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The Pamphlet Collection of Sir Robert Stout: Volume 50

Federal Council Evidence Bill

Federal Council Evidence Bill.

The orders of the day—Federal Council page 88 Evidence Bill, consideration as amended—having been read,

The amendments were read a first time.

On the motion that they be read a second time,

Mr. Dodds said: I do not think the Council ought to pass this bill. I have already taken occasion to point out the objections to it, and further consideration has not removed those objections, although it is perfectly true that it is now in a less objectionable form than it was at first. The amendment of my hon friend the member for Queensland (Mr. Griffith) is very ingenious; it attempts to get over the difficulty, and has, to some extent, met my objections, but whether it does so sufficiently to bring it within the powers of our charter is exceedingly doubtful to my mind. The principal point upon which I cannot satisfy myself is, whether, having certain functions bestowed upon us as a Council, we are not exceeding them in this bill. We have not the power to deal with the law of evidence in any colony, but can anyone satisfy himself that we are not doing so under this bill. It may be true that it will be necessary to take evidence in relation to subjects which are provided for within the charter, but we cannot say that this bill will not alter the law of evidence, and if it do so by a side wind, we are enacting something which is not included in the Federal Council Enabling Act. Let us test it in this way. Section 7 says:—" The provisions of this Act as to proving documents shall be in addition to, and not in derogation of, any powers of proving documents existing at common law or given by any law now in force in any colony of the federation." The Imperial Act says that in any instance in which the Acts of the Council differ from those of the local Legislatures, the Acts of the Council shall prevail. I could give instances where the law of evidence differs in the colonies we are legislating for, and the consequence would be if we pass this bill that under its provisions the law we are making is to supersede everything in the law of the colonies in respect to which the Act is passed. We are creating an inconsistency by it of a very grave character, and that is one of the difficulties in regard to the measure. The rule of evidence is that foreign law must be proved as a fact before the Courts adjudicating will recognise it. How far the law of Victoria would in Tasmania, or any other colony, be considered foreign law is a question on which there might be a considerable difference of opinion. It might be treated as foreign law in any of the other colonies, or it might be treated as not coming within that category. In the latter case there would be no necessity at all for the provisions of this Act, and I am now directing my remarks to the Act as it appears in its amended form. There is no present necessity for dealing with this question during the present session, for none of the measures which we are likely to pass would call this bill into operation. We have struck out of section 3 the reference to the unwritten law, rules, and principles of any colony, and also the following sub-section.—The course of proceeding, and all rules of justice in force in the Supreme Court of any Australasian colony,"—and what is left is not needed. Clause 4 is the most useful clause in the bill, making the Government Gazette of any colony "evidence of the publication thereof on the day on which the same bears date; and any such paper, if it purports to contain any proclamation, order, regulation, rule, by-law, matter, or thing allowed, confirmed, cancelled, approved of, assented to, or certified shall also in such matters be primâ facie evidence of the purport and clue making of such proclamation, order, regulation, rule, by-law, matter, or thing."—but I know of no act of this session which would call it into operation. Section 6 was so clearly outside our functions, that the Council found no difficulty in striking it out, because it proposed to make us create a new criminal offence, and affected the liberty of the subject, and so nothing is left but the new section 6, and the other portions I have referred to. In the light of this I ask, is it desirable for the Council, there being a doubt which has not been satisfactorily and completely disposed of—although the objections have been met to a great extent—and there being no absolute necessity for it, to persist in passing the bill. Would it not be wiser to defer it? We have done good by discussing its provisions. We have thrown a good deal of light on the question, and now I suggest that we should refer it to the Standing Committee which is about to be appointed, and of which I have no doubt my hon. friend, Mr. Griffith, will be the chairman, to amend the scheme further, and bring it on in a form in which there could be no doubt as to its validity. I would suggest to the hon. gentleman in charge of the bill whether it would not be wise—especially as he is not supported by any legal adviser—not to proceed further with it during the present session.

The President: There are one or two of the arguments of the hon. member in respect to this bill, which I think hardly express the object with which it was originally intended to promote the passing of this and other bills during the present session. This is, in point of fact, preliminary legislation, and the same remark will apply to the other two bills we have passed this morning, one of which was the interpretation of terms used in Acts of Parliament. It was certainly considered that if there were any functions which this Council could properly perform during its first session, it would be the dealing with such preliminary measures as recommended themselves to the judgment of the Council at large. Of course if is possible to do it this session it will obviate the necessity of doing it at any future time, but still if there is any doubt we should be careful not to press the matter forward. The hon. member admits that there is some good in the bill.

Mr. Dodds: If we have the power to pass it

The President: The hon. member has not expressed any very decided opinion upon the subject, but if the hon. member for Queensland expresses himself in similar terms of doubt as those used by the hon. member for Tasmania, I, as a layman, shall not press the point further, as every layman must necessarily be guided by the professional men in the Assembly on such a matter as this. In reference to our having no legal adviser for the colony of Victoria I would say that this bill was submitted to the gentleman who has page 89 so long acted as the legal adviser for that colony, and he approved of it.

Mr. Dodds: Surely he never consented to section 6 being put there.

The President: I am not prepared to say that; but the main principles of the bill had his approval, and the Government of Victoria, who have been guided by him in legal matters for the last three years, have not fallen into any error or mistake under his guidance, and his voice has gone a long way with the representatives of Victoria in their desire to see the bill passed. The provisions of this bill, as we all of course know, are substantially restricted to any law process that may be brought before any Court under the provisions of Acts of this Council only. That being so, each individual colony represented in this Council certainly consents, at all events, to the principle involved in this bill; and the colonies which have agreed to pass this bill cannot possibly object to the increased powers which this bill gives them, and which are referred to in clause 7. As the other colonies of Australia cannot be affected in any shape or form by the bill, it is impossible for them to raise objections to it. I confess I should like to hear what Mr. Griffith has to say on the question, and I shall be guided to a large extent by what he says. This Council should take care to do nothing that is even doubtful, it should be careful in every step it takes, so as to impress upon all the colonies, or those outside, as well as those within the Federation, that the Council is a body which intends to deal very warily and charily with the legislative functions which have been committed to it. It is of far more importance that we should impress that conviction strongly upon the minds of the colonies at large than that we should pass an extra bill or two this session. Of course, hon. members desire to do and to show some work for the time they have been engaged, but I do not think that feeling should be allowed to go too far, and induce us in the slightest degree to enter upon hasty legislation which is in any respect detrimental. I for one, therefore, should be glad to hear the opinion of the hon member from Queensland on the question.

Mr. Griffith said: Mr. President, I have considered on several occasions the questions that have been raised with respect to this bill being within the jurisdiction of the Federal Council. The conclusion that I have come to is, that it is within our powers to pass such an Act; and that for this reason: almost any Act that we may pass here of general application, will of necessity involve that things done in one colony shall be recognised in another. That is involved in the principle of a law of general application. I do not think that the laws of the several colonies are at present convenient, if they are sufficient, for the purpose, and it would therefore be necessary for us in each instance, after passing a law, to provide how the proceedings to be taken under that law should be proved in a colony other than that in which they are taken. It may be that the general law would be sufficient, but I very much doubt it. I think, therefore, it would be within our province in each case to provide how the proceedings shall be proved. This bill aims to effect that object. It will be a sort of addendum or appendix to every Act of the Federal Council, providing that whenever for the purpose of any Act it is necessary to make formal proof of certain things, this Act shall apply. I think we can do that. Take, for instance, the case of a judgment. If we are passing a law that a judgment of one colony shall be recognised in another, it would be within our province to say that the certificate of the proper officer of the Court in which the judgment is made should be recognised in the Court of the colony in which it is proposed to be enforced. All the provisions in this bill are other instances of the same principle. I think, therefore, from that point of view that it is within our province to pass it, so far as relates to matters over which we have original jurisdiction. With respect to other matters over which we may have a delegated jurisdiction, but which have not yet been referred to us, I apprehend that it will be necessary that this bill should be referred to and incorporated in any Act of that kind, because probably our power to legislate in respect of any such matters must be exercised subsequently in point of date to the Acts by which the matters are referred to us—I mention this for future consideration when we pass any Act to whose provisions it is desired that the provisions of this bill should be applied. I think we may safely proceed to pass this bill into law.

Mr. Berry: I am glad to hear the opinion just expressed by the hon. member from Queensland, because there is no question but that we should be very careful indeed, in passing measures, to be quite clear that they are within the jurisdiction conferred upon this Council. I was aware that the hon. member for Tasmania, Mr. Dodds, had raised objections at an earlier stage to this measure on the ground that it was beyond the powers of the Council to pass a measure of this kind; but I understood that by the alterations made in committee the objections he entertained had been to a very large extent removed.

Mr. Dodds: By the insertion of clause 2.

Mr. Berry: And by the striking out of clause 6. I was pleased to hear, when he spoke this morning, that he did not speak with any confidence with regard to the doubts that he had originally raised. It is true he said they were not wholly removed from his mind, but I think he conveyed the impression that a very little of them still remained. I feel, as no doubt do other hon. members, that to raise the question at this last stage of the bill is a surprise, and is somewhat to be deplored. However, if it could have been shown that the bill was outside our powers, or that it was altogether unnecessary, it would have been the duty of the Council, even at the last stage, to have abandoned the measure. Although I was not convinced by anything the hon. member said, cither that the bill was outside our powers, or that it was unnecessary, I am glad to see that the hon. member from Queensland, after very mature consideration, has given us the assurance that in his opinion the bill is not outside the powers of this Council. As you very well pointed out, sir, in your remarks, this bill is one of the preliminary bills to initiate, as it were, the legislation which, in course of time will be completed in this chamber, That it will be a useful measure, I am convinced. It will facilitate evidence of page 90 proof of certain matters in relation to actions that may be brought under any Act of this Council. It is for that purpose that the bill was framed, and I shall feel great satisfaction when it is read a third time and passed into law.

Question put and passed, and the third reading of the bill made an order of the day for to-morrow.