1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Sir EDMUND BARTON laid on the table
Interim reports of Engineers-in-Chief upon the proposed transcontinental railway from Kalgoorlie toPort Augusta.
– As all the countries and nations of the world, with the exception of Australia, are being represented at the World’s Exposition at. St. Louis, will the Prime Minister reconsider his decision regarding the representation of the Commonwealth there, seeing that the United States authorities have offered adequate space free of all charge?
– The ConsulGeneral for the United States has lately written to this Government, inviting us to reconsider the decision that the Commonwealth cannot as such be represented at the St. Louis Exposition, and in his communication he offers, on behalf of his Government, to provide abundant space in one of the buildings for Commonwealth exhibits.
Upon receipt of that letter I felt it my duty to communicate with the’ Premiers of the States, in order to ascertain their feelings upon the question of co-operating in a general representation. To my mind the representation of the Commonwealth is not likely to be successful unless such cooperation is secured, and the obtaining of it depends upon the answers which will be received from the Premiers of the States.
– I wish to know from the Treasurer if it is a fact that revenue from the excise duties on sugar, which should have been paid to some of the States, has been retained by the Government in anticipation of legislation authorizing its distribution on a per capita basis?
– Under the provisions of the Excise Tariff Act and the regulations framed in accordance with them, it was necessary to pay the rebates immediately ; but as we could not at once provide for the distribution of the excise, the whole amount was, at my direction, placed to the credit of a trust fund, and rebates were paid out of that fund up to about the end of Decemberlast. In the meantime I ascertained from the returns which were coming in that it would not be right to continue to follow the. plan originally suggested, and I then withheld the distribution until I could obtain a decision from Parliament upon a proposed alteration of it. Immediately Parliament has dealt with the matter the whole amount will be distributed. But as the State of Queensland was anxious to have money paid to her, I advanced £25,000 to that State, and had any other State desired to be paid any portion of the amount I should have made a similar advance, keeping well within the sum which I thought she was entitled to.
– The right honorable gentleman does not propose to make the Bill retrospective ?
– Yes. It will take effect from the beginning of this year. That is the reason for the retention of the money.
– Seeing how destructive the practice is to friendly Federal feeling, I wish to know from the Attorney-General if he intends to request the Government of Victoria to restrain its Commissioner of Taxes from harassing honorable members of this Parliament who represent other States with illegal demands for income tax assessed upon their salaries, and with threats of punishment for the non-payment of the tax ?
– I do not know that that is a matter upon which we can officially approach the State of Victoria, but I am still hoping to receive from the Premier the intimation, unasked, that members of this Parliament representing constituencies outside Victoria will be excluded from the operation of the local Income Tax Act.
asked the Minister representing the Postmaster-General, upon notice -
– A report has been obtained from the Deputy PostmasterGeneral, Sydney, to the following effect : -
Information prior to 1893 cannot be given. A statement nf the particulars required since that date is being prepared, but will take two days to complete. The questions will be replied to, as far as practicable, when the report is received.
asked the Minister representing the Postmaster-General, upon notice -
-The necessary inquiries are being made, and a reply will be given in due course.
asked the Minister re presenting the Postmaster-General, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Treasurer, upon notice -
– The answers to the honorable member’s questions are as follow : - 1: There is no contract price, as the line is being constructed by the Department. The amount provided on the Estimates is £14,000.
– In reference to the question asked List night by the honorable member for South Australia, Mr. Batchelor, as to the position under the Public Service Act of men in the line-repairing branch of the Postal Department, I have been furnished from the Department of the Minister for Home Affairs with the following information -
The Public Service Commissioner has called for a return from all. the States, showing every line repairer employed, the nature of his work, his length of service, and other particulars, with the object of considering their claims for being brought into the permanent* service before the 30th instant, when the present exemptions will expire.
Until these returns are all received and thoroughly investigated, it is not possible to say what number of line repairers would be drafted into the permanent service, but the Commissioner is of opinion that a very large number of them will have the exemptions removed at the termination of the date named.
Every effort has been made to get the whole matter completed before the due date, viz., 30th June.
– I move -
That the Bill be now read a second time.
Honorable members will recollect that, in pursuance of the policy which was adopted by Parliament almost unanimously, in order to create a white Australia, certain legislation was passed providing for the payment of rebates of excise upon sugar grown by white labour, to compensate the growers for the extra expense they might be put to in employing white instead of coloured labour. The schedule to the Excise Tariff Act. provides that the duty upon manufactured sugar- shall be 3s. per cwt. - until the 1st January, 1907, less, from 1st July, 1902, a rebate to the grower of sugar-cane and beet. The rebate in the case of sugar-cane to be 4s. per ton on all sugar-cane delivered for manufacture, and in the production of which sugarcane white labour only has been employed after 28th February, 1902.” The rebate is calculated on cane giving 10 per cent, of sugar, and is to be increased or reduced proportionately, according to any variation from this standard. A similar rebate to be allowed in respect of sugarbeet - the rebate to be allowed at the rate of £2 per ton On the sugar-giving contents of the beet. All rebates to be allowed at the time .of delivery of the cane or beet on the ascertainment in manner prescribed of the sugar-giving contents, and so that it may be prescribed that the average sugar-giving contents of the cane or beet in any particular district shall be taken to be the sugar-giving contents of each lot of cane or beet in such district.
That provision has been carried into effect, and has worked well, except so far as the charging of the amount of rebate is concerned. The Bill which is now before honorable members does not in any way alter the practice. We shall still cany out the principles already laid down, and for which we have power to make necessary regulations from time to time. What we ask honorable members to consider is whether it would be better to divide the amount to be paid for rebate among the people of all the States, or to charge it according to the quantity of sugar grown by white labour consumed in each State. When the provision which I have read was agreed to, I was under the impression that the arrangement for which it provides would be an equitable one, and that the amount of sugar upon which excise was paid used in each State would probably be somewhat in proportion to the population of that State. But experience has shown, as I will demonstrate to honorable members by giving them the actual figures, that that does not occur, and that if we are to continue the practice of charging to each State the £’2 per ton allowed as rebate on the amount of sugar grown by white labour consumed in that State, some of the States will pay practically nothing, while Queensland, and, in particular, New South Wales, will have to bear almost the whole burden. This occurred in consequence of large imports of foreign sugar into Victoria and South Australia, the amount of excise sugar cousumed iia those States having been very small indeed. In these two States very considerable revenue has been derived from the import duty of £6 per ton, whilst the States which have consumed the white-grown Australian sugar have practically borne the whole burden of the charge.
– Have they not been credited as the States in which the sugar has been consumed ?
– I shall deal with that point- presently. The amount of the rebate has to be paid immediately the cane is delivered at the mill, and the £2 per ton rebate, as it is called, is then paid. I am perfectly sure that had honorable members known at the time the Act was passed of the effects that would follow from the mode proposed for the payment of the rebate, they would never have agreed to it, because it is quite certain that -as a’ white Australia was designed for the benefit of the Commonwealth, whatever sacrifices have to be made must be shared by the whole of the people. I confess that the returns which have come in with regard to the consumption of sugar hai’e astonished me, and have, after full consideration, led me to the conclusion that it -would be very unfair and unjust to take any other course than to distribute, according to our population, the burden of the sugar rebates for the past year, as well as for the years over which the rebate provisions extend. There has been some misconception in Queensland and New South Wales as to the effect of carrying out our original proposal. It was thought that the whole of the rebate would be charged to the State in which it was paid. That is that New South Wales or Queensland, which produced white sugar, and sent it away to Western Australia or Tasmania, would be charged the whole of the rebate. That was never intended, because it would be monstrously unfair. The mode we intended to adopt was to use the Inter-State adjustments and credit to each particular State the amount of duty COl.ected on the sugar consumed in that State. That would resolve itself into crediting £1 per ton upon white-grown sugar, and £3 per ton upon black-grown sugar, and, therefore, Queensland and New South Wales would not have been called to pay upon anything more than for the quantity of white-grown sugar actually consumed in those States. That was the utmost extent to which we intended to go, but, as experience has shown, that system would operate very unfairly indeed. I have circulated for the information of honorable members certain tables, which I will explain, in order to facilitate an understanding of what is indeed a very difficult and complicated subject. It is really (extraordinary how some . of the sugar gets mixed up. Some is exported to other States direct, and some of the Queensland sugar is imported into New South Wales and becomes mixed with the black-grown and white-grown sugar produced in that State, and is ultimately re-exported’ to some of the other States. The figures I have adopted in the returns referred to are not absolutely correct, because I cannot arrive at the exact amounts until after the 30th June. I am satisfied, however, that they are approximately correct - sufficiently so to enable honorable members to judge of the effect of the two alternative courses we have to consider, and between which we have to choose. New South Wales produced 21,000 tons of sugar, of which 18,000 tonswas grown by means of white labour, and 3,000 tons by the employment of black labour ; or in the proportion of -85 white and 15 black. I am following the figures given in the return, although later information leads me to believe that there will probably be a little over ‘19,000 tons of white-grown sugar, and a little less than 2,000 tons of black-grown sugar. It will be seen from these figures that in New South Wales practically the whole of the sugar produced is white grown, whereas quite the reverse is the casein Queensland at present - although we all hope that the quantity of white-grown sugar in that State will largely increase. So far as the past year was concerned the white-grown sugar in Queensland amounted to 12,000 tons, and the black-grown sugar to 66,000 tons, or a total of 78,000 tons; in the proportion of “15 white and -85 black.
– Are there any later figures in regard to Queensland 1
– No ; the figures given in the return are practically correct. Taking the two States together, 12,000 tons of white-grown sugar in Queensland, and 18,000 tons similarly produced in New South Wales give us a total of 30,000 tons of white-grown sugar. Queensland produces 66,000 tons of black-grown sugar, and New South Wales 3,000 tons, making a total of 69,000 tons of black-grown product, or a gross total of 99,000 tons as the year’s production. I now desire to give honorable members a few figures which are not in the printed document. I wish to show them what has become of the Queensland production. Queensland yields 78,000 tons altogether. Of that quantity 6,000 tons is refined in Queensland and goes into New South Wales’ for consumption there direct ; 41,000 tons of unrefined sugar is sent to New South Wales, and is there mixed with the white and black-grown sugar of that State during the process of refining; 8,000 tons of unrefined sugar is sent to Victoria. Of course, honorable members will understand that when the refining takes place no distinction is or can be made between the white and the black-grown sugar, as both classes of product are refined together, and, therefore, if we charge the States upon a consumption basis we shall have to ascertain as nearly as we can what proportion of white-grown and black-grown sugar is used. We know the proportions of white to black-grown sugar in Queensland, and also the proportions of the two classes of product in New South Wales. We know, further, that certain quantities go direct from Queensland to New South Wales, and that a large quantity is sent there unrefined, and is mixed with New South Wales sugar. The result of this is shown in the next table. The quantity of Australian sugar dealt with in New South Wales - not necessarily consumed - is made up as follows : - The New South Wales production is 18,000 tons of whitegrown and 3,000 tons of black, or a total of “21,000 tons. The quantity sent direct to New South Wales from Queensland is 950 tons of white .and 5,050 tons of black-grown sugar, making a total of 6,000 tons. The proportion in the latter case is arrived at, in view of the knowledge that the white-grown sugar of Queensland bears the proportion of -15 per cent, to “85 per cent, grown by black labour. That is how we arrive at the proportion of the white-grown sugar that goes direct to New South Wales. Then we have 6,250 tons of white-grown sugar, and 34,750 tons of black-grown sugar, or a total of 41,000 tons sent from Queensland unrefined to New South Wales. The homeproduced sugar in New South Wales and the Queensland unrefined sugar, mixed together, give us the proportion of “39 of white-grown sugar, as against -61 black-grown sugar, or practically two-fifths as against three-fifths, and we may, base our calculations with regard to it upon these figures. Honorable members will see that these figures give about the fair proportion of the white-grown as against the black-grown sugar in Queensland and New South Wales taken together. In Queensland the white-grown sugar represents “15 per cent., and in New South Wales 85 per cent., so that when the New South Wales and Queensland sugars are mixed we arrive at the proportion which we have to deal vith so far as sugar refined in New
South Wales is concerned - whether it is used there or sent to other States. The sugar which goes direct from Queensland toNew South Wales bears the same proportion in regard to white and black-grown sugar as that which is sent to the latterState in an unrefined condition. By adding together, the figures which I have mentioned we arrive at a total of 6S,000 tons. Of that quantity 8,000 tons appearto be sent to other States, the proportions being - -Western Australia, 1,200 tons whitegrown and 1,800 tons black-grown, or a total of 3,000 tons ; Tasmania, 1,800 tonswhitegrown and 2,700 tons black-grown, or a total of 4,500 ; and South Australia, 500 tons. As the figures for the last-named State are so small, I have not attempted todivide the quantity into its proper proportions of white and black-grown sugar. Therefore, that leaves New South Waleswith 60,000 tons of sugar for her own consumption, of which 22,200 tons is whitegrown and 37, SOO tons is black-grown. I have endeavoured to show the proportions in which the black and white-grown sugar would be consumed by the various States. I do not say this would all be consumed during the present financial year, because there would be a certain quantity - about 7,500 tons - which would have to be carried forward to next year ; but as the rebate has to be paid as soon as the sugarcane is delivered at the mill, it is only failthat, in calculating the proportion of rebate, we should take the whole quantity produced for the season, whether it be consumed this year or in the earlier part of next year. I have shown honorablemembers the proportions of the 60,000 tons consumed in New South Wales. Victoria imports practically the whole of her Australian sugar from Queensland n the proportion of 1,250 tons of white-grown and 6,750 tons of black-grown. Queensland uses 23.000 tons herself, and sends toSouth Australia 500 tons. Western Australia receives 3,000 tons from New South Wales, and Tasmania receives 4,500 tons also from New South Wales. Therefore, we find that out of the 99,000 tons of sugar produced in Australia, about 30,000 tons may be taken to be white-grown, and 69,000 as black-grown, distributed in the proportions shown in the figures I have laid before honorable members. The approximate amount of the rebate paid is £60,000. This sum may be increased by £500 when we have the .complete figures. £36,000 is paid to the growers of New South Wales in respect to 18,000 tons, and £24,000 to the growers of Queensland in respect to 12,000 tons. The money has actually been paid in those States, but would be distributed if we were to adopt the consumption basis in a certain manner which I have pointed out, and in a somewhat different manner if we were to choose the population basis. I now propose to show the effect of the two distributions, so that we can judge from a financial stand-point, leaving out the Australian point of view, what will be the result in each particular State.
– Has the Treasurer fairly set down the quantity which each State actually consumes 1
– I shall supply the information later on. The figures I have given show the rateable consumption of the total quantity produced this year, and I propose later on to show the actual amount consumed in each State. If honorable members will look at the next table they will see figures set out showing the amount that will be charged to each State on a consumption basis, and also upon a population basis. I do not wish to weary honorable members by giving details. If we adopt the basis which we regard as fair est to the States, namely, that of a population basis, New South Wales would get £22,758 more than on a consumption basis, and Tasmania would gain £894. These two amounts, totalling £23,652, would be made up by contributions of £16,286 from Victoria, £S62 from Queensland, £5,658 from South Australia, and £846 from Western Australia. But whether the burden be distributed upon the basis of consumption or of population, I think that at the end of the financial year, speaking roundly, the amount, so far as Tasmania, Queensland, and Western Australia are concerned, would be just about the same, and that South Australia and Victoria would each apparently lose considerable sums, which would go to New South Wales. I say “ apparently “ lose, because we cannot declare that these sums really represent a ‘loss. It has been the good fortune of these two States to receive a very large amount of revenue from imported sugar - an amount far more than I anticipated, and much in excess of that which will probably be derived from the same source in ordinary years. A considerable sum has been paid by way of excise in Queensland and New South Wales during the past year. Queensland sends her sugar supplies principally’ to New South Wales and Victoria, whilst New South Wales exports pretty largely to Tasmania and Western Australia. I have already informed honorable members of the proportion in which the mixed sugars would work out. Possibly some of the representatives of South Australia or Victoria, or even the Governments’ of those States, may think it is hard that they should be called upon to repay this money. It may be so for this particular year, but it is only an act of simple justice to the other States that the burden imposed upon the Commonwealth by the adoption of the policy of a white Australia shall be equitably distributed amongst the different States, lt is only fail- and logical that the expenditure incurred in this connexion should be based upon the population of the States rather than upon their consumption of sugar, which may vary from year to year. These two States have received very large revenues from imported sugar - very much more than could possibly have been estimated at the beginning of the year. At the same time we must not forget that the distribution of foreign-grown sugar is entirely in the hands of the importers, and practically under the control of one company. It is just possible that this year it may have suited that company to send its imported sugar to Victoria and South Australia, whilst next year its purpose may be served by sending it to New South Wales, Western Australia, or Tasmania. If we are to deal with the question upon a consumption basis, honorable members will see that the more foreign sugar is imported into any particular State, the less will be the quantity of excise sugar used, and the less the rebate paid.
– Practically all the sugar previously consumed in South Australia was imported.
– South Australia appears to import direct. It may suit the company to which I have referred to send a certain portion of its imported sugar to South Australia. But that is looking at this question simply from a provincial stand-point, and I ask honorable members not to regard it in that light. We ought rather to remember that, when we declared in favour of a white Australia, we distinctly affirmed that the adoption of that policy must not be at the expense of any particular State or States. South Australia has no cause to grumble so far as the receipts are concerned, because the duty formerly imposed upon sugar in that State was only £3 per ton. In Queensland, it will be seen that it makes very little difference this year in which way the amount of the rebate is distributed, but as the production of sugar by white labour increases there, so the total rebate, which has to be paid to the cane cultivators, will increase. Another difficulty in the way of distributing this payment upon a consumption basis is that Victoria, by importing direct from Queensland, gets only15 of white-grown sugar, and consequentlywill pay on that quantity only, whereas Tasmania and Western Australia, which obtain40, will pay on that quantity. As between these States, that can hardly be said to be a fair adjustment. But if we look forward to the year 1906-7, we shall be forced to the conclusion that those who have sugar will hold it back till after 1st January, 1907, in order to avoid paying excise, whilst in the meantime the rebate will probably have amounted to much more than it represents at present. It would be manifestly unfair to expect the two States which grow the sugar to pay the rebate and to obtain no excise whatever. But that is what would happen if we did not adopt a different method from that which now obtains.
– They are getting the benefit.
– It is true that the growers get the benefit of the money expended there, if honorable members intend to regard this question purely from a State point of view. But I think that the House will decline to adopt that attitude, seeing that for the benefit of the whole of the Commonwealth we have declared in favour of a white Australia.
– The cane growers have to substitute white labour for black labour before they obtain any rebate.
– In my opening remarks I pointed out that this rebate is given to the growers to enable them to bear the burden imposed on them by the employment of white instead of black labour.
– In New South Wales sugar was previously produced by white labour.
– That is so, and New South Wales will derive a benefit from that. But we have no means of discriminating between New South Wales and Queensland, or any other State. In the course of a few years I trust that Victoria will be producing beet sugar, and I am perfectly certain that the people of this State would consider themselves very harshly treated if they were then called upon to pay the whole of the rebate of £2 per ton upon their production, because the beet was grown by white instead of coloured labour. What applies to New South Wales at the present time, may possibly apply to the other States later on.
– South Australia is sacrificing about £100,000 a year for the purpose of carrying out the policy, and for that she receives no return.
– South Australia is not giving up much at the present time. Eventually, of course, all the States will have to make a sacrifice.
– It represents about£7 00,000 a year upon the basis of the figures produced.
– That is on the assumption that Australia produces all the sugar required for its own use. If honorable members will look at the last table, they will see one startling effect which the present year has disclosed. In New South Wales11,000 tons of sugar were imported, from which a revenue of £66,000 was derived ; in Victoria 47,000 tons were imported upon which £2 82,000 was collected . In Queensland the imports of sugar totalled 1,000 tons, the revenue from which was £6,000; in South Australia 16,000 tons were imported, the receipts from this source aggregating £96,000. Western Australia imported 7,000 tons, upon which she collected £42,000 ; whilst Tasmania imported 3,500 tons, representing a revenue of £21,000. Honorable members will, therefore, see that Victoria and South Australia - the two States which, under this proposal, will have to contribute a certain sum to assist in carrying out the white Australia policy - have received very large sums of revenue from imported sugar. Turning to the next column, honorable members will find that New South Wales consumed 56,000 tons of sugar, upon which an excise duty at the full rate of £3 per ton was charged, thereby collecting £168,000, whereas Victoria consumed only 8,000 tons, has derived a revenue of £24,000. South Australia practically is not affected, and the two other States of Western Australia and Tasmania received fair amounts both from excise and import duties. These figures show the varying proportions in which the various States consume Australian sugar and imported sugar. It is clear, therefore, that it would be unreasonable to make a distribution in the manner which was originally proposed. The time has now arrived when, in the light of the experience of the past twelve months, we ought to consider whether we did not make a mistake - as I believe we did - and whether we should not remedy that mistake by providing that the distribution from a national point of view shall be upon a population basis. Judged by the way in which the revenue is now coming in, the hope which has been expressed that eventually we may be able to abolish the excise duty upon sugar may yet be realized. The excise was imposed for the purpose of assisting the white Australia, movement, and because some of the States could not afford to forego the duty. If we could possibly have avoided it, we should not have imposed an excise duty upon sugar any more than upon Australian wine. Had it not been for the financial difficulties of the States, Parliament would have been very glad to enact that no excise should be charged in regard to Australian sugar.
– We are surrendering about £800,000 a year in revenue.
– My honorable and learned friend desires to open up a discussion in regard to the wisdom of the adoption of the policy of a white Australia - a question which has been . already decided. That matter has been settled by this House, according to the mandate received from the people, and no good purpose will be served by re-opening it. If any loss is occasioned to the Commonwealth by the adoption of that policy, the States have to make it good.
– I voted for the proposal, but we are paying too much for it.
-Order; the discussion of that question is not in order.
– The revenue derived from Australian sugar this year will be about £274,000, whilst that from imported sugar represents £513,000, making a total of £787,000, which is a very large sum to obtain from that article.
– Was there no beet sugar imported?
– I do not think so. If any beet sugar was imported, it represents only a small quantity, which would not appreciably affect the question of distribution. Whilst temporarily undertaking the duties of Minister for Trades and Customs, my attention was called to the question of whether beet sugar was not being imported in lieu of cane sugar, but subsequent investigation proved that there was no foundation for the surmise. The Commonwealth consumes about 177,000 tons of sugar during the year. The consumption of the locally-grown article and that of imported sugar is almost equal, the former last year representing 95, 100 tons, and the latter 82,000 tons. I hope that the day is not far distant when the Commonwealth will consume only Australian grown sugar. We shall probably lose a certain amount of revenue in consequence thereof, but we are all hopeful that the progression which will take place as we believe during the next few years will give us additional revenue from other articles, and so enable us to give up the excise on sugar at the end of the period named. I have endeavoured in my speech to place before honorable members as clearly as I can the figures relating to this matter, and I have also circulated them so that they may have an opportunity before the debate on the second reading of the Bill is resumed to dissect them and give the House the value of their criticisms. I have put forward all the information at my command, so that honorable members may have as full a knowledge as I possess in relation to these figures.
– Can the right honorable gentleman say what will happen if the sugar held over is the Australian and not the imported article.
– I cannot do that exactly. When I spoke of the 7,500 tons, I was dealing only with Australian sugar. That was one of the most difficult elements in the calculation that I had to make, because I found at the beginning of the year that a certain quantity of mixed sugar, both the imported and the Australian article, was held in stock. No doubt, a certain quantity - perhaps a little more or a little less than last year - will remain in stock at the end of the present year. I have ascertained that the production of Australian sugar for the year amounted to 99,000 tons.
– Why has the production been so low this year ; it is a good deal below the average?
– Yes. I believe that last year, or the year before, some 1 48,000 tons of sugar were produced ; but, so far as it is possible at this period to obtain information, this year’s crop will not vary very much from last season’s returns. Of course, there may be an improvement, and with a really good year we might produce125,000 or 150,000 tons. In that event, as Ihave already pointed out, the burden upon the producing States would -be still more oppressive than before, if we determined they should continue to bear it, as at present. That is one condition which has led me strongly to the conclusion that, if we are to do justice all round and make Australia pay for Australia’s wish, we shall have to distribute the burden upon a population, rather than a consumption, basis.
Mr.Fisher. -That argument rests on the assumption that white labour will be employed to cultivate sugar in Queensland and New South Wales.
– Yes. We assume that the extent of white labour employed in the cultivation of sugar will increase ; and that it will do so is shown by the number of applications we have received for permission to participate in the ebate granted in respect of white grown ugar. The extent of acreage under sugar cultivation this year is, I believe, about 25 or 30 per cent. greater than it was last year. We trust that as time goes on, and as the white workers gain in experience, their numbers will largely increase, and that at the end of the period named, Queensland and New South Wales will be able to produce sufficient sugar to meet the requirements of the Commonwealth, even if they are unable to produce sufficient to allow an export trade to be opened up.
– By white labour?
– Certainly. It is our desire that it shall be produced by white labour that induces us to ask the people of Victoria and South Australia to be patriotic, at all events for the present year, and give up revenue to which they might otherwise be entitled. But while this demand is made upon them we have to remember that they also may have to make an appeal to the patriotism of the other States a year or two hence. The variations of trade may be such that imported sugar will be consumed largely in those States which nowusethelocal article, whilethesugar on which excise is paid may be used more largely in States which now consume the imported article.
– The Queensland sugargrowers will seek the nearest market until the production becomes so great as to compel them to go into distant ones.
– It might suit New South Wales to send the Australiangrown sugar in . much larger quantities than at present to the other States, and to consume a good deal more of the imported sugar.If we insist upon the continuance of the present practice, and if it is found that the people of that State have to pay a much higher rate than we are called upon to pay, that event may occur. There is a large firm operating there, and it may consider such a course desirable. We cannot say what changes may arise, and it is quite possible that the States which are now reaping the benefit of the revenue obtained from imported sugar will not obtain so much from it a few years hence. It is not my wish, however, that honorable members should consider this subject solely from that point of view. I have placed the matter before them so that they may clearly see how the proposal will affect the individual States. We must notdeal with this questionfrom any provincial point of view; but we should remember that as the policy of a white Australia was adopted for the benefit of the whole Continent, the whole Continent should contribute rateably towards the cost of carrying out that policy.
Debate (on motion by Mr. Thomson) adjourned.
– I move-
That the Bill be now read a second time.
I need not weary honorable members by dealing at length with the provisions of this measure. It follows as a necessary corollary of the Bill the principles of which I have just explained. It simply takes away the provisions for rebate in the Excise Act, so that if we pass it we shall have no power to grant it. If the Sugar Bonus Bill be passed into law, however, we shall be able to grant bonuses.
Debate (on motion by Mr. Conroy) adjourned.
Debate resumed from 10th June (vide page 746), on motion by Mr. Deakin -
That the Bill be now read a second time.
– The first question which the House has to consider in dealing with this matter is whether any measure of this or any other. kind is necessary for the establishment of a High Court. To that I think but one answer can be returned. Throughout all Australia a proposal for the establishment of a court of some kind or other is expected, and the question before us is whether the Bill under consideration is the one that should have been brought forward. I assert that it is not the Bill that Australia requires. What was demanded by the people of Australia was a very short measure, consisting at most of four or five clauses, giving power for all actions or claims against the Commonwealth to be decided in the Courts which at present exist throughout Australia, and, at the same time, giving the power to grant mandamuses and prohibitions to the various Courts exercising the other jurisdiction. It is clear that, under our Constitution, we have power to confer Federal jurisdiction upon the various States Courts, and in that respect it differs greatly from that of the United States of America. The honorable and learned member for Indi referred last night to the analogy of the American Constitution, and said that the word “ shall,” which appeared in that Constitution, was considered mandatory. In support of that assertion he read the opinion given by Mr. Justice Story, but he failed to mention that the very same Judge pointed out that, so far as the Congress of America was concerned, the provision in the Constitution for a Federal Supreme Court was mandatory upon it, inasmuch as ithad no power whatever to vest any of the States Courts with original jurisdiction. The difference between the United States Constitution and our own in that respect is so marked that honorable members with a legal turn of mind will readily understand it. Under our Constitution, we are’ able to confer on any courts which we choose to select, both original and appellate jurisdiction. So great is the difference between our Constitution and that of the UnitedStates, that what was obligatory in the case of the United States is not obligator)’ upon us. Even if it had been obligatory upon us to create a High Court, we should clearly have, had the power to create a court at very much less expense than the one proposed in this Bill will involve. It would have been open to’ us to select the various Judges of the States Courts, and, merely as the result of being invested with Federal jurisdiction, they would have had to resolve themselves into a body to determine questions of law coming before them. The Attorney-General admitted that we could invest the States Courts with Federal jurisdiction, but he said a serious objection to the adoption of that course was that we might obtain decisions from a State Court of weak Judges. But can it be contended that all the Judges of the Bench which he proposes to create will be of the same mental strength j that their minds will be cast in exactly the same mould, and that consequently every case that comes before them will be decided in the same way t If that is the Attorney-General’s view he makes a very erroneous estimate of human nature, and one that he cannot expect to realize. Even if we might obtain under such a system a decision from a weak State ‘ Court, the same result might be expected from one or other of the- Judges who are likely to be appointed under this Bill. We have the right of appeal to the Privy Council from any of the States Courts, and that is a fact which should be borne in mind. I was also surprised to hear the honorable and learned member for Indi speak of the Privy Council, not as it exists to-day, but as it existed over twenty years ago. He totally ignored the fact that nearly twenty years ago four professional Justices were appointed to that tribunal, and that the great bulk of the cases which come before it are now decided by them. Therefore, instead of having a body of men not conversant with all the questions that come before them for determination, we have at least four members of the Privy Council who sit for the express purpose of hearing and determining the various appeals which arise. Therefore, the value of the decisions given by them cannot be over-estimated. ‘ From my point of view, however, it is not necessary for us to dwell upon that fact, because only 223 cases have been carried to the Privy Council during the last twenty years, an average of 11 cases ti year. Are we, therefore, to form a court which in all probability will have to deal with only eleven cases a year 1 But we may not be able to prevent at least half the number of appeals that arise from going direct to the Privy Council. It is not even attempted to do so in the Bill. The Attorney-General has not attempted it, because he clearly recognises that he has not the power. However desirable it might be to have that power, we must deal with the matter as we can in the situation in which we are placed, and must remember that we cannot override the provisions of the Constitution by trying to prevent appeals to the Privy Council. Both the Attorney-General and the honorable and learned member for Indi spoke strongly upon the necessity for appointing Federal Judges who would be likely, not to interpret the Constitution, but to strain its provisions according to the preconceived notions of the Ministry as to what they should be. If the statements of those honorable and learned gentlemen amounted to anything, they amounted to this, that we should appoint a Federal Judiciary to alter the Constitution. Is the Attorney-General serious in that contention ? Does he.see the effect of his position ? On his showing we ought to have a Judiciary which will set itself above the law, and, instead of performing the proper functions of such a body and construing the Constitution, will take it upon itself to alter its provisions. That is a new idea to set before honorable members. I have never believed that Judges should make the laws, and since I have been a Member of Parliament I am still more strongly of that opinion. It is the duty of Parliament to legislate for the people, after a full consideration of all the circumstances involved. If an amendment of the Constitution is required, the proper course to take to obtain it is provided in the instrument itself, under which it is necessary that resolutions embodying the required alterations shall be passed by both Houses of Parliament, and then submitted to the vote of the people throughout the States for their approval. As the Judges of the Federal Bench are to be men of political experience and prejudices, I presume that none of those who have served upon the Judicial Benches of the States will be eligible for appointment. Therefore we are to trust the interpretation of all cases arising under the Constitution to an untrained Judiciary.
– The honorable and learned member does not suggest that the appointments will be political 1
– I will allow that the appointments are to be made with the greatest care and attention ; but a certain bias of mind is hoped for by the AttorneyGeneral. What we want is a Judiciary which will hold the balance between the Federal Government on the one side and the States on the other. AVe want to have the Constitution interpreted exactly according to its meaning, not to have it altered according to the whim of its framers, or to satisfy any opinion as to the possibility of improving it. If the Government had proposed to provide ( only for an Appellate Court, their position would have been much stronger than it is now. But the Bill goes further than that, inasmuch as it does not invest the various States Courts with the Federal jurisdiction necessary to bring justice in Federal matters within the reach of all. If the States Courts are not invested with Federal jurisdiction, it will be necessary to appoint Federal Courts of similarly limited jurisdiction. Otherwise we shall be practically denying justice to the great bulk of the people. This is a matter to which I particularly call the attention of the democratic members of the House. One of the things which all true law reformers fight against is the present expense of litigation. They wish to bring justice as far as possible within the reach of all. But the Bill not only does not do that, but it prevents justice being done in hundreds of cases. -We must not forget that the great bulk of the civil cases which are brought forward for legal settlement are tried in the magistrates’ courts, because those courts provide the most economical method which has yet been devised for giving justice to the people. I should like to see the criminal and civil jurisdictions .of these courts separated, and in referring to them I shall term them police courts in regard to their criminal jurisdiction, and magistrates’ courts in regard to their jurisdiction in civil proceedings. The great bulk of the people go into the magistrates’ courts because they cannot afford to take their cases elsewhere, and those who are animated by the desire to see justice properly administered would be strongly opposed to their abolition. But if Federal jurisdiction is not granted to them - limited, of course, in much the same way as their State jurisdiction is limited - in an immense number of cases it will be impossible for people to obtain justice. Then above the magistrates’ courts are the County or District Courts. Are we to allow them no jurisdiction in Federal matters? If we do not, we shall be taking an extraordinary course, because we shall either be denying justice to many, or will have to appoint a large body of Federal Judges to travel through the States to bring justice within easy reach of the people. The District Courts of the States, and the practice of the Supreme Courts in going on circuit, are part of a system for the cheapening of law to the people.
– But in proportion as we cheapen it to the litigant we increase the cost of administration.
– I do not doubt that that is so. Sometimes objection is taken to the number of Judges, and to the cost of appointing any additional Judge. But it must be remembered that if the number of Judges is not sufficient for the work to be done, litigants are put to a great deal of expense, -and the ends of justice are often defeated. Where the Judges are too few, it sometimes happens that witnesses are kept in waiting for a week, and even for two or three weeks, at immense expense to the parties to the suit. Such a state of things justifies an increase in the cost of administration. If we do not grant jurisdiction to the District Courts and to the Supreme Courts, we must appoint more than five Judges to the Federal Bench. How could five men do the judicial work for all Australia, when it takes seven men to get through the judicial work arising in the higher courts of New South Wales? If the Bill is passed as it stands, within a year the Ministry will, have to bring in another measure to provide for the appointment of another five Judges, and we shall be bound to agree to it. No. other course would be open to us, since it would be absolutely necessary, in order to give justice to the people, to make the sittings of the Court more frequent, and to enable its Judges to visit more places than five J Judges could visit. But the Government do not propose to give Federal jurisdiction in civil proceedings to the States Courts. The Government allow the States Courts to have Federal jurisdiction in criminal matters in which the liberties of the people are affected, but they refuse to grant them jurisdiction in civil cases. I understand the difficulty of their position. They say - “ If we gave the States Courts Federal jurisdiction in civil matters there would be appeals from them to the Privy Council, and we want, so far as we can, to stop the practice of appealing to the Privy Council.” But the proper way to do that is to obtain ‘an amendment of the Constitution. I have not the slightest doubt that if the people voted for such an amendment it would not be difficult to obtain the consent of the Imperial Parliament. We should not attempt to bring about that result by a side wind, but we should be straightforward and clear, and let every one know exactly what our object is. If we confer only appellate jurisdiction upon the High Court, and give various other courts original jurisdiction, as I submit we must, the Appellate Court may be passed by. Judging from the example of America, there would not be more than two appeals upon constitutional questions every year. It may be that honorable members think we ought to create the court even to deal with these questions, but if so, let it be a Bench of three Judges only. If, on the other hand, the High Court is to have original jurisdiction, and is to have exclusive power of dealing with all claims against the Commonwealth, the most serious delays will take place, and the people will be deprived of reasonable opportunities of obtaining justice- Trifling claims brought against the Postmaster- General or some other representative of the Commonwealth, involving £2 or £3 for wages, may have to be decided in the High Court. The result of this will be that as the High Court cannot sit in any given place more than probably once in twelve months, persons having perfectly good claims against the Commonwealth may have to wait for six months or more before they can obtain the hearing of their suit. Of course, it will be argued that provision will be made for that, and that the necessities of the case will be met by the Claims Against the Commonwealth Act. But I submit that if the Bill is passed as it stands the States Courts vested with Federal jurisdiction will refuse to exercise their powers. The Bill confers certain rights of removal from States Courts to the Federal High Court, and the former tribunals will naturally be indisposed to deal with cases which may be removed from their control, perhaps just when they are about to give a decision.
We are told that the expense of maintaining the High Court will not exceed from £25,000 to £30,000 a year. If it were shown to me that the establishment of the court was necessary, I should not hesitate to spend that sum, or even twice that amount, because I realize that we must not grudge the cost of administering justice. I do not, however, place any reliance upon the estimate of the Attorney-General.We are to have five Judges, whose salaries, together with those of their associates, will represent a total of about £18,000 per annum. Besides this we shall have to provide the ordinary paraphernalia of courts, which cannot be altogether dispensed with. I would ask how this estimate can be justified, when it is considered that the salaries of the Judge’s of the Supreme Court of New SouthWales total £19,000 per annum, and that £60,000 in addition is required to meet the other expenses connected with the maintenance of the court.
– The Attorney-General told us that the States officials would be used for the High Court.
– Yes, no doubt; but they can only be relied upon to a certain extent. No provision has been made for libraries or for the interest on the cost of buildings in which the courts are to sit ; and it is manifestly absurd to suppose that all the incidental expenses other than those incurred in paying the J udges and their associates will be met by the Attorney-General’s estimate. The Judges of the High Court will have to do infinitely more travelling than any J udges connected with the States Supreme Courts, and, further, they will be subject to all the disadvantages arising from having no settled courts, such as exist in the States. How can it, therefore, be assumed that the expenses will be kept down to such a low figure as is represented by the AttorneyGeneral’s estimate ? Does the honorable and learned member mean to assert that if he were the Attorney-General of New South Wales to-morrow, he could reduce the expenses of the Supreme Court by something like £45,000 per annum ? I venture to say that he would not attempt anything of the sort. Not one farthing has been allowed for the expenses connected with juries, and how is it to be supposed that the Judges are to carry on their work unless they have a good library provided for them? I do not believe that five Judges will be anything like enough to bring j ustice withinreach of the people, and if the Bill is read a second time, I shall certainly - unless the Court is made merely appellate - propose the appointment of five additional Judges in order to increase the strength of the Bench, and allow of a much more satisfactory itinerary than can be supplied by a Bench such as is proposed.
– Will the honorable and learned member favour the elevation of laymen to the Bench ?
– If the honorable member could show me that laymen would administer justice in such a way that litigants would not be involved in still greater expense than at present, I should willingly support the appointment of laymen to the Bench. Sensible laymen, however, know that owing to their being unacquainted with the law, they might not be able to administer justice with much success, and therefore they refuse to rush in where angels fear to tread.
– Common sense is not always law.
– The law ought to be common sense, and it is only when there is a departure from common sense on the part of the Legislature that the law fails to reflect that quality. The laws cannot be any better than the sense of those who frame them. In support of my remarks with reference to the unreliability of the estimate of cost furnished by the AttorneyGeneral, I need only point out that there are 590 clauses in the High Court Procedure Bill. This should give honorable members some idea of the complicated machinery which will be broughtinto existence when the Bill now before us and the measure to which I have just referred are passed. If we confer original jurisdiction upon the High Court, we must take care to appoint a sufficient number of Judges to go through the country and deal without undue delay with all matters which require to be brought before them. If we make it a purely appellate court we are met with the consideration that as appeals can be taken direct from the States Supreme Courts to the Privy Council, there may be little or nothing for the High Court to do. If we confer original jurisdiction upon it the five Judges will not be sufficiently numerous, and the expenses will probably reach £80,000 or £100,000 per annum. Even in New South Wales the expense incurred in providing the paraphernalia of the Supreme Court is very great.
-We intend to have a court without paraphernalia.
– The Ministry are perfectly aware that if all the offices which will have to be constituted under this Bill were enumerated the people of Australia would stand aghast. They would be heard crying out - “We want something which will bring justice within the reach of all in the most inexpensive manner possible.” If army after army of lawyers is to be fastened upon the community, where shall we end? I could not help being impressed by the speech of the honorable member forWest Sydney, who, despite the great disadvantages under which he labours, has for several years past studied the great principles of law in order to better qualify him for the work of legislation. Yet in spite of his natural predilection as a lawyer he appealed to all those possessed of democratic tendencies to vote against this Bill. The responsibility, therefore, which rests upon those honorable members who pride themselves upon representing only a class–
-Who pride themselves upon what?
– I repeat that the responsibility resting upon the representatives of a great class of the people is a very serious one. I shall be very much staggered indeed if, in the face of the opinions expressed by the honorable member for West Sydney, his serious judgment upon this matter is set aside by members of the party with which he is associated. I would further point out that apart from the members of the Ministry, more than threefourths of the lawyers in this House have spoken against the measure as an entirely unnecessary one. I submit that the expense contemplated under it is altogether concealed from the people.
– What causes all the lawyers to be against it?
– For once we are alive to the necessities of the people, and we regret that some honorable members who fought with us against the Bonus Bill are entirely opposed to us upon a question of this sort.
– Is this a Bonus Bill?
– It is a Bonus Bill for lawyers. If the measure passes, the honorable member has described it in exact terms. It is against that bonus that I protest. It is not my intention to labour this matter further. I merely ask honorable members to recognise that if we agree to the second reading of the Bill it will practically be beyond our power to remodel it. I have no hesitation in declaring that if two or three short clauses had been inserted in the Claims Against the Commonwealth Act when that measure was before Parliament last session, all that is required in the way of providing a proper tribunal, to which the humblest citizen could appeal, would have been accomplished. Holding these views, I must necessarily vote against the second reading of the measure, and in Committee I shall endeavour to have it shorn of its most objectionable provisions.
– Had it been possible for us to go to a division last night, so anxious am I to see the business of the session proceed that I should have foregone my right of speech upon this question. But as I hope we shall come to a division to-day, seeing that the opportunity of yesterday was lost, I feel that I am called upon to say something regarding this Bill, but not to deal with mere details. I hope to establish what I have to say on this question upon the old and well-sanctioned principle that the second reading of a Bill depends upon the principles contained in it, and that the details may be left to the Committee stage. What, therefore, to my mind is vital to this Bill, and to my support of its clauses, I shall leave to the Committee stage. Whilst my remarks may not be very brief, I shall, by adopting this method, be enabled to curtail them somewhat. I hope to establish four propositions which I mean to set up. One of these is that a High Court, not only to interpret but to guard the Constitution, is a necessary element in any Federal Constitution. The next is that our Constitution contains a mandate for the erection of a High Court as soon as parliamentary exigencies allow. My third proposition is that this mandate will not be fulfilled by any of the suggestions put forward ;. and my fourth, that, apart from the constitutional aspect, the court is now and will become more and more a practical necessity. As to the first proposition, I hold that the position in a Federal State is altogether different from that in a unitary State, or in a State not of the Federal character. The great principles of the Federal form of government are two in number. The first is the supremacy of the Constitution - a principle which may exist elsewhere, but which in Constitutions more upon the British form depends upon the enactments or declarations of a sovereign Legislature, whilst in written Constitutions, especially of a Federal character, it is necessary that every piece of legislation should be within the limits which the people have set for themselves in the Constitution which they have adopted. The supremacy of the Constitution is, then, the first matter. The next is that the Constitution shall distribute between bodies with limited and co-ordinate authority, such as the Federal and States Governments, the whole of the powers of government. How are these principles to be maintained 1 They can be maintained in only one way - -that adopted by the Americans in framing their Constitution. They can be maintained only by the establishment of a court which derives its authority from the Constitution itself, which can prevent action by any of the constituent bodies of the Federal system involving a breach of the Constitution, or trenching upon the powers accorded by that Constitution. That is to say, that the first function of a High Court, such as it is proposed to establish under this Bill, is to maintain intact the principles which underlie the Federal system. This is admitted by every federalist writer with whom I am acquainted, and is proved by the whole experience of the United States. But it is said that the case of America provides for us no analogy - that we have a Privy Council to which we can appeal to interpret and guard our Federal Constitution. It is true that we have a Privy Council to which we can go in certain cases ; but that is an argument, I venture to say, which should not be used by any one who has regard for the self-governing powers of Australia. The Constitution was intended to extend those powers. In support of that proposition I will quote from the report of the proceedings of the Convention which sat at Adelaide - the first of a series of three Conventions which ‘ formulated the Constitution. The work which was done by that Convention then, so far as it relates to the Judicature, stands almost letter for letter with the Constitution of to-day, except in respect of section 74, which deals with the relations of the High Court to the Privy Council. “What were the objects expressed in the Constitution which the Convention hoped to adopt ?
At the request of that Convention on the 23rd March, 1S97, I brought down certain resolutions, setting forth the grounds upon which it was considered desirable to create a Federal Government, and those resolutions were unanimously adopted. The first of the purposes declared in them was that in order to “enlarge the powers of selfgovernment of the people of Australia,” a Federal Government should be created to “exercise authority throughout the federated colonies,” subject to certain principal conditions which were therein laid down. The resolutions provided that -
Subject to the carrying out of these and such other conditions as may be hereafter deemed necessary, this Convention approves of the framing of a Federal Constitution for the establishment of three things - a Parliament, an Executive, and a Federal Supreme Court, which should also be “ a High Court of Appeal for each colony in the Federation.” There was laid down the necessity which exists under any Federal Constitution for the three branches, that one naturally associates with the very idea of a federation : an Executive, a Parliament, and a Judiciary - a Judiciary not confined to the ordinary work of an appeal court, but one which was described in the resolution as a “ Federal Supreme Court,” which, in addition to discharging those functions which generally appertain to an appeal court, should also be the guardian and the arbiter of the Constitution. In order to strengthen the argument put forward by the honorable and learned member for Indi in the masterly speech which he delivered last night, let us see whether it was intended at the beginning to establish a High Court as an integral part of the Constitution rather than as an institution which might be blown up or down at the mere caprice of any Parliament. What was it that we were to establish under these resolutions ? What was it that the Convention, consisting of representatives elected in equal numbers from each State without any plural voting, determined should be created t It was to be a Federal Constitution which “ shall “ establish a Parliament, an Executive, and a Supreme Federal Court. The Constitution was to establish the High Court, and, as pointed out so well by the honorable and learned member for Indi, that court was to be regarded, not only as an institution for the creation of which there was a mandate, but as an institution which was, as far as possible, to be an element and a factor in the Constitution itself. It was not to be a thing to be created according to the whim of any party, or even according to the number of cases that might be expected to come before it. It was to be a part of a Constitution which, without it, would not be the Constitution intended. I contend, therefore, that the argument with regard to the Privy Council is not one to be used by an Australian who has regard for the enlargement of our self-governing powers, because it was declared, not only by the Convention, but subsequently by the whole of the people of this country, that a Constitution fulfilling and carrying out the principles embodied in these resolutions was the Constitution they desired. The Constitution was designed to extend these self-governing powers, and to possess this element, without which it would not have been complete. To that end the resolutions provided that there should be this Parliament, this Executive, and this Supreme Court. It is true that we can appeal to the Privy Council to interpret our Constitution. This Constitution, however, was intended to be, in its very essence, a complete grant of selfgoverning rights, and yet it is suggested that we should leave one of the most important branches of self-government to the Privy Council, which, however respectable - and I use that term with all respect - is still outside that instrument. I do not propose to say anything that would defame the Judges of any existing Court of Australia, or the men of great learning and eminence who constitute the Judicial Committee of the Privy Council. But what was it that was provided in the Constitution as framed by a Convention of elected representatives of the people - elected for that one work alone - and indorsed by the people themselves at the referendum ? This was the original clause 74 -
No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution, or of the Constitution of a State, unless the public interests of some part of Her Majesty’s dominions, other than the Commonwealth or a State, are involved.
That is what the people desired.
– But they did not secure it.
– They did not obtain all that they wanted. The clause continued -
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 grantspecial leave of appeal from the High Court to Her Majesty in Council. But the Parliament may make laws limiting the matters in which such leave may be asked.
It is true, as the honorable member for Moira has said, that we did not obtain all that we desired. But it is in this respect alone that we did not. We may take it that practically the decision carried into statutory effect by the British Parliament gave all else that we demanded, and it was a great and magnificent indorsement of the demand made by the people of this country for their own Constitution. But if we did not obtain all that we asked, which is unfortunately true, that is surely the worst of all reasons to be urged as showing that we should not make the best use of that which we have? That is the position set up. It is argued that because the people of Australia demanded to be made the expositors of their own Constitution through their own Judges - subject only to cases in which public interests in other parts of the Empire were involved - and did not secure all that they asked, that, therefore, so much as is now granted should not be exercised. It is urged that because the Constitution has one of its members maimed to a certain extent, even that injured arm should not be exercised. What logical reason can there be for such a suggestion ?
– Did not the delegation make an amendment?
– The Imperial Parliament amended the Constitution. The delegation which went to England to expedite the passage of the Constitution through the Imperial Parliament consisted of five of the original members of this Government, and we took all that we could get.
– What about patching up the injured arm? Could not the people amend the Constitution if they so desired?
– I shall come presently to the question of restoring that arm of the Constitution. The five members of the delegation happened to be members of this Government as originally formed, but one of them, unhappily, is now deceased. That delegation was sent to London to work, if possible, for the passing into law word by word, and letter by letter, of the Constitution which the people of this country had claimed for themselves. The delegation comprised the Attorney-General, the Minister for Trade and Customs, my honorable colleague, Sir Philip Fysh, the late Sir James Dickson, and myself.We fought a hard battle, and I do not think that any one who looks back upon our work will say that we failed to do all that we could to have the mandate of the people carried out.
– The late Sir James Dickson was not in favour of the Bill as sent home.
– Although he was with us at first, he subsequently adopted a different view of the question. Four-fifths of the delegation, however, stood true ; and their mandate from the Conference of the Premiers who appointed them, was that they were to secure the adoption of that Constitution without amendment. I am not here to criticise my late colleague’s view of his duty. I know that the remaining members of the delegation held a view different from that entertained by him, and that we did our best to enforce it. As a result, we secured the passage of the Bill practically as agreed to by the people, save that clause 74 was amended so that instead of providing that -
No appeal shall he permitted to the Queen in Council in anymatterinvolving the interpretation of this Constitution, or of the Constitution of a State …. a limitation was made. Without following the wording too narrowly, that provision was limited practically to cases in which the appeals were from decisions of the High Court, and the constitutional questions were describedas those involving -
The limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States.
That included all the constitutional questions of interpretation which were likely to arise. As the result of long negotiations, and as I am frankly bound to admit to this House, only as the price that had to be paid to prevent more drastic amendments of the Constitution, the amendment which I have described was adopted and carried into effect by the British Parliament with the proviso that an appeal might go even from the High Court to the Privy Council onaquestion involvingan interpretation of the Constitution if the High Court certified that that question was one that ought to be determined by the King in Council. The High Court was only permitted so to certify if satisfied that for any special reason that certificate should be granted.
– The certificate of the High Court is still necessary.
– Absolutely necessary. I take it that a court of that character, with the added authority which it will possess, not only because of its prestige but from its selection on Executive responsibility from the best legal talent of Australia, will be a body that will be able to decide definitely and with independence for itself whether a case ought to go to the Privy Council or not. No other body that I am aware of is in so good a position so far as that purpose is concerned.
– Then the High Court has the power to block any appeal?
– It has power to refuse to permit an appeal from its decisions, unless, of course, it is satisfied in its conscience that that appeal should proceed to the Privy Council. But there was a further amendment made. Originally the clause provided that -
Except as provided in the Constitution, 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. But theParliament may make laws limiting the matters in which leave may be asked.
That power to make laws limiting the matters in which such leave might be asked is retained, with the reservation that Bills containing any limitation of the cases in which special leave to appeal might be asked shall be submitted for the Royal Assent - reserved, as it is said, for His Majesty’s pleasure. That practically was the only amendment of that portion of the clause. Thus the appeal as of grace as distinct from the appeal as of right is preserved in this section, as it was in the original clause, with a limitation which the original clause imposed, giving power to this Parliament to curtail cases in which special leave might be asked, to use the constitutional phrase, and with the further limitation that every such Bill that was passed must be reserved for the pleasure of the King.
– Until such time the appeal will remain as it stands now, except in constitutional disputes between State and State.
– Unless there is a constitutional amendment at some future time, the appeals will be limited as they are in this section, with the further condition, which I have just added, that laws passed by this Parliament to limit the matters in which special leave to appeal may be asked, shall be reserved for the pleasure of the King. That is the difference between the original clause and the section as it now stands, between the clause which received the sanction of the Australian people in every State and the provision which, at peril of the more drastic amendment of the Bill, had to be accepted before the measure could pass the Parliament of the United Kingdom. I admit that in my j judgment even that alteration should not have been made. In the relations which exist between us and the United Kingdom, happy and permanent as I hope they may be, it would have been better if we had had conceded to us all that we asked - the right to decide these cases for ourselves, and to say what our Constitution meant, however the matter arose, so long as we did not interfere with the public interests of other parts of the Empire. I was of the opinion, and so were my colleagues, that the phrase, “ people of other parts of the Empire,” was sufficiently intelligible and definite. That, however, was not the opinion which prevailed at “Westminster, and the result was that the further definition which exists in the Constitution was imposed. “We reluctantly accepted that amendment, but we experienced keen joy in the knowledge that we were able to leave the scene of our labour with the assurance that theseal which would make it permanent law would be placed upon the Constitution which our people had adopted. If the original position which we went home to defend in respect of this matter is a good one, there is no one who thinks so who should not help us to take all the advantage we can of what is left to us of the position. I think that that is the attitude which must be taken, except by those who think that what is left in the Constitution is not sufficient for the foundation of a High Court of wide jurisdiction, and entitled to the respect of Australia.
– There is practically very little withheld from the court.
– The diminution of its powers - which, as I have said, was not what I wanted to see - still leaves it a high and competent tribunal, a court whose decisions on certain constitutional questions cannot be controverted by any other judiciary, except at its own will, and which must therefore be effective as the actual balance of the Federal Constitution. To confine that Court to appellate jurisdiction would be one of the worst sins we could commit against the desire of the people who framed it, because their intention evidently was that the Constitution should be complete in all its aspects. While they were not called upon to vote on a third referendum in order that they might express an opinion upon the alterations in the 74th clause, I take it that the alteration was made practically by the common consent of the Imperial Parliament and the people of Australia. Although the two parties held a diverse’ opinion upon the question at issue, it was not thought sufficient to require the taking of a third referendum. That being so, it may fairly be argued that the alteration did not, in the opinion of our people, take away from the High Court the standing and value, as an essential factor in the Constitution, which they themselves wanted to give it. The alteration might make the Court less valuable, but it did not entirely remove its value. So after our determinations at Adelaide, after our labours during the various sessions of the Convention, and after the popular indorsement of our work, it may be taken that the Constitution was pared down in the particulars to which I have referred with the consent of the people. But I decline to listen to any one who says that, so far as the just attributes of the Court are maintained in the Constitution, the people do not wish it to continue. This is the first time that it can be said, with a sense of pride and glory, that the founders of the Constitution are the people. Even the Constitution of the United States of America received no final popular indorsement. Ours is the only case in which such an indorsement was given. We cannot get away from theposition that a Constitution without such a High Court as is not only asked for, but ordered, would not be the same as the Constitution which we now have, and would be a different instrument to work under from that which the people designed. That is the position which I wish to take up. It is no doubt a high one, but it is justified in reason and by our sense of responsibility to the people.
– An absolutely technical point.
– My position is in no sense absolutely technical, unless I am to be told that to insist upon carrying out that which the people for the first time in history have had an opportunity to order is a technical position. To my mind if there is a broad reason for taking up the position which we have taken up in introducing the Bill, it is that a High Court is part ‘of the Constitution as designed by the people. It is, therefore, a matter in regard to which we should not refine and quibble. We should not say, “ Wait until another day,” or complain . that the establishment of a High Court will cost too much - supposing the proposed cost to be fair and reasonable. What we should say is that this is what we were told to do, and that there shall be no unnecessary delay in doing it. It has been argued that, owing to the form in which the Constitution now stands, the High Court will not be its guardian and interpreter ; but I venture to say that that will not be found to be so. The safeguards provided in the 74th section will, enable the High Court to give such decisions in interpreting the Constitution as will be the just and, in almost every case, the final arbitrament of disputes between State and State, or between State and Commonwealth. If it is found that it is not so much the effective guardian and arbiter as we hope, what is the duty of Australians ? To decline the court, or to sweep it away ? No ; to exercise the powers which the Constitution gives us. . It is our duty to use those powers in amending the Constitution so that, without any authority withstanding us, we shall be able to give the High Court the whole of its attributes, and thus dispose of the arguments of those who say that because it is not big enough it ought not to be established. In any case, under section 74 we have the power to limit appeals, and there is nothing to prevent us from exercising that power at any time. So much for the position which I venture to submit, that the High Court is a ‘ necessary element of the Constitution for the purpose of interpreting and guarding its provisions. I come now to the next question, which has been much debated, and that is whether the Constitution contains a mandate for the creation of the High Court. That proposition I venture to affirm. Moreover, I say that the mandate has peculiar force, from the fact that the Constitution has come direct from the people.
– There is no mandate as to the time.
– I shall deal with the question of time later on. In interpreting the Constitution, as we have to do for ourselves to-night; to determine whether the High Court is necessary, and whether the creation of it is a duty imposed upon us by the Constitution, we must take not only the lawyer’s view, to be arrived at by the construction -which is to be extracted from the meaning of the words used, but a broader view - perhaps a broader view than a Judge upon the Bench would be empowered to take. That view springs from this consideration : Take the Constitutions of the States. They are in one sense like ours, inasmuch as they have been sanctioned by Acts of the lmperial Parliament. In the case of the Canadian Constitution there is the same similarity. Acts of the Imperial Parliament were necessary to give all these Constitutions the force of law. But let us now look at the point of difference. Was the Convention which framed the resolutions - because there was no Bill until those resolutions reached England - upon which the Canadian Constitution was founded, elected by popular vote? In no sense. Was the framing of the Constitution of any one of the States the act of a convention of representatives chosen by popular election ? In no sense, and in no case. Was the indorsement of the people given to the Constitutions of either Canada or of any of the Australian States ? Not in any instance ; nor, as the Attorney-General reminds me, was such an indorsement given in the case of the Constitution of the United States. But in regard to the Constitution of the Commonwealth of Australia, not only did every elector record his vote for or against its acceptance, but he voted with a printed copy of it in his hands. No man went to the polls in any of the States to vote on that question without having had an opportunity to read the very words of the Constitution, which had been framed by those whom he had himself elected. Therefore, there is a great difference in origin between our Constitution and every other Constitution that we know of, since in our case an educated people, knowing what it provided, and without doubtas to its meaning, voted for its acceptance. Never was a Constitution approved of which more clearly expressed its intention in its words. There are difficulties in the interpretation of other Constitutions, and there always will be difficulties which will invoke the wisdom and learning of our Courts of Justice, but anything plainer than our own Constitution was never placed in the hands of the electors. Now, let us reflect upon the position we occupy in considering anything that may be construed as a mandate, if it be one, which comes from those who appointed the men to draft it, and afterwards took it in their own hands and learnt to understand it, -and then approved of it. Surely we cannot compare that case, so far as the origin and meaning of the words is concerned, with the ordinary conditions in which a Constitution is merely framed as an Act of Parliament. All the elements are different. In how many cases is Parliament elected for one purpose only ? I defy any honorable member to direct attention to any such instance. But the Convention at which the Constitution was adopted was elected for one purpose only. Parliament does not submit its constitutional, work for popular approval ; Parliament has not done so. But this Constitution was submitted to the approval of the same people who met and elected the members of the Convention by which it was adopted.
– Parliaments are always amenable to popular opinion.
– Yes ; and I am sorry to have to say that there are a great many persons - not of course in this Parliament - who mistake newspaper articles for the expression of popular opinion. When we come to the question of the construction of this Constitution, must we not bear in mind the facts relating to its origin and the meaning of those who indorsed it? Coming to the Constitution itself, I can, with the greatest confidence, indorse the construction placed by the honorable and learned member for Indi upon section 71. Those who, like many of us on the Ministerial benches, went through all the strife and the turmoil attendant upon the making of that Constitution - through the many sittings of the Convention, through the two referenda, and finally through the work of endeavouring to obtain the entire acceptance of the Constitution in the United Kingdom - can, without arrogance, and without any feeling but that of humility, claim that being so intimately acquainted with the conditions under which the instrument was framed, they are entitled to speak as to the words used to convey the intentions of the framers. What could be more plain than this?
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia. That is certain, but what follows is not certain.
And in such other Federal Courts as the Parliament creates, and in such other courts as it invests with Federal jurisdiction.
Without relying too much on the word “and,” which is significant in this connexion, it is certain that the creation of the Federal Supreme Court is imperative whilst the addition to the Federal High Court of other Federal Courts or Courts of Federal Jurisdiction is made, in the terms of the Act, discretionary with the Federal Parliament. We have therefore a distinction between the imperative mandate regarding the Federal Supreme Court and the discretionary power with reference to other Courts.
– Is anything said as to the order in which the Courts shall be established ?
– I shall deal with that point presently. It is true, as is argued by the honorable and learned member for South Australia, Mr. Glynn, that this mandate cannot be enforced by injunction, but should that consideration weigh with statesmen or with this Chamber ? Is there no debt of honour in statecraft ? Are there no duties except legal duties ? Is a Member of Parliament to say that he stands as a member of a body which will not do its duty because there is no court above it to issue an injunction compelling it? Is there not a moral responsibility as well as a legal responsibility ? If there is no tribunal above us - and we cannot be enjoined by a High Court which is not created - to make us do our duty, are we relieved of it ? The question has been raised as to whether this mandate lias to be carried out at any particular time or not. The honorable and learned member for Indi quoted from the report of the judgment of the Supreme Court of the United States in the case of Martin v. Hunter. His quotation was a most valuable one, and is to be found in Quick and Garran ‘s Annotated Constitution qf the Australian Commonwealth. There are some further words in that very judgment which seem to be so interesting, and to apply so directly to the matter now before us, that I shall take the opportunity to quote them now. Mr. Justice Story, who delivered the judgment, is an eminent jurist, and has written a collection of legal treatises perhaps not surpassed by the work of any other jurist in the world. I ask honorable members to consider the words which I am about to quote, because they are not contained in the argument of an advocate, or even in the argument of a politician standing here in support of or in opposition to a measure, but are the calm words of judicial interpretation, Mr. Justice Story says -
The same expression - “shall Devested “ - occurs in other parts of the Constitution, in defining the powers of the other co-ordinate branches of the Government. The first article declares that “all legislative powers herein granted shall be vested in a Congress of the United States.”
And this has an important bearing upon the meaning of the words “ shall be vested.”
Will it be contended that the legislative power, is not absolutely vested ; that the words merely refer to some future act, and mean only that the legislative power may hereafter be vested ? The second article declares that “the Executive power shall be vested in a President of the United States of America.” Could Congress vest it in any other person ; or is it to await their good pleasure, whether it is to vest at all ? It is apparent that such a construction, in either’ case, would be utterly inadmissible. Wiry, then, -is it entitled to a better support in reference to the judicial department?
These are clear words, fair and conclusive as a matter of argument, but what do they lead to? They are an express denial of the statement that the mandate in the Constitution is one that can be paltered and trifled with, and that it was intended that the Constitution should be maimed in one of its arms at the will of Parliament. It is in controlling transgressions beyond the Constitution, either by this Parliament or by the Parliaments of the States, that the work of the High Court will in a large measure lie. Clashes between the authorities that are created will arise as often as weak humanity overrides its powers, either in the Federal or in the States Parliaments. In the heat of debate, and in the turmoil of party, excesses of power will inevitably be committed, as they have been committed in the United States. .We want a tribunal composed of men who understand the people, who live amongst them, who understand the history of and the reasons for our Constitution, and who are not dependent for their knowledge upon casual reading. Wc require a judicial body which will be able to tell us what our Constitution means, and whether those outside the calm and judicial arena, who have passed laws, have exceeded their powers or have remained within them. How can we have this unless we provide for the establishment of the -third arm of the Constitution 1 It is said that the Constitution does not specify the time within which the High Court is to be created.
– Hear, hear.
– I am happy to hear any remark from my right honorable friend, but I recollect” that one of the chief arguments of his right honorable leader, in his recent indictment against the Government, was that the High Court should have been provided for at the outset of our Federal career, and that the Government was to blame for not having constituted it long ago. I suppose that where doctors disagree the patient may be expected to die.
– Every one on the Government side of the House is now supporting the leader of the Opposition.
– Every one on this side of the Chamber is supporting the leader of this side and his colleague, who is responsible for the introduction of the Bill. I venture to say that the Constitution does not specify a time within which the High Court shall be created, because the words relating to it are of an immediately imperative character ; it was regarded by the framers of the Constitution as beyond doubt that the courts would be established as soon, at any rate, as parliamentary exigencies permitted. What I mean by parliamentary exigencies are the exigencies of parliamentary business. I do not forget that the honorable and learned member for South Australia, Mr. Glynn, in one of his speeches in connexion with this very matter, pointed out the limitation of two years in regard to the- passing of the Tariff. The honorable and learned member advocated a make-shift amendment of the Judiciary Bill of last session, because he said the time of Parliament would be taken up for the first two years in framing the Tariff, That is what happened. The greater part of two years was taken up in passing the Tariff, and anxious as we were to pass the Judiciary Bill, the opposition to it in those days was greater than it is now. Experience has since shown the necessity of the Court, and the delay has given us greater assurance of the attainment of our object.
– Could not the Government have succeeded in passing the Bill through last year ?
– It would have been harder to pass it through last session than it will prove now. If honorable members believe that it would have been more difficult last session than at the present to pass the Bill, they must give us credit for having exercised good judgment in not pressing it on a former occasion. I believe that the sense of the people has been awakened to the necessity for the establishment of the Court to a much greater degree than was the case when the Bill was previously before us.
– What about the exigencies of finance?
– I have been speaking of parliamentary exigencies, and I am going to establish my proposition. My right honorable friend is so eager, in his youthful impetuosity, that he will not allow an argument to be carried to its proper conclusion. The only delay that can find any sanction under the terms of the Constitution is that which must necessarily arise out of the facts of the case. Before there could be a Parliament- and it is admitted that the institution of the Parliament was an urgent and prime work, to be performed without unnecessary delay - there must be an Executive. The Executive is founded on equally imperative words - words which in themselves vest the executive powers of the Commonwealth in the Governor-General and the Executive Council. Their intervention was necessary before Parliament could be elected or summoned, and, therefore, the words of the section must be read in the light of necessity.
– They should be read in the light of common sense.
– I am reading them in the light of common sense. The Executive must precede the Parliament, because, without an Executive, there could be no Parliament. Then Parliament came under the mandate that it must be elected within six months after the establishment of the Commonwealth. I admit that this mandate contains a condition as to time which was not inserted until the second session of the Convention. Then we find that the Judiciary is provided for.
– Without any limit as to time.
– There was no time limit with regard to the creation of the Executive, but the necessity of the occasion required that they should be at once summoned. There need not have been any time limit imposed with regard to Parliament, because a Parliament whose election had been unnecessarily postponed would have wreaked summary vengeance upon the Executive which postponed it. The provision could not be made for the establishment of the High Court before the election of Parliament, because the fixing of its component parts must necessarily be a matter for the Legislature. Does the fact that the mandate of the Constitution had regard to the inherent necessities of the case, and did not impose any limit as to time, afford justification for the indefinite postponement of the establishment of theFederal Judiciary? The Executive first, the Parliament second, and the High Court third, is the natural and necessary order. No delay beyond this necessary sequence was contemplated by the framers of the Constitution. The whole argument for delay, I venture to say, is an afterthought, because throughout the Convention debates, and the hundreds of meetings which preceded the taking of each referendum, there was no attempt made by any one taking a prominent part in them, as, in any sense, a leader of the people, to postpone the creation of the High Court - no thought of relegating it to any position inferior to that of one of the three co-ordinate arms of the Constitution, without the full existence of which that instrument of Government must be more or less maimed.
– Are not two arms sufficient for any one ?
– No; I do not think so. They are certainly not enough for a monkey. The honorable member has forgotten the quadrumana in the animal kingdom. I have referred to the natural and necessary order, and no delay was contemplated for a moment. The question was put before the electors prior to the referendum being taken. The matter was so much in the minds of the people that, whilst the Convention was sitting, an estimate was made of the cost of establishing this tribunal. That cost was set down at £23,700. The whole question was thoroughly thrashed out in the various debates. With what result ? This brings me to my next proposition, that the mandate of the
Constitution will not be fulfilled by any of the suggestions that have been made. But before dealing with that matter I wish to refer to this portion of the Constitution. Section 75 prescribes that the High Court shall have original jurisdiction -
In all matters -
. Arising under any treaty.
Affecting Consuls or other representatives of other countries.
In which the Commonwealth or a person suing, or being sued, on behalf of the Commonwealth, is a party.
Between States, or between residents of different States, or between a State and a resilient of another State.
In which a writ of mandamus, or prohibition, or injunction, is sought against an officer of the Commonwealth.
In one of the cases in which a writ of mandamus was sought, the Full Court of one State has decided that it cannot issue such a writ, and that no tribunal save the High Court can.
– The Government could give them the necessary power if they wished.
– We could, if we chose to make the courts of all the States the arbiters of the Constitution. So much for the category of matters in which the High Court is to have original jurisdiction. If it is conceded that it is imperative that that tribunal shall be endowed with such jurisdiction, what an extraordinary position it is to argue that its creation is not equally imperative? I come now to the proposition that the mandate of the Constitution will not be fulfilled by any of the suggestions which have been made. I wish, first, to refer to the suggestion of the honorable and learned member for South Australia, Mr. Glynn. I find that in the Adelaide Convention this question was raised during the debate upon certain resolutions, a portion of which I have read. Without wearying honorable members upon this subject, I think I may quote a few words which I ventured to use on that occasion, in respect Of the suggestion which has been made that the Court should consist of the Chief Justices of the several States. They are as follow : -
I should like to make a short reference to one argument that has been used with regard to the Federal Judiciary. It has been suggested that the Federal Judicature should consist of the Chief Justices of the various colonies. I beg to say that so far as I am advised, I entirely dissent from that proposal. I think that that would bea provision which would make totally against the value of the Federal Judiciary for the work which it has to perform. One of the smallest objections is that in these colonies - if they are there anywhere it is not a provision of law - the strong feeling prevails that no Judge should sit on appeal from his own decision, and it is a very plain provision in New South Wales.
Mr. Peacock. And in Victoria.
– I am glad to hear that, because I had a strong suspicion that it was so. Whether or not, it is in all the colonies a provision of law that no Judge shall sit on appeal from his own decision, it ought very speedily, under the powers given by the Constitution, to be a provision of law for the Commonwealth, and if it once becomes so I should like to know what capacity, what adequacy, for this work will be left amongst the halfdozen Chief Justices who will at their sittings have to decide on appeals from half-a-dozen States.
It would be a case of alternately walking into the court and out of it. The report of my remarks upon this subject proceeds -
And when we bear in mind that in every appeal from a State the Chief Justice of that particular State must not take part in the hearing, there would be still less chance of forming acourt that would be us acceptable or satisfactory as a Federal Court of final appeal.
If it is contended that the Federal High Court will not possess any more knowledge of the laws of the individual States than does the Privy Council - and that has been contended during the course of this debate - we are placed in this position : if we enact that the Chief Justices of the States shall be the components of the High Court an d that none of them shall sit in appeal from his own decision, we shall find - seeing that all the Chief Justices are parties to the principal decisions of the States Supreme Courts - that in the very instances in which an acquaintance with the laws of a particular State is required to arm the High Court with the necessary knowledge, the man who could best furnish it will be ineligible to sit upon the Bench. I went on to say -
There is another strong objection. If this is to be a Federal Court it must not spring from any provincial origin. If the object of the court is Federal, and if it is to be made an arbiter between State and State and between State and Commonwealth, if it is right that it should be a Federal instrument - and clearly it must be so, because it is one of the essentials of a Federal Constitution - well, then it must be equally clear that it must not owe its origin to provincial appointments.
Later on I said -
If such a provision were carried into effect the Federal Executive would not have a chance of deliberating upon the question, but must take the Judge provided, even though the results attending his appointment were not such as were expected.
So that if the proposals submitted by the honorable member for South Australia had been carried the Federal Executive, which ought to have the responsibility of making the very best choice of Judges for this Court, and who should suffer if its responsibility is not honestly exercised, would be freed from that responsibility, and J udges, because they were the States Chief Justices, without reference to the question of whether or not they were uniformly successful as Judges, would be placed upon the Bench to determine Federal affairs. That would be-about as unconstitutional an anomaly as could possibly be created - unconstitutional, not only in the sense that it is a breach of this written Constitution, but in the sense that it is opposed to every known principle of British constitutional law. I was going to say that that proposal got no further than the end of that debate, but I find that it did, as was mentioned by the honorable and learned member for Indi last night. On page 265 of the record of the proceedings of the Convention in Melbourne, I find that, under the name of the honorable and learned member for South Australia, Mr. Glynn, there is an amendment, which reads -
The High Court shall consist of a Chief Justice and, until Parliament otherwise provides-
That, it will be seen, is merely a temporary provision - - the Chief Justices of the States. In the case of the illness or death of the Chief Justice, the powers of the Supreme Court may be exercised by the other Justices, being not less than three.
In the speech delivered by my honorable friend upon that occasion, he said -
It is extremely probable that during the first two years of the Federal Parliament legislation will be confined to such a question as the arrangement of uniform customs duties.
That proposal was opposed by various members of the Convention, and a concise statement of the points in opposition to it was made by a very able member in the person of Senator Symon, who used these words -
I think honorable members will agree with me chat a more nondescript tribunal could not very well be constituted than that which he proposes. He wants to strike out all the words after “and “ in the fifth line, and to add “until Parliament otherwise provides the Chief Justices of the different States in the Federation.” The effect of that would be that we should have a Federal ChiefJustice, and that the Chief Justice in each separate State would become, immediately he crossed the border of his own State into Federal territory, a puisne Judge of the higher Court. We should then have this extraordinary sort of olla podrida, a Federal Chief Justice owing his position, his emoluments, and his Judicial allegiance to the Federal Parliament, and four puisne Judges in one sense under him who are Chief Justices in their own Court, and who owe their J udicial allegiance and their emoluments to the separate States.
After replying to an interjection by the honorable and learned member for South Australia, Mr. Glynn, the speaker proceeded :
But then as my honorable friend (Mr. Isaacs) interposed a moment ago, with an exceedingly pregnantsuggestion, they will all owe their tenure of office - not only their judicial allegiance and. emoluments, but their tenure of office - to the State. Then see what an extraordinary position these Judges would occupy in a High Court so constituted. I could understand the suggestion although I think it would not be one which would meet with the approval of any reflecting mau, that the Judges of the different State Courts or a selection of them, should constitute the High Court of Justice : but to say that you should have a Federal Chief Justice appointed by the Federal authority, and as I say, owing undivided allegiance, if I may use such an expression in relation to Judicial affairs, to the national Government in its highest sense, is a position of matters which I am sure could not possibly commend itself to any one, I certainly did not hear any argument that was at all convincing on the question of the desirability of making such a change as this, but my honorable friend must also have noticed that by so altering the clause you are limiting the choice of the Federal Executive in the selection of its J udges.
The remaining portion of the argument that I wish to cite reads thus : -
At any rate there is nothing to prevent the Federal Executive from having the benefit of the experience, the wisdom, and the learning of the existing occupants of the judgment seat in Australia if they so choose. But if you introduce this into the Constitution, you are limiting the power of selection by the Federal authori ty, limiting their choice, and binding them down to the selection Of one Judge - the Chief Justice - from the whole of the judicial power of Australia, whether on the Bench or off it ; and as to the other J udges - whether the number is two or four, is, as Mr. Barton said, a matter of minor importance - limiting their choice to the existing Benches. I think it cannot be too strongly emphasized that
Such a state of things would be extremely unsatisfactory.
The result of that debate was that the amendment submitted by Mr. Glynn was defeated by 29 votes to 9, and I find that amongst the majority was the honorable and learned member for Northern Melbourne. To adopt the suggestion which has been brought forward during this discussion, would be to go back upon the decision of the Convention. That is not a task which this Parliament need hesitate to perform, if it is of opinion that the Convention was wrong. But it is in consequence of that decision that the constitution of the Court itself is in the form in which it is now presented to Parliament, and in the form laid down in the Constitution. The rejection of that amendment had this result ; that not only did the honorable and learned member for South Australia fail to alter the text of the Constitution in the direction which he desired, but in that respect it remained in its original form, and in that form was adopted by the people. To adopt the suggestion which has now been put forward, would lie not only to go back upon the decision of the Convention, which, in itself, might be a less important matter, but to deliberately set at naught the intention of the Constitution itself. Although it might not be technically unconstitutional, certainly it is morally so. I shall not travel over the ground which was traversed by the honorable and learned member for Indi in order to prove that such a proposal -is unconstitutional in essence ; but it is clear that unless the Chief Justices of the several States were removed altogether from the States Benches, they would occupy a dual position, and, irrespective of the volition of the Federal Government and the Federal Parliament, they would be entitled to sit on that Bench for life, apart from any question of misbehaviour, misconduct, or inability to do their work. It is about as unconstitutional a proposition as was ever brought forward evenwith the object of saving money. In addition to that, I venture to say that to give the powers of the Constitution, and those which in any. event must be wielded under a High Court Bill, to gentlemen appointed under such circumstances would lead to consequences which could not be included in any description of a wielding of this Constitution as it was framed. In view of the immense importance of the functions of this Court, would it be right that it should be practically under the control of the States Executives ? If the Judges who from time to time may be made Chief Justices by the Executives of the States are to be the constituents of this Court, it must be clear that it will be at the will of the States Executives that the Federal Court will be appointed. Did anyone contemplate such a thing in setting up this Constitution ? Was it contemplated by any one who voted for the creation of the Convention ? Did any member of the Convention, or any one voting for the adoption of the Constitution, contemplate putting the powers of the High Court into the hands of any authority chosen by the Executives of the States and not by the Executive of the Commonwealth ? If such a provision had been contained in the Constitution Bill, would it not have provoked an outcry ? If it would have done so - and I believe that would have been the result - how can we adopt such a proposal now? This Court may, and probably will, have to decide upon the validity of Commonwealth legislation, and I wish to know whether the function of deciding upon the validity of the legislation of the Commonwealth is to be intrusted to a body appointed by the States Executives ? Concede, if you like, that every State J udge we have ever had has been a model of fairness and impartiality - concede everything that you can for the sake of argument - but is it right that those who in the ultimate resort are responsible to States Parliaments that fix the terms of their selection, and who owe their position to the States Executives, should be placed on the judgment seat as the final judges of the validity of our legislation ? The proposition has only to be stated in order to show that it is one which no well-balanced mind should accept.
– Why not state the converse position ? If States Judges are not fit to deal with Commonwealth laws, how can Commonwealth Judges be fit to deal with States laws?
– The honorable and learned member has already defeated his own argument, because he has said that if a litigant does not desire to go to the High Court,he can go to the Privy Council. He has told us, further, that he would advise a litigant to do so, notwithstanding the vote which he gave in theConvention on the amendment moved by the honorable and learned member forSouth Australia, Mr. Glynn.
– That is not an answer to my question.
– I contend that it is. We expect consistency from those who put questions to us. It is clear, at any rate, that where the purpose of a Constitution is national, where its design is to perpetuate cohesion among States, any tendency, if there is a tendency, arising from the origin of appointments to the Bench so created, should be, if anything, a tendency in favour of the purpose of the Constitution, which is the preservation of the national element. We may say what we please as to all these converse responsibilities ; as to the fitness of J udges of the Federal Court, and Judges of the States Courts, but we must face the one position, that we are here for the purpose of guarding and carrying out the Constitution of the Commonwealth - that we are to take that course which, at any rate, best secures its permanence and solidity.
– Is there any danger?
– To provide against danger is the function of every sane, far-seeing legislator.
– Is there any sign of danger ?
– I do not wish to discuss that point. There are always dangers in a Federal Constitution. It is not because they are free from danger, but because, in their balanee, they provide a greater safety, that they are adopted. Every Constitution, whether Federal or not, must be full ofdangers. The Federal Judges should do this work, not because they will be biased in favour of theFederation, but because, being responsible to the national Parliament, they will take the national view. This does not mean the obliteration of States rights, and, in touching upon that point, I wish to ask the honorable and learned member for Northern Melbourne to give me his special attention while I quote from an article written by an American Judge. In the March number of Seribner’s Magazine, I find a valuable article by Mr. Justice Brewer, Associate Judge of the Supreme Court of the United States, dealing with that Court and its history, and I propose to quote shortly from it. It is a valuable article, but I can give only a little of it, and it is very pregnant in its application to this part of the argument which has been waged on both sides. He says, at page 275 -
Its decisions -
That is, the decisions of the Supreme Court of the United States - have always been in harmony with and sustaining the proposition that this Republic is a nation acting directly upon all its citizens with the attributes of authority ofa nation, and not a mere league or confederacy of States. The importance’ of this cannot be over-estimated, and will be appreciated by all who compare the weakness of the old confederacy with the strength and vigour of the Republic under the present Constitution. A brief reference to some of these decisions is deserving.
I shall quote only a few of those references. Mr. Justice Brewer refers to the case of McCulloch v. Maryland, in which it was held that -
Congress may pass any Act which, not forbidden by the Constitution, is reasonably appropriate and helpful in carrying into execution the powers expressly conferred.
In Brown v. Maryland the Court ruled that-
The control of commerce with foreign nations was wholly in the general Government, and that no State could directly or indirectly place any restrictions thereon, even to the extent of imposing a licence upon an importer for selling goods in the package in which they were imported.
In Gibbons v. Ogden, one of the leading cases of the Supreme Court of the United States, the decision was -
That the nation had supreme authority over all navigable waters of the Republic, and that no State could give exclusive rights to any such waters, although wholly within its territory.
In Ableman v. Booth it was decided that -
One in custody of the United States officers could not be discharged therefrom by process of a State Court ; while in Martin v. Hunter, to which I have already made reference, it was held that -
A party to a litigation in a State Court denied a right claimed by him under the national Constitution could take his case from the State to the United States Supreme Court, and have his claim of right there determined.
Mr. Justice Brewer points out that
These are merely illustrations. To them might be added many other cases of similar import, extending to the present day. The court has uniformly upheld the nationality of the Republic, and accorded to it all the rights which attend nationality.
In the light of our marvellous development and the wondrous growth of this Republic to the first place in the family of nations, one may well pause to consider what would have been our history if the decisions of the Supreme Court had been adverse to this rule of nationality. Suppose that the Court had held that, because the Constitution did not in terms grant the power to charter corporations, Congress could not charter a national bank, where would have been our great financial system ? Suppose it had ruled that a State might impose a licence on every importer from foreign nations ; that it had supreme authority over all . the navigable waters within its limits ; that its courts could take from the custody of the United States officials any person arrested for an alleged violation of Federalla w, and that there was no power in the Supreme Court to review the judgments of State Courts adverse to rights claimed under the Federal Constitution (and the questions presented in these cases were, under the strict language of the Constitution, debatable), where would have been the vigour and strength which exist in our national government, and which have been among the strongest supports of national progress ? Reflections such its these will give some idea of how much the Supreme Court has, by its decisions, affected the life of the Republic.
I crave attention to the remaining portion of this quotation -
It must not be supposed that, because it has constantly affirmed our nationality, the Court has been steadily undermining and destroying the legitimate power of the States. On the contrary, it has always ruled so as to uphold full governmental action on the part Of the States unembarrassed by Federal power. Thus, it held that the nation could not levy an income tax on a salary paid by a State to its officials.(Collector v. Day, 11 Wall., 113.)
I do not quote that passage with relation to any present-day fact -
It has upheld the police power of the States in a multitude of instances. It affirmed the right of a State to grant special privileges, even when the grant resulted (as shown in the slaughterhouse cases coming from Louisiana) in creating a burdensome monopoly.
It would be an easy and a pleasant task to point out how in many other ways the Court has, by its decisions, affected the life of the Republic, but the limits of my paper forbid. This must do for the past. As admitted by all careful students of history, the Supreme Court, whose organization and powers constitute the most striking and distinguishing feature of the Constitution, has been a most potent factor in shaping the course of national events. It stands to-day a quiet but confessedly mighty power, whose action all wait for, and whose decisions all abide. Turning to the future, every thoughtful man wonders what is coming to the Republic, and. many inquire what the Supremo Court will do in shaping that future, and how its decisions may affect the national life.
– Does that quotation show that the High Court should be established at once?
– As I am reminded, those who are in a difficulty usually flit from point to point. I had not made up my mind to use this quotation because of the time that I knew I must necessarily take up in dealing with other phases of the question. It was really suggested to me by the action of my honorable and learned friend in challenging the question whether there ought not to be a national court with a tendency to the consolidation of the powers of the nation. It was in answer to thatquestion, really, that
I quoted this extract; now he asks me something totally different.
– The quotation shows that the Court should be appointed at once. It does so because it illustrates the fact that in every hour of its life the Supreme Court of the United States has been tha necessary guardian of the Constitution of that union and the liberties of its - people, protecting them against any encroachment, whether from outside or from a State within, that tended to endanger the national life of the community.
– Does the right honorable gentleman say that a High Court could assume that function better than a State Court?
– The quotation which I have just read is a sufficient warrant for me to contend, not only from the argument in the article in itself, but from the citations which it makes of decided cases, that there is a necessity for a tribunal which is in its essence national ; and that tribunal can never be secured by resort to resources which are confessedly provincial.
– The right honorable gen tleman begs the whole question.
– That is the invariable plea of the man who cannot sustain his argument. My honorable and learned friend is always courteous in his interruptions, but those who interject in a manner which shows that they are flying from place to place of their position in an endeavour to maintain it show the weakness of their contention. I need not mention further that the recent decision of the United States Court with regard to the lottery tickets establishes a position, in the protection of the whole Republic against monopolies and trusts, which will be seen in the future to be of the highest advantage to the liberties of every citizen of that great country. It should be. understood, further, what is the meaning of this proposal to import the Chief Justices of the several States to form a High Court. It means handing over the judicial power to the States Executives indefinitely, because under the Constitution the Judges of the High Court must be appointed for life, unless they commit one of the offences for which they are removable. Assuming, as I think I may, that I have given a definite, intelligible, and argumentative answer to my honorable and learned friends, the only alternative to our proposal is practically to leave things as they are, which I think is the arrangement favoured by the honorable and learned member for Northern Melbourne - investing the States Courts with Federal jurisdiction, and looking to the Privy Council as a court of appeal.
– Hear, hear; for the present. That is the general inclination.
– Let us see how that arrangement would work. At any moment a judgment might be given by any one of the Supreme Courts of the six States - and in some of the States a final judgment might be given by a single Judge. Such a judgment might decide a question of the highest constitutional import, and might paralyze the administration of affairs by the Commonwealth for the year or two which, according to the law of averages upon which my honorable and learned friend the Attorney-General has descanted, would elapse before the decision of the Privy Council could be obtained. Until such a judgment was upset or reversed, it would probably be followed by thelower courts in the State in which it was delivered, and possibly by the courts of the other States. What wisdom there is, then, in the proposal ! What a substitute it provides for a national Court !
– It would be a good thing for the lawyers.
– Undoubtedly it would ; because if there is anything which increases litigation it is the conflicting decisions of several courts. But I am tired of hearing the cry that something may be good or bad for the lawyers. If lawyers are intrusted with the confidence of the people, and are sent here to represent them, their arguments are entitled to as much weight as are those of other men, and to such additional weight as their experience in legal matters may give them. The legal members of the House who have spoken against this measure are therefore to be listened to with great care, and without the smallest suggestion that they are influenced by improper motives. But while I concede so much to them, I may, and do, fairly claim as. rauch for myself. A decision is given, perhaps by a single Judge in one State, or it may be by the Full Court, from which there can be no appeal except to the Privy Council ; and, if that decision is adverse to the Government, administration is paralyzed.
More than that, the question must arise whether, the decision having been given in one State, and having force only in that State, the Government shall follow it in one State and defy it in the other States, or follow it in all the States? Which would honorable members advise us to do? Would not any sane man suggest that a decision of the Courts, whether right or wrong, should apply to the whole Commonwealth, and that, instead of having a system under which decisions given in one State might be followed in that State and disputed in the rest, until there could be an appeal to the Privy Council, it would be better to grasp the opportunity to establish a Court of national jurisdiction which, as it justifies its existence by the purity and clearness of its interpretations, will the more commend itself to the approbation of the Commonwealth.
– The Government have not found any inconvenience to arise yet from conflicting decisions.
– That maybe true ; but we are only at the beginning of things. My argument for the establishment of a High Court is not founded upon the contention that there is now a huge list of cases awaiting decision, but upon the duty of this Parliament to set that Court in motion at once, because, so long as we are deliberately without it, we are preventing the attainment of the full Constitution for which the people voted. Now, let us imagine a decision in regard to which there is no conflict - a decision in one State. Should the Commonwealth Government follow it in the other five States, or defy it there? Is not the embarrassment created by such a position a sufficient reason for the creation of a Court with a national instead of a truncated jurisdiction ?
– But at the present time there is no embarrassment and no wrong-doing.
– There is embarrassment. The decision was given by the Supreme Court of New South Wales that the importations of the Government of that State are not liable to duty, although they are not exempted in the Tariff. What are we to do under that decision? Unless a court with immediate jurisdiction to hear an appeal is established, we shall have to go to the Privy Council, and wait as long as suitors have to wait in such cases. The only case before the Privy Council in which we have been concerned up to the present is an appeal case brought against us, and that case has been pending for a couple of years.
– Its hearing was delayed because of the death of the appellant.
– That need not cause any great delay, because there are means for getting over a difficulty of that sort very speedily. Our lawyers have been on the point of moving for the dismissal of the suit for want of prosecution. But the point I wish to make is that there has been delay in that case, as there might have been delay through the unwillingness of one of the parties, or for some other reason; though, as the case is sub judice, I do not wish to refer to it. But the decision in regard to the freedom of State imports from duty affects only the State of New South Wales, because the Supreme Court of that State has no jurisdiction to make rules which are binding beyond its borders. Their decision, therefore, is of limited application, and the question arises : Are we to follow it in New South Wales and disregard it in tho other States, or shall we follow it in the other States, and say, “ This is declared to be the law of New South AVales. That law does not bind people living out of New South Wales, but we intend to make it binding on the people of the other States “? Do not honorable members see the dilemma which is caused, not only when there is a conflict of decisions, but where there is a conflict in jurisdictions? Does not the position justify us in saying that some corrective tribunal must be established on the spot, which will be invested with jurisdiction over the whole Commonwealth ?
– There has been no appeal to the Privy Council against the decision of the New South Wales Bench ?
– No, because the decision was given only the other day.
– Has the same point arisen in any other State?
– No, and duty is being collected upon the importations of the other States. But let me bring the matter back, for a moment, to the question of self-government. When we, or our fathers, caine to Australia, we brought with us the rights of British subjects, as they have been made effective in the United Kingdom by the declarations of its Parliament and people. Among those rights is the right of self-government. Now, an inherent part of that right is, that if a community is allowed to make a Constitution for itself, it should be allowed to say what that Constitution means. It is not selfgovernment if we have to-say, “ We bow to somebody else as to the meaning of what we said.” What we should say is, “ We are men of British origin ; we know what we meant when we made this law. Our Judges, acting for us, have declared our meaning, and we do not wish to see the question carried any further.”
– That is the theory, but only the theory, of the Government under which we live.
– Let us put the other theory by way of contrast. Imagine the case of a man whose son is leaving England to settle in one of the colonies where the British institutions, of which we are so proud, exist. Let us imagine him saying tohis son, “ Youaregoing out to New South Wales, to a place where there are British institutions, a place where there is popular Government, and where the people have their own way. You will become one of them, and will be able to vote for the election of a representative in Parliament, and to say who shall make your laws, and what laws shall be made.. I shall not interfere with that. But when you have made your laws, I, who remain at home, shall be the authority to declare to you what they mean.” Is the whole principle of self-government wrapt up in a Constitution which leaves matters in that position? I admit that my argument carries me to this length, that even the existence of a Privy Council as a controlling power leaves us something of full selfgovernment to be desired.
– Would the right honorable gentleman then remove the Imperial veto?
– If I had my own way I would have no appeals to the Privy Council. But I can see that it will be many years before that will come about. In the meantime, I should like to see one great Court of Appeal to which all citizens of the Empire might have access established in place of the present system, under which we have the Privy Council as a court of appeal for people residing abroad, and the House of Lords for those who remain at home. That is an arrangement which is spoken of as giving equality of British citizenship ; but there is no such equality under it. Whatever we may say of the purity and the learning of its Judges, the Privy Council has not acquired, the same credit for its decisions as has the House of Lords. Whether -we like it or not, the authority of the House of Lords is looked upon as superior to that of the Privy Council. Therefore, if there is to be, a change, I hope that it will be in the direction of some such fusion of these two tribunals as will give the same rights to all citizens of the Empire. But a better thing would be te allow each community to decide for itself what its Constitution means. More than that, I hope, as time goes on, to see that power is given to us to say what our laws mean.
– Would the right honorable gentleman take away the power of veto from the Crown ?
– The power of veto does not affect the interpretation of our laws, but our ability to pass certain legislation. On that question. I say that while we remain a part of the British Empire, the prerogative of veto is an attribute of the Crown which we cannot deny. I do not think we should venture to object to the power of disallowance in, at least, that class of cases in which our legislation is shown to impinge upon the legal rights of other parts of the Empire. To that extent the Imperial Parliament and the Government of the United Kingdom are trustees for the whole Empire, and their advice to the Crown guides His Majesty in the exercise of his veto. I trust that there will be no abuse of that right, and I do not apprehend any, because we know that kingly vetoes are gradually falling into misuse. The fact that I am prepared, for the purpose of maintaining the Empire unimpared, to agree that there should be some central authority which may in extreme cases prevent one part of the Empire from encroaching upon the legal rights of another, affords no reason why I should not contend that, with regard to matters where our Constitution and laws are concerned, we should be our own interpreters. Where other parts of the Empire are involved, I am content that the right of veto should exist ; in fact that was the very wording of the proposal with which we went to England. I wish to safeguard that principle, because as long as we are a united Empire, as I believe we now are, the right of veto must be reposed in some authority or tribunal, which should decide whether the interests of any parts of the Empire are wrongfully or injuriously affected. I have never pretended to advocate any finality that would prevent that exercise of right, but I have urged that we should have finality consistent with that right, and subject to no other earthly consideration whatever. I desire to again refer to the question, of decisions in the States Courts. I was saying that in the States Courts we might have decisions either of the Full Court, subject to appeal to the Privy Council, but only operative within the limits of the State, or that we might have the judgment of one Judge operating only within the limits of the State. Take the case of Stephens v. Abrahams. Under the law of the State of Victoria the judgment delivered by Chief Justice Madden was final, and could not be set aside without an appeal to the Privy Council. If that judgment had been allowed to stand, it would have brought about an absolute paralysis of business. But for the fortunate accident that another case involving exactly the same point was ready for submission to the Supreme Court, the Customs prosecutions in inferior courts would have been blocked indefinitely.
– The necessary jurisdiction might be conferred upon the Full Court.
-Yes, I know, but I think that that would be a poor and meagre supply of food to a Constitution that requires the vigour of its life’s blood. In the very nature of the case, how is it to be expected that the States Courts should be left without the supervision of some national Australian Court? Are the States Courts to have jurisdiction in suits between the States? Does it appear to be a small matter to permit a State Court to decide issues between those who are residing in the State in which the tribunal is situated and the citizens of another State? Would it not be incongruous to permit this? Yet we must either give the States Courts power to settle issues of that kind, or we must’ establish the High Court. We must either establish a Federal Supreme Court, such as is now contemplated, or, by way of a makeshift, arrange for jurisdiction to be exercised by the States Courts. If we adopt the latter alternative, and we do not subject the decisions of the States Courts to the correction of an Australian Appellate Court, we shall find cases going to the Privy Council, confused by all the very troubles which my honorable and learned friend has suggested, and particularly by this trouble - that a set of Judges who only understand ex hypothesi the laws of one State, are deciding between the rights of citizens of that State and the rights of citizens of another, or between the Government of that State and the Government of another. If the hypothesis is correct that the necessary amount of local knowledge is to be found only in those who form the local tribunals, then there will .be great danger of injustice to those States or citizens who have to submit in the first place to the jurisdiction of Courts mother States, subject only to an appeal to the Privy Council. I admit that arguments such as these must not, however, be pushed too far. There is a certain refinement at the bottom of every one of them, but arguments of the kind which 1 have been answering may fairly be met by others equally relevant, and only so far as there is too much refinement in the arguments which have been used against the Bill are my statements upon this head an answer to them. Now, I come to the practical necessity for the High Court, this being the fourth proposition which I took leave at the outset to indicate to the House. I put it to honorable members that it is wrong, to argue from actual present conditions as to the practical necessity for this court. In the first place, to a large extent that inquiry is immaterial, because if it is proved that the creation of the High Court is necessary as a part of the Constitution - that it is a mandate from those who made it, and that the Constitution is not complete without it - it is not necessary for me to go further than to argue in support of the three propositions with which I have already- dealt. There our duty lies clear, but as the.point of practical necessity has been raised, I desire tq say a few words upon it. Those who determined in favour of the creation of this court, and, as I venture to contend, its creation at the earliest possible time compatible with the necessary business of Parliament, were judging according to the conditions which existed at that day, and of which they .knew. If these conditions have been altered at all, they can only have become changed in so far as the facts of every day have demonstrated the greater degree of the necessity. If the necessity existed when the Constitution was framed - and upon that point the judgment of its framers is beyond cavil - and if there is greater necessity to-day, as I think there is, the fact only goes to strengthen arguments which really need no strengthening. The Constitution has brought into existence new relations between the States, and between individuals, as well as between the Commonwealth and the various States and individuals. These relationships were not existent as enforcible rights before the Constitution was made ; and whatever moral rights may exist, the enforcement of them can only become possible when the mandate of the . Constitution regarding the Federal Judiciary is complied with. Those who framed the Constitution -knew that. We have no right - and I use the word, of course, in no offensive or arrogant sense - to interfere with the judgment of those who, in specific terms, ordered the creation of the High Court. They ordered it because they forecasted the existence of these correlative rights between the-States and the Commonwealth, and between individuals and the States and the Commonwealth, and knew that they must produce litigation which could only be satisfactorily determined by a tribunal in essence national. It is not reasonable to conclude that the public will ever be satisfied to commit the determination of these matters, arising as they do from the creation of the national structure, to the States tribunals, which do not breathe, and cannot be expected to fully breathe, the national spirit. It . is easy to say that the Judges of the States Courts will be impartial. I know they will. But the outlook from which men view these matters may be consistent with the most self-sacrificing impartiality, and yet may be such as not to lead to a correct decision. I say this with the most perfect respect for the’ Judges before whom many of us have practised, and whose integrity and learning I cheerfully admit. I am merely stating in other words that they are human. The States Judges are, in common with others, subject to the weaknesses of humanity, and if we have to , determine between a State tribunal and one framed upon purely national lines, let us choose that which is likely to breathe the spirit of, and also to give body to, our highest aspirations.
– Will it be impossible for the Judges of the High Court to do any wrong ?
– No. They will make mistakes, just as other Judges do. Those who know the difficulties attached to judicial decisions must be surprised that the mistakes made are not more numerous. The work is very difficult, and requires much training and experience and the exercise of great discrimination. Of course there will be mistakes, but if you create a structure, and you wish to maintain its national character, you must, when a selection has to be made between a tribunal which in its direction and its essence is national and One which in its direction and its essence is local, choose that the tendency of which is national. How could it be contended that local tribunals would be the best expositors of the national sentiment? Was it ever contended before ? Could it ever be contended except in this debate1!
– The Prime Minister has set up the opposite contention.
– I know that the honorable member for Parramatta has followed me very closely, but I really must say that I have not done any such thing, as he will find upon reference to the Mansard report. The honorable and learned member for South Australia, ‘ Mr. Glynn, and the honorable and learned member for Northern Melbourne, know from experience . that all commercial prosperity means an increase in litigation. That increase we must expect in the Commonwealth if higher prosperity as a nation is to come and continue. Where a new system of rights, duties, and relations is brought into existence, difficulties and doubts must arise, which can be solved only in a court of law. That is part of the price which we have to pay for our political origin, and upon the whole it is a very small price. It is even permitted to a lawyer to ask whether it should not be considered a necessary price, because quarrels between States might, in the course of time, lead not only” to their drifting apart, but to their actually drawing the sword against each other. The substitution of a peaceful tribunal for the solution of their differences is surely a boon and a benefit, which can be conferred hy only a national court, and which, if bought at twice the price that is talked of, would be a cheap purchase for the new Commonwealth. All mv remarks have been directed to the first function of the Court - its original jurisdiction. It has, besides, an appellate jurisdiction. But it is of more concern to me to show that, apart from its necessity as an Appellate Court, it is required as a Federal Court to determine national questions in the light of the Constitution, giving due weight to all those instruments of Government which regulate the doings of States, and which must be looked at side by side with this Constitution. The existence of this Court as an Appellate Court will depend upon its repute, and its power to attract appeals to itself. Upon that I need say very little. The framers of the Constitution thought that we could erect a Court which, by reason _of its repute, would attract to itself in the main the appeals of Australia. That is what the late Sir Henry Parkes believed, as was shown by the honorable and learned member for Illawarra last night when he read the resolutions proposed by that statesman in 1891. The honorable and learned member properly pointed out that the Court which was then dealt with was purely an Appellate Court. Since that time we have progressed; thus in March, 1897, we declared that this Court should discharge functions as a Federal as well as an Appellate Court. It is upon that aspect of the case that I have dwelt, .although I believe there is no reason why it should not be a most successful Court without any extravagance being indulged in. As an Appellate Court it will depend upon the same conditions which will, or will not, guarantee its success as a Federal Courts Its success will be measured by the wisdom and learning of the decisions which it gives. I am not one of those who are so craven as to think that whilst we are constantly asserting for ourselves an ability to conduct our political affairs as well as can any other people - and I do claim that - we lack the ability to form a competent judicial tribunal. I do not agree with those who attack the Courts of the States. For the sphere in which their work lies undoubtedly they have been most learned and successful Courts. I give full weight to any arguments based upon their history, but I venture to say that if the field of selection be extended to cover all Australia, instead of that of any particular State, there must be constituted under this Bill a stronger tribunal than is to be found in any State Judiciary. I make that statement without desiring to say one word of disparagement of any State Judge to-day, without contending for a moment that there are not some occupants of the States Judicial Benches who are eminently fitted to occupy seats upon the High Court Bench. But I do contend that if the field covered by the whole of Australia be open - be it the judicial field alone, apart from the. Bench and Bar, which would give us a field wider still - instead of, as hitherto, only a part of the Commonwealth, we shall be able to insure the creation of a court, which, from the wider range of our choice, must necessarily be a stronger and better tribunal than any of which we have had experience. “Why do I use that argument? Because, if that is the result, this Court will attract to itself the appeals from the various States. In the infinitely more difficult field of constitutional judgment - in the interpretation not only of this Constitution, but of others, and particularly of those of the States - infinitely greater demands will be made upon the reason, judgment, and self containment of this Court than can be made upon them in ordinary appeal cases between mere party and party. There is no higher field of legal arbitrament than constitutional law unless it be the vague and disturbed field of international law. The work for which this court is primarily constituted - that of being a Federal tribunal, an arbiter - is one which rnakes the highest demands upon it. If it can satisfy those demands, it can a fortiori satisfy all demands as an appellate court. If, then, we are confident, as we ought to be, of our ability to constitute a court which will be the final interpreter of the Constitution, we -need have no doubt of its success in matters’ which, however grave, are- not so arduous, and do not demand the same extent of research and learning. I know that I have occupied a long time. I felt that I was discussing a problem of the gravest importance - one upon which none of us should feel cocksure, but one which all are called upon to debate if they have anything to say which is worth putting before the House. I hope that repetitions in which I have perhaps indulged from a characteristic failing, will be forgiven. We are all apt to drive home our points a second time in order that we may feel assured that they have got there. I. am not, I believe, a great sinner in that respect ; but this is a matter for close consideration. A Bill of this character demands very close argument, and one, therefore, needs to be satisfied that he has thoroughly explained his views to his hearers. It is in that endeavour that I have, perhaps, occupied too much time.
– There is one point that the Prime Minister promised to clear up. I refer to the order in which the courts mentioned in section 71 of the Constitution are to be appointed.
– I will deal with that before sitting down. Those courts are mentioned in a particular order, and if we see no reason why that order should be disturbed, we ought not to disturb it. The intention of section 71 seems to be that first the supreme duty should be performed of creating the High Court. That must be our first act, but it is within the discretion of Parliament to create other Federal Courts as the necessity arises, and also to invest States Courts with Federal jurisdiction. It is within the discretion of Parliament to say that it will create only the High Court at present, but will vest certain States Courts with Federal jurisdiction. It has complete discretion regarding the establishment of other Federal Courts and the investment of State tribunals with Federal-, jurisdiction, but the establishment of the High Court is an absolute duty created by the Constitution.
– Is that a condition precedent to the others?
– I do not say it is a condition precedent, except in the sense that nobody can bind any Parliament if it chooses to misuse its discretion and betray its trust. To that extent I admit the position, but those who have witnessed the making of this Constitution, and are familiar with its source, know that the intention of its framers was that, without delay, the Federal arbiter was to take its place side by side with the Executive and Parliament. If there was to be delay, it was only such as was inevitable in the very nature of things. There was not to be delay upon the miserable plea that the Court was not needed yet, or that its creation would be too expensive. It comes with ill-grace from us, whose parliamentary inheritance in a very large measure has been an extravagance for which we are all responsible, and who have sanctioned public undertakings which have produced no beneficial results, to say that we will not give effect to an Act not only of the Imperial Parliament, but of our own people, in which we are told that a certain thing is our duty, and that we are to discharge it - that we will not incur the expense - not an extravagant expense, but whatever may be reasonably necessary to render the performance of the trust committed to us effective - that we will not carry out the mandate of the Constitution and establish a Federal Judiciary. If the Government has culpably postponed that duty - and I venture to say it has not - no similar sin ought to be condoned on that ground. It is no argument to say that because we have delayed this matter too long - And if it had been possible this Bill would have been presented before now - it may now be indefinitely postponed. If the mandate contained in the Constitution has not been strictly followed, that is no reason why the dignity of those who gave it should be further offended. I ask that this Bill may be passed - and this Court, and the other necessary tribunals which will follow its creation, established - not so much in a sense of cringing obedience, which I do not wish to enforce upon any one, but as an indication of loyal affection to the people who caused the making of federation, and who indorsed the work of the Convention. There is one question which should possess all our minds now that we come to the supreme decision of this matter. Do we intend for the sake of saving what is a very small sum, having regard to the many other expenses- that may be incurred under the Federation, to postpone indefinitely the performance of an act which ought to be one of our first duties? Let us consider that in discharging that duty we shall be relieving the Constitution from a difficulty ; that it was intended that it should consist of these three great limbs - if I am not allowed to term them arms ; that’ one of those limbs has been to a certain extent inured but that that is no reason why as much vigour as it can be made to exercise should not be applied to the maintenance of the other parts of the body. We ought to be determined to carry out the intentions .and the demands of the Constitution by making it complete, and not to plead, because the completion of the organ has necessarily been delayed, that the body is more healthy when it works with a withered arm.
– I think we have just listened to one of the most powerful appeals that has been heard in the Federal Parliament. The Prime Minister always excels in dealing with constitutional questions, and in the elaborate speech which he has just delivered he has given us an exhibition of his powers, the like of which he seldom favours us with. The appeal which he has just made is equal to the best efforts of the great federalist of four years ago. We find him to-night, as Prime Minister of Australia, defending this Bill in the spirit in which he defended the Constitution as put before the electors. The speeches made in the defence of the Bill from the Government side of the House have been couched in language which suggests that the Constitution is being attacked. The Constitution, however, is not on its trial. No attack has been made upon it. No one has said that he is opposed to the creation of the High Court, but there is simply a difference of opinion as to the method which should be adopted in its establishment. The Prime Minister, however, described those who opposed the Bill just as he described the opponents of the Constitution. Bill, and declared that they were anti-federalists.
– No. I have not said anything like that to-night.
– That was the attitude taken up by the right honorable gentleman in his enthusiasm for the adoption of the Constitution. To-night he has tried to place the House in a similar position. I have listened to this debate as a layman and as one of the . great mass of the people who will never have any occasion to use the High Court, but will always have the privilege of paying for it. I have no training as a lawyer to help me in placing my views on this Bill before tho House, nor do I advance them from any particular attachment to the mercantile classes. I speak rather as one who is endeavouring to represent the opinions of the people of his own class, and who follow similar walks in life. The Prime Minister made passing reference to the suggestion that this Bill is being treated as a party measure. But he must see that it is not so. The honorable and learned member for Bendigo, the honorable and learned member for Northern Melbourne, and the honorable and learned member for Corinella, and the honorable member for Gippsland have spoken most vigorously against this measure ; they have even invited us to vote with them against the motion for the second reading. If they are treating it as a party matter I can only say that some honorable members who have hitherto been the most enthusiastic supporters of the Government are now deserting it. Another suggestion has been made - that those who oppose the Bill are influenced by press opinions. The Prime Minister said that be did not trust to the newspapers to direct honorable members in the discharge of their duty. The leading newspapers of New South Wales, however, are vigorously advocating the creation of the High Court, while representatives of New South Walesin this House are, for reasons which they are giving, fighting against this measure.
– Does the honorable member say that the two leading journals in New South Wales are supporting this Bill?
– I am told that they are. I usually read both journals, but I have not had an opportunity of perusing the articles said to have been published in support of the High Court. We all appreciate a speech of the character of that delivered by the Prime Minister ; but when he insinuates that honorable members who oppose this Bill are influenced by the opinions of the press of the States they represent, he suggests what is entirely wrong. The opposition offered to this measure is by no means a party one. The Prime Minister said that the High Court was essential for four reasons. He urged, first of all, that it was necessary, that we should have it to interpret our Constitution. I believe that when it is necessary to interpret and guard the Constitution every provision should be made for the performance of that work: But the Prime Minister said that we should establish the Court, not only for that reason, but because of the mandate in the Constitution that it should be created. I for one, however, am not going to regard the Constitution as a Joss, and fall down and worship it whenever I am called upon to do so.
– We must either follow it or amend it.
– I am not opposed to the passage of a Bill for the creation of a High Court, but I shall show that such a Bill should not be passedat the present time. The Attorney - General sneers at me.
– Certainly not.
– The honorable and learned member for Northern Melbourne, the honorable and learned member for Corinella, and others, have intimated to the AttorneyGeneral that they feel that it is a strain upon their friendship, but that, nevertheless, they are compelled to vote against the second reading of this Bill. I have yet to learn that considerations of personal friendship should guide us in the discharge of our duty in this House. The honorable member for Gippsland, with tremulous voice and with tears in his eyes, has intimated that he feels constrained to vote against this measure, while there are others who say they do not care to vote against the Government, and will therefore support the second reading of the Bill, but that they will support certain amendments when the measuregets into Committee. Is the Bill to be so mutilated in Committee that when it is passed no one will be able to recognise in it the measure now before us ? It seems that it is, and that there are only one or two vital clauses which, according to the AttorneyGeneral, willbedefended. If that attitude adopted by theGovernment,it will say very little for their appreciation of the High Court. The Prime Minister has admitted that the Government would have difficulty in getting this Bill passed into law, and said that he was afraid that if they had persisted in pressing it forward some time ago they might not have succeeded. If there was opposition to the measure then there must have been some reason for it, and if a hard struggle is now to be experienced in passing the Bill into law, would it not be well for the Government to withdraw it until a more convenient season presents itself ? In the meantime honorable members could be educated up to the necessity for the Court. I, for one, am willing to be educated in regard to this matter.
– Did not the honorable member, in a speech at Balmain, blame the Government for having failed to push on with the High Court Bill last session ?
Mr.WILKS.- No ; the Prime Minister said that the people in Australia accepted the Constitution with the provision in it for a Federal Judiciary. But did the people vote for the Constitution Bill because of that provision? If the right honorable gentleman can show that the people of any
State voted for the Constitution Bill because it provided for the creation of a High Court, his argument will be a strong one. The magnificent speech which the Premier has just addressed not only to this Chamber, but to Australia, will cause those who heard it to wonder why -the Government have hesitated so long about introducing the measure. Had they taken a similar attitude last session, and had the Bill then introduced been as vigorously defended as this Bill has been defended by the right honorable gentleman, we might not be engaged in the present struggle, but might be enjoying the benefits and advantages of a High Court in full working order. The honorable members who have addressed you on this subject, Mr. Speaker, and especially those who are versed in the law, evidently gave a good deal of time to the preparation of their elaborate attacks upon or defence of the measure. Most of us, however, are not accustomed to the atmosphere of courts. My own acquaintance with the administration of law is fortunately very small, and I hope it will remain so, although I have a great admiration for those who have studied its technicalities, and whose practice in the courts earns them, if not a well deserved, a good income. Ordinary people must look at this matter from what the Prime Minister may term a miserable point of view, but from one from which they have to regard many other matters which come before them for consideration ; that is, from a financial stand-point. The Prime Minister had no right to suggest that those of us who have opposed the Bill do so because we are governed by exterior influences. Even if we were all the miserable creatures of the daily newspapers of the various cities of Australia, it must not be forgotten that the press is a great factor in moulding public opinion, and in presenting the views of the people upon public questions. In Victoria, the Argus and the Age are both opposed to the measure. Can they, because they are of the opinion that the immediate establishment of a High Court is not one of the requirements of the people, fairly be called bitter and violent enemies of the Constitution 1 But while in Melbourne the press- is opposed to the Bill, in New South Wales, I am told, it is in favour of it. Inasmuch, however, as almost all the representatives of New South Wales in this House are opposed to it, that disposes of the imputation of the Prime Minister. The right honorable gentleman made a long defence - first of the Constitution, and then of the High Court, and in his concluding remarks he devoted a few minutes to the advocacy of this measure upon the ground of its practical necessity. That is a phrase which the ordinary man can understand, but which we must take for what it is worth. We have been told that the Constitution i£ in danger, but when I very innocently asked the Prime Minister what danger he apprehended, I failed to obtain an answer, and when I asked what were the signs of danger, the only reply I received was that the “people had marched to the ballot with copies of the Constitution Bill in their hands, and that their reason -for voting for its acceptance was because it provided for the establishment of a Federal Judiciary!
– Probably ninety-nine out of every hundred knew little or nothing of the judicial provisions of the Constitution.
– Exactly. It is the bounden duty of the Government! to .do all they can to win the popular respect for federation, so that the States may be encouraged to confer still greater powers upon us. That is the ground upon which many of us argue for the consideration of questions of economy in regard to this matter. We are anxious that the Federation shall prove a success, so that the people may enjoy, not only the pleasure of hearing fine phrases, but the advantages of personal benefit in the more systematic and economical administration of their affairs. The economical aspect is no doubt a prosaic one to take of a question like this, but if we wish to secure the good will of the people we must not lose sight of their demand for economy. We remember the great skill and ability shown by the Prime Minister in passing the Constitution through the Convention, and we admire him for his connexion with it. But that does not prevent us from differing from many of the conclusions which he has since enunciated in regard to its provisions. For him to say that those who oppose the immediate creation of a High Court are opposed to the provisions in the Constitution which provide for a High Court is as absurd as to say that those who opposed the Constitution Bill were opposed to federation. Even the Attorney-General has admitted . during this debate that he would like to see the Constitution amended in some points,- and experience has shown that many of its provisions require amendment. When I wanted to know from the Prime Minister if he saw any signs of an interference with our populai. liberties, he dwelt at length upon the fact that the Constitution is the safeguard of our self-governing powers. We all admit that, and we all hope that there will be no infringement of our autonomous rights. But such a statement is of little assistance to us in the consideration of the measure now before the House. The Bill has not been criticised in any party spirit. Lawyers of repute, such as the honorable and learned member for Northern Melbourne, the honorable and learned member for Corinella, who was once a Minister of the Crown in Victoria, and the honorable and learned member for South Australia, Mr. Glynn, have all opposed it. We find, too, that that levelheaded gentleman from the land of cakes, the honorable member for Gippsland, who has no pretensions to any extraordinary knowledge of constitutional law and legal practice, also opposed it, because he does not admit that there is any immediate necessity for the establishment of the High Court. I do not wish to traverse the arguments which have been raised in regard to the mandatory character of the provisions of the Constitution in respect to the establishment of a High Court. I frankly admit that the Constitution is mandatory in that respect, just as it is mandatory in respect to the establishment of a capital. But it rests with the representatives of the people in Parliament assembled to determine the urgency of both these matters. Those who are in charge of the Bill have failed to show that the establishment of a High Court is urgent. If they had shown that the people of any one of the States had voted for the Bill because of its judicial provisions, the establishment of the High Court would be in the same position as the establishment of the Federal capital, and I should feel constrained to vote for the Bill. But they cannot do that. Neither can they say that because the Constitution was accepted by the people, therefore every provision in it must have immediate effect, because matters such as the establishment of the High Court are left to the discretion of Parliament, and each representative is responsible to his electors for the attitude which he takes in regard to them. Personally, I am quite prepared to take the. responsibility of opposing this measure. I think that it would be prudent for tlie AttorneyGeneral to withdraw it, because supporters of the Government, who are grieved in their inmost hearts to oppose them, have declared that they cannot vote for it, while others, who are willing to vote for it, say that it must be seriously amended iri Committee. The Attorney-General did not make his second-reading speech on the Bill introduced last session until nearly a year after its first reading, and then the Government was content, although there had been no expression of hostility on the part of the House, to withdraw it altogether. Now it has been brought before us again, and due publicity has been” given to its provisions, both by the press and by ‘ the members of this House, and the honorable and learned gentleman lias reason to believe, from the criticism which has been directed at it, that he cannot pass it in any but a mutilated condition, with provisions which he has admitted will not do what he requires. Now that honorable members have been relieved from party ties, I ask them to consider this question fairly and squarely. Who are the three strongest advocates of this measure ? First we have tlie AttorneyGeneral, who introduced the Bill secondly, the Prime Minister ; and thirdly, the honorable and learned member for Indi. The Prime Minister was bound to defend the measure, but he qualified his support by sal,lng that there were two or three provisions in the Bill that might require some alteration in Committee. The AttorneyGeneral, on the other hand, told us that any attempt to deprive the High Court of any of the powers proposed to be conferred upon it, would be attended by the most unfortunate results. The honorable and learned member for Indi delivered a very able speech, but he traversed much ground over which I am not prepared to follow him. He especially impressed upon us the solemnity of the undertaking in which we were now engaged, but I think we may dismiss any consideration of that kind in view of the more practical issues with which we find ourselves face to face. The Government evidently anticipate that they will have a very hard struggle before they are able to pass the Bill into law. It is apparent from the tone of the debate that the Bill will simply squeeze through, and that some honorable members will be prompted to support it only by their attachment to the Prime Minister, by their affection for the Attorney-General, or by their unswerving party loyalty. It is not right that party considerations or motives of personal friendship should sway honorable members in a matter of this kind. Under all the circumstances, and in view of the prospect of the measure being very considerably mutilated, I ask the Attorney-General whether he will be prepared to accept it in a radically amended form ?
– I will answer that question in detail when the Bill is in Committee.
– I am not content to wait until that stage is reached, and I shall , record my vote against the second, reading. We have been told that we require a High Court, the members of which have had parliamentary experience, and we may reason ably infer from this that the first appointments to the Court will be of a purely political character. This will not specially recommend the proposal to the public, because most people will find it difficult to see any reason why the. High Court should necessarily be constituted of those who have had a hand in the framing of the Constitution. There is not the slightest justification for the slurs which have been cast upon the Supreme Courts of the States. If there is anything of which Australia has reason to feel proud, it is the purity of its Judiciary, and the integrity and ability of its Judges. It is desirable that we should have the Constitution guarded in every way, but Parliament should not surrender its powers to any Bench of Judges, however lofty or able they might be. Although the people are no doubt very much attached to their leading politicians, there is no reason why they should be called upon to provide a refuge for them by creating a High Court for which no need exists. It has been conceded by the honorable and learned member for Indi, that there is no occasion to give the High Court such jurisdiction as will cause it to trench upon the business properly belonging to the States Courts. He also said that there was no need for any distrust of, or want of confidence in, the States Courts. The Prime Minister, on the other hand, told us that he wished to have questions relating to the interpretation of the Constitution removed from the purely provincial atmosphere of those Courts. He also stated that there was a practical necessity for the High Court, but he did not establish his proposition. Only twenty appeal cases have occurred in all the States since the establishment of the Commonwealth, and this in spite of the fact that we might have expected a very large proportion of cases to arise out of the administration of the new Customs Act, which has caused such a large amount of irritation amongst members of the mercantile community. I do not see how there can be any large volume of important business to engage the attention of the High Court, and yet we are told that it is proposed to appoint five Judges, and that it may be necessary later on to increase this number. Some honorable members have declared that unless the jurisdiction of the Court is to be very much restricted, it will be necessary to appoint more than five Judges immediately, and, if so, the estimate which has been given by the Attorney-General will prove altogether insufficient. It has been represented by the advocates of the Bill, that according to the Constitution it is imperative that the High Court should be established without delay. If, however, it is imperative now, -it must have been equally so when the Bill was abandoned last session. I do not realize any of the dangers which the Prime Minister apparently apprehends, and I resent the attitude which he has assumed towards all those who have criticised the measure, because he apparently regards them as political brigands who are engaged in an attempt to destroy the Constitution. The great majority of the people who do not revel in the luxuries of litigation in High Courts or elsewhere will be hard to convince that we are working upon the proper lines in establishing’ the Federal Judiciary at this stage. This is no time to indulge in sentiment, especially in view of the demand made by the people that every economy shall be exercised. The Attorney-General has attempted to show us that if we establish the Federal Judiciary the States Governments will be able to economize by reducing the cost of the administration of justice within their borders, but on the other hand the Prime Minister says that there are not enough Judges in New South Wales, and that ‘we cannot therefore expect the Federal business to be transacted by the State ‘ Courts there. To urge that because this Parliament enacts certain legislation the Governments of the States will exercise economy is ridiculous.
The Attorney-General has declared that the High Court will attract a lot of business ; but, as has been pointed out, the citizens of the Commonwealth will still avail themselves of their right to appeal to the Privy Council. Viewing the matter from every stand-point, I am thoroughly satisfied that the Government would be acting wisely in withdrawing the Bill. I would further point’ out - because it is right that the country should be informed of the fact - that this measure has been “whipped” for in this House as no other Bill has been. Even in the discussions upon tlie Tariff the same degree of pressure was not brought to bear upon supporters of the Government that has been exercised upon the present occasion. Apparently the days of scientific whipping have passed, and to-night we behold a Minister passing in and out of the Chamber openly appealing to members to support the Bill. 1 think that the honorable and learned member for Werriwa did well to remind the House that the . honorable member for West Sydney, who by the way has recently qualified himself for practice at the Bar, is a vigorous opponent of this measure. He is fully seized of the fact that the bulk of our constituents will never come before the tribunal which it is now sought to establish. The masses will have no occasion to use the Court. They are simply to be called upon to pay for it. ‘ We have been told that the leaders of the three parties in this House are in favour of the measure. That, however, is their concern as representatives, seeing that they have to justify their position before’ the electors. If other honorable members are sufficiently independent to oppose the Bill, I think it is proof to the people of Australia that the Commonwealth Parliament occupies a higher plane than has been suspected. I have no desire to pursue this matter further. It is refreshing to find the old fiction - that lawyers are always intent upon extracting money from the pockets of the people - has been falsified upon this occasion. We all know that the more Courts that are created the more practice there will be for the legal profession. It is therefore doubly refreshing to find the members of that profession vigorously opposing this measure in the public interest. Is tlie suggestion to be entertained for a moment that these gentlemen, who are so well versed in legal practice, do not understand the matter about which they are talking, and are we to 3 g refuse to be directed by them upon the assumption that they are actuated by a miserable and unworthy motive? I think not. I must oppose the second reading of the Bill.
– We have now reached the third night of this debate, and therefore it is not my intention to go into details or to attempt, with any elaboration, to discuss the matter now under consideration. This has been so well done by the Attorney-General and the Supporters of the Bill on one side, and by the honorable and learned member for South Australia, Mr. Glynn, and the opponents of the measure on the other, that anything of the kind is quite unnecessary. My object in rising is to make the statement that I intend to support the second reading, but that I reserve to myself the right, to vote for any amendments I may think desirable when the Bill is in Committee.. During the course of the debate on theaddress in reply, the Attorney-General undertook to show that the cost of the establishment of the High Court would be counterbalanced by economies that could be effected in the law establishments of the different States. But I think he has failed to sustain his position. He points to the fact that there is now one Judge less in Victoria than formerly. That reduction has not been made in view of tlie creation of the High Court, but because the spirit of economy is abroad. The hopes of the Attorney-General in this particular wilt not be realized at present. Something may be done when pleasanter relations have* been established between the Commonwealth and the various States. I am in>agreement with those honorable members who - think the High Court is essential to the completion of the Constitution as contemplated by the Commonwealth Act. I know that the people of South Australia voted; for the measure with tlie knowledge that the machinery of the Federation included the High Court, and they were repeatedlytold that this Court was needed in the* interests of the less populous States. I agree with the Prime Minister and the honorable and learned member for Indi that no satisfactory arrangement could be made to utilize the services of the Chief Justices of the States Courts. I can see that any arrangement of the kind would be surrounded by difficulties, and I am not sure that in the end it would have economy to recommend it. - Whilst I say this I have riot the faintest intention of reflecting on the States Judicatures. From them a Bench could be created of the highest ability and the most absolute integrity - a Bench that would contain members who would compare in legal knowledge and breadth of view with the famous American Judges whose names have been quoted. In view of all the circumstances, I think it will be wise to call into existence an independent tribunal. I say this, but I express the hope that such a tribunal will be established on the most economical lines possible.
– After the very able and eloquent addresses which have been delivered upon this question, I do not propose to deal with it at length. There are, however, one or two phases which appeal to me, and impel me to publicly avow my attitude towards this Bill. It has been insinuated by the Prime Minister that those Victorian representatives who oppose the measure take their views from the morning newspapers.
– The Prime Minister said they might mistake the morning newspapers for public opinion.
– The insinuation was there all the same, and on that account I propose to say a few words upon the attitude which I take up. The Prime Minister commenced his speech this afternoon by declaring that he had formulated four propositions which he intended to establish. The first of these had reference to the mandate embodied in the Constitution for the creation of the High Court forthwith. To the second and third propositions I do not propose to refer. To me the fourth proposition seemed to be the most essential. But after getting into the clouds for a considerable time, where I could not follow him, the right honorable gentleman, in dealing with that proposition, got down to solid earth- again without assigning the slightest reason for the creation of the proposed tribunal at the present time. He simply appealed to the sentiments and aspirations of the Australian people. I am not going to say that the national life of Australia is not influenced to a very appreciable extent by sentiment. The right honorable gentleman told us also that the Constitution had the imprimatur of the people of Australia as a whole - that their representatives in the Convention had framed it, and that the electors had subsequently adopted it. I ventured to remark, by way of interjection, that it was not the whole of the principles embodied in. the Constitution which induced the people of Australia to accept it, but rather its good qualities. In Victoria, I know that considerable difference of opinion arose regarding the respective merits of the provisions of the Commonwealth Bill. It was during my advocacy of the acceptance of that Bill that my attention was directed particularly to the clauses under which it is now proposed to constitute the High Court. I might refer to the different conditions that existed when those machinery clauses were inserted as compared with the conditions which obtain to-day. My attention was particularly directed to the matter last night when the honorable and learned member for Illawarra quoted from the reports of the Convention debates certain remarks made by the honorable and learned member for Northern Melbourne with the view of showing that his opposition to the Bill was inconsistent with the attitude taken up by him at the Adelaide Convention. I pointed out at the time that the position was altogether different. What was the position then 1 The Convention Bill, as drafted at Adelaide, made provision for a Commonwealth Judiciary that would have satisfied the aspirations and ambitions of the people of Australia. Under those provisions it would have been possible to create an Australian Court of Appeal to determine all Australian matters without encroaching upon the prerogative of the Crown to deal with questions of an international character. At the Adelaide Convention, power was taken for the High Court to deal, not only with appeals involving constitutional or Inter-State questions, but with all appeals from the Supreme Courts of the States, and the honorable and learned member for Northern Melbourne was speaking of the Constitution as it then stood, when he then supported the creation of the High Court. In the draft of the Constitution agreed to at the Adelaide Convention, it was provided, under clause 74, that -
No appeal shall be allowed to the Queen in Council from a-ny Court of an3’ State, or from the High Court, or any other Federal Court except that the Queen ma3’ in any matter in which the public interests of the Commonwealth, or of any State, or of an3’ other part of Her Dominions, ave concerned, grant leave to appeal to the Queen in Council from the High Court.
We are told by the Prime Minister that it was the Imperial Parliament that whittled clown that provision. Nothing of the sort. The Convention, in the first instance, whittled away the whole of the rights of appeal to the High Court in respect of all matters coming within the purview of the States Courts, and decided that they should remain as they were. That fact is clearly shown in the memorandum that was submitted by the delegates sent to England to confer with the Imperial authorities when the Constitution Bill was before the British Parliament. In that memorandum it is set forth that the Constitution, as submitted to Imperial Parliament, provided that -
No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State unless the public interest of some part of Her Majesty’s Dominions otherwise than the Commonwealth or a State are involved.
Except as provided in this section this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of HerRoyal prerogative to grant special leave to appeal from the High Court to Her Majesty in Council.
Then the memorandum set forth that -
It does not abolish appeals to the Queen in Council with respect to State Courts, and as there is no enactment elsewhere that appeals from them are to cease, the prerogative remains, and the appellant may take his case either to the High Court or to the Privy Council. But when, and only when, he goes to the High Court in one of the limited class of cases set forth in the first part of clause 74, he must abide by the decision of that Court.
That proves beyond a shadow of doubt that the anxiety which existed for the creation of the High Court according to the Adelaide draft of the Convention Bill - to which the members had given their adherence, had entirely disappeared. The position was entirely different when the Constitution Bill was submitted to the Imperial Parliament. When it was ratified by the Imperial Parliament the powers of the prospective High Court were still further whittled away, and further powers of appeal to the Privy Council were given. We are told that the desire f or thecreation of this Court wasuppermost in the minds of the people when they accepted the Constitution. I admit that it was then the wish of the great majority of the people of Australia that we should have a High Court, provided that the conditions to which the Adelaide Convention had given its support remained. But they do not remain, and therefore the necessity for the creation of the High Court does not now exist to the same extent as before. That view was very much in evidence when I, in common with others, was urging the people of Victoria to accept the Constitution as it then stood, and it was also a prominent one during the first Federal election campaign. I found then that the electors were anxious to know whether it was desirable under the conditions then prevailing to create a High Court. What have we been told by the Prime Minister as to the necessity of establishing this tribunal? We have been told that it may be that the reputation which the Court will make for itself by its learned judgments will attract business to it. But is there any necessity to create a High Court in order that it may make a reputation for itself? The necessity exists only if there is work for the Court to do. Those who have spoken during this debate have not questioned the ability of the States Courts to deal with the matters submitted to them. There can be no bias on the part of those tribunals, and as a matter of fact the few Federal matters with which our States Courts have dealt bear no evidence of any such bias. I quite agree that it is practically impossible for us to requisition the services of the Chief Justices of the several States, and to place them in the position of being the Judges of the High Court.
– That proposition has never been made.
– It has been suggested.
– I do not think that it has been seriously suggested during this debate. We have a power to create a High Court and other Federal Courts, but I hold that we shall satisfy our presentrequirements by exercising the right to invest the superior States Courts which now exist with Federal jurisdiction ; we have the harmonizing power of the Privy Council to reconcile any conflicting judgments which may arise. That is the view I take of the situation, and I am very much surprised that the Prime Minister did not submit to the House some evidence of what is said to be the absolute necessity for the immediate creation of this Court. Those who oppose this measure may be accused of looking at the matter from a mercenary point of view ; but I contend that we should at least regard it from a practical” stand-point. Even the AttorneyGeneral urged that the High Court was proposed to be established from motives of economy, but we know that this miniature Court of Appeal, as we may term it, will not meet the necessities of the situation. If the provisions for a Judiciary which were first laid down in the Constitution Bill still remained, I should not hesitate to support to the full the creation of the Court as proposed in this measure. But I am dealing with the situation as it exists, and I do not therefore feel justified in supporting it. I feel that our States Courts, with the Privy Council as a Court of Appeal, will be able to deal with all matters which are likely to arise for a very considerable time. I have heard honorable members say in this House - just as I have heard the statement made in other Legislatures - that they will support the second reading of a certain Bill, and attempt to mould it according to their views in Committee. I have had some experience of what is possible in that direction, and I consider it desirable for one to take the first opportunity of fighting against a principle to which he is opposed, rather than to run any risk of the combinations or many little influences which may subsequently be at work. It is that “experience which will impel me to vote against the second reading of this Bill.
– I feel it my duty to say a few words in regard to this Bill from a layman’s point of view, and to urge reasons for the vote which I am about to give against the motion for the second reading. I speak upon a subject of this kind with the greatest diffidence. Everything has been said in favour of the Bill that could be said for it by the three honorable and learned gentlemen who have been the principal speakers in support of it. We have listened to-night to a very brilliant speech by ‘the Prime Minister, who dealt with the whole range of the Bill, but who, I contend, did not traverse the whole ground opened up by this debate. The speech was conspicuous for what it evaded as well as for what it proposed. Last night another brilliant speech was delivered by the honorable and learned member for Indi, but it was marred, I venture to say, by a very unfortunate sneer at the Privy Council. I was surprised to hear an honorable and learned member of his ability so obviously sneering at a High Court such as the Privy Council undoubtedly is.
– Not at the Court, but at some of its members.
– The honorable and “learned member for Indi said, with a most contemptuous shrug of his shoulders - “You can get, well - the decision of the Privy Council.” No doubt the honorable and learned member’s experience of that tribunal is unfortunate. We all know that some time ago he went to England to conduct a very important case before the Privy Council. Doubtless he then met one of those “ scratch courts “ which he condemns sp roundly, and he came back having lost his case. In these circumstances he very naturally will not have a high appreciation of a court whose judgment had such serious consequences for him.
– The honorable and learned member has won far more appeals than he has lost.
– That may be, but 1 think there are very few legal men in Australia who would use the language concerning the Privy Council which he employed last night. It was most unfortunate ; it was quite gratuitous and unnecesary. I should like to put in opposition to his opinion of the Privy Council the opinions of some of the admittedly best lawyers in Australia - men like Sir Julian Salomons, Mr. Pilcher, and Mr. Want, who have no political ambitions to serve, and who unhesitatingly declare the Privy Council to be the finest law court in the world. I think that their opinion should have as much weight as the oracular utterances of the honorable and learned member for Indi. But, notwithstanding that blot on his speech, it was a brilliant attempt to say all that could be said in favour of the immediate establishment of the High Court. Hie Prime Minister told us, in quite a pleasant manner at times, that it was most unseemly for the opponents of the Bill to ask for dejar, and that it was an offence against the dignity of the people who sent us here, having accepted the Constitution by referendum. He impliedly stated that it was a misuse of our position and a betrayal of our trust to vote against the Bill. He further described the arguments put forward by the opponents of the measure as miserable. But in spite of these unnecessary aspersions upon his opponents, he made a brilliant speech. In my opinion, however, it is the duty of those who believe that the Commonwealth should be governed upon economic lines to vote against the second reading. I want, in the first place, to protest as strongly as I am able against the rigid and plenary and technical reading of the
Constitutionwhich has been adopted by both the Prime Minister and the honorable and learned member for Indi. They have gone the length of saying that the whole necessity for the measure rests upon the meaning of one word in the Constitution. The Prime Minister objected over and over again to any reading of that kind when he was trying to get the Constitution Bill adopted by the people. Whenever an opponent suggested that a technical reading of the measure would be used to create difficulties in connexion with the amendment of the Constitution, and in defining the respective powers of the two Houses, he invariably met the objection by the statement that the Constitution would be administered by men of common sense, who would not act upon any technical reading of its provisions. Now, however, when he wants to get this J udiciary Bill passed at all hazards, he tells us that everything depends upon the meaning of one word. It is a pity, if he knew that the provision upon which he relies is of such extreme importance, that he did not dilate upon the subject before the Constitution was accepted by the people. He argues now that the people knew exactly what it contained, and have expressed their unqualified approval of every line and every comma in it. Under other circumstances, however, he would be the first to protest against the rigid and unfair reading which he wants us to adopt. It is a very large assumption to say that the people understood the shade of meaning attaching to every word and to the placing of every comma in the Constitution which they accepted. I, for one, made no pretence of understanding it so thoroughly, and I venture to say that no honorable member in this Chamber would declare himself able to do so.
– The honorable member knew that the Constitution contemplated the establishment of a High Court.
– Of course, I knew that. The people, however, believed the statement of the Prime Minister that there would be no technical straining of the Constitution, and that it would be administered on common-sense lines, with a view to securing their interests and welfare. No doubt the Constitution is a sacred instrument, whose aims and whose spirit are to be observed ; but there is yet a higher law, namely, the good and welfare of the people, in obedience to which
I am opposing the Bill for the present, and that is the law which necessitates careful and economic administration. I agree with the Prime Minister that the High Court must be created as soon as the exigencies of the situation will permit. But that is a very different statement from the position of the honorable and learned member for Indi, who said that this is not a question of cost or convenience, but of what is right. He told us that it would be immoral, in view of the mandate of the people, to postpone the creation of the Court. But I shall have something to say upon that point a little later. The Prime Minister told us that though we did not get all we wanted in the Constitution, we should make the best of what we have. I have no quarrel with him there. But the question is, what is making the best of the Constitution? From my point of view, it is to postpone the creation of the High Court until a more opportune time. No doubt, it is the right thing to create the High Court, but I would remind honorablegentlemen of the statement in a certain old book, that while all things may be lawful, all things are not expedient. The view I take is that it is not expedient to create a High Court at the present time. The immediate necessity for a High Court has not been made apparent, and until the people have become accustomed to the new condition of things, and can afford the expense of working the Constitution at its ultimate points, it is the highest wisdom to postpone this matter. Honorable members who have supported the Bill have argued the case entirely from the lawyer’s stand-point. Everyauthority they have quoted has been a lawyer. No layman has been quoted as to the beneficent results which have accrued from the strict reading of the American Constitution. Mr. Justice Story, who may or may not be the best judge of the practical relations of the people of America to the Constitution, has been quoted as the authority for determining what is mandatory and what is not mandatory in the instrument. I believe that that Judge interpreted the Constitution nearly 30 years after its acceptance.
– That was the first time the question arose.
– But the Constitution of America worked very well for 30 years, and no ill consequences befell the people of that country for want of this interpretation.
– They had their Supreme Court during the whole period.
– Was the state: ment of Mr. Justice Story a mere academic performance ?
– He dealt with the point on the first occasion it was raised.
– Then I suggest that no ill consequences will befall Australia if we do not raise the point now. We can confer Federal jurisdiction upon the States Courts, which makes our position essentially different from that of the United States. The people of Australia were not told that the High Court would be established immediately upon the acceptance of federation, and the strained and technical interpretation which has been given to the Constitution is in contradiction to the common-sense administration which was promised to the people. We are told that if we do not vote for the Bill we may be visited with severe penalties. That is the threat which the Prime Minister holds over us. I am prepared to face any consequences which mayfollow my action in voting against the Bill. The matter is one which concerns only myself and my constituents, because I am not aware that any other power can visit punishment upon us for daring to do what we believe to be in the interests of the people.
– The ill consequences that are feared would befall the people, not necessarily their representatives.
– Some of us who are opposing the Bill have only recently been before our constituents. I told my electors quite lately that I should vote against the Bill unless it was made clear to me that the cost of establishing the High Court would be very small indeed. The Attorney-General spoke in all for nearly seven hours in advocacy of the provisions of the Bill, and I believe that if he had spoken for seventeen hours we should not have thought his speech too long. But I am afraid that his beautiful words do not carry conviction. He pictured to us what he termed an interesting coincidence when he told us that we were now proposing to take advantage of the third power conveyed in the Constitution and are in the third year of our federal life.- What argument is to be based upon those facts, except one which reflects severely upon Ministers for their nonadherence to their stated convictions, I do not know. If they believed that there is a pressing and imperative mandate for the establishment of a High Court, they have been guilty of the gravest political immorality in postponing it so long. They tell us that they could not deal with the matter sooner. But I shall have a few words to say upon that subject presently. Both the Attorney-General and the Prime Minister have pictured the Constitution as standing upon two legs, and requiring a third leg to prevent it from tottering to its fall. Yet they have been prepared to let it totter until their immediate political necessities could be attended to. What were those necessities ? Was it a necessity that we should at once proceed to impose a protective Tariff? It was, I admit, a provision of the Constitution that a uniform Tariff should be imposed within two years, but that could have been accomplished in a month. Acknowledging the urgent need for the establishment of a High Court, because the liberties of the people were in danger, and millions of money were at stake, the Government deliberately postponed its establishment until they could force a protective Tariff through both Houses of Parliament. Why did they not rather say to Parliament - “ Help us to pass an interim Tariff, which may be done in a fortnight or a month, so that we may prop up the Constitution, and provide for its sound working ?” But they did nothing of the kind. They were prepared to allow the Constitution to totter to its’ fall, in order to take advantage of the opportunity to make their own political calling and election sure. He says that the Government did not proceed with tlie Bill last session be’cause they had no reasonable hope of passing it. So that we have the spectacle of the Ministry coming down to the House, and saying - “ We believe there is a mandate from the people for the immediate institution of this High Court. We believe, further, that serious consequences will ensue if this Court is not established, and that millions of money may be involved.” Then, on being reminded of their previous abandonment of the measure, they explain - “We did not press the Bill last session, because we thought that the House would not pass it.” This is a view of Ministerial responsibility which, fortunate! y, is not often taken by those who hold the reins of government. The Constitution has apparently been allowed to stand aside, whilst the necessities of office have been attended to. Now, however, that all has been made secure by the passing of the Tariff, and by the enactment of other legislation, Ministers feel themselves in a position to venture forth and to pay some regard to the Constitution.- The question we have to consider is not whether it is technically right that the High Court should be established. I am quite prepared to subscribe to that reading of the Constitution, but I am not prepared to agree that the Court should be created just now. I do not believe that any harm will come to the Constitution, or that any serious consequences will be visited upon the people if we postpone action in this matter. We can give our States Courts jurisdiction beyond that which they already possess, and we can . still rely upon the Privy Council as a court of appeal. Supposing that some case involving millions of money to the people of Australia were decided in an unsatisfactory manner in one of the States Courts, we should have the right to appeal to the Privy Council ; and I venture to say that that body would read the Constitution as sympathetically, and with as much regard for our aspirations, as would the High Court which it is proposed to establish. We are told that we require to have our Constitution interpreted by Judges amidst Australian surroundings. On the other hand, it is alleged that the States Courts cannot be relied upon to decide Federal questions because of their local knowledge and local prejudices. Which is the right view to take? Is it right that our laws should be interpreted in the light of local knowledge and circumstances, or that they should be construed’ apart from any such influences? If the former proposition is to hold good, why cannot Judges of the States Courts do our work quite as efficiently as would those of the proposed High Court 1 On the other hand, why should we not place as full reliance upon the Privy Council, as in a Federal Court, which will be probably less free from the operation of local influences. In order to secure the passage of the Bill, the Government and those who are supporting the measure, profess to be eager to get rid of the Privy Council, because it is too far removed from local influences ; then on the other hand the States Courts are incompetent to do Federal work because of them.
But it seems to me that in this connexion we have heard a number of inconsistent utterances. It has been urged, as an argument against vesting the Chief Justices of the States with Federal jurisdiction, that a Judge cannot serve two masters. That is a nice sentiment to come from a legal luminary who has been described by the AttorneyGeneral as a “ legal lynx.” I was under the impression that a Judge should not serve any master but the law which he has to construe and administer. ‘ We pay our Judges high salaries and make them absolutely independent so that they shall have no master, and if they are independent in relation to their ordinary occupation, why should they be less so when they are called upon to perform the higher and more important duty of interpreting our Federal Constitution. The Attorney-General, devoted a good deal of attention to the question of the expense that will be involved in the establishment of the High Court, but it is only fair to the Prime Minister, and the honorable and learned member for Indi, to say that they snap their fingers at all considerations of cost. They ask - “Is it right that the High Court should be established 1” and having answered that question in the affirmative they say - “ It must be created, and that immediately.” The Attorney-General said he was going to prove that economy would be served by the establishment of the High Court, but he entirely confounded himself when he started to quote precedents. Every precedent mentioned by the Attorney-General showed that the administration of the law was very costly. In New South Wales, the Supreme Court involves an expense of £79,000 per annum, and in Victoria £43,000 per annum, whilst the total cost of administering justice throughout the Commonwealth, including the police, is stated to be £1,750,000 per annum. Yet the Attorney-General tried to persuade us that the High Court would prove comparatively inexpensive, whereas we have every reason to suppose that it will be equally costly with the Courts which are maintained in the various States. There are S2 pages of printed matter in the High Court Procedure Bill dealing with matters of procedure, and I am perfectly sure that the Federal Judiciary will involve an outlay very much in excess of the amount named by the AttorneyGeneral. The area to be covered is much wider than that of any State Supreme Court, and this must have a great influence upon the cost of administration. If the High Court Judges are to travel over this continent to dispense justice to the people in every State, heavy expense must be incurred. In just such degree as we decrease the cost of litigation to tlie public we shall add to the outlay upon the Federal Judiciary. Either we must take the Judges to the witnesses, or bring the witnesses over the continent to the Judges, and I am entirely at a loss to understand how the Attorney-General makes up his estimate. The Attorney-General has stated that for tlie purposes of the Federal J udiciary, we shall be able to obtain the use of State buildings ; but I should imagine that his experience would lead him to quite a contrary conclusion. In every case in which we require to use State buildings, the State Governments very rightly expect us to pay a fair rental. In Sydney I know that constant complaints have been made that there is not sufficient accommodation for those who are engaged upon the affairs of the State, and I am sure that no State building in that city will be available for the accommodation of the Federal Judiciary. This will tend to increase the cost of the proposed new Department. Considerations of expense, however, would not weigh with me if we had no alternative method of administering justice with satisfaction to the people* I believe that if we clothe our States Courts with the necessary power to deal with cases involving Federal questions and preserve our right to appeal to the Privy Council, we shall act for the benefit of tlie general community, and shall find it unnecessary to establish a High Court for a few years. We are told by the Prime Minister that anybody who talks about finance in connexion with the establishment of this Court is a “miserable” individual, but I venture to say that the question of finance will have to be faced by the Government very resolutely in the near future. The payment of the sugar bonus alone will cost the Commonwealth £350,000 a year, an additional £75,000 annually must be added for the maintenance of this Court, whilst the Inter-State Commission, if created, will cost still another £10,000 annually. Then the expense connected with tlie office of High Commissioner in London will probably represent another £10,000. It is high time, therefore, that we considered this matter of finance, quite regardless of whether, for so doing, we are dubbed. “ miserable individuals “ by the Prime Minister. By that means we shall make the people more contented with the Federation into which they have entered. I openly confess that the time will come when a High Court will be needed. That time, however, is not yet. Questions may arise connected with the riparian rights of the different States, and the Inter-State Commission, but that tribunal has not yet been created. When we have overcome tlie troubles incidental to the birth throes of our Federal Constitution it will be quite time enough for us to consider the creation of the High Court. That, I submit, is not political immorality ; it is simple political expediency. We ought to consider the Constitution from a practical stand-point rather than to strain it in the direction of setting up every arm and attribute which it may eventually require.
– I rise to support the Bill in its present form. Unfortunately I have not had the privilege of hearing the speeches which were delivered upon it during the two preceding days, but upon listening to the debate this afternoon, I was struck with the fact that history is repeating itself. One might almost imagine that he was hearing a repetition of the arguments which were advanced at the time of the establishment of the Dominion Court of Canada. The same reasons which are being advanced now were brought forward in that case. It was urged by some that there was no need for the creation of that tribunal, as no important constitutional questions had arisen. Others again contended that the States Courts of the Dominion had done magnificently, and that it could well afford to defer the establishment of the High Court. The argument as to the great cost that would be involved in carrying out the provisions of the Constitution was also advanced.
– The arguments turned out to be well founded in the case of Canada.
– I am glad that the Dominion of Canada saw fit to establish its High Court. That Court has grown in power, dignity, and influence.
– No one doubts that the Australian Court will grow, if it is once given a start.
– Its growth will be a reflex of the growth of the liberties of the Australian people. I believe it is absolutely imperative, under the terms of the Constitution, that we should establish this Court. It has been said that the Prime Minister has endeavoured to play upon the use of the word “ shall “ in our Constitution. But I would point out that that word emphasizes the commands of our people. We have to look at the whole of the terms of our Constitution, and having done so, to ask ourselves what is the plan that was put before the people. But we are told that no elaborate argument was employed upon the platform in reference to the use of the word “ shall.” Yet the honorable member who urged that, admits he was aware that the creation of the High Court was part of the Federal scheme. I would further say - as was pointed out by the honorable member for South Australia, Sir Langdon Bonython - that the less populous States were assured that they could enter the Federal Union with perfect safety, because their rights would be protected by the High Court, which would be established to interpret the Constitution. That was the very basis of the Federal scheme. It was an attempt to reconcile the national and States rights. Even at the present time it is being urged that this Parliament is endeavouring to use powers which, under the Constitution, it does not possess. We are told that many of our statutes contain provisions which are absolutely contrary to the Constitution, anditis alleged that we are delaying the establishment of the High Court, simply because we desire to arrogate to ourselves powers which we have no right to exercise.
– We have a tribunal to which we can go now.
– I will deal with that matter presently. In the smaller States complaints are being made that the Constitution is being violated, and that there is no tribunal in existence to decide the point. What tribunal is there to decide upon the validity of the Electoral Act, or upon the question of the right of an individual who has been refused the registration of his vote? In such circumstances he would require to obtain a mandamus to compel the electoral officer to put his name on the roll. Upon one of the most important powers which the citizens possess, namely, that of the exercise of the franchise, there is no legal tribunal in
Australia which can compel any officer to the performance of his duty. Therefore we should have some such tribunal constituted. We know that it is the. duty of the High Court to interpret our Constitution fairly, and that the Supreme Court of the United States has equitably held the balance as between the States and the national powers. At the same time, where a reasonable construction justified it, it has not hesitated to give to the national Parliament all those powers which are absolutely necessary to the proper discharge of its functions. The Constitution itself is a mere sheet of paper. The value of the American Constitution lies in the fact that, notwithstanding the varying circumstances which the people had to face, it was able to adapt itself to their conditions. But what is the living voice of their Constitution ? Undoubtedly it is the Supreme Court. I say that in the Commonwealth we have need for a similar institution. Honorable members have not denied that the Constitution contains clauses which direct that the judicial power shall be vested in somebody.
– For the time being.
– It is recognised that the Commonwealth has legislative, executive, and judicial functions. We are told that there is no mandate that the judicial powers shall be vested in the High Court. In this connexion I wish to refer to one high authority, namely, the honorable and learned member for Bendigo, who, in his speech upon the Inter-State Commission Bill, interpreted the words of section 101 -
There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary, &c. , as constituting a mandate for the establishment of that tribunal. I cannot understand why he cannot see that the same reasoning which is applicable to that Commission is also applicable to the High Court itself. We are told by some honorable members that, because no time limitation is imposed under the Constitution, Parliament can indefinitely postpone the creation of a High Court. I say that the only interpretation which can be placed upon the fact that no limitation as to time has been imposed is that which has been put upon it by the Prime Minister. He used the words “ political exigencies,” and declared that, under the Constitution, so soon as matters such as the Tariff had been dealt with, Parliament was bound to fulfil the whole Federal scheme. Others again urge that there is no necessity for the creation of the High Court, because the States Courts could be made to fulfil all its duties. The honorable member for Parramatta has said that, up to the present time, no important constitutional questions have arisen, quite oblivious of the fact that there have been cases connected with the power of the Commonwealth to tax State property, and with the right of a State Government to tax the incomes of Federal officers. The important principle underlying the latter question is, as was pointed out during the course of the arguments used by counsel, that the power to tax implies the power to destroy. The same principle applies to the Federal Parliament. The power to tax State incomes would also imply a power practically to destroy State agencies. It strikes at the very foundation of our powers and privileges, and surely it is a most important constitutional question. What more important constitutional question could we have than that of breaking Federal Customs seals on ships upon the high seas. That matter has been decided by the Victorian Full Court. It has been held by that Court that in such circumstances the breaking of the Federal Customs seals on board a British vessel is an infringment of the law, and renders the master of the vessel liable to be fined. In New South Wales it was decided by the State Court that the master of a foreign vessel coming into port with broken seals was liable to be fined for this offence. These ave very important constitutional matters. In the one case it was held that the Commonwealth had power practically to fine a person who was not a British subject for a breach of the Commonwealth laws, while in the other it was held that a fine could be inflicted upon a man who, while being a British subject, was not domiciled here. There are many other important cases which might be cited. Take the case which occurred in Western Australiaa few days ago. The Punishment of Offences Act says that the judicial powers of the Commonwealth in regard to inferior courts shall be exercised only by a stipendiary, a special, or a police magistrate. And yet in Western Australia two justices of the peace convicted a certain person, and a Supreme Court Judge there held that he had no jurisdiction to entertain an appeal from that decision. We are told that there is no necessity for this Court, but I am showing that many important constitutional questions are coming up for decision, and that in order that we may have these matters satisfactorily determined, it is absolutely essential that we should at once constitute one of the very best tribunals that we can obtain. We are told now that the States Courts are doing magnificent work, and that we, as a Commonwealth, might very well agree to accept their decisions. But some of them are not wholly satisfactory. Even if a decision suited the Commonwealth it might not suit the individual on the other side.
– There will always be one party who is not suited.
– Exactly. I am only showing that these constitutional questions are coming up for decision from time to time, and that tlie States Courts are being called upon to determine them. A most unsatisfactory feature of the present position is that even when a vital constitutional question is settled in the Supreme Court of one of the States, there is no guarantee that it will be binding upon the Commonwealth as a whole. The decision of a State Court is binding only in the State in which it is given. I know from experience that lawyers who are in practice in one State are unable to regard a decision given in another State with any degree of certainty, and cannot advise their clients to take action upon that determination. They feel that the Court of Queensland is not bound by the decision of the Supreme Court of New South Wales, nor is the latter Court bound by the decision of the Queensland tribunal. Thus, if we are to utilize our States Courts as we have been doing, we shall require to have the same question raised in each State in order to secure uniformity, or else have the matter determined by some action taken on appeal to the Privy Council. We know, however, that under tlie procedure adopted in some of the States Courts, those tribunals are courts of final appeal. For instance, we have been told that the decision given by Chief: Justice Madden affecting the validity of tlie Customs Act was final. It was only when a subsequent case involving the same point arose, and was referred to the Full Court, that tlie decision given by the Chief Justice was overruled. If we desire to secure uniformity of decision, it is absolutely necessary that we should establish the High Court. We have been told that we can constitute a sort of floating’ court of Chief Justices. That, however, is not the scheme contemplated by the Constitution.
– It would do for the present.
– No; because such a Court would be unconstitutional.
– No one seriously proposes it
– I am glad to hear that the proposal has been withdrawn. It was suggested by the honorable and learned member for South Australia, Mr. Glynn. It has been put forward, however, by the Premier of Queensland, who says that such a Court should be constituted.
– He has not a vote in this House.
– That is true ; but lie holds an important position in the community, and with perfect honesty, no doubt, he is endeavouring to influence public opinion on the subject. He has voiced that suggestion, which has been freely discussed by the public, and it is right that we should have the matter settled, so that we may know where we stand. If the suggestion is wrong, let us give reasons in this House for our opposition to it. I did not hear the speech delivered last night by the honorable and learned member for Indi, but I have come to the same conclusion as he has, that if we are going to constitute a Court, we must carry out the provisions of the Constitution, which have been enacted for the due administration of justice. The Constitution provides for the appointment of Judges with a certain tenure of office. They are to be removable only in a certain way, and are to be paid out of the funds of the Commonwealth. Could we apply those conditions to a floating court of Chief Justices, or create a court of appeal which would not be the High Court? Such a thing is not contemplated by the Constitution. The Constitution contemplates the High Court itself as the court of appeal. If we establish the High Court, as I hope we shall, we should constitute it in a way that will cause it to command the respect and the confidence of the whole of the people of Australia. For reasons which I shall show, it is important that we should create it at this time to deal with constitutional questions. At the very outset there will be applied to the Constitution itself certain rules of interpretation or construction with respect to the powers of the
States and the Commonwealth, and those decisions will establish very important precedents. The Privy Council, assuming it to be the only court of appeal that we have, and the highest Court in the realm, may, by reason of its want of touch with Australian feeling and history, give a construction to the Constitution which will be absolutely out of sympathy with our national hopes and aspirations. There may be an appeal to the Privy Council in certain circumstances, and we must admit that in some instances that right of appeal has been attended with good results to us. For example, there was the case of Chung Toy v. Musgrove. The Victorian Court held that an alien who was refused admission into this State had a right to bring an action for damages. An appeal to the Privy Council practically upheld the right of the Executive to exclude aliens. That was a very useful decision to us - that we have the right to control our citizenship by our own Executive acts, and that an alien cannot bring an action for damages against us. It meant, really, that there was a wrong without a remedy.
– The Court said it was a case for international remonstrance.
– That may be, but before any case goes to the Privy Council, the highest tribunal that Australia can establish should first have an opportunity of hearing that matter, and of coming to a decision on the arguments laid before it. That decision would probably be the true interpretation of Australian feeling. It comes rather as a surprise to me to find that so many honorable members are opposed to the establishment of the High Court. I have casually picked up the first volume of the Commonwealth Statutes, to see to what extent our existing legislation recognises the existence of the High Court. I find that only last year we passed an Electoral Act, under which we deprived ourselves of the power to sit as a Court of Disputed Returns, and provided, in section 193, that -
The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition, or to refer it for trial to the Supreme Court of the State in which the election was held or return made.
Then there is a temporary provision that until the High Court is established, the State Court may deal with the matter. Thus the House from the first has kept the High Court to the front. Next, I turned to the Property for Public Purposes Acquisition Act, and I find that in section 15, provision is made for bringing an action for compensation in the High Court. In section 245 of the Customs Act, it is provided that -
Customs prosecutions may be instituted in the name of the Minister by action, information or other appropriate proceeding -
In the High Court of Australia ; or
In the Supreme Court of any State.
The right is also given to bring such cases in any other Court. The same procedure is followed in section 134 of the Excise Act, in regard to excise prosecutions. Any one glancing through our Statutes would gather that the intention of this Parliament was to keep the High Court well to the front, and that we were only passing this necessary machinery legislation in contemplation of the fact that we should shortly establish the High Court.
– What does the honorable and learned member mean by “ shortly.”
– As soon as we can get the necessary machinery measures through. I find that in the Punishment of Offences Act exactly the same provision is in force. It is there provided, pending the establishment of the High Court, that these offences may be prosecuted in the inferior tribunals.
– There is clearly an expression of opinion in them all that the High Court can wait.
– Wait until this machinery has been passed so that it can be put in its proper position. Do these provisions suggest a High Court consisting merely of a few Chief Justices? Does not the provision in regard to a Judge sitting in the Court of Disputed Returns show that it was intended that we should have a single Judge sitting in the High Court? When we have passed the Arbitration and Conciliation Bill, as I hope we will, I trust that we shall further utilize the services of the Judges of the High Court, and that the Arbitration Court will be presided over by one of those Judges. We are told that the High Court would put us to very great expense, but I think the Attorney-General has shown that it is intended to utilize the existing States’ machinery as far as possible, and that the only additional expense involved, so far as administrative matters are concerned, will be in the establishment of a central registry. That will require a comparatively small number of officers. Perhaps, for some time to come in Victoria, these duties may be fulfilled by the officers here. As regards the Judges, their salaries must be an additional expense, but I hope that the remuneration which we shall fix will be sufficient to command the services of the best men. The Attorney-General was right in saying that the result of the establishment of the High Court would be a reduction in certain directions of the number of Justices of the Supreme Courts. What has happened in Queensland? Only last session it was decided that the salaries of future Chief Justices of that State should be reduced by £1,000 per annum. The salary of the present Chief Justice has not been touched, for the whole of the Judges in the Commonwealth have existing rights which cannot be interfered with. As soon as the present Judges retire on their pensions, or cease to occupy the Bench, reductions will undoubtedly be made. We were told before Federation was established that the transfer of the administration of certain Departments to the Commonwealth, and the substitution of one central authority for the various State authorities, would of necessity bring about economy in State expenditure, and we know that economy and retrenchment are now being practised by the States. The sneer has been cast at those who are supporting the Bill that we are being guided too much by American precedent. If we are being so guided, we are copying an excellent model. Let us consider what the Supreme Court of the United States has done for that Constitution. Willoughby, in his History of the Supreme Court of the United States, says -
The Supreme Court is 100 years old, and during this time, but one change in the field of its jurisdiction, and none in the nature of its powers has been found necessary. Its very form has remained without substantial change since its creation by the Judiciary Act of 1789. For a century this Court has performed with exactness all the duties required of it. Since its inception it has been the firm supporter of that instrument which created it. Scarcely ever has it been out of touch with the people. Its bar has numbered among its members men of the highest intellect: Webster, Marshall, Pinekney, West. Its Justices have been men whose greatness the world has recognised, and whom the United States has been proud to call her own. To-day the Supreme Court stands the highest judicial tribunal in the world’s history.
– Is he a lawyer?
– He is a Professor of History in theUniversity of Philadelphia.
– I will quote another authority - a passage from Landon’s The Constitutional History and Government of the United States -
The Court expounds the Constitution in the language of its own age, holding fast to the old words and power, but expanding them to keep pace with the expansion of our own country, our people, our enterprises, industries, and civilization . . . It is plain now that we are largely indebted to the Court for our continued existence as a nation, and for the harmony, stability, excellence and success of our Federal system.
Those are the words of an authority of no mean standing. If we follow the example of a Court which, for more than a century, has so successfully interpreted the parchment deed which comprises the Constitution of America as to harmonize its provisions with the gradual expansion of a vast nation like the people of the United States, we shall follow a very good precedent. I believe that in Australia we shall in time produce a Court of equal ability. Of the American Judiciary it has been well said -
It is a power which has no guards, palaces, or treasuries, no arms but truth and wisdom, and no splendour but its justice and the publicity of its judgments.
In Australia we have a Bar of which we may be proud, and we have had J udges of whom we may be proud. And I believe that under the aspirations of our fuller national life, our lawyers will rise to still greater heights, so that the Judges of the High Court will be men of whom Australia will be proud.
Mr. A. PATERSON (Capricornia).Honestly speaking, I should prefer to keep my seat on the present occasion, but the all-compelling power of conscience, to which reference was made by the honorable and learned member for Indi last night, urges me to say a word or two. Being a mere layman, I do not intend to make an exhibition of myself by attempting to argue with the legal members of the House as to the meaning and scope of a verb, or the significance and intention of an adverb.Nor shall I express any opinion as to what provisions of the Constitution are mandatory and what merely optional. But I wish for a little information, and I should like the AttorneyGeneral to give it to me. If the Government advocate the immediate establishment of the High Court upon the ground that it is required by a mandatory provision of the Constitution, I should like to know why theyhave not paid the same respect to section 65, which says that -
Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or in the absence of provision, as the Governor-General directs.
But, instead of seven, we have nine Ministers, and, so far as I remember, the appointment of two additional so-called honorary Ministers was never brought before the House at all, but was done by Executive act. If the Government can play fast and loose with a provision of the Constitution, surely Parliament has a right to choose its time for the performance of a duty in regard to which the Constitution is mandatory. I have had very great pleasure in listening to the debate. It has been an inspiration and an education to me, arid I feel almost ashamed to follow the brilliant and eloquent debaters whom we have heard. I owe a debt of gratitude to them for the masterly way in which the subject has been handled from all points. But I am not. satisfied that the Government and those who support the measure have made out a good case for its urgency, and that, after all, is the main point. We all agree as to the necessity for the ultimate establishment of the High Court ; but some of us contend that its immediate establishment is not necessary. The Government themselves exercised discretion in the matter. Parliament had been sitting nine or ten months before it was brought forward at all, and then, instead of nailing their colors to the mast, as they should have done if they considered the Constitution mandatory upon the point, Ministers allowed the Bill to disappear without taking it to a division. I do not blame them for that action, because I believe that it has saved the country £60,000, and thatif we wait a little longer we shallsaveanother£60,000. Oneof thestrongest advocates for the Bill says that there is no power under the Constitution to compel us to pass the measure, save the still small voice of conscience. I am considerably relieved by that statement. If only my conscience stands in the way, I can get over the difficulty. Men do not pay income tax, as some unfortunate people have been doing during the last few days, because their consciences compel them to do so, but because they are afraid of the bailiff, though tender consciences sometimes prompt people to remit so-called “ conscience money “ to the Minister for Trade and Customs. But the conscience argument must not be pushed too far. I have heard it applied in defence of the betrayal of his Master by the apostate Judas. He was paid his price - 30 pieces of silver - and his conscience compelled him to carry out his contract. That argument, however, is unfortunate, and the example not one to be followed. Canwe justify the committal of a crime in order to carry out the provisions of the Constitution ? I consider it is no less than a crime to pile up expenditure which is not proved to be necessary. Every man knows that the financial difficulties which have been experienced throughout Australia, from the Gulf of Carpentaria to Warrnambool, have been very serious, and that the strain which has in consequence been imposed upon the community will continue until our crops for next season are assured. In the meantime there is a large amount of distress in Australia, and it will be difficult to explain to the electors why the Government should at this time, above all others, incur large expense in establishing a court that is not required. Who wants it, anyhow? The only private suitors will be the banks, mortgage companies, financial institutions, and great trading concerns. The representatives of these interests petitioned the Federal Convention not to deprive them of the right of appeal to the Privy Council, and it is certain that if the High Court were appointed to-morrow these litigants would carry their appeals direct to the Privy Council. In the course of the magnificent speech delivered by the honorable and learned member for Indi, to which I listened with a great deal of pleasure, he cast a serious slight upon the Privy Council ; but we need not wonder at that, because his experience of that body may not have been quite so fortunate as he expected. If the Bill now before us is of an urgent character, it must also have been of pressing importance when it was introduced last session ; and after the way in which the Government failed to persevere with it then, I do not understand why they should make such a fuss about it now. I think we should wait until the machinery is required before we attempt to provide it. With regard to the economic aspect of the question, what are we to think of the Attorney-General, who referred to the enormous expenditure upon the Supreme Courts of Australia, and then proposed to relieve the burdens of the people by calling upon them to pay another £30,000 per annum. There is no analogy between the case of the United States and our own. The American people constitute an independent republic, and they have no Privy Council to which they can appeal. On the other hand, we have close ties with the mother country, and enjoy the right of appeal to the Privy Council. I think that the most effective shot fired against the Bill was that which was discharged by the Attorney - General himself. When the honorable and learned member for Bendigo stated that public opinion was opposed to the establishment of the High Court at the present time - in which view I thoroughly agree - the Attorney - General interjected that public opinion needed to be educated. I think that gives away the whole case for the Bill. If we agree that the public mind requires to be educated upon the subject of the creation of the High Court, then we have a very strong reason for postponing the further consideration of the Bill. It will take a great deal of education to make the electors whom I represent recognise the necessity for any such expenditure as that now proposed. I wish to make only one more observation, regarding a far more important matter than the mandate which is said to be contained in the Constitution. AVhilst I feel lost in admiration of the power and skill and patriotism of the framers of the Constitution, I could have wished that they had included in it some provision under which no Member of Parliament could be appointed to a position upon the High Court Bench.
– It is due to honorable members that I should avoid detaining them any longer than may be absolutely necessary, and I shall therefore refrain from making any formal reply. Let me confine my remarks to one or two matters to which I desire to call attention before the vote is taken. I do not see the honorable and learned member for Indi in his place, but I received from him very early this morning a letter, in which he requested that if he were not present at the opening of our sitting to-day, I should call attention to a misconception of the arguments which he was privileged to present to honorable members last night. He writes -
As Stated by me last night, I have no doubt whatever that section 71 of the Constitution creates a definite mandate upon Parliament to proceed to organize and equip the High Court in any event whether it creates or invests other Courts or not; that it would be and is contrary to the clear spirit and intention of the Constitution that any other Court should be authorized to exercise any Judicial power without the existence of the High Court. In other words, the judicial power is according to plain constitutional intention, either to be exercised by and under the supervision of the HighCourt or not at all.
I also stated that the point had never yet been raised how far that intention would be insisted on by the Courts, and it is just here that my anxiety arises, lest my views, as a lawyer, and my reasons as a legislator may ha ve been mingled in expression.
– I rise to a point of order. Is it in order for an honorable member to make two speeches in the House on the same subject-the one regularly and the other by means of a letter ? I submit that the letter of the honorable and learned member for Indi is not merely an explanation, but is an elaboration of his arguments, and that therefore the Attorney-General is not in order in reading it.
– I have no hesitation in ruling that the reading of this letter by the Attorney-General as part of his reply is perfectly in accordance with the standing orders.
– I might have expressed the honorable and learned member’s views in my own words, butI thought it better to adhere to his own. His letter continues -
I think the House should be told before the Bill goes to a vote, and I should be glad if you would do it in your reply, that it is my opinion a court of law would, in accordance with established practice and precedent, struggle and strive if reasonably possible to uphold the validity of any Act of Parliament, and would strain so to construe section 71 as to enable Parliament if that construction be at all possible to confer jurisdiction on the State Courts even though no High Court be established. Of course the Courts in deciding the question would be confronted with the seriousconsideration presented by the manifest intention of the clause as above indicated, and with the principles enunciated in Martin v. Hunter quoted by me last evening. But still the canons of construction adopted by both English and American tribunals would tend to give every fair chance to uphold the investiture of State Courts even though no High Court be organised, on the ground that the exercise of Judicial power may be severed and distributed subject to the express limitation of the Constitution.
This result would be, I repeat, quite opposed to what was intended, and we as a Parliament ought to feel bound by the intention and to act on it. But the House must understandmy view as a lawyer also, that if the Parliament refuses to act on it, the disposition of the Courts in the first instance will be to uphold the validity of the Act if they can, and to follow the view taken by Parliament, though they may feel eventually coerced by the intention to hold otherwise.
The honorable and learned member found himself very seriously misconstrued upon this point, andhe thought it onlyjust tohonorable members who might have been affected by his arguments that he should state exactly the limitation by which he found himself bound - the limitation which the Prime Minister, who was quite unaware of this letter, expressed to-day in almost identical terms. I regret the absence of the honorable member for Gippsland, whose attention I wish to call to a financial comparison instituted by him that cannot be sustained. He pointed out that the estimate of the cost of the Common weal th officially supplied before the referendum, and criticized from nearly every platform during the Federal campaign, fixed that cost at a maximum of £300,000. He then proceeded to quote on the other side as evidence that the estimate had’ been already exceeded, the loss which he stated would result from the action of Parliament in granting a rebate of £2 per ton upon white-grown sugar. The honorable member in adding this amount to the cost of the Commonwealth, quite ignored the fact that the £300,000 estimate, as its details show, related simply to the cost of the machinery of the Constitution, and to nothing else. It in no way pretended to foreshadow the probable cost of any policy that Parliament might choose to follow in regard to black labour or white labour, the transcontinental railway, public works, old-age pensions, or the hundred-and-one other enterprises in which this Parliament might engage.
– That estimate of the cost of federation was made before Queensland had consented to join.
– Yes, the £300,000. Items such as I have indicated cannot be taken into account in any comparison of the actual with the estimated cost of the Commonwealth, because the estimate was made with regard to the cost of working the Commonwealth, and had no reference to any matter arising out of possible policies pursued by Parliament. If the comparison adopted by the honorable member is to be employed, the revenue which has been derived by the Commonwealth and the savings it has effected must also be taken into account,’ and we shall be at once launched upon an unending sea of financial controversy. I would, therefore, suggest to the honorable member that the comparison which he instituted was’ one which, on further consideration, he will not attempt to sustain. The honorable member for Capricornia, whose apt and humorous criticisms we were pleased to hear, has directed my attention to section 67 of the Constitution, but he has unfortunately overlooked section 64, which prescribes that Ministers of State shall be also members of the Federal Executive Council. There are only seven Queen’s Ministers of State for the Commonwealth. The other two gentlemen who have so generously and handsomely lent their valued assistance to the Government, are Federal Executive Councillors - to whose number there is no limit - but they are not the Queen’s Ministers of State for the Commonwealth ; so that there has been no breach of the section to which the honorable member has been good enough to call attention. He also wishes to know where any indication has been given that the High Court is required. I may inform the honorable member that, beginning in Queensland, he will find it expressed in the chief metropolitan organ of that State, also in the greatest provincial newspaper in Queensland, namely, the Toowoomba Chronicle, a recent issue of which contains the very best analysis of this measure I have seen published. Both the leading Sydney newspapers, and many newspapers published in the country districts of New South Wales, support the Bill, and, in Tasmania, the Launceston Daily Telegraph recently published the keenest critical article upon the Bill that I have read. In South Australia, an attitude generally favorable to the Court has been taken up by the daily paper which has the greatest circulation in that State, and the same applies to Western Australia. In fact, everywhere except in Victoria, the High Court has found staunch advocates.
– The Geelong Advertiser favours the Bill.
– That, in itself, should be regarded as conclusive evidence as to the necessity for passing the measure. The only thing required to clinch it is the support of the Ballarat Courier. There is one error which I wish to correct. The President of the Victorian Reform League, Mr. Palmer, is reported in one of the newspapers to have quoted me as having spoken of the J udges of the States Courts as being “ tainted with local prejudice.” I felt sure that I did not use any such words, and after having undergone the pain and suffering “of reading through the official report of my speech, X find that no such words occur. No intention was further from my thoughts than to pass such an imputation upon the Judges. I made’ none directly or indirectly. What I did point out was that cases in which the interests of the States were directly involved could not be properly remitted to such Courts. One of the closest and most able attacks upon the Bill proceeded from the honorable and learned member for Bendigo’, who is also a vigilant student of contemporary legal proceedings. I am the more surprised, therefore, to find that the list of cases which he presented to the House as representing the amount of litigation in which the Commonwealth was engaged, or in which Federal legislation was directly affected, before the Supreme Courts of the States was by no means complete. That list contains 22 cases. Even if it were complete, it would tell a tale in favour of the view which I have advocated, rather than of that for which the honorable and learned member is contending. According to him, in the first year there were four cases, in the second, ten, and in the four or five months of the present year there have been eight. It is undeniable, therefore, that Federal litigation is being rapidly multiplied But in addition to the 22 cases which, have been mentioned, I have been able, since the honorable and learned member gave the House the benefit of his list, to add 24 more, all of which have come before the States Supreme Courts, four in Chambers, and the remainder before the Full Court or a Supreme Court in some form or other. Of these I find that four occurred in the first year, ten in the second, and the balance in the portion of this year which has. already expired. There are other cases of which I know, not included in this list.
– How many Full Court cases are there 1
– I see there was a case that came before the Full Court of Tasmania, which my honorable and learned friend has not mentioned, and another which came before the Full Court in Queensland. What do thesefigures show taken together ? That there were six cases in 1901, twenty in 1902, and that there have been eighteen in the four months of the present year. Yet honorable members criticise this Bill on the assumption that only twenty cases have been tried since the inception of the Commonwealth. I would further point out that there have been scores of cases heard in the minor Courts, and in addition to these a number of others now in progress, but which have not yet reached the Full Courts. I could compile a much longer list if I chose, but merely mention these facts to combat the statement that cases arising out of Federal legislation do not exist in a great number. I hold that they do exist in a great number, and are multiplying with rapidity. I have but one comment to odd, and that I owe to a leading member of the Victorian Bar. This gentleman has pointed out to me that honorable members appear to overlook the important results certain to be realized in the fulfilment of the Federal movement so far as it makes towards unity by the operation of an Australian Court of Appeal. At the present time there is a great divergence amongst the laws passed by the several States, and the greatest ignorance prevails on the part of the people of one State regarding the form and character of the legislation enacted by neighbouring States upon important matters. If these laws are challenged in any respect before a local tribunal, the case arouses no more than local interest, and no news of it passes beyond the borders of the State in which it is tried. Consequently the public never hear of it. On the other hand, if appeals be taken from the Supreme Courts to the Privy Council, what echoes from the proceedings of that body find their way to this country ? Only professional men note the result and apply it in their own particular States. An Australian tribunal would assist the education of the people in regard to the operation of the laws under which they live, when studied in the light of the contrasts which exist in the various States. When an Australian tribunal is created, and all such matters are considered within the sight and hearing of the people, the divergences at present existing will be brought under notice, and many of them will disappear. A Federal Court would contribute in no inconsiderable measure to Australian unity of State law, and this would prove in the future an invaluable factor in securing uniformity of legal interpretation within the bounds of the Commonwealth.
Question - That the Bill be now read a second time - put. The House divided.
Majority … … 9
Question so resolved in the affirmative.
Bill read a second time.
In Committee :
Clause 1 (Short title).
– It would be as well if the Attorney-General would now consent to have progress reported, because several important matters can be settled on this clause.
– On the title? Surely not.
– I think they can be.
– It is a very inconvenient way of settling them, but I will agree to report progress if the honorable and learned member wishes.
Motion (by Sir Edmund Barton) proposed -
That the House do now adjourn.
Mr. HIGGINS (Northern Melbourne).May I ask the Prime Minister if he has received further information yet with respect tothe case of Mr. Goldring, in Sydney? Have the Government yet taken steps to enable justice to be done?
– I am unfortunately not yet in receipt of all the particulars, for which I have telegraphed to the Customs Department in Sydney. But I received to-day a petition from Mr. Goldring himself, in which he sets out that certain of his goods and his books have been seized by the Department in Sydney, and in which he asks the Government to appoint a nominal defendant in order that he may proceed against us under the powers conferred by the Claims against the Commonwealth Act. I have to-day signed a minute, which will be presented to the Executive Council at its next meeting, appointing a defendant, so that Mr. Goldring will now have no difficulty.
– Was there any delay in appointing a nominal defendant?
– No ; I received the petition to-day, and signed the minute at once.
– I desire to ask the Prime Minister when he intends to proceed with the Bills relating to sugar rebates and bonuses, the second readings of which were moved this af ternoon?
– For reasons connected with finance, which will be understood by most honorable members, the Treasurer is anxious to get those two sugar Bills disposed of as soon as possible. We shall go on with them on Tuesday, because it is of great importance to have both of them dealt with in both Houses before the end of the month. After that the Judiciary Bill will be dealt with.
Question resolved in the affirmative.
House adjourned at 10.20 p.m.
Cite as: Australia, House of Representatives, Debates, 11 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030611_reps_1_13/>.