Papers on Parliament No. 61
May 2014
Rosemary Laing "Andrew Inglis Clark: A Dim View of Parliament?"
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The draft Constitution
that Andrew Inglis Clark brought to the 1891 National Australasian Convention
in Sydney was federalist in character. It brought together the existing
colonies in a federation with a national government that would possess
specified legislative powers after the US model, leaving all residual powers to
the new states which would not be subordinate polities, but partners. Also
following the US model, the states would have equal representation in a Senate
that would have sufficient powers to protect their interests.
It had republican features, consistent with
Clark’s lifelong interest in such matters, ranging from a clear separation of
powers providing checks and balances on the exercise of power, to a provision
for state legislatures to elect state governors. The question of whether
ministers should sit in parliament and, therefore, the degree to which the
Constitution should entrench a system of responsible government, was left open
and not prescribed. While not suggesting an alternative to responsible
government, Clark wanted the Constitution to be flexible enough to allow one to
emerge in future.
The draft Constitution was broadly democratic,
providing for the representation of each 20,000 head of population by a member
of the popular assembly or House of Representatives. The Senate was to be
elected by the state legislatures but there were few at this time, except
perhaps for Alfred Deakin,[1] who advocated direct popular election of what looked like being a
very powerful second chamber. Clark was still defending indirect election as
late as 1897, citing the quality of US senators in the early years as evidence
of the success of that method (although he conceded that the US Senate had gone
downhill recently with too many millionaires).[2]
Clark’s big idea was for a federal supreme court
entrenched in the Constitution. As a delegate to the 1890 Australasian
Federation Conference in Melbourne, he had led the drive towards the ultimate
preference of delegates for a US-style federation, where states retained
plenary legislative powers, over the Canadian model that was more of an
amalgamation under a central government, leaving only specified powers to the
provinces. It was thought that the US model was likely to produce more
successful results for those striving to achieve federation in Australia.[3]
Notwithstanding its incorporation of features of
the US Constitution, Clark’s draft reflected the reality that federation in
Australia could only be achieved by an Act of the British Parliament. It would
be a federation under the imperial Crown and, as Clark pointed out in his
introduction to the 1891 draft, the Colonial Laws Validity Act made colonial
law-making subject to the imperial parliament. This was the basis of the final,
rather esoteric, argument in his introduction that the parliament should
consist of the two Houses and the Governor-General, not the Queen, because it
would derogate from the dignity of the Crown to have the Crown as part of the
colonial law-making process which was subordinate to imperial power. That might
leave the Crown party to an invalid Act or even to two contradictory laws.[4] Such fine points about the nature of imperial and executive power
did not, however, excite the delegates to the 1891 Convention.
National Australasian Convention delegates, Sydney, 1891, photographed by Laura Praeger, Empire Galleries, Sydney. Image courtesy of National Library of Australia, an14293711
While Clark had succeeded in putting down on
paper a scheme that reflected the thoughts of the 1890 Conference, he did so
using the language and framework of the British North America Act 1867,
particularly ‘in providing for such matters as the location, nature and the
exercise of the Executive power under the Federal Constitution’.[5] Perhaps he thought such an approach would least frighten the
horses, but it also reflects his habitual approach to drafting, which was to
find an appropriate model and adapt it to his purposes.[6] It did the
job without setting the world on fire.
Clark thought deeply about the nature and
exercise of executive power and about the role of a supreme court under the
Constitution. He had a creditable stab at enumerating the various heads of
legislative power that would be appropriate for the national legislature to
exercise. These and other aspects of the draft Constitution, including the
electoral provisions, the financial powers of the Senate[7] and the
financial arrangements for the new Commonwealth have received much scholarly
attention.
For a parliamentary officer, there are
interesting questions that have not received much attention.[8] Clark was a member of the Tasmanian House of Assembly from 1878 to
1882 and again from 1887 to 1898. During the period in the 1880s when he was
not a member of parliament, he made three attempts to get back in,
unsuccessfully in 1884 and 1886.[9] It was clearly a career he wanted to pursue. He was a backbencher
from 1878 to 1882 (the first few months in opposition), in opposition from
August 1892 to April 1894 and again, briefly, in 1898, but for the remainder of
the time he was Attorney-General, first in the Fysh Government and then in the
Braddon Government. He was therefore a key member of the executive government.
During the period he was out of parliament, he was the inaugural chair of the
Southern Tasmanian Political Reform Association which was established to pursue
electoral reform.[10] The work of the Association notwithstanding, parliament was really
the only forum in which Clark could pursue the ideals that were so dear to him.
Clark’s parliamentary experience and his 1891 draft
Constitution
But how, if at all, did his experiences as a
member of parliament shape the choices he made in the 1891 draft? Did he think
as deeply about the institution of parliament as he did about the roles of the
executive and the judicature? In particular, if the Senate was to be so
important as the bastion of state interests, did Clark give any thought to what
it might need, apart from financial powers, to carry out its functions? What
might the Federal Parliament look like today if Clark’s initial thoughts on the
machinery provisions for the operation of parliament had survived as first
proposed?
These machinery provisions became sections 49
and 50 of the Constitution. They provide:
49. The powers, privileges, and
immunities of the Senate and of the House of Representatives, and of the
members and the committees of each House, shall be such as are declared by the
Parliament, and until declared shall be those of the Commons House of
Parliament of the United Kingdom, and of its members and committees, at the
establishment of the Commonwealth.
50. Each
House of the Parliament may make rules and orders with respect to:
(i.) the mode in
which its powers, privileges, and immunities may be exercised and upheld;
(ii.) the order and
conduct of its business and proceedings either separately or jointly with the
other House.
They provide the Federal Parliament,
particularly the Senate, with significant powers and immunities and with the
procedural independence to function effectively, to undertake the duties it was
established to carry out on behalf of the constituent parts of the federation.
Clerk’s parliamentary career is chronicled in
the pages of the Journals of the Tasmanian House of Assembly[11] and, in the absence of an official Hansard service, the Hobart
daily newspaper, The Mercury. Clark embraced his parliamentary
duties after being sworn in as the Member for Norfolk Plains on 30 July
1878[12] and was active in using the various parliamentary procedures
available to him, quickly grasping the forms and some of the fundamentals. For
example, he presented petitions calling for the passage of a bill regulating
the Presbyterian Church, but he voted against a motion that would have allowed
a representative of the church to appear at the bar and address the House in
support of the petition.[13] That would have involved the inappropriate usurpation of a
representative’s proper role which Clark would no doubt have contemplated as he
sat on the Assembly’s green benches. He was appointed to numerous select
committees during his first period as a backbencher including on the present
system of electing members of parliament,[14] oyster
fisheries and the preservation of forests,[15] the
destruction of fruit by the Codlin Moth,[16] and the
operation of the Customs Duties Act 1880 (which he initiated).[17] For most of his parliamentary career, he was a member of the
Library Committee, allowing him to influence the purchase of works for the
Tasmanian Parliamentary Library.
Clark made regular use of orders for production
of documents, an exercise of the House’s powers to obtain information from
government. For example, in 1881 he sought, and obtained, legal advice from the
government on the rates of intercolonial postage.[18] Clark’s
orders over the years covered a wide range of matters from public policy and
administration to the affairs of individuals. They were routinely complied with
by the government of the day. One curious matter in 1892, when Clark was in
opposition, appeared to involve a matter of private concern to the Clerk of the
House, Frederick A. Packer, who had apparently been unable to register the name
of his infant son. On 11 October, Clark moved an order for the tabling of all
correspondence between Packer and the Registrar-General’s Department and Chief
Secretary’s Department.[19] The correspondence was tabled on 18 October[20] and a few
days later Clark successfully moved a motion calling for Crown Law advice on
whether the Governor could direct the Registrar-General to register a child’s
name more than seven days after the registration of the birth and, if not,
calling for amendment of the relevant law. The episode not only provides a
window into the occasional intimacies of parliamentary life but shows Clark
using classic parliamentary tools to address a matter of concern.
As early as three months after his election,
Clark can be seen using a deadly parliamentary tactic to kill off a bill. The
bill was the Hobart Town Corporation Act Amendment Bill which put rate
collection in Hobart on the same footing as in Launceston, including by making
landlords liable for the rates of small tenancies of less than 20 pounds per
year. Clark found the provision objectionable and moved a second reading
amendment for the bill to be read a second time ‘this day 6 months’.
When parliamentary sessions lasted for six
months or less, as was the case in Tasmania, and bearing in mind that all
business lapses at the end of a session, such an amendment, if successful,
effectively cast a bill into oblivion, assigning it to be considered on a date
on which the parliament would have been long prorogued. It was fatal to a bill
and prevented its revival, other than by reintroduction in a new session.[21] By employing such a device, Clark can be seen as eager to apply the
tactics at his disposal to achieve his goals but it was nonetheless an unusual
tactic, perhaps designed to demonstrate Clerk’s alacrity in embracing his new
role. He was only 31.
Clark witnessed his first no-confidence motion
on 17 December 1878 and a new ministry formed under Premier William Crowther on
20 December.[22] He was later to denounce this method of changing government and it
appeared to lie at the heart of his dislike of the system of responsible
government. In his speech on the resolutions at the 1891 Convention in Sydney,
Clark quoted Victoria’s Chief Justice George Higinbotham’s disparaging
assessment of the state of affairs in Victoria at a particular time, and the
‘feelings of distrust and disapproval ... almost entirely occasioned and
generated by the accursed system under which the party on this side of the
House are always striving to murder the reputations of the party on the other
side, in order to leap over the dead bodies of their reputations on to the
seats in the Treasury bench’.[23] When challenged by Deakin that the strength of parties in the US
was just as great without responsible government, Clark riposted, ‘But it
cannot upset the ministry for the time-being simply for the purpose of
upsetting them and getting their places, and for no other reason whatever’.[24] We do not know, of course, how he would have viewed US-style
gridlock and government shutdown as a consequence of party posturing.
Clark’s career as a legislator took off when he
was appointed Attorney-General in March 1887, although he had some experience
of introducing private member’s bills in his first term.[25] Out of
parliament for nearly five years after being defeated at the general election
in May 1882, Clark won the seat of South Hobart at the election on 4 March
1887. Tasmania followed the Victorian practice whereby a member of parliament
appointed to the ministry had to resign and recontest his seat, which Clark
did, being re-elected on 7 April 1887.
As Attorney-General, he was responsible for
introducing and seeing through the parliament numerous bills, many of which he
drafted. He was a very methodical lawmaker who made sensible use of the
parliamentary timetable. He tended to introduce multiple bills early in the
session, allowing time for them to be considered by select committees, if
required, for debate to proceed in due course, and for amendments to be
negotiated with the Legislative Council before the session ended, whether by
the usual exchange of messages or the occasional conference. He was the man
most likely to be nominated as a member of any committee of reasons appointed to
draw up reasons for disagreeing with amendments made by the Legislative
Council. He continued these habits in opposition when he routinely introduced
half a dozen private member’s bills at the beginning of a session, proposed
select committees in appropriate cases and shepherded the bills through the
various stages in the chamber, including negotiations with the Legislative
Council before the session ended. (He had a success rate of around 50 per cent
in having his private member’s bills passed into law.)
This is significant because he had plenty of
experience of how routine bicameral negotiations almost always produced an
outcome. Failure of a bill was simply an indication that it lacked
parliamentary support. In 1897, when he was taking through the committee stages
the draft Constitution Bill as it had emerged from the Adelaide session of the
Convention, with a view to proposing amendments to be considered at the next
session in Sydney, Clark put forward his version of a deadlock provision as an
alternative to less acceptable versions that he expected would be proposed by
Isaac Isaacs and Bernhard Ringrose Wise. His preference, however, was for no
such provision. If it were up to him, he would prefer to see the two Houses
fight it out and eventually come to some agreement, without interference. If
there were to be a deadlock provision, however, he urged his colleagues to
consider his alternative in preference to other proposals which either ignored
or coerced the Senate.[26]
It was shortly before these exchanges that Clark
recollected some of the important events of the 1891 Convention. Clark had not
attended the Adelaide session. He was undertaking his second visit to the US
but had followed the debates while there and, on his return, had stopped in
Sydney to spend an afternoon with Edmund Barton and Wise, catching up on what
had happened. He was thus prepared to lead the debate, beginning with a
comprehensive speech on a motion for the House to resolve into a committee of
the whole to consider the Constitution Bill. According to The
Mercury, he was greeted with cheers. It was in this speech, six years
after the event, that he let fly about the ‘picnic’ that had taken place over
Easter 1891 on the ‘pleasure yacht’ Lucinda and that while he was in bed
with flu, the picnic party had ‘messed’ his Supreme Court provisions, now
restored by the Adelaide session.[27]
By the time Clark came to draft his Constitution
in preparation for the 1891 Convention, he had several years’ experience of
parliamentary methods and practices, and had become a respected and effective
legislator. He had practical experience of parliamentary procedure but had not
had to contemplate the standing orders and their implications in isolation. The
Assembly did not embark on a revision of its standing orders until 1892 when it
spent several days early in the session revising various standing orders before
agreeing to them on 17 August 1892 and sending them off to the Governor for
approval, a quaint colonial custom that lingers on in some state constitutions
(including Tasmania’s). Anyone could be forgiven for missing this otherwise
significant event. On the same day, Henry Dobson formed a new government,
taking over from Philip Fysh as Premier, after yet another no confidence motion
and Clark, too, was out of office.
The other significant aspect of parliamentary
practice that Clark appears to have had little exposure to before 1891 was
parliamentary privilege. Cases were rare and one did not crop up till October
1891, after the Sydney Convention. It involved a question of contempt by
defamation.[28] Walter Scott Targett, a former member of the NSW Legislative
Assembly (who therefore should have known better according to participants in
the debate), was reported as having made defamatory remarks about the Speaker
and other members. The House resolved that its Clerk write to Mr Targett to
ascertain if the reported remarks were correct but, having received a response
confirming the accuracy of the reported remarks, the House found that there was
nothing it could do about it. It lacked the necessary powers to punish what it
considered to be a contempt. As Clark informed the House, the Tasmanian
Parliamentary Privileges Act did not provide any remedy for such a case because
defamation of a House or member was not one of the contempts specified in the
1858 Act which had been enacted to empower the Houses to punish several other
contempts. He recommended that he be instructed to prepare a bill to address
the matter.[29] Clark referred to three cases in which the Privy Council had found
that colonial legislatures had no inherent power to punish contempts committed
outside their doors. Later in the debate, he conceded that it was the first
time he had heard of such a thing and was taunted for this gap in his
knowledge.[30]
The gap is surprising because one of the three
cases was a Tasmanian case decided by the Privy Council in 1858 (Fenton v.
Hampton).[31] In 1855, the Legislative Council established a select committee to
inquire into certain alleged abuses in the convict department, with power to
send for persons. John Hampton, comptroller-general of convicts, was served
with a summons to appear but refused to do so. The refusal being reported to
the Council in accordance with normal parliamentary practice, that body
resolved that Hampton should attend at the bar of the Council to explain
himself. Again, he refused and the Council resolved that he was guilty of
contempt, despatching the Serjeant-at-Arms with a warrant from the President to
apprehend Hampton and commit him to custody at the Council’s pleasure. Hampton
won an action for trespass in the Supreme Court on the grounds that the
Council, President and Serjeant did not have the authority to take such action
against him. The President and Serjeant appealed to the Privy Council which
affirmed the Supreme Court’s decision.[32]
The Privy Council in this case followed its
earlier decision in Kielley v. Carson[33] which denied
to colonial legislatures the inherent power to punish contempts committed
outside their doors. The UK House of Commons certainly had that power as part
of the lex et consuetudo Parliamenti (the law and custom of parliament)
but that was no justification for ascribing it to every colonial assembly
which, as a matter of common law, possessed only those powers considered
reasonably necessary for them to perform their functions.[34]
Tasmania’s response was to enact the Parliamentary
Privileges Act 1858 which gave both Houses powers to summon and examine
witnesses and to punish specific contempts for which the relevant Presiding
Officer would issue a warrant for the apprehension and imprisonment of the
person judged guilty of the particular contempt. The Act authorised those
executing such a warrant to break down doors ‘in the daytime’ if necessary, a
power which still exists.
The response was different in other colonies
which, instead of specifying in statute the sanctions for particular contempts,
had adopted House of Commons powers, privileges and immunities for their
legislatures in total, as at the date of the relevant Constitution, thus
removing any doubts about the powers of those legislatures to punish for
contempt, whether committed inside or outside their doors. The Victorian
Constitution, for example, adopted House of Commons powers, privileges and
immunities at 21 July 1855. South Australia followed with a similar formula in
1856. Both constitutions provided for subsequent modification of the adopted
powers, privileges and immunities by later statute.[35] As we have
seen, Tasmania took a different route in 1858 in response to a particular case.
How then did Clark deal with the rules and privileges
clauses in his 1891 draft?
The relevant clauses are as follows:
14. The
privileges, immunities and powers to be held, enjoyed, and exercised by the
Senate and the House of Representatives, and by the Members thereof
respectively, shall be such as are from time to time defined by Act of the
Federal Parliament.
51. The
Senate and the House of Representatives from time to time and as there may be
occasion shall prepare and adopt such Standing Rules and Orders as shall appear
to the said Senate and House of Assembly (sic.) respectively best adapted—
I. For
the orderly conduct of the business of the Senate and House of Representatives
respectively:
II. For
the mode in which the Senate and House of Representatives shall confer,
correspond, and communicate with each other relative to Votes or Bills passed
by or pending in the Senate or House of Representatives respectively:
III. For
the manner in which Notices of Bills, Resolutions, and other business intended
to be submitted to the Senate and House of Representatives respectively at any
Session thereof may be published for general information:
IV. For
the manner in which Bills shall be introduced, passed, numbered, and intituled
in the Senate and House of Representatives:
V. For
the proper presentation of any Bills passed by the Senate and House of
Representatives to the Governor-General for his assent thereto: and
VI. Generally
for the conduct of all business and proceedings of the said Senate and House of
Representatives severally and collectively:
All of which Rules
and Orders shall by the Senate and House of Representatives respectively be
laid before the Governor-General and being approved of by him shall become
binding and of force.[36]
Where did they come from?
Clause 14 was based on section 18 of the British
North America Act 1867 which provided for the powers, privileges and
immunities of the Canadian Parliament to be defined by Act of Parliament from
time to time, provided that they did not exceed those of the UK House of
Commons at that date. The latter provision was based on the pseudo-doctrine
that ‘a stream cannot rise higher than its source’, a notion that Clark was
happy to abandon. That left him with the uncertainties of precisely what
powers, privileges and immunities the parliament would enjoy before making such
an enactment but, being unaware at this stage of the line of cases from Kielley
v. Carson on the inherent powers of colonial legislatures, Clark was
apparently untroubled. If it had worked for Canada, then it should surely be
adequate for another dominion parliament.
In fact, it had not quite worked for Canada and
in 1875 the British Parliament had repealed and re-enacted section 18 of the British
North America Act 1867 because of doubts that had arisen over the Canadian
Parliament’s powers to legislate in this field, at the same time validating an
1868 Act of the Canadian Parliament providing for the administration of oaths
to parliamentary witnesses (a power not then enjoyed by the UK Parliament and
only acquired, by statute, in 1871).[37]
While Sir Samuel Griffith included in his first
draft of the Constitution Clark’s clause 14 as drafted,[38] it did not
survive the ‘picnic’ (as Clark referred to it in 1897) on the Lucinda
which replaced it with a clause adopting UK House of Commons powers at the date
of the adoption of the Constitution, and authorising subsequent legislative
revision, provided that House of Commons powers etc. were not exceeded. The
first part of the replacement clause can surely be attributed to Charles
Kingston who included such a clause in his own draft Constitution, no doubt
following the model of the South Australian Constitution of 1856. The second
part was scrubbed out at the meeting of the Constitutional Committee on 30
March 1891.[39] Clause 14, as significantly modified by the drafting committee in
1891, went through to become section 49 of the final Constitution with only
minor subsequent tweaking.
Clause 51 was based on the Tasmanian
Constitution[40] to which Clark added paragraph III about publishing proposed
business. While the level of prescription is unnecessary, the most egregious
feature of the clause is the requirement for the standing orders of each House
to be approved by the Governor-General. Clark may have justified keeping the
requirement for external approval on the basis that the Federal Parliament
would nonetheless be subordinate to the imperial parliament, as he had argued
in the introduction to his draft Constitution, but he was confusing the issues
and revealing his lack of familiarity with the subject.
Along with inquiry and disciplinary powers, the
exclusive right of a House to control its internal affairs is one of the
fundamental elements of parliamentary privilege. The rules and orders of a
House regulate its practices, preserve its independence and may be changed to
meet new or changing circumstances or requirements; the establishment of a
committee system to scrutinise executive performance, for example. For such
practices to be subject to external approval is a potential fetter on the
exclusive jurisdiction of a House over its own affairs, a possible deterrent to
innovation and change, and particularly problematic for an upper house with the
function of protecting the interests of the federation partners, interests
which may be at odds with those of the government of the day. The degree to
which approval by the Governor-General might involve executive input was
another question raised by the clause.
Fortunately, the drafting ‘picnic’ on the Lucinda
also dealt with this potential blunder by deleting the requirement for approval
by the Governor-General.[41] The clause was to remain in its highly prescriptive form, however,
through successive Conventions and drafts, until the final reconsideration of
the draft Constitution by the Drafting Committee in Melbourne in 1898, after
the bill had been reported four times with amendments. Only then was it trimmed
to its current form and the powers, privileges and immunities clause relocated
to immediately precede it.[42]
Conclusion
The form in which Clark included these machinery
clauses in his draft Constitution shows that he had not given any great thought
to such fundamental matters. Given his history and his lack of acquaintance
with their importance, there is no reason that Clark should have done so. His
parliamentary experience from 1887 was as a member of the executive government.
While he fully accepted and worked within the traditional parliamentary
framework which included the Houses exercising their inquiry powers and the
government responding respectfully, he had witnessed no great clashes between
government and opposition, other than those political clashes which led to
changes of government on votes of confidence.
There was nothing in Clark’s experience to
demonstrate the need for a House of Parliament to have robust and enforceable
inquiry powers and the means to take on the executive if that was the will of
the House. There was nothing like a loans affair or children overboard or
Australian Wheat Board scandal or, looking through another prism, a scandal
over supplies and support for the troops fighting and wounded in the Crimea or
over the incompetence of the Royal Navy in allowing the Dutch fleet to sail up
the Medway and set the fleet alight while it wallowed at anchor. The Codlin
Moth inquiry of 1879, important though it was, was in a different league. While
Clark’s reading and scholarship were vast, we cannot criticise him for not
knowing everything about everything.
It is ironic that Clark took such care to design
a Senate that would be structurally appropriate and powerful enough to protect
the interests of the states and other minorities yet, in neglecting the
machinery provisions, he could have bequeathed us a Senate that was quite
hamstrung in practice, without the powers and independence required to fulfil
its functions. His view of parliament was not a dim one; it just had some
limitations. Fortunately for us all, the Australian Constitution was the
product of a great team effort.
[1] See, for example, J.A. La Nauze, The
Making of the Australian Constitution, Melbourne University Press,
Carlton, Vic., 1972, p. 47.
[2] The Mercury (Hobart), 29 July
1897, supplement, p. 2.
[3] See Clark’s introduction to his 1891 draft Constitution,
reproduced in John M. Williams, The Australian Constitution:
A Documentary History, Melbourne University Press, Carlton, Vic., 2005,
p. 66.
[4] ibid., pp. 73–4, 76.
[5] ibid., p. 67.
[6] La Nauze, op. cit., p. 26 refers, not disparagingly, to
the ‘scissors-and-paste’ job that Clark did on his draft Constitution, but see
F.M. Neasey and L.J. Neasey, Andrew Inglis Clark,
University of Tasmania Law Press, [Hobart], 2001, chapter 5 passim. for numerous examples of Clark drafting by cutting and pasting.
[7] In clause 52 of his draft, Clark provided for money
bills to originate in the House of Representatives but for the Senate to have
the power to reject or amend them, subject to a prohibition on increasing the
overall amount.
[8] It is interesting to note that one of Clark’s sons,
Carrel, was a parliamentary officer, becoming Clerk of the Tasmanian
Legislative Council in 1946.
[9] Neasey and Neasey, op. cit., p. 65.
[10] ibid., p. 66
[11] Minutes of the House of Assembly, individually known as
Votes and Proceedings, were bound into annual volumes, collectively known as
the Journals of the House of Assembly.
[12] Journals of the Tasmanian House of Assembly (hereafter
referenced as J), 30 July 1878, p. 15.
[13] 3 September 1878, J.41; 12 September 1878, J.83; the bill
was passed on 12 September 1878, J.65.
[14] 12 September 1878, J.66.
[15] 2 May 1879, J.215.
[16] 8 May 1879, J.215.
[17] 18 August 1881, J.56.
[18] 21 July 1881, J.11–12.
[19] J.78.
[20] J.97.
[21] The same tactic remains in the Senate’s standing orders
and is regarded as finally disposing of a bill. It is seldom used, perhaps
because it requires majority support and there are other, easier ways of
defeating a bill on an equally divided vote. However, a bill defeated by this method
is not necessarily dead, although it is usually considered to be so. It may be
revived, for example, by motion on notice, if a majority wishes to proceed with
it.
[22] J.164; J.168.
[23] Official Record of the Debates of the
Australasian Federal Convention, Sydney, 11 March 1891, Legal Books,
Sydney, 1986, vol. 1, p. 245.
[24] ibid
[25] See Neasey and Neasey, op. cit., pp. 53–8. The Neaseys’
biography of Clark provides detailed information about the bills he introduced
and the business he transacted in the Assembly, as well as about the political
context.
[26] The Mercury (Hobart), 12 August 1897, supplement, p. 2.
[27] The Mercury (Hobart), 29 July 1897, supplement, p. 2.
[28] Formerly a very commonly pursued contempt, the contempt
of defamation of a House or member was abolished at the Commonwealth level by
section 6 of the Parliamentary Privileges Act 1987,
predating by some years the High Court’s identification in the Constitution of
an implied guarantee of freedom of political communication.
[29] 7 October 1891, J.220–1; The Mercury (Hobart),
8 October 1891, p. 4; 23 October 1891, J.278; The Mercury (Hobart),
24 October 1891, supplement, p. 1. In the event,
Clark was out of office before he could introduce such a bill and no amendments
proceeded.
[30] The Mercury (Hobart), 24
October 1891, supplement, p. 1.
[31] (1858) 14 ER 727.
[32] Report of the case in The Argus (Melbourne), 26 June 1858, p. 6.
[33] (1842) 12 ER 225.
[34] See Lynn Lovelock and John Evans, New
South Wales Legislative Council Practice, Federation Press, Annandale,
NSW, 2008, pp. 52–3, 56–7.
[35] Enid Campbell, Parliamentary
Privilege, Federation Press, Sydney, 2003, p. 2.
[36] Williams, op. cit., pp. 97, 104–5. When annotating
Clark’s draft, Griffith made no mark next to clause 14, but scored a heavy
double line next to clause 51, indicating that this was a matter to return to.
[37] 38-39 Victoria, Chapter XXXXIII, reproduced in R.C.
Baker, A Manual of Reference to Authorities for the Use of
the Members of the National Australasian Convention, which will assemble at
Sydney on March 2, 1891 for the Purpose of Drafting a Constitution for the
Dominion of Australia, W.K. Thomas and Co, Printers, Adelaide, 1891, pp.
252–3. For background, see A. O’Brien (ed.), House of Commons Procedure and
Practice, 2nd edn, 2009, chapter 3, under Privilege since Confederation,
http://www.parl.gc.ca/procedure-book-livre/Document.aspx?Language=E&Mode=1&sbdid=ABBC077A-6DD8-4FBE-A29A-3F73554E63AA&sbpid=7AB38482-E14C-4656-857B-419DAD8AEB0E#9D315269-42D1-4B57-B0DE-F737414A783D,
accessed 22 October 2013.
[38] Williams, op. cit., p. 156, and see insert A2, p. 138.
[39] ibid., pp. 120, 169, 190, 217, 266, 736. Comments by the
Colonial Office on the 1897 draft show that the Office wanted to restore the
‘stream cannot rise higher than its source’ principle, but these were ignored.
[40] See s. 17, Constitution Act 1934
which re-enacts section 29 of the 1855 Constitution.
[41] Williams, op. cit., pp. 173–4, 194–5, 222–3.
[42] ibid., pp. 1010–11, 1024–6, 1079.
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