The 1938 MS

What is the 1938 MS?

What has been referred to throughout this work as the 1938 MS is the first known attempt to compile an annotated version of the Senate’s standing orders. It survives as an original typescript which is preserved in a relatively modern binding, together with the carbon copies on flimsy paper, held in two dark red leatherette, quarto–sized, spring–back binders which were probably contemporary, given the good condition of these “flimsies”. The term “1938 MS” is a term of convenience taken from the spine of the bound volume, which reads “Annotated Standing Orders circa 1938” (see Plate 25).

Recycled paper

Apart from the thickness of the volume (see Plate 26), its most striking physical feature is the paper used to compile it which recalls the much stricter etiquette of days long past. For it was compiled on the reverse side of mourning stationery, dating from the death of Edward VII (see Plate 23). The King died on 6 May 1910 and the Senate letterpress book for the period contains a copy of a letter from President Gould to Prime Minister Andrew Fisher, dated 12 May 1910, seeking authorisation for the expenditure required for the draping of Parliament House, Melbourne, as a sign of official mourning. In June, there was a letter from George Upward, Acting Clerk, to the Secretary of the Department of Home Affairs, forwarding stocks of mourning paper and envelopes for use in the Commonwealth Members’ Rooms (the forerunner of Commonwealth Parliamentary Offices) in Sydney and Adelaide. Another letter from Upward to the Prime Minister’s Secretary in July acknowledges receipt of directions received from the Secretary of State for the Colonies regarding the use of mourning stationery for official purposes.1 The death of a king was a serious business and no doubt ample stocks of stationery were ordered for use during the official mourning period.2

There is also no doubt that there was plenty of paper left over that could not be used for official purposes once the mourning period had ended. But it was not the custom of the times to be wasteful and it was certainly too good to use for scrap paper. A quantity of the paper remained in the custody of the department and, when the time came to leave Melbourne in 1927, someone ensured that it was packed for the journey to Canberra. The likeliest candidate is John Ernest Edwards who, at the time of the move, was Clerk of the Records and Papers and therefore responsible for supervising the transfer of departmental files and Senate records to their new location. It was to be another ten years before a use was found for the left over stationery.

Who was the author?

As noted in the Introduction, there were several possible candidates for authorship of the work but Monahan, who retired as Clerk at the end of 1938, and Broinowski, who succeeded him as Clerk until 1942, can almost certainly be ruled out on the basis of timing. There is overwhelming evidence that composition of the work continued well into the 1940s and beyond either man’s term as Clerk. While Monahan had the procedural interest, experience and understanding to have compiled the work, Broinowski has not left evidence of the same level of interest and appears to have relished more the role of Usher of the Black Rod. That leaves Edwards and Loof, the next two officers in line in what was a very small department.3

Edwards’ writing interests have been noted in the Introduction. He kept a commonplace book of notes and cuttings that show him to be a conscientious collector of procedural and parliamentary information, some of it both anecdotal and amusing (see Plate 1). Loof’s name is on a heavily annotated 1903 edition of the Standing Orders, which includes information about the 1903 debates and subsequent amendment histories (see Plate 2). It may have been preparatory work for the 1937 edition or for a procedural work such as the 1938 MS or, indeed, for a longer running project.

The 1938 MS is structured in the same way as this work. Each standing order is reproduced at the beginning of a new page, followed by a commentary. The text of the standing orders was cut from a copy of the 1922 edition and pasted onto the back of the mourning stationery with a rule underneath. Amendments made to various standing orders on 1 September 1937, with effect from 1 October 1937, were written in by hand (see Plate 24 for an example).4 There is sufficient evidence to demonstrate whose hand it was.

As is apparent from Plates 1 and 2, the handwriting of Loof and Edwards is similar but there is a distinctive difference in the formation of the tails on the letters “g” and “y”. Loof’s hand invariably has regular, looped tails on these letters. Edwards truncates the loop halfway up the tail so that it is barely there, especially in the letter “y.” The handwritten emendations and additions in the 1938 MS exhibit this characteristic “y” and are almost certainly in Edwards’ hand (see Plate 24).

While handwriting analysis is interesting, there is also conclusive proof of Edwards’ authorship. A longer annotation in a different hand (and in pencil) takes issue with an interpretation in the general notes to standing order 685 in these terms: “I don’t agree with this part of Mr JEE’s observations. After all, all senators should, theoretically at any rate, remain till the Senate adjourns & should not ‘go home’ as Mr JEE says”6 (see Plate 27). There is also a comment in the same hand in the flimsies with other references to “Mr JEE”. “Mr JEE” can be none other than John Ernest Edwards.

A collection of “unregistered correspondence” and circulation copies (or “pinks”) from this era, held by the Department of the Senate, provides further external confirmation that he did indeed compile this work and of the dates of composition. Asked for advice by a senator on procedures for moving the address–in–reply, Edwards replied, on 7 June 1937, by referring to and quoting “my notes on this Standing Order”. The quote in the letter exactly matches the typewritten notes in the 1938 MS. Six years later, in June 1943, Edwards wrote to a Dr Allan Way of Hunter Street, Newcastle, sending him copies of standing orders of both Houses and Boydell’s booklet on money bills, and noting, “I have been devoting some of my spare time during recess to compiling some notes on the Senate Standing Orders. I have also written an article for the ‘Australian Quarterly’ on the Powers of the Senate in relation to Money Bills”.

When was it compiled?

The pasting of the sheets with cut–outs from the 1922 standing orders would have started before the standing orders were amended in September 1937, most likely in the first half of that year. The amendments that took effect on 1 October 1937 were added by hand. The Senate did not sit between 11 December 1936 and the beginning of the second session of the 14th Parliament on 17 June 1937. It then sat till 15 September and returned after the October election for the new Parliament on 30 November 1937. There was thus plenty of opportunity in 1937 to begin work on a major project.

There are many temporal references in the text, starting with “Up to the time of writing (1937) …” in the notes to SO 36B. As the work progresses, there are numerous references to precedents from the late 1930s and early 1940s, up to February 1944. Later precedents appear particularly in the standing orders on legislation and towards the end of the work in the standing orders concerning the rules of debate and conduct of senators. Presidential rulings are commonly cited, but usually in their collected form, rather than by reference to the Hansard alone. Of the contemporary Presidents, citations of rulings of President Lynch (1932–38) are relatively sparse while citations of rulings of President Hayes (1938–41) appear only towards the end of the volume. There seems to have been a lead time of about two years on the publication of collected rulings. There are no dates in any of the publication details (see Appendix 7) but surviving proofs show that the volume of rulings of President Cunningham (1941–43) went to press in July/August 1945 while President Brown’s rulings (1943–51) went to press in July/August 1953.7

The latest citation is “Session of 1943–44” (SO 438) but there is also a passage of text at the end of SO 251 that has been struck out. It suggests a date of 1947:

In forty–six years the double dissolution has only been resorted to once, and with a result that has not tended to encourage its future use – the Government which tried this means of disciplining the Senate being disastrously defeated at the polls. During the whole of the Scullin Government’s term, that Government was in a minority in the Senate, and many of its measures were rejected or drastically amended. The sword of a double dissolution was repeatedly flourished, but never fell. When ultimately the issues in dispute were referred to the electors, the stand taken by the Senate was upheld and once again the Government suffered defeat.

The tone of this passage is different from the bulk of the writing. It has a more literary turn of phrase in its resort to metaphor and adverb. Whether Edwards wrote this passage or not, by 1947, he would have been working on the project for ten years. To understand why he may have abandoned the task, it is necessary to examine the early career of Jim Odgers and his relationship with Edwards.

Edwards and Odgers

After two years with the department, Odgers was promoted from Clerk of Papers and Accountant to the position of Clerk of the Records on 1 July 1944, a position he held until 5 May 1950 when he became Usher of the Black Rod and Clerk of Committees. His first published article appeared in The Australian Quarterly in December 1948, entitled “The Senate – Case for the Defence”. It was a riposte to an article by H.M. Storey, President of the Constitutional Association of NSW, published in the September issue. There is no doubt that Edwards encouraged and mentored Odgers who, according to his son,8 felt a strong need either to undertake a law degree or write a major publication in order to establish his credentials for advancement.

There is little doubt that Odgers took his cue from the increasingly sophisticated analysis that Edwards was applying to the latter half of his standing orders project and, in particular, to his account of the financial powers of the Senate. There is also a developing sense of institutionalism and the collective knowledge of its principal officers. For example, s.53 issues arising in the Senate in February 1943 bore quite heavily on the text of the commentary of the relevant standing orders on bills. On s.53 and requests, Edwards cites Boydell’s small book, his own article from The Australian Quarterly and also mentions the material Monahan prepared in 1920–21 in relation to the Tariff Bills. This material was circulated to ministers and others but not published. Edwards includes 11 pages of Monahan’s notes at the end of the chapter on bills.

Perhaps after ten years of working on the manuscript, the possibilities for a more conceptual work had begun to form in Edwards’ mind but why did he leave off the task? Did he sense that Odgers had the ability and the hunger to write the sort of work that had only begun to dawn on Edwards in the latter part of his endeavours? Was it time to pass the baton on to a new generation? Was it simply that now he was Clerk, Edwards did not have the time to devote to a work of this scale? Edwards had worked as an officer of the Senate since 1915. He had worked on the MS on and off for approximately ten years and it was still sketchy and uneven. If he were to complete the book, there would need to be a substantial amount of revision and new material.

The emergence of Odgers as a potential future Clerk coincided with the development of Edwards’ interests in other directions, particularly in the explanation of parliament to a wider audience. In 1946, he published the first edition of Parliament and How It Works, a small book of general interest which also contained many anecdotes of interesting traditions and dramatic events to which, as a parliamentary officer, he was a witness. It appears to have been a runaway success, with four editions in the first two years, the fourth one being a revised edition. There were further editions in 1947, 1948, 1949 and 1951. The book was written in a lively style and drew on a vast store of knowledge of Australian, British and American parliamentary practices. That Edwards was an intellectual bowerbird is evident from his commonplace books and from the range of anecdotes and illustrations in Parliament and How It Works. He clearly relished that kind of writing, much more so than the dry commentaries on the standing orders. I suspect he welcomed and nurtured Odgers’ interest in writing a manual of Senate practice.

In the meantime, he made available to Odgers the typescript of the 1938 MS and the flimsies which bear several pencil annotations in Odgers’ hand, including the note under SO 64 referred to earlier. While there is much of Senate history and procedure that Odgers would have had to discover for himself, the 1938 MS would have been of considerable assistance to him in identifying earlier precedents and collating significant Presidents’ rulings on particular topics. Indeed, there are parts of Australian Senate Practice which lean quite clearly on the 1938 MS and some specific examples are noted throughout this work. So, while J.R. Odgers is rightly regarded as one of the great Clerks of the Senate, we now know a little more about whose modest shoulders supported his early ambitions.

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