THE COMMISSIONERS.

Dominion, Volume 6, Issue 1857, 17 September 1913, Page 4

THE COMMISSIONERS.

OPPOSITION ASSERTIONS. THE POWERS OF PARLIAMENT DENIED. A LEGAL OPINION.

Sir Josoph Ward, referring to tho commencement of the debate on Friday evening, said that the < main question hinged upon the position of the Public Servico Commissioners in relation to Parliament. He had obtained opinions from two K.C.'s upon tho point which ho proposed to place upon record.- If, after that, the Primo Minister did not move to report progress and obtain tho Solicitor-General's opinion and inform tho Houso of'the position, ho would bo taking a responsibility which he (tho speaker) would not caro to accept. Tho Primo Minister here interjected that this could not bo taken as raising a general discussion. After some negotiations it was agreed that thero should bo four speakers on the pointtwo oA each side —tho Primo Minister and Mr. Hordman for the Government and Sir Josoph Ward and Mr. Wilford for the Opposition. Tho Hon. A. T. Ngata asked that tho Chairman of Committees should direct Hansard to tako a full not© according to tho power granted him. Mr. Massey said he could not agrco to that, as ho considered it was not a fair position to tako up. It was understood. however, that Mr. Malcolm aid direct the Hansard reporters to take' a full noto. LEADER OF THE OPPOSITION. "ESTIMATES ILLEGAL." Sir Joseph Ward said that in the discussion at tho end of last week ho expressed doubt as to whether the Government had any power to deal with tho Estimates whtdh had been relegated to the Public Service Commissioner. Ho had obtained .from twio cmiuent legal gcntlomeu an opinion that the Estimates, if passed now, would be illegal. Ho read the report in question, which stated, inter alia, that its authors had been asked to report upon the position in .regard to tho Estimates before Parliament. There wore substauI tial differences between the salaries appearing on those Estimates. and .those

fixed under tho Public Service Act, 1912. The Primo Minister had stated that tho Estimates wero those of tho Government, and not those of the Commissioners''. - Tho Minister for Financo had further stated that- these wore the Ginvornmont Estimates, and Iliad nothing to do with the Public Servico Commissioner. Tho question for opjnion was: Could Parliament fix salaries different from thoso fixed under the Public Service Act, 1912, without overriding by legislation tho provisions of the Public Service Act. Salaries and Authority. "Wo are clearly of opinion," the reliort continued, "that tlie salaries fixed by the Public Servico Commissioner cannot be altered except by authority of Act of Parliament."" The report goes on to quoto tho Public Servico Act in regard to tho powers of tho Commissioner ill connection with tho grading and classification of officers and so forth. It is stated that officers had become entitled to tho salaries fixed under tho classification. These salaries had become statutory, and could only bo altered by Statute. Tho Estimates should have been based upon tho salaries fixed by the Commissioners. Tho salaries could not bo reduced by voto of the House unless that vote took tho form of legislation in the ordinary way. Finally, tlie authors of tho report stated that their conclusions wero shortly as follow: — 1

(1) Tho Government cannot Regally pay to officers of tho Public Service salaries less or more than thoso fixed under tho Public Service Act without an over-riding Act.

(2) That tho more voto of the House in Committee of Supply cannot effectively alter tho salaries so fixed, unless such voto is adopted by, and expressed in, a. legislative enactment.

(3) The Public Service Act plainly contemplated that tho annual Estimates should bo based strictly upon the salaries fixed under tho Act; and that such Estimates should no longer bo based upon salaries fixed by the Government. (4) Legislation over-riding tho Public Servico Act can of course bo passed in tile usual way.

A Layman's Opinion. Tlie authors of the report, Sir Joseph Ward stated, wero Messrs. C. B. Skerrett and Sir J. G. Findlay. He added that his opinion as a layman coincided with that bf these two lawyers. They had now reached tho position that the salaries fixed by the Commissioner could not bo increased or decreased except by Act of Parliament. Everj-thing that had been dono upon tho Estimates was illegal in the opinion of theso two eminent legal gentlemen, and any intelligent layman would recogniso tho • difficulty that had presented itself. ..Ho asked that tho opinion of tho Solicitor-General upon tho point ho had raised should be obtained and placed beforo Parliament. Finally Sir Joseph Ward contended that tho proper thing to do was to amend by a Bill tho position that had been created by a Bill. THE PRIME MINISTER. PARLIAMENT'S UNDOUBTED POWERS. Tho Prime Minister said ho did not agree with tho opinions expressed by Sir Joseph Ward. His own opinion as against that of tho two legal gentlemen mentioned might not bo of very much value, but lie would like to remind tlio House that lawyers timo after time differed.»lt was quito possihlo for thom to liavo made some mistake, and lio would remind' them of tho mistako that was mado last recess in regard to certain legislation passed last year. Legal opinions wero givon in Wellington which wero absolutely contrary to tho decision of tho Supreme Court. Parliament certainly had the power to deal'with, the Estimates. Who submitted thom to Parliament? They wero submitted to Parliament by representatives of tho Crown for tho timo boing, and after going through the proper form of securing tho recommendation from tho Governor. Having been submitted to Parliament, surely Sir Joseph Ward would not say it was'not possible or competent for Parliament to reduce those Estimates. It was not compotont for Parliament to refuso to pass theso Estimates.

Sir Joseph Ward: We have power to deal with the Government Estimates but cannot d'oal with those of tho Commissioners.

Mr. Massey: I disagree with you absolutely. The position is exactly the samo to-day so far as increases aro concorned as it was prior to the coming into operation of tho Public Service Act. He contended very strongly that the authorities quoted by Sir Joseph Ward did not say that Parliament had not power to reduce Sir Joseph Ward: Yes,.thoy do. Mr., Massey: If thoy sav Parliamont has not power to reduce the Estimates the.n I submit thoy are mistaken. Thoy have taken up a position which cannot be tenable. According to tho Constitution Act, the powers of Parliament had not been affected in the vory slightest degree by tho passing of tho Public Service Act. Mr. Russell: That is only elementary, that point. The Basis of Parliament. Mr. Massoy: It is tho very basis of tho whole principle upon which wo aro working. After quoting tho Constitution Aot Mr. Massoy ; -said it was i clear that neither tho Commissioners nor any other body of men could submit Estimates to Parliament. The Hon. A. T. Ngata: What does your Act mean? Mr. Massey: Tho position has not been affected by the Public Servico Act. Sir Joseph Ward had said that an Act was required to clear up tho position but ordinarily tho Estimates could not be given effect to exccpt by an Act. Mr. Russell: I admit you will bo able to clear this position up iu tho Appropriation Act. The Whole Position. Mr. Massey: Thoro tho whole position is given away. It is very seldom that I agree with the hon. member for Avon, but I agree with him when he'says it is possihlo to clear tlio position up in tho Appropriation Aot. No special provisions, ho added, would bo neededjust tho ordinary Appropriation Act. Sir Josoph Ward: That is not so. Mr. Massey: You aro simply expressing your opinion. Sir Joseph Ward: But I am sure of it. Mr. Massoy: I do not say that my opinion is as good as that of a man with a legal training, but 1 submit that on this point it is as good as that of Sir Joseph Ward. Mr. Russell: That does not get over tho position that it is quito illegal. Mr. Massey: No, you aro mistaken. Tho Primo Minister proceeded to advanco that tho power of Parliament today was exactly the samo in roferenco to'tho Railways Act as it was in tho Public Sorvice Act, in spite of parallel provisions in . tlio two Acts. Parliament had to excrciso control over tho Railways Estimates and in the Public Servico Act it was provided that officers "should,bo paid salaries and wages determined by Commissioners and authorised by Parliament." That was what liad been done for years in the railways and was what they wero doing now under tho Public Service Commissioners. Sir Josoph Ward: No, there is a great deal of difference. Mr. Massoy added that tho Public Servico Act was tho samo as tho Australian Acts and the Estimates thoro were submitted in tho same fashion ns here. If anything had been wrong it' would havo been reotified long ttfo. "So far as getting the Solicitor-Gen-eral's opinion on this point," concluded Massey, "I am not ablo sav

positively what his opinion is upon tho matter as I liavo not taken tlio opportunity of consulting him, but I shall have very great pleasure in asking him to'give his opinions."

Sir Joseph Ward: And. report progress?

Mr. Massey: No, I am not going to report progress. To suggest such a tiling is .positively absurd. I have done my best to save the time of the country ancl tlio Houso and I shall continue to do it.

MR. T. M. WILFORD. THE COMMISSIONER AND THE ESTIMATES. Mr. T. M. Wilford (Hutt) contended that when salaries had been decided by the Commissioners they were fixed by Statute, and the Houso had no power to alter them by way of Estimates. The Primo Minister had quoted Section 54 of tho Constitution' Act, and had argued 1 that Parliament was above any clause that might bo passed under tho Publio Service Act. Therefore his point amounted to this —that tho Public Service Act was over-riding tho Constitution. If this were so, tho Houso had lost its power in relation to fixing salaries, and tho whole Publio Service Act with regard to salaries was illegal. The Primo Minister: I did not say that.

Mr. Wilford, continuing, said that the Prime Ministor did not really believe that tho Act was a contravention of the Constitution Act; ho believed tho Act was a perfectly legal one. Under Section 15 of tho Act the Commissioner was required to send an annual report to tho Governor. Scction 24 provided that this report should bo accompanied by the Estimates. These Estimates should bo sent by tho Governor to tho Ministry for introduction into Parliament. S'uoh a course had not been taken. A charge which could not be answered by tho Government was that no such Estimates had ever been sent to the Governor. Nor had they been sent to the Ministers for presentation to Parliament. What was tho answer to that? There could bo no answer. Under the Public Service Act an officer's salary was fixed on his Engagement, and it was a fixed salary. It was a contract of employment. With this salary Parliament could not interfere. Tho important question,was whether the salaries were statutory or not.

The only contention iof tlio Primo Minister which required answer was tho question of tho Appropriation Act. Tho .qxiestion did. not come the present matter, beeauso tliere was tho' over-riding power of tlio Commissioner under the Statute, which gave him-de-finite, particular powers. Parliament gave tho Commissioner cortain powers, and those powers had been exorcised 'n the Gazette of August 20 ; Salaries had been fixed by tho Commissioners, and it was therefore absurd to ask tho House, on top of that statutory provision, even to consider tho various items submitted. ! MR. HERDMAN'S REPLY. A STATUTORY CONTRACT. Tlio Hon. A. L. Herdman eaidl that tho matters submitted to the House by J It. AVilford did not call for much comment, but thero were two points worthy of notice. The member for Hutt had misapprehended Section 24 of tiho Publio Service Act. Thero was nothing in that section requiring tho Commissioners to present tho Estimates to the Government with their annual report. Nothing in tho section referred in any way to the Estimates. Section 24 had been placed in tho Act to meet oertain conditions. It might become. necessary .at some ' time to -'refirfcaich, '■ oiidi tlio _ Coiil- 1 missioners would bo in tho position of having to reduce salaries all round. Again, tho position might occur in times of general prosperity that the Publio Service bo entitled to an increase aii salaries. Section 24 provided' for such rateable rediuctipns or increases. It did not refer to tho present position at all. Tlio Estimates now beforo tho House were Estimates on account, if he could use tho phrase. . Supplementary Estimates must bo brought down later on. Tdieso would mako up tho total vote of Parliament. . This vote was necessary to enable tlio salaries fixed in the classification list to be paid. It was tho duty of Parliament to voter salaries. If it was not tho duty of tlio House, and salaries could bo paid without appropriation,, tlio fact would have been mentioned in the statute. As instances of salaries paid without tho necessity for a voto of the House, the Minister mentioned' tilioso of. judges, wliidh. were fixed 1 by tho Civil List Act, and of tho Commis'sioncrs themselves, who woro vidod for in tho Public Service Act. 'Tho language of theso Acts made it dear that these salaries should bo paid without a vote of Parliament-. This- lllustrated tho distinction made betweon. salaries paid under a special Act and 1 those requiring a vote. Parliamentary Vote Necessary. It became necessary every year, Mr. Herdman continued, after the sioners had classified tho Departments and fixed the salaries, for tho House to be askod for a voto to enable the salaries to bo paid. Tho Estimates now beforo tho House constituted aji application for salaries on account. If tho classification list had' beon complete, the present position would never have ar 'lt J 'vas within the power of tho Houso now, if it pleased, to refuso any votenot only on any special class, but tlio whole amount of the Estimates. Al- ■ though the House did voto a reduction of salary, tho servant concerned would "still iiavo a claim against tho Crown for tlio balance. Tile whole question was ono of contract. Beforo tho Act camo into operation, a Civil Servant had beon under throo months' engagement, tho terms of which wero fixed when he joined the Sorvico. Ho was entitled to a certain salary, which was fixed by tho Minister or tho head of liis Department. His salary was' submitted to Parliament every year, and Parliament had tho right to reduce it if it pleased. The position, however, was that, if tlio salary wero rodueed, tho officer, by virtuo of his rights under liis contract, could have recovered tlio difference. The Minister was vested with certain powers—made appointments, fixed salaries, and regulated promotions. Ho controlled the wholo position. By tho Public Service Act certain powers of the Minister hud beon vested in tho Commissioner and his assistants. Instead of an ordinary contract betweon tho Crown and the individual ofiicor,. they now had a statutory contract. Tho officer was entitled to tho salary set against his grado inttlio schedule.

Are Proceedings Legal? The question was —Aro tho proceedings now before tho liouso illegal or not? Ho contended that they had tho- right to vote monoy for tho salaries of public officers. They could, if they lilted, vote tho whole smn in 0110 lump. Thoy were voting a certain sum now, but the vote would not bo complete until the classification list had goiio through. The list would not be complete and unalterable) until all the appeals lodged by servants had been disposed of. Then the list of salaries would be completed, file paramount power of the House to reduce votes still remained with. it. If a'vote wore reduced, tho oflicor affected would havo power under tho terms of his statutory contract to recover tho balance. Tho history of tho position was this. After tho Act had been passed, the Commissioners found that thoy had a very, difficult task before them. It had been impossible for tho classification to be completed before tho Estimates had to be got ready. There was absolutely no reason why tlio Government should not ask for a vote on ac-.

count, and bring down soveral sofa of Estimates. A Personal Explanation. Mr. T. M. Wilford said that ]io ivislicd to correct a misrepresentation by tho Attorney-General. (Government .members: No!) Tho Chairman said that lie had stated very distinctly before allowing this irregular discussion that Lo would allow four speakers and tho last speech was to bo the reply. Ho must regretfully rule that tho matter was now at an air. Wilford contended warmly that any member misrepresented had a right to put himself right. Mr. Nosworthy objected to the discussion being continued. Sir Josoph Ward said that he would movo to report progress if > Mi;. Wilford wcro not allowed to make his personal explanation. ' 1 Eventually the member for Hutt was allowed to ot-iito that ho had not said that the report and Estimates of tho Commissioners must bo presented under Section 15 of tho Public Service Act. What he had said was that the report must lie presented under Section 15, and that tho Estimates mentioned in Section 24 of the Act were the-Estimates now before tho Committeo. OBSTRUCTION RESUMED. MORE ABOUT ATTENDANTS. At 4.43 p.m. the discussion upon tho proposal to reduce by £5 tho aggregate salaries of 13 attendants at Tokaiiui Mental Hospital waa resumed. This particular amendment kept the Opposition goiug until ten minutes after tlio resumption at 7.30 p.m. It was then nogatived on the voices. Mr. Russell now moved to reduce tho total Porirua vote, £14,120, but was informed by the Chairman that such an amendment (relating to a sub-total) could only be moved with the indulgence of tho Committee. Eventually Mr. Russell moved to reduco the salary of tho resident medical superintendent at Porirua by £5.

More Amendments—Lost. At 10.10 p.m. tho amendment was defeated on tho voices. \ The Hon. A. T. Ngata at once moved that the item, £11,405, Wages and Sal: arios for Porirua Mental Hospital, bo reduced by £5. Tho, only point that ho made in support of his amendment was that an extraordinary largo number of relatively highly-paid artisans were employed at the Porirua institution. At 10.40 p.m. Mr. Malcolm called over ifcho question, asked for "Yes" and "Noes," and declared that "Noes" had it. Ho had spoken rapidly as is his custom 'and it appeared that some Oppositionists had been -surprised. Mr. T. K. Sidoy, and after him, Mr. J. C. Thomson, claimed to liavo been on their feot and to have called him before the decision on the motion was announced. Mr. Malcolm gave way to the-extent of asking Mr. Sidey whether ho had been standing and whether ho had 'called tho Chairman, before tho motion was declared lost. Mr. Sidey assured him that ho had done both and he was allowed to proceed to speak to the samo question.

"You've : Broken Down, Have You?"

At .11.10 p.m. the amendment was lost on tho voices, and the Hon. A. T. Ngata moved to report progross. His "most cogent reason" for reporting progress, as he put it, was that "wo havo lie-on' here too long." Ho also suggested thaA progress ought to be reported in order to allow honourablo members seriously to consider tho position they had reached.

Mr.'L. M. Isitt supported tho motion to report progress. Ho a-sked tho Government to bo "sweetly reasonable"" as tlio Opposition was inclined to bo sweetly reasonable, full of tho milk of human kindness aa they wero. . . Mr. A,nderson; "You'vo broken down, havo you?" . , ■ ■ .

Mr. Isitt: Thorp's tho applo of discord flung. That is their answer to our holding out the olive branch. He went on to say that tho Opposition had no idea of capitulation, and that they could as readily go on for a fortnight. ; Mr. J. A. Hanan took ten minutes to urgo that there was doubt from a legal point of view as to whether the House was justified in going on with thel Estimates. •

Mr. T. M. Wilford opposed the reporting of progress. Ho wanted to seo tho fight go oil, because a fight was "tho Bait of political life." He suggested that progress should not ho reported, and that he should bo allowed to move to reduce tho next item as an indication that the salary of every member of Parliament should be reduced by £1 a day from tho beginning until tlio end of tho session. This would have tho effect of shortening the session. Mr. G. Witty (Riccarton) pleaded effusively for the reporting of progress, and was followed by Mr. R. M'Callum (Wairau), who declared that if' tho Prime Minister would supply all the reports wanted—Public . Health, etc. — and adjourn till 2.30 the next day, ho had no doubt tho whole of the Estimates would be put through in a few hours.

Mr. Massoy: Will you give us a guarantes to that effect?

Mr. M'Callum: I cannot bind the party. (Derisive laughter.) Mr. M'Callum completed his time with declarations of readiness to stay till after Christinas if necessary. He claimed to bo tho only man in the House capable of taking a clear view of the situation, because lie had returned fresh to tho scone, and could judge tho temper of the Hoiiso. At 0.30 a.m. tho motion to report progress was lost by 34 votes to 15. Mr H„ Atmore moved to reduce the vote of £2659 for tho Nelson Mental Hospital as an indication that tho salary of the medical superintendent, £400, was ridiculously inadequate. At 1.50 a.m. tho amendment was defeated, after a division, <by 32 votes; T. E. Y- Sedtlon immediately moved another amendment that the salary of the resident medical superintendent at Ghristchurah Mental Hospital should bo reduced by £5. (Left sitting.)

In the letter from the country members to tho Primo Minister, expressing their, willingness —in view of tho obstructive tactics of tho Opposition to remain in session as long as was necessary to pass tho measures indicated by tho Government,' 1 it was made to appear that all tho signatories wero members of tho Reform party. This was not tho case, as amongst thoso who signed was tho Independent momber. for Kaipara, Mr. J. Or. Coates.