1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Mr. SPEAKER, in pursuance of Stand ing Order 25, laid upon the table his warrant nominating Mr. Batchelor, Mr. Kirwan, Mr. McDonald, Mr. Salmon, and Mr. V. L. Solomon to act as temporary Chairmen of Committees.
– Complaints are frequently made as to the delay which now occurs iu the transmission of telegrams between the eastern States and Western Australia. I would like to ask the Prime Minister whetherit would be possible to make an arrangement by which public business could be facilitated without in any way prejudicing the revenue of the States concerned by using the cable between the Grange, in South Australia, and Fremantle?
– So far as I am at present advised, I think that such an arrangement is possible. I intend to look into the matter to see if such relief can be given.
– I should like to know from the Prime Minister whether the interruptions complained of do not occur between Eucla and Port Augusta, on the South Australian portion of the telegraph line, and whether they are not due to the nearness of the telegraph wires to the sea? If that be so, will the Postmaster-General consider an additional method to that suggested by the honorable member for. South Australia, Sir Langdon Bonython, for improving the service, namely, the removal of the line further inland or the erection of an inland line, so as to get away from the climatic influences which now occasion the interruptions?
– I am not sufficiently in possession of the departmental facts to be able to answer the question without -notice, but if the honorable member will give notice of it I shall obtain the information for him.
– I have not had sufficient time to make myself acquainted with all the ins and outs of the position in regard to the alleged discrepancy between the census returns of the different States and the names upon the electoral rolls. The matter, however, is of the utmost importance, especially since the Senate elections must take place at the close of the year, and I shall therefore be glad if the Prime Minister will make a statement on the subject, so far as he can do so at the present moment.
– It is difficult for me, at the present moment, to make a statement which would be of any value, but the Minister for Home Affairs will be present to-morrow, and I think that if the honorable member will then repeat his question, my honorable colleague will be able, from his departmental knowledge, to make a fuller explanation than it is now in my power to make. I stated what I knew of the matter in answer to a question which was asked when the honorable member was not here. The course which I now suggest will be the. best in the public interests to follow, so that the fullest information may be given.
– On Tuesday last I called attention to a case which occurred in Sydney, in which a person named Goldring was put to some trouble in connexion with the non-delivery of goods consigned to him. Both the Attorney-General and the Minister for Trade and Customs then promised to look into the matter before today, and I ask now whether any decision has been arrived at in regard to it by the Government ?
– As upon inquiry I found that the papers dealing with the subject were not in the Melbourne Customhouse, I telegraphed to Sydney for them. They may arrive by this afternoon’s mail, and in any case they should be here tomorrow. It is necessary to obtain them to come to a decision in the matter.
Motion (by Mr. Deakin) proposed -
That the Bill be now read a first time.
– I think that weshould have some little time to look into this measure.
– It is not the custom to debate the motion for the first reading of a Bill.
– I think that I am within the rules of the House in doing so.
-The honorable member will have an opportunity to ask a question upon any point on which he may desire information upon the motion “ that the second reading be made an order of the day for to-morrow.”
Question resolved in the-affirmative.
Bill read a first time.
Motion (by Mr. Deakin) proposed -
That the second reading be made an order of the day for to-morrow.
Mr. CONROY (Werriwa).- I should like the Attorney-General to give us as much time as possible to look into this Bill.
– Copies of the Bill will be circulated in a few minutes, but its consideration will not be proceeded with tomorrow. It is necessary for honorable members to have this Bill before them to enable them to understand the provisions of the Judiciary Bill.
– I understand that this measure is supplementary to the Judiciary
Bill, and that we must make ourselves acquainted with its provisions to understand that Bill. If the matters with which the measure deals were to toe the subject of regulations the position would be altogether different ; but when it is proposed to legislate upon them with all due solemnity, so that future alterations or repeals can be effected only by the passing of Acts of Parliament, we should be given longer notice.
– The only question the honorable member can now debate is whether the second reading be made an order of the day for to-morrow or for some later date.
– I am endeavouring to give my reasons for deferring the second reading until some later date.
– The motion now before the House is only a formal one. There is no chance of the Bill being proceeded with this week.
– As I have the assurance of the Attorney-General that the Bill will not be taken this week, I withdraw my objection to the motion.
Question resolved in the affirmative.
– On Thursday last T stated that the disbanding of the Teachers’ Volunteer Corps in Queensland was done, I thought, when I was absent in England. I have since ascertained that it is not so, and that the disbandment was sanctioned by myself not very long ago.
Mr. SPEAKER reported the receipt of messages from His Excellency the GovernorGeneral, recommending that appropriations be made from the Commonwealth revenue for the purposes of the Sugar Bonus Bill, the Judiciary Bill, and the Naval Agreement Bill.
Ministers laid upon the table the following papers : -
Memorandum by the Treasurer regarding the payment of rebate of excise duties allowed on Australian sugar grown b3’ white labour.
Return of the officers of the permanent defence forces appointed since 1st January, 1901. 2 p 2
– In laying upon the table, in pursuance to an order of the House,
Papers connected with the retirement of Colonels Reay and Braithewaite
I would like to say that an order has been made by the Senate for the laying of these papers upon the table of that House, too. As I do not want to have a second copy made, I suggest that perhaps there will be no objection to my removing them for a short time to-morrow so that they may be placed upon the table of the Senate.
– I will see what can be done in the matter.
– I move -
That the Bill be now read a second time.
When I moved the second reading of this measure in March of last year its principles and details were exhaustively explained. There is practically nothing to be taken away from what was then urged, because the Bill remains substantially the same, and it is now necessary for me only to call attention to a few minor changes, and to address myself to the criticisms offered during the ‘debate upon the address in reply to the Governor-General’s speech. A full understanding of the Bill in all its details will, no doubt, be assisted by the consideration of the measure which accompanies it, and of which the first reading has just been agreed to. That Bill provides all the necessary mechanism to enable the High Court, if established, to enter upon the discharge of its duties. It deals with the registers proposed to be established in every State, the method of the trial of issues, the taking of evidence, and the security to be furnished upon appeal, and it has attached to it, in the form’ of a schedule, a’ very full set of rules of court dealing with questions of practice, and similar matters which are usually provided for by that means. The two measures taken together would provide for the creation of a High Court of a high character, and at the same time fully equip it with all the necessary powers for exercising the jurisdiction which it is proposed to confer upon it. The first will be supplemented in the Procedure Bill and its appendix, by all the necessary provisions to enable suitors to commence without delay and prosecute without difficulty any and every case which they may wish to submit to its judgment. These measures appear to us to absolutely complete the equipment of the proposed High Court of Australia. I ask honorable members to be good enough to takeas read the remarks made by me last year in expounding the general principles of this measure, and in endeavouring to properly estimate both historically and by comparison with other Constitutions the functions of the High Court. Since that time events have marched, and I find that the greater portion of the scrutiny which the measure now receives at the hands of honorable members leads them to question the urgency of the creation of a High Court, and to further question whether, if a High Court is established, the most economical means have been adopted to give effect to that design. While admitting that at any time questions of expense merit the most careful attention of honorable members, and paying due regard to the untoward circumstances in which many of the States of the Commonwealth have been placed owing to the physical circumstances and climatic conditions of the last few years, I submit that in connexion with this measure there are some considerations preliminary even to these. I admit to the utmost extent not only the right, but the duty of all honorable members to criticise this and every other proposal from the stand-point of the expense likely to be involved, but conceive it to be my first duty to call attention to the fact that we have first to look to our duty under the Constitution and the obligations therein specifically imposed upon us. The provisions of our Constitution with regard to the High Court differ from those relating to the High Court of Canada, to which attention was called during the recent debate. In Canada the appointment of the High Court was a comparatively subsidiary matter. The time and manner of appointment were both left wholly to the discretion of the Canadian Parliament. The provision was “The Parliament of Canada ‘ may’ appoint a High Court.” But in the Constitution sanctioned by the people of Australia, the form of words occurring in the Constitution of the United States was adopted deliberately and with set purpose, that the judicial powers of the Commonwealth “ shall” be vested in a High Court.
This has been held by judicial decision and by universal interpretation to imply a mandate - not simply the choice of Parliament to create or not to create, but a direction from the people from whom the Constitution came that the Federal Judiciary shall be created. In point of fact, if we look at the sections of the Constitution relating to the three great powers of the Federation, we shall find them significantly framed in the same words. In the first section of the Constitution proper, it is provided -
The legislative power of the Commonwealth shall be vested in a Federal Parliament, and a Federal Parliament has been created accordingly. There was no choice, no option, but it was mandatory that the legislative power should be vested in the Federal Parliament. If we turn to sections 61 and 62 we shall find similar language employed with regard to the Executive, which in point of time preceded the creation of the legislative power. According to section 61-
The Executive power of the Commonwealth is vested in the Queen, and is exercised by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.
Section 62 provides -
There shall be a Federal Executive Council to advise the Governor-General.
Therefore it is provided that there shall be a Legislature, and that there shall be an Executive, and exactly the same form of words is applied to the Judiciary. Section 71 provides -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts, &c.
– Two years have already elapsed since the Commonwealth was established.
-Yes. The Legislature was not brought into existence until five months after the establishment of the Commonwealth ; whereas the Executive was created on the very first day. Surely it is high time that the third co-ordinate and complementary power of the Commonwealth, the Federal Judiciary, should be established in obedience to the mandate contained in the Constitution ?
– Should we not practically make our Supreme Courts a High Court if we gave them the necessary jurisdiction?
– Not in the sense in which the words are employed in the Constitution, because if the honorable and learned member will look at the section he will see that it is provided -
The judicial power of the Commonwealth shall be vested in u Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts ns Parliament creates, and in such other courts, as it invests with federal jurisdiction.
Therefore we have three classes of court to provide for. First, the High Court, supreme over all ; secondly, the .Federal Courts, which may be invested with local jurisdiction under the High Court ; and then the courts of the States, to which the honorable and learned member has referred, which may be invested with federal jurisdiction within the discretion of Parliament. The three great powers to which I have referred are provided for in exactly the same terms, and stand upon exactly the same footing, thereby representing complete federa-tion. Honorable members require to look at the words of the Constitution very closely and to weigh their import very seriously, because it is not possible that the Legislature and the Executivecalled into existence under the same set of words should now proceed to hold that the third great power provided for in exactly the same way should be created in a different fashion. The creation of the High Court occupied no inconsiderable portion of the time of the .Federal Convention in 1891, and when the Constitution was submitted to the people - particularly in the less populous States - it was continually pointed out from the platform that one of the guarantees afforded by the Constitution for the fulfilment of - the many business compacts contained in it was embodied in the provision for the appointment of a High Court. It was represented that this tribunal would secure the full performance of the obligations imposed upon the Commonwealth Parliament, and thus safeguard the interests of the less populous States, which might find themselves in a minority in the legislative body. That aspect of the matter was, to my own knowledge, placed before the public in Victoria from the inception to ‘the close of - the struggle, and as far as I was able to follow the course of the electoral campaign, it was represented to the citizens of the other States with equal fullness. When the people of Australia accepted the Constitution, they did so, not only with the provision for the High Court writ large across its face, but on the assurance that the guarantee and security afforded by the J Judiciary would be provided for, as well as the Legislature and Executive which they were about to call into being. It would, therefore, be a very grave departure from the Constitution submitted to the people if we either sought to escape or attempted to postpone that fulfilment of our obligation beyond that reasonable time necessary to call the High Court into existence. In the third year of our federal existence we have certainly reached a period at which the third power of the Constitution, the only remaining great power not yet organized and established, should be launched on its career. Under these circumstances I am relieved from the necessity of making that apology which might, under other conditions, be called for in bringing forward a measure involving public expenditure at such a time as this. The Constitution, irrespective of all vicissitudes or events which may follow, contains what are practicallyinstructions to Parliament. The creation of the judicial power was not made conditional, as it might easily have been. No time was mentioned, no conditions were imposed such as abound in other portions of the Constitution. The High Court was regarded as one of the paramount parts of the Constitution, and as one of those which it would be necessary in the very first stages of the Federation to call into existence. Since that is the case, the burden lies upon the opponents of this measure, if they propose to evade the Constitution, to satisfy this House and the country that the mandate, as I read it, in section 71, is capable of being escaped from without a breach of faith, and without a disregard of our obligations. From a practical stand-point it must be admitted, even by those whose knowledge is gained only from the news columns of the daily press, that- Federal issues, to the legal decision of which much importance attaches, are multiplying. Under these circumstances we have to ask ourselves how long it is right or reasonable that these issues should be dealt with by purely local courts, and how long it is desirable that the Federal Constitution should be interpreted by the local courts. The law, as it is interpreted by the State Courts, requires to be acted upon in their territory. Should any question be. pressed further to a Court of Appeal, decisions from that quarter cannot be ignored. At the same time we are faced with the very serious responsibility of allowing questions relating to the construction of the Constitution, in regard to some of its most important principles, to be prepared for that oversea tribunal upon arguments perhaps of a relatively casual .and incomplete character in some State court. Under these circumstances can we afford to rely upon these Courts supported by an oversea appeal ? But before dealing with that aspect of the question, I should have called attention to the few alterations which have been effected in the measure before us. The provisions contained in clauses 20 and 24 have been transferred from a later portion of the Bill, and now appear a little earlier than they did previously. Upon examining the Practice and Procedure Bill, honorable members will find that it is proposed to add to this Bill four of the clauses which it was intended to embody in that measure. They will also notice that clauses 17, 40, and 41, whilst remaining the same in substance, have, been recast. Clauses 40 and 41 - perhaps the two most important in the measure - have been recast in the Bill, whilst clause 17 has been redrafted in the sheet of amendments which has been circulated. Honorable members will further observe that clauses 12 and 13 are new. additions to procedure. Clauses 56 and 57 are also new, whilst the last portion of clause 36 from line 30 to the bottom of the page has been added. The sheet of amendments shows that in clause 7 we propose to omit the last three lines referring to the avoidance of the office of Justice of the High Court, as this method of discharging the office does not appear to be consistent with a reading of the Constitution. Another amendment is proposed to clause 44, under which an order for removal can be obtained as a matter of right. With this short list, I think I have directed the attention of honorable members to every alteration that has been ma’de in the Bill that is more than verbal in character. In this connexion I have to express my indebtedness to the Chief Justice of Queensland Sir Samuel Griffith, the honorable and learned member for Indi, and the honorable and learned member for Darling Downs, who have been good enough to call attention to questions of phraseology and of power, and some of whose suggestions have been embodied in these amendments. This little list should have been introduced earlier. I interposed it while submitting to the House that the proper discharge of our obligations under the Constitution required the immediate establishment of this court. If honorable members will look at the Constitution, or recall it, they will notice how much this view is supported by the very nature of the chapter relating to the Judiciary. It has not been left to Parliament, as it was in Canada, to establish some court after its own mind and according to its own will. The main lines upon which this tribunal is to be erected are contained in the Constitution itself. Parliament is allowed to fix the time of its initiation, and to exercise certain options which are left .to it under the Constitution, but speaking broadly the High Court, as it is intended to be, is already all but created. Its powers and its nature are strictly defined. If honorable members will look at the Constitution they will see that section 71, in addition to containing the direction that the judicial power shall be vested in the High Court, adds that there shall not be less than three Judges appointed for that Court - two, besides the Chief Justice. If they examine section 72 they will find it provided that these Justices shall be appointed by the Governor-General, that they shall not be removed except under certain conditions, and that they shall receive such remuneration as Parliament ma,v fix, without reduction during their, continuance in office. It will also be noticed that under section 73 the Court is to have jurisdiction as a Court of Appeal over the whole range of jurisdiction covered by the States Courts, and that the hands of Parliament are tied so that no exception or regulation prescribed by it shall prevent the High Court from hearing and determining appeals from the States Supreme Courts in any matters, in which an appeal lies from those courts to the Privy Council at the time of the passing of the Constitution. In the next section it is provided that no appeal shall be permitted from the High Court upon constitutional questions arising between the Commonwealth and the States. Special reason has to be advanced to permit of such appeals being taken to the Judicial Committee of the Privy Council, and a special leave of appeal is required in order that any other questions may be taken on appeal from the High Court to the mother country. The following section provides that, in all the matters enumerated therein, the High Court shall have original jurisdiction. Under Section SO it will be found that the trial on indictment of offences against , any law of the Commonwealth shall be by jury, so that the same form of words - peremptory and mandatory - runs through the whole of this chapter. Parliamentis directed both as to the character of the original jurisdiction, and the appellate powers of this court. The options which are left are important, but they are only- such as enable the bold design of the court - for it is much more than an outline - to be completely filled up. I have already directed attention to the first option that is left to Parliament. There must be three Judges, but there may be more. The next option is to be found in the fact that while the Judges must have a fixed remuneration, Parliament has to determine what that remuneration shall be. Under section 73 the High Court may make exceptions and regulations as to the hearing of appeals from the States Courts generally, and in section 74 there is an option that Parliament may make laws limiting the matters in which leave to appeal to the Judicial Committee of the Privy Council may be asked - a very important option indeed.
– Is that provided for in this Bill ?
– We are not taking advantage of that power in this measure. The next option is contained in section 75, which confers the original jurisdiction which must belong to the High Court. Under section 76 a further jurisdiction may attach to it, and this Bill proposes that the whole of that jurisdiction- shall attach to it. Section 77 contains three very important options indeed. This Parliament may define the jurisdiction of any Federal Court other than the High Court. It is not proposed to exercise that option, because, for economical reasons, we do not intend to ask authority for the establishment of any Federal Courts other than the High Court. When the proper time comes such tribunals may be created, and under this section their jurisdiction may be defined. Under the next sub-section this Parliament has power to define the matters in connexion with which the jurisdiction of any Federal Court may be exclusive. The third option is that this Parliament has ample opportunity of investing any court of a State with federal jurisdiction. Of that advantage has been taken. This Parliament may authorize suits to be brought against the Commonwealth, or against any State, in respect of matters within the limits of the judicial power. The federal jurisdiction of any court may be exercised by the number of Judges which this Parliament chooses to fix. Advantage is also taken of these. Honorable members, therefore, will see that there remain practically only two options of which it is not proposed to take advantage. It is not proposed under section 73 to restrict - as Parliament may, if it thinks fit - the appeals from the Supreme Courts of the States to the High Court in matters of their ordinary jurisdiction : nor is it proposed to ask the House to curtail the right of appeal which is created from the High Court to the J Judicial Committee of the Privy Council in England. Neither of these appeals is sought to be restricted by this Bill, but practically every other power which the Constitution presents is accepted. Advantage is taken riot only of that part of it which says that jurisdiction shall be vested under these conditions, but also of those portions which provide that the Parliament may exercise the powers conferred upon it by the Constitution. Iri point of fact, nothing has been omitted which could add to the dignity, scope, or influence of the High Court. The whole range covered by the jurisdiction of the States Courts prior to the accomplishment of federation, or at the present time, in matters which are altogether outside of Federal affairs, are made subject to appeal to the High Court, at the discretion, of course, of the litigants. In addition to that, the whole of the federal jurisdiction which this Parliament is authorized to confer upon the High Court is here conferred upon it. Consequently it is, in the amplest sense, all that the Constitution designed that it ought to be or might be - an Australian Court of Appeal for the whole of the courts of the States, and a Federal Court fully exercising the whole of the jurisdiction which the people have placed within its power. How would its creation alter the existing state of .affairs, and what is the prevailing condition of affairs in the -various States in respect of their reliance upon their judicial tribunals? Honorable members do not require to be reminded that each of the six States of the Commonwealth has its own Supreme Court. They do not require to be told that the jurisdiction of those courts extends over the area of each State and no further. They do not need to be informed that each of these courts is at perfect liberty to pursue its own line of interpretation, its own reading of Commonwealth legislation, or of the legislation of its own State, subject only to the fact that from each and all of these six separate and independent courts an appeal lies to the Judicial Committee of the Privy Council in London, whose judgments are binding upon all. But except in regard to matters in which that appeal is taken, the Supreme Courts remain free. Of course, as a matter of fact, they do in practice follow to a very large extent the decisions of the English tribunals, and particularly those of the House of Lords, the final court of appeal for the citzens of the Empire who are resident in Great Britain, but not for her citzens over-sea. And they do so far as the)’ choose, follow judgments which have been given in neighbouring States. Here we have six separate and independent tribunals whose recognition of each other’s judgments, or of any others except those of the Privy Council, is purely a matter of their own choice. It is a matter in which they are free to exercise their discretion. They are in point of fact absolutely, unfederated at present; and unfederated they must remain - as unfederated as the six States were, or as any of their powers were, before this Constitution came into force - unless in this, as in the political sphere, federation is brought about by the creation, not only of an Australian Parliament and an Australian Executive, but of an Australian Judiciary. As a matter of fact, this condition of affairs has been unsatisfactory enough for the last 30 years, since it led to a proposal for the establishment of an Australian Court of Appeal, which, .even if no federation took place, should undertake to do, in a large measure, for the Australian people themselves what at present the Judicial Committee of the Privy Council is often left to do if it is done at all. As long ago as 1870 a commission in this State reported strongly in favour of the creation of what would then have been called an Intercolonial Court of Appeal. While laying stress on the change which has been brought about by the passing of the Federal Constitution, and all it. implies, it must not be forgotten that long before federation came within the sphere of practical politics, and quite independently of the whole federal movement, looked at simply from the stand-point of the States themselves, and the litigants in those States, it was proposed, and has been generally supported by high authority, that a Court of Appeal should be established, because it was seen that some kind of legal federation was necessary, even if political federation were ignored.
– That was to be a Court of Appeal from the States Courts.
– There was to be a Court of Appeal from the States Courts, and the proposal made in Victoria was, that it should consist of Judges taken from the different States.
– As it is in New Zealand now.
– Yes. The Prime Minister reminds me that a conference of the Chief Justices of the States was held in this State some ten or eleven years ago, and that this project was then set aside by the Chief Justices -themselves for reasons which at the moment I do not recall. But at all events the need had been felt, and the proposal had been. made before federation, and therefore those who deal with this question, strong as is the case from the federal standpoint, alone, cannot ignore that fact.
– It was discussed by the Federal Council.
– Yes, but nothing followed. If such a Court were established it would naturally deprive the States Courts of a portion of that independence which they now enjoy, and would make their jurisdiction subject to another tribunal which would be created between them and the Judicial Committee of the Privy Council. In the same way now that federation has taken place, now that’ the Federal Constitution has become the supreme law of the land, and contains upon its face a mandate for the creation of a High Court, it becomes peremptorily necessary to undertake a step which previously was one merely of convenience or opportunity. The High Court now proposed to be created is not by any means to exercise a wholly new jurisdiction. A large proportion of its authority will be carved out of the jurisdictions of the States Courts on the one side, and to a smaller extent, from the Privy Council on the other. The High Court which is to be created between the Supreme Courts of the States and the
Privy Council will be debtor to both, and it will relieve both of some of the duties and responsibilities which they now have.
– Will five Judges be able to do all that work?
– I shall consider that aspect of the question in a moment. But what the five Judges or any other number that may be appointed will do will be work of which the Supreme Courts and the Privy Council will be to an extent relieved, and that is an important consideration, as honorable members will see at a later stage. For the present, however, I wish to point out that this does not imply a reflection upon the Supreme Courts as unqualified to deal with the bulk of the tasks which they have been discharging. Some of these courts have been more fortunate than others in having a smaller proportion of their judgments overruled. Some of our Supreme Courts have been remarkably fortunate. Others have not because all State Benches are not upon the same level, nor are the Benches of the same State maintained invariably at the same standard. The fact that it would be possible and profitable to have an Australian Court of Appeal above them does not necessarily imply a reflection upon the States Courts so far as they are States courts. But it offers a very obvious contrast between the kind of tribunal which will be necessary in order to discharge what, so far as they are concerned, may be termed extra territorial duties and the tribunals purely local in character and constitution, if they were called upon to deal with matters outside their own boundaries. Nor do I wish it to be taken as a reflection upon the Privy Council that the desirableness of aHigh Court now being embodied in the Constitution, its creation is being pressed forward. The honorable and learned member for Darling Downs reminded us how much the Judicial Committee of the Privy Council, and particularly Lord Watson, had contributed to the interpretation of the Constitution of Canada. That debt may freely be acknowledged. But it is also to be remembered that the High Court under our Constitution has a different position and a higher authority than the Supreme Court of Canada. The provisions contained in section 74, if no others, place it distinctly above and beyond it, and outside the category in which the great Supreme Court of Canada is placed. Because the
Privy Council is sought to be retained as the sole tribunal of appeal, and because its great services toCanada may be admitted, it does not necessarily follow that the Privy Council, as constituted, is beyond improvement. In the first year of the existence of the Union a conference was held in London, at which the Commonwealth was represented, and admirably represented, by Mr. Justice Hodges, of the Victorian Supreme Court Bench. The conference, by a majority of voices, decided that they would notaskforany present change in the constitution of the Privy Council, and Mr. Justice Hodges, on behalf of Australia, entered a strong but respectful protest. This may serve to indicate some of the matters in respect of which the Privy Council, even as strengthened of recent years, is not an entirely ideal body. Twenty or thirty years ago it was very much less so, but it is not necessary to speak of that time. Mr. Justice Hodges sent in a protest against the present practice of maintaining two courts of final appeal, one for India and the self-governing colonies - the Judicial Committee of the Privy Council - and another for the citizens of Great Britain - the House of Lords - for these reasons -
What Mr. Justice Hodges was advocating was the substitution of one Imperial Court of Appeal for the two Courts of Appeal which at present exist in the mother country, and for myself I heartily concur with his representations on the subject. But I wish to point out that these considerations not only suggest certain imperfections which necessarily attach to the Privy Council as it now stands, but also indicate certain imperfections which must necessarily attach to any Imperial tribunal when it is established in London, gathering into one all the different kinds of law from all parts of the Empire - the Roman-Dutch law at the Cape, the French-Canadian law of Canada, the Hindoo law, and many other systems. In such circumstances honorable members will realize that frequent appeals, even to a single tribunal in London, will not be sought after ; that English legal authorities do not call for that frequency of appeal. What is sought is to establish a single Court of Appeal for the whole Empire, which shall be moved only in respect of cases suitable for the consideration of such an exalted tribunal. Those, it is unnecessary to say, will in our case be few and far between, since the bulk of the work undertaken by the Privy Council at the present time would be far better transacted in the interests of litigants by an Australian Court of Appeal than it could ever hope to be by any oversea tribunal. The class of cases to which I allude are those which are more particularly based, not upon those general principles of law which are common to us and to the mother country, but those special to the development of Australia on its own lines, and in particular directions. Law is only the reflection of the community from which it springs, and especially is it so in a democratic community. In Australia not only do we live under different conditions of social growth, of national development and of climate, not only have we differences of political conditions, but different problems. The laws which we pass possess an Australian atmosphere, and require to be interpreted with a knowledge of the circumstances under which they are passed and applied.
– The Church lands case of New Zealand, for example.
– It is no reflection upon a great Court like the Judicial Committee of the Privy Council to say that it must necessarily labour at a disadvantage in some respects when compared with competent courts nearer home or on the spot. One of the first considerations which we have to face is that its distance involves delay, and what those delays are I have taken the opportunity of ascertaining. Having taken out all the appeals sent from New South Wales to the Privy Council during the last five years, I have noted the time which has elapsed between the judgment in Sydney and the judgment in London. The shortest - and they are only two - are just under one year; the longest is only two months under four years.
– Has the honorable learned gentleman ascertained how much of the delay was owing to the inaction of .the apellant?
– No, but I consider that I am relieved from the necessity for that investigation, because I have taken cases for the last five years, and am going to rely on the average.
– But that does not answer my question.
– Practically not one of these cases has been tried in less than one year ; the longest case has taken all but four years, and the average time taken has been just under one year and nine months.
– How many cases have been set down for hearing and not proceeded with 1 I think that point was mentioned in the Convention.
– That does not apply. I have taken the cases which have been decided. I have not followed those which have not been pushed to a hearing.
– Some were not set down at an early date by the litigant.
– As to that I am unable to speak.
– It was -mentioned in the Convention, but the argument was not conclusive.
– Of course it is not conclusive. The only case we have - I believe part of the delay has been owing to the substitution of another defendant - of which we have any experience as a Commonwealth is the case of Kingston against Gadd. The judgment was given on. the 9th December, 1901 ; an appeal went to the Privy Council, and, as far as I know, , it has not yet been heard. I believe that Mr. Gadd is deceased, and that the company of which he was an officer has been substituted as defendant, and that may be the cause of a very short delay.
Here is a case which left us on the 9th December, 1901, and of which I have heard nothing.
– Is it still going on ?
– The case is still going on, so far as we know. Take the next difficulty under which a court oversea must always labour, and that arises out of its remoteness. Of this we have a very striking illustration immediately to hand. From the Times of the 29th April, which has just arrived, I find that the Chief Justice of New Zealand had cabled to London, by means of Reuter, a precis of the important pronouncements recently made by himself and his fellow-Judges on the decision of the Privy Council in the case of Wallace against the Solicitor-General of New Zealand. Sir Robert Stout, who was not one of the Judges whose judgment was appealed against, and who, therefore, was quite dispassionate, sums up the case as follows : -
Reuter’s report goes on to say -
The Chief Justice then, in proof of the Privy Council’s ignorance of our laws, gives a series of blunders they have made, most of them in recent years, in deciding other New Zealand appeals. One case, that of Plimmers, is cited, in which the
Council, in ignorance of a colonial statute of 1854, expressly forbidding the making of a certain class of contract, decided that such a contract could be made.
The report concludes with some general observations. That shows what errors are possible in a court removed by many thousands of miles from the scene of litigation, when the subject-matter, is peculiar to the country in which it arises.
– It shows also how imperfectly the barristers did their work.
– They must have been very badly briefed.
– I can only speak of that which I know. Take the famous New South Wales case, McLeod versus the Attorney-General of New South Wales. That went, on a question relating to bigamy committed abroad, from the Supreme Court to the Privy Council. The Privy Council chose to decide the case, not on any of the points raised before them in argument, but on a question of jurisdiction. They turned up the Criminal Law Amendment Act of New South Wales ; they took the jurisdiction laid down in that Act as being the whole jurisdiction claimed in New South Wales, and gave their judgment accordingly. As a matter of fact, the point had never been taken in Sydney, and, therefore, the question could not have been argued ; but if it had been taken, it would have been known at once that the jurisdiction was claimed under an unrepealed section of a British Act - an Act which had been repealed and re-enacted in Great Britain, but was still held to be in force in New South Wales. Consequently, inlooking only to the local Act and ignoring an Imperial Act, probably because it had been repealed and re-enacted in Great Britain - the Privy Council chose to give judgment on a point never raised before them, and gave it in entire ignorance of the local law, which would otherwise have determined it. I shall not labour these points, because to do so, unduly would make it appear as if I were endeavouring to base my argument on an attack upon the Judicial Committee. I have already said that I have no such intention, but we cannot forget the risks to which all litigants expose themselves when dealing at such a distance with intricate questions of purely local law, or determining any right under purely local law.
– Or any other law.
– They must take the same risks that we all take in our business or other pursuits when they enter a court ; but they take a special risk when they allow questions of this sort to be decided over-sea. I admit that a great part of the danger can be removed if each question’ is first thoroughly thrashed out before a competent court of high standing in Australia, so that every point which can be discovered on either side is carefully taken, so that all the over-sea body is asked to do is to review data which are not disputed. That is a ‘different state of affairs, and to that I do not address myself.
– The Bill will still allow an appeal from the High Court to the Privy Council.
– Yes. What I am concerned to point out is that, even allowing for the high prestige of the Judicial Committee in certain matters, it is an undesirable tribunal without a preliminary investigation of the case, which requires to be of a broader and more thorough character than, that which has sometimes obtained in all the Supreme Courts of the States. With an Australian Court we should have local judgments sifted more rapidly and more cheaply, a smaller number of cases would go to the Privy Council, and the cases that did. go would be better prepared for inquiry and investigation. Honorable members will recollect that in answer to the interjection just made - that, we do not propose to abolish the appeal to the Privy Council - I have already called attention to the last part of section 74 of the Constitution, under which -
The Parliament may make laws limiting the matters in which such leave may be asked.
When the High Court is established ; when it has felt its feet, so to speak, in its new jurisdiction; when we are fully informed as to the character and class of cases that come before it, to what extent it, of itself, by the inducements it holds out to suitors, is able to attract appeals which would otherwise go to the Privy Council; then weshall know not only the extent, but the manner in which it .is desirable to exercise the power intrusted to the Parliament under that section. How far it will be desirable for vis to limit appeals from .the High Court to the Privy Council has to be determined. The power of limitation rests in our hands. It is not sought to be exercised at this stage, because it is felt that there should be some practical experience of the working of the court about to be established, and some better idea of the standing it will- acquire before we take advantage of it. That is a power of which no doubt Parliament will take advantage hereafter. It is to be remembered also that- the power as of right to appeal to the Privy Council has gone under the Constitution. The only appeal that remains is the appeal by special leave - what is sometimes termed the appeal as of grace.
– Does the honorable and learned gentleman say the appeal has gone 1
– The appeal as of right from the High Court. I am speaking only of the. High Court. The appeal as of right has gone, but the appeal as of grace remains. This appeal is what remains in Canada ; and, in regard to Canada, the Privy Council itself has already declined to be made the channel for every suit which Canadian litigants wish to send to it. I do not wish to take up the time of honorable members by labouring this point, but the legal community know the cases which are quoted in Wheeler’s Confederation of Canada. Honorable members will find there cases in which the Privy Council, without being moved from Canada has sought to restrict the area within which it will grant special leave, to appeal. There is not the least doubt that the same principle will apply with an even greater force in regard to appeals from the High Court of Australia. Even before the establishment of the High Court, we have this guarantee that the Privy Council itself, so far from lending itself to the multiplication and encouragement of our appeals, desires to restrict them. If the High Court of Australia be a body of the standing and reputation which this Bill supposes, that tendency on the part of the Privy Council will be strengthened more and more. The consequence is that, what between our legal power of restriction - by legislation - and the restriction which the
Privy Council itself imposes, crowded as it is with business from all parts of the Empire, we have every reason to believe that within a very few years a High Court of Australia established on this scale would be practically the final court of appeal in ninety-nine out of every hundred cases arising in Australia, and that a great number of those cases which are now taken to the Privy Council will stop short in Australia. As I have said, the High Court is partly built up by the jurisdiction which it will acquire from the Privy Council. There are first of all the appeals on constitutional questions which cannot go to the Privy Council without the consent of the High Court. Theconsentof three Judges is required. Then there is the special leave to which litigants are limited ; and then there are a large numof cases which will prove to be too precarious when they have been examined by the High Court to justify litigants in going to the large expense of further appeal. These cases, coupled with the power of restriction which we possess, should make this High Court the final court of appeal for Australia within a few years, and should secure to it sure cases except important issues involving points of general law in which it may be desirable to have a Privy Council decision. The Supreme Courts of the States are the other judicial bodies which are asked to part with a portion of their jurisdiction under the Constitution. By the creation of the High Court - under clause 41 of the Bill - which gives the courts of the States federal jurisdiction - but only as courts of first instance - they part, first of all, with some of their appellate jurisdiction. They may also part with power in suits between residents of different States, such as those relating to matters of admiralty or maritime jurisdiction ; suits which are brought under the Constitution for its interpretation ; or suits which depend upon the interpretation of federal law. If honorable members look at clause 40 of the Bill they will see the matters in which the Federal Courts will have exclusive jurisdiction. They are matters relating to States arising under any treaties ; matters affecting consuls in their representative capacity ; matters between States and Commonwealth, or of State against Commonwealth, or in which officers of the Commonwealth are concerned.
– “ Suits against the Commonwealth,” that is very sweeping.
– If the honorable and learned member turns to the previous Bill, he will see that this provision has been curtailed, buthe must not ask me to discuss details at this stage. With regard to the whole of this original jurisdiction, it is to be remembered that if litigants so desire, they may pass by the Supreme Courts of the States altogether, and begin their suits before the High Court. They are enabled to do this by clauses 40 and 41 of this Bill. Under these provisions they may commence their cases in a Federal Court without touching the Supreme Courts of the States at all. The States Supreme Courts may now lose the jurisdiction they have exercised over appeals from a single Judge. These appeals may be taken direct to the High Court. The jurisdiction which the States courts part with will be taken up by the High Court of Australia, in addition to that jurisdiction which it possesses under the Constitution. We have power to take over matters relating to bankruptcy and insolvency, and also divorce and matrimonial causes. As honorable members know those are branches of the law in which our courts are kept pretty busily occupied ; and their transfer to the High Court would mean another large body of business taken from the Supreme Courts and attached to the High Court. The new business of the High Court is extremely important. But it is this existing business to which I desire to first of all call attention ; because there cannot be the least doubt that, if this High Court possesses the strength which we desire it to possess, it will by the attraction of its reputation and standing more and more divert business from the Supreme Courts of the States, particularly from any State in which the Bench of Judges at the time may notbe thought to be equal in standing and ability to a Bench such as the Federation will supply.
– I should think that the High Court will attract the greater part of the cases.
– The greater part. We come to the question of economy, that is an aspect which I ask the House to consider. If we look at section 73 of the Constitution, we find that the High Court is to be a body capable of hearing appeals from the Inter-State Commission on questions of law. It needs verylittle reflection on the part of honorable members to realize how difficult it would be either to send questions of law, such as would arise from the Inter-State Commission, either to the Supreme Court of any one State - and probably more States than one would be interested in such a decision - or to the interpretation which the Judicial Committee of the Privy Council would give upon questions requiring the
Australian stand-point and knowledge of the peculiar physical, climatic, and other conditions of Australia. What alternative is suggested to the creation of this High Court? If honorable members look at the exclusive jurisdiction mentioned, and at the other appellate work from the States, it will be clear to them that a High Court of the standing which our Constitution contemplates, is a body in which there would be entire confidence throughout the Commonwealth, and to which both people and States would turn with complete satisfaction in the knowledge that they would receive justice from it - which they would receive, from other courts - impartial treatment, which would also be meted out to them by other courts ; but that they would receive that justice from a body of high standing, far removed from all possibility of suspicion. The probabilities are that there would be no hesitation in submitting to it the most important issues that could arise. I ask again - What is the alternative? One suggestion is that we should be content with things as they are - that we should take the existing courts, with their varying decisions, and be satisfied, in case of any doubt, to abide by the ultimate decision, of the Privy Council.
– That is for the first few years, until the proper organization of the High Court.
– My honorable and learned friend says we should’ abide by ‘that state of things for the first few years. I do not know how long a “ few years “ may be ; but I believe that in the whole of the Convention debates when this question was threshed out, as the honorable and learned member knows, with great thoroughness - because he took a conspicuous part in the discussions - no such proposal was put forth as that we should wait for years until we established the High Court. As far as I know no such suggestion was ever made at the Convention.
– But the Constitution has been changed since then by Downing-street, and also by the blunder of the draftsman at the final revision.
– If I were to grant all that it would not remove the remarkable fact that at the time when the Commonwealth Bill was under consideration and when all courses for its amendment were open no member of the Convention urged that while these States should be federated in every other respect we should leave our Courts unfederated. And what is suggested even by the most economical or the most unfederal
– I think some suggestion of the kind was made at the Convention.
– No. The only alternative proposal, was that made by the honorable and learned member for South Australia; Mr. Glynn, who proposed the creation of a High Court, composed of State Judges, with a Federal Chief Justice presiding over it.
– But I also proposed to abolish the appeal to the Privy Council, and so give the Judges of the High Court something to do.
– There was a proposal for the creation of a kind of High Court which I shall presently consider - a High Court built up out of the State Judiciaries. That was a nominal High Court. But no one proposed that there should not be even the simulacrum shadow or phantom of a High Court.
– No one thought that you would leave an optional appeal to the Privy Council.
– The Convention consisted of federalists who were desirous of uniting these Australian States and they did not fail to realize that legal unity was one of the most important directions in which federal unity could occur.
– It was stated that if we did not abolish the appeal to the Privy Council a Federal High Court was unnecessary.
– No one contemplated that we should be asked to rely on our unfederated courts, and that we were to take advantage of State tribunals without any bond of union except that derived from their common subjection to the Privy Council. For us to do, as now recommended would be almost a violation of the Constitution ; it would be an intimation that we did not intend to give effect to its mandate ; and it would be imposing upon the States courts an obligation which might mean a serious loss to litigants, and a grave injury to the Commonwealth.
– State courts have not complained of federal jurisdiction being imposed upon them.
– The federal jurisdiction will impose upon them a liability to appeal in Federal cases. There are cases in which it seems to me highly improper to impose such duties upon the States Courts, though those courts would, no one doubt, decide them judiciously.
– They were imposed upon the Canadian courts.
– But the Canadian courts consist of Judges appointed by the Federal Government, not by the States Governments as in Australia. The State Judges of Canada are under the High Court of the Dominion. The Canadian legal system differs from ours.
– What is the position of the courts in Germany ?
– I should be led too far afield, if I were to contrast the conditions of things in Germany. The proposal here is that for the time being, until we get the decision of the Privy Council, we should continue under these different sets of courts each with its territorial obligations and limits, though no decision of any one of them being binding outside the State in which it was given. My honorable and learned friend the member for Northern Melbourne interjected a little earlier this evening that the Supreme Courts of the States pay regard to each other’s judgments.
– Is not that in the Constitution 1
– No. They do pay regard to each other’s judgments, that is perfectly true, but in what position does this place us ? We are subject to the possibility that the first court to deal with an important question might be the weakest or one of the weakest in Australia. That court gives a lead to all the rest, and they will be extremely unwilling to disturb the judgment arrived at. In answer to the interjection of the honorable and learned member for Bendigo that the Supreme Courts have not complained, I am reminded that the honorable and learned member is in error. I think that the Supreme Court of New South Wales has complained on two different occasions that a High Court has not been constituted to relieve them of the responsibilities cast upon them.
– They have not complained of the work.
– They have complained that no High Court exists.
– They have complained that they have not been invested with Federal jurisdiction.
– That is the point. They have complained that no jurisdiction has been conferred upon any of them.”
– And we could give them that jurisdiction.
– I should be very sorry to do so. That is the very thing to avoid. I say that the jurisdiction given them under this Bill is ample. That is their jurisdiction as courts of first instance, dealing with matters in their first stage. That involves a Federal appellate jurisdiction, and I venture to say the Federation will not be complete unless the Bill gives it. I was speaking of the difficulty of having six different courts, and my learned friends cannot but admit that if an important point is first raised before the weakest court in the Commonwealth, any decision given by that court may be followed by the other courts, or else we shall have varying decisions.
– The other courts will simply look at the decision carefully before they decide to reverse it.
– Exactly. I venture to think they would look at it carefully before they refused to follow it. But what will follow if they do decide to reverse it? We may have four, five, or even six different interpretations of the same section of the Constitution.
– We have the same thing with regard to commercial matters now. We have six different courts and no great inconvenience.
– We have six different courts and a very great deal of inconvenience. Why was a Federal Court of Appeal proposed, quite independently of federation, if not because of the difficulty arising from varying decisions in the different States Courts ? Besides, in the matter of commercial and mercantile law we have in the Privy Council one of the highest tribunals in the world. Its members have been dealing almost daily with questions of mercantile law, and have given decisions of great value, of light and leading. In dealing with a question arising under our Constitution, we might, until a decision of the Privy Council is registered upon it, be at the mercy of any one of six States Courts. My esteemed friend the honorable member for Gippsland, in his powerful speech the other night, was good enough to refer sarcastically to myself as having thrown a halo over Hades. That I take it would be a great strain upon my capacity; but to throw a halo over six Hades at once is certainly beyond my capacity.
– The difference is between six and seven. There will still be six.
– I gather from the interjections of honorable members that in their judgment there are no cases in which the Supreme Courts of the States could not deal with the issues submitted to them as well as could a High Court. Let us take the matters which we propose for that very reason, under clause 40 of this Bill, to make exclusively federal, and ask whether the States Courts could, deal with these questions in any manner that could be comparable to that in which they could be dealt with by a Federal High Court, no matter how excellent the States Supreme Courts may be. First of all there are matters arising under any treaty. They arise very rarely, but there is one of them above the horizon already. It has arisen in regard to the Vondel case.
– There has been no litigation about that.
– There has been no litigation about that yet, but it has been threatened. I wish to ask the honorable and learned member whether he thinks that such litigation should be brought before the the State Court of South Australia? The Government of South Australia advance the doctrine that the only executive power vested in the Commonwealth Government is to administer the laws passed by this Parliament. Although we claim an endowment of executive power under this Constitution, direct from the King himself through the Governor-General, it is suggested that we have no authority whatever, except as a committee to enforce laws passed by this Parliament. Are we to be deprived of that executive power, which every State possesses direct from the Sovereign, and every Governmentin Australia possesses? Are we to be a helpless Executive, incapable of any action until there has been legislation upon the subject? Is a question of that sort to be decided by any State Court in Australia, or even by he Privy Council, until it has been threshed out before an Australian Federal Court capable of weighing the issues.
– Does the honorable and learned gentleman think that theVondel case is a judicial question at all ?
– I know that the State Government of South Australia expressed an intention to make it a judicial question.
– But does the honorable and learned gentleman think it is a judicial question?
– That is a different question. I do not think it can be settled in that way, but the South Australian Government believe it can be so settled, and pay them the compliment of referring to the case as an illustration.
– Good men as they are they cannot settle everything.
– Next we have cases affecting consuls in their representative capacity. I shall not trouble about them, as few cases are likely to occur. But take the next matter of cases between States. It may be said that these have not occurred. They have not occurred yet, because they were not provided for. But they are provided for in our Constitution and in this measure. Where are these cases to be tried? There is the possibility of a difference of opinion between the Victorian and Tasmanian Governments with regard to a certain revenue.
– Could not one of the other State Supreme Courts decide that?
– I agree with the honorable and learned member that we could not ask either a Victorian or a Tasmanian court to decide such a question, while we could ask a Federal Court.
– I should ask either a Victorian or a Tasmanian court. I have not the least doubt that either would do justice iu the matter.
– I have not the least doubt that either court would intend to do justice. But I do say that it would be an entirely improper matter to submit to a State Court, and that it is One which ought to be recognised as improper for decision by a State Court. Otherwise why should not a Judge sit in his own cause? What foundation principle is there more sacred than that which says that no Judge shall sit in his own cause.
– Our Judges in this State are as much Australians as Victorians.
– I believe they are, but it does notfollow that with their territorial jurisdiction and limited experience in these matters they are the proper parties before whom to bring a neighbouring State. Whether we are dealing with the profession or not, and, in fact, even leaving the profession aside, I take it that the majority of the people would feel that that was not a proper question to submit to either of those tribunals.
– The case would go on to the Privy Council if that were done.
– Exactly, it would go on to the Privy Council.
– Where is the honorable gentleman going to get men of more extended experience?
– We propose, under this Bill, to select the best men from the benches and bars of the States and to put them in a position to do impartial justice to all Australia.
– The Bill will not make different men of them.
– No, it will not make different men of them, but it will put them in a higher position. Amongst the different State benches there are some distinctly weaker than others, and there are some members of every State Bench distinctly weaker than other Judges upon the same bench. The object of this Bill is to get five of the strongest men picked, from all the benches and the bar, so to make up the strongest court Australia has ever seen. No such court exists to-day in Australia as could be created from all the benches of Australia.
– It will after all be only a matter of the opinion of those who select them.
– But sentiment moves the world, and opinion moves the world.
– There are very few disputes between the States.
– I am very glad to know that, but there are some already on the carpet, and others are foreshadowed.
– Western Australia may have a big case against South Australia over the rail way shortly.
– I shall not deal with that, but refer honorable members to. a question in connexion with which litigation is threatened between some of the States, and that is as to the disposal of the waters of the River Murray. The three States of South Australia,Victoria, and New South Wales are concerned.
– We could not appoint a court in any one of those States to decide that case.
– The question of the disposal of the Murray waters would not be a proper one to submit to a tribunal in any one of those States.
– The Chief Justices of the remaining three States could perhaps settle it.
– I shall deal with that proposal later on, but that is not a High Court.
– What about actions by the States against the Commonwealth?
– If honorable members have any doubt upon this question, I hope they will take the opportunity of reading as they may in the library what Story in his famous work upon the American Constitution has to say in regard to cases between States. The passages are too numerous and too lengthy to read, but I shall take one or two of them.
– They are written after 100 years’ experience.
– Yes, they are written in the light of experience. In Volume 2, page 492, dealing with controversies between citizens of different States, Story says -
Although the necessity of this power may not stand upon grounds quite as strong as some of the preceding, and I have been dealing with some of the preceding here, there are high motives of State policy and public justice by which it can be clearly vindicated. There are many cases in which such a power may be indispensable, or in the highest degree expedient, to carry into effect some of the privileges and immunities conferred, and some of the prohibitions upon States expressly declared in the Constitution. For example: It is declared that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. Suppose an attempt is made to evade or withhold these privileges and immunities, would it not be right to allow the party aggrieved an opportunity of claiming them, in a contest with a citizen of the State, before a tribunal at once national and impartial ?
An Honorable Member. - In some of the States the Judges are elected.
– In some of them. In different States there are differentpractices. Story goes on to say -
These cases are not purely imaginary. They have actually occurred, and may again occur, under peculiar circumstances in the course of State legislation.
Our Constitution contains prohibitions upon the States themselves. It contains also immunities of citizens which may require to be enforced upon the States, and are these questions to be tried before States Courts 1 Are such courts proper tribunals for the trial of such cases ?
– In many of the courts of America the Judges hold office at the will of the Legislatures of the States.
– Story goes on to point that out, but to my mind the objection applies equally, whether the States Judges are elected or appointed.
– Cannot the honorable and learned gentleman trust them 1
– I say that the request is an improper one to make to them. The honorable member seems to forget that the Federal Court will represent the whole of the States.
– They are the same people.
– Of course they are the same people, but this is the essence of the matter : That instead of having a tribunal, which, in the public opinion, will be exercising its jurisdiction under a possible bias, we shall create a national and impartial tribunal, national and impartial in every man’s eyes. Little thinking that there would be so much discussion upon this particular point, which is taking much more of my time than I anticipated, I consulted Story’s book on the- subject to-day, and could refer honorable members to a dozen passages in which, taking those very particulars which we propose for exclusive Federal- jurisdiction, lie gives the strongest reasons, gained by experience in the United States, for the necessity of having them dealt’ with by a national’ and impartial court. Every court is impartial, but a Federal High Court would be national and impartial by the very circumstances of its creation. If we take the next class of cases, those of the Commonwealth against a State, we shall see that if we are to remain subject to the jurisdiction of the States Courts, whatever protection we have gained under section 74 against the determination of constitutional questions by any other than an Australian tribunal goes by the board at once. The only power we were able to gain over appeals to the Judicial Committee was this. The British Parliament has carefully exempted all questions as to the constitutional powers between the Commonwealth and the States or between the States themselves. It has given to the High Court the power to pronounce an absolutely final decision upon all these questions, and that itself limits the matters which can be taken to the Judicial Committee.
– Is not the honorable and learned member making too large a statement ? Is not the matter only a question of constitutionality between the States 1
– I used the words “constitutional powers.” T was referring to their limits inter se. From the federal point of view those are the most important and vital questions of all, and they are already occurring. We have in our Constitution the right to finally decide such cases ourselves by a national tribunal, and unless that tribunal is created, section 74 will become a dead-letter. It might as well not have been passed. The great effort made to secure it will have been made in vain. If I am told that we may go forward in a few years, my reply is that in a few years many of these cases will have been decided, and decided against us, in defiance of the Constitution. Take the very important judgment which has-been given in the Supreme Court of New South Wales, that the Commonwealth has no power to collect 1 duties upon goods imported by any State. Will honorable members say that a most important and vital matter is not affected by that judgment, quite apart from the amount of revenue involved ? At present the loss of revenue is immaterial, because the money collected goes to the States in any case, but in the future it will be of importance.
– The Tariff, as originally proposed, decided the question straightaway in favour of the States, because the Government put State imports under the head of special exemptions.
– Our original intention was to make the special exemption applying to State importations of temporary effect. But it came to be seen that to do so would be to create a dangerous precedent, and the proposal was withdrawn. For the first five years, and possibly for a longer period, duties upon State importations could have practically no effect upon their revenue, and it therefore at first seemed to -us a safe and courteous thing to provide that the Governments of the States should be allowed to import goods free of duty. But when the seriousness of the precedentwhich would be set was observed, the Government, on their own initiative, withdrew the proposal. That is one case in which theCommonwealth and the States are at issue, and upon which it will be of the highest value to have the verdict of an impartial national tribunal.
– The question is whether the High Court will be more impartial than the Privy Council.
– I believe that the High Court will be as impartial as the Privy Council.
– Will it be more so ?
– All these courts are impartial. A justice of the peace is impartial to the extent of his ability and conscience.
– Is not the honorable and learned member questioning the impartiality of the States Courts?
– No ; but Iquestion the public faith in their impartiality when they come to decide questions arising between the Commonwealth and the States, or between the States. Take the difference which has arisen in Western Australia in regard to the interpretation of its Tariff, and which is about to be decided by the courts there. If any case should be decided by a federal tribunal, that is one. Then take the case which occurred in New South Wales, and to meet which we passed Act No. 21 of 1902, temporarily endowing the States Courts with federal jurisdiction. We passed that Act with great reluctance, to meet a temporary emergency, and we have no particularreason to be satisfied with the result. The Act, perhaps, created a bridge necessary to carry us over, but the case to provide for which it was passed is now the subject of an appeal. As it is sub judice, I shall not speak of it further.
– Unless the States Courts are given jurisdiction, claims against the Commonwealth for an amount of only £5 will have to be prosecuted in the High Court.
– Yes. But when the honorable and learned member learns how the High Court is to work, he will have no alarm. Take the latest case which has occurred in Sydney, that of Goldring, which I do not propose to allude to at length, because, if it is not sub judice now, it will probably be so. It comes under the last heading to which I referred, being one of those cases in which an officer of the Commonwealth is being sued. In that case the State court held that it had no jurisdiction to issue a mandamus against a federal officer. I am of opinion that in cases of that kind the proper tribunal is Federal. I have now given honorable members two or three instances of recent disputes under each head of the proposed exclusive jurisdiction of the High Court. The cases I have cited will, I think, commend themselves as those which can be dealt with more satisfactorily by a Federal High Court than by tribunals of the States. Some honorable members have indicated that they will not look with favorable eyes upon any proposal to allow or to encourage the interpretation of the Constitution by the courts. They would rather see Parliament left to provide for amendments from time to time when necessary. But such a position ignores the fact that a precise and reliable interpretation, which means a judicial interpretation, is necessary before Parliament can tell what amendment is needed. Before we can rely absolutely on our reading of the Constitution it must have been submitted to the courts. Little satisfaction would be gained by asking Parliament to amend the Constitution if we could be told by those who held a different view that the amendment was not necessary, because, by a proper interpretation, the power that was sought would be seen to be already there. What we need before endeavouring to obtain an amendment is a final interpretation. Such an interpretation would come, as a rule, under section 74, defining the constitutional powers of the Commonwealth and the States respectively, or of the States in relation to each other, and should be obtained from an Australian tribunal whose decision would be absolutely final.
– What about the cost ?
– I am coming to the question of cost, but first it was necessary to explain what the jurisdiction of the High Court willbe. I have endeavoured to sho w how much will be taken from the Supreme Courts of the States and from the Privy Council. I have indicated the provisions which are more or less ‘new, and have called attention to certain classes of cases which, while dealt with by a Federal Judiciary with particular appropriateness, would be inappropriately dealt with by the State courts. I have alluded to the importance, from the Parliamentary stand-point, of obtaining interpretations of the Constitution which will be consistent. If we rely, upon the courts of the six States, it may happen that one part of the Constitution will be questioned in one State, another part in in a second State, another part in a third State, and so we shall have’ perhaps six interpretations by courts whose experience in dealing with federal issues will depend upon the number of such issues arising within the States in which they have jurisdiction. There will not be such a body of federal business in each State as will suffice to give to its courts that breadth of experience and knowledge which must come to a body of men, the greater part of whose time will be taken up in dealing with federal issues arising in all the States. Each State will pour into the Federal Court its flood of problems, and thus the Judges of that Court will become practised in dealing with federal questions, and will be able to deal with them consistently. Let federal issues come from what State they may, and impinge upon what provision of the Constitution they may, they must all come to the High Court, whose J Judges will be able to lay down lines of consistent interpretation which will establish an authoritative decision upon its dubious passages. For that purpose alone the creation of a High Court is largely justified. If we wish to see all their scattered strings drawn together and twisted into a rope of interpretation which will stand any strain, it must be done by able men whose energies are specially devoted to that end. I come now very close to the question of cost. Honorable members who have done me the honour to follow me so far will have no doubt but that the High Court will have an extensive jurisdiction, which will be taken largely from that of the Supreme Courts of the States. It will relieve them of work which they are now doing, and of some of the work which they did before federation was established.
– That is very questionable.
– Will the result be economy in the administration of the States courts ‘(
– I think so.
– In the same way as economies have been effected in other departments affected by the Constitution.
– The economy effected by the proposed arrangement will be just about the same as the economy which has been effected in other directions !
— When the jurisdiction which has been conferred upon the State courts is transferred to the High Court, the Governments of the States will, to the extent which they think necessary, make curtailments and retrenchments.
– They should do so now, but they do not.
– The Judges cannot be retrenched.
– Within the last few days Victoria has lost one’ of the members of her Supreme Court Bench, and the Government of this State has announced that it is not intended to fill the vacancy. In every State there are Judges of advanced years who will shortly have to .retire. There is therefore an opportunity to retrench, not by removing Judges, but by taking advantage of the termination of the services of those who retire.
– These retirements are often long deferred.
– In one of the States two-thirds of the Bench are expected to retire within the next twelve months or two years. Honorable members keep too constantly before their eyes the circumstances of the State from which they come. If they cast their eyes over the whole Commonwealth they will see abundant opportunities - if the increase of population or the return of prosperity does not bring- more work to the Supreme Courts of the States - for a liberal reduction in the expenditure upon those courts.
– Does the Minister suppose that in the case to which he kas just referred there will not be three Judges in the future ?
– I presume that there will always be three, but I do not know that the State concerned may not take advantage of the example set by the Parliament of Victoria a few years ago in passing a measure altering the remuneration of future Judges because of the changed circumstances of the State, and the work which the courts were attracting. I have to deal with this subject gently and delicately, because it is a matter which affects the responsibilities of other representative bodies. It is not for me to dictate to them what they should do. They will do what they think right; but it is for me to indicate the opportunities that will be open to them if the)’ choose to take them when work that is now being done by their Supreme Courts is transferred to the High Court. If the whole of the Federal business which will undoubtedly be of great volume before very long, has to be performed by the States Courts, the States judiciaries will have to be enlarged, and the increase in the cost of legal administration in all the States may easily be so great that it will exceed the amount required for the High Court. I am reminded that the people of Australia will have to pay in either case. That is perfectly true, but the argument cuts both ways. The people will act wisely if they pay to the Federal Judges the money which they would otherwise have to pay to extra State Judges. I know that the same people pay the money in either case.
– But we do not want them to pay twice over.
– No. But when it is seen that the Federal High Court is the proper body, and that its work should be done only through federal channels, the way will be left open for those who are charged with the local administration of justice to make savings if they choose. The people of Australia are now insisting upon economy in all affairs of State, and properly so, too.
– I venture to say that nineteen out of every twenty of the citizens of the Commonwealth would declare themselves against the creation of the High Court on the ground of economy.
– I am confident that the)’ would not do any such thing. In the first place, provision for the creation of the High Court was deliberately placed in the Constitution, and in some of the States that provision was used as an important argument in favour of entering the federal compact. I have very little doubt that many persons were induced to cast their votes in favour of adopting the Federal Constitution, because of the reliance they felt in the national tribunal which it was proposed to appoint to deal with national questions. I believe, further, that if they were now appealed to upon the subject they would regard the proposal to appoint the High Court as wise and judicious from an economical standpoint. Here let me say a few words as to the cost of the High Court. Honorable members, in directing their criticism to the expense involved, have taken the figures which I gave last year without paying regard to the explanation which accompanied them. I shall now quote for the first time from the remarks which I made last year as to the estimated cost of the High Court. After going into considerable detail I said -
Honorable members will notice that we put down only the sum of £6,000 per year to provide for all its officers, say £7,000, including the salary of the Crown Solicitor.
I allowed £1,000 for the salary of the Crown Solicitor, but I advertised for applicants for the position at a salary of £800, and hope to receive the nominations of the Public Service Commissioner in the course of a day or two. I went on to say :-
That, added to the .-£15,000 paid as salaries to the Judges, after allowing for their travelling expenses, associates, &c, will bring the amount up to £30,000 as a maximum.
Every gentleman who has done me the honour to quote my remarks, has left out the words “ as a maximum.”
– We have known one maximum of £300,000 to be increased to £700,000.
– As Rudyard Kipling says - “ That is another story.” What I am pointing out is that my estimate of £30,000 was given as a maximum. I do not expect that for the first few years the cost of the High Court will nearly approach that figure, but as the result of some experience make a point, when using figures, of stating the case against myself. I named a sum that would be ample for several years, but have already pointed out that while £30,000 provides for a comparatively full equipment in every way, the actual proposal of the Government is to take advantage of State officials and local judicial administrations, to utilize the State buildings, and to avail of ‘ existing legal machinery in every possible way. As a consequence, for the first two or three years at all events, the cost of the High Court will not much exceed £20,000.
– It is a pity the Government do not propose to use the existing Judges as well.
-I will give reasons for not following that course. I have referred to the estimate which you, Mr. Speaker, laid before the Federal Convention at Adelaide, which was the subject of many con- flicts during the federal campaign. There the sum set down for the cost of the High Court, excluding the Bankruptcy and Patents administration, for which another £12,000 is provided, is £23,715.
– That was for three Judges, and now it is proposed to appoint five.
– I beg the honorable member’s pardon. That estimate was for a minimum of three Judges.
– A Bill could be drawn in such a way that the expenses of the proposed High Court would not exceed that sum. The Bill which is now before us does not meet that requirement.
– I am now confident that we shall not exceed the sum named in the estimate given by Mr. Speaker. If we have five Judges instead of three, so much more economical we are now in providing for their necessities. After having carefully considered the whole of the surroundings, I can see my way to assure honorable members that I do not anticipate that the expenses of the High Court will exceed £23,715. Having said so much I would ask honorable members what they suppose is the amount spent upon the administration of justice in the six States of the Commonwealth. It totals £1,750,000 per annum, taking into account all branches of that administration.
– That is surely enough to spend. Why add the expense of a High Court’?
– But when I am told that a proposal which involves £20,000 a year is the height of extravagance, by what standard am I to measure it - by the cost for the whole of Australia or by the cost for a single State ? Even little Tasmania, which spends the least of all the States upon the administration of justice, devotes to that purpose a sum little less than that which it is proposed to spend upon the judiciary of the Commonwealth. Reducing the amount which I have mentioned for the whole of Australia by £1,000,000, the amount spent upon the police, there is £750,000 left.From that I deduct the cost of maintaining the gaols, which brings the amount down to £446,000 per annum. After also deducting the cost of the minor courts, I find that the Supreme Courts of Australia cost £186,000 per annum. Now when a proposal to spend £23,000 upon the Federal Judiciary is denounced as gross extravagance, I want to know whether the combined States standard of £186,000 is kept in view.
– The proposed Federal expenditure would be an addition to that enormous cost.
– It will not. £186,000 is now spent upon the existing Supreme Courts, and the total cost of the Federal Judiciary will not exceed £23,000 per annum, the greater portion of which sum could certainly be saved by reducing the expenditure upon the States courts.
– What is the cost of the Victorian Supreme Court ?
– The expenditure upon the Supreme Courts of the States is as follows : - Victoria, £43,000 per annum ; New South Wales, £79,000 ; Queensland, £27,000; Western Australia, £19,000; South Australia, £10,000 ; and Tasmania, £8,000 . Included in the Tasmanian expenditure, to which I referred some little time before, is the cost of the minor courts and the gaols, the total being £21,000, as against the proposed expenditure of £23000 upon the Federal Judiciary.
– The Minister said that the effect of establishing the High Court would be to relieve the Supreme Courts of half their work.
– I did not say any such thing. I did not say that the Supreme Courts would be relieved of a half or a quarter or any other proportion of their work.
– The AttorneyGeneral’s statement with regard to Tasmania includes the cost of the gaols, and that does not afford a fair comparison.
– That is included in the cost of the administration of justice. I did not say that half the work of the States Supreme Courts would be performed by the High Court, but that half the work of the High Court would be taken from the Supreme Courts ; that is a very different matter. There are many matters in which the High Court will have exclusive jurisdiction and which the States Courts will not be able to touch, but much of the business which is now transacted in the States Courts could be brought before the High Court. The volume of such business will depend entirely upon the extent to which suitors feel that they can repose their confidence in the High Court and can rely upon it to serve their purposes more effectively. Of course there will be some business for the minor courts under the Federal jurisdiction ; but I do not wish to allude to that now. The question at present is whether, with £1S6,000 spent upon the States Supreme Courts, an opportunity is not presented for economies which may make up a. good deal of the £23,000 required to meet the cost of the Federal Judiciary. Honorable members will see that a very small percentage of reduction in the States would be sufficient to make up that amount.
– That would be robbing Peter to pay Paul.
– It would not be robbing any one. The same people pay in either case ; but if they pay through the new channel proposed, they will have a Federal High Court. I have already given reasons why the Federal tribunals will be better, and have shown how the people can, with great advantage and propriety, meet the expense of the Federal Judiciary without having to incur any additional outlay, but simply by savings. I know of States in which private persons have, assured me that if the residents had an opportunity of appealing to the High Court of Australia a great deal of business would be taken to that tribunal. They are States in which certain professional men do not think that the present Bench is as of high a standing as it might be, and these openly declare that if the High Court were established, a large part of the business which is now transacted by the Supreme Courts would be diverted to it.
– They say that they do not know who will constitute it.
– It will be constituted of five gentlemen chosen-
– Not by competitive examination or by any test 1
– They will be chosen by the best tests which it is possible to apply, namely, those of present position and professional status. Certainly no man will be appointed to it who has not served a long apprenticeship in the public eye either on the Judicial Bench or at the bar. Not a word has yet passed in Cabinet in regard to any particular appointments, but if the honorable member be satisfied with the selection which has been made by the States Governments in the past, he may rest content, that the
Commonwealth Government will do its duty none the less well in choosing its Judiciary. The Constitution declares that there shall be at least three Judges, but there may be more. The whole difference, therefore, between myself and the advocates of economy, is as to whether there should be three Judges or five.
– If we establish the High Court, it will be necessary to have five Judges, and the tribunal will, therefore, cost far more than £30,000 annually. .
– I agree with the honorable and learned member that we must have five J Judges, but have my doubts as to the expenditure, and will explain, why. The Government have decided that five Judges is absolutely the smallest number with which it would be wise to launch this court, because it must be an Australian tribunal in the sense that its members must visit every State in the Union. For this purpose it is proposed to establish a district register in every State capital. Our intention is to take advantage of the State judicial offices, and of their machinery. There is to be a register in every State, and each State is to be visited by a Judge of the High Court.
– How often %
– As often as may be necessary. When I speak of a Judge visiting the States, perhaps honorable members would like to refer to that portion of the Bill which deals with this question. Clause 14 says -
The jurisdiction of the High Court may, subject .to the provisions of this Act, be exercised by any one or more Justices sitting in open court.
Clause 15 provides -
Subject to the provisions of this Act, and to any rales of court, any Justice of the High Court sitting alone, may exercise in court, or in the cases hereinafter specified, in chambers, all or any part of the jurisdiction of the High Court.
If we appoint five Judges to the Federal Judiciary, we shall be able to provide for judicial visits to every State of the Union at comparatively short intervals. The quorum needed to hear ordinary appeals will consist of three Judges. These can be engaged in transacting business whilst the remaining two are visiting the different States. But when appeals come from the States Supreme Courts, which themselves consist of at least three Judges - sometimes, indeed, of four or five, and upon special occasions of six - we require that they shall be heard by not less than four Judges of the High Court, and that the concurrence of three of them shall be necessary before a judgment of the Supreme Court of any State can be reversed. Honorable members will see that if we created a tribunal consisting only of the number of Judges named in the Constitution, they would require to be travelling the whole of their time in order to deal with the case’s coming within their jurisdiction in all the States. Three Judges would constitute an inadequate Court to hear appeals from the States Courts. In this connexion I would point out that the quorum of the J Judicial Committee of the Privy Council consists of three members, but most cases of appeal are heard by five Judges, and very often by more. If the High Court of Australia is to fill the position outlined for it under the Constitution, it must be an appeal court so strong that in going to it after their cases have been heard by the Supreme Courts of the States, people will feel that they are going to an appeal court of a higher grade than is at present to be found in Australia.
– We cannot get that.
– I think we can.
– Shall we not want ten Judges at first ?
– I think not. I have said that when this Court is equipped, and in full swing some years hence, I think it will cost £30,000 a year.
– It will have no local habitation till the federal capital is established.
– It will have a local habitation under the Bill until the capital has been built.
– What will that cost?
– It is intended that we shall use either the States Courts or any public building of which we may have control till the seat of government is removed to the federal capital. If honorable members reflect upon the matter, I think that very few will hold’ that less than five Judges are adequate to constitute the High Court. They will feel that five Judges, sitting together if necessary, will be able to deal with the business coming before them, and that the decision of Australian appeal cases, instead of occupying one year and nine months, as they sometimes do when they are taken to the Privy Council, will not absorb more than six months.
– Litigants will take, their cases home afterwards.
– I think not. If a. tribunal were in existence such as we desire to see established, very few litigants against whom an adverse decision had been given would be bold enough to proceed further. When the Judicial Committee of the Privy Council is satisfied as to the quality of the judgments which it receives from Australia, it will be very slow to alter them. Already that tribunal, so far as it can, upholds the decisions of the States Supreme Courts. How much more will it uphold those of the Federal Judiciary ?
– Does the Attorney-General include New Zealand ?
– Occasionally there are lapses, I admit. The High Court of Canada has been well supported by the Judicial. Committee of the Privy Council, and there is not the slightest doubt that the Australian tribunal will be similarly treated. ‘ When we seek to appoint five Judges to the High Court, what do we ask ? In Victoria. . there are still five Judges, notwithstanding that this .State has just parted with one* high judicial dignitary ; in Queensland there are five, in New South Wales seven, and I am told that applications have been made for the appointment of an eighth’. I believe that the establishment of the High Court will render the appointment of an eighth Judge in New South Wales unnecessary. In Western Australia there are four Judges. Altogether there are 27 Supreme Court Judges in the Commonwealth. If we compare the proposed strength of the Federal Court with that of the Supreme Courts of the States, it will be admitted that five is not an extreme number of Judges to appoint, and when such a court is in existence, the number of States Supreme Court Judges will be open to such a reduction as the States Parliaments maythink fit to effect. I find that I have already occupied more than double the time I had intended to take up. I had proposed to direct attention to what is a very important part of the Bill, namely, the provisions from clause 42 onward, relating to the removal of causes from the State courts to the High Court. Honorable members will realize that the power of vesting the States Courts with federal jurisdiction has been taken full advantage of. Almost the whole range of federal jurisdiction has been intrusted to the States Courts as courts of first instance, in order that those who do not desire to wait for the visit of a High Court Judge may find in their own Supreme Courts a means for taking necessary action in any suit in which they may be concerned. But we require that all such cases shall be subject to appeal to the High Court. We utilize the States courts to the full, but, because I have been arguing that certain federal jurisdiction cannot properly be delegated to the Supreme Courts of the States, honorable members must not assume that we are depriving them of jurisdiction. On the contrary, we are investing them with the whole range of federal jurisdiction, subject to an appeal to the High Court. I trust that honorable members will not look at this measure too much from the stand-point of their respective States. Some of the States have very strong benches, with which the people are satisfied, and to which they are content to intrust their suits. But it should be remembered that there are six different States, and that the same conditions do not obtain in all. If there is comparatively little work in some of the States, there will be a good deal in others, where there is less confidence in the judiciary. I therefore ask honorable members not to criticise the Bill in a parochial spirit. The power of removal is provided for in this measure. Under clause 45, any cause involving a matter of federal jurisdiction, may at any stage of the proceedings be removed from the States Court into the High Court. Clause 42 deals with the removal of causes as of right. It provides -
Any suit involving a matter of federal jurisdiction which is at any time pending in the Supreme Court of a State may; subject to the provisions next hereinafter contained, be removed by any defendant therein to the High Court as a right in manner prescribed. Provided that the removal may not be made -
By a defendant who is a resident of the State in which the suit was brought, if the only ground of original jurisdiction of the High Court in the suit is that it is a matter of admiralty or maritime jurisdiction, or that it is a suit between residents of different States or between a State and a resident of another State.
In all these cases the removal may not be made because the suit is being brought in the State in which the defendant himself resides. Underlying that provision is a desire to prevent ordinary and simple debtcollecting cases or matters of marine urgency from being removed to the High Court when the only object in so transferring them would be to cause delay. Under paragraph (b) they may not be removed -
By any defendent if the suit, not being a matter of admiralty or maritime jurisdiction, relates to the possession or administration of property real or personal which is locally situated within the State, or relates to the granting of administration of the property of a deceased person.
– But, as a rule, will not increased expenditure prevent their removal ?
– I am not able to understand why the honorable member for South Australia assumes that there will be increased expenditure in cases coming before the High Court, as distinct from those coming before the States Supreme Courts. I take it that the scale of fees would be the same.
– There would be an increased expenditure if we had to pay fees both to the States Supreme Courts and to the High Court.
– It might be so in that case.
– If there is a removal it must mean more expense.
– It might not mean more expense. By taking their cases to the High Court, instead of to the Supreme Courts, litigants remove the risk of an appeal being necessary. Ifthey chose first to go to the Supreme Courts of the States, and subsequently to the High Court, the expense would be greater than if they took their cases to the High Court in the first instance. But any expense directly involved in the removal of causes would be relatively small.
Mr.Glynn. - The main expenses in matters of original jurisdiction are those relating to witnesses.
– But as every capital is to be visited by a Judge of the High Court there can be no greater expense in bringing a witness before him than there would be in bringing him before the States Court.
– There will not be much use, in that case, in having a High Court.
– It appears to me that it will be of great use. While the State courts can be utilized to the full, this power of removal provides a safeguard. If a litigant is satisfied, there will be no removal ; but if either party is dissatisfied except in the cases named, there will always be an opportunity of removing the case to the
High Court. I pass hastily from this subject to deal with the alternative proposal, which I really should have reached long before. There are many other points, but leaving them untouched, let me thus briefly dismiss the proposal that there should be no High Court; that we should trust to the Supreme Courts of the States as they are, and to the final appeal from them to the Privy Council.
– Only for some years to come.
– I understand that. But there is another alternative. It is that we should have a High Court in name - not a High Court such as is shaped in the Constitution, but one constituted by taking its members from the Benches of the different States. Some have said that the court should consist of the Chief Justices of the various States, while others have said, “Choose your Judges from the States Benches. “ We should thus create a High Court of a certain number of State J Judges sitting together from time to time.
– That is implied in the Constitution.
– In my opinion, it is not only not implied, but presumptively forbidden. The Constitution says that the judicial power of the Common wealth shall be vested in certain courts, and may be vested in others; but it goes on to say that the Justices of the High Court shall be appointed by the Governor - General in Council. Would these various Judges be appointed by him ? There would be no great difficulty in doing so ; but, having been appointed, their positions would be permanent, until proved misbehaviour or incapacity. This High Court is not one that we can have to-day, and get rid of next year, or whenever occasion arises. Commit yourself to this once, and you commit yourself to it indefinitely, because the Constitution provides that our Judges shall not be removed except on an address from both Houses of the Parliament praying for such removal on the ground of proved misbehaviour or incapacity. If we are going, to create a High Court consisting of Judges who are to act for and serve as Judges of the High Court under thisConstitution, they must be appointed in this way and upon these terms.. They must be appointed by the Governor-General in Council; they will not be subject to. removal except on an address by both
Houses of the Parliament, and their remuneration must be such as this House directs.
– But we may have such other federal courts as theParliament creates.
– That provision in the Constitution does not refer to a High Court. Of course I am not explaining this matter to my right honorable friend. He has foreseen the consequences of his proposal.
– They could be easily overcome if we wished to carry it out.
– I do not know how they would be overcome. Does my honorable and learned friend propose to ask the Judges to place their resignations in the hands of the Government before they are appointed, so that their services may at any time be dispensed with ? Or does he propose that we shall be bound to the Judges for the terms of their natural lives, except in the case of proved misbehaviour and incapacity 1
– There would not be much inconvenience if we did that.
– In which course?
– In any course.
– I contend that any temporary appointment is prohibited by the Constitution, and contrary to every judicial principle.
– But the honorable and learned gentleman proposes in his own Bill to make temporary appointments.
– No. I have altered that clause to get rid of the very objection to which the honorable and learned member refers.
– I see that the honorable and -learned gentleman has done so.
– What I am pointing out to the House is that in my Opinion this alternative proposal would- not result in the creation of the High Court intended by the Constitution - the High Court which is to be the third power of the Constitution. In the first place it implies a breach of the Constitution.
– Not a breach of the Constitution.
– Yes. In the next place it would make fulfilment of the requirements of section 72 of the Constitution extremely difficult. If we committed ourselves to such a court it would be no temporary commitment, but a commitment once and for all.
Then how are we to choose the Judges to constitute that court? Are we to draw them from the Chief Justices of the States Courts ? If so, we shall commit the choice of the Judges to the States and not to the Federal Government ? Are we to say that the Judges shall be picked out ? That would be either a matter of choice or of chance. Choice is invidious and chance is dangerous. Who is to select the various Judges from the States Courts ? That is a critical question. It must be obvious to honorable members that if we are to have such a Court all that I have been saying, either as to the extent of the jurisdiction, the powers, or the influence of the High Court, might as well have been left unsaid.
– If it were once effected the whole question would drop very quickly.
– I think not. That might be the State view of the matter. It would suit the State judiciaries admirably, because there would be no reduction. There would be an increase in business, an increase in the number of Judges in some of the States, and an increase of expense. That would be the only effect. If we took Judges from the State benches ; if we took a Judge, for instance, from the bench of New South Wales where, it is said, , there is sufficient litigation to justify the appointment of an additional J udge, we should be asked to pay - and it would be a proper obligation - the cost of that Judge. At all events we should be asked to pay the cost of the Judge who took the place of the Chief Justice or other member of the bench whom we called away to attend to federal work. Would it be satisfactory thattheFederationshouldpay the Judges of the States in order that they might attend to federal work from time to time instead of paying for Federal Judges, who would form the tribunal contemplated by the Constitution ? Are we to depend on the convenience of the States as to when these Judges can be spared ?
– Would they be able to spare them ?
– Would they be spared to attend at any time to federal business ? In point of fact, would not the only sittings which this kind of court would hold be subject to the convenience of the States Courts, the States Judges, and the business of the States? After the State business had been dealt with and the State courts satisfied, the leisure time of the Judges or some of them might be given to the requirements of the Federal court. No such body as that would draw any number of appeals from the State courts. Probably no such body as that would command the confidence of the Privy Council or of the public to a greater extent than the judgments of the Supreme Courts do now, because these particular Judges would not be chosen by any one responsible for the choice of those’ best qualified for the particular class of work required of them by the Commonwealth. In the various courts of the States there are men who arepractically specialists in particular directions. Some of them are specialists whose knowledge might be called into account so far as the High Court was a court of appeal from States business, but which would be wholly inapplicable in regard to the difficult and bulky matters of federal jurisdiction.
– Would not that difficulty - the diversity of legislation - arise in regard to the High Court as proposed by the Government ?
– But nearly every State can be represented on the High Court Bench, as proposed in this Bill. We have six States, and five Judges are to be appointed so that four or five States can be represented.
– That is the way in which the Government expect to make the choice.
– Yes. Each of these men will come over not only as a federalist but as one possessing a knowledge of the laws of his own State, to assist the court in coming to a decision in regard to those laws.
– Why a federalist? Is not the only consideration to be the question of fitness ? Is not a good Judge a good federalist ?
– He may be. I do not know what Marshall’s chief qualifications were in other directions ; they may have been excellent, but they were quite sufficient in his federal jurisdiction to enable him to make an imperishable name by his judgments. And so of the men to be appointed to our High Court. Some of them may be excellent in other directions, but we hope to find certain of them with a special aptitude for dealing with and interpreting the problems afforded by the totally new conditions of federated Australia.
– What if the Government should find two Marshalls in the one State1?
– In that event we shall break our rule. I shall be glad to be advised of their existence. I know that in speaking of this federal interpretation I expose myself to the sarcasm of the honorable and .learned member for Northern Melbourne, who told us with perfect truthfulness the other evening that there was no mystery about the Constitution, that it was “only a law.” But the Bill of Rights was only a law. The Reform Bill of 1S32 was only a law. Every charter of liberty to Great Britain is only a law. The Constitution of the United States, and the Constitution of Canada, too, are only laws. But by calling either “ only a law,” do we deny the fact that they operate over an enormous area, and that they impinge on an immense complexity of National, State, and local interests’?
– Does the fact that a man is called a federalist make him any the more competent ?
– No, but if he is a federalist he should be more competent to interpret the Constitution. It is not the mere name of federalist that makes him competent or endows him with the necessary qualifications. We can point to particular members of the United States judiciary who have made names for themselves by exhibiting their particular federalist competency in the construction of their Constitution. Other names remain besides these, names that are great, it is true, but of men who were without that special qualification for the interpretation of the Constitution. It is equally true to say that all the liberties and privileges we have, or which the people of the mother country enjoy, rest only upon laws, and that a law might take them away to-morrow. When, therefore, we see that the Federal Constitution is of peculiar complexity - that it is drawn in such general terms, and involves such an enormous area that it requires special wisdom in its interpretation in order that its interpretation may be effective ; when we see that we shall be bound by that interpretation, my honorable friend will admit that the Federal Bench, from the mere fact that its Judges are to be composed of men of continuous federal experience - men who are constantly dealing with the Constitution from some point of view, and constantly harmonizing the sections of it which are brought before them - will have a general fitness for dealing with these matters which no ordinary court could possess.
– What the honorable and learned member evidently wants is a partial bench.
– No such suggestion has been made by me. The federal bench because it is federal will be impartial in dealing with every State and every interest in the community. It will represent them all. Even as regards the Commonwealth, it will not have an overwhelming interest. One interest may be balanced against another interest ; the interest of one State pitted against that of another. State, or some part of a State, while the court will also have to deal with matters in which the interests of some class of the community is measured against those of another class. It is impossible to imagine a conflict between State and federal duty -in the matters which will be brought before the High Court. The whole trend of my argument has been to show that the federal bench will be lifted above local considerations, and that it will give to every State and interest that consideration which is its due. I have only one more point under this heading to which I desire to refer. I allude to the salaries of the Judges, which, perhaps, can best be discussed in committee. The total sum proposed to be set apart for payment of the five Judges is £15,500 per annum, not taking into account any reduction that might be made in the expenditure of the States courts in consequence of the work taken off them by the creation of this court. New South Wales at present pays the Judges of its Supreme Court £19,100 a year ; Victoria, even on its reduced scale, £15,500 a year; Queensland, £11,500 a year; Western Australia, £7,100 a year ; South Australia, £5,400 a year ; and Tasmania, £3,900 a year.
– But those courts work all the year round.
– The High Court will have to work all the year round. All the States will have to be visited. The interjection made a few minutes ago by an honorable and learned member was that the Judges would not be able to undertake all the work. They will certainly have a full year’s work in visiting all the States, and transacting the business in their original and appellate jurisdiction.
– They will not visit the different States unless they have work there to do ?
– And they will have little work to do.
– In my opinion they will have work to do in every State, and in some of the less populous States more work, relatively speaking, than in the more populous States, because of the greater strength of the Federal Bench. I know that I shall have offered to me a few comparisons, which I venture to anticipate. In the United States the salary of the Chief Justice of the Supreme Courtis 2,100, and of the other Judges £2,000 - and it is only an appellate court practically without original jurisdiction. Those were the sums fixed in 1787, when a very different state of affairs obtained. But it has only been maintained by the practice of taking wealthy men, who at the bar had accumulated sufficient means to enable themselves to live at Washington. Only at the end of the session just closed, in consequence of a strong party fight, a measure was thrown out which sought to raise the salaries of these Judges to about £3,000 a year. What American opinion is of the salaries of Judges is shown by this fact : that in the State of New York, where modern conditions prevail, there are 34 Judges now - drawing a salary of £3,500 - as much as we propose for the Chief Justice of Australia. People compare Australia with America, but they are comparing salaries which were fixed more than a century ago, under circumstances absolutely different, and which legislators have been seeking to alter time and again. They do not compare Australia with New York State.
– One tenure is for life, while the other is for only five years.
– In New York they are actually paying 34 Judges as high a salary as we propose to pay to our Chief Justice.
– How are those Judges chosen ?
– In New York some Judges are elected. I notice that when I talk of salaries, I am asked how the J udges are appointed, and when I talk of their appointments then I am asked what about their salaries. However they are appointed, it shows that the scale of salary for the Judges of the chief court of the United States is not the scale of salary which is adopted in America to-day. The States are setting it aside, and in the session just closed the Congress was asked to set it aside.
– Will the salary of our Chief Justice carry a pension?
– We propose to give a pension on a fixed scale with which the House will deal. Again, take Scotland and Ireland. The population of Ireland is 4,500,00, not three quarters of a million more than the population of Australia. The Lord Chancellor gets £8,000 a year, the Master of theRolls £4,000 a year, the ViceChancellor £4,000 a year, while even a land Judge gets £3,500 a year.
– That is why it is called a most distressed country.
– On the King’s Bench the Lord Chief Justice gets £5,000 a year, the Chief Baron £4,000 a year, and all the other Judges £3,500 a year.
– Were not those salaries fixed when the population was much larger than it now is ?
– I do not know, but what about Scotland. That is not a most distressed country. It looks after its expenditure most carefully, and its population is nearly similar to our own. They pay the Lord President £5,000 a year, the Lord Justice Clerk £4,000 a year, and the other Judges £3,600 a year.
M r.McDonald.- I think the honorable andlearned gentleman is in error about the population.
– The last return showed that the population was a little over 4,000,000.
– Who appoints the Judges in Scotland and Ireland?
– The Crown.
– The Crown is not a Scotchman or an Irishman.
– The Crown represents Scotchmen and Irishmen.
– We could not give less to our Judges than the States are giving to their Judges.
– In Australia three States pay £3,500 a year to their Chief Justices.
– What are the salaries in Canada?
– In Canada they pay £1,650 to the Chief Justice, and £1,450 to the Associate Judges ; but every profession and calling there has a scale different from the English scale, and different from our own scale.
– It is merely an appellate court, and it sits only three times a year as a full court.
– In Victoria, the chief railway commissioner is paid £3,500 a year, and he has two associate commissioners at high salaries. I take it that the Chief Justice of the Commonwealth will do work not less important than that of managing the Victorian railways, great as they are. However, I hope that honorable members will share with me the responsibility of having detained them so long in the endeavour to answer the queries which they have put to me.
– How about the writ of habeas corpus ?
– There will be provision for that. I put once more the consideration with which I opened my speech - that we are called upon by the Constitution in a mandatory and peremptory fashion to vest the judicial power of the Commonwealth in a High Court. I have not heard of any proposal in this House or any other House from the most infatuated States rights man that the proper way of establishing this Parliament was not to elect one but to constitute it from the members of the State Parliaments. Nor have I heard of any proposal for forming the Government of the Commonwealth by asking the State Premiers to meet together and transact our business for us.
– The Premier of each State was taken.
– The Premiers of the States were taken-
– If the Government act upon that precedent, they will take the Chief Justice of every State to form the High Court.
– Even so, their standing as the Judges of the High Court of the Commonwealth would be very much better than it would otherwise be. If our Government is composed of those who had previously held high office - and the highest office - in the various States at all events, it was a condition of their exercising their present power that they should lay down their former office, cease their old relations, and owe allegiance to no one except the
Commonwealth. But the proposal here is, that although we have a Parliament elected by the people of the Commonwealth and an Executive which is under their control, we are to have a judiciary which is not to be under their control, but which is to be selected simply from the State judiciaries. Of course, it would be unreasonable to push that comparison too far. Nevertheless, it brings home the fact that in the eye of the Constitution the three powers stand together, and that the judiciary is thethird power in the Commonwealth, which is ordered to be constituted in precisely the same terms as the Executive and the Legislative. There is no difference whatever ; precisely the same phrase is used, and it is of the some mandatory character.
– There is no provision for replacing the Executive.
– There is provision now for replacing the Executive, and in a very easy fashion. I have no doubt but that the honorable and learned member would undertake to do it at very short notice. The justification for creating the High Court is that it should be high not only in name but in character, in standing, and in independence. I freely confess that if honorable members propose to have a court which should be composed of two or three members chosen casually from the State benches by some method yet to be disclosed there will be little to be said for its establishment. It will be an addition, whatever expense it costs, to the expenditure of Australia. It will notbe a substitution. It will not allow for economy in the States. It will be of comparatively little service, except to keep the place warm for the High Court to be afterwards created. But if the High Court is created of at least five Judges and these are to be picked men from Australia, then it will discharge, first of all, the great general duty of providing the Australian Court of Appeal for all matters that are judicable in the State courts. No matter what they are, or where they are, they may be brought on appeal to the High Court, and with a High Court of that nature very few of them will go further, even if the appeal to the Privy Council be not restricted.
– Most appellants will ignore the High Court and go to the Privy. Council.
– I undertake to say that most appellants would not ignore the High
Court if it be such a court as I have de* scribed, because they will feel satisfied that from such a body they are likely to receive the same impartial and able treatment as from the Privy Council, and in addition with Australian knowledge and experience, invaluable to the decision of. many cases. Prom these there will be no appeal, and instead of passing the High Court by, as my honorable and learned friend supposes, suitors will not be encouraged to ignore it when they find the Privy Council affords few overrulings of the decisions of a court of that character. They can obtain here and within a few months - from three to six months at the furthest - that justice for which in England, either with the Privy Council or with the still higher and probably still busier single court of Imperial Appeal, they would have to wait one year, two years, or perhaps three years before they could obtain a decision of the case. Under these circumstances I have no fear of a High Court of that character getting business, and of its being fully employed in both its federal and its general jurisdiction. It will relieve the States Courts of a large amount of appellate work which they now do, when once confidence is established in it, and particularly will that be the case from the States which are the least populous from the States which have the smallest Benches, from the States which pay the lowest salaries in the Union. These will especially make use of a federal court which by comparison will be so much stronger, not only in numbers, but in the standing of the nien who are appointed. Then, in addition, there is the broad function of the interpretation of the Constitution, the construction of our deed of gift from the people on a consistent scheme ; not leaving us dependent only on some chance High Court or waiting for the Privy Council, and being for two or three years, perhaps, uncertain of the precise meaning of some of the most important sections of the Constitution, but with the means of obtaining in a speedy, sure, and consistent way from a capable court readings of the great deed of gift which the people gave us, whose powers exactly as distributed are absolutely preserved until they undertake another apportionment. This task I am indeed unwilling to trust to chance States Courts or to a scratch court built up out of the States Courts in their leisure moments. It seems to me it is work worth doing for the Commonwealth - worth far more than we propose to spend. A single erroneous or mistaken decision which drives us into the cost of an appeal to the people, for an amendment of the Constitution or other costs which may follow from the defeat of our administration in consequence of adverse decisions, may easily involve far more than the £20,000 a year proposed for the High Court. When I speak in this way I do so certainly with no personal motives and with no personal ambitions ; not because it has fallen to my lot to occupy this particular office,, but because whether my conclusions be justified or not they are formed from the experience gained during my term of office and uttered with a due sense of responsibility. What I have said in regard to the need for the High Court and its potencies applies to the High Court which I have described. Nothing I have said attaches or can be attached to any other. I must not be held responsible if a court of another complexion is created. Those who create it will take the responsibility for its character, cost, and consequences. I have simply sought to deliver my soul by giving a careful and exhaustive study of this question in all its branches ; first, to learn our duty under the Constitution, and next to devise the most practicable way of giving effect to its mandate. The measures which I have placed on the table are the result of great technical labour given .by others besides myself, upon whom I have been bound to rely, and at all events constitute a machine which is certain to work, and work well. Justified as we are now and at all times in passing proposals under the microscope of economical examination, we must remember that after all we are not looking at a State institution with only a local operation. We are not forbidden to lift our eyes, but are called upon to do so to the full extent of their federal capacity, which embraces all the ‘ States. We have to remember that this court is intended to visit all the capitals of Australia, to’ deal with business in all of them, and to gather it to a centre. It is to be a federal body, which must inevitably take its place even above the admirable courts which we have already established in the States. We require to use the federal telescope as well as the State microscope when we look upon the work which the High Court has to do. Surely the cost to
Australia becomes small in comparison with the nature and magnitude of the work to be done and the area over which it has to be transacted. It is an area six times that of the States, yet there are States in Australia which spend more than twice the sum upon their Judiciaries that wepropose tospend upon the High Court of Australia. Look at the continent over which the operations of this Court will extend, consider thedifficultyof its task, the work to be done - work which some honorable members are prepared to say is more than five men can do, but which I believe five men can do ; that work is certainly worth the sum which we propose to spend upon it. Nearly all of us who are here have been members of State Legislatures, and too many of us are prone to bring with us into the consideration of federal concerns the scale which we have formerly applied to State affairs and State finances. We are scarcely federal yet, even after our three years experience. I remember that the instant we met in this Parliament we forgot all the former predictions of the glamour that was to surround a Federal Parliament in the new era that it was to inaugurate. There was to be opened before us a fairy region from which we were to derive miraculous advantages. I do not think that any one can accuse this House of having been carried away by federal or any other kind of glamour. Directly we got to work we dropped down to the old parliamentary jog-trot, and fell at once into the familiar parliamentary ruts. Since then we have worked with our noses to the grindstone, without a thought of the fairy realms on which we were supposed to be entering, or of the new era that we were presumed to be enjoying. . We never hear of the glamour, and of the fairyland now, so sternly practical have we become in our application to the business before us.
– There will be a jog-trot about the High Court before it has been established long.
– Here we are now, after two or three years of practical labour, in which we have been called upon to look after the affairs of all parts of Australia - to the extreme north in connexion with the question of a white Australia, and then again to the extreme west, as often as my right honorable friend, the Minister for Defence, has called ourattention to it. We have been compelled to think on an Australian scale, and it will be well if we do so in connexion with this question. We shall then have no difficulty about the establishment of an Australian Court. We seem to be, as Matthew Arnold said of Socrates, “Terribly at ease in Zion “ - if this Parliament be pictured under that name. We deal with these great proposals which are brought before us not on the scale of the interests which are involved in them, but according to the narrower notions of our former local politics. The creation of this Court affects every class, affects every age, affects every part, affects every right, affects every interest, in this community. If created, it will surely become for Australia the Supreme Court, and stand above every other court. No one can say that this is a light matter, or that the proposed cost is too much for such an end,’ when measured either with the work which the Court has to do, or with the area which it has to do it in. Let us then once more lift our eyes forward to that future of the Commonwealth in the shaping of which, Constitutionally, this Court will play so large a part.
– We certainly must compliment the AttorneyGeneral upon the ability and the temper of his speech. That it would be eloquent, every one who knew him was perfectly assured ; his nice sense of what the duty occasioned made it comprehensive ; whilst our apprehension was certainly assisted by the gift of phrase which enables the honorable and learned gentleman to be always perfectly lucid. In following him I might express my feeling by a quotation which the Attorney-General may remember -
As in a theatre, the eyes of men,
After a well-grac’d actor leaves the stage,
Are idly bent on him that enters next,
Thinking his prattle to be tedious.
My position is perfectly expressed by that quotation in following the Attorney-General, while honorable members have his eloquence still ringing in their ears. At the same time I was pleased to find that on the present occasion he has come rather closer to the subject than was the case in the very eloquent address which he delivered last year, and to which it was not my good fortune to listen. I thought after reading that speech - and after re-reading it last Sunday, in order to refresh my memory - that perhaps, after all, it was not an unmixed evil that I was not present to listen to it, because the very exercise of such gifts as please the ear is apt bo charm into ineffectiveness our power to criticise. But the question is not to be got rid of by any indulgence in rhetoric or any pretty dealing with generalities. The question is one of sound common sense and expediency, if there is not, as the AttorneyGeneral seeks to assure the House, a clear mandate in the Constitution for the immediate establishment of this High Court. Certainly I am going to be influenced merely by ideal considerations, and not by the grandiloquent expressions of the Attorney-General, as to this glorious tribunal which is to be set up in Australia. As to the question upon which the honorable and learned gentleman laid greatest insistence - though not at greatest length - and which, if it were admitted, would be conclusive as to the obligation for the establishment of the High Court, namely, the question of the Constitution being mandatory upon the point - honorable members will perhaps have noticed that at the very outset the Attorney-General stated that there is no alternative. He said that there is a clear mandate contained in section 71 of the Constitution for the immediate creation of this High Court ; that we are bound not to disappoint the people, but that we must be true to the faith which the people reposed in us, when he and others told them that the High Court was to be immediately constituted. All I can say is that I never told the people that there was a mandate for the instantaneous establishment or creation of the High Court. In fact I mentioned that my opinion was that we ought to proceed slowly in this matter. I said that at the time when the Federation was in its infancy, we should be particularly cautious, and I rather endeavoured to lead the people to assume that through economy we hoped to prove deserving of their trust. Indeed, I said that if we were to have an appeal court, we might do what has been suggested by Sir Samuel Griffith - have a court constituted of State Judges, which would be quite adequate to our present necessities. I would again remind the Attorney-General that that very form of appeal court which came under the denunciation of his eloquence to-day was suggested by Sir Samuel Griffith in a pamphlet–
– No, it was suggested in a very conditional way.
– It was put forward by Sir Samuel Griffith as a suggestion well worthy of consideration at the beginning, whether we should not constitute a court of Judges of the State courts.
– The Convention decided that we should not do so.
– The Convention was too pedantic in regard to many of these points. It showed too great a tendency to follow closely the example of the United States. Because in the United States they have an Inter-State Commission and a Supreme Court, we in Australia, on the principle of analogy, were to have these bodies also. But the analogy of the United States is not applicable at all, for the obvious reason that there was no court in America to control the dissentient and conflicting decisions of the tribunals of the different States, whose temper was in the true sense of the word out of sympathy with the Federal spirit. If we examine this recommendation of Sir Samuel Griffith for the establishment of a temporary High Court we shall find that it was made as recently as 1897, and I am unaware that the Queensland Chief Justice has publicly annulled the expression of this view - unless the Attorney-General in the communications which he has received from Sir Samuel is in possession of information showing that he has changed his opinion.
– I understand that six months ago he was still of the same opinion.
– I am glad to hear it. At all events there has been no public abandonment of that opinion, which was made in the interests of economy. Now, is the establishment of the High Court really mandatory uponus? Suppose the High Court were not constituted - what tribunal could compel us to establish it? Could we be compelled bymandamus ? If it had been really mandatory the intentions of the framers of the Constitution would have been expressed in different terms. The expression they would have used was not that the judicial power of the Commonwealth shall be vested in the Supreme Court, but that there shall be established a Supreme Court in which the judicial power shall reside. I think that those alternative suggestions were made at the Convention - if not in open convention, certainly at some of the meetings of the Judicial Committee. Had that mandate been imposed upon us the wording of the section would have been very different from what it is. If the contention of the Attorney-General be right, then, during the last two years, the various decisions given on Federal laws are nullities ; because, if there are no courts in which is vested the judicial power of the Commonwealth until you establish the High Court of Australia under, the Constitution, there has been no court during the last two years to decide either on any point of interpretation of the Constitution, or in regard to any laws passed by the Federal Parliament.
– And all the revenue collected must go back.
– Everything is wrong; laws have been without a court to enforce them, and all things judicial that have been done under the Constitution have been nullities. As the true test -of an argument is to push it to its conclusion, the- reductio ad absurdum of the
Attorney-General’s argument is that everything that has been done has been futile, so far as legal remedies are concerned. But apart from that, is there any present need to establish the High Court ? The court has two jurisdictions, one appellate and the other judicial. Does the Attorney-General say that the judicial power of the Commonwealth is not vested in the Privy Council in appellate matters’? Will the power go when we establish the High Court 1 Undoubtedly not. You will only have interposed between the litigant and the Privy Council another appellate tribunal ; and probably instead of expediting the final attainment of justice you may have ministered to its retardation. Again, as regards the temporary High Court, it is significant .that in 1870 an Act was drafted by the Commission to which the Attorney-General has referred, under which Act a court to be composed of some of the Judges of the States was to be the Supreme tribunal throughout Australia. The terms of office of the Judges under such an arrangement must then, as now, have been prescribed by the States Constitutions. The Attorney-General, in this connexion dwelt upon the difficulties under the terms of our Constitution of establishing such a court, owing ‘ to the fact that under section 72 the GovernorGeneral would have to make the appointments, but the terms of office would practically depend upon the State laws. There was a similar difficulty urged in 1S70, but difficulties exist to be overcome when a reform has to be effected. They are not to be made mere pretexts for avoiding what should be done. They are not to be made objections, as they have been by the Attorney-General, against what is clearly expedient. They are made for statesmen to overcome. Those who advocated a separate tribunal recognised that the Constitution contained a few difficulties, but none of us for a moment thought of sitting down and saying that they were insuperable. I am sure that with the diplomatic tact which the AttorneyGeneral is always able to display he will find, if he approaches the Executives of the various States, that they will be only too happy to fall in with his suggestion1? Where is the difficulty of the terms of office being prescribed by State law ? We do not wish to dismiss our J Judges every year ; we can select two J Judges in- each State, and as there are six States we can have twelve Judges from whom the necessary quorum of five may be formed. What harm is there in the fact that their terms of office are fixed by the Constitution until incapacity or misbehaviour is established against them. We do not anticipate misbehaviour on their part, but if we are in a fix about getting rid of them we should be able to show incapacity, if by reason of their State duties they cannot devote themselves sufficiently to Federal matters. Their incapacity may be thus explained in an address to both Houses. I mention this to show that the difficulties will disappear if there is a will that they should, though when magnified by the easy eloquence of the Attorney-General they may appear stupendous. As regards New Zealand they have there a tribunal on exactly the plan recommended by Sir Samuel Griffith. The Judges of the two islands constitute really the personnel of the Appellate Court in New Zealand, and I think they meet three times a year at Auckland. This is a scratch court, and it is found that they dispense adequate justice. Though this composite court does not exist under a Federal Constitution, still the conditions are not dissimilar, and as to efficiency we know that the Justices of the two islands of New Zealand have stood up against the Privy Council in a manner which has secured the eloquent approval to which we have listened from the lips of the Attorney-General himself. So that even on the honorable and learned gentleman’s own eulogium I may say that courts of - this character are likely to be adequate for the discharge of very high functions. The Honorable and learned gentleman in dealing with New Zealand referred, as one of the very strong points against the opposition to this Bill, to the fact that the Privy Council as a tribunal has latterly been wanting in popularity, or, shall say, respect, or efficiency, because there had been cases like that in New Zealand over which they were pretty strongly taken to task by the Judges of the Court of Appeal.
– I said they had rather improved of late years.
– Then, what was the burden of the attack the honorable and learned gentleman made upon the Privy Council ?
– I say it is dangerous to have a remote court dealing with matters purely Australian.
– That is to say that the growing diversities of our laws render them difficult of interpretation. As regards difficulties of interpretation, I cannot see that the position will be much improved when we establish a High Court of Australia. We shall have, in non-federal matters, six States with six sets of laws, which will have to be interpreted by a tribunal which’ is Federal. There are great differences in the various States of Australia, at all events in legislation upon the settlement and tenure of land, and the various Acts will have to be dealt with by a Federal Court that has had no State experience. In this matter will there not be the same objection to the High Court of Australia that is now taken to the Privy Council ? There will probably be as few experts in local law on our High Court Bench as there are in the Privy Council.
– How can that be?
– Not a single State in Australia has copied the land laws of any other State, and their laws are not similar in many respects.
– In many respects they are similar.
– We must remember that the High Court of Australia will have to decide upon appeal matters arising under State laws, and which have been dealt with by Judges of the different courts in. the various States.
– We shall probably have four or five of the different States represented on the Federal High Court.
– On an appeal from South Australia, for instance, we shall have at least four Judges who will know no more about the particularlegislation of South Australia than do the members of the Privy Council, assuming the honorable and learned gentleman’s argument to be correct.
– There is much similarity in our State laws.
– On the subject of local laws I need only refer to the name of Lord Watson, to whom the honorable and learned gentleman appealed, and his reputation is known to almost every one who has studied jurisprudence as that of a man who has an extraordinary knowledge of civil law.
– The mining laws of Western Australia are quite different from the mining laws of the other States.
– No doubt they are, and a little consideration at once shows that it is only a question of degree as to the comparative ignorance of our State laws by the Privy Council and the High Court of Australia - that is, in purely State matters. So that upon close examination I think that several of the objections raised by the Attorney-General ought not to strike the House as being quite as potent as, owing to the honorable and learned gentleman’s powers of attractive expression, they may seem to have been. My point is that there is no mandate which we are obliged by any sanction to obey, nor is there really any clear mandate in the Constitution as to the immediate creation of a High Court. I need not press the point, but really, if honorable members will look at section 73 of the Constitution, they will see that it must appear absurd to suggest that we are obliged by the intent of the Convention and the letter of the Constitution to create a High Court at once, when the power is vested in us by the Constitution to take away all its appellate jurisdiction. The Attorney - General knows that under that section the appellate jurisdiction of the High Court can be cut down to zero.
– No, the honorable and learned member must recollect that he moved an amendment himself.
– I did in respect of nonfederal matters, because I pointed out that the provision in America had been used to destroy the jurisdiction conferred upon the Federal Courts created by Congress. Honorable members will see that under section 73 Parliament can absolutely cut down to zero tlie federal jurisdiction, but what we cannot do is what my amendment provided for. We cannot take away the right of appeal from State courts to the High Court in cases in which a right of appeal to the Privy Council existed at the time of the establishment of the Commonwealth ; the object of that provision being that, if appeal to the Privy Council is eventually abolished, there will be in substitution an ultimate court of appeal in Australia. Otherwise it would be’ in the power of the Federal Parliament to take away the right of appeal which previously existed to the Privy Council without allowing an appeal to the High Court of Australia. Subject to this exception, this Parliament can take away the whole or reduce almost to zero, if a nominal balance is to be left, the appellate jurisdiction of the High Court. That being so, there clearly cannot be an imperative direction to us to create a High Court at once, so that the only point which, if established, would be conclusive as regards the alleged mandatory provisions of section 71, comes to nothing upon examination. Now, as regards the work of this tribunal, I hold that the real point which we have to consider is whether at the present time it is expedient to create a new tribunal in Australia manned by five new Judges with an original jurisdiction, which admittedly they can only exercise by a very large encroachment upon the jurisdiction of the State courts, and with an appellate jurisdiction which is really not final in a single instance. Is such a court as that really necessary at this stage of our career? I say that if it is not, the plain duty of honorable members is to vote against this Bill. I say that in no case will the decision of the High Court of Australia be absolutely final. In every case there is the power of appeal on application to the Privy Council, except where the point involved is the constitutionality of the statutes of a State or of the Federal Parliament, or a question of constitutionality between a State and a State. These are the only two cases of constitutional power in which the only power of appeal which may be exercised must be on the certificate of the High Court of Australia. But, again, there is a limitation there, because it is only in respect of a constitutional matter that the certificate of the High Court is necessary, while on all other points, even in the very same case, there is an appeal left open to the
Privy Council. So that if we do create this High Court at once, we may have an appeal refused by the High Court on one point and granted by the Privy Council on another, or alternative appeals in connexion with the very same case. We may have an appeal by the defendant on the one point, and an appeal by the plaintiff on another. We may have ail appeal on a certificate given by the High Court on a question of vlt/ra vires, and an appeal by permission of the Privy Council without tlie permission of the High Court upon another point in the same case. So that it seems to me we shall really be mixing matters to some extent by an immediate creation of this High Court. I was one of those who advocated the abolition of appeals to the Privy Council, but it has been retained, and for this reason I believe the creation of tlie High Court is premature. The jurisdiction of this High Court will be appellate or original. As regards the appellate jurisdiction, to put it shortly, it will have an appellate jurisdiction in all decisions come to on federal matters and- -
– In all matters.
– Perhaps the honorable and learned member is right in thus stating it shortly, but really I wished to divide the question for the purpose of enabling laymen to comprehend the matter more clearly. The matters are specified and enumerated in the Constitution for greater clearness, and that is the reason I proposed to follow the principle of enumeration. There can be an appeal from a Supreme Court to tlie High Court in any matter above a certain amount fixed under the Bill.’
– Practically in all matters, State or Federal, above the limit fixed by Parliament there can be an appeal. Where an appeal did not exist before federation in a State matter to the Privy Council, and where under State law an appeal has been granted since federation - I do not think there must, by the Constitution, be an appeal to the High Court of Australia in that matter, as Parliament can take it away, so that perhaps the honorable and learned member for Northern Melbourne put the position too strongly. We are given, subject to the exceptions imposed by Parliament, an appeal in all matters from the Supreme Courts of the States, with a certain qualification preventing the abolition of appeal’s where the right has existed to the PrivyCouncil prior to federation. I do not, however, wish to go into details in the matter, and I accept the statements of the honorable and learned member for Northern Melbourne, that practically upon all matters there may be an appeal to the High Court of Australia, but from that court, as I have mentioned, there is still another appeal to tlie Privy Council. Though in federal matters, following the analogy of the Privy Council, I acknowledge that there will not be many appeals, because in the Canadian case of Prince v. Gac/non, it was laid down that an appeal would not be allowed when no matter of public interest and importance is involved. In Canada they do not allow appeals to the Privy Council unless some matter of importance or public rather than of merely pecuniary interest is involved. Still there are appeals from the High Court of Canada. I think they average one and a-half a year, though they are not so numerous as direct appeals from the courts of the Provinces. The position as regards these appeals is qualified b)’ the fact that if you have an appeal in all matters, still in the most numerous instances - appeals from the State courts in State matters - there is the direct appeal as of right to the Privy Council. There is an appeal from the decisions of the Supreme Courts of the States, in all State matters, direct to the Privy Council. With that right of appeal we cannot interfere; we cannot abolish it, cut it down, or restrict it to any extent. These appeals will constitute probably the bulk of the appellate business expected for the High Court, but to the extent of probably two-thirds they will pass direct to the Privy Council, because that is about the percentage of the Canadian appeals that overlook the Supreme Court of Canada and go direct to the Privy Council. Federal cases may go also. In these circumstances it is idle for the AttorneyGeneral to describe the High Court of Australia as the court that will finally interpret our Constitution. How can it, if there may be a conflicting decision of the Privy Council? How can it, if an ultimate appeal is given to the Privy Council ? How can it, if that appeal will be- exercised in constitutional matters, because these are cases of very great importance, and cases in which grace will be extended to the litigants to appeal from the High Court to the Privy Council, even if in Federal matters they cannot appeal direct? Practically it amounts to this : that a case in which the interpretation of the Constitution is involved, being a matter of public interest and of great importance, will be exactly the case in which the Privy Council or High Court will give consent for an appeal to the Privy Council until we have abolished appeals to that body. It is for this reason that in the Convention I, and I think also the honorable and learned member for Northern Melbourne, advocated the abolition of, failing all, direct appeals to the Privy Council, and desired to send all appeals to the High Court of Australia.
– A resolution was carried providing that there should be no appeal to the Privy Council from. the Supreme Court of a State.
– The suggestion, after that was cancelled and some appeal home was to be retained, was that all appeals to the Privy Council direct should be abolished, and that an appeal, whether upon a State or a federal matter, should lie first to tlie High Court, and then to the Privy Council. The Melbourne Convention reversed the Adelaide decision, abolishing all Privy Council appeals. If the Constitution had provided for an appeal through the High Court to the Privy Council, or as might be, until determined by the Federal Parliament, it would have left us masters of the situation, because, then if we came to find the power of interpretation passing out of our own hands into those of the Privy Council, we should have been able to put a stop to it. Had that arrangement been made, a great deal of the opposition to this Bill would not exist. In this connexion I should like to repeat a few of the figures which I have already given to show how small the number of appeals to the High Court is likely to be. When speaking on the subject upon the motion for the address in reply, I mentioned that the total number of appeals to the Privy Council from all the States during the last twenty years was 223, about a dozen of which - six from Victoria, but I do not know how many from each of the other States - were not adjudicated upon. That is less than twelve appeals per annum from all the States. But over a longer period the average would be much less. Tarring, in his Law of the Colonies, says that “ from the beginning,” which I take to mean from the beginning of constitutional government, down to 1893, the appeals aggregated 174, or less than four a year. But dealing only with the last twenty years, the appeals averaged only two ‘ per annum for each State. If what has happened in connexion with Canada happens here, two-thirds of the appeals will still go to the Privy Council. It was thought in 1875, when the Canadian Supreme Court was created, that it would be called upon to decide most of the local appeal cases, but the appellate reports from month to month show that the greater number of the appeals still go direct to the Privy Council, and the last copy of the reports contains, I think no fewer than three appeals from Canadian courts.
– It all depends upon the court.
– The Attorney-General will not say that, as a matter of necessity, the Australian tribunal will be superior to the Canadian tribunal.
– It must be remembered that Canada is nearer to England than we are, and that it is easier to appeal to the Privy Council from the Canadian courts than from our courts. From what I know of the Privy Council, I think that the High Court will be able to rival it.
– The fact’ that it takes three or four weeks longer for a steamer to go from Australia to England than from Canada to England will not make much difference in regard to appeals to the Privy Council. I think that we may fairly be guided by the Canadian statistics, and therefore we are not likely to have half-a-dozen appeals a year brought before the High Court. The total number of appeals in Canada down to the year 1893 was only 155. The Attorney-General referred to Marshall. It was of great assistance to the members of the Convention, in framing the Constitution, to have such a splendid exemplar as was afforded by the Constitution of the United States, which has been referred to by Mr. Gladstone as one of the clearest and simplest charters that the pen of man ever wrote. But we have this further advantage, that for some years to come we are not likely to be troubled with many of the vexed questions of interpretation which in the beginning distracted the people of the United States, because many of the decisions given by the leading American jurists, and particularly by Marshall, are absolutely applicable to our Constitution, since in regard to many points its lines are practically identical with those of the Constitution .of the United States, and its spirit the same.
– Does the honorable and learned member think that it will not be contended that the differences between the two Constitutions render rules which are applicable under one, inapplicable under the other?
– No doubt it will be so contended ; but the clearer the law the less the litigation under it. It has been estimated that not more than 25 per cent, of the cases which are taken to lawyers are brought before legal tribunals, because in 75 per cent, a fairly skilled lawyer, notwithstanding the muddle of provisions in the statute book, and the multifarious decisions of the courts, is able to advise his clients not to go to law. Marshall’s judgments are always regarded as models of lucidity and constitutional exactness, and will it be said that the true lines of our Constitution are not laid down in the American decisions which declare, for instance, that Acts of Congress repugnant to the Constitution are void, that the rights of States to pass laws where the Constitution is silent is clearly established, that the judgments of the courts of the United States are supreme over inconsistent State laws, and that the authority of Congress as to implied or reserved powers is clear, or which establish the power of the Federal Parliament in matters of trade and commerce ? Are not all those decisions applicable here ? And in regard to many other matters, to which I need not refer, the principles of interpretation have been practically and finally laid down for us by American jurists. The decisions of the American courts will, therefore, in settling these matters, go a long way to prevent appeals to our High Court. Furthermore, we must recollect, in dealing with the American cases, that there many subjects were brought forward for decision which cannot come before our own courts. During the first fifteen or twenty years, about 153 out of something like 1,200 cases dealt with questions of international rights which cannot arise here.
– Has the Commonwealth made any treaties upon which questions of law can arise?
– We have adopted some of the Imperial treaties, but, so far as I am aware, there are no treaties in regard to which litigation will arise.
– There has never been a question relating to treaties raised in the States courts.
– A case like the Vondel case is not a matter for decision by the High Court. It is a matter for diplomatic arrangement between the States and the Commonwealth of Australia and the Imperial authorities, a matter governed by etiquette and custom, not a subject’ for judicial decision. I cannot see any possibility of treaties coming before a judicial tribunal here. Then in America many protracted cases affecting questions of the impairment of contracts were brought before the courts. There was the celebrated Dartmouth case, in which the validity of a charter and the question whether it was in violation of the principles of the Constitution arose. In that case it was decided that the obligation of a contract was to be regarded, and was’ not affected by ex post facto legion : but no such case will arise here. Therefore it is plain that there will be fewer cases brought before the High Court of Australia than were , brought before the Supreme Court of the United States. Between 1790 and 1801 only six decisions upon constitutional questions were given by the Supreme Court of the United States.
– I think that there are as many as that under weigh here now.
– Some constitutional questions have arisen because the Government would not attend to suggestions made in this House.
– I do not know what cases they are.
– I will tell the honorable and learned member one. There is now on the business paper a notice of an amendment to be moved upon the Judiciary Bill, giving power to compel by mandamus the performance by a Federal officer of a statutory duty. I suggested that power should be taken for this purpose in the Claims Against the Commonwealth Bill.
– We could not consent to that.
– We are really creating difficulties that will have to be settled by the tribunal for which we are now asked to provide. We should be performing our duty to the public more strictly if instead of creating difficulties we endeavoured to avoid them. In reference to the proposal to give certain rights of action against the
States and the Commonwealth, I urged time after time at the Convention that this should be provided for in the Constitution itself. I think the Attorney-General will admit that the cases which have occurred here during the last twelve months have not arisen out of the Constitution itself, but have been brought about by carelessness in legislation.
– Three or four of the cases arise under the Constitution itself.
– There are certainly not many such cases, despite the fact that it is at the beginning of our career that points involving the interpretation of the Constitution are most likely to arise. When such points are once settled they will be disposed of for ever, because the decisions of the High Court will be final if tlie AttorneyGeneral’s hopes are realized. For the period from 1801 to 1S25, 62 constitutional cases, or less than two per annum, were adjudicated upon by Chief Justice Marshall in the United States. At present, the most numerous of all the cases arc those relating to patents. Now, if there is one part of the world in which patent cases might be expected to arise with great frequency it is the United States. The admixture of races, together with the necessities of the people in the development of a new territory abounding in magnificent and various resources, has resulted in unparalleled fertility of invention, and consequently the patents applied for in America per head of the population are far more numerous than in any other country. Curtis, in a recent work upon the American judiciary, says -
Patent oases form the most important branch of civil jurisdiction, both in the magnitude of the interests involved as well as the amount anr! quantity of litigation.
I hold, therefore, that for the next fifte’en or twenty years we are not likely to have many patent cases to take up the time of the High Court.
– We ought to have a Patent Bill passed this session.
– No doubt, but we may have to wait some time before the High Court is appealed to upon any question relating to the patent laws. I may point out that in America the Federal Judiciary, owing to the greater powers of Congress, has a far larger1 jurisdiction than can possibly be conferred upon our High Court.. The Federal authorities have control of the land, and questions between the State and Federal authorities are continually cropping up.
– Except in that regard the jurisdiction of the United States Supreme Court is narrower than ours will be, because there is no appeal from the States Courts.
– But they do appeal from the State Courts to the Supreme Courts.
– Only upon matters within the Federal jurisdiction.
– Yes. What I wish to point out, however, is that in the United States the power of legislation by the Federal authorities is far greater than here. Land legislation, which, as a subject, really absorbs the greatest proportion of the time of our States Legislatures, has to be dealt with by the Federal Government in America, and as mining matters are to a large extent under State control, there is a continual clashing of jurisdiction. For that reason a great many cases in connexion with land claims have to be adjudicated upon by the Federal Court. With regard to the appellate jurisdiction, all I have to say is that there will be too little business for the High Court to transact during the next fifteen or twenty years to justify us in creating any such body. It is proposed under the Bill to give the High Court original jurisdiction of a very extended character.
– As large as the Constitution will permit.
– Yes, practically all the powers that are optional under the Constitution have been assumed by this Bill. Some of those referred to in section 74 have been assumed.
– No, we have not touched upon the question of appeals dealt with in sections 73 and 74.
– At any rate all the matters referred to in section 75 of the Constitution are included. Some of these powers are not likely to be frequently exercised. It is conceded that there will not be many treaty cases, and the same remark applies to “ cases affecting consuls or other representatives of other countries.” The suits between States are not likely to be of great frequency here,, whereas in America owing ‘ to the large number of States they are continually cropping up. These are the only cases, except those relating to the positions of ambassadors and consuls, in which the United States Supreme Court has original jurisdiction.
– They do not fully exercise their original jurisdiction, because nearly alltheir business begins in the District Courts.
– Yes, it begins in the Federal Courts, but not in the Supreme Court. The United States Supreme Court has a very limited original jurisdiction, and few cases beyond those which arise from suits between the States. Owing to the smaller number of States in the Commonwealth this class of case is likely to occur here with far less frequency than in America. Cases of this kind would increase, not in arithmetical, but rather in geometrical proportion, according to the number of States. If there are six States in one federation and twelve in another, it is likely that the number of cases to be dealt with in the latter case would not only be double, but much more numerous, because, as Curtis shows, the large number of States in the American Union results in a considerable proportion of such cases being brought before the Supreme Court. In order to give the proposed High Court very large powers, the whole of the jurisdiction that can be conferred upon it in regard to original matters is proposed to be given under the Bill, and independently of that an attempt is to be made to practically take away original jurisdiction in Federal matters from the State Courts. The AttorneyGeneral has admitted that after a time business will be drawn from the Supreme Courts of the States to such an extent that an opportunity will be afforded for extensive economy in connexion with the States’ Judicature. In Hansard, page 10972, the honorable gentleman expressed the opinion that the High Court would -
Draw to itself naturally, and without coercion, a considerable share of the litigation which has hitherto flowed to the Supreme Courts of the States. ‘
To provide for this, extraordinary powers of removal are to be given. A defendant will have a right in any case, at any stage, to remove litigation from the Supreme Court of a State into the Federal High Court. That is centralization with a vengeance. What does it mean 1 It will permit a rich defendant to absolutely deny justice to a poor plaintiff simply by putting him to very great expense. Supposing that action were taken in the Supreme Court of Western Australia by a comparatively poor man against, a mining company in regard to some federal matter, the company might, as a right, on giving security, have the case removed from Western Australia to the jurisdiction of the High Court in the Federal capital. A rich defendant in such a case could force a poor plaintiff to come from Western Australia to a court somewhere in the backwoods of New South Wales. If the Attorney-General thinks that that is working in the direction of economy, I do not know what economy is. The proposal would involve centralization in the most aggravated form, and might resolve itself into a practical denial of justice. Under clause 45, it is provided that if either of the parties who desires to have his case removed from the jurisdiction of the State Court to that of the Federal Court has omitted to exercise his right at the earlier stages of litigation, he can do so at a later stage.
– That is, if he shows cause.
– Yes, but even with that reservation, there is nothing to prevent a rich man from availing himself of his right to have the case removed without any qualification whatever.
– But a Judge of the High Court would be able to sit in the State in which both the plaintiff and the defendant resided.
– Very true, but the Attorney-General proposes to cheapen justice at the expense of its efficiency. Are we to have substituted for the Judiciary of the States, which is effective now, one itinerant J udge of the High Court who may at long intervals be able to go on circuit? If the itinerant Judges are detained for any great length of time upon circuit duty, the High Court will either be undermanned or will have to delay the transaction of its business until the itinerant Judges can return to the capital. We shall be marring the efficiency of the Federal tribunal in order to bring justice to the doors of the litigants. If the Bill passes as it stands, it will bring about centralization in original Federal matters, will entail very great expense upon litigants, and probably crush out those who are poor. The original jurisdiction conferred upon the Supreme Court of the United States is very small. Upon this subject Willoughby says -
The large majority of cases are those brought thither by appeal from the lower courts. The cases requiring its original jurisdiction are now few in number.
Why, then, should we depart from the American precedent we have followed in creating a High Court, and propose to enlarge to the fullest possible extent its original jurisdiction, instead of, as in America, cutting it down as far as possible? Curtis remarks -
The most important class of cases under the original jurisdiction - in fact, the only class which has been of any practical importance thus far in the history of the court - has been suits between States, or betweena State, and the citizens of another State.
– And not between the residents of a State and the State.
– The Attorney-General mentioned such cases, and it struck me at the time that his statement was not in accordance with the authorities I have quoted. The cases to which they refer are those between one State and another, or between one State and the citizens of another State. The cases, therefore, which come before the Supreme Court of the United States are very few, and the tendency there is to cut down the original jurisdiction. The United States is a very large federation, embracing 45 States, with a population of 76,000,000, and a wonderful complexity of interests, and so they are able to bring Federal justice to the doors of litigants by means of subordinate appellate courts. There are nine districts with such courts, and there are also a multiplicity of district Federal Courts. The decisions of the nine local appellate tribunals are practically final, because appeal to the Supreme Court is allowed only in very rare cases, either as a matter of grace by the Supreme Court, or on the special certificate of the circuit appellate court. The Bill proposes to overcome the difficulty mentioned by me in regard to the probable centralization of justice under its provisions by the adoption of the circuit system. The objection which I have urged against that system is that its establishment will necessitate a cessation of the work of the Court of Appeal, if it is, as the AttorneyGeneral says, likely to have very much work during the first years of the Federation, or else result in the under manning of the Court, whilst two of the Judges are absent on circuit. It is also open to the still further objection that a tribunal consisting of one circuit Judge in a State deciding upon Federal matters would not be as efficient as would be the Supreme Court of any State if vested with Federal jurisdiction.
– It depends upon the State.
– I do not draw much distinction, in the matter of the efficiency of the Judges between State and State. It sometimes happens that the smaller States have the best Judges. In New South Wales there are seven members on the Judicial Bench, whilst in South Australia we have a particularly small tribunal, consisting of only three members. But it can scarcely be said that the judicial intellect brought to bear upon cases heard in the two States is in the ratio of seven to three. Nor are the State courts less intellectually fit to decide many questions than the High Court is likely to be. . Indeed, the probability is that the less efficient tribunal will be the High Court, because the State Courts are constituted of Judges chosen from the Bar in actual practice, who, as a rule, are not politicians. I understand that in New South Wales men in politics have absolutely refused to accept positions which seemed, as a matter of right, to belong to them, preferring not to occupy seats on the Judicial Bench, because their inclinations did not lie in that direction. There is nothing to justify the Attorney-General in hoping that the mental equipment of the High Court of Australia, which he idealizes from start to finish, will be superior to that of the State tribunals. Indeed, if one were disposed to be captious, he might say that the Common wealth will have to be content with- the residuum from the State tribunals, otherwise it will have to draft some of the Judges of the State courts to the Federal Bench. If so, I do not see why we should not utilize them at once by giving them complete Federal jurisdiction, and constitute from their ranks a court of appeal. There should be no difficulty in regard to the salaries to be paid to the members of this scratch court if it were established. It would only be necessary to give them a salary sufficient to cover any additional expense which they might incur in travelling. They would constitute only a court of an appellate character, and would not be required to sit once in six months. If in twenty years there have been less than twelve appeals in State matters to the Privy Council - and there is no likelihood of there being twelve more Federal cases - -surely the AttorneyGeneral will not say that the sitting of the appellate court will he continuous ?
– I believe that the Federal Constitution, and the laws under it, will create a great number of appeals. ‘
– If that be so, I wish that the electors had been informed of the fact prior to the referendum being taken. If they had imagined that the product of federation would be an increase in the amount of litigation, I venture to believe that they would have hesitated before voting in favour of Federal union. The perfection of legislation consists, first, in the justice of its spirit, and, secondly, -in the clearness and conciseness of its terms. If the result of our Federal endeavours is to improve backwards upon the action of the State Parliaments, and to provide such an amount of litigation that a new tribunal of this sort is requisite to deal with it, it is a matter for national concern. Personally, my opinion is in the other direction. We can only legislate upon the 39 subjects which have been delegated to us, and I am sure that not fifteen of them are matters of such common and pressing interest that legislation upon them will be frequent. Indeed 99 per cent, of the work of legislation still belongs to the States Parliaments, although it is true that a great deal of the important administrative work is undertaken by the Commonwealth. For example, the Postal department and the Customs department belong to the Federation, but there is only one Act to administer in each case, and therefore there is less likelihood of litigation ensuing than there would be if six ‘different Acts were being administered. By federating we have reduced to one short lucid Act the laws of six States in regard to the great administrative departments of the Postoffice, the Customs, and Defence. Proportionately there must be a reduction in the amount of litigation. Of course, the administration of the Customs department is more difficult since its jurisdiction was extended throughout Australia than it was in the case of any of the States, but the process of litigation is shorter and simpler, and that is the test we ought to apply.- It appalled me to-day when I heard the AttorneyGeneral gushing, as he did, over the possibility of an increase of litigation under this federal machine. My hope and belief are otherwise. I cannot see that there is any chance of the appellate tribunal being required to sit more than once’ in six months. If, then, we allow that the whole of the appeals from the Supreme Courts of the States - of which two-thirds go home direct in Canada - will be determined by it, and if we fix the number of Federal questions likely to arise at twelve a year - we shall not have twelve a year in Australia for many years to come - we shall have only twenty-four appeal cases as a maximum. Surely we do not require an appellate court to decide these cases. An appeal court will deal, not with the facts of any case, but with the law. It is not created for the purpose of dealing with facts. We are asked to create a High Court to decide important matters of law, and these often take up far less time than do nisi prius cases in which the matter at issue is one of fact. Some of the very biggest cases sent to England, though they may have to wait six or twelve months before being heard by the Privy Council, are decided at one sitting, because the well-trained judicial minds of its members go at once to the effective point for a decision. If there is to be a High Court in Australia manned by J udges of the capacity referred to by the AttorneyGeneral, in nine casus out of ten the sittings of that court will not extend beyond a day or two. Then we shall have a glorious tribunal to which we can address apostrophies as exhibiting the splendours of federation, while it is sitting in solitary grandeur and waiting for business to come to it. Thus, whilst on the one hand it might be an ideal subject for contemplation, on the otherit would appeal to theludicrous instincts of the people in the sorry spectacle of a tribunal of mighty potentates sitting in solitary and unused grandeur. In this connexion I might appeal further to the experience of Canada. I find that in the discussion which took place in the Federal Convention upon the appellate clauses of the Constitution, Senator O’Connor declared that during six years in Canada, whilst there were only ten appeals from the Supreme Court to the Privy Council, there were 23 from the courts of the Provinces direct, thus proving the two positions which I have stated; first, that the majority of appeals in State matters at all events will go, not to the High Court of Australia, but to the Privy Council; and, secondly, that there are some appeals still allowed from the Supreme Court of Canada to the Privy Council, there being ten in six years, or an average of about one and a-half a year. But the great leakage will tell against the use of the High Court of Australia as the court of final appeal. I regret it. I wish that we had abolished that right of appeal. I believe that when a little more development takes place, and when there are less political predelictions to be avoided on the part of the Bench, we shall be quite competent to decide all judicial questions that may arise. But we must deal with the position created for us by those who drafted the Constitution, under which an appeal, direct or indirect, is still allowed to the Privy Council. Everything therefore that the AttorneyGeneral has said regarding the ability of the local court, the desire to temper justice with a sense of local needs, and to amplify our jurisdiction where the Constitution is not sufficiently elastic to enable amendments to be effected, is so much beside the question because the Constitution is not framed in the way he approves, and which I would prefer.
– The honorable and learned member wishes to see a High Court established ?
– If it is necessary. Some honorable members think that it would be better to have an Australian tribunal interposed between the Privy Council and the State Courts. I have already pointed out that such a tribunal could be created at a comparatively trifling expense - an expenditure of a few hundred pounds a year instead of thousands of pounds. I am quite sure that the Judges upon the appellate court would require no more in the way of emoluments than would be sufficient to cover their expenses.
– Does not the honorable and learned member think that some court of that sort is necessary ?
– I do not think it is necessary at this stage. I do not believe, if it is desired, that the difficulties in the way of its establishment are worth a moment’s consideration. If we can make use of the Judges of the State Courts and constitute them an appellate court with a quorum of five, I am sure we shall get from the Australian Benches as efficient a tribunal as can be obtained in any part of the world. I say that without any disrespect to the Privy Council. Indeed, in justice to that tribunal - whatever effect the reference to the New Zealand case this afternoon may have had upon the minds of honorable members - I say that it is not every lawyer reading that decision - as I have read a seven-column summary of it - who would come to the conclusion that though the Privy Council might be wrong in its interpretation of the statute law of New Zealand, it was wrong in the final justice which it administered. I believe, as a matter of fact, that the courts of New Zealand were wrong, not technicallv, but in justice, and that the Privy Council, soaring higher, overlooked the petty technicalities of the local law, brushing them aside as possibly not existing. They could scarcely contemplate the position which existed in New Zealand, although it did exist under the local statutes. What was the position ? There was a grant made by a Maori chief for a charitable purpose, and as the machinery of making the grant effective the Crown was used. There was a surrender of the land to the Crown. The Crown was to re-grant the land to the Church of England for the purpose of a school. The school could not be established, and60 or 70 years afterwards, when the Maories could not possibly get it back, the Crown interposed to prevent the application of the grant to another charitable purpose. Originally the idea was charity. The representative of the Crown steps in and says, “ You are now asking the court in its equitable jurisdiction, as one charity cannot be established, to apply the grant to another charity which is nearest in kind to it” - a thing which is very often done by the Court of ChanceryandtheCourtsof Equity throughout the Empire. The Solicitor-Generalstepped in and on a technical point defeated the application of the trustees to have the charity to some extent carried out, and the land reverted not to the Maories, who really were the benefactors, but to the Crown. What did the Privy Council do? It brushed aside technicalities and sustaining the higher justice, the more liberal view, carried out the intent of the donors. So that when one reads that decision it is really due to the Privy Council to remember that although they may have erred technically, in regard to the reading of certain charters, regulations, and procedure in New Zealand, nine persons out of ten would have considered that they came through a mistake to the right decision.
– The great objection raised to the judgment of the Privy Council was based on the ground of the strictures upon the probity of the New Zealand Judges.
Mr.Deakin. - Alleging as an act of interference what was a statutory duty.
– I quite agree with my honorable and learned friends there. There are times when Homer himself nods, and even the rather matured gentlemen who sit on the Privy Council are occasionally apt to be a little off.
– Any very remote court must be on a subject like that.
– At all events, when such a judicial pronouncement was made - one which was open to such reprehension from the point of view of the reference to the calibre of the New Zealand Judges and the motives which actuated them - it shows that the effect of the decision must have struck the Privy Council as being particularly open to criticism. I would ask honorable members, then, to say that, from the point of view of appellate jurisdiction, it is not advisable or necessary to establish a fixed High Court with new Judges at salaries amounting to £15,000 or £16,000. Secondly, as regards original jurisdiction, it is not necessary, because the Supreme Courts of the States can discharge all the original jurisdiction in most cases better than could the High Court, and so far as America is concerned, they discountenance by Acts of Congress and the Constitution a centralization of justice such as is proposed in this Bill. The AttorneyGeneral has colleagues some of whom I might cite in support of my opinion, that we should for some years to come use, at all events in original matters, the existing tribunals. The Minister for Trade and Customs said in the Convention -
I think that our various Benches have no reason to fear comparison with courts in other parts of the Empire. We might with advantage utilize the services of some of these Judges in common with the new courts we propose to establish.
I know that he favoured my suggestion - and I think he spoke in its favour - of utilizing existing courts for all original matters, and a temporary court composed of State Judges for the purposes of appellate jurisdiction. We have too often, I think, relied upon the example of the United States. We ought to be grateful for the splendid suggestions that we have obtained from its Constitution, which is the true exemplar of our own.
But we must not be such pedantic legislators as to blindly adopt all federal analogies without consideration of existing circumstances. Right through that mistake has been made. Because a thing has existed in America it ought to exist here. We have had all these grandiloquent references to Marshall’s separation of the departments- “ The Executive executes “ - of course it does, what else could it do - “ Parliament makes, and the Judiciary declares the law,” “ the Judiciary is the keystone of the Constition,” and so on. These references and epithets are certainly applicable to the conditions of America, but are not applicable here, because we have and shall have a keystone to our Constitution, if a High Court is never created. But look at the position in America. At the time of the foundation of its constitution at the end of the con-federal days there was no Privy Council to keep the courts of the States in check. There were thirteen States, which, if I remember aright, had displayed towards one another the most extraordinary animosity in their mutual relations. In fact it has been stated by Lecky in his history that the movement which animated the men who founded the American union, and which led to the severance from England, was one dictated, not by the highest impulses of patriotism, but simply by the mere sordid consideration of personal advancement and personal interest ; and the same thing is perceptible after 1774, after the declaration of independence was made, because during the con-federal days it was with the greatest reluctance that a single con-federal concession was made by the State Parliaments. The courts absolutely refused to carry out the con-federal laws. Time after time they followed the suggestions of the Parliaments, and refused to regard as imposing any obligation on them the laws passed by the old confederation. For that reason the Federalist - that great series of articles which more than anything else, perhaps, helped to the acceptance of the Constitution - pointed out as the chief necessity for the establishment of an independent tribunal, the fact that the State courts were reluctant to regard the old con-federal laws as laying the slightest obligation upon them. At page 507 of the Federalist it is stated -
State Judges, holding their offices during pleasure or from year to year, will be too little independent to be relied upon for an inflexible execution of national laws.
The position is absolutely non-existent in Australia. Why should there be all this distrust of local tribunals 1 The AttorneyGeneral seems to approach a State tribunal with positive suspicion. Only the other day you had a decision by the Chief Justice of Victoria as regards certain provisions of the Customs Act, and immediately afterwards three Judges, constituting the Full Court, unanimously reversed that decision and established the validity of those sections. In that case was there the slightest leaning towards State matters 1 The occasions upon which the personal interest or the State interest of a local tribunal can become operative will be almost infinitesimal. Can honorable members conceive of cases in which the impulse of local patriotism will sway judicial decisions ? When will it arise ? Do honorable members think that your State tribunal would be locally biased on such a question as that of the rivers 1 However strongly I feel with tlie position of South Australia, I would not for a moment distrust the Judicial Bench of New South Wales in giving a decision. It is possible for South Australia to test the question of riparian rights in the courts of Victoria, or in the courts of New South Wales, and I am sure that’ there would not be the slightest fear of local partiality influencing the decision. But are you sure that your federal tribunal will be so pure in the beginning ? Human nature is what it is. No matter from whence you may take your men, there is an unconscious bias, do what you will, amongst politicians. If there is to be .any colour given to judicial pronouncements from old political leanings ; if the spirit of the battle in the arena of politics is to actuate the cool determination of the Judge on the Bench, there is far more likelihood of that being done in a High Court of Australia than in any State tribunal, for the simple reason, possibly, that some men who were in the active arena of politics at the time of the framing of the Constitution, who were in the Convention, may find their way on to the Bench. Was Marshall a member of the Convention that framed the American Constitution 1
– I believe he was.
– He was a member of a State Convention that urged the adoption of the Constitution, but he was not a member of the Convention that drafted that document.
– I would not be sure of that.
– If I am not mistaken it was one of the special qualifications of Marshall that he came to that Bench with an original purity of mind and brilliant intellect, absolutely unaffected by the unconscious bias of old political predilections. So that if there is to be a comparison made, I think it tells rather against the case set up by the Attorney- General than for it. Again, why should we not equallyprotect the States against the encroachment of the Federal power, if there is to be the possibility of an interference on one side or the other ? Why are we always to sit down and protect the Federal view of matters as against the State view ? In America there was some reason for it: the Constitution was declared to be thesupremelawof the land. It is not so declared with us. The necessity for the creation of this tribunal does not exist, because under covering section 5 of the Act the Judges of all State courts must cany out and obey the Constitution, and every statute passed under its provisions, unless the jurisdiction is taken away, and that of course is what is proposed to be done to some extent by this Bill. If there is to be protection, why should it not be extended all round ? Why state that you must have a tribunal that will probably amplify according to your growing necessities the interpretation of the provisions of the Constitution? That was justifiable in America. There the benefit of a doubt must always be given by the Constitution to the conservation of Federal interests, because it is declared by the text to be the supreme law of the land. For that reason nearly all of the constitutional decisions of Marshall - all, I believe, except one - were unchallenged, because, however strong may have been the State view advanced, if a doubt did exist, he was bound to sustain the Federal aspect of the Constitution. But the same provision does not exist here. In America the amplification was condemned by some statesmen. It may have been justified by the difficulty of amending the Constitution. I do not think there have been more than fifteen amendments in the course of 100 years, although scarcely a year passes that there is not some suggestion for an amendment of the Constitution, but it is practically in a strait-jacket, utterly incapable of elasticity, and the consequence is that whenever an opportunity arises for meeting growing necessities by a judicial pronouncement, great Judges like Marshall take advantage of it, but not without some challenge. In the beginning of the last century Jefferson condemned this tendency. He spoke of -
The spectacle of the Judiciary, in the enlargement of its powers, advancing its noiseless steps like a thief over the field of jurisdiction.
Take the Dartmouth College case which was decided in 1818. When there was a certainty that it would have been against the Federal view by five to two, the Chief Justice suspended the decision of the court for twelve months. In the meantime the political aspect of affairs that had been reflected in the court in the first place was viewed right through the States. There was an agitation on the question - a political ferment over the land that the decision ought to be taken. The outcome - I do not know whether it was in consequence of that or not - was that the decision which was believed to be by five to one in one direction before it was suspended was changed into a majority the other way at the end of the year. There was a case of amplification of jurisdiction. Do members justify that? I mention this to show that you must not be deluded into thinking that Federal necessities are supreme under the Constitution. State rights may be of equal obligation upon whatever Judicature you have to propound the Constitution. The AttorneyGeneral to-day referred to the Convention. I might mention that when the question of the retention to the appeal to the Privy Council was discussed there were members of the Convention who thought that, if the appeal was not abolished, there would be no necessity to create the High Court of Australia. This opinion was expressed by men whose authority will be accepted. I quote from the report of the Adelaide debates of the Convention, page 984. Senator Symon said -
Ifyou strike out this clause -
That is the clause to take away appeals to the Privy Council - practically to abolish them. - on whichwe are engaged, then I for one am certainly prepared to go for certainly a modification, if not the absolute repeal of the provision with regard to establishing the High Court.
That clause was struck out. The final divisions in Melbourne meant the retention of the appeal to the Privy Council, so that really in effect the very alternative on which Senator Symon, who was the Chairman of the Judicial Committee, would have objected to the establishment of the High. Court, was the one finally adopted. A little later on he says -
If yon take away this power you will give it practically nothing.
Exactly what I am saying. We have taken away that power.
I would like, some honorable member to say what this High Court of Australia will have to do.
Have to do, when 1 If you do not sever the link that connects us with the Privy Council. We have not severed the link. These are conjectures put by men of competence, trained forensic intellects - by, for instance, the Chairman of the Judicial Committee, who was bound to look after the High Court provisions of the Bill, and who was a strong advocate for abolishing the appeal to the Privy Council, which was not clone. Then take the leader of the Opposition, the right honorable, member for East Sydney, who, at page 976 of the debates of the Adelaide Convention, says -
It occurs to me that we really in this matter only have the choice between a Federal Court-01 Appeal without an appeal to the Privy Council, or no Federal Court of Appeal at all : . again stating that if you do what you have done you do not require to create this Court. I think nothing can be more potent in upsetting the position of the Attorney-General than the pronouncements of leading federalists like those. Some honorable members think that if this High Court were created, matters such as the railway dispute which recently occurred in Melbourne would come within its competence. They would not. The court would have 110 power to settle such disputes. You may, if you like, pass an arbitration law applying the federal jurisdiction to disputes that extend beyond the limits of any one State.- Then, perhaps, the interpretation of such a law would come within the power of the High Court or of the State courts. But you do not require to have a High Court for that. It is a mistake to believe that such questions would assume a different aspect were the High Court of Australia established. Great questions are often settled in a wrong way, under a misapprehension of facts like that. What I would state, then, is that you do not really require for some years to come any other tribunal than the Privy Council to reconcile the divergent decisions of State tribunals. The AttorneyGeneral says that if you have those courts deciding Federal cases, you may have a decision at the outset given by one of the weaker tribunals settling the law until some other tribunal has given a decision the other way, and the Privy Council has adjudicated, and that an interval of, say, eighteen months, may occur before the final decision is given. But you have no reason to assume that the weakest decision will be given in the beginning, or that the Supreme Court of any State will be intellectually so inefficient that the decision which it gives will be wrong. Take the case of Queensland, which is one of the smaller States. Could there have been a more dispassionate judgment or one more impartial in its pronouncement than that given in the long Customs case in which the firm of Robert Reid and Co. was concerned, by a local tribunal the other day in Brisbane % I am not speaking of the merits of the case at all, but I do say that the decision given was one with the Federal note in it. It was given in favour of the Federation. That was a decision of one of the State Courts, some of whose decisions are now open to ridicule on the ground of the comparative insignificance of the States over which the courts preside. But there is one other point to which I may refer, namely that if you get a decision of your High Court, whether it is good or whether it is bad, there are no other courts to correct it except the Privy Council. If you have a decision from a weak local court upon some case it is open to you to check it by an examination of the decision in other States Courts. But when you have a decision from a High Court, if it is a weak one there is no other local court to which you can take it. So that the argument of the Attorney-General is a bad one to advance at all, and when it is advanced it is capable of being turned to other purposes than the Attorney-General thought. If you do wish to create an Australian Court it can be created from the Judges of the State Courts. I think it ought to be invested only with appellate jurisdiction, except with regard to the matters arising under section 75, where large interests are concerned. But they would be very few. If a matter like the rivers question should arise, original jurisdiction might be given to a State tribunal in respect to the case, and the decision in the one case would practically stand for ever. You are not going to have a High Court of Australia deciding on the rivers question every ten or twenty years.
– That question will be decided politically.
– I think it will. I have too high a sense of the liberality of the Federal Parliament to believe that they think that cases like these need not be subject to the process described by the bard in the lines -
Right and wrong,
Between whose endless jar justice resides.
My own opinion is, that after the interchange of opinions that must arise, the good sense of the Australian Parliament will enable the rivers question to be settled, to the satisfaction of the State Parliaments, without an appeal to the law at all. One leading decision upon the question of the rivers will settle it practically for ever. That was the one question mentioned to-day by the Attorney-General : the one great State question. The expense of calling this tribunal into existence for settling the rivers question would be more than the cost of its solution by locking the rivers. If you have to speud £30,000 or £40,000 in the beginning in order to settle the rivers question by establishing the High Court, that sum might just as well be expended as interest upon the cost of locks which would effectually settle it in another manner. There are a few other matters to which I wished to refer, but I find that by the riper wisdom of the Ministry the points which I intended to make have been anticipated in the form of amendments in this Bill. There was the question of the right to proceed against State or Commonwealth, which ought to be embodied in the terms of the Bill, and that has been done by an amendment. I have endeavoured, Ihope with judicial impartiality, to put what can be said against the immediate creation of this Court. I feel that we do not require it for appellate jurisdiction, and that we do not require it for original powers ; that it can only have a large original jurisdiction by encroaching upon duties which can quite as effectively, more expeditiously, and certainly far less expensively, be discharged by the courts of the States’. Believing this, I think it is certainly my duty not to allow this Bill to get into committee, where, between various suggestions of amendment, the Government will ultimately succeed, but to vote against its second reading.
– Whatever is our opinion with reference to this Bill, I think we all recognise that it has been put in the most attractive manner in which it could be put by the Attorney-General. After listening to him, though opposed to him, I felt like a wicked man to think that I could possibly say a word against a proposal put forward in such a nice manner and in such nice temper. I felt that if I had had £30,000 a year myself I would have given it, rather than that he should be disappointed. But at the same time we are dealing with the money of others, and not with our own, and we have to bear in mind the very critical position of affairs, in several of the States at least. I may say, by way of further preface, that if I felt that by delaying the creation of the High Court we should curtail the efficiency of the Federal administration, or should cripple the Federal Government in carrying out its duties, expense or no expense, I should go for it. But after giving the subject my best consideration, I think that we are very well as we are, and might let things be as they are, giving a certain small measure ofjurisdiction to the Supreme Courts of the States. There was a question which I asked two years ago in this House, and which has not been answered yet. It is this. What is there which the High Court will give which you cannot get at present by means of the Supreme Courts of the States, with the Privy Council to keep the decisions uniform? The learned Attorney-General has not answered the question. Everything that can be done by your High Court, if it wore created, in its original jurisdiction - that is to say, when it is invoked to in the first instance - can be done by the State Supreme Courts, and be done quite as well. Everything that can be done by the High Court upon appeal from the Supreme Courts can be done better by the Privy Council, under present circumstances. The learned Attorney-General dwelt a good deal upon the different climatic conditions of Australia and England. I admit them.
– On the question of riparian rights, for instance.
– The Attorney-General speaks of the Privy Council as not being familiar with climatic conditions, although it has to deal with appeals from Singapore, from the Gold Coast, from Jamaica, from Canada - from all parts of the world, cold, temperate, and hot. Why, sir, there is no court in the world which has so much to do with tropical climates as the Privy Council in England. So far as I know, the only honorable member who has ventured to give anything like an answer to the question which I put is the honorable member for Tasmania, Mr. O’Malley. He has rushed in where the Attorney-General has refused to tread. He thinks that the High Court by some means will make inoperative laws of which he disapproves. I understand that he regards the Bill introduced in the Victorian Parliament in connexion with the recent railway strike as being the offspring of panic, or hysteria, as a kind of affront to the principles of British liberty, and as an insult to the people of Australia. He may be right or wrong - I think he is right - but at the same time I must say that he is labouring under a delusion. I am quite sure that the Attorney-General - honest as the honorable and learned member is - will not encourage him in that delusion.
– I answered the question put by the honorable member in the negative.
– I was sure that the honorable and learned gentleman would do so. There are many cross-currents, many delusions and illusions in regard to this matter, and after all we have to go back to bed-rock, and see what will happen if we fail to do what we are asked. I find that similar illusory views are at work in the minds of a great many honorable members from different States. There are some who are dissatisfied with the way in which justice is administered, say at Perth or at Hobart, and have some feeling against some of the Judges for the time being. But it must be remembered that we are legislating permanently.’ If we once create a High Court it will remain for all time. We shall give a life tenure to the Judges, and we shall have to keep up the court from time to time by a regular succession of members to the Bench. The worst feature of it is that we all appear to pay regard only to the morrow, whereas there will be almost perpetuity in regard to these proposals. I am very glad to find that many lawyers, not only in this House, but outside, are going against this Bill. I find that even the law journals are writing against it.
– This Bill gives no advantage to the lawyers.
– Quite so. But there will be an advantage to the lawyers if the Bill be carried.
– I shall appeal to any one to confirm my statement. There is a distinct advantage to every lawyer in keeping as much legal business as possible in Australia, and the object of this Bill is to keep business in Australia as far as it is possible for the Bill to do so.
– Hear, hear.
– The Bill will not only remove some of the leaders from the competition of the Bar, but it will also have the effect of giving every member of the Bar an extra chance of obtaining valuable and profitable work in the High Court.There are other advantages, and I say that it is to the credit of the profession to which I have the honour to belong that a very large number of its members have set their faces againstthe proposal. I do not think that this measure should be dealt with in any party spirit. I believe honorable members on both sides of the House are disposed to treat it as a very grave matter which ought not to be dealt with on party lines.
– It is a matter of justice, and therefore above all party considerations.
– Quite so. There is nothing to be gained by either of the three great parties in the House, and although discouraged by the fact that the Government as a whole, as well as the leader of the Opposition, and the leader of the labour party, have declared in favour of the Bill, I still consider that there is a very good chance of the Bill being rejected on the second reading. I desire to put a few considerations before honorable members. There are two objects for which the High Court is to be established. One of these is that it shall deal with Federal constitutional subjects, and with laws made under the Constitution ; the other is, that it shall take the place of the Privy Council in dealing with appeals. I do not think there is anything else which can be had. As a court of appeal I favoured the creation of this court at the Convention. If any one is curious enough to examine the votes of the Convention, he will see that I persistently voted in favour of a High
Court - a High Court occupying a strong position - from which there could be no appeal to the Privy Council, and which could not be ignored by an appeal direct from a State Supreme Court to the English tribunal. But owing to a mistake made in the final revise of the draft of the Convention Bill, the right of appeal to the Privy Council from the Supreme Court of a State was left optional. It was not taken away. I have a draft of the Constitution Bill as framed at Adelaide, and it was provided in clause 75-
No appeal shall be allowed to the Queen in Council from any court of any State, or from the High Court or any other federal court.
By a mistake in the final framing of the clause, that provision was omitted. The attention of the leader of the Convention, as well as that of the Chairman of the J udiciary Committee, was called to the matter at the time, and they assured the Convention that there was no mistake, that there was no optional appeal. It now transpires that there is an optional appeal. Not only is that so, but as the result of the amendments which were made by the Imperial Parliament at the suggestion ofLord Halsbury and the Imperial Government, it has been placed beyond all doubt that there can be an appeal to the Privy Council direct from the Supreme Court of a State, thus ignoring the High Court. Any one who looks into the matter will see clearly that nothing could be more damaging than to have two courts to which parties can appeal from the same judgment. A litigant wants to win - that is his chief object - and he will select a court in which he has the best chance. The man who appeals has the option.
-What does the honorable and learned member mean by “ the best chance” ?
– The court in which the litigant thinks that the minds of the members of the Bench are inclined towards his way of thinking. Of course honorable members will recognise that all men have idiosyncrasies, and that it is possible to learn the idiosyncrasies of a Judge just as you can learn the idiosyncrasies of a schoolmaster. A litigant will go straight for success, and if he does not find any difference between the High Court and the Privy Council in that respect, he will go for the court which gives finality. He will go for the court which is the stronger, and the court which answers both conditions of being the stronger and of giving absolute finality. That is the Privy Council. Although for a time it will be found that, for the mere novelty of the thing, some men and some institutions will go to the High Court, in the end they will prefer to go to the Privy Council for many years to come. There is nothing which a litigant deplores so much as the losing of his case ; next to that he hates to have his action long drawn out, and objects to any uncertainty as to whether an appeal will be final or not. May I also remind the House that even on constitutional points the High Court can be ignored? If a man is beaten on a constitutional point, or upon the interpretation of some federal law, in the Supreme Court, say, of Sydney, he may give the go-by to the High Court, and go straight to the Privy Council. Those who have read the Convention reports will remember that nearly all the banks and financial institutions, nearly all the large boards or organizations, petitioned the Convention to allow the appeal to the Privy Council to remain. . I can tell honorable members from my own experience that the principal appeals from the Supreme Court of the States to the Privy Council are on the part of big organizations. Those organizations will prefer the Privy Council, and if they can flout the High Court, they will.
– Because an appeal to the Privy Council is more costly, and prevents the other side very frequently from carrying on.
– I think the honorable member is under a misapprehension. I have the scale of costs taxed in the Privy Council for the last five years, and the average cost for an appeal is £210. I do not think an appeal to the High Court could be conducted for much less. There is a clause in this Bill which is designed to meet the difficulty, and to compel all constitutional points to be brought to the High Court. I refer to sub-clause 2, paragraph (6), of clause 41. I need not go into it in full detail. The Attorney-General will, I know, admit that the clause is an effort to compel litigants who appeal from the Supreme Court to bring their cases straight to the High Court in all matters involving a constitutional point. I venture to say that that provision, if passed, would be ultra vires, and that we shall not have the High Court as an arbiter on constitutional points. Some grand language has been used in reference to this court being the final arbiter of the Constitution. That may be advisable, but the Government have not got out of this difficulty. We have to deal with the facts, and to face them. The facts, as they are present in the Constitution, amount to this : That a man who desires to appeal from the Supreme Court, whether on a constitutional, or commercial, or other point, can flout the High Court and go direct to the Privy Council. I repeat that this paragraph or sub-clause will, if passed, be ultra vires, and, more than that, I am willing that it should be submitted to . any impartial lawyer who is not interested, and to abide by his decision. I assert that there is no power to pass paragraph (b), and that it will be nugatory and ineffective.
– Have we no power to do so under section 77 of the Constitution?
– The Attorney-General was good enough to fully explain to me what he meant, and I have come to the conelusion, after looking carefully into the matter, that this provision which seeks to retain constitutional points for determination by the High Court exclusively would be ultra vires. That is my deliberate conclusion, although, of course, others have a right to come to an opposite opinion.
– Does the honorable and learned member say it would be ultra vires, notwithstanding section 77 ?
– Yes. I find that there is a great misapprehension in regard to constitutional points. There is a kind of current phrase - “Oh, we will leave the State laws to the State courts, and the federal laws to the federal courts.” But we cannot do anything of the kind. Our laws, whether made by a State Parliament or by the Federal Parliament, are one and indivisible, and wherever a case arises, whether in the State Court or the High Court, effect must be given to the law as it stands. . The Australian court will have to give effect to the States laws, and the State courts must give effect to the federal laws. For instance, an assault case may be heard at the Port Melbourne police court. In that case, though it appear to be a very simple one, there may be raised the question of a right under a federal law. For instance, the man charged might say, “I was there doing a certain act by virtue of the federal law. I was employed by the
Customs,” or something else of that kind. We can never tell when a constitutional point will arise, but any court before which the case comes must decide it some way or other. Even a Police Court or a County Court, as well as a Supreme Court, must decide any constitutional point that arises no matter how grave it is, subject of course to the power of appeal. There is a case in point which provoked a great deal of interest some years ago in California and which was known as the “Pigtail Case.” What happened in that case was that a Chinaman brought an action against a man for having cut off his pigtail. The man who was defendant in the case was a sheriff of the county and had charge of prisoners and of the gaol. He raised a constitutional point at once, and said that there was a State law which enacted that every prisoner within a certain time after his coming into the gaol should have his hair cut off within an inch of the scalp. That looked very harmless, and, at first sight, the case appeared very simple. But the Chinaman brought evidence to show that that particular law of California had been enacted for the express purpose of interfering with the immunities and privileges of Chinamen as citizens of the States : and under the 14th amendment of the Constitution of the United States, it was held that the sheriff had acted illegally, and he was mulcted in damages. What I desire to show is that we cannot divide the law up in the way suggested. We must take the laws as we find them, and we must in the State courts apply the federal laws just as in the Australian court we must apply the State laws, whenever they arise and are relevant to the facts of the case. We must apply the appropriate law no matter where it originates. It is quite true that there is a power of removal at certain stages which must be canvassed very closely, but I shall leave its consideration to the committee stage, should the Bill ever arrive at that stage. There appears to be some mystical notion that a distinctive federal court is essential for all federations. What is more natural than to say that there should be an Australian court as well as an Australian Parliament for an Australian people? But in Canada they have no distinctively federal court at all, and they have done very well for forty yearswithout it.
– They have a Dominion Court.
– Quite so, but it is not a distinctively federal court.
– It is practically the same thing.
– With all respect to the right honorable gentleman, I am speaking advisedly when I say that it is not at all the same thing. At page 514 of Clement’s Canadian Constitution, the author gives the 101st section of the British North America Act. The words are these -
The Parliament of Canada, may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance, and origin of a general Court of Appeal for Canada and for the establishment of any additional courts for the better administration of the Laws of Canada.
There it is made clear that they have a Court of Appeal for Canada that is not a distinctively Federal Court at all. There is power, it will be seen, to establish additional courts for the better administration of the laws of Canada, but no such court has ever been constituted. The fact is that they have never felt any need for them, because they know that their provincial courts, their police courts, county courts, and district courts have full power to deal with all matters, subject, of course, to the right of appeal. Then at page 228, the same authority says-
It is almost unnecessary to say, there was no limitation of jurisdiction in any provincial court, along any line identical with, or in any sense analagous to, the line of division now existing between matters within the legislative competence of the Dominion Parliament, and the provincial legislative assemblies, respectively.
There is no such line of demarcation between the courts of Canada. Clement also says, at page 229 -
The phraseology of the last clause of this section is a clear recognition of the fact that the provincial courts would necessarily be called upon to administer the laws of Canada, as distinguished from the laws of the various provinces, and the provision was inserted with a view to the better administration of those Dominion laws through the medium of additional courts established by the Dominion Government should occasion arise.
Thenhe says at page 230 -
The only additional courts which have been established by the Dominion Government are the Exchequer Court of Canada and the Maritime Court of Ontario, each with a specially limited jurisdiction sufficiently indicated by its name. But any duly created court, no matter by what authority created, or no matter by what authority the different parts of its machinery may be supplied, may be called on to determine cases involving the application of either Dominion or provincial law.
Then at page 231 he shows how provincial courts and Judges can be compelled to accept any new jurisdiction, not by virtue of any words used in the Constitution, but simply because there is a power to impose any duty upon any person within the whole of the Dominion for the purpose of carrying out the law. At page 234 he says -
However constituted, the provincial courts have, we again repeat, to administer Dominion as well provincial law.
I think I have established clearly, so far, that there is no distinctively federal court in Canada. There is an appeal court which is not for constitutional subjects, though it may entertain them, but simply for appeals from the lower courts. In Canada, therefore, we have no precedent for the proposal that is being made here. And I do not think that Canada has done badly. I think the people there are as prosperous and progressive as we are. I think that the outlook for Canada is quite as good as the outlook for Australia as regards material resources and everything else, and having regard to material development it looks as if Canada, in the matter of population and so forth, will be able to hold her own even with the great United States of America.
– They have there a much nearer approach to uniformity in legal procedure than we have.
– Canada has frosts and Australia has not. Canada has furs and Australia has not.
– I spoke of legal uniformity.
– But the honorable and learned gentleman desires us to draw a line here between courts which administer federal law and courts which do not, although they do not follow that practice in Canada. They have had in Canada to deal with the same difficulties as are before us as to the respective jurisdictions of the Federal and State Parliaments, but they have found no occasion for the distinctions proposed to be made here.
– They have an appellate court.
– It is purely an appellate court, and they have the right to appeal from that court to the Privy Council.
– There is also the right of appeal from the courts of the provinces.
– Yes, and a very good illustration was supplied by the honorable and learned member for South Australia, Mr. Glynn, when he pointed out that there were very many more appeals from the provincial courts of Canada to the Privy Council than to the High Court of Canada. I next desire to give the reasons why, in the United States of America, they have a distinctively Federal Court. Probably honorable members have read Bryce’s work upon the matter, . but they can refresh their memory, if they are curious, by looking at page 228 of the first volume of his AmericanCommonwealth. He gives in a few words the reasons why, in the United States of America in 1789, they created a distinctively federal court. He says -
Now that a Federal Legislature had been established, whose laws were to bind directly the individual citizen, a Federal Judicature was evidently needed to interpret and apply these laws and to compel obedience to them. The alternative would have been to intrust the enforcement of the laws to State courts. But State courts were not fitted to deal with matters of a quasiinternational character, such as admiralty jurisdiction andrights arising under treaties.
Now, first of all I am sure that that does apply here, because our Supreme Court Judges deal with the Admiralty jurisdiction. A Supreme Court J udge in each of the colonies - at all events, it is so in Victoria - is the Admiralty Judge under the Admiralty Acts. Then as to State lights under treaties, there are very few such cases arising here. They arise in connexion with extradition cases, and the Supreme Court Judges deal with them and’ have been found able to deal with them. Bryce says, speaking of these State courts, that they supplied no means for deciding questions between the different States. I should like to know what litigation there could be between the various States of Australia. We have been quarrelling with South Australia for 40 years about a piece of land as big as that referred to in Hamlet, for which two armies destroyed one another. We have never gone into a fight nor into litigation upon it.
– The Minister for Trade and Customs threatened a fight a little while ago.
– So far that has never been brought into litigation, and I desire to ask practical men, is it likely when the matter has never given rise to litigation, though we have had the Privy Council to appeal to, that the parties interested will go to litigation before the High Court? Then with regard to the Murray river navigation. That question so far as I can see will be settled, not legally, but politically under the Constitution of Australia.
– Even if it be settled legally, the Privy Council would be considered the more impartial body by the opposing States.
-The honorable and learned member is quite right. If we want impartiality, the further afield we go, the better.
– Then why have not English appeals been sent to Australia for decision ?
– Simply because I suppose it is an historical fact that they have had their appeal court established and have seen no reason to change. We cannot expect in a small community like this to have men of the extreme training and familiarity with cases of all sorts which may be gained in London which is the financial capital of the world, and which has been for years the place where the biggest friction of interests has occurred. Bryce goes on to say, speaking of State courts -
They could not be trusted to do complete justice between their own citizens and those of another State.
I can appeal to any one who knows our Supreme Court Judges, to say that that does not apply here. In 1789 there was no communication by railway, and a few canals, and very little communication generally between Georgia and Massachusetts, and there was as much rivalry between them as there would be between two foreign countries like Russia and England. Of course, there was a strong spirit of State loyalty in such a case, but our Supreme Court Judges have no more loyalty in Victoria to Victoria than they have to Australia as a whole. There is here no such feeling. Bryce further says -
Being under the control of their own State Governments they might be forced to disregard any federal law which the State disapproved ; or even if they admitted its authority, might fail in the zeal or the power to give due. effect to it.
That does not apply here either. When the people of the United States framed their constitution they had before them the possibility of grave miscarriages of justice occurring from the fact that the Judges had not a strong and permanent tenure. I gave an instance the other day - the case of Trivett versus Weedon. Because in that case the Judges decided that a law of Rhode Island was void, the Rhode Island Legislature actually refused to renew their annual appointment. That case with a few others was in the minds of the framers of the constitution of the United States. The feeling then was that where you have Judges dependent upon the Legislature for their annual appointment, you cannot trust them to do justice as between a State and its Legislature on the one side and the great federal power on the other. Mr. Bryce continues -
And being authorities co-ordinate with and independent of one another, with no common court of appeal placed over them to correct their errors, or harmonize their views, they would be likely to interpret the Federal Constitution and statutes in different senses, and make the law uncertain by the variety of their decisions.
But the people of the United States, when framing their Constitution, were in a position very different from that in which we are now. They had, by their rebellion, lost the right of appeal to the Privy Council. But we still have that right, and it may be relied upon to produce uniformity in the decisions of the courts. Of course, it is possible that the Judges of one State court may take a different view from that taken by the Judges of another State court ; but once a decision had been given by a State court, the Judges of every other State court would consider it carefully, and would endeavour to ascertain the reasons which weighed with the Judges who gave it. In this way one court would keep another in check. Furthermore, all the courts would be anxious to have their judgments commend themselves to the Court of Appeal. But the best corrective for wrong judgments is a strong and critical bar, and that corrective is as applicable to’ our Supreme Courts with their permanent tenure as it will be to the High Court. I feel that the reasons given in the United States are by no means applicable to a country like Australia, where, notwithstanding all our faults, the Bench is strong, respected, and self-respecting inasmuch. as it always likes to have its judgments commend themselves to a strong Bar. The High Court will not be stronger than the State courts are under present conditions, and it will not be so strong as is the Privy Council. I will read to honorable members what Mr. Justice Richmond, of New Zealand, wrote in a letter which he sent to the convention of 1897. Although’ his letter did not cause me to alter my vote, I felt that there was a great deal of force in what he said.
It is no disrespect to the Australasian benches to say that the chances are against our being able to furnish a court of appeal equal in legal attainment to the highest English courts. Of course, we may produce great jurists here, and, please God, we shall. But the present area of selection for the bench is a very narrow one. English Judges, on the other hand, are taken from amongst the leaders of a’ numerous bar. They have had their ability tested in practice at the greatest business centre in the world, and have succeeded in a competition with which the colonies have nothing to compare. The composition in late years of the Judicial Committee may not have been entirely satisfactory - on that subject I have a word to say - but important appeals to the Queen in Council are generally attended by some of the most eminent English Judges.
It would be a dead loss to both bench and bar if the legal standard to which we have now to submit ourselves were removed - as in great measure it would be were decisions here rendered final. I should be sorry to see the judgments of lawyers, reared in our comparatively narrow circle, become our most important authorities. I say this, fully recognising the excellence of much judicial work amongst us. The public is more interested than it knows in maintaining the highest scientific standard in the administration of the law. The intellectual interest thus created in the profession is one of the best guarantees for purity of administration. Thoroughbred lawyers are supremely anxious to be right in. their law. They may not always succeed in freeing themselves from class prejudices and party ties, but their interest in abstract law makes them generally incapable of showing favour to individuals.
I have known cases in which Judges who had strong social and political prepossessions, have been constrained by their sense of justice and of logic to decide against their sympathies. The settling of a point of law becomes with them oftentimes like the discussion of a mathematical problem, in regard to which it is not possible to take any party view at all. They deal with points of law as they would with algebraical problems. I do not think the AttorneyGeneral wants to have his Constitution interpreted as he would like, by a partial Bench ; I am sure he wants to have it interpreted by an impartial Bench, of wide sympathies and with broad ideas. Now, there will be no saving of ‘expense to litigants by the setting up of a High Court. Let us take the simple case of an appeal to the High Court when it is sitting in the federal capital. Do honorable members think that counsel could be retained to go to Bombala, to Orange, or to some other town out in the bush, for smaller fees than would have to be paid to retain English counsel to step across from Chancery-lane to the courts of justice at Westminister ? In tlie second place there will be no saving of delay, or, if there is any, it will be very little. It is true that a long interval often elapses now between the decisions of the Supreme Courts of the States and those of the Privy Council. But let us look into the matter fully. It is to be remembered that litigants have at least three months in which to find the security it is necessary to obtain before a case can be sent to the Privy Council. Then a transcript has to be made, and that again takes time. But very often litigants- postpone the sending Home of a case in order that a settlement may be come to, and pending the negotiations for a settlement nothing is done. A case was brought under tlie notice of the Convention in which no less a period than three and a-half years were allowed to elapse before the appeal was sent Home. Therefore the delays are not so much the fault of the Privy Council, though there are some- delays there which might be rectified ; they are due rather to the action of litigants to whose advantage it is to have the cases settled. I have known these cases to be well settled in the interests of both parties, and I think that the more cases are settled the better it will be. I find that in 1897 costs were given in 50 Privy Council appeals, and that they were taxed at an average sum of £210 14s. 7d. for each case. I do not think appeal cases will be settled more cheaply in the High Court. Then with regard to the economy which could be practised by the States if a High Court were created. I do not believe in spoiling the ship for a barrel of tar, and I should strongly support the proposal to create a High Court, even though it meant a big expenditure, if I felt that it would render our federal system more complete and more workable. But, while we want to make our craft tight and workmanlike, we do not want it to be useless and ornamental, and there would be very little use or ornament in a High Court at the present time. It is proposed to pay the five Judges who are to be appointed £.15,500 a year, and travelling allowances. As they will have to travel throughout the States, and will have to take with them their associates and a largo body of officers, the allowances will amount to a large Sum. The expense of visiting Western Australia or Tasmania, for instance, will be very big, though, perhaps, as part of the scheme, the transcontinental railway should be made, in order to lessen the cost of visiting Western Australia. The Bill itself contemplates an expenditure which, I venture to predict, will be much beyond £30,000 a year. There are, first, the Judge’s salaries to be provided for. Then there is to be a central registry. That office will require the renting and furnishing of rooms or the construction or purchase of a building, and tlie appointment of officers. Then there will be taxing officers, and in each capital a district registrar.
– We think that we shall be able to get the State officials to act.
– Surely, on the honorable and learned gentleman’s own showing, it behoves us to be completely independent of the State authorities.
– We cannot afford to be so yet.
– In Victoria they have so long ceased to be liberal, that they will take good care to charge rent for any property occupied by federal officials. Is the Attorney-General going to erect special gaols for federal prisoners % In America the federal authority has special gaols, and I should like to know what right a federal Judge will have to commit a federal prisoner to a State gaol? I apprehend, too, that we must have a federal police. They have federal police in America, and why should not we have them 1 We shall alsorequire federal public prosecutors and federal district attorneys. They have all these officers in America, and we must provide for similar officers here. We must havealso a marshal and deputy-marshals.-
– The State sheriffs and their officers will act for us.
– Why cannot the honorable and learned member extend that principle to the State J Judges, and let them do our work, too 1
– All tlie State officials, with, the exception of the State Judges, are good enough for our work.
– Yes. The only State officials whom the Attorney-General will not trust are the State Judges.
– Unless they are appointed Federal Judges.
– An expenditure of £30,000 a year will not cover the total cost of the Federal Judiciary, even in the beginning. All departments of State tend to increase in cost, because there are always plenty of hangers on, and plenty of billets to be filled. It is wonderful how many things are found to be wanting when you commence to keep house in this way. If £30,000 is to be the total expense, Victoria’s proportion will be about £10,000. If I am not mistaken Victoria pays about one third of all new expenditure. The AttorneyGeneral tells us that it will be economical for Victoria to pay £10,000 a year, and he points to the case of one Judge who has been dropped out of the Victorian Supreme Court. What is the saving of £3,000 thus effected compared with the 0,000 which Victoria will have to pay towards the expenditure involved in establishing a High Court?
– It is nearly one-third.
Mr.HIGGINS. - Yes ; but I think I shall be able to show that, even after the High Court is appointed, as many Judges will be required upon the Supreme Court Benches as are now found necessary. It was not owing to the establishment of Federation that one of the Victorian Judges was dropped out, because we have not yet had a High Court. It was due to temporary depression in business, and as the Act which requires that there shall be six Judges upon the Supreme Court Bench in Victoria has not been repealed, the vacancy now existing may be filled at any moment. The £10,000 may appear to some people to be a very small sum, but it will not be so regarded in Victoria. I know that the additional expense involved will be used as a fresh excuse for cutting down wages, or lowering the minimum of the Income Tax, and we shall find that as usual the whole burden of the £10,000, and the expenses connected with the Inter-State Commission and other federal institutions, will be thrown upon the poorer classes.
– That does not apply to Western Australia.
– Perhaps not, but Western Australia is nor the whole of the Commonwealth.
– I want the honorable and learned member to realise that neither is Victoria the whole of Australia.
– As a final argument, it has been urged that the Constitution orders us to establish a Federal Judiciary. We were directed by the Constitution to establish a uniform Tariff within two years, but it is not compulsory upon us to establish a High Court within that period. There is no limitation as to time, and no one can force us to take action: The section which provides that the High Court shall be invested with judicial powers means nothing more than is conveyed by the wording of the Canadian Constitution.
– The word “may” is used in the Canadian Constitution.
– Quite so. But if a man has a son unmarried, and wills that his estate shall be vested in the eldestchildof that son, he does not mean that his son must be married forthwith. He simply indicates that as soon as his son has a child the estate is to be vested in that child. All that section 71 of the Constitution provides is that the judicial power shall be vested in the High Court - that means when the High Court is established. I think that it will be our duty at some time to establish a High Court - perhaps in a few years ; especially if we are able to secure an amendment of the Constitution which will improve the position of that tribunal. We are told that unless we establish a High Court within a reasonable time we shall be guilty of a breach of faith with the people of the Commonwealth.; but I deny that absolutely. So far as my experience goes, the public regard courts as necessary evils. It was not because of the provision in the Constitution for a High Court that they voted in favour of federation, but in spite of it. Moreover, the public looked at the sections of the Constitution relating to the Judicature before they were tampered with by the Imperial Government and the Imperial Parliament, when they were quite different from their present shape. These sections of the Constitution were almost the only onestouched by the Imperial authorities. Therefore, we are not committing any breach of faith with the people in failing to give effect to provisions which were not submitted to them in their present form. I agree with the Attorney-General’s observations with regard to a court constituted of Chief Justices. I think that he was right in saying that the Constitution obliges us to appoint Judges of the High Court permanently, and I can scarcely conceive of our being able to appoint a Judge for life until he ceases to be a Chief Justice of a State.
– What has the honorable and learned member to say with regard to appeals from the Inter-State Commission upon points of law.
-From my point of view there is no difficulty in regard to that, because I should not appoint the Inter-State Commission at present. I have already admitted, in a communication which I sent to one of the journals, that the Constitution has made the High Court essential in so far as points of law arising out of the proceedings of the Inter-State Commission are concerned. That no doubt raises a difficulty, and I think the honorable member is perfectly right in directing attention to it.
-Could we not provide for an appeal to some other tribunal ?
– No; the Constitution provides that the High Court shall be the only authority to deal with points of law raised by the Inter-State Commission. One member of that commission is to-be a lawyer, and it is assumed that decisions will be given upon points of law, but I should not appoint the commission until we feel the want of it. I think we might wait until the necessity actually arises before we create an expensive court.
– Has the High Court exclusive jurisdiction in matters of appeal from the Inter-State Commission? I do not think so.
– I am notprepared to deal with that point at present. I think that the Attorney-General was quite right with regard to the Chief Justices of the States. We could not expect them to go to Tasmania and other States in order to perform circuit work. They have enough to do at present, and they could not possibly fulfil their engagements if they were extended inthemannerindicated. If thesecond reading of this Bill is agreed to, and we are called upon to discuss it in committee, I shall support the appointment of a strong and well-paid court. I shall, as far as I can, prevent the fulfilment of my own prophecies. Although I do not believe in the establishment of the court at present, I feel that it is my duty to make use of my experience by doing all I can to secure the strongest court possible. I think we must have five Judges if we have any.
– That is with the jurisdiction proposed in the Bill?
– Yes. I have known six Judges to sit upon the Bench in Victoria and arrive at a decision, and it would be farcical to allow the unanimous decision of such a Bench to be overruled by three Judges in the High Court.
– It is rare to find so many Judges upon the Bench at any one time.
– No ; it is not infrequent. There are often six Judges upon the Victorian Bench when the court is called upon to overrule a previous decision.. Only two or three months ago, as I am reminded by the honorable and learned member for Corinella, there were five Judges on the Bench. If we are to have a High Court we must not be skimping or sparing, but must make it so strong that it cannot very well be ignored. Unless it were a strong court most of the big litigants would be inclined to ignore it, but I should make it so strong and so dignified that that could not very well happen. I wish, however, to wait until we see the development of the proposal for the establishment of a final court of appeal for the whole Empire. Mr. Justice Hodges went to England with a mission from the Government to induce the Home Authorities to establish one final court of appeal for the whole Empire. That is a grand idea. Nothing in the history of the world has had such civilizing influences as the system of British jurisprudence, and the idea of keeping in the current of that great stream is one not unworthy of our young nationhood. I should like to know how the Government reconcile the recommendations of Mr. Justice Hodges with their present proposal. Their idea now is to keep all they can from England, whereas the suggestion made by Mr. Justice Hodges was that as strong a court as possible should be established in England. Does the Attorney-General wish appeals to go to England? If he does, his cue should be to try to bring about the establishment of a final court of appeal for the Empire. If, however, he does not wish appeals to go to England, he must make it as difficult as possible to carry an appeal to the Privy Council. The sentiment which has found frequent expression, that we must have an Australian court for Australian subjects, is very attractive, andI confess that, irrespective of the expense which might be involved, I should support the proposal for the establishment of the High Court if I only felt that it would fulfil the expectations and wishes of those who framed the Constitution. I am afraid, however, that it will not. As I have said, it can be ignored by litigants who want to appeal from the Supreme Court, and evenif litigants take their cases to the High Court there is the possibility of an appeal from that tribunal to the Privy Council. If we create a High Court under the Constitution as it stands, we shall erect a body which will be docked of power and shorn of dignity - which will be in the leading strings of some higher power elsewhere.I am looking forward to an ideal court, such as Sir Henry Parkes had in mind. His idea, when he moved his resolution at the Federal Convention in 1891, was very different from that which is embodied in the measure now before us. This resolution was accepted by the Attorney-General.
– Hear, hear.
- Sir Henry Parkes proposed to establish -
A judiciary, consisting of a Federal Supreme Court, which shall constitute a High Court of Appeal for Australia, under the direct authority of the Sovereign, whose decisions, as such, should be final.
In submitting his resolution, he said : -
In seeking to create this Supreme Court of Australia, it will be observed that I seek to create within it an appellate court from which there should be no appeal to the Queen in the Privy Council …. I think we shall make a great mistake if we allow any appeal to be made outside the shores of the new Australia.
What a falling-off is there ! The AttorneyGeneral now proposes to create a court which will not have the powers indicated. There are two positions, either of which we might take up without loss of dignity. One is to keep the sap running from the root of British jurisprudence everywhere throughout the Empire. The other ideal is that of the late Sir Henry Parkes, namely, that we should be self-contained and self-sufficing, that we should take the responsibility of interpreting our laws as well as of making them. The present proposal does not comply with either of these requirements.
– We do not possess the necessary power.
– No ; but I hope that before long the present Ministry or some other will propose an amendment of the Constitution - which, I believe, would meet with the approval of the majority of the people of the Commonwealth - which would put the High Court, if it must be created, into the strong and dignified position which the framers of the Constitution desired. I do not wish the High Court to be deformed, to be shorn of limbs, and to be in the leading strings of some power outside. If we pass the present Bill there will be no going back. Let us pause until we feel the pressure of events compelling us to take action. Let us wait until we feel the need of the machinery before we create it. We shall then know what to provide. Surely it is the wildest proposal in the world that contemplates the bringing into existence of a body before we realize the necessity to create it. There has been too much pedantry in connexion with this federal scheme. As the honorable and learned member for South Australia, Mr. Glynn, said, we have too slavishly followed the precedent of America, and it is about time that we commenced to judge for ourselves as to what things fit us, and what things do not fit us. We ought to apply our minds to the peculiar conditions of Australia, and to the particular character of our benches as they are. We should not assume that because in the United States it was found that the State Judges were weak and at the mercy of the Legislatures we should discover that similarly the J udges of the State courts of Australia are weak and at the mercy of the State Legislatures.
– After the two speeches which have just been delivered in opposition to the Bill, I think it may fairly be said that the case for the measure is visibly weakening. I join with those honorable members in congratulating the Attorney-General upon the very able and brilliant manner in which he presented the case on behalf of the Bill. It is gratifying to note the calm and judicial manner in which the debate has hitherto been conducted. I hope that it will be prosecuted to the end upon the same lines. On this occasion it is my misfortune to disagree with the Attorney-General. If I could possibly have seen my way to accept his reasoning it would have given me very great pleasure to have heartily supported the Bill. But the opinion which I have formed has not been arrived at hastily. It has been gradually maturing, and has been confirmed rather than weakened by the debate which has taken place to-day.
– The honorable and learned member pointed it out three years ago in his work upon the Constitution.
– I am glad that this matter can be debated free from all party considerations. It is purely a judicial question, and should be dealt with as such. In his opening observations the Attorney-General declared that the Bill should not be submitted to the microscope of economic considerations. He also said that the question of expense was not the only question involved, but was rather a secondary consideration. I cannot acquiesce in that view. It cannot possibly be said by any reasonable man that the expenditure proposed upon this new judicial organization is one of a microscopic character. Hie expenditure of £30,000 or £40,000 cannot be treated as lightly and airily as some honorable members are in the habit of treating millions. I believe that of late the search-light of public criticism throughout Australia has been directed in a very marked manner upon the proceedings of this Parliament, and especially in connexion with any matter involving “ new “ expenditure. As a federalist I am anxious that nothing shall be done by the first Parliament of the Commonwealth to bring our federal institutions into disrepute or contempt in the constituencies of Australia, but that as the trustees of vast revenues we shall earn the reputation of dealing with those revenues in a fair and economical manner. We cannot for one moment say that an annual expenditure of £30,000 or £40,000 for all time is merely a “ microscopical “ consideration. In the first place I propose to direct attention to what I regard as three fundamental blots upon this Bill. Afterwards, I shall address myself to other considerations of a general character which, I think, can be urged in opposition to it. Generally speaking, I could not justify this Bill in its present form,’ and under the conditions which obtain throughout Australia before my constituents, and therefore I cannot support the second reading in this House. In the splendid speech which he made last session, the Attorney-General almost exhausted the federal vocabulary in painting the ideal outlines of the proposed High Court. He described it as the “guardian and interpreter of the Constitution,” “ the organ of national life,” “ the keystone of the Federal arch,” “ the essential complement and necessary corollary of our Constitution,” “ the national as well as the Federal Court,” and- “ the centre and crown of the whole set of State judicial systems, as well as the centre and crown of the Federal system.” Many of us may have used these expressions in the course of our public utterances, and probably in our public writings, during the federal campaign. At one time, indeed, I was under tlie impression that the High Court would be the guardian and interpreter of our Constitution, but upon closer analysis I find that since the adoption of the amendments which were effected in the measure by the Australian delegates in London in conference with the Home Authorities, it can no longer be said to be the sole guardian of our Constitution. Neither can it be said to be “ the keystone of the Federal arch,” because in the Privy Council we have a competitive “ interpreter1 and guardian of tlie Constitution, “and another “keystone of the Constitution “ equally as vital, solid, and strong as is the High Court itself. As the Constitution stands, it is only in a very trifling number of matters that the High Court will be the sole guardian and interpreter of the Constitution, namely, in powers inter se between the Commonwealth and a State or States, and in powers inter se between two States. The remainder of the Constitution and the rest of the laws made under it may now come under the review of the Privy Council as the final interpreter, guardian, and arbiter of the Constitution. In only a very limited sense, therefore, can it be said that the High Court is the “keystone of the Federal arch” or the “guardian of the Federal Constitution.” It certainly cannot be said to be ‘ the centre and crown “ of the whole set of State judicial courts or organizations, because I find - as has already been so amply pointed out - that the right of appeal from the decisions of the Supreme Courts of the States upon matters of State law direct to the Privy Council itself has been expressly preserved. .The High Court, therefore, is not the “ centre and crown “ even of the State judicial system any more than it can be described as “the centre and-crown” of the Federal judicial system. In using these nice expressions, we should be very careful to pay due regard to legal and constitutional accuracy. But, to address myself to the three fundamental objections which I find upon the face of this Bill. The first is that we are asked to vote in favour of a High Court. The Attorney-General has declared that under the Constitution it is absolutely mandatory upon us to create that tribunal.
But I would remind the honorable gentleman that even assuming that the words, “the judicial power of the Commonwealth shall be vested in the High Court,” are mandatory, they are mandatory only to the extent of creating a High Court of Appeal. That is the limited extent to which they are mandatory, even if they are capable of that signification, which I am not prepared to admit.
– Surely the honorable and learned member is taking a very narrow view of the judicial power.
– Under that section of the Constitution, the only thing mandatory is the establishment of a certain court of appeal with certain special powers of original jurisdiction. This Bill proposes to create something more than a High Court vested with the functions of a Federal Court of Appeal, because it goes further than the provisions of the Constitution which endow the High Court with certain appellate jurisdiction and the limited original jurisdiction disclosed in clause 75, and proceeds to clothe the new tribunal not only with the special attributes assigned to it under the Constitution - of which we cannot deprive itrbut with extra powers which are purely optional. Thus it is proposed under this Bill to establish not merely a court of appeal or a High Court having only appellate jurisdiction, but to clothe it with the full measure of legislative authority and power with which it may be clothed.
– The idea is to make some work for it.
– Apparently that is the object. * But even assuming that the contention of the Attorney-General is correct, and that we are bound hy a mandate of the Constitution to establish the High Court, we arc not bound to establish it and to vest it with extra original jurisdiction. In other words, we are not compelled to ask it to perform the duties of a court of first instance, in addition to those of a court of appeal. There may be something in favour of the immediate establishment of a court of appeal, or of its establishment within a reasonable period, but under the Constitution there is nothing to compel us to establish a gigantic judicial organization, which will take away from the State courts a large measure of the jurisdiction which has been exercised by them, and which they could continue to exercise. I deny that there is any statutory mandate of a coercive character to establish a High Court at the present time, and in the present circumstances of Australia. In this connexion I would draw attention to the fact that, though the Constitution lays it down that the judicial powers of the Commonwealth shall be vested in the High Court, no time is fixed when they shall be so vested. It does not say that it shall be done within two years, or within any particular time. There is one case where a time limit is fixed in the Constitution. It is provided that within two years of the establishment of the Commonwealth a uniform Tariff shall be passed. But even in that case, what was there to compel this Parliament to pass a uniform Tariff .within two years ? Could it be said that a mandamus would lie to compel the Parliament to agree to a uniform Tariff, although a time was fixed? In the same way, there is nothing to coerce us to pass this Bill now ov next session, or the session after that, because I apprehend that the Court cannot be established without an Act, and the Parliament can decide on its own responsibility whether the time has arrived for the institution of a High Court, or any other court of Federal jurisdiction. I should like to quote a passage from Judge Curtis’s Jurisdiction of the United States Courts, where a point of the same kind is referred to. On page 134 he says -
It was contended, formerly, that there was an absolute duty incumbent upon Congress, to which the Judiciary Act gave effect, to vest the whole of this judicial authority in some court or courts of the United States. It is, however, now perfectly well settled that whether this be a duty incumbent upon Congress or not, it is a duty of imperfect application, and one which the courts of the United States cannot enforce.
So that I think that too much stress has been laid upon the words of the Constitution that the judicial power shall be vested in a High Court. It is merely, as it were, a direction that something must happen in the course of events, and Parliament is left to decide when it is to happen. Now, with reference to this original jurisdiction, I join with honorable members ‘ who have preceded me in strongly protesting against the fundamental feature of this Bill, which is to vest the proposed court with additional Federal jurisdiction as it is called, or primary jurisdiction. It deprives the High Court of the character of a court of appeal, and it takes away much of the force of the Attorney-General’s argument that it is absolutely necessary to establish a High Court. If it is necessary to have a court of appeal, as he says, why does he surround it with all this paraphernalia of original or primary jurisdiction? Is it not quite plain that he must feel convinced that the work of the High Court as a court of appeal would be utterly inadequate to employ five Judges, and that therefore it is thought advisable to hand over to them some new work in the shape of original or primary jurisdiction, so that they may be kept employed ? The second objection which I have to the rest of the Bill, and which I find on its face is this : that in certain parts provision is apparently made for conferring Federal jurisdiction upon the courts of the States, and in other parts that jurisdiction is taken away. It seems to me that these words have been put in to -
Breathe the word of promise to the ear,
And break it to the hope.
It is absolutely a sham to say, in one part of the Bill, that the State courts are to be vested with Federal jurisdiction, whilst in another part provision is made for taking away their jurisdiction without rhyme or. reason, almost at the caprice of any litigant. That is to be found in part 7, which provides for the removal of causes. Part 6 provides for Federal jurisdiction by State courts, and apparently gives them a bonâ fide power and a. right to enter on the investigation of certain classes of Federal cases. And yet when we come to part 7 we find a provision that in all cases except three no sooner is a writ issued in a State court in a Federal matter than the defendant may immediately take action to remove it to the High Court. In clause 41 it is provided that certain matters, not enumerated in clause 42, shall be within the jurisdiction of the courts of the States, in a very qualified sort of way. If honorable members will turn to clause 41 and see how it reads, they will find that it is very unique. Clause 40 says that the jurisdiction of Federal Courts shall be exclusive of the jurisdiction of the several courts of the States in certain matters. In that class of cases the jurisdiction of the High Court is absolutely exclusive of the States courts even in matters of original jurisdiction. Then clause 41 says -
The jurisdiction of federal courts in matters not mentioned in the last preceding section shall be exclusive of the jurisdiction of the several courts of the States, except as provided in this section.
That certainly seems a very extraordinary way of legislating. First, it says that the jurisdiction of the Federal Courts shall be exclusive of the jurisdiction of the State courts, and then it goes on to say, except in certain cases. What are the cases which may be to some extent considered by the States Courts. A case arising under the Constitution can be initiated in a State Court. A case arising under a Federal law such as the Customs Act, or the Post and Telegraph Act, can be initiated in a State Court. Any case arising between residents of different States may be initiated in a State Court. Any case arising under admiralty or maritime jurisdiction can be initiated in a State Court. Any case where the subject matters claimed arise under the laws of differentStates may be originated in a State Court. That reads very well, but when we turn to clause 42 we find that -
Any suit involving amatter of federal jurisdiction which is at any time pending in the Supreme Court of a State may, subject to the provisionsnext hereinafter contained, be removed by any defendant therein to the High Court as of right in manner prescribed.
Does not that show that the provision apparently giving jurisdiction to States courts in the five classes of cases I have enumerated; is absolutely a sham? I wish to know why it is proposed in one clause, apparently, to give the States courts jurisdiction in these five classes of Federal cases, and, then in another clause to take away the jurisdiction at the caprice of any defendant, except in three small cases. What is there so special in cases arising under the Constitution, or under Federal laws, that the Supreme Court of the States should not be trusted with primary jurisdiction? What is there so peculiar in that class of work that the Supreme Court of a State should be subjected to the indignity of a case being withdrawn from its jurisdiction on the motion or application of any dissatisfied defendant ? There is nothing at all to justify it.
– And at any stage, probably just before a decision is to be given.
– Probably finding from the drift of the arguments that it may go against him he steps in with a petition to remove the case to the High Court.
– That is only to apply where the court is satisfied that there is just cause.
– Under clause 42 any suit may be removed by any defendant to the High Court as a matter of right, except in three cases.
– Five cases.
– There are other cases in which the High Court can remove a suit - even these three cases - if special cause be shown. i
– -Exactly ; but a defendant cannot remove a case at any stage as of right. He must come in before he has entered his defence, as the honorable and learned member will see if he looks at clause 43. Unless the litigants so desire, it need not be removed at all.
– I do not know why a case arising under the Constitution, or under the Customs Act, or the Post and Telegraph Act, should be subject to the liability of being removed under the conditions indicated in the Bill.
– If the litigants do not want a case to be removed, it need not be removed.
– It does not require the concurrence of both parties to remove a case. One dissatisfied party may remove a case without rhyme or reason. I should like to direct the attention of the House to a provision of the Bill to which attention has not been very forcibly directed .up to the present time, and that is the provision that in the event of a dispute between the residents of different States, although it may be on a matter relating to State law or State contracts where no Federal question arises at all, the defendant has a right to have the case removed from the Supreme Court of a State to the High Court.
– Where does the honorable and learned member find that ? Have we any power over simply State jurisdiction ? We have no such power.
– Section 75 of the Constitution Act says that the High Court shall have original jurisdiction -
In all matters between residents of different States.
Clause 41 of this Bill says -
The jurisdiction of Federal Courts in matters not mentioned in the last preceding section shall be exclusive of the jurisdiction of the several courts of the States except as provided in this section.
That vests in the courts of the States the power to entertain disputes between residents of different States ; but as it is a part of the Federal judicial power to hear any dispute between those two residents if once a case of that kind is launched in the court of a State, the non-resident defendant may under this Bill, as I read it, at any time file a petition, and have it removed to the courts established thereunder. It is a part of the Federal judicial power, I repeat, to deal with disputes between residents of different States.
– Disputes as to some matter arising under the Constitution.
-No ; disputes as to ordinary laws .of the States. In the United States it has been held over and over again that the words in the Constitution cover disputes between residents of different States on matters of contract or of tort, or anything within the jurisdiction of a State court.
– We have taken five cases of that kind and put them in paragraphs (a) and (i>) of clause 42 specially to prevent that.
– Of course, if the defendant is sued in the State where he resides, he cannot remit. But suppose he is sued in the State where the contract has been made, but not where he resides. In l that case he can remit. Let me illustrate. Suppose a merchant in New South Wales holds a bill given by a trader in Victoria. It is payable in New South Wales, but the maker of the bill resides in Victoria. Under this measure, if the New South Wales merchant sues the maker of the bill in New South Wales, where the contract was made or where the money was payable, the non-resident defendant may apply to remit that case to the High Court. There is no doubt of that. It is absolutely beyond contradiction. What justification is there for interfering with a class of cases like that, and for making them come within the scope of the judicial power? Does it not show that these points have not been properly thrashed out and considered, or that there is a straining to make work for this new judicial organization 1 Another class of cases brought within the scope of the High Court, and which it is proposed may be removed from State courts to the High Court, is admiralty and maritime cases. What rhyme or reason is there for that proposal? As already pointed out by the honorable and learned member for Northern Melbourne, the courts of the Australian States have for many years past been exercising that class of jurisdiction, and I believe they have done their work very satisfactorily. I never heard of any agitation to take away from them their admiralty jurisdiction. I think that, at any rate, the attempt to take away that jurisdiction from the Vice- Admiralty Courts of Victoria, and that of New South Wales, will be absolutely futile, because those are courtswhich exist under Imperial legislation. This measure cannot in any way interfere with the autonomy or independence of these Vice- Admiralty Courts, though it may take away the jurisdiction which exists in the Admiralty Courts of the remaining States. But, even if it could, I should like to know why we should interfere with that special jurisdiction. It is not necessary for the honour and dignity of the Federal Government, or for the facility of Federal legislation. Supposing we pass a Navigation Act, any disputes occurring under it would arise under Federal law, and they would naturally comewithin the jurisdiction of the Federal Courts under the Constitution. Then, with reference to the subject-matter claimed under different laws of different States, thereis nourgent necessity to make provision for the removal of such cases from the State courts to the Federal High Court. I believe that these provisions giving this wholesale power of removal from the State courts to the Federal Courts have been taken from the legislation of the United States. But I would draw the attention of honorable members to the contrast between the two classes of legislation.
– Drawn with differ ences.
– Undoubtedly with differences - with a view apparently of loading theHigh Court of Australia with as much business as could bewithdrawnfromthe other courts. This power of removal has no doubt existed under the legislative provisions of the United States since the Judicature Act of 1798 was passed, but even under that Act there was a money limit to the power to remove. There was no Federal power unless the amount in dispute amounted to 500 dollars. But by an amendment of the judicial provisions in 1888 it is enacted that no case shall be removed from the State courts in any of those matters coming within the Federal judicial power unless the money at issue, or the value of the property concerned, exceeds 2,000 dollars. I should like to know whetherin utilizing this instrument of removal and to enhance the dignity and business of the High Court the question of the amount is taken into consideration ? It appears not. It is quite clear that according to the Act of the United States of 1887-8, provision was made for the removal of civil suits at law or in equity, which may have been begun in the State Courts in the following cases : -
I am quoting this passage from Curtis on the Jurisdiction of the United States Courts, page 189 -
But in the case of disputes between residents of different States there are additional requirements and considerations besides the money limit, namely, the defendant must prove that there is local prejudice or influence which may prevent him from getting a fair trial. I will read the section -
Where a suit, involving more than 2,000 dols., exclusive of interest and costs, is brought in a State court, by acitizen of that State, against a defendant who is neither a citizen nor a resident in that State, such defendant may remove the suit “at any time before the trial thereof,” if he can make it appear to the Circuit Court that owing to local influence or prejudice he cannot obtain justice in the State court in which the cause is pending, or to which it may be removed for trial under the laws of the State, by reason of such prejudice or local interest.
– Those are from inferior courts of the United States, and that is why there is a money limit.
– No ; the section is this -
Removal may be had of civil suits at law or in equity, which might have been begun in the Circuit Court, in the following cases.
– That is, begun in the inferior courts.
– No; they are begun in State courts.
– Our removal is from the SupremeCourt of a State.
– The State courts in America have Federal jurisdiction even although there is no provision in the Constitution for vesting them with it. They have jurisdiction to deal with Federal cases involving amounts under 2,000 dols. I will read the law -
The Circuit Courts of the United States shall have original cognisance, concurrent with the courts of the several States, of all suits of a similar nature, at common law, or in equity (1) where the matter in dispute exceeds, exclusive of interest and cost, the sum or value of 2,000 dols., and arising under the Constitution or laws of the United States ; and so on. That passage shows clearly that the States Courts of the United States have Federal jurisdiction by virtue of an Act of Congress in all Federal matters under 2,000 dols. ; and it is only where the amount in dispute exceeds in value 2,000 dols. that the removal power may be exercised, while in disputes between residents of different States it requires not only the 2,000 dols. in excess to remove, but also proof of local influence. Therefore, this power of removal, I say, is a frightful blot on this Bill, and it has been placed there without any justification. Because if there is any justification in logic, or reason, or propriety, or policy for giving the States courts jurisdiction as proposed, if we have faith to give them jurisdiction we ought to give it fully and show our confidence that they have the ability and capacity to exercise that jurisdiction. We should not give it to them with one hand, and provide for taking itaway with the other. There is another question of jurisdiction of an original character, which is proposed to be conferred upon the High Court under this Bill, to which I take the strongest objection as tending to overload the court with work of an original character. It is provided in the clauses which begin at clause 64, that all indictable offences against the laws of the Commonwealth are to be prosecuted by indictment by the Attorney-General of the Commonwealth, and that they are to be conducted before a Judge of the High Court. What does that mean ? At the present time, and under the powers given by the Constitution, the criminal jurisdiction may be exercised by the courts of the States. The courts of the States have, I believe, done that work very satisfactorily. All the machinery for the control of criminal business and the trial of offences is in existence and has been utilized without any duplication of courts or of offices or of Judges. Now what is proposed to be done? It is proposed to take away that power from the courts of the
States, and to give exclusive jurisdiction to the Judges of the High Court. I should like to know why that is necessary and why it is proposed? Has there been any breakdown in the administration of the Federal law of Australia, any incapacity shown, or any want of desire and preparedness to do this work on the part of the State courts? Nothing of the kind. Yet here we have this proposal. Let me illustrate what it means as regards expense, and as regards overloading and surplus work. It means this. Suppose a lettercarrier in Western Australia is committed for trial on the charge of stealing a letter. What is to happen? A Federal Judge has to travel from the seat of government with his associate, and all the paraphernalia of a High Court Judge, and all the expense of travelling from the seat of government to, it may be, the other end of the continent - thousands of miles, to Coolgardie, we will suppose - in order to try a letter-carrier for stealing a letter.
– He will have his regular circuit.
– That brings me to the circuit business. How many circuits are these five Judges to perambulate in the course of a year ? It does not seem to me that many visits of the kind will be paid to Western Australia or to the remote parts of Queensland,at any rate without a very great deal of inconvenience and great cause of confusion to the business of the High Court. What is to happen to the appellate business of the High Court while the Judges are making these pilgrimages to try such cases in distant States? With reference to that kind of case, especially, I say that we are sinning against light if we in any way interfere with the existing authority exercised by the State courts in criminal jurisdiction. We shall be wasting the money of the Commonwealth. It may also mean that, unless these circuitcourts are held at least once in every two months, the unfortunate men who are committed for trial may have to await their trial an undue length of time.
– Where does the honorable and learned member find all that ?
– In this Bill.
– No, he does not. There is nothing in the Bill to give the Judges of the High Court exclusive jurisdiction in such matters.
– But the Bill says -
Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the GovernorGeneral appoints in that behalf.
– That is not exclusive. It does not exclude the courts of the States.
– The States Courts will hold, I believe, that that provision is exclusive, and that they have no power to try indictable offences. They will say - “ We do not know the Attorney-General of the Commonwealth. What right has he to come into our courts and file an indictment? “
– There is no difficulty in that.
– What is the good of it?
– To give the High Court criminal as well as civil jurisdiction.
– That they may pick out the cases that they will try ?
– Not at all ; but if the Federal Sessions are due the case may be tried there. If not, it will be tried at the ordinary sittings of the States Courts. The post-office official referred to by the honorable and learned member would not be kept waiting.
– He will be kept waiting if the clause remains as it is, because it says that every indictable offence shall be dealt with in the manner provided in this Bill.
– What becomes of the poor victim ?
– He has to wait his trial. Clause 68 provides that -
What is the meaning of that, unless it is to give to the High Court the general power over criminal matters - jurisdiction to deal with offences against the Commonwealth ?
– It gives a power, but not an exclusive power.
– It seems to me that the Attorney-General is unnecessarily increasing the inherent difficulties of the situation by burdening the Bill with matter of the kind to which I have made critical reference. My criticism has, I hope, been given in a judicial spirit.
– Hear, hear.
– If the Bill were denuded of all these proposals - of the large original jurisdiction proposed to be given to the High Court - and if the court stood as a court of appeal of Australia alone, many of my objections would be removed ; but I cannot possibly support the Bill in its present shape. It necessarilyinvolves much work on this court, and I agree with those honorable members who have said that if all this original jurisdiction is to be conferred upon the High Court, five Judges will not be sufficient to deal with its business. If it is conferred upon it, the Attorney-General may very well be considering before long whether he will not have to increase their number to ten. If there were any congestion in consequence of this overwhelming mass of business unnecessarily placed on the High Court, the public would cry out because of the delay, pressure would be brought to bear, and other Judges would be appointed. I appreciate the way in which the Attorney-General has put the matter, that if we take away original jurisdiction from the courts of the States it will remove the pressure of work from the States Courts, and lead to a reduction in the number of the Judges in those courts. I do not believe, however, that there would be a reduction of a single Judge in any court in any State of Australia as the outcome of the transfer of this original jurisdiction from the States Courts to the High Court. We have heard much about retrenchment, and honorable members who have watched the history of the struggle in Australia during the last few years know how difficult it is to carry any retrenchment proposal. I venture to say that the States Governments and the States Parliaments would consider they were being wronged, and that their State sovereignty was being sacrificed, if they were called upon to reduce their judicial organizations consequent upon the transfer of these matters to the High Court. Not one farthing would be saved, and the honorable and learned gentleman’s assumption is scarcely justified by our knowledge of public business in Australia. My objections would not be so strong if this were to be only a court of appeal, but even as regards the necessity of creating a court of appeal during the present session of the Parliament at all events, I am not yet convinced. I shall explain why. Under our Federal laws, which have been in operation for some time, the States Courts have been exercising jurisdiction ; they have been administering Federal Acts. I have taken the trouble to examine the decisions of the various Supreme Courts of the States in every case that has been brought before them for revision or review from courts of inferior jurisdiction, such as Courts of Petty Sessions. I shall deal first with the amount of Federal work that has arisen under our Constitution. I find that since the establishment of the Commonwealth, in 1901, only twenty cases under the Federallaws have reached the Supreme Courts of all the States of Australia. In the first year of our Federal history, namely, 1901, there were only two cases ; the case of Bex v. Bamford, known as the Armidale Postoffice letter stealing case, which involved the question - “ Does State law operate on property or territory exclusively vested in the Commonwealth?” That case was decided in November, 1901, by the Full Court of New South Wales. The next case, that of Kingston v. Gadd, occurred in the same year, and in that the point involved was the breaking of the Federal Customs seal. It was decided by the Full Court of Victoria in December, 1901.
– It is still on appeal.
– On appeal by the defendant, not by the Federal Government. Both these cases were eminently Federal decisions of a most important character, and I shall point out presently how satisfactorily these States Courts have been doing their work. In 1902 only ten Federal cases came before the Supreme Court Benches of the whole of Australia, while during the present year there have been, up to the present time, eight cases. That represents twenty cases during two and a half years.
– Some of them being merely ordinary claims for negligence.
– Yes. Even for the full twelve months of 1902 only ten cases arose under our Federal laws, and came before the Supreme Courts of the States. These, if the Bill had been in operation, would have come before the High Court of Australia on appeal. So that ten cases per year would have been divided amongst five Judges - two cases each.
– But they would not all have gone to the HighCourt.
– Of course not; but if they had, these ten cases would have been all the Federal business that could have been provided for the High Court of five Judges.
– Some of our legislation has been passed only a few months, and certain cases have been held back in the hope of the early establishment of the High Court.
– We might readily have imagined that during the first two years of our existence our legislation would be closely examined, and vigorous attacks made upon it. I do not think there will be such a crop of litigation in time to come as that which occurred in 1 902. The ten cases constituted a regular harvest in comparison with what is likely to follow. Most of the difficult questions are being settled ; every case that has been decided involves a settlement, and leaves less for the High Court. I come now to the character of the work done and the decisions given by the States Courts, and I would invite attention to this point. Judging from the work done, and the decisions given, the Federal Government, or those who have peculiarly sensitive federal views, need have no apprehension as to the capacity of the States Courts Judges to interpret our Federal legislation. Out of the whole of these twenty cases I do not know of a single decision that has been given by any single Judge, or by any Full Court in Australia, that is not sufficient to inspire confidence and respect. Even although some of them may be disagreed with,. I venture to say that the judgments given by some of the Judges sitting in the Full Courts of New South Wales and Victoria have been of a very high judicial character, and will compare favorably with any of the great American decisions, which we are all so proud to read and quote. I do not wish to indicate any particular Judge, but the decision of the Full Court of Victoria in the case of Kingston v. Gadd was a masterly judgment, and although it was in the early years of our Federal history, when one might have found a sense of novelty in dealing with these questions, I was amazed and delighted to see what a thorough grasp of Federal principles the judgment in that case displayed.
The corresponding case of ex parte Oesselman, in which the same question was discussed, was brought before the Full Court of New South Wales in 1902, nearly twelve months later. I have read the decision in that case, and it is also entitled to be pronounced a masterly Federal judgment. I do not believe th.it any man can be found in Australia who could claim to exceed in learning, in impartiality, and in judicial power and discrimination the Judges of the two Full Courts who gave the decisions to which I have referred. I say, therefore, that the States Courts, including the J Judges sitting alone as courts of appeal, as well as the Full Courts that have so far dealt with Federal matters, have done their work so well as to inspire respect, and not to create any feeling of distrust that our Federal laws will be dealt with in a hostile spirit. I think we can trust any of the States courts of Australia to deal fairly with our Federal laws, and to deal out justice to the States as well as to the Federal Government. In the case of Stephens v. Abrahams, decided by Mr. Justices Hodges, in May, 1902, it was held that duties were not collectable on votes of the House of Representatives. That decision is absolutely unchallengable. Even if it went to the House of Lords, to the Privy Council, or any tribunal in the world, it would be held to be correct. In the case of Stephens v. Robert Reid <fc Co., involving a question of the liability of a corporation for making a false entry, and in which the question of whether it is necessary to prove guilty knowledge in a certain class of information was also determined “by Mr. Justice Hodges, it was held that it is not necessary in certain’ cases to prove guilty knowledge. The same principle was subsequently affirmed by Mr. Justice Power in the Queensland court in the case of the Collector of Customs at Rockhampton v. Gallaghar. Those two cases are unchallengeable. I do not know of any cause for dissatisfaction or for rushing on with the High Court to guard ourselves against unfair decisions in the State Tribunals. In the case of Stephens v. Alcock, Mr: Justice Hodges quashed the decision of the inferior court, on the ground that a certain statementsaid to be untrue was not untrue. That is what was known as “the billiard-table case.” Who can challenge the accuracy of that decision? It was against the . Federal Government, of course, but now in the calm light of after reflection and review, even the Minister for Trade and Customs must admit that that decision was perfectly correct. In the case of the Commissioner of ‘faxes of Victoria v. Wollaston, the liability of a Federal officer to pay State income tax was considered and discussed.
– The court was wrong.
– I do not know about that. At any rate, that case was very ably argued. Although there was one very strong American case in favour of the view put forward by the Federal Government that Federal officials were exempt from income tax, still the Canadian cases were very conflicting, and I do not think any reasonable ground of complaint arises in those cases. The decision, at any rate, was not against any Federal law.
– Hear, hear ! It only stretched a local law too far.
– In the case of Hannah v. Brake, a Sydney cabman’s claim against the Postmaster-General for negligence before the passing of the Federal Postal Act, it was held that the State Court had no jurisdiction. That decision was perfectly accurate, and it led to the passing of a Bill- which is now law, giving the States Courts jurisdiction to deal with claims against the Commonwealth. That is a very proper Act, and it only requires to be extended a little to make it work smoothly. Another case, Donohoe v. Sargood and Co., came before Mr. Justice Pring, of the Supreme Court of New South Wales, and in that case a very important decision was given as to’ what conconstitutes an “ entry.” The decision was eminently in favour of tlie Minister for Trade and Customs, and I suppose the right honorable gentleman has no complaint to make against it. In the case of Stephens v. Gollin and Co. the defendant was charged with importing prohibited articles - exhausted tea - in October, 1902, and a question as to the standard of purity was decided by Mr. Justice Hodges, of Victoria. There was the case, ex parte Oesselmann arising from the breaking of the Federal Customs seal, and that was decided by the Full Court of New South Wales. In the case ex parte Schuch for smuggling cigars, contrary to State law, as there was no Federal law dealing with smuggling at the time, prosecutions were instituted after the
I passing of the Federal Customs Act, and the 2 t 2 conviction underthe State law was confirmed by the Full Court of New South Wales. That was not challenged, and if it were carried to the High Court or the Privy Council it would probably be sustained. The case, Donohoe v. Healey, was the illicit still case to which reference was made on a former occasion. The magistrate held that proof of the possession of a still was evidence of guilty knowledge, and that decision was quashed by’ the Full Court of New South Wales. Then there was the case of the Collectorof Customs (Rockhampton) v. Gallaghar, to which I have already referred as having been decided by Mr. Justice Power. In the case of the Collector of Customs (Brisbane) v.RobertReid and Co., penalties were inflicted for making false entries by Mr. Justice Cooper and a jury of the Supreme Court of Queensland, in April, 1903. In the case of the Attorney-General of New South Wales v. the Collector of Customs, there was involved the power of the Federal Government to tax State imports.
– To make them liable to import duties.
– That case was decided by the Judges on the construction of our Federal Act. Because it was said that our Federal Act did not explicitly and expressly tax State imports, therefore they were not taxable.
– They went further than that.
– Two Judges went further than that, but that is obiter dicta, and not necessary tothe decision.
– Two out of three went further.
– The opinion was expressed in this House, while the Tariff Bill was under consideration, that there was no power under the Constitution by which this Parliament could tax State imports. Personally I should be glad to hear that the decision in that case was overruled by the Privy Council, but I am afraid it will not be. In the case of Donohoe v. the LeCoispellier the prosecution was under the Immigration Restriction Act of a ship captain for allowing one of the crew to escape from his ship, and the liability of the ship captain was decided by the Supreme Court of New South Wales. I have been able to find only one case in Adelaide, that of the Collector of Customs (Adelaide) v. Foale and Co. That was a false entry case, involving the power of the Collector of Customs ho take a declaration. It was decided by Mr. J ustice Bocaut that the decision of the magistrate must be reversed, and it was held that the Collector of Customs had power to take a declaration.
– There was another case on the same point.
– There was nothing in that case for the Federal Government to complain of. The next case was that of Stephens v. Abrahams, which involved the validity of the Customs Act, the alleged joinder of taxation, with other matters. The validity of the Act was sustained by the Full Court of Victoria reversing the decision of Chief Justice Madden, in April, 1903. The case, Goldring v. Collector of Customs, New South Wales, decided by the Full Court of New South Wales, was one in which a rule nisi was applied for for a mandamus to compel a Customs officer to pass an entry. The Supreme Court held that it had no jurisdiction. It was surely hardly necessary to go to the Supreme Court to have that master decided, because it is quite plain on the face of the Constitution that the Supreme Court has no jurisdiction of that kind. But that does not mean that there is no remedy for the plaintiff in that case, because Sir Julian Salomons, counsel for the Commonwealth, admitted that although plaintiff had no right to this special extraordinary remedy of a mandamus, an action would lie. The plaintiff made a mistake in choosing the wrong remedy, but an action would lie under the Claims against the Commonwealth Act.
– He could not get his books.
– Then he could sue for them by action. He should take a proper remedy under the Federal law. No provision has existed in the United States Constitution for the granting of a suit of mandamus against a Federal officer, yet that Constitution has worked very well. I have drawn attention to these cases, though they may perhaps have been a little wearying, for the express purpose of showing - firstly, thatthese States Courts have done their work very well up to the present ; and secondly, that the amount of business arising under the Constitution or the laws of the Federal Parliament is very limited indeed, and is not sufficient to justify the establishment of this huge, gigantic, expensive organization in these early years of our history. I regret that so much undue anxiety has been shown by the Government to push on with this Bill. I see no ground of urgency. I see no tremendous issues awaiting determination. And at this critical juncture of our financial history, I fear that the pressing forward of a measure of this magnitude, involving it is said the sum of £30,000 a year to begin with and other thousands to follow, will create in the minds of the people of Australia and of the constituents to whom we are responsible, a feeling that we are not guarding the finances with sufficient care and fidelity. Take the case of Victoria. I saw in to-day’s paper the statement that the deficiency in our railway income for the last twelve months amounts to upwards of £250,000. Will honorable members consider what that means, and what it has meant 1 It.has meant reduced pay to our railway people, a reduction in the staff, and retrenchment all round. It has meant an increase in our income tax and a reduction of the minimum exemption, and it will mean further taxation unless this Federal Government sets the example of trying to stop all unnecessary expenditure. If . it were a matter of life and death, a matter for the safety of the State, .for the defence of the Commonwealth against an invader, I could understand that we should be justified in voting as much as would be absolutely necessary for our protection. As we have got on so well during the last two years of our Federal history without this High Court, let us continue to do so a little longer. There is no occasion for rushing this through at the present time. Let the constituencies of Australia have an opportunity of consider- ing the matter, and let those returned to the next Parliament deal with the question. Why should we hasten its decision ? Why should there be this rush in the last session of the Parliament to get this Bill through, and to create all these various lucrative positions. There is no doubt that it will excite distrust amongst the constituencies. It is all very well to say that it Ls a part of the Federal ideal. Of course we all desire to aim at the Federal ideal, but there are years to come during which it may be completed and its various outlines painted in. How can we expect, or’ desire to complete the Federal fabric in the first Parliament, when there is no necessity nor any special demand that we should do so ? I should like to see our Federal Constitution developed gradually, and the fabric of our Federal institutions regarded as were some of those old cathedrals which wore originated, and were gradually extended and developed with the years according to’ the requirements of the times and the genius, capacity, and ability of the people amongst whom they’ were erected. Let us not have any undue haste in this matter.
– There has .been a call for it all over the ‘ Commonwealth during the last twelve months.
– I have not heard of it. I have not heard it called for in Victoria. Of course I cannot speak for the other States.
– It has been called for in the other States.
– It has not been called for in either the city or the country districts of Victoria. Public opinion is there dead against it, and I say we should respect public opinion, and not set our faces against it.
– We ought to educate it.
– No. I am not prepared to educate it. I decline to do it. These Federal requirements ought not to demand that the people should be educated upon them. They should grow insensibly and gradually, and I decline to accept any responsibility for public expenditure of this magnitude unless the natural course of the development of our Constitution points with the finger of irresistible knowledge to its necessity.. If that can be shown I am prepared to vote for it, but I am not prepared to take the responsibility at the present juncture, especially in the shape of voting for this Bill. I therefore do trust that the Government will not strain the views of their supporters who do not wish to be placed in any unpleasant or awkward position, by asking them to. vote against their convictions. I cannot strain my convictions so far as to vote for this Bill. Therefore for the reasons I have stated and for other reasons which I shall not go into, but which have been so well elaborated by the honorable and learned members for South Australia and Northern Melbourne, I express the hope that this Bill will not be pushed forward.
Debate (on motion by Mr. McCay) adjourned.
House adjourned at 10.30 p.m.
Cite as: Australia, House of Representatives, Debates, 9 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030609_reps_1_13/>.