The Pamphlet Collection of Sir Robert Stout: Volume 50
Federal Evidence Bill
Federal Evidence Bill.
Mr. Berry said: I presume there will be no objection to the second reading of this bill, and I will not go into committee upon it to-day, as I mentioned on a previous occasion the title of the bill, "A bill to facilitate throughout the federation, the proof of Acts of the Federal Council, and of Acts of the Parliaments of the various Australian colonies, and of judicial and official documents and of signatures of certain public officers in matters relating to the service of Civil Process of and to the enforcement of judgments of the Courts of the Australasian colonies, and to the enforcement of Criminal Process, seems so fully to declare the purposes of the bill, that it is scarcely necessary to dilate upon it. It is a bill more for debate in committee than upon the second reading. It is necessary that a bill of this sort should be brought in, as one we have just passed, and another one on the notice-paper, necessitate a provision of this sort to make them effective, to have it stated what shall be evidence, and to facilitate in every possible way legal proof in the various matters. That is what the present bill proposes to do, and I am at a loss to see what possible objection could be taken to it. I labour under the inconvenience of not being a barrister, but as we have two present, if there are any objections to the bill, I doubt not we shall hear them. I move the second reading of the bill.
Mr. Griffith: This bill is like the other one passed through committee this afternoon, and it may be taken as a sort of preface or supplement to every Act of the Council we may pass. Only in that sense can it be said to be within our province at all. This bill as framed is limited to the three subjects of Civil Process, enforcement of judgments, and the enforcement of Criminal Process. I conceive that the limitation is unnecessary, for if we have power at all to pass an Act relating to the mode of proof for the purposes of our own Acts, we have the power with respect to all Acts we pass, and the functions of this bill should not be limited to these three subjects. Take the case of the patent law. There clearly judicial notice would have to be taken of someone's signature, so in Acts for the prevention of the influx of criminals, naturalization of aliens, and numerous other matters which may be referred to the Council. Every clause of the bill contains a limitation of its scope to these three subjects, but in committee I shall suggest that instead of the limitations it now contains, there should be a general clause at the commencement, declaring that the Act relates to all cases in which it may be necessary for the purposes of any Act of the Federal Council to make proof of the things referred to. (Hear, hear.) Probably that will be agreed to, and so much greater scope will be given the operation of the bill. There are some other matters to which I should like to call attention. I do not like the title, "Federal Evidence Act," but to "Federal Council Evidence Act" I should have less objection. I want to prevent the name "Federal" from becoming common or profane. (Laughter.) I think "Australasian Evidence Act" would look better. In the second clause, I think that an page 54 enormous burden is placed on some Courts. By it the Supreme Court of Tasmania would be called upon to take notice of the unwritten rules of law relating to native tenures as administered by the Supreme Court of Fiji? I presume it would have a good deal of difficulty in saying what are those rules of law. To expect a Court to take judicial notice of such things, without information and without argument, is too heavy a burden to impose upon it. The fifth clause is not within our power, the first part of it, at all events, as it relates to the administration of the criminal law within the several colonies. I have called attention to these matters, because it will probably facilitate business in committee.
Mr. Dodds It appears to me extremely doubtful whether the Council has the power to pass this bill. The functions of the Council are clearly defined by the Federal Council Act, and the subjects over which it has authority are there set out. It is quite clear, so far as regards sub-sections A, B, C, G and H of clause 15 are concerned, we should have no power to pass a bill of this kind. As regards sub-sections D, E, and F, the nature of this bill is closely allied to the subjects there mentioned, and no doubt it would be of extreme importance if we could pass such a bill as this, and have a law of general application. But it appears to me to be a straining of the language of those three sub-sections to affirm that this bill is within their provisions. Then, referring to sub-section I, it will be remembered that the wording is that the Council may deal with any "other matter of general Australasian interest, with respect to which the Legislatures of the several colonies can legislate within their own limits, and as to which it is deemed desirable that there should be a law of general application." That refers to matters which must be referred to the Council by the Legislatures of two or more colonies before we can deal with them. The subject dealt with in this bill is just one of those matters that are contemplated in the language of the sub-section. It is a matter "of general Australasian interest with respect to which the Legislatures of the several colonies can legislate within their own limits, and as to which it is deemed desirable that there should be a law of general application." But, inasmuch as no Legislatures have yet referred this matter to the Council, it appears to me extremely doubtful whether the Council is in a position to deal with it. I trust the hon. member for Queensland (Mr. Griffith) will give us his opinion on this subject. If my view of the case is right, the bill should be referred to the Standing Committee that we propose to create, with an instruction that it deal with the question, and bring up a report during the recess, in order that the Council may go into the matter next session. It is exceedingly desirable that a law of this kind should be passed, but I am unable to convince myself that the Council at present have the power to pass it. The hon. member who brought it forward is entitled to the thanks of the Council for laying it before us for consideration, and if it should be the will of the Council to discuss it, I trust that due consideration will be given to the suggestion I have made, so that we may not attempt to do anything that may be held to be ultra vires. It is exceedingly important that we should not proceed to legislate on any subject that is not clearly within our definite functions.
The President: I think there is no doubt as to the desirability of making a law of this kind, and I understood that it was for the express purpose of bringing the matter fully within the grasp of the Council that the limitation referred to in the title of the bill was inserted, namely, that we should be able to take judicial notice of certain matters referred to in section 15 of the Enabling Act. I was gratified, I have no hesitation in saying, to hear the hon. member, Mr. Griffith, propose to enlarge the title of the bill so as to take in other matters; and if there be any doubt as to the power of the Council to deal with those other matters under sub-section I, it will be necessary that we should fairly consider it, as Mr. Dodds has said, before we proceed further. In the meantime I presume there will be no objection to the second reading of the bill.
Mr. Douglas: It seems to me that this bill is within our jurisdiction. Sub-sections D, E, and F give us power to deal, without any reference whatever to service of Civil Process, enforcement of judgments courts of laws, and enforcements of Criminal Process. The Act simply says that in dealing with these matters we are to be guided by certain rules of evidence that are stated in this bill. Having, therefore, to a certain extent, dealt with some of those things, and having power to deal with others, I do not see how this bill, which does not go beyond them, is outside of our jurisdiction. Certainly, it is not more beyond the jurisdiction of the Council than the first bill we passed through committee to-day. This bill is simply to facilitate proof on those matters with which we have to deal. Therefore, I cannot see the objection, especially as they might both have been embodied in the measure. It appears to me that if we have power to deal with those matters we have power to deal with the mode in which they should be inducted; and that is what this bill does. It simply says that such and such things shall be taken as evidence. Whether the clauses may be altered, that will be for the committee to determine, but I can see no reason why the bill should not be read a second time, and that we should go into committee upon it. I therefore support the second reading of the bill. If there should be any doubt as to the extent of our jurisdiction in the matter, it might be as well to adjourn the second reading until tomorrow, when the subject can be debated de novo.
Mr. Berry: I think it will be advisable to pass the second reading now, and we can go into the other question in committee.
Question put and passed, and committal of the bill made an order of the day for tomorrow.