1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
page 685
– I desire to know from the Prime Minister if his attention has been drawn to the fact that Sir George Clarke, Governor of Victoria, is delivering an address to-night on the Imperial Naval Subsidy. Has he noticed that several of the State Governors, particularly those of Victoria, New South Wales, Western Australia, and Queensland, have been prominently advocating the Ministerial policy in this direction, and will he cause a communication to be made to Mr. Joseph Chamberlain, the English principal of these Imperial agents, asking that the State Governors shall be instructed not to intermeddle with Federal party politics ?
– I have observed the title of Sir George Clarke’s intended lecture, and I know from what I have heard that some of the Governors of the States who are naval and military experts are in favour of the policy proposed; but as at present advised I do not intend to make any such communication as the honorable and learned member suggests.
page 685
– I wish to know from the Minister for Home Affaire if he has received any complaints from the country districts about the inefficient manner in which the rolls have been compiled. Such complaints have come under my notice, and I would like to read the following letter which I have received on the subject : -
Dear Sir, - I see by the papers that the list of names of voters for the Federal Parliament has been completed. If that is so, then the list is not correct, because there was never any one round this district to collect the females names, consequently they will all be omitted. I think the females up this way have as much right to have a vote as those in the towns. Perhaps you could make inquiries as to the reason that the names were never collected here.
– No complaints have been received, but inquiry will be made into the matter. The rolls were collected under an arrangement with the State Government of Victoria, by which the police were employed to do the work, and were paid a certain sum per diem by the Commonwealth, the detailed arrangements being left to them.
page 685
– I wish to know from the Minister for Trade and Customs if it is his intention to take steps to give effect to the petition of the Cairns Coffee Growers’ Association in reference to the granting of a bonus for coffee grown in Australia ?
– The honorable member had better give notice of his question. I do not think that it will be the policy of the Government, in the present session, at any rate, to propose a bonus upon coffee.
page 685
asked the Minister for Trade and Customs, upon notice -
– The answers to the honorable member’s questions are as follow : -
Whether bond or duty paid. Marks and numbers. Description of goods. Country or State of origin. Estimated value or quantity at time of transfer. Estimated value or quantity of dutiable goods at time of transfer. As to whether goods were imported before or after the 8th October, 1901.
The particulars are even simpler for free goods.
page 686
asked the Prime Minister, upon notice- -
– The answers to the honorable member’s questions are as follow : -
page 686
asked the Minister re presenting the Postmaster-General, upon notice -
– The answers to the honorable member’s questions are as follow : -
page 686
asked the Minister representing the Postmaster - General upon notice -
– The answers to the honorable and learned member’s questions are as follow : -
page 687
Resolved (on motion by Sir George Turner) -
That leave be given to bring in a Bill for an Act to abolish the rebate of excise duty on sugar.
Bill presented, and read a first time.
Motion (by Sir George Turner) proposed -
That the second reading be made an order of the day for to-morrow.
– I would point out to honorable members that the Bill, the second reading of which we are now being asked to allow to-morrow, is not yet before us. A practice has grown up of asking for leave to read Bills upon certain days, which, if continued, will bring us back to the old position of affairs, when we knew nothing of what was to be put before us for consideration. No deliberative body can do its business properly under such a system. Honorable members should not allow measures to be read a second time until they have had an opportunity to study their provisions and to ascertain their effect. So far as possible the House should confine its attention each week to some particular measure, and proceed as far as possible towards the completion of its consideration before commencing with another. Under the old system honorable members, after giving their attention for some time to one measure, were suddenly called upon to deal with some other for the consideration of which they were quite unprepared, and I feel it time to enter an empathic protest against such a method of conducting business. One cannot altogether blame the Ministry, because the practice of which I complain is an old one ; but we should not be asked to consent to the second reading of Bills until copies of them have been circulated, and we have been able to make ourselves acquainted with their provisions. The House is at present discussing the
J udiciary Bill - a measure whose provisions are fraught with great importance to the whole Commonwealth, and are to be criticised without party bias. That being so, I submit that we should not suddenly be asked to deal with other matters. It will be soon enough to deal with the abolition of the rebate of the excise duty upon sugar next week.
– All I intend to do is to make my second reading speech tomorrow and then adjourn the debate, so that honorable members may have an opportunity of studying the figures which I shall put before them.
Mr.CONROY. - I submit that we should not be asked to consider the Bill at all at the present time. When a second reading explanation is made by a Minister, and the debate adjourned, his speech is often quite forgotten by honorable members upon the resumption of the discussion. I raise my voice against the consideration of other matters while we are engaged upon an important Bill. Of course, if it is the wish of the House that the Bill to provide for the rebate of the excise duty upon sugar be taken to-morrow, there is no more to be said, because one man cannot oppose the will of the whole Chamber ; but I am of opinion that we should not be asked to read this Bill to-morrow.
– The course which has been taken in the past, and which it is intended to pursue on the present occasion, is one which is followed to meet the convenience of honorable members, and will conduce to the proper conduct of business. If it were a rule that no Bill should be introduced or read a second time until some other measure upon which the House was engaged was finally disposed of, as a cry is invariably raised for the postponement of the discussion after the second reading speech of the Minister in charge, there would be no other course open to the House, whenever such a postponement was agreed to, but to adjourn for some days. It is a far better practice, when it is intended that the main debate upon a Bill shall not take place for some days, for an explanation of its provisions to be given by the Minister in charge of it on the motion for the second reading, and its further consideration deferred, so that honorable members may have an opportunity of studying it in the light of the Minister’s remarks. That is what is intended in this case, and I am sure that the proposal will meet with the concurrence of the House.
– Are we to understand that the Treasurer having moved the second reading of the Bill, the debate will be adjourned 1
– Certainly.
Question resolved in the affirmative.
page 688
In Committee :
Resolved (on motion by Mr. Deakin) -
That it is expedient that an appropriation of revenue be made for the purposes of a Bill for an Act to make provision for the exercise of the judicial power of the Commonwealth.
Resolution reported ; report adopted.
page 688
In Committee :
Motion (by Sir George Turner) proposed -
That it is expedient that an appropriation of revenue be made for the purposes of a Bill for an Act to provide a bonus to growers of sugar-cane and beet.
– It seems a very back -handed way of going about their business for the Government to ask for an appropriation for the purposes of a Bill which has not yet been placed before us. It may be that after the consideration of the Bill we shall be prepared to appropriate a certain sum of money, but I think the House out of regard for itself ought to insist upon an alteration of the present method of procedure. I am aware that we are f following a precedent that has been set for some time past, and therefore I do not intend to raise any further objection at the present stage ; but I ask the Government to avoid following any further the present loose method of procedure, which is not in accordance with the best political practice, and to refrain from asking honorable members to make an appropriation before we know the full extent of the expenditure involved.
Question resolved in the affirmative.
Resolution reported ; report adopted.
Bill presented (by Sir George Turner), and read a first time.
– In moving - ‘
That the second reading be made an order of the day for to-morrow,
I may mention that it is intended to follow the same course in regard to this Bill as was indicated in connexion with the Bill to provide for the abolition of the rebate of the excise duty on sugar.
Question resolved in the affirmative.
page 688
Debate resumed from 9th June (vide page 653), on motion by Mr. Deakin -
That the Bill be now read a second time.
– Although in connexion with this Bill it may not be possible for one to say anything that is very new, or to submit any arguments in a more convincing manner than that adopted by previous speakers, the importance and the far-reaching effects of the measure are such that no honorable member need make any .apology for addressing the House on this occasion. I must’ confess that when I listened yesterday, as I had listened last session, to the lofty description by the Attorney-General of the High Court that he hopes to call into existence, I was to a certain extent carried away. He described a court whose decisions would always be right and just, which would enjoy the complete confidence and secure the complete happiness of the people of Australia, and which would do everything for our benefit - a court which, although it would be subject to having -its decisions referred to the Privy Council in all but a limited number of cases, would nevertheless deal with all matters coming under its consideration so faithfully that all we should know of the Privy Council would be conveyed tb us by the faint clapping of distant hands and the faint cheering of distant voices’, accompanying the commendation of the Judicial Council from across the seas - “ Well done thou good and faithful servant.” The description given by the Attorney-General made me think of the “Light that never was on sea or land,” and it also carried my mind back to Mark Twain’s description of Fenimore Cooper’s celebrated Leather Stocking Indians as “an extinct tribe of Indians which had never existed.” Notwithstanding the explanation of the Attorney-General as to the high character of the British tribunals, we can hardlybeled to suppose that if the High Court is to be as good even as the best of these it will attain to that state of perfection suggested by him as not only possible but probable. He told us that if the Bill were altered to provide for any other kind of court than that proposed, the responsibility would rest with us, and that he would then wash his hands of the evil and pernicious consequences that would inevitably follow. I do not wish to suggest that we cannot establish in Australia a High Court which, in regard to the intellectual calibre and the character for integrity and impartially of the men who would compose it, would not . be capable of fulfilling many of our aspirations, and justly command the respect of Britishspeaking communities in general, and of Australians inparticular. Granting that the required Judges are obtainable, such a court could be constituted only if the conditions under which these desirable results might be attained were in existence, and I regret to say that, so long as the provisions of the Constitution with regard to the Judiciary stand as they are, we can never hope to create a High Court, whether as a final or a semi-final court of appeal for Australia, that would occupy the dignified position in which we had hoped to place it. My own feeling throughout the federal fight was in the direction of securing, as a final court of appeal, an Australian High Court, but not because I believed it would be necessary to institute that High Court forthwith. I venture to say that “ forthwith “ is the proper .word to use in connexion with references such as those made by the Attorney-General to the necessity for the early establishment of our Judiciary. Surely an Act passed during the first Parliament to all intents and purposesin view of what we hope will be the life of the Commonwealth - constitutes an immediate compliance with any commands’ or requests in the Constitution. I never expected that we should find it necessary to establish a High Court immediately, and as time went on, and the character of the High Court was altered more and more in the direction of making it less independent and less final than was anticipated and hoped for by many supporters of the federal movement, find by its opponents as well, it appeared to be more and more clear that the creation of the court was a question of pure expediency. I propose to point out why the necessity has not arisen, and why we are not called upon to establish a High Court at present. In view of the warning of the Attorney-General with regard to changing the character of the Bill, those who are opposed to the system, in essence, embodied in the Bill, as well as those who think that this is no time to establish such a court, must fearlessly and without favour vote against the second reading, and not merely rest content with making alterations in committee. I think that the court as proposed is unnecessarily complete, and that the results will be unduly cumbrous, and I am also of opinion that the present is not the time for the establishment of a High Court because the necessity for it has not arisen. I would remind honorable members that there is power of direct appeal from the State Courts to the Privy Council. Although I do not profess to have the same experience as some other honorable and learned members, I venture to predict that appeals to the Privy Council will continue on the whole to be the choice of litigants. One among the several reasons which induce me to take this view is the fact that under the Constitution as it stands, even if the High Court has finally dealt with any dispute, there is still power for the Privy Council to grant special leave to appeal from the High Court to itself upon all but inter se questions. The result will be that the litigant who has failed before the Supreme Court, and who desires to cany an appeal to a higher tribunal, will be face to face with the fact that if he goes to the High Court and wins there, he may still have to fight the matter through another stage, and eventually appeal to the Privy Council. Consequently, the inclination will be to go straight to that court from which there can be no further appeal. I heartily agree with the statement which was made by some honorable members, and especially emphasized by the honorable and learned member for Northern Melbourne, that litigants desire finality. They are not imbued with that abstract and highly desirable love of settling nice questions of law which is more marked, perhaps, amongst the members of the legal profession than it is amongst those who have to pay for their legal determination. Moreover, in cases of appeal from the decisions of the Supreme Courts of the States, it often happens that both parties are dissatisfied, and that cross appeals are lodged. If, then, we establish the High Court, we may have the unhappy object lesson presented to us of a defendant appealing from the Supreme Court of a State direct to the Privy Council, and of the plaintiff’ .appealing to the High Court. In such a contingency it may be suggested that one of the courts would stay the appeal pending the decision of the other tribunal. But if that course had to be adopted which of the two courts would stay the hearing of the appeal? If the High Court of Australia stayed its hand pending the result of an appeal to the Privy Council, its action would be tantamount to’ a public announcement that it is not to be regarded as a court of appeal possessing equal authority with the Privy Council. However, I do not wish to labour that particular point, beyond repeating my previous statement that the appeals will usually go to the Privy Council. AVe cannot hope to materially lessen the cost to litigants by providing for appeals to the High Court instead of to the Privy Council, especially if the High Court be-established in the federal capital at a very early date, for the reason that that tribunal will not be called upon to do sufficient work to warrant the creation of a federal bar. Consequently, special briefs will have to be given to the leading barristers in the various States, who will be required to make special journeys to the federal capital in order to appear before the High Court, unless that Court is to sit in the different State capitals and deal with appeals as they arise. That would scarcely be a feasible mode of procedure.
– There is no resident bar at Ottawa.
– That is so, and that fact I think accounts for so many appeals in Canada going direct to the Privy Council. In addressing himself to this question yesterday the Attorney-General used one argument which struck me as being a two-edged weapon - one the use of which was just as likely to injure himself as it was to damage his opponents. He expressed the opinion that there are certain matters mentioned in the Constitution which it would be improper to refer to the States Courts. The use of such an argument is a direct implication either that the States Supreme Courts would not be qualified or willing - or perhaps both - to deal impartially with such questions. Of course honorable members can speak only for those courts with- which they are familiar, and in this connexion I do not profess to have accurate knowledge of the status of the Supreme Court benches in other States as judged by the best opinion available, namely, that of the bar practising before them. But in Victoria we have had a long and happy experience of a court whose impartiality and ability is beyond question.
– The same remark is applicable to New South Wales.
– I do not profess to speak for the other States because I have no personal knowledge of the conditions obtaining there, but I have no reason to suppose that in them a different state of affairs prevails. If the ground referred to by the Attorney-General be really that upon which the proposal to vest the High Court with original jurisdiction is founded, we ought to be told so explicitly, instead of the honorable gentleman reflecting by inference or implication upon the Supreme Court benches of the other States. In that connexion, the Attorney-General spoke first of the federal spirit which would actuate the High Court, and subsequently of the federal knowledge which it would possess. I quite agree with him that a court which was continually dealing with the powers conferred by the Constitution, would, by dint of practise, become much more versed’ in them than would a tribunal which dealt with them occasionally. No one would propose to controvert that statement. But earlier in his speech, when the AttorneyGeneral spoke of the federal spirit which would actuate the High Court, he conveyed to my mind a somewhat different and less pleasant impression. His remarks seemed to imply that in matters arising under the Constitution in which the limitations of power as between the States and the Commonwealth were under consideration, there would be .an unconscious bias on the part of the Supreme Court benches against the Federal power, and that in the High Court there would be a similar development to that which actually occurred in the United States in the early years of the nineteenth century. In other words, it was to be inferred, the High Court would give a wide interpretation to the Federal Constitution, thereby rendering it more elastic than it otherwise would be. I suppose that we all agree that in the United States that development has worked out for the general good of the community. But as an abstract question it is very much open to doubt whether it is wise to allow the judiciary to place an extensive interpretation upon the Constitution in order to produce elasticity. If the AttorneyGeneral’s argument means anything, it certainly means that if the States Supreme
Court Judges would be disposed to interpret the Constitution too narrowly, the Federal Judges, from the States point of view, would be inclined to interpret it too liberally. Seeing that a citizen of Australia has quite as much interest in the State to which he belongs as he has in the Commonwealth, it seems to me that it is no more desirable to encourage the tendency of the Federal Court to continuously expand federal powers than it is to limit the powers of the State Supreme Courts. I am quite sure that consciously there is no such intention upon the part of any one. Up to the present time the decisions which have been given by the States Supreme Courts - although I do not agree with one or two of them, probably owing to my lack of appreciation of the questions raised - have given general satisfaction. One or two of those decisions, it is true, tend to limit the federal powers, and -is it possible that, underlying that fact, an unconscious irritation exists 1
– That is hardly a failassumption, considering that this measure was brought forward last year.
– I did not put the suggestion forward in the nature of a positive statement. I merely asked a question. There are matters upon the political bill of fare for the present session which are much more urgent than is the passage of the Judiciary Bill.
– That is a matter of opinion.
– I do not profess to speak for any one but myself. I am merely expressing my opinion, as it is my duty to do. I know that upon this particular matter the head of the Government, the leader of the Opposition, and the leader of the Labour Party are all agreed. They do not often agree, but when they do their unanimity is truly wonderful. I do not know what the effect of this political triple alliance will be upon the present occasion, but I venture, to offer a few reasons why it should not accomplish the object which it desires to attain, at any rate, at the present time. I trust that we shall give the alliance time for further consideration, in order that they may have an opportunity of determining whether the proposal before us is really the best one that we can adopt.
– Let them resign.
– If this Bill be defeated they cannot all resign, so that we must leave that parliamentary contingency altogether out of consideration. I am glad that this matter is being discussed free from all party influences. It seems to me to be one which is far superior to party considerations. The High Court, when it is established, and the Constitution under which it is created, will be in existence and flourishing when parties as they now exist in Australia are remembered only in the pages of the historian, and are very infrequently read there. When we recollect how utterly the character of parties - although the names have lasted pretty well - have changed in the United States, we must realize that, similarly in this continent, the platforms of rival political sections will completely alter. I propose to vote upon this Bill irrespective of all considerations of who introduced it, who is supporting it, and who is opposing it. My endeavours will rather be directed towards ascertaining whether it is wise to pass it at the present time. The one point which the Attorney-General in his speech emphazised more than any other was that the Constitution practically commands us to establish a High Court. I quite agree with other speakers that if this tribunal is to be established it must be made strong, and that nothing in the character of a make-shift will be sufficient. It would be a very inauspicious commencement if the High Court were not put upon a satisfactory basis from its very inception. The Attorney-General quoted those sections of the Constitution which deal with the judicial power of the Commonwealth. He declared that it is there clearly laid down that that power shall be vested in a Federal High Court - that the Justices shall be appointed by the Governor-General, and that the High Court shall have jurisdiction, &o. By the time he had finished his exposition’ of these mandatory sections, the “shall” which appears in them’ sounded almost like an omen of doom in the ears of those, who dared to withstand the irresistible command and authority of the Constitution. If I believed that either under the law as it is laid down in the Constitution, or under any honorable obligation which was understood as between the people of the various States, or as between our constituents and ourselves, we are bound to institute a High Court, I should be prepared to carry out that obligation, even though I felt that it would be an unwise step to take. But T say just as emphatically in intention - if not in language - as that used by the AttorneyGeneral that no such mandate is contained in the Constitution. I think that the omissions from the judiciary chapter of the Constitution are quite as significant as are the words included in it. Let us take an illustration which was used last night by the honorable and learned member for Bendigo. There is a direction contained in the Constitution that the Federal Tariff shall come into force within two years from the establishment of the Commonwealth. That is plainly an instruction that as soon as possible a uniform Tariff is to come into operation. Similarly, let us take the section which declares that the Parliament shall meet within six months of the inauguration of the Commonwealth. That is a direction that as soon as possible the Commonwealth Parliament shall , be elected. Time is the essence of the contract. But in the sections of the Constitution dealing with the establishment of the Judiciary no such time limit is imposed. They merely provide that a High Court shall be ultimately established to complete the various powers which are contemplated under that instrument of government. No specific time is mentioned for the establishment of that tribunal, and obviously the1 sections referred to, if read fairly, show that Parliament is to decide when, in its opinion, it is desirable to create it. The people of Australia in accepting the Constitution have implicitly trusted us to establish the High Court at a time when it shall be deemed desirable so to do’. Nor do I place any stress upon the suggestion that if we do not obey any of these mandates - if they are mandates - contained in the Constitution, there is no practical power that can compel us to do so, because I think there is one power left to compel us to carry out these orders. I refer to the power of the electors, who choose the Parliament which has to carry out these mandates. In my opinion the public of Australia, and wisely too, are not directing us at the present time to establish a High Court. The Attorney-General pointed out that, in addition to what appeared to be mandates, there were also options given in the Constitution. He enumerated every option except that of time, which is the essential one in this particular case. In framing the Bill he has exercised, with one exception, every option that the Constitution gives with regard to the Judiciary. Every optional power that we can confer upon the High Court he proposes to confer upon it, and he has exercised every option except that of waiting until the time is ripe for the establishment of the court. I think there are matters of more importance and urgency for which the people of Australia are asking more insistently than they are asking - if asking at all - for the establishment of a High Court. It is essential to remember that fact when we realize that we have but comparatively few months at our disposal before this Parliament will end. I have no sympathy with the suggestion which has been made that if this Parliament makes sufficient progress with its work this session, there should then be a general election for the House of Representatives at the end of the present year. In the circumstances, I think it would be outrageous for the Parliament not to hold an election for the House of Representatives concurrently with the Senatorial elections to be held at the close of the year.
– If we did not do so, extra expense would be involved.
– Yes. I do not think it should even be suggested that that event depends upon the progress of business in the House of Representatives. It is not even a desirable suggestion, and it is nob calculated to assist the due expedition of business. There are certain things to which we must attend during this session. We have very little time to do so, and we ought to set to work to do that which is absolutely essential instead of dealing with matters about which, or about the urgency of which, at any rate, there is a great diversity of opinion. In regard to the establishment of the High Court, we have also had quoted to us - I admit not with any great insistence - -“the precedent of the United States. It has been pointed out that the United States established its Supreme Court practically immediately after the federation had taken place ; but it did so .in circumstances entirely different from those in which it is proposed to establish a High Court for Australia. It is eminently desirable that there shall be some final court of appeal, which shall cause the current of judicial opinion to flow along defined and uniform channels, so that, whether the law is good or bad, litigants shall be assured of certainty in that respect, whatever else they may not be certain about. We have the Privy Council to discharge that function, but the United States had no such court.
I confess that, apart from pressing questions of immediate necessity, I would, much prefer an Australian final court of appeal to the Privy Council. I think we ought to have the best tribunal, and I do not think the Privy Council is the best available, even in the British Empire. I believe that an Imperial final court of appeal could be made a much stronger court than is the Privy Council at the present time, good as the Privy Council may be, and sound as its judgments usually are.
– It did not come off too well in the New Zealand case.
– It did not. I have not studied the New Zealand statutes sufficiently well to be able to say whether the Privy Council was wrong in its law in that case ; but I have read the newspaper reports of the decision of the local, court, and the law reports of the judgment given by the Privy Council, and I say undoubtedly that if I had been one of the members of the Judicial Committee of the Privy Council I should not have thought it necessary to pass what was practically a reflection upon the independence of the New Zealand Court. Apart from all questions of law, however, I think the Judicial Committee of the Privy Council did what, in colloquial language, we should call a fair thing ; although they certainly said things about the New Zealand court which they had no right to say. I should prefer an Australian court to the Privy Council ; but, in considering the United States precedent, it must be remembered that we have the Privy Council available to us, while the United States had not. We have Supreme Court Benches in Australia, from whom there is the right of appeal to the Privy Council, and upon whose impartiality, at any rate, I have heard no justifiable imputation.. We have Supreme Court Benches in Australia which are independent of their Legislatures, because the members of those Benches have practically permanent tenures of office. But, in the United States at the time referred to, all the Judges were elected ; and I venture to say there was one case which did more to cause the establishment of the Federal Supreme Court of the United States than did any- abstract considerations. I refer to the case with which the Attorney-General is familiar - the paper money case in Rhode Island. We all recollect that the Legislature of Rhode Island did not approve of the decision in that case, which declared their law making the paper money legal tender to be unconstitutional. The Judges were elected annually hy the State Legislature, and while that Legislature did not impeach or remove them, it did not re-elect them at the end of their year of office. If we had anything of that kind in connexion with our State benches, no circumstances should prevent us from immediately establishing a court which would not be open to the very grave objections to which every elective system of Judges is exposed. In many of the States of America all the Judges are elected, while in most of the States some of them are ; consequently there is still a reason which we do not find in Australia for a court like that of the Supreme Court of the United States. It seems to me, therefore, that none of the conditions which existed at the time of the establishment of the Supreme Court in the United States, and which made its establishment essential, are at present existent in Australia, and that when the Attorney-General speaks of the establishment of the High Court, and draws such a glowing picture of all the beneficent results which are to flow from its creation, he is dealing rather with ideals than with actual facts ; he is getting away from the practical facts which confront him, and which offer objections to the course which he proposes to pursue. Then the honorable and learned gentleman said, in reference to some criticisms that have been made upon his proposals during the debate on the address in reply, that we were “ scarcely federal,” and “.scarcely taking a federal view.” There is a certain degree’ of truth in that charge. We sometimes failto fully recognise that we are dealing with the whole of Australia, rather than with the individual States with which most of us have been familiar during our lives. But I would retort upon the honorable and learned gentleman that if in this Parliament we are scarcely federal yet, notwithstanding the opportunities we have had to enlarge our views, ‘ the people of Australia are still more open to that allegation, and that there is a primary duty, greater than the establishment of the Federal Judiciary, cast upon this Parliament - the duty of making the people of Australia federal in their feelings and thoughts. In order to achieve that result it is essentially necessary that this Parliament, even at the sacrifice of matters which, it would otherwise think desirable, shall not pass legislation which does not appeal to the growing federal instinct of the people of Australia. It is just such a measure as this, the advantages of which are not immediately obvious, although its supporters may ultimately be convinced that the advantages exist, that does not appeal to the federal instinct of the people. It is just such a measure as this, whose advantages are not immediately obvious, while the expense which it involves is palpable, that causes the people of Australia to feel dissatisfied.
– That may be only the Victorian view.
– So far as I am able to j udge, from conversation with honorable members, the opposition to this Bill is not confined to Victoria. An honorable member, when he is speaking, must refer to that which he knows, and I repeat that, in my opinion, the advantages of this Bill are not obvious, and in no respect equal to the disadvantages which it now offers. Those disadvantages are obvious, and I venture to think that the great majority of the people of Australia have no desire at the present time for the establishment of the High Court, with the inevitable expense which it must involve.
– The desire for it seems to exist to some extent.
– Yes. I suppose the honorable member is referring to public opinion in Western Australia. He knows that State thoroughly, and, if I may say so, much better than he knows the other States. But he will not find any excessive enthusiasm, even in Western Australia, in favour of the establishment of the High Court. It is not one of those questions with which a Government could sweep the polls, for example, or in favour of which there is an overwhelming mass of public opinion.
– There is nothing to enthuse about.
– Exactly. One reason why a proposal of this kind should not be pressed at the present moment is that in most of the States - with the exception of Western Australia, which, perhaps owing to her special Tariff, is more fortunate in this respect - the Governments, as Governments, are hard up. In Victoria they have been pursuing a policy of retrenchment of the most drastic kind. I do not express any opinion as to whether it is right or wrong, but as a matter of fact there have been economies of the most drastic kind practised in this State. So far as I am aware that policy has not yet been taken up in New South Wales ; but I fear the day is coming when that State will find it just as necessary to adopt it. No State can indulge in an unlimited orgie with loan moneys, or any other kind of moneys on which it can lay its hands, without having to pay for it in the long run. I must say that in the past the eastern States have certainly not displayed, through their Governments and Parliaments, that excessive desire to be careful in the expenditure of money - that desire for the avoidance of any unnecessary expense - that tends in the long run to satisfactory domestic conditions.
– All the blame is thrown on federation.
– I do not care who is blamed for this state of affairs. Although at times one has seen tendencies towards extravagance, and although one may point to isolated cases in which sums of money might have been saved, this Parliament on the whole has not been extravagant. It is economical in its spirit, more economical than was, at the outset, the Government which leads it. Indeed some people will say that the Parliament as a whole exhibits a more economical spirit than do some members of the Government at the present time. My experience has been that ‘ it is the parsimonious man who prospers rather than the extravagant man.
– If we do not speculate we cannot accumulate.
– Accumulate what - debts ? Most of the States at the present time are in a condition in which even comparatively small sums of money are of moment to them. Every penny we spend is taken from them, and it is our duty to avoid expenditure wherever it is possible to do so. The Attorney-General suggested that the establishment of the High Court would ultimately save money in the direction of the States Judiciaries. As to that I have the very gravest doubt. The inevitable result of the establishment of federation must be, for a time at any rate, not to decrease the crop of litigation. There are all kinds of new questions coming up for decision - new in the sense that there are no precedents to guide us, unless we go to America, where the circumstances are frequently so different that we cannot avail ourselves of their decisions. I do not think that the flow df current litigation will diminish to any material extent. As in very few matters will there be such an amalgamation of laws as will diminish the volume of litigation, I do not see how we can hope that the total volume of litigation in the Commonwealth will be anything but appreciably increased by the consummation of federal union. The fact that there is one customs law for the whole of Australia will not diminish litigation in Victoria. There was one customs law for Victoria before federation, and there is one customs law for Victoria now. As a matter of fact, there has been more customs litigation in Victoria during the last twelve months than in the preceding ten years. I do not say that the administration of the Department has been improper. I do not wish to express any opinion upon the subject at the present time, because it is irrelevant. But, in this case, the facts show that litigation has been increased rather than diminished by federal legislation. The only way in which the work of the States courts can be lessened is by taking from them and giving to the High Court almost exclusively a large amount of the business which they now have to transact. I do not think that a desirable course. In my opinion we cannot hope for any appreciable saving in the expenditure upon .the States courts from the establishment of a High Court. When the Attorney-General tells us that his proposal is an economical one, and contrasts the proposed expenditure under the Bill with the present expenditure upon the Supreme Courts of the States, he is, in my opinion, founding his comparison upon a false basis. He forgets that there are two kinds of economy, the first of which consists of spending nothing unnecessarily upon existing institutions. I believe that if the High Court were in existence that kind of economy would be practised under the Bill. The second kind of economy lies in avoiding the establishment of institutions which require the expenditure of money until they are absolutely necessary. The honorable and learned gentleman is not proposing to practice that kind of economy. Of course, in his opinion, the establishment of the High Court is necessary, but I did not hear a word from him last night, which carried to my mind that conviction, or even a reasonable justification for the opinion. Consequently it seems to me that he is proposing to indulge in the extravagance of establishing an institution which will cause an expenditure of money when its establishment is not immediately necessary. I have already said that I do not think that litigants will save anything in expense by appealing to the High Court ; neither do I think that they will save very much in time by doing so. Furthermore, the number of appeals is likely to be so small that the establishment of a High Court to save a short delay in dealing with a few cases a year is like using a steam hammer to crack a nut. I wish now to draw attention to the jurisdiction which it is proposed to give to the High Court. The Attorney-General in speaking of the desirability of establishing a High Court spoke chiefly upon the need for a duly qualified, duly respected Australian Court of Appeal. But the Bill proposes to do more than establish an appellate court, and I am forced to the conclusion that, consciously or not, the Attorney-General proposes to give the High Court so much original jurisdiction because he feels that there would not be enough work to justify the creation of a purely appellate court. If all the work which it is proposed to give to the High Court goes before the five Judges, who are to be appointed, ‘they will certainly have plenty to do. It seems to me that the Government is endeavouring to do with a single court what it takes in the United States two sets of Judges to do ; because there they have a Supreme Appellate Court and Circuit Courts. The Attorney-General, however, intends that the Judges of the High Court shall act as an Appellate Court, and also go on circuit. But they will not be able to carry on’ both functions satisfactorily if the High Court, in its original jurisdiction, gets all the work which it is possible under the Bill for it to receive. In my opinion’ the bulk of that work will not go to the High Court, but will, in the vast majority of cases, continue to go to the States courts. If that be so, it obviates the necessity for the creation of a High Court, with original jurisdiction, at the present time. But if the work does not continue to go to the States courts, litigants will have to suffer great delay in get-ting their cases heard by the High Court. The Attorney-General drew attention to the fact that the Judges would frequently visit the capitals of the various States, and to secure business for the High Court he provides for the removal of causes by defendants to that Court as of right. That is tantamount to inviting defendants to go to the High Court, so that they may be able to postpone trials for longer periods than could elapse if the cases were heard before the States courts. The Government propose to set up an unnecessary rival to the six Supreme Courts of the States by giving to the Judges of the High Court a jurisdiction which they will be quite able to satisfactorily carry out.
– Will the High Court do better work than the Supreme Courts of the States t
– I do not think so. I do not think we could expect better work from a Judge of the High Court than from a Judge of the standing of the members of the Supreme Courts of the States. The Judges of a High Court will be chosen from the same class of men as are the Judges of the Supreme Courts of the States, and, on the whole, appeals from the decisions of Justices of the Supreme Courts of the States are not frequently successful. The original jurisdiction of the High Court will, to a large extent, be ordinary nisi prius work, and I do not see why State Judges should not do it as well as Federal Judges. I am not enamoured of the proposal that Federal Judges shall wander from capital to capital to do work which there are already State Judges able and willing to perform. During the recess the Government expressed a willingness to become a peripatetic Administration, and they still seem to have the ambulatory disposition, since they are now proposing to set up a peripatetic High Court. A stationary court would be very much better. I see no reason for giving the proposed original jurisdiction to the High Court.
– What has the honorable and learned member to say on the subject of appeals upon constitutional questions ?
– There is nothing to prevent appeals upon constitutional questions being taken direct from the Supreme Courts of the States to the Privy Council.
– Does the honorable and learned member object to that, or does he think it a good thing %
– If we had a final court of appeal in Australia, and circumstances were not as they are at present, my preference would be for an Australian final court of appeal. Such a court would satisfy Australian aspirations and sentiment. But we have something else to satisfy just now, and that is the Australian pocket. Federation itself was a sufficient satisfaction for our sentiment; but it will not continue to be satisfied unless our pockets are satisfied too. I have no sympathy with talk such as that cabled from England the other day about bonds of mutual interest being in any way squalid. I think that mutual interest is a matter of very great importance in every community, and that its consideration is very desirable, for the well-being of- the State. But at the present time, seeing how few constitutional questions are likely to arise, and that all matters of appeal may go direct from the Supreme Courts of the States to the Privy Council, and that there may be an appeal even from the High Court itself except in two or three cases, it is obvious that we cannot obtain that Australian final court of appeal which was contemplated by many people when the Convention was sitting. We cannot now get the kind of court we want, even if it %vere desirable to establish a High Court of Appeal immediately. I have very grave doubts as to the constitutionality of the provision referred to by the honorable and learned member for. Northern Melbourne last night, compelling appeals to the High Court from judgments by the States Courts within the limits of their federal jurisdiction. I do not bind myself to a definite expression of opinion on the subject, but my present impression is that that is ultra vi/res of the Constitution, because it exceeds the powers conferred by section 77. I do not think it comes within the words authorizing the definition of jurisdiction, but I admit that the point is open to considerable argument. In my opinion the provision is a vain endeavour to secure appeals to the High Court instead of allowing appeals at choice to the Privy Council. I have now related briefly some of the reasons which compel me to vote against the Bill. I take that course with no pleasure, because I would rather support a measure introduced by the Government of which the AttorneyGeneral is a member than oppose it. Still, one has a duty in these matters which is higher and more important than any consideration of that kind. But while I shall vote against the Government with reluctance, I shall have no reluctance in voting against the Bill, because I feel that it is not necessary, and that our duty is to see that nothing is done in the way of spending money unnecessarily.
– I should like to say a word or two upon this measure ; in the first place, because, viewed from any stand-point, it must be regarded as of the highest importance; and in the second place, because that importance has been enhanced by the eloquent speech of the honorable and learned gentleman who has charge of the Bill. But he has apparently exhausted the arguments which can be used in favour of the measure, because, so far as I can learn, no other honorable member on either side of the Chamber is ready to say a word in support of it. Doubtless, those who will support it are away trying to find reasons for doing so. Those who have opposed the Bill have dealt with it from strictly legal standpoints. I propose not to traverse the ground upon which they stood, except to a slight extent, but to confine myself almost wholly to points upon which they have not touched, or which will bear further argument. I think we may take it for granted that, as an integral part of all federal Constitutions, there must be a court to adjust the relations between the various component parts of the Federation. We have been told by the Attorney-General that it is mandatory that the High Court should be established, but we need not discuss that point for the very simple reason that this mandate has no element of time in it. It is therefore a matter of indifference so far as Parliament is concerned. The provision in the Constitution amounts to very much the same as if we were told - “ You can do it if you please, or you need not do it at all.” But I think we might consider for. a moment the very pointed references that have been made by the Attorney-General to the Constitution of the United States, and to the very important part played by the Judiciary in its development. We need not hesitate to accept the statement, that had it not been for the Judiciary, or more correctly speaking, perhaps, for Chief Justice Marshall, undoubtedly the American Constitution would have tottered headlong to ruin in the early part of its existence.U ndoubtedly in America the J udiciary has played a very important part, as it must do under a Federal or any other Constitution in which the law is a settled and stable institution. It has done so even in England. The Minister has sought to draw an analogy, and certainly there is one - although how far it holds is another matter - between the American Constitution and the importance of the Judiciary in all such Constitutions, and our own. At the same time he pointed out that there are very great distinctions between our Constitution and any other. He has reminded us that we have something of the American, something of the Canadian, and something of the Swiss Constitution, and also elements which are not to be found in any of them, and that we should judge our own Constitution as a whole, and not confuse it with any of those from which we draw it. At the same time it is undeniable that the Attorney-General has sought to show us chat the Judiciary to be established here is to take for its pattern that of the United States. It is necessary to consider for a moment the powers of the Judiciary where there is a written Constitution with fundamental constitutional laws, capable of being amended only in a certain way, and differing altogether from the ordinary laws, and of the Judiciary in any one of our States or in Great Britain. The function of the Judiciary in Australia and in Great Britain is to declare what the law is. It interprets the law, and having declared it in the lower courts, power of appeal exists to the higher courts or to the highest court of the Empire - in England to the House of Lords, and outside of Great Britain to the Privy Council. Even when the law has been declared by the highest of these tribunals we are by no means shut out from further redress, because we may appeal to Parliament and have the law altered. Where there is a written Constitution, which is not susceptible of amendment in the same wayas the ordinary laws under which the citizens live, then the J udiciary is a supreme power. You cannot get behind the Judiciary. It is at once the interpreter and the guardian of the Constitution. You may appeal to Parliament, and you may, if you have plenty of time and energy and hope, appeal to the people, but the Judiciary is the beginning and end of all things, and behind that you cannot go. You may, if you like, submit everything to the arbitrament of arms, and then you may, perhaps, secure an amendment. But as the Attorney-General was careful to point out, there has not .been an amendment of the American Constitution, except during the earlier months of its existence, beyond that achieved by the civil war. Now, we have never experienced anything of this kind in these States or in Great Britain. When a judgment has been given, even by the House of Lords or the Privy Council, we have never sat down tamely and said - “ That is the beginning and end of things,” but we have agitated and appealed to Parliament to get the law altered. The Judiciary, whilst we have honoured ‘ it and looked up to it, has never held the same position as in the United States. The Attorney-General seeks to establish such a Judiciary here. He is not satisfied with the mere declaration of the law. That could be effected by a State Court, or by the appointment of any Judge who can interpret the Constitution and understand the law. Even by what my honorable and learned friend calls a scratch court, as well as by the carefully erected Federal Judiciary that he proposes. The Attorney-General, in short, asks honorable members to erect a Federal Judiciary which is to have great powers in the interpretation of the Constitution. He said in the speech with which he introduced the Bill in the first instance, that the Constitution was written at large - that the details were not filled in, and that it was necessary to have men well trained and with ‘able minds to interpret it. We were told, in effect, that whilst the Constitution was up to date in 1900, the requirements of the people and the exigencies of the situation as time progressed would demand that it should be drawn out at one point and filled in at others. Now this means that we are to intrust to the Judiciary the task of filling in the Constitution. Here is an empty building, the appointments of which are evidently to be left to the tastes of the tenants from time to time, and the Judiciary is to be intrusted with the task of finishing and completing the structure. But those who are far more familiar with the traditions of parliamentary methods would rather see it performed by the means hitherto adopted.
– We must have a judicial interpretation of doubtful points before we can know whether it is necessary to amend or not.
– But it is not so much the judicial interpretation of doubtful points at which we are aiming. What the honorable member has in his mind is very’ clear. It is not the doubtful points in the Constitution, but those which admit of nodoubt, those which the public will notface - stone walls. The people say, “ You must either make your way through thisstone wall, under the Constitution, or weshall knock the wall down,” and the AttorneyGeneral prefers the Judiciary and its. ingenious methods of going round or over or under stone walls instead of that straightforward way of knocking the walls down and have done with it, by which we have achieved every liberty we possess. He says that if it had not been for the Judiciary in America, the Constitution in that country would notbe the revered instrument it now is. That is very true. There would have been no Constitution and may be no United States if it had not been for the Judiciary. But we arenot to argue from that that our position is analogous. In America there was no other method of getting over their difficulties. They had to rely on the Judiciary, or appeal to arms, or to disband and thereby abandon all hopes of national life. These alternatives are not presented to us. We can get an interpretation of our laws from the Privy Council or from the StatesCourts, and we are not likely to be involved in any very serious difficulties under this head, because we are only six States asagainst thirteen at the outset of the federation of the United States. More than that, the American Constitution is very much more difficult of amendment than ours ; and the fact that ours is so difficult is not due to our fault but to that of the AttorneyGeneral and those who acted with him. Those very honorable members who are now crying out for means to get round theawkward places were those who went through the land pointing’ out how easy itwas to amend the Constitution. Now theAttorneyGeneral says that whilst our Constitution is not nearly so difficult of amendment as is that of the United States, still it remains difficult of alteration. Hesays -
As honorable members are aware, scarcely any amendments have been made in the Constitution of the United States without a violent national convulsion. Of amendments of the Constitution in the ordinary constitutional fashion, there arepractically none. At this very moment there are before the Congress sitting at Washington no less, than 44 Bills for amending the Federal Constitution, and it is the confident opinion of those whohave watched the course of American, legislation,. that not one of them is likely to become law owing to the complicated assents they have to secure. Under these circumstances the Americans have found themselves with a Constitution which might have been a dead letter, and must have been a heavy burden, but for the fact that they had created a Supreme Court capable of interpreting it, a court which had the courage to take that instrument, drawn in the eighteenth century, and read it in the light of the nineteenth century, so ;is to relieve the intolerable pressure that was being put upon it by the changed circumstances of the time. It is not too much to say that, but for the work done in this direction by the Supreme Court of the United States, we might not to-day see it a» it is still, the revered bond of union of 70,000,000 or 80,000,000 free people. Precisely the same situation must arise in Australia, for although it be much easier to amend our Constitution, it is yet a comparatively costly and difficult task, and one which will be attempted only in grave circumstances.
That it is a difficult and costly task is entirely owing to the fact that certain gentlemen would insist upon our having this Constitution or none whatever. It’ is a difficult and costly task to secure amendments of the Constitution under present conditions, but it is no more so than it would be if we had a Federal Judiciary. An appeal to the people would involve an outlay exactly equal to the expenses of conducting a general election, and we may estimate that that would reach the sum of £50,000. It is proposed to erect the High Court at a minimum cost of £30,000 per annum, and we might therefore appeal to the people once every two years at a smaller cost than that i n vollved in maintaining the Federal Juddiciary for the same period. However, that is only one way of looking at this measure, and perhaps not altogether a fair way. So far as the amendment of the Constitution is concerned, we can see that we could effect our purpose as easily, at any rate quite as cheaply, as through a Federal Judiciary. The Federal Judiciary in America has read into the United States Constitution clauses and provisions that its framers could never have contemplated. I defy any human being who has read that Constitution to find any grounds for such elastic decisions as have been given by the Supreme Court of the United States. The Judges have been only human, and they have been aware that there must be decisions such as they have given, or the conditions would be so intolerable that it would be impossible for the Constitution to cohere. As Bryce puts it-
The Supreme Court feels the touch of public opinion. Opinion is stronger in America than 2 y 2 anywhere else in the world, and Judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken. There is, moreover, this ground at least for presuming public opinion to be right, that through it the progressive judgment of the world is expressed.
Public opinion thus finds its only method of permanently impressing itself upon the Constitution of America through the Federal Judiciary; that is to say, through public meetings and the press, and other means which the public have of making their opinions known. We have always distinctly set our faces against any recognition of public opinion which did not find its expression in one of two ways, either through a plebiscite or through Parliamentary representation. It has been said by the Honorable B. P». Wise, a gentleman very closely allied with the Attorney-General and with the Prime Minister, that the referendum is opposed not only to the principles of representative government, but to the very spirit of the British Constitution, and undoubtedly we now have presented to us a method of governing through the press and public meetings, for in no other way could the J Judiciary feel the impress of public opinion. Thus we are not to have public opinion rightly, sanely, and constitutionally expressed at the ballot-box, but we are to have it expressed by the Judiciary when the latter can no longer withstand it. When, in short, it is necessary to avert a dire calamity, such as an appeal to arms, we are to have some sort of a make-shift amendment. The Attorney-General knows perfectly well that under one set of circumstances only can an amendment of the Constitution be effected. There must be such widespread dissatisfaction with it or with some part of it, that the whole of the States, or a majority of them, together with a majority of the people of those States, are simultaneously seized of some disability, and resolve to tolerate it no longer. If we have a Federal Judiciary when such a contingency arises, it will introduce some sort of patchwork amendment by a convenient interpretation of the Constitution, and so, by relieving the pressure here or there, prevent the people from ever securing any beneficial reform of the Constitution.
– I do not agree with that statement.
– The honorable gentleman knows that with the erection of this
Judiciary all hope of securing an amendment of the Constitution disappears.
– I think that the honorable member put the position correctly a few minutes ago, when he said that the people had power to break down the “ stone wall.” The Judiciary has to deal Only with other parts of the Constitution.
– The Attorney-General knows perfectly well that it is only by fighting against “ stone walls “ that the British nation has advanced . Was it not necessary to go against a “ stone wall “ in order to obtain Magna Charta? Was it by judicial decree that that charter was secured ? Was habeas corpus so obtained ?
– They were obtained very largely bv parliamentary agitation.
– Undoubtedly, but how was parliamentary agitation aroused except by the demands of the people outside? In England, no reform has ever been achieved without popular agitation. A notable instance of that is afforded by the great Reform Bill. Did not the people assemble in thousands and demand the passage of that measure ? Is it not a fact that the Duke of Wellington had presented to him the alternative either of giving way or of having the House of Lords flooded ? In short, the people have obtained every liberty which they at present enjoy by direct rather than by indirect effort. If the Attorney-General desires a Federal J Judiciary merely to interpret the law, I say that the State J Judiciaries can perform that duty equally well. But if he desires to erect a Court which will be at once superior to Parliament and the people, he will seek to establish such a tribunal as he advocates to-day.
– No.
– Undoubtedly. Let honorable members consider his arguments in favour of the appointment of this Judiciary. It is to be an impartial Judiciary. What does that mean 1 It means that the existing Judiciaries are not impartial. From the ill-concealed sneer and contempt with which the honorable gentleman speaks of State Benches and the Privy Council, one would imagine that they were composed of men who are tottering upon the verge of senile decay, who sleep whilst evidence is being submitted - a practice not unknown amongst other gentlemen who have occupied judicial positions and who have slept calmly, through days and days of weary iteration of testimony - but have at length woke up and given an admirable judgment upon questions involving thousands of pounds. The right honorable member who leads the Opposition with such distinction sleeps calmly through a great deal of thunderous eloquence from the other side of the Chamber, but manages to give a very effective reply to it when his turn comes. The Privy Council is held up by the Attorney-General as ah institution which is good enough to decide small “ tiddlywinking” matters, such as the determination of whether a man’s life has been rightly taken away by the courts of our country, or whether another man’s liberties are imperilled or his property is at stake. But strange to say this’ body of gentlemen, who have been trained in the Imperial Courts of the Empire, who have attained to the highest position within the gift of the Imperial Government, who are above ambition, for they have attained the highest of legal rewards - above the possibilities of bribery - who have achieved all in the way of reputation and career that this life has to offer, are adjudged incapable of settling constitutional questions, such as how the riparian rights of South Australia and New South Wales are to be equitably adjusted. In the minds of some honorable members these grave constitutional questions call for the exercise of abilities that no other men in Australia, and certainly none of those upon the States Judicial benches, possess. Apparently the members of the Privy Council are quite unfitted even to attempt to grapple with them, though there are some gentlemen in Australia with whose names we are not acquainted who are qualified to undertake the task. Their abilities we can only suppose to be supernaturally acute, otherwise the Attorney-General would not speak of them with such confidence. These gentlemen -know exactly the position. They are acquainted with the intentions of the framers of the Constitution. They propose to violate the very first principles of law, in that they purpose interpreting the Constitution, not as it is expressed in the bond, but according to the intention of its framers - a proceeding which no court would tolerate. We are told that the High Court is to be constituted of men whose sympathies are with the Federal Government. What does that mean ? It can only mean one thing, because the chief objection urged against the Judges of the States Supreme Courts is that they are biased against the Commonwealth Government. In plain language, it means that the Federal Judiciary will be biased against the States. If it does not mean that, it means that somewhere in our midst we have a body of men unafflicted with the ordinary frailties of mankind, for, whereas the States Supreme Court Judges are to be biased in favour of the States, these men will be biased in favour of nobody. Are we to entertain the suggestion that the States Supreme Court Judges would not dispense justice? Are we to suppose that the rights of our fellow citizens are of less importance than are those of the States in constitutional questions t If a man is standing his trial before a. court, his liberty, his property, or even his life may be at stake. Is it npt of importance that the Bench which tries him shall be without bias, and shall dispense justice without fear or favour1! I admit that we require men of ability upon the Judicial Bench, but I should be very sorry to imagine that our States Judges did not enjoy a well-deserved reputation in that respect. To say that either the States Supreme Court Judges and the Privy Council, above all other bodies are not capable of determining any constitutional questions that may arise, is indeed an extraordinary position to take up. The Attorney-General declares that if we establish the High Court, time will be saved in securing decisions in cases of appeal. He pointed out that the decision of appeals to the Privy Council occupies upon an average a year and nine months. Very likely it does. But, even admitting that, how long, I ask, is occupied in obtaining decisions in appeal cases in the United States’? There, appeals have been known to be hung up for years. The question of whether a man had committed an offence upon Federal or State territory affords an admirable instance of this. Its decision has been left in abeyance for 3’ears, during which time the unhappy litigant has been at large, and, for aught I know, remains so to the present day. In the United States, I understand, one can hang up anything or anybody. After all the glowing panegyrics which have been uttered upon the American Judiciary have all its decisions given approval t What is it which gives this Federal Judiciary such prominence? Its ability and incorruptibility are undeniable, but in that country incorruptibility means something, whilst in Australia it means nothing. 1 do not believe that any court in the British Empire has ever been guilty of corruption, and therefore to argue that in America the Federal Court is incorruptible, is to say nothing. It merely affords a refreshing contrast to the States Courts there, which obviously are not incorruptible. If we accept the statement of one eminent American, some of the courts of the United States are not incorruptible. The State Judges there hold office during the pleasure of parties, but the members of the Federal Judiciary do not. Their position therefore is entirely different. The State Judges hold office during pleasure, but the Federal Judges cannot be removed except after impeachment upon certain well defined methods. Here we have courts that are at least impartial, that are possessed of ability and are incorruptible, and I do not see what advantage we are to obtain from the creation of the High Court. We are to expend a sum of money which in the maximum will amount to £30,000 a year. We have recently passed through a distressing period. We were told during the federal campaign that the Federal Judiciary would cost a certain sum.
– I have said that the cost has been estimated to be ±’23,715.
– I remember that’ Mr. Wise was before the country, and acted a very useful part in that campaign. He was a sort of John the Baptist, going before the right honorable gentleman at the head of this Government to prepare the way, and to leave him to qualify many things which he said. Mr. Wise said that the whole cost of Federation would be something les? than a dog tax, and he held up to ridicule and contempt those parsimonious wretches who would not even face the cost of an extra dog tax a year. But this Bill involves something more than the payment of a dog tax. It is a regular pack of hounds which the Attorney-General proposes to let loose upon us. £30,000 a year is to be the maximum cost.
– The minimum.
– In these circumstances they are convertible terms. The Government propose to involve us in this expenditure, and they tell us that there is a sheaf of cases awaiting determination. They also remind us that this is the third year of the Federation ; but whose fault is it that this measure was not introduced last session at a stage that would have permitted it then to become law. The fault rests with the
Attorney-General or his colleagues. The honorable and learned gentlemen brought in the Bill last session at a stage when it was physically impossible to pass it into law. He brings it before the House now, and he reminds us that he is doing so in the third year of the Federation. But for three years we have managed to pull along without this Judiciary; there is no rumour of war outside, and those learned gentlemen, who are teeming with ideas as to how this Constitution ought to be developed, are lying low. Thanks to fairly substantial showers of rain, the country is pulling through, and it ‘appears to me that in the circumstances there is no real reason for any hurry. If a Federal Judiciary is wanted - and I admit that some court is required - there is no reason why a tentative arrangement should not be made, that would enable us to go on for another three years. If that scheme proved unworkable we might then come down and accept the Attorney-General’s proposal for the creation of a permanent tribunal. If the temporary tribunal proved incapable of carrying out its work, if the litigants would have none of it, if its judgments excited contempt and were continually overruled by the Privy Council - if in short, the members of that temporary court proved themselves incompetent - what would be easier than to erect such a tribunal as is indicated in the Bill ? We are told, however, that we must at once have that tribunal. The honorable and learned member for Bendigo very properly pointed out last night that we are now within measureable distance of an election. We are going to ask the people some questions. Doubtless they will put some to us, but whether we or they shall be able to answer them the more readily I do not know. I propose, however, to ask my constituents whether they think this Federal Judiciary necessary If they say they do. it is extremely probable that I shall vote for it. I remember a colleague of mine in the New South Wales Parliament - a representative of that canny and indomitable race that is found all over the world except in Scotland- -who said on one occasion in the House that he had been down tu his constituents ; that he had just laid the matter before them ; and that his constituents told him in so many words that they were not in favour of it. In these circumstances he said that he could not see his way to vote for the Bill in question.
I am not in that position. I have not had the advantage of laying this matter before my constituents, but I do say that they will look twice at their share of the £30,000 a year which this proposal will involve, before they consent to its expenditure. So far as I know my constituents have been, very far from content with the very small benefits that they have received from Federation. They are paying very handsomely for what they have secured from it. They have one flag and one destiny. They may wrap the flag around them, and their destiny is undeniable. But I think a demand for this payment of £30,000 per annum is more than they are at present inclined to stand.
– The honorable member should double that sum.
-I think so. I believe the Attorney-General will find it difficult to show why we should not adopt a tentative scheme. Confer Federal jurisdiction on a Court composed, if you like, of the Chief Justices of the various States, and impartiality must be the result. The honorable member for Gippsland has very clearly pointed out the position. He said that a matter concerning a State might come before a Federal Bench composed of the Chief Justice of each of the States. The case might concern two States, but we cannot imagine that it would affect more. The honorable member pointed out that, even if it affected three States, there would still be three members of the Bench who were disinterested. In 99 cases out of 100 there would be only one or two States interested, and the Judges from all the other States would be quite impartial. It would bo impossible to obtain a more impartial Bench so far as Inter-State questions are concerned. If we have the High Court proposed in this Bill, the members of that court will come either from one or several States, and they will presumably be biased in one direction or another. If not, they will be persons so far removed from the ordinary frailties of mankind, that certainly we do not know them now. Public life has not seen them ; the Bar has never heard of them, and probably will never know them. I believe, -indeed, that the Federal Judiciary will not know” them. Such people are interesting characters to read about, but not to know. The honorable member for Bland said that we should have some control over the Federal Judiciary. Of course that is not so. We can ha ve no control over a Fed era or a State
Judiciary. Both will be equally independent, and no kind of control could be exercised by us in either case. Therefore, that ‘ point is not worthy of consideration. It is held by some honorable members that a Federal Judiciary would be of great service in controlling a State which was inclined to pass legislation similar to that introduced a few weeks ago by the Irvine Government. I am -aware that it is imagined that the Federal Court could declare such measures ultra vires. Such a belief is, however, absurd. The Federal Court could do so only if such a measure were an infringement of the Federal Constitution. Whatever may have been the objections to such a measure, they would not have been touched in the slightest degree, as far as I can see, by the Federal Constitution. Whether such a measure would have been repugnant to the laws of England or not is 4i matter which we need not consider. But, at any rate, the existence of the High Court would not have affected it in any way. It will thus be admitted that that point need not be considered. I shall oppose this measure, because I consider that the erection of a Federal Judiciary, with the avowed purpose of rendering it superior to the Parliament and the people, would be most undesirable, Of course the Attorney-General did not say in so many words that that was the avowed intention of the Government, but a Federal Judiciary clothed with such powers and animated with such a spirit would have that effect. This Federal Judiciary is to be animated with the spirit which according to the Government cannot be obtained from any other Judiciary that is not similarly constituted. It is to be created for the express purpose of filling in the gaps in our Constitution, to develop the Constitution here and there in a manner and by methods of which the people had no knowledge when the)’ accepted the instrument, and of which the Imperial Parliament was not seized when it confirmed it. The Judges of the High Court are to be impregnated with the. spirit of the framers of the Constitution.. They are to build up the Constitution according, to some well-defined intentions not expressed in the letter of the Constitution, and they are, so- to speak, to breathe the spirit of the Convention into the Act. Like every other’ citizen of Australia, I am prepared to accept the Constitution just as it stands; to leave to a Judiciary such as I have indicated the task of interpretation, and to the people the business of amending it. I believe that the Constitution can be amended, although not without difficulty, and that it ought to be amended. I understand that the Adelaide Chamber of Commerce recently preferred a request that it should be amended in the direction of making either Melbourne or Sydney the Federal capital. There will be a demand for the amendment of the Constitution in various directions as time goes on, and amendment will come the more readily if we have not a Federal Judiciary that is ostensibly and avowedly placed above the Parliament and the people. Undeniably it is the intention of the Government to erect such a Judiciary. This is what the Attorney-General says -
If the members of the High Court, as we have every reason to suppose they will be, are the best men that Australia can produce, it is inevitable that the court will draw to itself, naturally and without coercion, a considerable share of the litigation which has hitherto (lowed to the Supreme Courts of the States. There may remain a sufficiency of business for the State Courts for some time to come, owing to the growth oE population and the increase of prosper^- ; but it cannot be denied that the business which will be done by the High Court will assist to relieve, not only the State Courts, but the Privy Council.
That is to say, in so many words, that this is to be a dominant court throughout the Commonwealth, and that it will usurp the functions hitherto exercised by the Parliament - that is by the people. The fingers of the American citizen are not so directly on the lever of government as they are here. Here the machinery is direct and simple. The people may at intervals of every three years elect to Parliament whom they choose, and their representatives may make what laws they please. They have hitherto not been bound by any written Constitution. They are now bound in some measure, but they are bound only within the limits of the Constitution. I am quite at one with the honorable and learned member for Bendigo and others in the proposal that the people be given an opportunity at the next election of saying whether they wish for an amendment of the Constitution, and that they should be allowed to determine whether the Court shall be established, or whether we shall remain quiescent, and accept a tentative scheme for the next five years, or, at any rate, until the dissolution of the next triennial Parliament. Let Australia get on her feet. We are now enmeshed in 6ne of the most fearful periods of depression which the country has ever known. Is this the time, now that wo are struggling ‘in the octopus-like grip of depression, to introduce a proposal which, by involving the country in additional expense, will bring the Federal Government into disrepute, and the whole machinery of the Constitution into contempt? There is absolutely no need for the High Court at the present time. If there were an outcry for its establishment, the position would be different. We are told that there are hundreds of cases awaiting settlement. What cases are they ? I venture to assert that no litigant will wait for the establishment of the High Court if he can obtain justice in the courts of his State. If the judgment of the State Court did not suit him, he might then wait until the establishment of the High Court ; but to say that there are hundreds of such cases is to assert what ,does not seem to be the fact. If I had an urgent case, I should take it into the Court of my own State, and, if the decision of that Court did not satisfy me, I should appeal to the Privy Council. But to suppose that hundreds of people are waiting for the establishment of the High Court in order to have their grievances remedied, is to suppose that litigants are changing their usual methods of procedure. Why should a man be content to sit still, and do nothing, before he has tried to obtain a remedy from the Supreme Court of his State? I shall oppose the establishment of the High Court at this juncture, because it would be very costly, and is unnecessary. I have not gone into details, because other -speakers have done that, and if the Bill passes the second reading they will come under our consideration in committee. Undoubtedly the measure is an important one. A Federal Judiciary is an integral part of our written Constitution. But ‘the people can obtain every safeguard they require by the adoption of such a tribunal as I have referred to. As a whole, they will be better satisfied to obtain justice from the Courts which they now know, with an ultimate appeal to the Privy Council,, than to rear at this juncture a costly and unnecessary High Court, and thus burden themselves with expenditure which they were led to believe when they were asked to accept the Constitution, was unnecessary, or, at all events, would not have to be incurred for a considerable time to come. I shall oppose the Bill, and I trust that the motion for the second reading will not be carried. If the second reading is agreed to, . we shall have to do the best we can with the measure in committee.
– After the very able speeches to which I have listened from the Attorney-General, the honorable- and learned member for Bendigo, the honorable and learned member for Northern Melbourne, the honorable and learned member for South Australia, Mr. Glynn, and others who have addressed themselves to the subject, I feel somewhat timid in touching upon a question of such importance as this and one which involves such deep legal issues. But it seems a pity that most of these honorable and learned gentlemen have taken a great dislike to the provisions of the measure. It is something new to find that the proposal for the creation of a High Court, which was so lauded when the people were being asked to accept federation, is now regarded as something to be condemned. According to some of these honorable .and learned gentlemen, the court which we should create is a mere scratch court, which would sit in one place or another as time and the work of the Chief Justices of the Supreme Courts of theStates might permit. We have heard a good .deal about the High Court of the Dominion of Canada, and of the High Court of the United States, but the conditions of both countries are iri no way comparable with those under which the six States of’ Australia have united. We have on this vast continent six States, with different climatic conditions, and different industries, whose people hold different ideas, and have different aims and conflicting political policies. But after some years of consideration and discussion, a Constitution was framed by a Convention appointed by the electors of the States, which was afterwards submitted to them for approval, andadopted. Prominent among the advantages to be secured by the adoption of the Constitution, and for which its adoption wasrecommended by the leading, federalists- who went throughout the country with that object, were the removal of the fiscal barriers then existing between the States, and the substitution of absolute free-trade and the free -interchange of products between State and State ; and the establishment of a High Court to which the people of Australia could appeal with confidence in the integrity and intelligence of its Judges, and with a» certainty of obtaining speedy and reasonably. cheap decisions upon their disputes. A third advantage that was to be gained was the establishment of an Inter-State Commission, a judicial body which would be linked in some degree with the Federal High Court, and which would prevent the interference with Inter-State free-trade which is caused by the war of railway charges and the imposition of preferential rates. Without the establishment of a High Court there can be no Inter-State Commission. The two are closely interwoven, and the High Court is made the final arbiter upon points of law in regard to matters coming before the Inter-State Commission. That being so, the question arises, in my mind, how is it that those who are so much opposed to the establishment of a High Court, some of whom were members of the Convention, did not there raise an objection to the idea on the score of the probable immense cost of the institution, or because it would be unnecessary. Why did they not raise those objections when they were recommending with all eloquence and fervour the adoption of the Constitution to the people of Australia? The creation of a High Court was put before the people as one of the best things next to Liter-State freetrade and the creation of an Inter- State Commission to be gained from Federal union. The people of Australia - I speak from personal knowledge of my own State and from what I have read of the feeling of the other States - evidently approved of the establishment of Inter-State free-trade and the creation of a High Court and an Inter-State Commission. If they had not done so, they would not have voted by an overwhelming majority for the Constitution.
– How often was the establishment of a High Court advocated on public platforms ?
– The question was referred to by every person who submitted himself for election to this Parliament. The creation of the High Court and of the Inter-State Commission were both advocated. I believe that the honorable and learned member for South Australia, Mr. Glynn, suggested in the Convention that the High Court should be constituted of the Chief Justices of the Supreme Courts of the States. That idea was not accepted by the Convention ; but the honorable and learned member did not then oppose the creation of a High Court. Far from it ; he even went the length of desiring to make the High Court the final court of appeal, and abolishing the right of appeal to the Privy Council.
– But the Convention finally retained the right of appeal to the Privy Council.
– Yes, but to my mind that was a grave mistake, and one which should be remedied if possible. The importance of establishing aHigh Court and an Inter-State Commission is such that an expenditure of £30,000 or £40,000 per annum, which would be distributed amongst nearly 4,000,000 people, sinks into absolute insignificance compared with it. The AttorneyGeneral gave it as his opinion that section 71 of the Constitution is mandatory, and I am inclined to agree with him, though other speakers have combated that view.
– While mandatory, it is permissive as to time.
– Yes ; but I think that I shall be able to show that it has ceased to be permissive as to time, because of the action of this Parliament in passing certain measures. Section 71 reads as follows : -
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 as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice and so many other Judges, not less than two, as the Parliament prescribes.
The Attorney-Generalargues that the judicial power of the Commonwealth must be vested in a Federal Supreme Court, and I agree with him. Iam inclined to think that the Minister has missed the full meaning of one little word that puts a strong complexion upon his argument, and which seems to force us into the position of establishing the High Court. The word to which I refer is “ and,” and it occurs in this way -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, . . . and in such other Federal Courts as the Parliament creates, and in such other courts as it invests with Federal jurisdiction.
This does not provide that the judicial power of ‘the Commonwealth shall be vested in a Federal Supreme Court, “or” any such other courts as the Parliament may create, “ or “ in such other courts as it invests with Federal jurisdiction, but it is provided that the three classes of Court specially mentioned shall be the repositories of the judicial power of the Commonwealth.
Mr.Glynn. - But the other Federal Courts have not yet been created.
– They have been, to some extent. .
– No, they have not, and there will be. no reason for creating them for another generation or two.
– Certain Courts have been vested with Federal jurisdiction.
– Yes, but no “other Federal Courts “ have been created by Parliament.
– I am not so sure about that. I am inclined to think that Act No. 21, 1902, which makes temporary provision for enforcing claims against the Commonwealth, creates “other Federal Courts.”
– No. That invests the States Courts with Federal jurisdiction.
– The Act to which I have referred contains the following provision : -
The Supreme Court of each State is hereby invested with Federal jurisdiction for the purpose of hearing and determining actions and suits brought under this Act, and shall have that jurisdiction as a court invested with Federal jurisdiction, and not otherwise.
Then we have Act No. 14, 1901, providing for the punishment of offences, which in section 3 provides -
The several courts and magistrates of each State exercising jurisdiction with respect to the summary conviction, or examination and commitment for trial, or trial upon indictment or information, of offenders against the laws of the State, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within that State, or who may lawfully be tried within that State for offences committed elsewhere.
Provided that such jurisdiction shall not be judicially exercised with respect to the summary conviction or examination and commitment for trial of any person except by a Stipendiary, Police, or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction.
In these two cases we have invested other courts with Federal jurisdiction, and we shall not completely carry out the provisions of section 7 1 of the Constitution if we ignore the opening words relating to the judicial power of the Commonwealth being vested in the High Court. This judicial power must be vested first and foremost in the High Court, and afterwards in such other Federal
Courts as the Parliament creates, and in such other courts as it invests with jurisdiction. The section does not say “or” in such other Federal Courts, &c. This appears to my lay mind to afford the very strongest reason why we should regard the Constitution as mandatory. It further occurs to me that we had no right to invest any State Court with Federal jurisdiction until we had establishedthe judicial power of the Common wealth by creating a High Court. That should have been the first step, and the others would have followed in natural order. I should not like to go the length of saying that the action which has been taken in this respect is unconstitutional or ultra vires, but I hope that this point will receive the attention of honorable and learned members. In connexion with the provision made for investing the States Courts with Federal jurisdiction, I think, perhaps, it will be advisable to limit the extent to which this may be done. I have not had time to study the Bill as closely as I should have liked, but I fancy that some provision is made in that direction. The suggestion of the honorable and learned member for South Australia, Mr. Glynn, that the Federal High Court should be constituted by the appointment of the Chief Justices of the States, does not commend itself to me. In the first place, most of our Chief Justices complain of being very much overworked, and the States Supreme Courts have frequently to hold over business from one sitting to another because of the lack of time and opportunity for dealing with it. Then, again, the Chief Justices of the States are often called upon to act as LieutenantGovernors, and in spite of all these demands upon their time and attention, it is now suggested that we should throw upon them the work of the Federal Supreme Court. That would mean that if Chief J ustice Way of South Australia were called upon to take part in the deliberations of the High Court, he would be simultaneously filling the three positions of Lieutenant-Governor, Chief Justice of the State Supreme Court, and Justice of the High Court. The samecondition might obtain in any of the other States. I ask honorable members what sort of work would be performed by a perambulating High Court composed of the Chief Justices of the variousStates who would have to forego their ordinary work to meet together and decide a host of appeal cases ?
– Why there would be only ten such cases in a year?
– More than ten such cases would have arisen since this Parliament was first sworn in, had there been a High Court to which appeals could have been taken. Without exaggeration, I believe that there would have been dozens of appeals connected with the Customs administration. Only last week the spectacle was presented of a citizen of the Commonwealth desiring to appeal to a tribunal for redress on account of his documents, books, &c., having been seized by the Customs Department. The Supreme Court of New South Wales declared in that instance that it had no jurisdiction.
– That is because Parliament refused last year to endow the States Courts with Federal jurisdiction.
– I am satisfied that if the High Court had been established in the early history of the Commonwealth such a difficulty would not have arisen.
– The honorable member is referring to Goldring’s case.
– I do not know the particulars of the case beyond those which I read in the newspapers. The individual in question can appeal to no tribunal for redress, because the provisions of the Constitution, for which he probably voted, have not been carried out. It is all very well for my colleague to say that the position of that individual is due to the fact that Parliament refused to give extended powers to the States Supreme Courts. But I ask was it contemplated that we should vest such powers in those Courts ? If so the wording of the Constitution is very strange indeed, seeing the able legal talent which was contained in the Federal Convention. The Constitution declares that the judicial power of the Commonwealth shall be vested in the High Court, and yet we find that no tribunal exists which can determine the rights of our citizens. In the case to which I have drawn attention, the litigant cannot appeal to the Privy Council because it is one in which his goods have been seized by a Commonwealth Department.
– The whole question is one as to the expenditure that would be incurred in establishing the High Court.
– This is not a question of what will be the cost of conferring a right upon one citizen, but of the cost of bestowing it upon every citizen. Let us come to a little more important matter - that of the establishment of the Inter-State Commission. Such a tribunal will probably be created by this Parliament, but it will be utterly valueless unless we erect the High Court, because the latter must decide all questions of law. If we refuse to establish the High Court, we shall absolutely prevent the Constitution from being carried out in two most important respects. Honorable members demur at the expenditure of £30,000 or £40,000 involved in the establishment of the High Court. But I would ask, did the people of Australia rise in arms over the question of the expenditure of a couple of hundred thousand pounds upon our legislation in connexion with the production of sugar ? Did they offer any protest against a large increased expenditure in connexion with our mail contracts owing to the provision inserted in the Postal Act?
– They are talking about it enough just now.
– If this Parliament desired to spend only 4½d., there would still be newspapers and growlers at every street corner, condemning our doings in loud tones. Many of these growlers are entirely ignorant of the advantages being gained for them by their representatives in this Parliament, who are fighting to erect a Constitution of which future generations may be proud. Certain individuals will growl whatever the expense may be. Personally, I take very little notice of their criticisms. Even upon the eve of a general election, when it has been whispered in my ears that honorable members require to be unusually cautious before sanctioning any expenditure, I am prepared to justify the establishment of the High Court. I am not afraid that when the common sense portion of my constituents realize the necessities of the case, they will think any the less of me for exercising my vote in the direction in which I intend to record it.
Mr.O’Malley. - The honorable member has not an Age or an Argus in South Australia.
Mr.V. L. SOLOMON.-Both daily newspapers in Adelaide are opposed to the creation of the High Court. I do not think that a court constituted of the Chief Justices could give proper time and thought to the consideration of the host of questions which are bound to come before a Federal High Court. We are very proud of our Constitution, but even in the brief period which has elapsed since the election of this Parliament we have discovered many blemishes in it. It contains numerous provisions upon which we have absolutely declined to permit the Privy Council to adjudicate. In the absence of a High Court, questions concerning its interpretation as between the Commonwealth and some of the States, or as between a State and State must absolutely be hung up. They cannot be dealt with by any other tribunal. Would it be fair to trust a mixed court sitting occasionally when time permitted - a court constituted of the Justices of the various Supreme Courts - to deal with all these cases? What sort of confidence would the people of South Australia; Victoria, and New South Wales have in relegating to such a Court the big questions which will probably arise in the near future regarding the division and utilization of the Murray waters, and the interpretation to “be placed upon that provision in our Constitution which contains the words “ reasonable use.”
– Does the honorable member propose to go outside the Commonwealth for its Judges ?
– No, but I certainly wish to go outside the States Supreme Courts. Surely the honorable member does not imagine that the gentlemen who have been elevated to our States Judiciaries have been so raised because they were head and shoulders above all others practising at the Bar in their respective States? I have known of instances where the accident of who happened to be the Attorney-General of the day has had a great deal more to do with appointments to the Judicial Bench than has the particular ability of the gentlemen who were elevated to that position. I have seen the Attorney-General of the day quietly hoist himself into the office.
– Y - Yes, in South Australia.
– It has occurred in more States than that of South Australia. Without questioning the integrity or ability of the States Judicial Benches, I do not think that all the highest legal intelligence of Australia is to be found on those Benches. We know that the contrary is the case. I do not think that the legal education and the career of our Chief Justices - who are pretty well aged - has been such as to lead them to evince a very strong interest in questions of constitutional law, whereas there are men in the different States, outside of theSupreme Courts Benches, whose special study for many years has been that of constitutional history and constitutional law. A great deal too much has been said upon the question of economy when we come to consider how very carefully the expenditure of the Federation has been guarded. It has been guarded to such an extent that except for the extraordinary charge upon our revenue involved in the payment of the sugar bonus, it would be well within the estimate framed at the time the Federal Convention satforthepurposeofframingtheConstitution. That bonus is an extraordinary charge which was not reckoned upon at the time. Of course, the members of that Convention knew that there must be a loss in revenue if Australia prohibited the employmentof black labour. The voice of this Parliament, and of a majority ofthe people, has insisted upon the abolition of black labour, and consequently we are faced with an expenditure which was never anticipated at the time of the Convention. A good deal has been said about the satisfactory nature of the appeals to the Privy Council. The honorable and learned member for Northern Melbourne declared his belief that the cost of an appeal to the Privy Council would be no greater than that of an appeal to the High Court if it were established. I differ from him. I believe that when the High Court is created we shall find many able lawyers in Australia who will make themselves thoroughly competent to deal with cases of the class likely to come before it upon appeal, and that the cost of transferring those cases from the Supreme Courts of the States will not be nearly so great as that involved in an appeal to the Privy Council. It is all very well to estimate that cost upon the basis of the extremely high fees which are sometimes paid to the leaders of the Bar in the various States. Half-a-dozen leading men probably receive extremely high fees for conducting specially important cases. But the ordinary sort of appeal will be conducted for about one-fourth of what these lawyers would charge by equally clever and younger men. The AttorneyGeneral has stated that the shortest time occupied by the Privy Council during the past five years, in deciding an appeal from New South Wales, was something under a year, that the longest period was three years and ten months, whilst the average time was one year and nine months. I venture to think that the longest period that would be occupied . in the settlement of appeal cases by a properly constituted High Court would be less than six months.
– Then appeals would be afterwards taken to the Privy Council.
– Even if an appeal were subsequently made to the Privy Council, there would still be less likelihood of blunders being made such as those quoted by the Attorney-General. The very guidance of the High Court would be of advantage to the Privy Council if any case were of sufficient importance to justify its being taken to that body. But I venture to think that with a fairly strong High Court - a Court, the decisions of which would as the years passed, gain the respect of the people of Australia, who are already predisposed to have their own tribunal - litigants would be satisfied. The question of cost was raised - whether in a jocular spirit or not I do not know - by the honorable and learned member for Northern Melbourne, and the view taken by him has been echoed by certain other honorable members, who say that in addition to the expenditure involved in providing for the salaries of the Judges and their associates, as well as for travelling expenses, there will be the cost of providing courthouses, offices, and police officers necessary to deliver processes. The honorable and learned member for Northern Melbourne said we should even require special gaols for prisoners of the Commonwealth. That contention is all very well, but it occurs to me that when the States know, as they must know, that the whole of the cost of the High Court has to be paid per capita by the individual States, very little desire will be shown by them to get anything out of’ the Commonwealth. They will recognise that the money will have to be repaid by them in another form, and they will be pleased to render assistance to the Federal High Court, and to facilitate the service of its processes. They will be delighted to see the High Court established within reasonable reach of their own people. The Attorney-General estimates the maximum cost of this court at £30,000 per annum. I am inclined to think that he is cutting the figure rather low. Having regard to the expense involved in providing registrars, and Judges’ associates, and in meeting travelling expenses and various other details which will have to be considered later on, I shall not be surprised to see the expenditure go a little higher. I believe that an expenditure of £30,000 per annum will be somewhere near the mark, although it will not be the maximum, and I do not think there will be much opposition on the part of the people to such an expenditure. I have read the Bill two or three times, but I have not yet studied it sufficiently to enable me to go closely into the provisions contained in the various clauses. In conclusion, I would point out that a Federal High Court was promised to the people of Australia. The High Court together with the Inter-State Commission were promised to protect the rights of the smaller States. It was specially referred to when they were asked to vote for the Constitution as put before them. The provision for it appeared in cold print in that Constitution, and whether the Court is constituted in the way suggested by the honorable and learned member for South Australia, Mr. Glynn, or in any other way, it is our duty to see that it is established at the earliest possible moment. In that way alone shall we carry out our pledges. It would indeed be a pity if the second reading of the Bill were defeated. Whatever we may choose to do in regard to the details, I contend that the second reading should undoubtedly be carried. Let the clauses be amended in such a direction as may seem to be wise and just to the majority of honorable members. Control, if you choose, the amount of the original jurisdiction to which so much reference has been made, but above all things - for the credit of this Parliament, for the credit of those who induced the people of Australia to come into the Federation under this printed Constitution - let us pass the second reading of this Bill. I shall support it.
– - I am quite satisfied that an extraordinary transformation has taken place within the last six or seven months. We now hear honorable members, who a few months ago were the greatest supporters of the court, standing up in this House and battling against the t establishment of a High Court with all the determination of profound thinkers and mighty investigators. What has happened 1 It is difficult for me to understand this extraordinary change. But I always read a certain great journal very carefully, and I take it as being the thermometer of the Victorian temperature for political morality. After reading it I invariably know the way in which the crow will jump. I do not know why it is so, but it is remarkable that one is able to obtain such information in the way I have described. I intend this afternoon to be fair. My whole nature is permeated with the desire to be fair to every one. When I see the poor down I help to lift them up, and when I see the rich down I go to their rescue. I well remember the statements that were made not only in South Australia, hut in Victoria and New South Wales, by every man who stood on the platform prior to the Federation, in regard to the glorious Constitution. I remember hearing them speak of the fairyland into which we were about to enter, and declaring that the dome of the Constitution was the High Court. Alas, that after the lapse of a few short years, I should now stand here absolutely saddened bv the change in the brethren. I do not propose to discuss this matter as a lawyer. Indeed, I am sorry that I am not a lawyer, for I should like to secure some of the fees which are flying around this country. I shall endeavour to discuss this Bill according to my understanding. I have heard honorable members who belong to the legal profession assert that certain powers cannot be exercised - that the Federal Court would have no power to deal with any State law which in its very essence was a violation of the Constitution. The Constitution guarantees life and liberty in the pursuit of happiness. That being so, if a State passes a law which cripples that liberty, does it not stand to reason that the High Court, on appeal, would declare that law to be unconstitutional. Would it not be in violation of the Constitution? The fact is that most of the lawyers out here know no more about this Constitution than do the lay members ‘of the community. They have not lived and developed under a Federal Constitution; they have not yet had the. experience which is necessary to enable them to understand really what the Constitution means. I do not claim to know everything, but I contend that I know a little. I have lived in Canada, in the
United States, and in Mexico, and I know that whenever a State passes a law that the people of the United States believe to be an infringement of their liberties, a sum of money is at once raised, lawyers are engaged, and the whole matter is swept into the Federal Court. That Court examines it carefully, and if satisfied that the Law is a. violation of the Constitution it declares it to be unconstitutional. In nearly every case in which action has been taken that result has followed. I remember the time when, in the State of Missouri, a number of men were slipped into gaol under some kind of suppression law similar to the measure introduced the other day in the Victorian State Parliament. They were sent to gaol without a hearing ; a trial was refused them. I speak with some experience of these matters, and experience is the unerring test of all human undertakings. It is useless to tell me that occasions do not occur when people are excited, and when even the Judge on the Bench is carried away by popular clamour. Such things dooccur. I believe that the honorable member for South Australia, Mr. V. L. Solomon,, will remember very well a case in which I figured before the Supreme Court of South Australia, and the popular clamour which existed at that time. The people were excited, and because of my Barmaids’’ Bill I was looked upon as a scoundrel by the licensed victuallers. You, too, Mr. Speaker, will remember that occasion. I went to a Judge, and what did I obtain ? Some of my honorable friends, who belong to the aristocracy, will say that I got far too much for my character. But that is ‘a question. Every man should stand equal in the eyes of the law, and unless you can bring some charge against a man’s character, he should not be condemned by public clamour. Unfortunately, however, such a thing sometimes occurs. Returning to the men who were thrown into gaol in the State of Missouri, I should say that I well remember that as the result of an appeal to the Federal Court, these men were liberated, and that the State was ashamed of having brought a charge against them. Similar cases have occurred within my knowledge in the State of Texas. The men appealed from the State Court to the United States Circuit Court, with the result that they, too, were liberated. Notwithstanding the good feeling which I entertain towards the Judges on the various State Benches, I maintain that until we secure a High Court there can be no certainty of liberty in the Commonwealth. I may be mistaken, but that is my impression. Experience, travel, observation, and investigation may be of no use to some honorable members, but the belief is entertained in the United States and Canada that the Federal Supreme Courts of those countries stand out nobly and grandly above all the other tribunals,- and deal out justice fairly and impartially. Let us take an illustration showing what will be the position upon the establishment of the High Court. I do not say for one moment that the Judges of the States Courts are prejudiced, but they are human. They may live in communities where popular clamour prevails. J saw something of the the kind here only the other day. In such circumstances, what would a resident of Queensland do if he desired to sue a man living in Hobart ? He would serve a writ on the defendant requiring him to attend before the High Court. A Judge, of the High Court would then go over to Hobart, and preside on the Bench there. I would give the various Supreme Court Judges Federal circuit jurisdiction, and if that were done the Judge of the High Court would go to Hobart and sit on the Bench with the local Judge. The case would be dealt with there, and if either party were dissatisfied he would be able to appeal from Hobart to the High Court, fully constituted, at Melbourne. In that way he would obtain satisfaction. It has been said that the right of appeal from the High Court to the Privy Council will still remain. I hold that such a right will not be necessary. The Constitution gives the power, and we are at liberty to decide what class of cases should be allowed to go on appeal to the Privy Council. Every honorable member who has spoken has argued in favour of the creation of some kind of a High Court. What is it to be ? The States Governments have appointed various Judges, and if certain members of the States Courts are selected for the High Court they must be appointed for life. As soon as they have been selected, however, the States will be relieved of them, and the respective Governments will replace them by other Judges. Is not that what would happen t I would ask the honorable member for South Australia, Mr. Glynn, whether he is not in favour of some kind of a High Court ? Is not the honorable and learned member for
South Australia, Mr. Glynn, in favour of the establishment of a High Court, whose members shall be the Chief Justices of the Supreme Courts of the States 1 But let me point out to him that the Constitution provides that the Judges of the High Court shall be appointed for- life, and that, once appointed, Parliament shall have no control over them. How any member of the labourparty can vote against the establishment of a High Court is beyond my comprehension. There is shortly to come before this House a Federal Conciliation and Arbitration Bill. Do the people whom we represent, those men imbued with the spirit of God, consider that a Federal Court of Conciliation and Arbitration should be presided over by a J udge of one of the States Courts, and that the Act by which it is created should be interpreted by the Privy Council1? Do they want a Judge of one of the Supreme Courts to preside over the Conciliation and Arbitration Court, and perhaps administer the law in accordance with the savage bigotry and sectarianism of the State from which he has come ? Do they want to break down the law, so that employers’ associations in other parts of the world will point to it as a failure? Do they want to make the law a failure by allowing it to be falsely interpreted by a prejudiced Judge 1 Or do they wish to see the Conciliation and Arbitration Court presided over by a Judge of the High Court, with an appeal to that court ? I was sorry to hear the only legal light in our party - the steerage party - oppose the Bill. But even the twelve apostles were not all of the same spirit, and the honorable and learned member’s action is another proof that some are always liable to stray. Last year there was a great battle in this Chamber over a. proposal to pay away over £250,000 in bonuses for the establishment of the iron industry. If I am not mistaken, nearly every one of the Christians who fought heroically for .that proposal are opposed to the establishment of a High Court, although a High Court could be run for nearly fifteen years without costing as much as it was then proposed to pay away in a lump sum. I do not forget that thousands of pounds were voted without a word of protest in order that men might be sentto South Africa. But now that it is proposed to spend £23,000 a year in interpreting the Constitution, so that its provisions may be made clear, and the people may understand the laws under which they live, great opposition is being shown to the proposal. Honorable members who were against any reduction of the military Estimates providing for gold braid and horse chestnuts are heroically opposing the proposed expenditure of £23,000 a year upon the establishment of a court which is absolutely necessary. The decisions of the Inter-State Commission must be interpreted by a High Court or by some other court. Are honorable members willing to hand over the work of interpretation to State Judges? The Judges of the High Court will be selected from the greatest men in the Commonwealth. No man can be a Judge of the Supreme Court of the United States until he has had 25 years of successful practice. I do not know of an instance in which a Judge of one of the States Courts has been appointed to the Supreme Court Bench. Why is that? It is because the Judges of the States Courts become prejudiced by their environment. Human “beings are only human beings, and in moments of excitement are often not to be trusted. During the late railway strike in Melbourne, the best friends I have almost insulted me in the streets because I was unable to see as they saw on the matter. Could I, under such extraordinary circumstances, have hoped for justice from such men ? What would have been the verdict if they had composed a jury to try me for some alleged offence ? I should have had to go to gaol for ten years. Take an instance of what actually occurred. Three men were arrested and brought down from the North Melbourne Police Court to Russell-street, and next Monday morning twelve or fifteen antiquarians, who had been preserved since the dark ages and transmitted to posterity by the art of the embalmer, were waiting to condemn them. The Victorian Government withdrew the information, because no charge could be brought against the men ; but if the case had been allowed to go on, they would each have got three months. Why ?” Because the men appointed to try them were men who had no control of themselves in times of excitement. We want a High Court whose members will be selected from amongst the ablest lawyers in Australia. Whether they happen to be politicians or not, I care little ; but I want them to be men who are not prejudiced in favour of the Commonwealth, but are in sympathy with its aims, and full of the love of justice. If there is one thing which is peculiarly characteristic of Australians, before they become prejudiced by foreign ideas, it is their love of freedom and of justice. We want the Judges of the High Court to be above ‘ the prejudices and bigotry of the States, so that people who’ feel that they are suffering injustice can appeal to them, and be certain of getting justice, or, at least, of getting very close to it. But while I intend to vote for the establishment of a High Court, I should have been better pleased if the AttorneyGeneral had proposed a court which would consist of three Judges - a Chief Justice, to receive £3,000 a year, and two other Judges, to receive £2,500 each. But I am not going to storm about the salaries proposed. If an amount such as £40,000 or £50,000 were at stake in a dispute betweenthe States and the Commonwealth, and the Commonwealth lost its case through the .incompetency of the Judge appointed to try it, it would lose much more than the annual cost of the court. I always go for the best, because,-in the end, it is cheapest. If you have a bad case, you must obtain the services of the best attorney you can get. It is never the best thing to have a cheap attorney. I believe in the establishment of the High Court, because without it the Constitution will be incomplete. It will be like a grand building without a roof, well enough on fine days, but on wet days every one would have to leave it. I shall have great pleasure in voting for the Bill.
– Feeling, as I do, that the High Court is a necessary corollary to the establishment of the Federal Executive and Legislature, and essential to complete the Federal arch, I rise to support the motion for the second reading of the Bill. No measure has received such a scarifying at the hands of its opponents as this measure has received. As the honorable and learned member for Northern Melbourne, the honorable and learned member for Bendigo, and the honorable and learned member for South Australia, Mr. Glynn, were present at the Convention in 1891, and at similar gatherings held subsequently when this matter was discussed, their opinions are entitled to the highest respect. At the 1S91 Convention a series of resolutions regarding the Federal Judiciary were submitted by Sir Henry Parkes, and the Prime Minister and AttorneyGeneral supported them. The resolution referring particularly to the establishment of a High Court for Australia proposed -
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, shall be final.
– Yes, but that was a Court of Appeal only.
– Yes. Sir Henry Parkes observed -
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 shall be no appeal to the Queen in the Privy Council.
That is the whole of the difference. He added -
I think we shall make a great mistake if we allow any appeal to be made outside the shores of the new Australia.
I would remind the Attorney-General, who supported the resolution, that he is not carrying out that resolution bv means of this Bill.
– Hear, hear ; because it is not possible.
– I know that it is impossible under the Constitution to go to the full ‘length of that resolution. “Whilst I am supporting the Bill on the second reading, I reserve to myself the right to submit amendments, or to support others which may be proposed. ‘ It is absurd for honorable members to contend that the subject of establishing the High Court was not, placed before the public of Australia during the federal campaign. I do not suppose there was one platform from which references were not made to the High Court.
– Yes, it was “ the Bill, the whole Bill, and nothing but the Bill.”
– The honorable member is quite right. The honorable and learned member for Northern Melbourne said that the Constitution Bill was not agreed’ to by the people because provision was made for the High Court, but in spite of that fact. I should like to know what warrant the honorable and learned member has for making that statement. In the smaller States, in particular, the advocates of federation gave the High Court a very prominent place, and pointed out that it would afford the best guarantee of their freedom and liberties, and also give them assurance that, in the event of any difficulty arising, it would not be necessary to go through the long and expensive process provided for in the Constitution in order to secure some trifling amendment, but that the High Court, acting on the up-to-date lines adopted in the United Stages, would make the Constitution a workable instrument for the whole of Australia. For this reason alone it seems to me that the establishment of the High Court is absolutely necessary. Some honorable members have urged that there will be no business for the High Court to transact. The honorable and learned member for South Australia, Mr. Glynn, said that the court would have to sit in .solemn silence, and wait for business to turn up. Upon this point I should like to quote some remarks’ made by the honorable and learned member for Northern Melbourne at the Federal Convention held in Melbourne in 1S98. He pointed out that some members of the Convention had been contending, just as has happened to-day, that there would be no business for the Court, and this was his reply -
It has been said that there wilL not be enough business for the court. I do not think that what happened in the United States affords any clue to the business that will be done here. In the early years of the Constitution of the United States there was very little federal business. There were then no Inter-State railways, and very few InterState canals, and the relations of State with State were much less intimate than the)’ have been since the introduction of railways.
Mr. Symon. What was their commerce then ?
– Owing to the conditions of travel, it was impossible that there could be such Inter-State relations and Inter-State difficulties as there will be under the complexity of modern commerce, and we in Australia will share in the complexity of modern commerce, although wo cannot suppose that, with our small population, we shall have as much legislation, and as much litigation, as America had in the Federal Parliament and in the Federal Court.
Thus we find that the honorable and learned member in the year mentioned entertained a strong opinion that there would be ample business to engage” the attention of the High Court.
– Were not appeals much more restricted under the draft Constitution at that time than they were subsequently ?
– Not so far as I can remember.
– The right of appeal to the Privy Council was abolished at Adelaide, and, perhaps, the honorable and learned member for Northern Melbourne was speaking in view of that fact.
– Perhaps that would to some extent affect the business to be transacted by the High Court, but I am simply showing honorable members what was the opinion held by the honorable and learned member for Northern Melbourne in 1898. A great deal has been made of the value of appeals to the Privy Council. The honorable and learned member for Northern Melbourne, speaking upon this subject, is reported at page 338 of the records of the Convention of 1S98 as follows : -
Not one man in 100,000 cares a snuff about a Privy Council appeal. Very few people go there - only a few wealthy corporations, and a few working against’ them particularly. Who cares about the Privy Council, or’ the Privy Council appeals? It is not a matter of popular rights. Ifc is simply a question of whether we here, in framing a Constitution are too timid to take upon ourselves the responsibility of carrying out rights between party and party. Of course I admit there is no popular demand for ifc. But I ask is there a popular demand that the appeal to the Privy Council should be given.
It appears to me that a popular demand has been made for the High Court. The honorable and learned member for Bendigo said that the public opinion of Victoria was against the establishment of such a Court, but I should like to know how he arrives at that conclusion. So far as I am aware, there have been no public meetings held to protest against the establishment of the Court. It is true that both the Age and the Argus have been publishing very strong articles in opposition to the Govern- ^ ment proposal, but I should like to know whether we are to be guided in our legislative actions by the opinions of the newspapers in the State capital in which Parliament happens to be holding its meetings. If so, the sooner we get away to the Federal capital the better.
– When we get to the Federal capital we shall probably have the Bombala Snorter seeking to direct our actions in Parliament.
– I do not know how we shall fare in that regard, but I hope that there will be no further unnecessary delay in establishing Parliament at the permanent seat of Government. The great daily papers of Sydney are just as strong in their advocacy of the High Court as are the daily papers of Melbourne in their opposition to it.
– They may be in favour of the High Court, but at the same time may not support the Bill.
– That cannot be. Only those who “ are against a High Court of any kind would vote against the Bill.
– I cannot speak with confidence with regard to press opinion in other States, but, as I have pointed out, honours are easy so far as the leading journals of Sydney and Melbourne are concerned. There can be no question that, by providing for the establishment of a High Court, we shall be simply carrying out that which was promised to the people at the time the Constitution was submitted. We were told at that time that we should have the- “whole Bill and nothing but the. BDI.” I was opposed to the Constitution Bill, but now that it has become law I am as strong as any other honorable member in the determination to see that effect is given to it in every respect. We have heard a great deal about the necessity for economy, and the figures which the Attorney-General has submitted relating to the cost of maintaining the High Court have met with much objection. Upon this point, the honorable and learned member for Northern Melbourne spoke very strongly at the Convention of 1898. He said that he would not be deterred by any consideration of expense from making the High Court a weighty and influential tribunal. Now he is using his best efforts to prevent its establishment. So much has been said with regard to Privy Council appeals that one would think that the Privy Council was a kind of heaven-sent institution without which we could not get along in Australia. I have the greatest admiration for the British Empire and for its courts of justice, and recognise that in years gone by the Privy Council has given decisions of vast importance to the people of Australia. But let me direct attention to what the honorable and learned member for Northern Melbourne said regarding the Privy Council at the Convention which met in Adelaide in 1897. At page 986 of the records of that Convention he is reported to have made use of the following expressions : -
There are certain phrases becoming current about this subject which are scarcely appli cable to the position. It is said that we are cutting one of the links which binds Australia to England. I rather like the expression “ link,” but if you consider it one of the irritating “links” - one of the fetters round the feet of the people in Australia - then, of course, ifc is by no means conducive to amity between the old country and ourselves. If there is an appeal to the Privy Council when one of the parties to the action is beaten he does not like that body. As a rule both parties dislike the Council because of the expense. How, then, it is to be regarded as conducive to harmony between England and Australia I do not know. How many are effected by this appeal to the Privy Council? I undertake to say there is not one man in . 100,000 who has an appeal to go to the Privy Council ; and I am sorry to think that Sir William Zeal, and others who agree with him, think this appeal to the Privy Council is one of the means by which the Empire is held together.
Sir William Zeal. I have not expressed an opinion on it. You have talked me out.
Mr.HIGGINS. - We have a stronger link with the old country than this - a silken tie in the direction of language, history, and sentiment - than in this miserable right of appeal to the Privy Council.
That is strong language for the honorable and learned member to use in connexion with this right of appeal.
– He still takes up that position, and would consent to the creation of an Australian court if the appeal to the Privy Council were abolished.
– Quite so. I quote the passage to show honorable members the honorable and learned member’s opinion of the Privy Council at the time. I do not wish to labour this matter, because after the utterances of the Attorney-General, and those who have declared in favour of the Bill, there is very little left to add. The opposite side of the case has been equally well and strongly put. I believe that under the Constitution it is necessary to establish this court immediately. It was one of the principal matters which were submitted to the people of Australia at the time of the federal referendum, and we shall be untrue to our trust if we do not create the High Court at the earliest possible moment. Of course, I do not agree with every provision contained in this Bill. I think that, to a very large extent, it fails in the provision that it makes for the Court of Appeal which it is proposed to establish. With all the original jurisdiction which it is proposed to confer, it appears to me that five Judges will be inadequate to perform the duties required of them. All these points will require serious consideration in committee. I shall give them that consideration which the solemnity of the occasion demands, and I trust that honorable members, generally, will pursue the same course in the interests of Australia.
– As a layman I am very loath to obtrude my opinion concerning this measure, which may be regarded as one of a strictly legal character. Though it will have very far-reaching effects, it is of immediate interest only to the legal profession. At the same time I feel that the statements made and the arguments advanced by the supporters of the Bill need to be dealt with by honorable members outside of that profession. As one who assisted to insure the acceptance by the people of the Federal Constitution, who believes in that Constitution, and is prepared to sacrifice everything to maintain it in its integrity, I say that there is no breach of its provisions involved in further deferring the consideration of this Bill. I agree with the appointment of a High Court, and I thoroughly indorse the action of those who were responsible for the very important position assigned to it under the Constitution ; but I entirely fail to see that there is any obligation imposed upon this Parliament to immediately institute a Federal Judiciary.
– Why leave the responsibility and odium to others ?
– I do not think there is any odium attaching to the matter at all. My attitude is very largely dictated by expediency. I desire to see the Constitution - which has not been working with as much smoothness as we could desire - fitted to the needs of the people in such a way that they will not feel that they have been betrayed. At the inauguration of the Commonwealth, the greatest danger against which we have to guard is that of extravagance. Throughout the length and breadth of Australia charges have been levelled against this Parliament: It has been asserted that we have disregarded the wants of the people ; that we have not practised due economy ; and have set a bad example to the State Parliaments. I do not admit the truth of these allegations. But if this measure is carried, and we thereby impose an additional burden of ?30,000 annually upon the taxpayers, we shall merit their displeasure, and some of the odium which undoubtedly will be cast upon us. In the absence of a time limit, which was most carefully inserted where it was thought necessary by the framers of the Constitution, I hold that we are not bound to at once constitute the High Court. I object to its immediate establishment primarily upon the ground of the expense that it would involve ; and, secondly, because I fail to see any immediate necessity for its creation. If it were clear that a very large number of people actually suffered from the lack of a Federal Judiciary, even in face of the expenditure involved, I should not be willing to further postpone its creation. But the evidence is all in the other direction. Indeed, one of the strongest arguments against its establishment was that advanced by the honorable member for South Australia, Mr. V. L. Solomon, when he declared that its erection would mean the beginning of an enormous amount of litigation. If we can avoid the increase of litigation we shall render a double service to the Commonwealth, by saving the expenditure that would be incurred in carrying out the Government proposal, and by depriving people of the opportunity of indulging in what is always an expensive luxury. In his endeavour to show that the creation of the High Court was necessary, the honorable member for South Australia affirmed that quite a number of appeals would have come before that tribunal had it beenin existence. But he also admitted that these would-be litigants, with the exception of one who is labouring under a peculiar disability, were satisfied with the decisions given by the States Supreme Courts, which have been invested with federal jurisdiction. The honorable and learned member for Illawarra hinted that the Victorian representatives in this House who are opposed to the Bill were following the dictation of the daily press rather than the desires of their constituents. But I would point out to him that in this Skate the press follows public opinion rather than attempts to lead it. He alluded to the absence of public meetings to protest against the passage of this measure. But in Victoria I might inform him that if the daily press evinces any intention of forcing public opinion along an improper channel, it is the practice to hold public meetings in all parts of the State to protest against it. That has happened within the last few weeks, and it would occur again very readily if the people imagined that they were being misrepresented by the metropolitan press. During the past fortnight I have travelled over a very considerable part of this State, and I have never heard a desire expressed by any single individual for the establishment of the High Court.
– What has that to do with the matter?
– I am merely replying to the argument of the honorable and learned member for Illawarra. Moreover, the Victorian press has had a good deal to do with placing the finances of this State upon a proper basis, whereas the New South Wales press, which differs from it upon this particular measure, has not in the past shown any great desire to see economy exercised. The present condition of that State is ample justification for my statement. In Victoria we are paying the penalty for previous extravagance, and the people of this State, having been severely scorched, are not anxious to place themselves too near the fire in future.
– What evidence has the honorable member as to the condition of New South Wales ?
– My statement is amply confirmed by the reception which was accorded to the last loan placed upon the London market by that State.
– I would remind the honorable member that he is departing from the subject under discussion.
– I think we have lost sight of one very important factor to which the Attorney-General drew attention with great point when dealing with the finances of the Commonwealth. He emphasized the fact that the State and the Commonwealth taxpayer are identical. The same argument is applicable to the work to be performed by the Federal Judiciary. I believe that we can devise some means whereby the present State courts can undertake all the urgent work which would otherwise devolve upon the Federal High Court. It must be remembered that we have not deprived the people of Australia of the opportunity of appealing to the Privy Council. That right still remains to every citizen in the Commonwealth. Under these circumstances, we should not be justified in incurring additional expenditure - expenditure which we cannot calculate with any degree of accuracy, but which has been variously estimated at from £30,000 to £60,000 per annum. It is not merely the amount involved in the salaries of the High Court Judges that we have to consider. We have to consider the expenditure necessary to provide for every official whose services are required as an adjunct of the court - from the Chief Justice down to the crier. It means also imposing upon the Commonwealth the paymentof a certain number of pensions. All these points ought to be considered by honorable members. Seeing that there is no immediate necessity for the establishment of the High Court,I intend to vote against the second reading of the Bill. My regard for the Attorney - General, who - as the two Bills which have been submitted to us show - has undertaken an enormous amount of patriotic and selfdenying labour in connexion with this matter, makes it extremely difficult for me to adopt the attitude which I have taken up. But I owe a duty to the citizens of the Commonwealth, and I cannot allow myself to be swayed by personal feelings.
– There is no personal friendship in politics.
– There ought not to be upon a question so vitally affecting the finances of the Federation. I understand the Government regard this question as an open one, and I think that they are wise in so doing. They were bound to bring this measure forward at some time or the other, and I do not think they have incurred any odium by introducing it at the present time, although they would have displayed better judgment had they postponed its consideration for a year or two, until there was clearly a more urgent necessity for it.When that period arrives I am sure that honorable members upon both sides of the House will assist them to carry out what is the evident intention of the framers of the Constitution. At the same time, I hold that the Constitution contains no mandatory order for the immediate institution of this particular body. Upon these grounds I regret that I cannot support the second reading of the Bill.
– I did not intend to speak during the second reading debate on this Bill, but I have arranged to pair with another honorable member, and as my name will not appear in the division list, if it comes on to-night, I feel that I should very clearly express the reasons which actuate me in supporting the Government. I sincerely trust that they will cany the second reading of the Bill. I shall support this measure for the reason that I believe that the sooner the Privy Council, as a court exercising authority over Australian Courts - as a final court of appeal for the Australian States - is abolished, the better it will be for the Commonwealth.I very much regret that during the negotiations, prior to theacceptance of the Constitution by the British Parliament with Mr. Chamberlain, amendments were made in the Constitution which, while perhaps assisting the passage of the measure through the Imperial. Parliament, were certainly contrary to the wishes of those who brought the Bill through the Convention, and of those who sent the delegates to England to facilitate its passage into law.
– We had a very hard fight to obtain what we did.
– I am certain that the Prime Minister and those associated with him fought very hard, and I very much regret that their efforts in the direction of making the Australian Court the final court of appeal were not entirely successful. Any one who studies the recent history of the Privy Council will see that there is need for the creation of a High Court. Residents of the United Kingdom have a right of appeal to the House of Lords ; but only those who reside outside the United Kingdom, except in regard to ecclesiastical matters, have to appeal to the King in Council. As a consequence, the Privy Council is inferior in authority to the House of Lords, and its decisions are quoted and regarded in that light in our own courts. This also largely arises from the inferior status of Privy Council Judges.
– But the Bill does not take away the right of appeal to the Privy Council.
– I object to the right of appeal to the Privy Council, and to that right of appeal remaining in full force, as it undoubtedly will, unless we create the Australian High Court.
– But we cannot take away that right of appeal.
– I am aware that to a very limited extent we are compelled to allow an appeal to the Crown ; but our Parliament can regulate and almost entirely abolish that right, and if we have a half-way house, and particularly if that half-wayhouse comprises the best legal ability obtainable in the States, it is far more likely that the decisions obtained in that Court will satisfy litigants, and that they will have no desire to go to the Privy Council.
-Why should they go to a half-way Court when they can go direct to the ultimate Court of Appeal?
– I believe that most of those who go to the Privy Council are dissatisfied with the Supreme Courts of the States, but that they would accept the decision of a Supreme Court consisting of Judges coming from States other than those in which their cases were originally determined. I think that the creation of an Australian court would largely help to do away with the necessity for the Privy Council, just as in consequence of the creation of the Federal Court in Canada the number of appeals from that State was largely reduced. I think it is to be regretted that when the Privy Council made an attack, and a very insulting attack upon the Supreme Court of New Zealand, tins Parliament did not show its sympathy for the institution of a sister colony by reprobating the language used by the home tribunal. I protest against the use of language of that kind towards any of the Supreme Courts of the States by Judges who do not appreciate Australian legal ability, and do not understand Australian legislation or local conditions. In the New Zealand case, the language used was so outrageous that it was necessary for the Chief Justicce of that State to protest against it. Cases have also occurred in which the Privy Council has used objectionable language in reference to the Victorian courts. The sooner the High Court is established the sooner we shall have the complement of the Australian Constitution. The necessity, for an Australian Appellate Court has been brought home very vividly to one of my own constituents by the recent decision of the Supreme Court of New South Wales, that the imports of a State government are not liable to pay duty. Shortly before the decision was given the gentleman in question placed an order in England for some £50,000 or £60,000 worth of machinery which is protected under the Tariff, but as the result of that judgment the order has been cancelled until it is known what the Government propose to do in regard to it. If the Government finds it necessary to appeal to the Privy Council, it has no means, such as would exist in the Australian court, of bringing its case on promptly for hearing in cases of urgency affecting many business arrangements.
– Why should not the Government have provided for simply an Appellate Court 1
– The High Court which will be Created under this Bill will enable the Government, or any other litigant, to appeal immediately from the State Court to the Federal tribunal, and to have its case speedily determined. The honorable and learned member for Northern Melbourne urged that because we have the Privy Council, and because the Court proposed in this Bill will not be a final court of appeal, we should not have a High Court. He might have .said, with equal force, that as the Parliament of the United Kingdom has, unfortunately, the final control of our legislation, we should not have any Australian Parliament. As it is, the legislation of the Australian Parliament can be over-ridden by an Imperial Act, and the honorable and learned member for Northern Melbourne, together with others who argue that because the High Court is to be only a half-way house to the Privy Council it should not be created, might just as well take up the position that we should not have a Federal legislative body because we have some 10,000 miles away one which could do all the legislation necessary for us. I desire Australia to be self - contained in every direction. When the Privy Council ceases to work, the Australian High Court will be complete, and will bo able immediately to take over the work of hearing all judicial appeals. I think that the real question relates to the Commonwealth itself. The honorable member for Gippsland has spoken against the proposed High Court, while the honorable member for Laanecoorie asserts that there are many of the public who do not favour its creation. In this matter, however, I think that those outside Parliament are the last of whom we should think.
– They are the people who ha ve to pay.
– Certainly, they have to pay, but they and the press are considering this matter purely as a question of ‘ economy ; and there are times when public opinion is really the last thing which should be considered by honorable members. “” That is more especially the case when public opinion is being misled by the press, and when the people themselves have not had time to really study the question at issue. I venture to say that of the thousands with whom the honorable member for Laanecoorie professes to have discussed this matter, not 10 out of every 100 have read the Bill nor the speech delivered by the AttorneyGeneral in moving its second reading. We are here as the leaders of the community. We are chosen as its most intelligent representatives, and in a matter of this sort should have regard to our own opinions, and if we think it is best for the Commonwealth “that a certain course should be followed we should stand up against public opinion - we should do what is best for the Australian nation.
– Or the best thing for the lawyers.
– If the honorable and learned member insinuates that this Bill will be a good thing for the lawyers I think he would insinuate anything.
– Is it not a good thing for the lawyers ?
– No.
– I come now to the question of economy. It is not by any means certain that members of the Supreme Courts of the States will not be chosen to fill positions on the High Court. They certainly could be chosen, although I think it would be far better to have the position filled by politicians. A lawyer, who is also a politician, knows the constitutional points which are likely to come before this court. I had the pleasure of hearing the AttorneyGeneral arguing before the .Full Court in Victoria a few days ago, and I was glad to see that he succeeded in winning his case. But he had the greatest difficulty in making the Judges grasp certain constitutional points, from the fact that they had had no political experience. The only member of the Victorian Supreme Court Bench who has had political experience is the Chief Justice, and when we remember the questions which will be argued before the High Court and the constitutional matters with which they will have to deal, we must recognise that next to being a good lawyer it is essential that a gentleman chosen to act as a High Court Judge should have had parliamentary experience. The only other point I desire to touch upon is that of the salaries to be paid. It appears to me that the salaries proposed in the Bill are too high, and that they are really on the scale of the Victorian Supreme Court. We should not take the State expenditures as a precedent, but should economize on them.
There is a popular impression that a Judge suffers considerable monetary loss in leaving the bar for the Bench. On this point I should like to make the following quotation from the Memoir of the late Chief Justice Higinbotham, written by his son-in-law, Professor Morris : -
The profession of barrister was not by any means so lucrative to Mr. Higinbotham as to others in a leading position. It has often been said that he made a patriotic sacrifice in taking a judgeship. As a matter of fact it was no sacrifice at all. The salary of a Judge of the Supreme Court is £3,000 a year ; and only in one year had his practice at the bar brought in as much.
– He mixed himself up too much in political matters.
– For some years Chief Justice Higinbotham did not figure in politics.
– He lost a great deal owing to his association with political matters. -
– For a considerable time he was not mixed up in politics. He was a leading barrister when he left the bar for the Bench, and yet his Memoir shows that his elevation to the Bench involved no monetary loss to him. I think this Bill will be of great value to every citizen, and I trust the House will accept it.
– I apprehend that no legislative proposal has been yet offered for the consideration of the Federal Parliament which was more pregnant with the future of this Commonwealth than is the Bill now before us. So far there has been nothing, not even the Tariff - which can be recast and remodelled at our will - which has called for so close and careful an investigation into the terms of the instrument of government under which we live, as the measure so ably and eloquently introduced by the Attorney-General. I think that I should not be. acting fairly if, before passing to the principles which we have to consider, I did not say a word or two about the composition of the Bill. However much we may differ about the propriety of enacting it, either in- its present or in an amended form, and whatever we may consider the just fate of the measure, I think we can all agree that the lucidity of its expression, its comprehensiveness, the symmetry of its arrangement, and the manner in which its provisions cover almost all the essentials of the subject, reflect very great honour upon the honorable and learned gentleman who has had the privilege of introducing it. I think that, together with the speeches which he has delivered in moving the second reading on two occasions, it will add to even his reputation. I .shall have occasion, in the course of my observations, to make reference to some of its provisions, of course not in the detail which is more appropriate to another stage; but I now pass by the consideration of particular clauses, to inquire what are the principles which should guide us in casting our votes for or against the measure. I agree thoroughly with many of the honorable members who have preceded me that one great question which we have to put to ourselves is this : Is there a mandate to the Federal Parliament to pass the measure 1. I take it that if such a mandate is to be found in the Constitution we are not at liberty to disregard it. We are not here for the purpose of remodelling the Constitution. If those who represented the people of Australia in the framing of the compact laid down in it an imperative duty, and the people by accepting it on more than one occasion confirmed that duty, and if while the Bill was under the consideration of the Imperial Parliament - during which time the fiercest light of criticism, both British and Australian, was concentrated upon these very judicial provisions - there was no hint of an alteration in the construction of the High Court, or of its abolition, or of the substitution for it of some other tribunal, a very great responsibility will rest upon those who advise us at this juncture to ignore so. plain and definite a duty. I think that calm andcareful consideration of the terms of the Constitution will leave no room whatever for doubt that there is such a mandate. After the best consideration I can give to the matter,. I believe that there is an obligation resting upon this Parliament to carry out the bargain, and to effectuate the intention of the people of Australia, as evidenced in the only way we can recognise it. I quite admit that it is an obligation of an imperfect nature, that is to say, we are not under any compelling force but our consciences in regard to it. There is no power on earth, short of an Act of the Imperial Parliament, which can compel, us to move a single step in this or any other direction without our will. There is no force known to nature, short of such an Act, which can correct our wilful inaction. We are told that if there is a mandate, if there is an imperative command, we are at liberty to disobey it, because no one can go to a competent tribunal and procure a mandamus to compel us to perform our admitted duty. There are many things which are of imperfect obligation in that sense. It is an imperfect obligation to be truthful ; it is an imperfect obligation upon any country to carry out its treaty pledges. I believe that in the sense in which the phrase has been” put before us in this House, half the commandments of the decalogue are imperfect obligations. But if we pass by the literal meaning of the phrase, and look only to its spirit, we find in the . Constitution the clear and definite duty to proceed without delay to the establishment of the Federal Supreme Court of Australia, and to equip it with the means and the power to discharge its great responsibilities and necessary functions. Whether we look at the Constitution with the eyes of a student or of a lawyer, or simply as citizens, we cannot fail to find’ the greatest recognition in it of the triple foundation upon which the Federation rests. Considerations of history and of reason, and the long deliberations of many years, led the two great Conventions of 1891 and 1897 to the conclusion that each and every one of the three great pillars of government - the Federal Executive, the Federal Legislature, and the Federal Judiciary -were essential to a true federal union. Amid all the dissensions as to the adoption of the Constitution, among all the struggles for its amendment, throughout that final commotion regarding the right of appeal, we heard not a word, not a suggestion, as to the desirability of altering the provisions we are now debating with reference to the constitution of the tribunal which is to be charged with the interpretation and enforcement of the Constitution and the laws made under it. I think that, we shall derive very great help indeed in dealing with this question from a consideration of the sections in the Constitution which relate to the judicature. If honorable members would, during the course of the observations which I shall have the honour to make to them, refer to those sections, I think they will be better able to follow me, whether they agree with me or differ in their conclusions from those which I desire to place before them for consideration. Section 71 is the central provision which should guide us in our deliberations and in our votes upon this measure. That section provides that -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia.
That provision, as I read it, is imperative. I shall have to bring under the notice of the House a most luminous judgment - one of those great American judgments to which the honorable and learned member for South Australia, Mr. Glynn, referred - which, I think, will throw an immense amount of light on the question which we are now debating. It is, however, a mandate of the Constitution that the judicial power - that is, the power in the Commonwealth of deciding litigation - shall be vested in a Federal Supreme Court. Not in a State Supreme Court, nor in a Federal inferior court, but in a Federal Supreme Court, to be called the High Court of Australia. Then follow words, not of mandatory force, but of discretionary power -
And in such other federal courts-
Honorable members will remember the word “other.” It shows that the Federal
Supreme Court is first to exist-
As the Parliament creates.
It is left to the discretion of the Parliament to create “ other “ federal courts.
And in such other courts as it invests with federal jurisdiction.
So that there is a discretion given to this Parliament to create inferior Federal Courts and to invest State courts - it will ‘ subsequently be seen that the word “other” here refers to State courts - with federal jurisdiction. The position is this - and I shall perhaps have to elaborate it in regard to other matters a little further on - that you cannot, consistently with the spirit of the Constitution, have the exercise of the Commonwealth judicial power in the absence of a High Court. But you can have the exercise of that judicial power either in the Federal Supreme Court alone, or in association with any other federal courts of inferior degree that Parliament chooses to create, or in association with State courts which it may invest with jurisdiction, or with both these inferior tribunals together. You cannot properly, however, carry on business in the absence of what I may be permitted to call the predominant partner ; you are not to have the judicial power vested in either or both classes of inferior courts in the absence of the Federal Supreme Court. The last-named tribunal has not only been mentioned by name, but has been to a large extent already fashioned by the Constitution itself. It is to be composed of a Chief Justice and at least two other Judges, or as many more as Parliament, according to what it thinks are the needs for the Commonwealth, may enact. The Judges are to be appointed by the Governor-General in Council - like those for every other federal court. They are to have a life tenure - this is not expressed, but is implied - and they are to be removable only by the vote of both Houses, after proved incapacity or misbehaviour. They are dependent for the amount of their remuneration upon what Parliament gives them, but, again, the limitation is imposed that the remuneration is not to be diminished during their term of office. The High Court is also endowed by the Constitution itself with appellate power supreme in the Commonwealth. It is endowed also with original jurisdiction, in other words, power to hear cases which originate in that court, and do not come to it by way of appeal from other tribunals, and, further, it is within the power of the Parliament, at its discretion, to conferother powers. The Federal Supreme Court stands in the Constitution indicated, not’ only by name, but to a considerable extent, as I have said, shaped for us, and all that Parliament has to do is to organize it and equip it with the means of performing the duties allotted to it. The court is, therefore, specially designated by our organic law as the tribunal that, before all other courts and in all circumstances, shall exist, and shall possess and wield the highest judicial power in the Commonwealth. It is the court that is to stand as the authoritative expositor and arbiter as to the meaning of the Constitution and of the laws made under it, and, as I shall show, it will practically be the final expositor and arbiter of the Constitution and the laws. It is intended as one of the constitutional checks and balances. It stands as a touchstone with which to test and try the validity of our legislative acts. We, as the trustees of the people, sitting in this Parliament by virtue of the Constitution, have no right to say that the creation of the judicial body which is specially designated to watch us, as well as to do other important acts in the Common wealth, shall be delayed, or that ifc shall not be constituted, or that it shall be replaced by some other tribunal. These are the considerations with which we ought to- commence the review of our duties, and I protest that we are not to take into account, at this moment, anything but what is right in order to discharge our obligations as fearless legislators in view of the Constitution.
– We are to carry out the spirit of the Constitution. .
– Yes, to carry out its spirit, undoubtedly. I have directed the attention of honorable members to the words of section 71 of the Constitution, and [ think it will be of assistance if I mention that they are not without precedent. There are. corresponding words in the Constitution of ‘ the United States, which I shall read, and I shall then endeavour to indicate the difference, so far as appears to me to be material, between our position and that of the United States. The words in the United States Constitution are -
The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
Honorable members will see the verv strong similarity between the two sets of words. Before I read some extracts from a notable decision which has been given, I desire to make an explanation which may prevent honorable members from attaching to them more weight than they may deserve, although I think they go to the extent to which I have said my mind is led. As the Attorney-General has pointed out, the United States Supreme Court has no original jurisdiction, except in matters affecting consuls and ambassadors, or in cases where a State is one of the parties. It has, however, full appellate jurisdiction in federal matters, and the inferior courts, which Congress had a mandate to ordain and establish - as we have a mandate - were capable of being endowed, and have been endowed, with both original and appellate jurisdiction. Mr. Justice Story the eminent jurist, who was a Judge of the Supreme Court of the United States, and is also recognised as a great writer on jurisprudence, delivered the decision of the court in the celebrated case of Martin against Hunter. Passages from this judgment are found in Quick and Garran’s well-known work, The Annotated Constitution of the Australian Commonwealth - a work which
I have no hesitation in saying is an almost perfect repository of suggestion and precedent. At page 723, honorable members will find, under the heading of section 71, most instructive observations with special reference to the words “ shall be vested.” I may say, by way of introduction, that Mr. Justice Story, in his Commentaries, points out that it was for a long time a matter of discussion in the United States whether the words “shall be vested” were imperative on Congress, or whether they merely applied to what he calls “ the future case, “ that is to say, something which might be done in the future. The decision given in the case to which T have referred settled that question for all time. In Quick and Garran’s work one passage reads as follows : -
The language of the (third) article throughout is manifestly designed to be mandatory upon the Legislature. Its obligatory force is so imperative that Congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. Could Congress have lawfully refused to create a Supreme Court, or to vest in it the Constitutional jurisdiction ?….. But one answer can be given to these questions ; it must- be in the negative.
– Quite so, because there were no courts of any kind to construe the law.
– I do not think it matters whether there were any courts or not when we find the words I have mentioned. We were discussing the force of the words. When the Convention framed our Constitution they knew very well that there were other courts, and when the Imperial Parliament passed the Constitution they had similar knowledge, and the meaning of the words cannot be altered by the fact that there was one court or one hundred courts.
– I think that Mr. Justice Story expressly says that the United States where obliged to create a Federal Court, because there was no authority to invest the State courts with Federal jurisdiction
– Of course. It is quite true that it was mandatory on the Congress to create inferior courts in the United States - that is what Mr. Justice Story speaks of - because there was no authority to invest the State courts with Federal jurisdiction. But I am addressing myself to the subject of the Supreme Court, which is a like body under both Constitutions except that the United States Court has no power of original jurisdiction as has the High Court under our Constitution. The fact that we have determined, under the Constitution, to give to our High Court, original jurisdiction such as is not given to the Supreme Court of the United States seems to me to make our obligation stronger.
– Why is it that the creation of the Court has been deferred for two years’!
– The honorable member must recognise that it is impossible for the Government to do everything at once.
– According to the view of the honorable and learned member we should have established the High Court at the outset.
– Will the honorable member allow me to address myself at present to the constitutional aspect of the case?
– Upon what date was the decision of Mr. Justice Story given ?
– In 1816. I had better read the observations of Messrs. Quick and Garran with reference to our own Court. They say : -
These words (shall be vested) arc imperative, at least so far as the High Court is concerned ; and are mandatory on the Parliament to carry the vesting into effect by prescribing the number of Justices of which the Court is to consist, to fix their salaries, and to make provision for their appointment. Under the same words in the United States Constitution, there was, at one time, much discussion whether Congress possessed any discretion as to creating a Supreme Court or investing it with jurisdiction - a discretion which would allow Congress to practically annihilate the Judiciary as a co-ordinate department. It has been decided, however, that no such discretion exists.
Then come the words of the judgment, which I have read. There are other observations of a like character, and then follows a quotation from Chancellor Kent’s Commentaries, as follows : -
In this respect it is mandatory upon the Legislature to establish courts of justice commensurate with the judicial power of the Union. Congress have no discretion in the case. They were bound to vest the whole judicial power, in an original or appellate form, in the courts mentioned and contemplated in the Constitution, and to provide courts inferior to the Supreme Court, iu which the judicial, power unabsorbed by the Supreme Court might be placed. The judicial power of the United States is, in point of origin and title, equal with the other powers of the Government, and is as exclusively vested in the courts created by or in pursuance of the Constitution, as the legislative power is vested in Congress, or the executive power in the President.
In order to emphasize this point, I invite honorable members to turn to section 1 of the Constitution. There they will find words analogous to those which I have been discussing -
The Legislative power of the Commonwealth shall be vested in a Federal Parliament.
These are quite as mandatory, quite as declaratory as are the words -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court.
If honorable members entertain any remnant of doubt as to whether these words constitute a mandate or a mere discretion, I would direct their attention to another reference in the Constitution. We all know that section 51 contains a list of the powers of Parliament. This Parliament is given power to do certain things. If it had been intended that it .should exercise its own views in determining the time when the High Court should be created, would it not have been included in those discretionary powers? Would the Constitution not have said - “ Parliament shall have power to create courts and invest them with federal jurisdiction?” But instead of that, we find a special chapter devoted to the Judicature, just as we have a special chapter dealing with the formation of the Executive and of the Legislature, a chapter erecting, in a co-ordinate form, the Judicature of the Commonwealth, dealing with its judicial power, and using words which ‘in themselves should convince honorable members. I say that, if we consider a decision of the highest rank, which was given when Chief Justice Marshall presided over the United States Court, and Mr. . Justice Story delivered his memorable judgment - when the judical bench of America was never stronger - we cannot fail to believe that these words were intended to be peremptory. As to the time when they were to be exercised this is the answer : No time is mentioned, because it is clearly intended that as soon as there is occasion for exercising the judicial power of the Commonwealth the means of exercising it shall be provided. If we regard the reason and the precedent which I have quoted we cannot relegate this matter to the realms of discretion. The Constitution itself ordains that this court shall be established, and partially creates it. To bring this machinery into motion awaits only the exercise of the power committed to Parliament by the Constitution. After giving the matter my best consideration, I say that for Parliament to refuse to carry out this obligation would be simply an abandonment of duty. It has been said that if we must have a High Court we should utilize the States Benches. Before going one step further I wish to remind honorable members of one landmark, if I may so call it, namely, that the constitution of a High Court of some sort is essential. I have endeavoured to show, and wish to emphasize, that unless we have a Federal Supreme Court we have not the means of exercising judicial power, as I conceive the Constitution intended, or the means of exercising, without doubt, the judicial power of the Commonwealth in federal jurisdiction. We have passed Acts of Parliament, we have moved under them, and this question has not been raised. But I believe that if it is raised, and if the courts are guided by what has been decided in the Supreme Court of the United States, it may be that if we do not institute a High Court in some form to accord with section 71 of the Constitution, we shall incur a risk which may cost the Commonwealth a great deal more than any of the sums which have been mentioned during this debate. Having arrived at the stage that there ought to be a High Court, let me deal with the suggestion that the Chief Justices of the States should compose it. Again, I would ask honorable members to look at the Constitution itself. Section 72 provides that the Justices of the High Court and of the other courts .created by Parliament - and honorable members will perceive that these are Federal as distinguished from State courts which are to be invested with jurisdiction - shall be appointed by the Governor-General in Council, and shall not be removed except on the addresses of the Federal Houses after proof of misbehaviour or incapacity. The section further provides that they shall receive such remuneration as the Parliament may fix, and that such remuneration shall not be diminished during their continuance in office. Do not honorable members see that we cannot validly pass an -Act which shall declare that the Chief Justices of the States Courts for the time being shall be Judges of the High Court ? We can pass an Act declaring that the first Judges of the High Court shall be the persons who at the time of its passing are the Chief Justices of the States Courts, but when we have done that we have created Federal Judges who will hold their office for life, just the same as if we allowed the Government to appoint those whom they thought fit. By that means we do not get rid of new appointments. We cannot get rid of new appointments. We can fix the remuneration at whatever sum we choose, and we can appoint whatever number of Judges we may think fit, so long as it is not less than three, but that is all we can do.
– Does the honorable and learned member contend that the appointments must be permanent 1
– Yes. Then I ask what would be gained by appointing the Chief Justices of the different- States ? Honorable members do not intend for a moment that they should hold dual positions ; that men should serve two masters, however able they might be. Neither do honorable members mean that gentlemen who are Justices of the States Supreme Courts, and who can be removed by the States Legislatures, shall hold positions as Federal Judges and be removable in the way I have indicated. Surely honorable members do not think that two such anomalous positions could be held by the same gentleman, or that our States Chief Justices would sit upon the Federal Judiciary, and be content to draw varying salaries according to the State from which each comes. We do not imagine that the Chief Justices, who are Lieutenant-Governors of the various States, should be Judges of the High Court under the control and criticism of this Parliament ? A similar proposal in the Federal Convention met with no more determined opponent than the honorable and learned member for Northern Melbourne.
– That proposal was rejected by 29 votes to 9.
-The Attorney-General has anticipated me. The honorable and learned member for South Australia, Mr. Glynn, submitted a proposal that the High Court should consist of a Federal Chief Justice and the Chief Justices of the different States. If I remember rightly his proposal contained an addendum that iu the event of the death or illness of the Chief Justice the other Judges could proceed with their duties. That proposal was defeated, or, shall I say, scouted, by the Convention.
– There were too many lawyers in that Convention.
– There were nine, including my honorable friend, who gallantly fought for his proposal, as he does for everything which he supports. Yet, in a gathering consisting of 38 members, 29 were opposed to it.
– It was the suggestion of Sir Samuel Griffith, and the honorable and learned member will pay some respect to his authority.
– I pay great respect to his authority, but in this matter I pay more to the decision of the representatives of Australia assembled in that Convention. With all the weight of that learned Judge’s name, and with all the persuasiveness of my honorable and learned friend, the proposal was defeated by a series of arguments, some of which have been read to-night by the honorable and learned member for Illawarra. It was driven out of the Convention, and was never heard of again. It has now been resuscitated, in complete oblivion of the fact that the Convention pronounced against it, not at its first or second sitting, but at its third sitting, after the fullest light had been thrown upon it. Therefore it has been deliberately placed aside. It has been made impossible, as I have previously pointed out, by the very words of the Constitution.
– Sir Samuel Griffith still held to that opinion in 1897.
– But the Convention rejected the proposal after 1897.
– The Convention discussed and rejected it in January, 1898, and it has not been heard of since. There is a misunderstanding in the public mind in regard to this matter. The idea prevails that we can utilize the services of the States Judges as Judges of the High Court. I should like to draw the attention of honorable members once more to the words of the Constitution, because it is only by a close study of them that we can hope to avoid mistakes.
– It is admitted that we cannot do it now, except with the consent of the States.
– We cannot do it now, even with the consent of the States ; and I shall point out why. We have only power to organize the Federal Supreme Court, to create Federal Courts, and to appoint Judges to both of these tribunals, Whilst we have power to invest other courts with jurisdiction, we have no power to invest Judges or individuals with jurisdiction. We can take the States Courts, regardless of who composethem, and say - “We will invest those Courts with such jurisdiction as we think right.” Of course we cannot give them jurisdiction of appeal over the High Court ; indeed it is not absolutely clear that we could give them appellate jurisdiction at all. That, however, is a matter for careful consideration, and I pin no faith to it. The point to which I desire to draw attention is that we cannot take an individual Judge, and say- that Mr. Justice A, or Chief Justice B, shall exercise Federal jurisdiction. The courts to which the Judges of the States belong remain State courts whether we invest them with Federal jurisdiction or not.
– Is there not a provision in the Bill that they cannot be appointed 1 What necessity can there be for such a provision if that course cannot be followed under the Constitution ?
– There is no such provision in either measure.
– I have not heard of such a provision. The honorable and learned member will allow me to say, however, that that is not material to the point I am discussing. I am considering, not what is proposed to be done under the Bill in this regard, but what can be done, and I assert that the power of the Federation in this respect is to invest State courts with Federal jurisdiction. If we said, for example, that the Supreme Court of Queensland should have certain Federaljurisdiction, it would be perfectly immaterial to us if every one of the present occupants of that Bench resigned to-morrow, and a new set of Judges were appointed. The new set would have precisely the same jurisdiction under that investiture as would the present members of the Bench. But we cannot pick out individual Judges and say that they shall exercise individual jurisdiction. We are to say “yes” or “no” in regard to the question of conferring the jurisdiction on the Court. A State court upon which that jurisdiction was conferred would be a State court exercising Federal jurisdiction, but its Judges would be nominated by- the State, paid by the State, removable by the State, and answerable to the State. All ‘that we should do in such a case would be to confer Federal jurisdiction upon it by way of giving assistance to the Federal Supreme Court. Therefore, it should be evident that it is impossible to carry out the suggestion that the States Chief Justices should be also Justices of the High Court. It is beyond our competency as I read the Constitution, and I have endeavoured to lead honorable members to read it with me. They must judge whether I am regarding it rightly.
– If it were possible, would any saving be effected?
– I should object to it for reasons which caused me to object in the Convention, as well as for the reasons I have given to-night. I think it would be wrong to ask one man to hold these two offices. He could not do so with advantage to either. As pointed out in the Convention by the honorable and learned member for Northern Melbourne, there is a business reason, which appeals to practical men, against the adoption of such a course. How could we expect the Chief J ustice of a State who has not only to perform judicial work, but to supervise the judicial work of his brethren, to arrange the course of and give directions for the judicial business to be performed in his State, and also to occupy from time to time the position of Lieutenant-Governor - to go to another State, to be under the direction of the Federal Parliament, and to perform his offices to the satisfaction of either party. I think that even if it were possible legally to make such an arrangement it would be impossible so far as practical conditions are concerned. But as I have already pointed out it has been placed beyond the range of legal possibility by the provisions of the Constitution itself. Thenwehavethesuggestionmade by thehonorable andlearned member for Northern Melbourne, that we should not create a High Court, but that we should leave the Statecourts in vestedwith Federal j urisdiction. The investiture of State Courts with Federal jurisdiction is provided for in section 77, which is a most important one. Under section 75 the High Court has certain original jurisdiction inalienably conferred upon it. Shortly speaking, that jurisdiction applies to all cases in which certain persons or States or the Commonwealth itself are parties. That power is quite independent of this Parliament. We do not give that jurisdiction, and we cannot take it away. Section 76 allows the Parliament, if it thinks fit, to confer Original jurisdiction upon the High Court in certain matters which have no relation to parties, but relateto laws and jurisdiction. Then section 77 comes in, and provides that, with regard to any of these matters, Parliament shall have power to confer jurisdiction upon inferior courts. The words are material, because I wish to inform the House that I cannot agree with the contention put forward by the honorable and learned member for Northern Melbourne with regard to paragraph (b) subclause 2 of clause 41, in the Bill nowbefore us. I had better state his contention, as I understand it, at once, in order that honorable members may see the point of my reference to this section. Clause 41, after referring to the exclusive jurisdiction of federal courts, says that, in the matters before referred to, the several courts of the States shall - within the limits of their several jurisdictions, whether such limits are as to locality, subjectmatter, or otherwise, bo invested with federal jurisdiction, subject to the following conditions and restrictions : -
The particular condition and restriction referred to is that contained in paragraph (b)-
Except as hereinafter provided, every appeal, from the decision of a court or Judge of a State exercising Federal jurisdiction, not being an appeal from one inferior court to another inferior court, shall be brought to the High Court.
I understand that my honorable and learned friend’s contention was that it was not competent for us to say that we conferred this jurisdiction upon States Courts subject to appeal to the High Court. I cannot bring myself to think that that contention is correct. We have power to give all or any part of this jurisdiction to all or any of these courts. We are not required to give the whole jurisdiction, or none at all, to any of them. We must remember that we can deal, not only with the Supreme Court, but with every inferior court in a State. We may deal even with a police court, and are we to be driven to say that we must give the whole of the jurisdiction, or none at all, to every court, however inferior it may be ? Certainly not. It seems to me perfectly clear that we can give jurisdiction to a limited extent to the inferior court. We can give greater jurisdiction to the higher court, and we can give such jurisdiction as is possible within the limits of the Constitution to the Supreme Court. I can see no reason whatever why we should not say that that’ jurisdiction shall be subject to appeal to the High Court.
– Does it not take away the right of appeal to other courts 1 Is not the l’ight of appeal to the Privy Council abolished by this direct appeal, overlooking the Supreme Court, to the High Court ?
– Where is there an appeal of right to the Privy Council from Federal jurisdiction at the present moment 1
– There is a. right of appeal from any subordinate court, which, if the appeal through the Supreme Court is taken away, can be exercised as an act of grace by the Privy Council.
– The honorable and learned member is speaking of an English Act of Parliament - the 7th and 8th Victoria.
– Yes.
– Under that Act the Privy Council may pass an order or may give a right of appeal from any court in the British dominions, with the exception of those in the British Isles. But I desire to draw the honorable and learned member’s attention to certain wellrecognised provisions. At present I do not think that that right is given. At present the Orders in Council, certainly in the case of Victoria - and although 1 am not so clear about the other States, I imagine that they are in the same position - appear to me to grant the right of appeal to the Privy Council in certain limited cases within the jurisdiction of the States Courts as constituted under State jurisdiction and exercising their State jurisdiction. I doubt very much whether we can point to any provision existing at the present time by which the Privy Council has conferred the right - the “ right,” honorable members will observe - of appeal on any litigant from this federal jurisdiction. But beyond that there is precedent for saying that the right of appeal can be taken away. It has been done in Canada in several cases. I forget the date of the last Act by which this was done, but I believe it was in 1883. By Act of Parliament the right of appeal to the Privy Council from the Supreme Court of Canada had been forbidden, and that Act was recognised in the very case which the honorable and learned member mentioned last night - the case of Prince v. Gagnon (S, Appeal Cases) - as taking away the light of appeal. In that case, Lord Fitzgerald, I think it was, in delivering the decision of the J Judicial Committee, said that the right of appeal was taken away by the Canadian Act, and that they were now to consider whether they should grant the appeal as an act of grace.
– They are granted in that way.
– That is another matter. I am speaking of the power to take away the right of appeal to the Privy Council ; when we get beyond that the observation made by my honorable and learned friend might apply.
– Most of the appeals to the Privy Council are matters of grace. They are not always exercised as matters of right.
– It is quite the other way, if my honorable and learned friend will allow me to say so. It was recognised by the Privy Council in the ease of Prince v. Gagnon, and recognised by Lord Davey in the speech which he delivered in the House of Lords, on our own Constitution Bill, that the Canadian Parliament had taken away the right of appeal. What position do we get to then? The Privy Council when asked to grant an appeal as of grace, says - “ No, we shall not do so if there is a higher court in the Dominion to go to.” For the Dominion I may substitute the Federation.
– Surely the honorable and learned member will not say that the Privy Council refuses in all cases to hear an appeal.
– I do not say so. I say that the rule of the Privy Council is that, if there is a right of appeal to a higher Court, you must exhaust that right by appealing to them. Even when they do not act upon that rule they are bound to ask themselves - “Is this such an anomalous case, or a case of such magnitude - not because of the amount of money involved, but in its bearings, in its results, and in its relations - as will justify us in entertaining the appeal as of grace 1 “ When you have whittled the thing down to that small point it becomes minute indeed. Therefore it is beyond my comprehension how it can be said that we are debarred under the Constitution from limiting the Federal jurisdiction of the State Courts upon which we think it right to confer the power of exercising it. If the contention had not been raised by so able a lawyer as m)’ honorable and learned friend the member for
Northern Melbourne, I should have thought it incapable of argument.
– No other legal critic of the Bill has taken or supported the point.
– It is acknowledged to be doubtful.
– I do not say that a doubt is not entertained, but I have not heard it expressed before. Treating the matter as I have, I think I have led honorable members along the train of reasoning by which I arrived at my conclusion, so that they may judge for themselves of its reasonableness. We cannot do move than express our views, matured so far as we can mature them. We have power to confer jurisdiction, and there is no word saying that we shall give everything or nothing. The Canadian Parliament has obliterated the right of appeal, and that has been recognised by the PrivyCouncil, who have laid down very stringent rules as to the cases .when they will grant an appeal as of grace. When they find that there is a higher appeal court in the territory, they want to know why the right of appeal to that court has not been exhausted. The Supreme Court of Victoria, in a case reported in volume 23 of the Victorian Law Reports, has laid down the rule that no appeal to the Privy Council from the decision of a single Judge of the Supreme Court is to be granted, because there is an appeal from the decision of a single Judge to the Full Court- here. That judgment seems analogous to the practice of the Privy Council. Therefore, from every stand-point the position taken up by my honorable and learned friend last night does not seem tenable. I will draw the attention of honorable members to some words in the Constitution which strengthen the contention which I have just put before them. Thev will see that the provisions of section 77 with respect to matters of original jurisdiction, so far as the High Court is concerned, may or may not extend to appellate jurisdiction so far as the other courts are concerned ; I offer no opinion about that. But with regard to those matters, Parliament may make laws defining the jurisdiction of any Federal Court other than the High Court. Clearly it is possible to define the jurisdiction of inferior Federal Courts. We can limit as much as we please. There is a very important subsection defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is vested ‘in the courts of the States. That proves to me beyond the possibility of doubt that we can limit the jurisdiction of the State Courts. We can say that the j jurisdiction we confer upon the inferior Federal Courts shall be exclusive of any jurisdiction we give to the State Courts, and it seems to follow as an absolute corollary that the jurisdiction given to the State Courts need not be unlimited. Where would the opposite contention lead ? If we had to give unlimited federal jurisdiction to every State Court to which we give jurisdiction it would cause an absurdity. Part of the federal jurisdiction df’ the High Court is to hear appeals from the Supreme Courts of the States.- But are we compelled to give the Supreme Court of Victoria jurisdiction to hear appeals from the Supreme Courts of New South Wales or Tasmania? Are we to give jurisdiction to an inferior court in one State to hear appeals from the Supreme Court of another State 1 ‘ We cannot entertain such a notion for a moment. And yet it seems to me that that position flows from the contention that if we give any Federal jurisdiction we must give all.
– Whose contention is that?
– I understood that the honorable and learned member for Northern Melbourne to say that if we gave Federal jurisdiction to a Supreme Court we could not give it subject to an appeal to the High Court, and I say that that involves the position that we cannot limit the jurisdiction we give.
– That we must give everything or nothing.
– That is the conclusion.
– What is the meaning of the words “ shall invest such other courts with Federal jurisdiction “ 1
– The section does not say that we shall invest the State courts with all the Federal jurisdiction possible. .
– Does not “Federal jurisdiction “ cover the whole of the judicial power of the Federation 1
– It may, but it does not necessarily do so. Does the honorable and learned member mean to ‘say that if we give Federal jurisdiction to a police court we must give it all the Federal jurisdiction covered by the Constitution? Surely not. I cannot entertain any such notion. There is another contention which lias been put forward, and that is that, supposing the Federal High Court were a proper court to appoint under the provisions of the Constitution Bill as originally framed, changes have been made in England which have so altered its character that the mandate of the Convention ought not to be attended to. I have often thought that a considerable amount of misapprehenson has existed in the public mind as to the extent of the alterations made in the Constitution Bill in England. I was not in Australia at the time, but the impression I formed from cablegrams and other accounts which appeared in the public press was that it was imagined by the public of Australia that under the Bill as it stood all appeals in mercantile causes from State courts exercising State jurisdiction had been taken away. That was not so, and it is not so now. Regarding that class of cases, I think I am right in saying that no alteration whatever has been made by the Imperial Parliament. All questions of mercantile import, all cases of daily occurrence, whether contests in respect of libels, or bills of exchange, or charter parties, or trespass, or ejectment, were, when the Convention had framed the Constitution Bill, matters of appeal as of right, within the limits of the Privy Council orders, from State courts exercising their State jurisdiction, just as they were before the Convention met, and as they are now. But there was in clause 74, as it was sent home, a provision that there should be no appeal at all - I take that to mean from the High Court or from the States courts - to the Privy Council on what were called constitutional matters, that is, matters relating to the interpretation of the Federal Constitution or of any State Constitution, except decisions affecting, speaking shortly, the public interests of any other part of the British dominions. I gather that the main objection to that provision advanced by the home authorities was this - “ You claim in Australia that this provision should stand as it is because you say that it is purely Australian. But it is not so. There may be a constitutional decision affecting, besides the litigants immediately concerned, the interests, not, it is true, of any other part of the Crown dominions, but of foreign countries, because of some treaty obligation of the Empire. Therefore the contention that there should be no appeal to an Imperial tribunal in matters that may affect the Empire in its foreign relations is not right.” That was an understandable objection. The Imperial authorities told the delegates - I am not saying whether it was right or wrong, I am merely stating the con tention as I understood it - “We are prepared to give you absolute finality - subject only to the right of your High Court to grant an appeal to the Privy Council - in all matters that are purely Australian and of constitutional importance, that is, contests of a constitutional nature between the Commonwealth and the States, or between the States, as to their mutual powers and limitations.” That was the position. Of course, only appeals from the High Court were affected. This is the change that has been made : That whereas before questions of constitutional interpretation, whether of the Federal or of the State Constitutions, going from the State courts were not appealable either as of right or of grace, they are now appealable as of right in the proper amounts from State courts in their State jurisdiction, and, it may be, unless we limit it, in their Federal jurisdiction. I think, as I have explained, that we have power to limit it.
– It would be very unfortunate if we have not, because we should then have to appoint 50 J udges.
– We can limit the Federal jurisdiction but not the State jurisdiction. We can, if the views I have stated are correct, limit the Federal jurisdiction we confer upon any State court. The Federal Parliament, und er theBill as it wenthome, had power to limit the cases in which an appeal as of grace might be allowed. They still have that power, subject only to the reservation of any Bill for the Royal assent.
– The honorable and learned member is now referring to appeals from the High Court.
– Yes. I do not think that we need bother about the cases involving the Constitution of a State. The number of such cases that will arise in the Supreme Courts of the States in their State jurisdiction will be comparatively small. The constitutional cases which will arise will come mostly, I think, under the Federal jurisdiction, and we can limit them on the same principle that Canada limited the right of appeal to the Privy Council, except in matters of prerogative.
– Is it the opinion of the honorable and learned member that the Privy Council have no power as an act of grace to allow an appeal from the High Court without the consent of the Court in matters affecting the Constitution 1
– These are the words of the Constitution -
No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question howsoever arising as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.
– No act of grace can override that.
– No. These words are contained in an Act of the Imperial Parliament, to which the Crown is a party. Appeals can be made from the High Court to the Privy Council as an act of grace, but that act of grace must be performed by the High Court. The section reads further -
The High Court may so certify if satisfied that for any special 2’eason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.
So that practically we have the matter in our own hands. I should like to point out that section 73 confers the appellate jurisdiction in regard to decisions of any Judge or Judges of the High Court, short of the Full Court, or of any other federal court, or of any court exercising federal jurisdiction, or of the Supreme Court of any State, or of any other court of any State, from which at the establishment of the Commonwealth an appeal lies to the Queen in Council, or of the Inter-State Commission. In all this appellate jurisdiction it is provided that the judgment of the High Court shall be final and conclusive, and therefore all appeal as of right from the decision of the High Court is entirely shut out. That is recognised in many cases, notably in the case of Cushing v. Dupuy 5 Appeal Cases - a decision of the Privy Council - and in the case of Prince v. Gagnon, S Appeal Cases. This provision shuts out appeal as of right, and this Parliament may shut out all appeals as of grace subject only to the Bill being reserved for His Majesty’s assent.
– Still, in Canada, they had 10 appeals of grace as against 23 appeals as of right.
– That would be from the provincial courts.
– No; from the Supreme Court of Canada.
– No appeal as of right exists there, for the reason that the Canadian Parliament shut it out.
– But the appeals are made.
– Our position is ever so much better than that of Canada, because in Canada they have not the power to shut out appeals as of grace. They have not purported to do it, and they cannot do it.
– The words in their Act are final and conclusive.
– But they relate only to appeals as of right.
– Yes ; but appeals go as of grace.
– My honorable and learned friend has forgotten the concluding words of section 74, which are as follows : -
The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for His Majesty’s pleasure.
– But the Parliament has not done that.
– I am not discussing what we have done, but what we have the power to do.
– I thought that we were discussing the Bill.
– Yes, but in relation to the provisions of the Constitution. I thought from the turn of the discussion that we were interested in ascertaining the meaning of the Constitution, and the powers of Parliament. We are not limited to the mere words of this Bill or any other Bill, but we are trying to determine whether we shall lay the foundation of a judicial system upon one line or another line, or upon no line whatever.
– The words of the Canadian Act are even stronger than those in our Constitution.
Mi-. ISAACS. - I think not. I do not pretend to have noted all the various objections that have been taken by honorable members. I have endeavoured, without occupying too much time, to deal with this question broadly. There any many provisions in the Bill whichIam sure would be better for amendment. I agree with the honorable and learned member for Bendigo that some of the provisions regarding removal of causes may with advantage be considerably altered ; but these are not vital matters, and may very properly form the subject for discussion in Committee. I quite agree with one observation made by the honorable and learned member for South Australia, Mr. Glynn, that we should be careful not to encroach upon the existing jurisdiction of the State Courts. I do not think we need take away from the State courts one atom of the jurisdiction they possess. Their maritime jurisdiction may well be exercised by them, and if they did not possess it, I should be inclined to confer it upon them. Perhaps it may hardly become one who is every day practising before the courts - although, perhaps, I may speak without any fear of being misunderstood - to say that there is no occasion for any want of confidence in our State courts. I am not basing my arguments in favour of the High Court upon any distrust of the State courts, but I have sought to confine attention to the requirements of the Constitution, and to what is best for the Federation.
– What about distrust of the Privy Council ?
– I cannot feel the same confidence in the Privy Council that I should have in an Australian court, in regard to Australian matters. Up to the present time I have endeavoured to deal with this proposal as if it were a mere question of moral obligation, arising out of the settled terms of our charter of Government. I have endeavoured to express my views as to what that instrument compels us in honour to do ; but I am not afraid to meet the position from the stand-point of discretion. I am not afraid to offer my opinion as to what we should do if we were absolutely free from any ties, and were at liberty to choose our own lines of action upon the Judiciary question. I have no hesitation in saying that it would be an act of high and wise statesmanship, both from the stand-point of expediency and economy to establish a High Court at the present juncture on the lines demanded of us by the Constitution. We heard a good deal at the time that the federal delegates were in England, bravely fighting the battle for this Bill, about the institution of an
Imperial Court of Appeal, and if I remember rightly, one of the strong arguments used by the Imperial authorities against the delegates’ view regarding Privy Council appeals was that it was most inopportune to discuss any such question because they had in contemplation the establishment of an Imperial Court of Appeal which would dispense justice uniformly and evenly for the whole Empire. This was a grand and noble conception, and one that in time would have had a great influence, but that proposition is dead. It is relegated to the shelf of obscurity. It has died from suffocation under the load of tradition and interests, from which we in Australia are happily free, and it is now labelled as one of the failures of history. I feel proud that our representative, Mr. Justice Hodges, at the Conference which was afterwards held, took the stand he did with regard to Australia. We should have reaped the benefit of his action if the scheme for the Imperial Court of Appeal had been brought to a head. At present, however, we are left with the Privy Council as the apex of our appellate system. Now, I desire to speak of that body as I ought to, with all respect. It is a venerable body, and it sits in a somewhat dingy den in Downingstreet ; but, none the less, its decisions are authoritative, and binding upon this Federation.
– The dingy den does not affect its decisions?
– Of course not; though surroundings sometimes do. But the Privy Council itself, apart from its surroundings, is a body consisting of men of varied eminence and attainments. There are upon it men of whom any nation might be justly proud. There are also retired Judges from India, from the West Indies, and from other parts of the British dominions, who have served their time faithfully and well, and who are now - at all events, members of the Privy Council. You can get a very strong court, undoubtedly, if the Lord Chancellor chooses to come down with some of his brethren from the House of Lords, and you can get a very weak court indeed, one much weaker than, I think, the majority of our State courts in Australia. There are men on the Privy Council, who, for some reason or other, have not been elevated to the House of Lords, and who, while they are not allowed by law to become members of the ultimate Court of Appeal for the inhabitants of the British Isles, are considered quite good enough to give final judgments upon matters affecting the subjects in British dominions abroad. I protest against that condition of affairs, which would have been swept away by the adoption of the project for the establishment of an Imperial Court of Appeal. Now, that that scheme has been abandoned, I do nob hesitate to say that the Privy Council is not a court in which we can place the fullest reliance in regard to the interpretation of our laws. There would be no more advantage in our asking an Indian Judge to interpret an Australian Act than there would be in the Indian Government seeking the assistance of an Australian Judge in interpreting one of their acts. To my mind there is something anomalous about it. I wish to say that if we get a strong Privy Council Court - a tribunal as strong as can be obtained in the House of Lords - and put before it a question of general mercantile import, we shall obtain from it a decision of great weight. There are guides to these decisions in other than Australian cases. But if we put before that Court a matter of local concern, and one arising out of Australian conditions - such, for example, as our mining, our land, or our labour laws - does any one mean to suggest that it can, as the AttorneyGeneral put it, “ translate itself to an Australian atmosphere,” and tell us what we intended in framing our laws?
– It can tell us how to construe those laws.
– It can tell us how to construe them, but surely if we are capable of making those laws we are also capable of interpreting them. If our Judges do not put the interpretation that we prefer to put upon them, we are here to alter them. Seeing that we have an Australian Executive and an Australian Legislature, I cannot understand why we should not have our own Judiciary. At all events, whether there be an appeal to the Privy Council or not, why should we not have the option? Why are Australians to be necessarily driven 12,000 miles away to get a decision which, as far as local matters are concerned, is generally a mere guess ? It may be a guess which is right, but it may be one that is wrong. In anycase, if we give the option to the Australian people to obtain decisions which are practically final, because I have already pointed out that a judgment of the High Court will be to all intents and purposes final, and that we can make it absolutely so - we shall have the means of deciding upon the spot, the meaning of our Constitution, and of the laws for which we, as an Australian people, will be responsible. Those decisions are much more likely to be correct than would be the case if they were given by gentlemen unacquainted with our conditions, and in most cases, therefore, as unable to interpret the meaning of our statutes as if they were living in the planet Mars. In considering the question of whether there is a necessity for erecting this court now, or whether its creation should be deferred for some considerable time - I think one honorable member mentioned ten years - when interpretations have been put upon our Constitution and our legislation, and the trend of our life has been fixed by hands other than our own, we ought to recollect that we stand here upon the threshold of our united life. We should remember that the direction which the rivulet obtains determines the ultimate course of the stream for all time. Here and now, if we are true to our duty, we shall erect a Court to which all Australians, rich and poor alike, may resort for guidance as to the laws under which they live - not a Court such as was suggested by my honorable friend the other night, a tribunal that will be swayed or controlled by sympathy - but one that is composed of our fellow citizens, cognisant of our conditions, consciously or unconsciously alive to the impulses of our daily life, and not likely to be misled by the crude and uninformed arguments of lawyers 12,000 miles away. Such a court as that is one to which all Australians ought to have access, and, I believe, not only on the ground of expediency, but upon that of economy, such a tribunal is eminently desirable. I quite agree with the Attorney-General that whilst we need not take away one iota of jurisdiction from the State courts, the erection of this High Court with its power of appellate jurisdiction from the State courts in their State as well as their Federal jurisdiction, will relieve the State Judges to a very large extent. It will enable them to traverse country districts which they cannot traverse now, and to devote more attention to them, and will relieve them of some of the heaviest appeals which they are called upon to hear, whilst litigants will be only too glad to avoid first an appeal to the State Supreme Court and then to the High Court or the Privy Council. Consequently they will avail themselves in many instances of an appeal direct to the High Court. Not only from the stand-point of expediency, but for all the economical reasons that have been so lucidly stated by the Attorney-General, I hold that we should gain rather than lose in monetary expenditure by the establishment of the High Court. Since we cannot obtain an Imperial Court for the whole Empire, why should we not have an Australian Court from which we can draw a definite, decided, and uniform series of judicial expositions for the whole of Australia? This Australian Court would soon pay its way. It would do more than that. It would form, as it was designed to be, the great bulwark of our Constitution. It would be an easily “ accessible tribunal, and practically a final one for the elucidation of our Constitution and laws. It would be so high above political interference as to be free from the faintest breath of suspicion, and yet so close to the common life of our people as to feel the pulse-beat of their daily life. No doubt it would be keenly critical of the verbiage of the enactments which it might be called upon to construe; but it would also be able to interpret them according to the inner purpose and meaning with which they were enacted. The Judges would be proud indeed to be members of our glorious Empire, but none the less, and always first, they would be citizens of this great Commonwealth, whose rights and liberties it would be their special charge and privilege to cherish and preserve.
– If I thought for one moment that, as the honorable and learned member for Indi has put it, I should be false to the trust reposed in me by the people if I opposed this Bill nothing would induce me to adopt that course. But far from that being the case I think I should be false to my trust if I did oppose it. I should be false to my trust in giving my sanction to a measure which would impose on the people a heavy charge for the creation and maintenance of an institution which, I believe, is not absolutely necessary at the present time. If I thought with the Attorney-General that in voting as I propose to do, I should be guilty of any violation of the Constitution I should not dream of adopting the attitude which I take up. But no straining of words can make it absolutely positive that there is a direct mandate in the Constitution to appoint a Federal High Court at any particular time. There is a mandate doubtless that a High Court shall be appointed but there is no hint whatever as to the period within which that should be done. As one who regards it as necessary to the completion of the Commonwealth edifice that we should have a High Court at some time or other, I adhere to the view that the present time is eminently inopportune. The Attorney-General describes the High Court as “ the keystone of the federal arch.” I should prefer to call it the cope-stone of the edifice - a cope-stone which is not absolutely essential to a building which has its foundations soundly laid. The honorable and learned member for Bendigo has pointed out a fact of some little importance, namely, that since the delegates to Downing-street permitted an amendment of the Constitution by which Australian appeals may go direct to the Privy Council the description of the High Court as “ the keystone of the federal arch” is just as applicable to the Privy Council as it is to the Commonwealth Judiciary. The honorable and learned member for South Australia, Mr. Glynn, has shown that by this amendment of the Constitution the Privy Council actually becomes the final arbiter in all cases of constitutional difference. I hold that at the present moment there is no pressing necessity to impose this fresh charge upon the people of the Commonwealth. In some of the States they are already overburdened with taxation. Let us examine the duties of the High Court under the Constitution and consider how far they can be effectively performed without the establishment of that tribunal. The first of its duties has reference to matters of original jurisdiction arising under any treaties. It cannot be urged that in this connexion there is any urgency for its creation. The Commonwealth has no power to enter into treaties, except through the medium of the British Government. Then it has power to exercise jurisdiction in matters affecting consuls or other representatives of other countries. I understood the Prime Minister to say that these matters are not likely to create any very great amount of business. The third duty of the High Court would be to deal with matters in which the Commonwealth, or a person suing, or being sued on its behalf was a party. The honorable and learned member for Bendigo has pointed out how effectively, and without bias, the State courts have conducted all the cases arising under this particular ‘heading to the eminent satisfaction of the people generally. The fourth sub section relates to matters of the greatest possible importance - that is, cases arising between States, or between the residents of different States, or between a State and the residents of another State. In this connexion I would pointout that when the Post and Telegraph Act was passed through this Parliament, the Premier of Tasmania raised the question that in regard to one particular section operating against “Tattersalls,” the Commonwealth Government ought to stay their hands until the matter could be decided by the High Court. That was, obviously, peculiarly a case as between the conflicting laws of States, and concerning which it was desirable that there should be such an appeal. We had in Tasmania a law which said that application for tickets in that particular institution should be sent only through the post, and by no other channel. The Federal law said that the post should .be absolutely closed to those applications. Without entering upon any consideration of how far the action as to “ Tattersalls” is to be justified or not, there was this conflict of laws, to which the Premier of Tasmania naturally, and very properly, asked that consideration should be given by the High Court before any action was taken by the Commonwealth. That request was refused, because it was pointed out that there is vested in the States courts sufficient power to deal with the matter.
– Did the Commonwealth Government say that 1
– They said that Tasmania could seek her relief in the courts already existing. The fifth matter concerns cases in which a writ of mandamus or an injunction is sought against an officer of the Commonwealth. As to this there can be no doubt that the power exists in our courts to-day to grant all. that is required. My great objection to this Bill is on the score of expense. When we have embarked upon this matter we do not know where we. shall be landed. We are told that the cost of the establishment of the Judges and their officials will be about £30,000.
But we have not had mentioned a full list of the officials, and no account whatever has been taken of the very heavy cost, probably, of the buildings that will have to be erected for the sittings of the High Court. Are we to believe that this, the highest court in Australia, will be a peripatetic court, finding its place of sitting here, there, and wherever it can borrow or temporarily rent -some suitable or unsuitable house to sit in ? There will inevitably be a very considerable charge upon the people for buildings for the High Court, in addition to- the large expenditure in other directions ; and instead of £30,000, in all probability the expenditure will be very much greater. I would point out that while the Commonwealth is in a position to be lavish with the people’s money ;. while it is free from the obligation which binds the people of the States to find the interest on their debt ; while that interest charge is a burden upon the States that they find it very difficult to bear ; while because of that they have to exercise economy in every possible direction^ paring down expenditure even to the curtailment of charitable grants, and raising taxation as it has never been raised before in some of the States - while all this is so, and must be so as, long as the States are wholly and solely responsible for the whole of that interest, we have a Federal Government free from any obligation of the kind, free from that responsibility, and only restrained as to its expenditure by the Braddon clause, which prevents it from spending more than one-fourth of the net Customs and Excise revenue collected. While that is so, in a season such as this - a season of depression and difficulty for the great majority of the States - we should hesitate before we plunge into any expenditure whatever that is not thoroughly and amply justified by its necessity. It is for that reason - although I am, in principle, a supporter of the idea of the High Court, and have no sort of opinion that a substitute can be found for it by the appointment of Judges as occasional High Courts or anything of the sort - although 1 believe that in the fulness of time, when we can afford it, and when occasion demands it, we must have a court such as is contemplated here, that I shall have, unwillingly, but still in conformity with the views I entertain and the sense of responsibility to my constituents that I feel resting upon me, to oppose the second reading of this Bill.
Mr. RONALD (Southern Melbourne).The remarks which I shall have to make upon the subject of the creation of a High Court of Australia will be few. It seems to me that the object of such an institution ought to be to limit and restrain litigation ; and apparently, from the character of the proposal in the Bill before us, that tendency and intention have been kept in mind. On the other hand, .it may be argued that litigation will be reduced very considerably in . the event of our leaving the appeal to the Privy Council as a final court of appeal in connexion with all legal disputes occurring within the Commonwealth, because the Privy Council is such a far-off and expensive institution that men will pause and hesitate before resorting to it. It seems to me that these two extremes have to be kept in mind. On the one hand, there is our desire not to increase facilities for litigation by creating here a High Court and other courts, which lead one to the other in order to arrive at something like finality in vexed questions ; and, on the other hand, there is our desire, in the case of men having grievances against^ other men, or against a State, or an institution, not to put any insuperable barriers to proceeding to a final court, where the parties may find a verdict at last that will commend itself to their judgment and conscience as being in accordance with the facts of the case. It is a splendid and an ideal thing to keep these views before us in reference to the establishment of a final court of appeal. But ideals cost money unfortunately; and it is only when we translate them into cash that it becomes apparent that there are some ideals which may be too expensive. This is just such an ideal. As an ideal it may be the true one. It may be the ideal upon which we should act in trying to find finality in connexion with vexed legal questions, whether between man and man, State and State, or State and Federation. But it isa matter for argument whether now is the accepted time for realizing this ideal, and that is where I confess to some scepticism. There are times and conditions which limit all things, and it is quite likely that we shall never have a logical Constitution - a Constitution which begins with an appeal to the people, then finds their voice expressed in Parliament, and finally realized upon the statute-book and administered by a final court of appeal in Australia. That may exist as an ideal, but yet may be an apocryphal ideal ; and it is quite likely that it may be one of those things for which we can afford to wait. I would remind the House of one thing. I ‘ was one of those who took upon themselves the odium of opposing the Commonwealth Bill. “We were spoken of in anything but complimentary terms for so doing. “We opposed it largely because of the presence in it of this chapter dealing with the judicature. “We were told then that we were traitors to the highest and best interests of Australia. But to-day those same people who clamoured for federation in the loudest terms possible are preaching that now that we have accepted federation we ought to stumble at this most essential part of it. It ill becomes those people who, a few years ago, when they were forcing federation upon the people - rightly or- wrongly ; I now believe rightly - told us that the judicature was an essential thing, and that we must have it, to tell us that those who support this legislation, giving effect to the programme they forced upon the people, are traitors to the cause and not they. I say that if this is a matter of completing a programme and carrying out an ideal, by all means at whatever cost let us carry out that ideal at the earliest possible moment. I think the Government, whatever may be said about the time and wisdom of their action, are to be complimented upon this - that they have tried to complete the skeleton work of our Constitution, which never will be completed without a final court of appeal, composed of Australian Judges.
Mr. HENRY WILLIS (Robertson).We are indebted to a number of legal members of this House for giving us the benefit of their experience as to what this High Court is likely to be, if it is established on lines laid down by the Government. The Attorney-General, in his speech last year, mentioned that he was indebted to Sir Samuel Griffith, Sir Josiah Symon, and Mr. Justice Clark, of Tasmania, for veryvaluable suggestions and recommendations in framing or drafting this measure.
– For criticising the drafting.
– For criticising the drafting. But the Attorney-General went on to say that while those gentlemen made certain recommendations, he was of opinion that they would not approve of the Bill as introduced by the Government.
– No ; I said I would not say they did approve.
– The AttorneyGeneral had good reason for making that admission. I take it, that while those gentlemen made certain recommendations and suggestions, they did not necessarily approve of a Bill of this character, but, if the Government made the introduction of the measure a part of their policy, they were willing, to the best of their ability, to assist in making it as perfect as possible. The Attorney-General on that occasion further said that any defects in the Bill were his ; indeed, I think he was more emphatic, because he said -
Every weakness in it no doubt is due to some of the alterations I myself have made. I am anxious without undue delay to recommend it to lay members of the House.
Was that admission made because of the imperfections in the Bill, or was it because of the fact that if we investigated pretty fully the opinions held by the gentlemen to whom he referred, we should find that, when they had the opportunity of speaking for the States they represented in the early Convention, they did not approve of the establishment of a High Court such as is outlined by the Government? Sir Josiah Symon favoured, I think, the proposals that were made by Sir Henry Parkes, that we should have a Court of Appeal that would give a final decision in Australia - that there should be no appeal to the Privy Council. That opinion was held by every member of that Convention, because the resolutions to that effect were carried unanimously. But Sir Samuel Griffith, in his report to the Legislature of Queensland, presented after he became a Judge, made special reference to the Constitution Bill, which was practically the Constitution as we have it to-day. To-night the honorable and learned member for Indi laboured very hard to show that it was mandatory in the Constitution that this Federal High Court should be established because without it the Constitution is not complete- that a High Court is the complement of the Constitution. Sir Samuel Griffith in his notes, as he termed them, which he made on the draft Federal Constitution framed by the Adelaide Convention of 1897, and which he presented to the Queensland Government, stated that the Constitution is practically the same as that introduced in the Adelaide Convention. Sir Samuel Griffith said -
The most important formal change consists in substituting the formula of the United States Constitution, which declares that the. judicial power of the State shall be vested in a Supreme Court, for the provision of the draft of 1891 that the Federal Parliament might establish such a court. The change is, however, of nopractical importance, for until Parliament provides salaries for the Judges, and ‘ the necessary machinery for the exercise of their jurisdiction, the judicial power will necessarily remain in abeyance.
That is the opinion of Sir Samuel Griffith as to the reading of the words “ may “ or “ shall.” He proceeded -
There are certain recognised rules which may be called rules of courtesy, usually followed in the language of Statutes relating to the Sovereign and the prerogative. Thus it is not usual to enact that the Sovereign or her representative “shall “ or “shall not” do an act. In the first case the word used is “ may,” and in the latter, the act itself is declared unlawful. In the draft of 1891 it was declared that the judgment of the Federal Court of Appeal should be “ Bnai and conclusive,” with a proviso that the Queen might give leave to appeal in certain specified cases. The legal effect was the same, but the expression was not open to the charge of discourtesy or disregard of established usage.
Thus we have it on the authority of the Chief Justice of Queensland that the establishment of a High Court is not mandatory, for until provision for salaries is made, no Judges can be appointed. The AttorneyGeneral quoted Chief Justice Marshall as saying that a Federal High Court is the “ keystone of the federal arch “ ; but in that quotation the Chief Justice was referring to the Supreme Court of the United States, a country which has no court of appeal outside its own territory. In the case of Australia, the High Court is not the final court of appeal, because we may, if we choose, go to the Privy Council, either from the High Court or from the Supreme Courts of the States. The Attorney-General put the matter very tersely, I think, when he said - °
The fundamental issue is whether this Parliament is called on at this time to establish a High Court, and, if so called on, whether the means proposed are adequate and not excessive.
That is the real crux - whether Parliament is called upon at this time to establish a High Court. I am of opinion that we are not, at this juncture, called on to take that step. In Canada, where there is no High Court in the same sense as in the United States, the people are able to perform all their legal work with satisfaction, and for 40 years past have successfully carried on by making appeals to the Privy Council. Notwithstanding the disparagement passed on that body by the Attorney-General, and by the honorable and learned member for Indi, I find that the former, in other parts of his speech, commends the decisions given by the Privy Council in cases submitted from the Dominion. Therefore, I take it that if we adopt what is called a scratch court “ ‘ by the Attorney-General, we shall be adopting a system that was recommended by Sir Samuel Griffith in the eports which I quoted a few minutes ago. In that report he also said -
Before leaving this branch of the subject I take leave to submit, as a question deserving of serious consideration, whether the work that would fall to a Federal Supreme Court is likely for some years to be sufficient to warrant the immediate creation of a complete separate judicial establishment. The arguments in favour of an independent Federal Judiciary are obvious, and are, no doubt, very cogent. It might, indeed, be necessary to have one or two exclusively Federal Judges to preserve the continuity of the tribunal, and to organize and supervise its machinery, but it is, I think, worthy of consideration - and to this I specially direct the attention of the Attorney-General - whether it might not be wise to empower the Federal Parliament, if they think fit, to make laws, authorizing the provisional constitution of the High Court, in whole or part, by Judges of the States Courts.
Here is an opinion expressed by the Chief Justice of Queensland, that the Judges of the States Courts might perform all the functions of the High Court, so that the States might appeal to them for decisions on matters on which there was conflict in the several States, but that there- would still be the final court of appeal provided for in the Constitution. The honorable and learned member for Indi referred to the visit to England of Mr. Justice Hodges, of Victoria, who made it very clear that the establishment of an Imperial Court of Appeal would be of immense advantage to the Empire. Should this amalgamation of the Committee of the House of Lords with the Judicial Committee of the Privy Council take place, there would, as at present, be an appeal direct from the Supreme Courts of the States. Such a court -would, I think, be of more influence, and their decisions would be of even more value, than would those of a court established in Australia. While we have the pick of the best men amongst 4,000,000, in Great Britain there is a choice amongst 40,000,000 of people. Great Britain is the commercial centre of the world, and has had wider scope of experience ; and we may safely conclude that a court of that character would carry much more weight than would a court such as is proposed under this Bill. We must take into consideration what this magnificent measure will cost. The AttorneyGeneral has modified his views upon this subject, as he finds that the Bill is not meeting with commendation. In the speech which the honorable and learned gentleman delivered last year upon the subject, he referred very fully to what the cost of the High Court would probably be. As he made but one quotation from that speech yesterday, I shall make one with a view of correcting the quotation which the honorable and learned gentleman then made. In the speech which he delivered last year, the honorable and learned gentleman said -
Honorable members will notice that we put down only the sum of £6,000 per year to provide for all these officers, say £7,000, including the salary of the Crown Solicitor. 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 about £30,000 as a maximum.
Then I find that in another place’ he said -
In all these matters it is intended to commence in a tentative fashion. I do not think it will be necessary to have men wholly devoted to the duties of marshal the first few years. Probably, for a small honorarium we shall be able to obtain officers in the different States who will undertake those duties for some years to come.
And he also said -
On the Estimates we have provided £3,000 bo cover the salaries of marshals, registrars, and other court officers, and contingencies for six months, or at the rate of £6,000 per annum. If we set down the sum at £7,000, that will cover the salary of the Crown Solicitor as well.
If honorable members will consider these figures they will find that there is proposed an expenditure of £15,500 for the Judges, £7,000 for court attendants, marshals, deputy-marshals, registrars, bailiffs, and so on, and a further sum of £7,500 for travelling ‘ expenses. Adding the £7,500 for travelling expenses to the £15,500 we find that £23,000 will’ be the sum actually paid to the J udges. It is not to be supposed that the Judges will be able to travel from one part of Australia to another without incurring heavy expenditure, and on the figures given it is clear that the amount of £4,600 per Judge is provided for in this estimate. The Attorney-General, however, says that these arrangements are merely tentative, that the £6,000 provided for court attendants will merely cover an honorarium to each of these officials, and will not cover the salaries they will be paid when they are more fully employed. Notwithstanding the AttorneyGeneral’s contention yesterday, that we could establish the court for not more than £20,000, we have it upon his own showing that the expenditure upon the Judges alone will be not less than £23,000, or £4,600 per Judge. That is an expenditure which is certainly not warranted, when it is not necessary to establish such a court. The citizens of the Commonwealth have at the present time every opportunity they need of securing justice by being able to appeal to the Privy Council without the establishment of this Australian High Court. We must, in addition to the £30,000 spoken of by the Attorney-General, take into consideration the fact that a large expense will be involved in securing court-houses, Federal police, and possibly Federal gaols as has been pointed out by the honorable and learned member for Northern Melbourne. The AttorneyGeneral has certainly not shown to the satisfaction of lay members of the House, who are business men, that this High Court can be established and maintained for £30,000.
– If the honorable member will look at section 120 of the Constitution, he will find that provision is already made for the custody of offenders against the Commonwealth.
– The honorable and learned member for Northern Melbourne, who is a lawyer of large experience, devoted himself very fully to this question, and made statements which the Attorney-General was quite unable to refute. The honorable and learned gentleman made no interjection to dispute the statements being made by the honorable and learned member for Northern Melbourne. The chief opposition to the Federal Constitution, when it was before the people in the form of the Commonwealth Bill, was founded upon the expense likely to be involved in the establishment of the Common wealth.
– The honorable member surely believes that the States will give the use of courts and gaols, and the service of police, when they know that they will have to meet the expenditure proportionately afterwards if they do not ?
– This expenditure will be borne proportionately. But it is contended by the Attorney-General that in certain States - where the J udicial Bench is weak - the Federal Judges on circuit will have the most work to perform. This court therefore will be a heavy tax upon the State of New South Wales - where the Bench is strong - as one-third of the cost of this Judiciary will fall upon the people of that State. We have found so far that everything wanted by the Commonwealth has had to be paid for. With the exception of this building, and the Government houses, the Commonwealthhas had to pay rent for all the buildings occupied. Though we do not pay rent for this building, we pay for the upkeep of the gardens, and we pay a considerable amount in honorariums to officials attached to this building.
– We have our own officers here.
– I know that on the Estimates passed last year there were large sums of money provided for officers about this House. I was saying that the principal opposition to the Commonwealth Bill when it was before the people was founded upon the heavy expenditure which the Federation was likely to entail. It was certainly hoped that the expenseof the Federation might be curtailed below the Convention estimates. It was shown by an estimate submitted by our Speaker at the Adelaide Convention that the cost of the Federation would not be more than £300,000 a year. But it was afterwards contended in the press and upon public platforms that the establishment of the High Court and other Federal institutions would render the expenditure of the Federation too heavy for the people of the Commonwealth to bear. The opposition to the Commonwealth Bill on that ground was so keen in New South Wales that I feel it to be my duty, as a repesentative of that State, to do what I can to prevent the Government entering upon excessive expenditure. So that the fears entertained by the people with respect to the cost of Federation may not be verified, I shall be found voting deliberately against the second reading of this Bill.
– I did not intend to say anything upon this question because my views are well known, but as I have paired and shall not therefore be able to record my vote upon the second reading, it might be as well if I said two or three words before the debate closes. I regret very much that, in spite of my desire to give a consistent support to the Government, and in spite of my personal regard for the individual members of the Government, and certainly for none more than for the honorable and learned gentleman who has introduced this Bill, I fmd myself so frequently in hopeless conflict with their proposals. The position will become very serious, if we are to go on as the Government propose, piling expenditure upon expenditure upon the people of the Commonwealth, when it is not absolutely necessary. I venture to say that nothing can discredit the Commonwealth Government or the Commonwealth Parliament more in the estimation of the country than to proceed in such a course. It is to me something quite new to find- private members of Parliament being obliged to restrain the Government in expending the money of the taxpayers. My experience during nearly a quarter of a century in the State Parliament of Victoria was altogether the other way. There I always saw private members trying to induce the Government to spend money in different directions, and the Government, impressed with a sense of responsibility to the taxpayers, always resisted those overtures. But I feel that, if this Parliament does not restrain the Government, and if honorable members are willing to go as fast as the Government ask them to go, we shall run the Commonwealth ship into financial breakers at a very early period in our history. I listened with very great interest to the honorable and learned member for Indi. The honorable and learned member laboured the point, which had previously been laboured by the Attorney-General, that the Constitution makes it imperative that the Federal High Court shall be established at the earliest possible moment. The honorable and learned member for Indi contends that the Federal jurisdiction can only be exercised by a High Court and certain other courts vested with Federal jurisdiction after such High Court has been established. I understand that that contention is also in accordance with the views of the Attorney-General. But, if that be so, where does it land them ? We find that the Government, which includes a sufficient number or more than a sufficient number of qualified lawyers to constitute a High Court themselves, have during the last twoandahalf years allowed State Courts, vested with Federal jurisdiction, to try cases in which the Commonwealth has been interested, and to settle them. If the Government knew all this time that the action of those courts was ultra vires, and that they had no legal power, attention drawn to the fact at the present time comes a little too la te. Are we to believe, as we are told now, that State courts could decide cases in which the Commonwealth is interested for twoandahalf years, but they cannot continue to do so for five or six years? If that is the contention I refuse to believe it. If the decisions of those courts were legal during the past two-and-a-half years, they will be legal for five or six years, and if they will be illegal in the future they must have’ been, illegal in the past. The honorable and learned member for Indi himself took pare in some very important and prominent cases against the Commonwealth, which were heard before State Courts, and although, with all the force and ability of which he is capable, the honorable and learned gentleman raised other points, and said that certain action taken was ultra vires, did he for a moment contend that the courts themselves had no jurisdiction because there was no High Court in existence ? The honorable and learned member never took that point, and we never heard of it until we find it used for the purposes of this Bill. I rely upon the Commonwealth Constitution, which sets forth that certain matters shall be dealt with within a given time. For instance, it provides that the Department of Customs and Excise shall be taken over by the Commonwealth Govern- ment immediately upon the creation of the Commonwealth. It provides that a uniform Tariff shall be adopted within two years of the creation of the Commonwealth. It provides that the bookkeeping provisions shall remain in force for’ ten years, but for the establishment of the High Court no time is fixed. It provides that there shall be a Federal High Court, but it does not say when that Federal High Court shall be established, and I venture to say that the common-sense and business view of the constitutional provision is that it shall be established when the necessity arises, and not before. If we establish it before the necessity for it has arisen we shall be incurring unnecessary expenditure, which, in my opinion, cannot be justified. I would again ask honorable members to consider the rate at which we are travelling in the matter of expenditure. The Pacific Island Labourers Act, when it is in full operation, will involve an annual expenditure of £340,000. Taking the yield of sugar at the figures which were supplied by the Minister for Trade and Customs, a bonus of £2 a ton on 170,000 tons, which is a moderate estimate, will amount to £340,000 a year. The minimum wage provision in the Public Service Act will, according to the Treasurer, involve an expenditure of from £40,000 to £45,000 a year.
– He has reduced that estimate to £26,000, I think.
– For the first nine months of this year the expenditure has been -£21,000 odd, and a large number of persons have yet to come in who have not been paid anything. If we put that expenditure down at £40,000, it is a very low computation. Our ordinary annual expenditure for last year was £275,000.’ The total expenditure provided for up to the present time has been at the rate of £655,000 a year, although the people of the Commonwealth were told that the additional expenditure in consequence of the establishment of the Commonwealth would not exceed £300,000 a year. It is £55,000 more than double that sum, and that is without * the High Court, the Inter-State Commission, the capita], and the two transcontinental railways, with which the Government are coquetting. What will it amount to if we go on with these additional works 1 We were told by the Attorney-General last night that probably the High Court will not cost more than £23,000 a year. I am surprised that my honorable and learned friend is so much under the influence of his own seductive eloquence, I am perfectly sure that if he were not he would not for a moment believe that it would be within anything like these limits. The salaries of the Judges alone will be £15,500 a year. Then the salaries of five associates have to be paid. What will the travelling expenses of five Judges and five associates, passing continuously from one State to the other, amount to? The)’ will amount to a sum very nearly as large as their salaries. When my honorable and learned friend tells us that they could utilize the State buildings and State officials, does any honorable member believe that that would continue to be done 1 Would he not be the first to . come down in the session after- the Court was established and tell us that it was derogatory to the dignity of the Commonwealth Go-, vernment that they should go cap in hand to the States to ask for shelter for their Judges’? We know perfectly well that the very same thing would occur in that session as occurred last session, with regard to our Public Works Department. We were told at first that we could use the State Departments of Public Works ; but we were not in session very many months when the Minister for Home Affairs came down and told us that he would not rely on the State officers, that he must have his own Department of Public Works. What is the consequence of this policy? If repairs need to be effected to any building in an up-country township, we have the spectacle of a State officer going up to see if two or three palings require to be replaced on a State school, and of the Commonwealth inspector travelling up in the same train to see if a shingle or two or a sheet of iron require to be fixed on the local post-office. So we go on, duplicating work in every Department. The Commonwealth, as well as the State, must have its own complete set of Departments. I am not prepared to follow in that direction. I am prepared to give the Government a consistent support, so long as they show a reasonable regard for the material interests of the people. But I shall not follow any Government into, what I consider, reckless and extravagant expenditure. A High Court was, very properly, provided for in the Constitution, and when the time comes - and I have no doubt that it will come - it will be necessary for us to establish such a tribunal. But I hold that to do so before that time arrives would be an unnecessary piece of extravagance, and that every person having the interests of the people of the Commonwealth at heart should consider very seriously before committing himself to it. I regret to say that I cannot support this Bill, and therefore I have paired against its second reading.
– After having this subject debated so ably by the legal luminaries of the House, it may appear presumptuous for ordinary laymen to speak, but at the same time there are one or two phases of this very important question which appeal particularly to laymen, and which require a little consideration as well as its more legal aspects. E have listened very carefully indeed to the arguments of the legal, gentlemen, and of course it is unnecessary to do more than intimate for the purpose of the few remarks I have to make that there appear to be three courses open to us. We can leave things as they are; or we can patch up an arrangement with the States for utilizing their Judges; or we can adopt the measure before us, with such alterations of course as may be thought necessary. I do not intend to discuss the second course which is open to us. The proposal to arrange with the States for utilizing their Judges as Judges of the High Court has been shown to be so absurd and impracticable by the honorable and learned member for Indi, that there is no necessity for dealing with that aspect of the question. I shall, therefore, direct my remarks more particularly to the question of- whether we should leave things as they are. The famous plan of Lord Melbourne, when he was confronted with any proposal in the way of progress, was to ask impatiently, in language which I shall not exactly reproduce - “ Why can’t you leave it alone ? “ This seems to be the attitude of many honorable members of this House, and I apprehend that this Parliament was called into existence for the purpose of pushing forward things which could not be obtained for the people of Australia by the States Legislatures, and I take it that the formation of a Federal Judiciary was emphatically one of those things. We are asked, however, to stay our hand for a more or less indefinite period, because one or two of the States are in. a feverish condition in regard to economy and retrenchment. I am surprised that honorable members who ought to know better than to sympathize with such false cries as have been raised against this Parliament, in the direction of being charged with extravagance, should repeat in effect such charges here, when time and again it has been shown that the Federation, so far from increasing the burden on the people of Australia, has in some respects actually reduced it. At any rate it cannot be shown that the total taxation of Australia has in any way been increased by the advent of the Federation. We are reminded that the people of Victoria are intensely anxious for retrenchment and reform. We are told that they have been indulging in an extravagant policy for some years, which it is necessary for this Parliament to put right, by leaving undone work which it was called into existence to perform. Sympathizing as I do to some extent with the people of this State, 1 cannot accept that position. If they look the situation fairly and squarely in the face, they will see a clear way out of their State difficulties. Instead of retrenching and injuring civil servants and railway employes-
– I do not think that the honorable member can discuss the methods of retrenchment adopted in the Victorian Parliament.
– I was only wishing to show, sir, that this cry for economy on the part of Victorian representatives in this House is a false, and, to some extent, a hypocritical one, and I believe that in a very few words I can make my position perfectly clear.
– The honorable mem- ‘ ber will only be in order if his remarks can be connected with the measure before the House.
– We are told, for instance, by honorable members that a serious loss has been going on in Victoria for some years in connexion with its railways. If the people of the State care to go thoroughly into that question they will probably find’ that that loss is to be traced rather to the centralizing policy of Melbourne than to any overmanning or overpaying of their employes.
– I cannot see how the honorable member can connect these remarks with the Bill.
– I shall proceed to another phase which I think has a still closer bearing on the subject before the House. We are told again by the representatives of Victoria in the House that it is necessary to retrench - and that we should remember that State particularly in connexion with the proposal before the House - because there is no other alternative available. What do I find with regard to its taxable position 1 Turning to Coghlan, I find that in 1901-2 its indirect taxation amounted to £2,392,000, while its direct taxation was only £700,000. I have to say to its representatives here that it is their duty to tell the people of Victoria, and if necessary the _ State Government,’ that what is wanted is not a parsimonious attitude to the
Federal Government, but rather a placing of the local taxation upon a proper basis. The taxation in Great Britain is, roughly speaking, one-half direct and one-half indirect. In Victoria we have less than onethird of direct taxation, and if the authorities will only place its taxation on a proper basis it will be able to overcome all its financial difficulties without any trouble. I listened very carefully to the excellent speech delivered last night by the honorable and learned member far Northern Melbourne. At one stage of his address he almost succeeded in convincing me that it would be wrong to support this measure. I refer to the point at which he particularly emphasized his opinion in regard to paragraph (6), sub-clause 2 of clause 41. He even went so far as to say that, if the construction which he placed upon it were put before an impartial authority, and decided against him, he would probably have to confess that a good deal of his opposition to the Bill was unfounded. To put it in a rough-and-ready way, as a layman must necessarily do, his contention was that it would be possible for appellants to pass the door of the Federal High Court, and go direct to the Privy Council. If that were the situation I should hesitate very much before committing myself to support this Bill. The honorable and learned member’s contention was put with much earnestness, and coming as it did from a man of such recognised ability, it rather staggered me for the time being. But upon looking into this question a little further, what do I find? I find that the opinions of possibly a dozen men, including probably some of the best authorities in Australia, can be quoted in direct opposition to the view taken by him. That being so, I must say, with all respect for the honorable and learned member’s opinion, that I feel impelled to recognise the views of such men as Sir Samuel Griffith, Senator Symon, and several other equally reputable authorities in Australia, as carrying considerable weight.
– Those opinions were given before any alteration was made in the Bill.
– No. Those opinions were given after these provisions were made.
– I admit my mistake. I should have said that they asserted at the time of the Convention that it would- not be necessary to appoint a High Court if an appeal from it were allowed. I
– Apart from that interjection, I may remark that apparently one of the reasons for the hostile attitude taken up in regard to this Bill by the honorable and learned member for Northern Melbourne arises from the process which he has called a “tampering” with the Constitution, on the part of the Imperial authorities, before it was finally passed. With all deference to the honorable and learned member, I question whether that is a correct expression to use in regard to a perfectly legitimate and above-board action on the part of the Imperial authorities. As I understand the expression, no tampering whatever took place, and when I hear an honorable member indulging in language of that kind with regard to this measure, it very much vitiates the value of his argument. More than once in this House I have heard charges insinuated against statesmen in Great Britain, which I should hesitate to direct against even the most disreputable denizen of Pentridge. I am surprised to find the honorable and learned member for Northern Melbourne indulging in such language relative to a matter which gives no justification whatever for its use. One point which I have been particularly anxious to keep in view is the question of whether the High Court of Australia will have the interpretation of our Constitution. I am fairly familiar with the conditions which exist in Great Britain, so far as the superior courts there are concerned, and I indorse the attitude taken up by some honorable members who say that the Imperial authorities at Home are unlikely to be the best interpreters of our Australian conditions and our Constitution. There is no doubt that their environment must be altogether different from that of the High Court of Australia.
– Both have merely to construe the law. Neither can attempt to make it.
– Influences that have much todo with the shaping of their decisions are frequently operating quite unconsciously in the minds of some of the most impartial Judges who have ever held office when thev are construing the law. “ I do not think I am libelling the higher courts of Great Britain when I say that their unconscious bias - if I may use the term which has been used in this debate by honorable members who belong to the legal profession - is more frequently of a conservative than of a democratic kind.
– The honorable member would not say so if he saw some of the English legislation. It is much more advanced and democratic than ours.
– In some respects it may be. But I say that we can hardly expect our Constitution to be interpreted by those courts with a due regard to all our conditions, and in that atmosphere of democracy which must surround the High Court of Australia. For that reason, and for that reason alone, I consider it is highly necessary to constitute the High Court at the earliest opportunity. I view with a good deal of alarm the possibility of interpretations being given, and of precedents being established at the outset of our national life which may hamper us in the future, and seriously interfere with the true progress of Australia. The advantages to be derived from this High Court put the question of expense wholly in the shade, and having regardto the people as a whole, I believe that the expense involved will be insignificant compared with the advantages that will be derived from the creation of the court.
– Does the honorable member refer to the estimate of £30,000 a year, or to what the actual cost will be ?
– I am not going to mention any sum, although I shall certainly do my best to see that the expenditure is kept within the limits indicated in the Bill. But, whatever the expense, I shall endeavour to see that this Judiciary of ours secures the highest possible degree of efficiency. I have to compliment the Attorney-General upon the courageous way in which he has faced the cry for economy now raging throughout his own particular State. He accepts the responsibility, and I, for one, am willing to accept my share of the responsibility of giving, at the earliest possible moment, to the people of Australia, a High Court which, I believe, will be the stronghold of their freedom, and the interpreter in the worthiest and noblest sense of our Constitution.
– The hour is rather late for me to commence my address, and perhaps it would be a convenient time to adjourn.
-The honorable and learned member should allow the second reading to be carried. He will not lose his right to speak. Practically the first clause refers to the power to appoint five Judges, and raises the whole question again.
– I think I should speak on the second-reading stage.
– The honorable and learned member must either proceed with his speech or resume his seat.
-I was asking for the adjournment of the House, and I think time would be saved by consenting to my request.
– Some honorable members have come back to-night in order to vote on the second reading.
– It would be a considerable advantage to the Government if ray request for an adjournment were allowed.
– Order. This procedure is quite disorderly. The honorable and learned member must either proceed with his speech or some other step must be taken.
– I think, that in a matter of this kind, it is unnecessary that the debate should be closed with any undue haste. In similar circumstances an adjournment has been granted to many other honorable members, but that privilege is denied to me. We are asked to give power under this Bill to establish a High Court, and we have” the statement of the honorable and learned member for Indi on the one side, that that court is the natural corollary of the Constitution. I am one of those who assert that, at the present time at all events, it is not necessary for us to establish a High Court, and, if it were, the manner in which it is proposed under this Bill to establish it is open to serious criticism. I think that we are undertaking an unnecessary expense in proceeding in the way proposed. If a Bill had been brought in to establish a court of three Judges, with appellate jurisdiction, one might have been disposed to listen to the arguments advanced in favour of the proposal. If the immediate establishment of the High Court is absolutely required by the Constitution, and that were clearly proved, no doubt honorable members would accept the situation, and, regardless of the present financial position of the States, would say - “ We must establish this court because the Constitution requires us to do so.” But the position is very different. We have been told that the provision in our Constitution is similar to that in the Constitution of the United States, and the honorable and learned member for Indi very clearly and forcibly laid before the House his reasons for that assertion. But it seemed to me that he entirely overlooked an essential difference between the two Constitutions. Although he quoted the opinion of Mr. Justice Story, he did not quote the statement of that excellent Judge in which are given the reasons why it was absolutely necessary to establish a Federal Supreme Court in America. Mr. Justice Story points out that Congress could not vest any portion of the judicial power of the United States in any courts but those ordained and established by itself. We are in a very different position because we have power, not only to constitute a Federal High Court, and such other Federal Courts as we may think fit, but to invest State courts with Federal jurisdiction. As a proof of that statement I need only refer to clause 71 of the Bill, under which certain powers are given to the States courts. Mr. Justice Story points out that if in any of the cases enumerated in the Constitution, the States courts did not possess jurisdiction, the appellate jurisdiction of the Supreme Court could not reach them, and consequently the injunction of the Constitution that the judicial power should be vested would be disobeyed. There, again, is a marked difference between the position of the two countries. Here we have an absolute appellate jurisdiction over all the States courts, and can invest any one of them with Federal jurisdiction. The attitude of the honorable and learned member for Iudi” in regard to this matter was not that of a legally trained mind trying to consider it judicially, since, while he quoted one part of Mr. Justice Story’s opinion, he did not quote another part which told against his argument. Mr. Justice Story goes on to show that Congress was bound to establish inferior courts in which to vest jurisdiction which, under the Constitution, was exclusively vested in the United States, and of which the Supreme Courts of the States could not take cognisance. It is true that the Government are quite within their rights in proposing to establish a Federal. High Court consisting of five Judges. Section 71 of the Constitution says that the High Court shall consist of a Chief Justice and not less than two other Justices, so that they could propose the appointment of as many other Judges, in addition to the Chief Justice, as they might think fit. One of the objections I have to the Bill is that the number of Judges it is sought to appoint cannot be sufficient for both appellate and original jurisdiction. If it were proposed merely to set up an appellate court, no doubt five Judges would be sufficient ; indeed, I should have been prepared to reduce the number to three. That would ‘ have brought about a saving of £6,000 per annum in the first instance, and a further saving of the salaries of two associates. We know that every Judge must travel around, not only with his associate, but with his tipstaff, and that there will be attendants with all the officials. Therefore, it will be incumbent upon us to limit the number to the lowest that will be consistent with the requirements of justice. Unless the Government can clearly show that the larger number of Judges is necessary in the case of appellate jurisdiction, we can take the opportunity of expressing our disapproval when the clause is before us. Then the honorable and learned member for Indi did not think we could appoint Judges from the Supreme Courts of the States to be Justices of the High Court - that they would not be qualified to sit. I do not know under what section of the Constitution he attempted to fortify himself in making that assertion, because he did not mention it. But the idea of the framers of this Bill was very different from that. We find in clauses 4 and 7 of the Bill that the qualifications of the Judges of the High Court are to be as follows : - Either a Judge of the Supreme Court of a State or a practising barrister or solicitor of a State Supreme Court of not less than five years’ standing. The Government recognise in clause 4 that a Judge of the High Court could be appointed from the Supreme Court of a State. But when we come to clause 7 we find them stating that a Justice of the High Court shall not be capable of accepting or holding any other office or place of profit within the Commonwealth except such as may be granted to him under the King’s sign-manual. If that clause is to be carried out in its entirety, what does it mean 1 In clause 4 the Government recognise that any Judge of a Supreme Court may be appointed a Justice of tho High Court, and therefore the contention of the honorable and learned member for Indi was not recognised by the AttorneyGeneral in the framing of this Bill. If a Justice of the High Court is not capable of holding any other place of profit within the Commonwealth, it would prevent any appointment whatever being made to the High Court of any Judge of a Supreme Court, even temporarily. I do not think that the words following - “except such as is granted to him under the King’s signmanual,” would get over the difficulty, because the Judges of the various Supreme Courts are not appointed in that way. Under section 72 of the Constitution it is provided that J ustices of the High Court, and of other courts established by the Federal Parliament -
Shall not be removed, except by the GovernorGeneral in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.
When we remember that the Judges are to be appointed in that way, and that they are so irremovable, I trust that we have heard the last on behalf of the Ministry of the contention that we are to place upon the High Court Bench a body of men who will amplify or extend the law. Because, if the assertions of the Attorney-General meant anything at all, they meant that in construing the law which they were called upon to interpret the Judges would absolutely make law. There can have been no other meaning, when it was asserted that the Judges appointed would be more in accord with the Federal spirit than State Judges - that is to say that the Government would appoint only such men in the first place as would amplify the law. I consider that what we want is not a body of Judges who are willing to do that, because it is not their place. We are here to legislate, it is the function of the Executive to carry out the legislation, and it is for the Judiciary to construe the law only. The Attorney-General says that these Judges are to be a body of men whom we are to reverence and esteem. A nice thing indeed if we are to be called upon to appoint such a high body of men to make the law say what it really does not mean ! A pretty thing if we are to have a tribunal of that sort! The Government have a fine idea of the duty of Judges, if they consider that it is their duty to amplify the law and to stretch it. No other meaning can be assigned to the statement of the Attorney-General except that the Judges are to expand the law to suit the Federal authorities. What about the State authorities ? Where do they come in?
Have they no rights? In many respects their rights are entirely sovereign. Yet we are to have a court constituted which, in the opinion of the Attorney-General in charge of this Bill - and consequently in the opinion of the Cabinet itself, which will have the making of these appointments - will act in such a Federal spirit that they will be able, perhaps, to take away from the States rights which they at present enjoy. Can any man look at that position with calmness ? Is that the way in which we are called upon to legislate? Is that the reason why the Federal Parliament was called into being ? Nothing of the sort. I say distinctly that the mere statement on behalf of the Ministry that there would be found in this Commonwealth a body of men who would be likely to act in such a fashion, is in itself sufficient to show that there will not be that wise and just discretion exercised in choosing the occupants of these high positions, should this Bill pass, that we should like to see.
– I ask the Attorney-General to allow the debate tobe adjourned until to-morrow, with a view to allowing the honorable and learned member for Werriwa tocontinue his speech.We have reached a late hour, and honorable members desire to catch their trains.
– This being only the second night of the debate on an important Bill, I should have felt it a matter of course to grant the request preferred by the right honorable member for Tasmania, Sir Edward Braddon. But the honorable and learned member for Werriwa is perfectly well aware that, under the impression that there was tobe no further speaking before the vote was taken, an impression arrived at in consultation with that honorable member, a number of honorable members have been detained or brought back to the House. If there had been shown any indication of a desire to prolong the debate to-morrow, so reasonable a request could not have been refused for one instant. It is unfortunate that a number of honorable members have been greatly inconvenienced by this request, at the last moment, for an adjournment ; but now that the request has been made by the acting leader of the Opposition, as well as by the honorable and learned member for Werriwa, I have no objection.
– I wish to point out that interpositions to debate, such as those just made by the right honorable member for Tasmania, Sir Edward Braddon, and the Attorney-General, are not provided for in any way by the standing orders. I perceive it is the desire of the House that if possible the sitting should not be prolonged, and so I did not prohibit the remarks ; but it must be understood that no interpositions of the kind can be permitted under the standing orders except by leave.
Debate (on motion by Mr. Conroy) adjourned.
page 746
Order of Business. - Post-office Employes.
– I move -
That the House do now adjourn.
In submitting this motion I desire to point out that the two Bills relating to the sugar rebate will be taken first to-morrow; in order that the Treasurer may explain them, and that the House will then proceed with the Judiciary Bill.
Mr. BATCHELOR (South Australia).Honorable members will remember that during the passage of the Public Service Bill promises were made by the Minister in charge of the measure - sometimes the Attorney-General, and at other times the Minister for Home Affairs - that all persons employed in the State Departments taken over should, though technically on the pro tem. status, be classified as permanent employes. These men were practically permanently employed, and the promise given by Ministers had a great deal to do with inducing honorable members not to place any provision in the Bill dealing expressly with their case. I informed the Minister for Home Affairs that I intended to draw attention to this matter, and, in his absence, I desire to point out to the Prime Minister that in the linerepairing branch of the Postand Telegraph Department there is a very considerable body of men with services ranging from 20 to 30 years, but none of whom have been brought under the Act. That, of course, is a disadvantage to these men, and is apparently not carrying out the promises made to the House. There may be some circumstances which have caused a suspension of their right to be brought under the Act ; but so far the only reason I have heard is that it is ridiculous to have a court of appeal which would be required to traverse the’ continent of Australia in order to inquire whether a cook in a line repairer’s camp should be dismissed. That may be an argument against the provision made in the Act for a court of appeal, but it is no reason why a section of the temporary employes in the Post-office should be excluded from the benefits conferred by the Act. If the Government think that the law, as it stands, is ridiculous, they should take steps to amend it. I hope the Prime Minister will take a note of what I have said, so that the Minister for Home Affairs may adopt the measure necessary to bring all the men who are now under suspension within the operation of the Act at the expiration of the six months term, on 30th inst.
– I might remind the Prime Minister that a deputation waited upon him just before the Act was gazetted.
– There had been a notification of the exemption of these men from the operation of the Act.
– Yes, and the object of the deputation was to protest against the exemption. It was then represented that some time must elapse before the Public Service Commissioner could bring the men who were in temporary employment under the provisions of the Act, and the deputation did not then press their protest. Now, however, that the term of exemption has almost expired, I hope that no further extension will be granted. At present the men are not only prevented from sharing in the benefits of the court of appeal, but they are also deprived of the advantages of the provision regarding the minimum wage. I understand that many of the temporary hands employed in the Post and Telegraph Department have been served with notices that their services will be dispensed with at the end of June, and I hope that the whole question will be inquired into by the Minister for Home Affairs, and that the men will not any longer be treated as temporary hands.
– I desire, on behalf of those public servants in New South Wales who are concerned in this matter, to support the request made by the honorable member for South Australia, Mr. Batchelor. At the time exemption was granted, the Public Service Commissioner considered that he would not have the same difficulty in dealing with temporary employes in New South Wales as with those in some other States. Six months, I think, is ample time in which to redeem the promise which was given that these men should be placedupon the permanent staff. I press the matter upon the attention of the Prime Minister, because I know that some of the officers who may report upon it are averse to conferring upon the men thus employed the standing which they themselves enjoy.
Sir EDMUND BARTON (HunterMinister for External Affairs). - I have some recollection of the deputation which waited upon me several months ago in regard to this matter, although I shall need to refresh my memory upon it. I will put the points which have been advanced by honorable members before the Minister for Home Affairs, in whose Department the matter rests. To what extent the Commissioner has a free hand in questions of this kind I am not at the present moment able to recall, but no doubt that question will be satisfactorily settled. So far as any injustice appears to have been worked, I have sufficient faith in the Commissioner to know that he will do his best to remedy it.
Question resolved in the affirmative.
House adjourned at 11.2 p.m.
Cite as: Australia, House of Representatives, Debates, 10 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030610_reps_1_13/>.