KILPATRICK.-YOU say that the Bill was born in confusion. Mr. Balfour says it was born in Bendigo.

The Hon. W. TYNER.-The confer-ence at Bendig'o was not a statutory body. It was a meeting of the Country party. I do not know whether i.t took place before {)r after. the general ele?tion. As I listened from the Speaker s gallery last session to the debate in another place, I called to mind those memorable lines of Longfellow-

Be not like dumb, driven cattle! Be a hero in the strife!

There was not a member sitting behind the Government who spoke in fa vour of the measure of last year-not even a bleating lamb. The ~peech of the Leader of this House, when he moved the second reading of the present Bi.n a fortnight ago, .lacked the militancy of the speech he dehvered here in October of last year. It reveale~ a marked difference from the fig-htlng spirit that characterized the introduction of the 1936 measure. I do not know how the honorable gentleman reconciles his present attitude with what he said on the 18th of December last year, as re-corded in H an8ard on page 4232. vol. 200.

The Hon. P. P. INcHBoLD.-To make a quotation. as you have done. why not ''let the dead past bury its dead"?

Th(' Hon. W. TYNER.-I regret it if Mr. Inrhbold does not like to hear a quotation from Hansard, but I do not propORe to add to or take anything from what the Leader of the House said on that occasion. His words were-

I wish to thank honorable members for havin~ assistf'd the Government to ulace on the statute-book this session more than 100 Bills. many of which have been :rery con-troversial and many of them very Important to the Rtate. Contrary to what has been said, that this is a House of obstruction. I wish to bear witnpss that the members of the Govern-ment in this House at any rate do not regard the Council as a House of obstruction.

The Hon. J. M. BALFOUR.-That was a ChriRtmas party.

The Hon. R. KILPATRICK.-It was a farewell night.

The Hon. W. TYNER.-Farewell to his Bill a little later on. The honorable gentleman continued-

There are always plenty of su~~estions from honorable members regarding 'the measurps

brought forward; some are very valuable while others are not of quite so much value. But I am sure that in the course of debate we are able to elucidate many of the problems arising out of the Bills as they are introduced, and we are able to improve them.

I believe that on that occasion he spoke from his innermost soul.

The Hon. R. KrLPATRICK.-Did he say anything in that speech about reform ~

The Hon. W. TYNER.-He said .just exactly what I have quoted-nothing more, nothing less, in regard to reform. After that I can visualize that the Bin was born in confusion, and I can picture the reception it received when it was introduced in the Cabinet. Country party members of the Council in par-ticular owe their places in ParliameIlt to the strong belief that the primary pro-ducers had not been directly represented in the Council in sufficient strength. Country party members ca.me from country districts to the House, not as exponents of the views of the Trades Hall, but as defenders of the men on the land. In addressin~ myself to the major clause-the deadlock clause-of the Bin, I must say that I cannot recollect any serious deadlock between the two Houses. The Minister in charge of the Bill referred to one. He stated that our power had been used illegitimately in 1931, when Supply for three months only was granted to the Hogan Government, neces-sitating a meeting of Parliament on the 6th of April in the following year instead of at the usual time, in July. This arose owing to the fact that the Appropriation Bill was returned with a messag-e inti-mating that, on consideration of the Bin in Committee, the Council suggested certain amendments. On reference to Hansard I have been unable to find any record whatever of a conference betwe'en the Houses. On page 5653 of Hansard of the 23rd of December, 1931, appears the following, under the heading, " Appro-priation Bill"-

This Bill was returned from the Legislative Council, with a message intimating that, on consideration of the Bill in Committee, they suggested certain amendments. .

The Chief Secretary at that time-Mr. Tunnecliffe-was acting for the Premier, Mr. Hogan, who .had been ill and, I

Constitution [17 AUGUST, 1937.] (Reform) Bill. 603

believe, was away in Queensland. The following appears in Hansa1'd-

Mr. TUNNECLIFFE ( Chief Secretary) .-The Council has suggested several amend-ments which are of a purely technical char-act~r. In order to preserve the privileges of this House, I move-

That this Bill be now laid aside. Mr. MACFARLAN. (Brighton) .-The Acting

Premier referred to what he calls technical amendments, and then moved a certain motion: If this is done by agreement with another place, I should like to know.

Mr. MENzIEs,l--Perhaps the Acting Premier is going to bring in another Supply Bill.

Mr. MACFARLAN.-This is a big Bill, and it should not be laid aside unless there is justification.

Mr. TUNNECLIFFE (Chief Secretary).-By leave, I wish to say that the honorable member for Brighton, moved by instincts of economy, does not desire to lay aside the big Appropriation Bill. Yesterday, when the Bill was before the House, I announced that it was the intention of the Government to meet Par-liament in May. That step was decided on in order to give h.onorable members an oppor-tunity to discuss the financial situation, which we fear may be as acute then as it is now, though we hope that will not be so. Since then, we have agreed with another place to meet on the 6th of April.

Mr. IV[AcFARLAN.-You say, ." vVe have agreed with another place "-Parliament de-termines the matter.

Mr. TUNNECLIFFE.-As I have said, we have decided to meet the House on the 6th of April. With that object in view, I intend to introduce a Supply Bill to enable us to carryon the finances until that date.

A Consolidated Revenue Bill was then introduced, providing Supply for three months. I cannot find any record of a conference having been held between the two Houses on that subject. Apparently some understanding was arrived at, but from memory I cannot recall having heard anything about a conference. If there was an agreement it must have been come to by the leaders of the Houses. Mr. Hogan was Premier of the State, as the leader of the largest party in the Assembly-I think 29 in number. There were three Independent members holding the balance of power-Mr. Burnett Gray (Liberal), represent-ing St. Kilda; Mr. J. W. McLachlan (Independent), representing Gippsland North; and lir. H. Glowrey (Indepen-dent Country party), representing Ouyen. At that time a number of taxation Bills were submitted to the House. If my memory is correct, a Bill was introduced at that time and agreed to, reducing licensing fees from 6 per cent. to 4 per

cent., as a result of which the Licensing Fund-and incidentally the Government -lost £75,000. One or two days after-wards the income tax was increased by 7! per cent. One or two proposals were made to reduce the taxation, but I can find no reference to a conference.

When the Oonstitution (Reform) Bill was before this House in October last, the Leader of the House took serious exception to certain criticism regarding a conference at which he was leader of the managers for this House. He said that at that particular time he was sub-jected to very severe criticism by the late Mr. Chandler and myself. I had no opportunity to reply to that statement when the Bill was before the House on that occasion, and I propose briefly to reply to it now. My criticism in the main was not based on what took place in connexion with certain taxation proposals, but referred to promises made at that conference that a Totalizator Bill would, if possible, be put through this Chamber. Previously a Totalizator Bill had been defeated here. As honor-able members know, I took strong excep-tion to the question of the passage of a Totalizator Bill being introduced at that particular conference. That was my main objection, and I think it was also the main objection of the late Mr. Chandler. Subsequently, a Totalizator Bill was introduced, and it was carried by this House.

The Hon. R. KILP ATRICK.-You are in favour of the totalizator now?

The Hon. W. TYNER.-I am not in favour of anything that degrades the community. I shall never change my opinion on the question of the totalizator.

l'he PRESIDENT (Sir Frank Clarke). -That matter has very little to do with this Bill.

The Hon. W. TYNER.-When the Constitution (Reform) Bill was before this House last sesRion, the Leader of the House referred to what he termed " severe criticism" by myself, and I have taken thjs opportunity of replying to his statement. I have finished with the subject now.

Sir JOHN HARRIS.-YOU have satisfied yourself, at any rate.

The Hon. W. TYiNER.-I hope I have satisfied the honorable gentleman. I would not suggest for one moment that

604 Oonstitution [COUNCIL.] (Reform) Bill.

he desired to put me in a wrong light in connexion with the matter. I know him too well for that, but I think his memory failed him in connexion with his statements to the House.

Sir J ORN HARRIS.-I did not place you in a wrong light at all. .

The Hon. W. TYNER.-The honor-able gentleman has given two alleged instances of the House having exercised its vowers illegitimately in a period of eight years. There has been no organ-ized obstruction by any minority in this House; When moving the second read-ing of the Bill, the Minister said he did Hot wish the House to give away too much power. The longer we keep the Bill before the House, I think, the less he will be in favour of it-if he is in favour of the Bill at present! Personally, I have 'no authority from my electors to vote away the constitution of this House. There has been no mandate given.

Sir J ORN HARRIS.-You were not game to consult them.

The Hon. W. TYNER.-If the House adopts the proposal I intend to make later, there will be an opportunity given to consult electors. They have not been consulted so far. Numerous subjects were brought forward during the triennial election of members of this House. For instance, the then Acting Premier-the Minister of Water Supply-addressing the electors in the Mornington Division of the South-Eastern Province, spoke about bayside erosion, and the Minister of Public Works introduced the question of lower fares at Dandenong. These things occurred while ~1:r. Gartside was away in the United States of America, but the efforts of Ministers to secure the return of their party's candidate were unsuccess-ful. The Government considers it has a mandate for the Bill. It won three seats at the last Legislative Oouncil elec-tion, and in some cases did not have a great majority. Ministers may be able to satisfy their consciences that they have a mandate in connexion with this measure, but as I have pointed out, during the recent election campaign all sorts of ques-tions were introduced. What the Govern-ment was mostly concerned about wa.s its continuation in office, and having its sup-porters returned as members of this House.

Sir JOHN HARRIS.-Is this your own speech, or is it another quotation ~

The Hon. W. TYNER.-Any quota-tion I make will be absolutely correct. I am sorry if I am causing the Leader of th.e House any discomfort.

Sir .J ORN HARRIS.-You are not. The Hon. W. TYNER.-The honor-

able gentleman will be a good man if he can bestride two horses at one time. This Bill proposes that when a deadlock occurs between the two Houses, the Government can bring about a dissolution of the Assembly. If the Government is then returned with a majority the subject-matter of the deadlock will be submitted to this House, and notwithstanding that at the election all sorts of subjects, such as an Education Bill, a proposal for adult suffrage for Legislative Oouncil elec-tors--

Sir J ORN HARRls.-Or a Bill to permit of night trotting.

The Hon. W. TYNER.-Yes, perhaps night trotting would be mentioned but I think the honorable gentleman ha~ heard enough of that subject, and is not likely to introduce a night-trotting Bill for some time. If after the Assembly general elec-tion, the Bill which was the subject of the deadlock was again passed by the Assembly, and again rejected by this Ohamber, it would be placed on the statute-book by the vote of one House alone. Visualizing what has taken place over a number of years in Legislative Assembly elections, probably 15 to 20 members would be returned unopposed. In those electorates, the people would not have had an opportunity of expressing their views on the question on which th~ Assembly faced the electors. I now pro-pose to refer to the disparity between some of the country and city electorates. I am not advocating one vote one value, or anything like that, but there is great disproportion between many rural and city electorates.

Sir J ORN HARRIs.-You are now quot-ing Mr. Oldham, M.L.A.

The Hon. W. TYNER.-I am not quoting Mr. Oldham, I am speaking generally on this question.

Sir J ORN HARRIs.-Then these are your own views?

The Hon. W. TYNER.-Every speech I make in this House is my own. I have no secretary to write my speeches up for

Constitution [1'7 AlJGB"ST, 1937.] (Reform) Bill. 605

me, as is the case with the honorable gentleman. Mr. Eager referred to the question of the Stamps Bill, which was one of the Bills rejected by this House. When the Minister was unofficial Leader, he voted against that Bill. Later some-thing was tacked on to it. The Honorary :Minister (Mr. Tuckett) dealt with this question during the recent elections. As the position has been fully explained to the House by Mr. Eager, I do not pro-pose to deal further with it.

I t is said by some people that this :House is an oligarchy. Referring to ~1arriott on English political institutions, we find" oligarchy" defined as " a Cham-ber in which the few are supreme." That -cannot apply to the Legislative Oouncil, because this Ohamber is elected mainly on the householders' franchise-a democratic franchise-whereby owners assessed at £10 per annum, and tenants at £15 per annum have the right to vote.

The statement has been made that quite a number of landlords go around the elec-torates and vote in several places at Legis-lative Council elections. During the last· few days I made inq niries at the Electoral Office to see how many owners register for places occupied by tenants, as I thought there might be some substance in the statement made. I was informed that less than 1 per cent. of the owners regis-tered on the general roll for a vote where tenants occupied the properties.

The Hon. J. H. DlsNEY.-There were Iyer 300 in my electorate.

The Hon. W. TYNER.-I am speak-ing of the aggregate. Marriott also defined democracy as "a constitution in which the masses are supreme." So far as this House is concerned, I say that it mainly represents the householders of the community. Its franchise is a very democratic one. "If the Legislative Oouncil were elected 011 the hasis of adult franchise, its continu-nnce would he useless, because the State "'ould gain no advantage from having two Houses elected on the same franchise.

The Hon. D. L. McNAMARA.-It hap-pens in the Senate.

The' Hon. W. TYNER.-To a large Fxtent the Senate represents the States.

Sir JOHN HARRlS.-Do you seriously thjnk so ~

The Hon. W. TYNER.-Of· course I do; otherwise I would not say it. If the people of this State are anxious for an amendment of the Constitution, they should have it. I do not think that an appeal by the Legislative Assembly to the electors in the case of a deadlock between the two Houses after an election would provide a solution of the problem. If the people desired an amendment of the Constitution, that desire' should be ex-pressed ut a referendum. I am opposed to the result of un election being accepted as the final say in such a matter, because so many questions are dealt with at a general election. We have heard a lot about "modern democracies." The ex-pression has been used on many occasions both in another place and here. The :Minister of Public Instruction quoted Viscount Bryce as having said-