1st Parliament · 2nd Session
Mr. Speaker took the chair at 3.30 p.m., and read prayers.
– I desire to present a petition from over 30,000 Protestant residents of the Commonwealth, expressing their “ emphatic disapproval of the action of the Prime Minister in making an official visit to the Pope of Rome, and in accepting a gold medal as a distinction from him.” The petitioners repudiate certain remarks alleged to have been made by the right honorable gentleman and reported in the Catholic Press of Sydney of 26th July, 1902, and pray that the House will “ strenuously . oppose the conferment upon him of any position of honour or dignity in the Commonwealth until his actions have received the indorsement of an electorate of the Commonwealth.” I move -
That the petition be received and read.
– I ask your ruling, Mr. Speaker, as to whether the petition can be received, inasmuch as the prayer which has been read by the honorable member is offensive ?
– Shall I be in order in moving to insert in the petition the name of His Majesty King Edward?
– Certainly not.
– On the motion that the petition be read, I do not propose to descend so far as to justify my action in accepting an invitation to an audience with the Pope ; but a statement is made in the petition as to remarks reported to have been uttered by me
– I rise to order. honorable members. - Gag !
– The standing orders under which we are working require that there shall be no debate upon the subjectmatter of a petition. All that can be done at the present time is to discuss the motion whichthe honorable member for Dai ley has moved. Debate can take place only upon the abstract questions whether the petition shall or shall not be received, and whether it shall or shall not be read. There can be no discussion of its subject-matter, because, until it has been read, the House is presumed not to know what its subjectmatter is. On the point of order taken by the honorable and learned member for Corio, the petition is not out of order for any reason yet disclosed ; . but I cannot be taken to know what its subject-matter is.
– What opportunity has a member of theHouse who is misrepresented by a statement in a petition to put himself right before honorable members ?
– I know of no such opportunity, unless a motion is submitted which deals in some way with the subjectmatter of the petition. I am quite sure, “however, that, after the petition has been read, the House will readily accord to the Prime Minister, or to any other honorable member under similar circumstances, an opportunity to make a personal explanation.
Honorable Members. - Hear, hear.
Question resolved in the affirmative.
Petition received and read.
– As a matter of personal explanation, I would say that I do not intend to discuss the propriety of having accepted permission to pay a visit to so distinguished a statesman and personage as the head of the Roman Church. If I wished to justify that action, I need only point to the numerous precedents for such visits which existed before I myself paid one, and to a notable case which has occurred since. I wish to call attention, however, for the- purpose of explanation, to a statement in the petition which repeats a press report to the effect that I said that, so long as I remained at the head of the Australian Government, Catholics might rely upon receiving in Australia a greater share of liberality and benevolence. than they receive in other parts of the Empire. The facts are these : In the interview which took place, and which is alluded to in the petition, the Pope said that lie was exceedingly pleased to observe the feeling of tolerance which existed in Australia towards people professing any religious creed ; that he observed with great gratification the numerous proofs of that spirit, and hoped that it might long continue. Perhaps, honorable members may think, in the light of. recent event,*, that he was not fully informed of the conditions prevailing here when he gave vent to that statement. My answer to him, through the prelate who acted as interpreter, was, so far as I can recollect, that he might rely upon the tolerance to which he had alluded always continuing in Australia, That is the sum and substance of what took place on the question of thu treatment of Catholics in Australia. I should like to odd that repeatedly after my return to Australia, and notably on the occasion of my first speech in reference to my tour, at the Town Hall, Sydney, on the 17th October, 1902, I corrected the report which is alluded to in this petition, in the terms which I am now using. Seeing that ti iti t speech and many others gave the sum and substance of .my interview in this particular, long before this petition was got up, honorable members may draw their own conclusions as to the spirit of tolerance and fair play which has dictated the repetition of the misstatement! I am quite sure that the Minister for Defence, who was present, will indorse the correctness of the version which I have given.
– Hear, hear.
– Of course, no newspaper reporter was present at the interview, and I have repeatedly made public the correct version of what actually occurred. Notwithstanding that fact, honorable members now find an incorrect version repeated in the petition, without doubt for sectarian purposes. In what I actually said, I believe that, instead of misrepresenting, I rightfully represented the feeling of the vast majority of the people of the Commonwealth. I must express my hope and belief that, notwithstanding the conclusion to be drawn from the presentation of the petition, the Commonwealth at large will maintain that spirit of tolerance to which the petition is so gross an exception.
– I should not refer to this matter, but-
– Does the honorable member rise to a point of order ?
– I desire to reply to the Prime Minister.
– The honorable member cannot do that. So that the House may be under no misapprehension in regard to this matter, I will read Standing Order 89, which says -
Every petition, which according to the rules of Hie House can be received, shall bo brought to the table by the member presenting the same, and no discussion upon the subject-matter thereof shall be allowed.
I am sure, if the honorable member has been misrepresented in any way, the House will give him the same opportunity as would be given to any other honorable member, to explain his position. If he has not been misrepresented, I do not see what he can have to explain.
– The petition has been misrepresented.
– It will not be in order for the honorable member to make any explanation in regard to the petition.
– I, too, have been misrepresented, as the member’ who presented the petition. I claim the tolerance which the Prime Minister asks for himself. While I was glad to hear his version of the interview with the Pope, I desire bo say, on behalf of the petitioners, that the petition was in circulation months before his return to Australia.
– How many signatures were obtained before my return 1- I know that a great many have been obtained since.
– I am not prepared to say how many signatures were obtained after the right honorable gentleman’s return. The petitioners, however, signed the document without any knowledge of a repudiation by the Prime Minister of the newspaper report to which it refers. In reply to what he has said with reference to sectarian principle-
– I did not use the words “sectarian principle.” I cannot conceive of any principle in sectarianism.
– The light honorable gentleman said that the petitioners signed the document in a spirit of sectarianism. I wish to say on their behalf, however, that in signing the petition they were only exercising their rights as citizens, and I should have been allowed to present it to the Blouse without the trouble which we have had to-day.
Sir EDMUND BARTON laid on the table the following paper : -
Correspondence between the Prime ‘Minister and the Agent-General for Queensland with regard to the power given to the Agents-General in England to issue exemption certificates under the Immigration Restriction Act.
– I desire to ask the Minister for Defence when he will be prepared to introduce the Defence Bill 1
– The Bill is almost ready, and as soon as the way is clear for it I shall have much pleasure in presenting it to the House.
– I desire to ask the Prime Minister whether he has received any intimation that a petition is being largely signed in New South Wales with a view to securing the dethronement of His Majesty the King and the Emperor of Germany, because of their action in visiting His Holiness the Pope 1
– I have no information on the subject.
– I wish to know from the Prime Minister whether, in view of the probable early consideration of the question of the States debts being taken over by the Commonwealth, he will have a return prepared showing the dates upon which the various States liabilities fall due? I do not think that any such return has yet been furnished.
– An exhaustive return of the kind .indicated is now in preparation, and will be presented by the Treasurer when he explains his Budget.
– A few days ago I directed attention to the case of a Mr. Goldring, a merchant in ‘Sydney, who had his books and invoices, together with the goods to which the invoices related, impounded by the Customs Department. Mr. Goldring offered to pay the whole of tine duty demanded by the Customs authorities, or to enter into any bond that they might require, if they would deliver the goods and restore him his books and invoices. Notwithstanding all his applications, he has not received the goods or other property, which have been in possession of the Customs Department since 17th November last. I can only speak from the facts submitted to me, but I venture to say that it is only right that Mr. Goldring should have some explanation given to him as to the cause of the delay.
– The honorable member knows Mr. Goldring is suing us for the restitution of his property.
– But I desire information with regard to the whole of the facts of the case. I believe that Mr. Goldring is suing for the return of the amount over-paid ‘to the Customs Department. If. I am wrongly advised, the Attorney-General can correct me, but I think–
– The honorable member must not debate the question. He must not do more than state the facts.
– I understand that Mr. Goldring is suing for an overpayment of duty, and also for the restoration of his books and invoices, which have been detained since November last. I intend to move the adjournment of the House upon this question to-morrow, and I wish to know from the Attorney-General what miction has been taken, or whether he will L13’ upon the table the whole of the papers in connexion with the case.
– The first time I came into possession of some information regarding this case was during last week, when a petition was’ presented by Mr. Goldring. I gathered from this that he complained of the detention of his books and certain goods.
– Mr. Goldring has since received a copy of his papers - an incorrect one.
– I know only what is stated in the petition, which contained a request for the appointment of a nominal defendant to represent the Commonwealth. On the same day I signed the necessary minute.
– Does the AttorneyGeneral know that Mr. Goldring has been asking for information since 17th November?
– The honorable member must not interrupt the Minister. If he desires to obtain any further information, he must ask questions in the ordinary way.
– Mr. Goldring had not communicated with me before I received his petition. The minute, which I signed on the same day that the petition was received, went before the next Executive Council, held on Monday, last. A defendant has been appointed, and an action by Mr. Goldring is now in progress. I submit to my honorable friend that it would, be most improper to discuss a case which is now sub judice, and in regard to which we have taken all the steps we could to give Mr. Goldring his remedy. I have written to my honorable colleague, “ the Minister of Trade and Customs, advising him of the course adopted, but understand that he has not yet dealt with my communication.
– But what explanation is offered regarding the delay that has taken place ?
- Mr. Goldring is now suing us on account of the delay, and if we are responsible we shall have to pay.
– But that does not explain the matter.
-Order. The standing orders do not permit of the discussion of matters which form the subject of questions. Questions may be asked and facts may be stated .to make clear the questions, but there must not be anything in the shape of discussion in connexion with them.
At a later stage,
– I should like to ask the Minister for Trade and Customs whether there is any charge of fraud against Mr. Goldring, and, also, what was the cause of the delay in the return of his books and papers and the delivery of his goods ?
– Upon such a subject as fraud I should not care to give an answer off-hand. I therefore ask the honorable member to give notice of his question.
– I should like to know whether the Prime Minister can give us any idea when the report of the Federal Capital Sites Commission will be available?
– - I have no exact official information beyond what I have communicated to the House, but when in Sydney a few days ago I met the Chairman of the Commission, who told me that the report was in preparation and would very soon be ready ; that it would certainly be sent in this month. As soon as it is received, the Government intend to ask that it should be printed and distributed amongst honorable members.
asked the Minister for Trade and Customs, upon notice -
– The answers to the honorable member’s questions are as follow : - 1 and 2. I believe the statement to be correct, but the Department is not concerned.
asked the Prime Minister, upon notice -
With reference to sm article in the Aye newspaper of the loth inst. -
Is it true “ that through Federal extravagance the State Governments do not receive the returns of the revenue to which they are entitled.” If not true, what are the facts?
Is it true “that dozens of officers whose positions were sinecures under the States were transferred to the Federal service at largely increased salaries.” What is the total of new appointments ?
Is it a fact that some State officers have been appointed to Federal positions “ at double salaries.” If so, how many, and what are the salaries paid ?
Is it true that the private secretaries of two Ministers are being paid out of Commonwealth funds?
Are any officers of the Commonwealth service, whilst travelling, having their living expenses paid out of public funds?
What was the Adelaide estimated cost of ederution per head ; and, including the proposed High Court expenditure, by how much has that estimate been exceeded?
What was the pre-federation cost of the military and naval forces, and what is the present cost ?
What is the actual saving per head by the reduced military expenditure ?
– I am not In a position at the present moment, owing to the incompleteness of the returns I have so far obtained, to do more than to inform the House that these statements are in the highest degree unscrupulous. Full answers will be given if the honorable and learned member will repeat his question on Tuesday next.
asked the Prime Minister, upon notice -
– The answers to the honorable member’s questions are as follow : -
Resolved (on motion by Sir George Turner) -
That the Bill be recommitted for the reconsideration of clauses 2, 3, and 0.
In Committee (Recommittal).
Clause 2 -
There shall be paid out of the consolidated revenue fund, which is hereby appropriated accordingly, to every grower of sugar cane or beet within the Commonwealth, in the production of which sugar-cane or beet white labour only has been, employed after the 28th day of February, 1902, a bonus, at the rates provided by this Act, on all such sugar-cane or beet delivered for manufacture after the commencement of this Act, and before the 1st day of January, 1907.
– I mentioned yesterday that the administration of the Excise Tariff Act was under the control of the Minister for Trade and Customs, who was then absent from the chamber preparing some Bills which, in due course, will be submitted to Parliament. I informed honorable members that I was under the impression that the date after which rebate was payable upon sugar in the production of which white, labour only had been employed, viz., the 28th February, 1902, had been extended by some means, though I was not ver)”clear about the matter. I thought it was advisable that power should be ‘ given to yearly prescribe a certain date, so that growers who employed white labour only after that date should be ‘entitled to claim the bonus, and that the Minister should be empowered to fix such a date as would prevent any successful attempt to defraud or prohibit sugar - growers from taking advantage of the provisions of the Bonus Bill. A. good deal of discussion of an interesting nature took place upon that point, and it covered a far wider range than I had anticipated. I then asked for an adjournment to enable me to ascertain from the Minister for Trade and Customs exactly what had been done, and what he thought ought to be done in connexion with this matter. I have since found that the Excise Act was passed on the 26th J uly, 1902. That measure fixes the date after which growers can claim rebate upon sugar produced by white labour only at 28th February, 1902 - a period some six months previous. After the Act had been passed representations were made to my colleague that the date fixed was hardly a fair one, in that no notice had been given to the growers, and, consequently, the period was extended to the 1st March, 1903, to cover those cases.
– By what power ?
– I do not say that there was any power to extend the period I was under the impression that, under the Act, power was given to fix these dates yearly, in order to meet the different cases as they arose. Some time during the current year it was represented to the PostmasterGeneral and the Minister for Trade and Customs that a large number of persons, who were desirous of taking advantage of the provisions of the Excise Tariff Act, had been debarred from doing so through want of knowledge, because that Act was not passed for several months after the date fixed therein. The matter was discussed with the planters and others interested, and the Minister for Trade and Customs then agreed that the time should be extended for one year, but for no longer. He was, and still is, under the impression that all the parties interested were satisfied as to the fairness of this arrangement. At any rate, it gave all of them an opportunity of knowing that, in order to claim the payment of the rebate, they had to cease employing black labour in the production of any crop upon a certain date in advance, and not upon a retrospective date. As this Bill is submitted simply with a view of altering the mode of distributing the payment, I do not think it would be wise to discuss at the present time the much larger question involved. Whether or not it may be necessary to debate it at a later stage I am not prepared to say just now. .That regulation having been passed, apparently without legal power - at all events, there is considerable doubt as to whether the power existed to make the alteration - and a number of persons having taken advantage of it by registering to obtain the bonus under it, I think that the Committee will now be prepared to say that the date mentioned in the Bill may be fairly altered to the 28th February, 1903. Under these circumstances, I move -
That the figure “ 2,” line 7, be omitted, with a view to insert in lieu thereof the figure “3.”
If that proposal is carried, those who have taken advantage of the regulation will be entitled to the payment of the rebate, whilst those who have not will occupy the same position that they did previously.
– Only a. moment ago the Treasurer stated that as this Bill was intended to take the place of the measure providing for the payment of rebate upon sugar produced by white, labour only, he thought we ought not to go beyond the provisions of the Excise Tariff” Act. I thoroughly agreed with him, and am of opinion that no change ought to bemade in this Bill. But the Treasurer, having made that declaration, now proposes to go outside the provisions of the Excise Tariff Act by fixing the dateprescribed therein a year later. Such a step would constitute so serious, a departure from the original compact that honorable members ought not to countenance it. Unless the Excise Tariff Act and the Customs Tariff Act can. be again brought before Parliament, I do not think that we ought to be asked to make any change in the compact which wasentered into. The motive for seeking the amendment is not one that ought to commend itself to the House, seeing that theMinister for Trade and Customs has arrogated to himself the powers of this Parliament. In effect he says - “ I do not care that Parliament has declared that the dateshould be the 28th February, 1902. I will alter it to the 28th February, 1903.” That would be an excellent thing if the Minister were spending his own money in the payment of this bonus, but when it is themoney of the Commonwealth, I ask honorable members whether they can haveany sympathy with him, and whether he has not ‘ arrogated to himself powerin a way that is . almost unknown in the history of any parliamentary body ?’ The Minister for Trade and Customs of his own sweet will has set aside theauthority of Parliament by saying that irrespective of what date it may fix, he is. above the law, and will not administer it. Is not that a very serious matter, especially when the right honorable gentleman, tells the Committee that if a technical, breach of the law is committed in otherrespects, he must institute proceedings and obtain convictions against merchants even though no attempt has been made to” defraud the Customs 1
– Order ! The honorable member cannot discuss that subject.
– I am speaking of cases in which the Minister prefers charges against merchants, though his own officers have declared that the charges are not true.
– Order ! The honorable and learned member must not discuss that matter.
– I think that the Committee should vote against the proposed amendment, because it involves a complete alteration of the compact which was entered into when the Excise Tariff Act was under consideration. The compact involved three conditions, viz., the imposition of a customs duty of £6 per ton upon imported sugar, an excise duty of £3 per ton, and the payment of a rebate of £2 per ton upon sugar in the production of which white labour only had been employed. A date was fixed after which growers might claim that rebate, namely, the 28th February. 1902.
– But this Bill is intended to apply only to the current year.
– A compact was entered into upon the strength of which opposition to the Government proposal was considerably weakened. Practically an agreement was arrived at between the three parties represented in this Chamber. The payment of the rebate was intended to be in the nature of a bonus to those sugargrowers who employed white labour only. The present proposal is an entirely different one. We have already decided that a bonus shall take the place of a rebate. Now we are asked to. consent to an alteration in the date previously fixed, the effect of which will be that a bonus will be paid where itwas not paid before. That is the simple position, and no sophistry can conceal it. I urge the Treasurer, to take a sound constitutional view of the matter, and I feel sure that he would have done so had it not been for the extremely arbitrary action of the Minister for Trade and Customs in altering the date. That Minister had no right to alter that date without the authority of Parliament, and having done so, he has no title to ask honorable members to support himin his action. I protest against the alteration which has been made, and hope that the Treasurer will withdraw his amendment, instead of allowing the time of the Committee to be wasted in discussing it.
– I am quite sure that if the Treasurer, or any honorable member of this Committee, takes up the position assumed by the honorable and learned member for Werriwa, they will bedoing an” absurd thing. Is there an honorable member with any intelligence who will suggest that when the date prescribed in the Excise Tariff Act was fixed, viz., the 28th February, 1902, that was to be the only time at which the Sugar-growers could take advantage of its provisions? Does any one say that the cultivators were to dispense with black labour immediately and employ white labour only from that date? The very idea is sheer nonsense. The Committee knows very well that from year to year each phmter who desired to work the whole or any portion of his plantation by white labour only would be entitled to earn the rebate. If this year’s cane be cut with black labour, and next year’s crop wholly cultivated with white labour, why should not the grower obtain the rebate in respect of next year?
– The Act does not prevent that.
– Then why provide that, after 1903, no planter shall be able to come under the Act? Does the Minister hold to that position ?
– They can come in at any time.
– How can they come in ?
– By growing the cane by white labour only.
– But if the roots set. by black labour have been left in the ground the cane cannot be said to be grown by white labour only, and that leads us to the posi tion taken up by the honorable member for Herbert - that the roots must be ploughed out.
– The Act has not been carried out in that way.
– We have been quibbling about the meaning of words and the strict interpretation of the Act ; but is there any real difficulty in providing in the Bill what should be done? Why should it not be stated that when once one crop is cut and taken from the ground, the bonus shall be paid on the next if white labour only had thereafter been employed in its cultivation and harvesting ?
– That is not what we are getting.
– The New South Wales planters have been singularly well situated in a climate in which black labour need not have been employed under any circumstances ; but, in the case of the larger planters of Queensland, the position is very different. I have always strenuously opposed the employment of black labour, and it is for that reason I am endeavouring to give the planters an opportunity of substituting white labour. Why prevent planters from reaping the advantage of the bonus at any time they are able to do so ? They have imported black labour under fairly strict conditions, and are compelled to employ it for a certain number of years, or suffer monetary loss by keeping the labourers idle. I suggest that some time should be fixed when the planters may increase the proportion of their plantings under white labour, so that they may definitely know what they are to do to earn the rebate. I should not at all object to allow the long terra of twelve months - to provide that planters must work with white labour for that period before they earn the bonus. At any rate, they ought to know exactly the conditions; arid I believe the Government and Parliament wish to do what is fair. It is with the object of carrying out the idea of a white Australia that I make these remarks, and I believe that when honorable members understand the question they will do what is right.
– The intention in the first instance was to give’ a bonus on the production of sugar grown by white labour only, and to take, as the period during which the bonus could be earned, the time from planting to the final delivery of the cane at the mill. This bonus was based on a certain amount per ton, and it was not intended that it should be paid simply for harvesting.
– That is quite correct.
– At the same time, it was intended to be a benefit of which growers could avail themselves at once. There was the special circumstance that we were introducing a new system when cane, was growing which had been attended to by black labour. The primary object, as defined in the regulations laid before the House was to go right back to the planting, which is one of the most important and costly parts of the process as compared with the harvesting only. We intended to insist, in the first instance, that white labour should be employed right from the planting up to to the time of delivery at the mill. The growers were not to blame in the slightest degree, in that they had used black labour when they knew of no inducement to employ white labour, and it was declared at the time- that proposals were introduced, long before they found embodiment in the Bill, that those growers could go on using black labour up to the 2Sth February, 1902.
– It was after bhat date before the Bill got through.
– That is so, but at the same time the excise proposals had been laid on the table of the House.
– The time was extended to the 1st March.
– Notice was given to the growers, and on a variety of occasions the time was extended. A number of other planters were desirous of qualifying for the rebate, and the time for dispensing with black labour was finally extended to the 1st March, 1903.
– That regulation was issued on the 24th December last.
– The regulation was sanctioned for issue’ on the -24th December, but it was not passed through the Executive Council until the 8th January, 1903.
– When Parliament was not sitting.
– Of course Parliament was not sitting, but the thing had to be done.
– Under what power was it done ?
– It seems to be doubtful now whether we had the power to grant that extension, but I can say that no member of the Government believed for a moment that the power was not there. The regulation was prepared, and went through the usual course, and was gazetted, and nobody until this moment has suggested that there was no power to make it.
– In the previous Act, the date, 1902, was quite plain.
– I had notthe pleasure of drafting the Bill, which was prepared in ignorance of the fact of’ the order of the Executive Council. That order was gazetted, and is on the files, and at the disposal of honorable members. A number of matters were fixed by regulation, and the Executive Council came to the conclusion, having regard to the Act, that there was power to make the order ; and if a mistake was made it was a mistake into which we all fell. But I believe the proceeding is one which will commend itself to honorable members generally. The first principle was that growers should not get the bonus if they employed black labour during any period from the tilling of the soil ; and, in my opinion, to extend the time for a whole year is a sufficient concession. We should not be justified in going further, and in saying to the growers - “ We do not care in the future whether or not you have time and again for years past refrained from coming in j you may have planted and have had your expenses reduced by the employment of black labour, but so long as you choose in regard to the particular item of harvesting in any one season to employ white labour, you shall have the bonus.” I do not think we ought to do that, and I sympathize with a great deal gf what was said by the honorable and learned member for Parkes, who pointed out that the bonus is altogether out of proportion to the simple cost of harvesting, and far in excess of what the planters deserve. The concession is, in this respect, open to the objections urged against it, but -it was unavoidable under the circumstances. Let us not, however, go any further in this respect. I found a great volume of Queensland opinion against any further relaxation of the provision, under which concessions enough, if not too many, have been given to the planters in respect to the employment of white labour. I trust we shall hold our hand, and let the rebate be duly earned by, and paid to, those who, in future plantings - and planting is going on from time to time in various parts - use white labour. In those cases where planters have had time to make up their minds, and have not employed white labour, no bonus should be given.
– In some cases it is stated that planters are getting the cane trashed, out, and taken to the mill for the amount of the bonus, so that the cutting costs them nothing.
– I have heard that said time and again, and it is bad enough to have to pay the bonus under those circumstances.
– Does that occur in New South Wales?
– In Queensland.
– We ought to have a fair return for the bonus, and in my opinion we have already gone far enough in our concessions.
Mr. FISHER (Wide Bay). - I should like to point out to the Minister for Trade and Customs that the roots of sugar-cane may lie in the ground for five or seven years. Is it demanded that these roots shall be ploughed out, and planting take place elsewhere in order to earn the bonus ?
– Under the Bill the roots may have been put there by black labour, so long as that occurred before the 28th February, 1903; but it is apparently desired to allow the roots to be put in by black labour after that date.
– What percentage of la.bour is there in the planting?
– I am told on good authority that it is 5 per cent.
– Although I am not a planter, I venture to say that the percentage of labour is from 5 to 7 per cent. The sugar- growers in’ Queensland have of necessity been employing coloured labour, and the extent of that labour used in laying the roots is neither here nor there. I think the difficulty would be met if the Committee acted on my suggestion that the whole of the crop must be grown and taken to the mill by white labour only. The honorable and learned member for Corinella has suggested that, if the cane has been planted subsequent to the 8th February, 1902, by black labour, the bonus shall not be paid. Many cane-growers are economically bound to employ their hired kanaka labour for a term, and as the planting is such a small percentage of the whole process, I do not think there would be any loss in allowing the bonus on the growing and harvesting of the crops by white labour from old roots. I asked the honorable member for Werriwa why they should not?
– Because the work of clearing off the cane does not cost 3s. 6d. an acre in twelve months.
– The honorable and learned member is arguing from quite a different point of view from that from which I look at the matter. I hope that the Minister for . Trade and Customs will not insist upon the amendment, because, if he does, instead of promoting the “ white Australia” movement he will be retarding it.
– Hear, hear.
– He will be making it more difficult for big plantations to come in, and will arouse influences involving millions of pounds, and excite political discussions which will undoubtedly militate against the object which we have in view.
– Although we are dealing with a measure intended to carry out the desire of the Committee to encourage the employment of white labour, the Bill is being transformed more and more into one which will have the opposite effect. It might very well be styled a Bill to make bonuses for the employment of white labour payable on sugar grown by black labour. The alteration of the date from the 28th February, 1 902, to the 28th February, 1903, will have the result that sugar entirely grown by black labour up to the later date, and upon which white labour is employed for only a very limited time afterwards, will be entitled to a bonus, as though it had been cultivated entirely by white labour. That is not what the Committee desire.
– But it will apply only to the present year.
– I am speaking of the present effect. Yesterday, the honorable member for North Sydney suggested that there should be a limit as to the time within which it should be obligatory to employ white labour only, and that that limit should be the period occupied by the growing of a crop, which was set down as one year. The bonus would then be payable only on crops produced entirely by white labour.
– That is more liberal than the Government proposal ; it means more money.
– But does it not give better effect to the desire of the Committee to encourage the employment of white labour only 1 In view of the heavy charges imposed upon the people to give effect to this intention, I hope that we shall agree to some arrangement which, while doing no injustice to the planters of Queensland, will be fair to the community at large.
– I confess that I was surprised to hear frorn the Minister for Trade and Customs that the regulations ran the gamut of the Cabinet, from the Governor-General down, without it being discovered that they were ultra vires.
– They were laid upon the table of the House when we met, and were also published in the Gazette.
– If the Minister’s answer is that we should have read the regulations I in the Gazette, my reply is that this is the first opportunity we have had to discuss them. As soon as they were brought for-
I ward for discussion, the weakness which I have mentioned was noticed by several honorable members as well as by myself. If I have to make a choice between the Government amendment and the suggestion of the honorable member for North Sydney, I must accept the former, though I do not like it. The honorable member for Wide Bay does not seem to perceive that the position he takes up means that, in spite of all the warnings which the sugar planters have had, they are to be permitted to plant cane with black labour, and subsequently cultivate it with white labour, without prejudice to their right to a bonus for it as cane grown entirely by white labour.
– Cane is not planted every year ; it is sometimes left in the ground for seven years.
– Well, as the Bill stands, if it were planted with black labour before the 28th February, 1902, but cultivated since that time with white labour, it would still be entitled to a bonus. But if growers have, since the 28th February, 1902, planted fresh cane with black labour, they have deliberately disregarded the term3 of the Excise Tariff Act, under which the bonus is payable. The Government now propose to extend the time within which cane entitled to a bonus may have been planted by black labour until the 28th February, 1903. But, if we agree to the proposal that a bonus shall be payable upon all crops which have been worked with white labour for twelve months, it will mean that planters may go on employing black labour until 1905, and then claim bonuses upon the crops cut in 1906. No planter, however, should be entitled to a bonus on a crop deliberately planted with black labour after the date mentioned in the Excise Tariff Act.
– But what about those who have black labourers under contract, whom they are bound to employ ?
– The planting of cane costs only from 5 to 7 per cent, of the cost of the crop. Let them employ white labour for the planting, and use the black labour upon the vast areas already planted. If a man is replanting, and wants to get a bonus on the cane grown, why should he not be compelled to employ white labour %
It is now argued that, because certain planters have black labour which they cannot get rid of for another twelve months, they should be at liberty to employ that labour and still obtain a bonus. But, if that is allowed, the very purpose of the bonus will be defeated, and the intention of Parliament in passing the Excise Tariff Act will be flouted. I protest strongly against the argument that, because planters cannot get rid of their black labour at once, they should still be entitled to bonuses. To grant bonuses under such circumstances would be another departure from the bargain originally made when Parliament passed the Excise Tariff Act.
– We have in this matter an illustration of extraordinary administration. The Minister for Trade and Customs acknowledges that he issued a regulation in direct contravention of the provisions of the Act.
– I did not say that.
– The right honorable member must make that admission, because the Act is as clear as day-light, and the date is specified in it. The attention of the right honorable member must have been directed to the matter when the question of framing a regulation was brought before him. I could excuse him if there were any doubt about the meaning of the Act, but it states specificially that up to a certain date the employment of black labour shall not prevent a grower from obtaining a rebate. There was therefore no excuse for the regulation extending the time. Last night the Treasurer, who was then in charge of the Bill, pleaded for an amendment providing for the fixing of a date each year as being absolutely necessary ; but this afternoon the Minister for “Trade and Customs states just, as emphatically that he does not approve of such a proposal, and regards it as unnecessary and wholly undesirable. Surely the Committee have a right to expect uni: formity of opinion and action from Ministers. It cannot be a matter for wonder that considerable confusion exists in the Committee when there is such a difference of opinion among Ministers. I had no idea when the Excise Tariff Act was passed that it was intended that in dealing with the production of a cane crop we should go back to the original planting of the roots. If I were told that a bonus would apply to the crops coming from a certain tree - and
Sugar-cane is really a species of tree - I should expect it to apply to each crop, and I see no reason why the sugar bonus should not be so regarded. I agree with the honorable member for Wide Bay, and I think we should be committing an absolute absurdity if we did not deal with this matter in the manner suggested by him. The planters cannot jump about from one kind of labour to another, because, if they once embark in the cultivation of a large area by means of white labour, the black labour will go from them, and they will not be able to revert to it. We should be led into an absurd position if the proposal of the Minister were agreed to. Many of the planters have entered into kanaka labour contracts, which we have specifically recognised under the legislation we have passed. We. know that these agreements extend over a term of years, and that the planters cannot at once get rid of the kanakas however much some of them may desire to do so. Manj’ of them have, no doubt, already determined that, when the kanakas can be dispensed with, they will avail themselves of the opportunity to claim the bonus given for the production of white-grown sugar. In the meantime, many planters can do nothing but utilize the services of the black labourers whose term of engagement does not expire for some time to come. In some cases planters may have set out their crops one or two years before they are able to get rid of their black labour, and, according to the Minister, when such men desire to come under the provisions of this Act, and employ white labour, they are to be told that they must uproot all the cane that has been planted by means of black labour and start afresh. Are we to impose such an absurd condition upon the planters ? If it is held that the planters have sinned by employing black labour - I do not agree with that view, myself - the sin has been already committed, and there is no reason why the planters should be practically compelled to go on sinning by being precluded from the benefits offered by our legislation.
-The planters need not uproot their cane, but they cannot expect to get the bonus.
– But the planters will have to uproot their plantations if they desire to comply with the conditions laid down by the Minister.
– Cannot the planters get rid of the black labourer as quickly as he puts in their crops?
– No, they cannot get rid of the kanakas who are under engagement to them.
– But the labourers are going off every year because they have been engaged for terms which expire at different dates.
– That all depends upon the size of the plantations and the periods for which they have been under cultivation. If a planter has a large area, which has been gradually brought under cultivation, his labourers will probably have been engaged from time to time as the work has increased. Therefore he may be in a position to gradually substitute white labour for black. With smaller men, however, who would probably have engaged the whole of their labourers in one batch, the process of conversion would not be so easy. I see no reason why the bonus should not be given to the man who takes off his crop from start to finish by means of white labour.
– From the planting.
-No; I mean for the whole period occupied in bringing the crop to maturity after the previous crop was gathered. The one planting may suffice for half-a-dozen crops. Would the Minister say that the production of a crop of fruit is to be regarded as commencing with the planting of the trees ?
– If you do not plant trees you do not get fruit.
– I admit that the crop is the result of the planting of the trees and of the soil in which the trees are planted. But it would be ridiculous to say that a man should be compelled to go back to the planting operation in connexion with the production of any one crop out of several crops which the one planting will yield. We should allow those who genuinely desire to employ white labour to obtain the benefits conferred by the Act without compelling them to uproot their crops. One planting of cane will last, perhaps, as long as seven years, and several crops may be gathered ; and I think, therefore, that the full purpose of Parliament willbe served if the crop of cane from one harvesting to the next is handled entirely by white labour. Sometimes from sixteen to 24 months are occupied in maturing a crop of cane. It was astonishing to me to hear the Treasurer pleading so strongly yesterday for something more than
I am now advocating. It was the something more that I objected to. I disliked the proposal to give the Minister power year by year to fix the date in such a way that the bonus might be given in respect to crops upon which white labour might have been employed for only three or four months.
– Is the honorable member in favour of giving the bonus to those who planted their crops by means of black labour since 1902?
– I am in favour of any crop which from the previous cutting has been entirely handled by white labour receiving the benefit of the bonus.
– That would cover a period of only six months.
– No ; crops occupy more than six months in coming to maturity. A little less time may be taken in northern . Queensland ; but, in the larger sugar districts, sixteen or eighteen months, or sometimes two years is required.
– That is by what is called “ stand over “ cane.
– No; it is planting cane to which the honorable member is referring.
– Yes. I am prepared to support the honorable member for Wide Bay in his contention that the bonus should be paid upon any crop that has been wholly cultivated by means of white labour. As to the other proposal of the Minister which is really intended to absolve him from the consequences of a breach of the Act, I need only say that if we come to the conclusion that the bonus is to apply to all cane from the original planting right onwards, that is what we decided long ago, and there is no reason to alter it.
– I do not regard the alteration of the date for registration as practically material, because nothing is material in politics when it is done, and cannot be undone. Whatever may be said with regard to the administration of the Minister for Trade and Customs, Parliament must condone his action. I do not speak on this occasion simply because the sugargrowers in my electorate are specially interested in this question. It is generally believed that sugar-growers are rather more selfish than other producers, but the planters in New South Wales, although they had as large a work to perform, in comparison with the area under cane, as those in
Queensland, took advantage of the offer of the Federal Government almost at once. I do not claim any special credit for them, because they had the command of more white labour than could be secured immediately by the growers of Queensland.
– That is an open question.
– Perhaps so. Further, the Queensland sugar-growers were more hampered by the legal and binding obligations into which they had entered in connexion with the employment of coloured labourers. These facts made it more difficult for them to secure immediately the benefits offered under our legislation, and therefore I hope they will be treated fairly and honestly. Some honorable members may have no interest in the sugar industry, but -every one on this side of the Chamber is concerned in the intelligent administration of the Government which he supports. W e are interested in seeing that the Minister acts in accordance with what we believe to be the spirit and intention of the legislation we have passed, and therefore every man who desires to bring into existence as speedily as possible a white Australia will vote against the Minister for Trade and Customs on this occasion. The honorable member for Herbert acted indiscreetly, although I am sure with perfect honesty, when he stated yesterday that some dishonest practices had been followed in connexion with the sugar rebates. We know that some people who should have known better acted in a way that, although perhaps within the law, was morally wrong. That might be a serious charge to make against the administration if it could not be made with equal truth in connexion with every law. There has never been a law passed that has not carried in its train the certainty that some one would evade it. We are continually amending our laws,- because men succeed in evading their provisions, and the law regarding the sugar rebates has suffered only in the same. way. Only a small amount was involved in the frauds, which may be regarded as the natural outcome of the enactment of such legislation. It might have been better if those honorable members who have a full knowledge of the industry had accepted the suggestion made last evening by the honorable member for North Sydney, to make the bonus applicable to the crop ; the term crop being subsequently defined by regulation.
– By definition in the Bill.
– The right honorable member says - “ By definition in the Bill.” To that there can be no objection. The whole matter has originated in a want of political rectitude on the part of the Opposition. I make’ that statement because vice discovers kindred vice, and if the Opposition had not been inclined to many acts of evil administration-
– Order ! The honorable member must not discuss that matter.
– By his ruling, the Chairman says in effect that, to be in order, it is not sufficient for a statement to be true, so I will not discuss that aspect of the case. Under our Constitution, it is presumed that a man who obtains high office in a Government is worthy of public trust. If he be not fit to administer an Act of this description, he is not .fit for his position. This debate had its origin in a declaration by the Opposition that they would not trust any Minister for Trade and Customs to administer the payment of this rebate. But if a Minister is not to be trusted in that respect, how can he be trusted with the control of the vast trade of Australia ? Is a man who might within twelve months make a fortune which would place him beyond any financial danger for the period of his natural life - and that is the position of any Minister for Trade and Customs - not to be trusted ? It is much to the honour of the Minister that his pockets are not bubbling over with coin. Similarly it is to the credit of our public men that very few of them have made anything out of politics.
– Why all this “skite?”
– It is not “ ski te.” The honorable member for Maranoa may think it is, because I have employed language which he may- not appreciate. My vocabulary does not permit of the use of the word “skite,” though I possibly may have a vague idea of what it means. The honorable member for North Sydney was absolutely wrong in his contention, and that is the root of the whole trouble. He knows very well that a man who is fit to control the administration of the Customs Department of Australia, who is honest enough to deal openly and fairly - as I believe every occupant of that office will - with the whole trading community, is surely competent-
– No one has said anything to the contrary.
– The honorable’ member declared that we should always be careful to incorporate in our laws exactly the procedure intended.
– I said that when we could express our meaning we should do so. I was not alluding to the Minister for Trade and Customs in that connexion, but to Ministers generally.
– The honorable member knows that we cannot put such a provision in our law. We must leave the honest administration of any Act to the Ministerial head of the particular Department concerned. The ramifications of the matter under discussion are so great, and the incidental difficulties so certain to recur year after year, that no one, save a trusted Minister, and one who is fully seized of the whole circumstances of the case, can possibly deal with it.
– Iwas replying to the proposal of the’Treasurer to place certain options in the hands of the Minister. Now the Minister says that he objects to those options.
– I quite agree that the Minister for Trade and Customs is a little worse than is the honorable member at this particular juncture. We were able to convert the honorable member last night, but we have to start afresh to-day with the Minister, for Trade and Customs. With regard to the remarks of the honorable and learned member for Corinella, I admit at once the difficulties of the situation. When once a cane crop has been placed in the ground, it will last for a considerable period. If that crop has been once touched by black labour, after the date specified in the Excise Tariff Act, it is tabooed for all time.
– But the growers have had full warning given to them.
– That is so. But suppose that a man has 1.00 acres of cane planted, and is employing a certain number of coloured labourers under contract. It may not be possible for him to immediately dispense with their services. Even though he may be anxious to obtain the bonus which is offered, he cannot get rid of them. Therefore we must either be absolutely unjust to him, even though he desires to subsequently take advantage of the provisions of the Act, or the people of Australia must do a little more than they are legally entitled to do. I believe that, in the interests of a white Australia, it is better that they should go a little further than they are technically bound to rather than delay the opportunity for the employment of whi.te labour. If we do not allow any sugar-grower to participate in the bonus granted under this Bill who has used black labour after the specified date, what will be the result? At the end of 1907 we probably shall have as many coloured aliens working in Queensland as there are to-day. Of course, a man could deal with an ordinary crop, such as wheat.
– Or with beet.
– Yes, there would be no trouble in that “case. There are at least 8,000 kanakas in Queensland to-day. If a grower is employing 80 of these Pacific Islanders under contract he is absolutely powerless. I believe that this Parliament desires to be perfectly fair. It might suit me as a New South Welshman to selfishly hamper the Queenslander, but as a representative of the Australian people it is my duty to see that justice is done to the Queensland grower. I believe that the honorable and learned member for Corinella takes up a similar position.
– It does not affect my constituency.
– I am sure that it does not. When the honorable and learned member appears before his constituents and tells them that he believes it was necessary to grant the Minister certain powers in order to expedite the advent of a white Australia, even though it was certain that some growers might thereby obtain rebate upon some crops which had been previously cultivated by black” labour, I am sure that they will justify his action. Let me suppose that the honorable and learned member was a sugar-grower in Northern Queensland, and had in his employ coloured labour under contract. If next year, or this ‘year, he cut ‘ and trashed his cane with black labour, . so long as that cane lasted he would, under this Bill, be prevented from participating in the bonus offered upon white-grown sugar. Does the honorable and learned member or the Committee desire that ? I grant that, in many instances, the cane crops will be cut by black labour. But I hold that we can fashion this Bill in such a way that, by reasonably intelligent administration, we can overcome the difficulty thus presented. Let me suppose that some rascal in the north in an electorate other than my own made a claim for the payment of a bonus to which he was not entitled. What does it mean to the people of Australia 1 What would it amount to in any honorable member’s electorate? The sum involved would be an infinitesimal one. I am convinced that the desire of the Committee is to insure the Bill being effective. 1 tell the Minister for Trade and Customs that if it passes in its present form he will be seeking an alteration of its provisions within twelve months, because we shall still have the coloured labour with us, and the reduction cannot be other than gradual. The end in view is not the payment of a small bonus. Our real object is to make it clear to the world that no black labour is to be employed in the production of sugar in Australia. The work in our industries is for our own workmen. If we have to pay a little more to secure that desirable end who will be heard to complain ? I shall vote foi’ the proposal of the honorable member for North Sydney.
– It has been withdrawn.
– I am satisfied that if the honorable member is convinced that it will be supported he will submit it again. Failing the adoption of that proposal, I shall be prepared to accept any period rather than that the door shall be shut in the face of the Northern Queensland sugargrowers. I know their troubles, and that flesh and blood are involved in that industry. The abolition of the employment of black labour will be a burden for them ; but keep the door open for their regeneration. Every individual possessed of a particle of manhood should make it possible for the sugar planters of Northern Queensland to aid in creating a “ white Australia.”
– I am convinced that the amendment submitted by the Treasurer does not place us in a more forward position than that which we formerly occupied.
– It only validates what has been done by the Minister for Trade and Customs.
– But I understand that the regulations which have been gazetted were intended to provide ‘for the cases of fresh applicants for the bonus from year to year.
– Only up to the specified time.
– Does the Minister hold the view that no sugar-grower who is not already registered can take advantage of the provisions of the Bonus Bill 1
– No sugar-grower who employs black labour after the 28th February, 1903, can obtain the bonus by substituting white labour upon the same cane.
– He is shut out for all time.
– No ; but he cannot par- .ticipate in the payment of the bonus in respect, of that cane
– I do not think that was the intention of honorable members when the Excise Tariff Act or the Pacific Islands Labourers Act was under consideration.
– Yes. I will prove that point by quoting from a speech whish was delivered on 11th of February, 1902.
– There was a date fixed in 1902.
– There was a date fixed subsequent to the 28th February of that year.
– The honorable and learned member refers to a date after which advantage could be taken of the bonus provided. It was never suggested that planters who desired to substitute white for black labour subsequent to 1902, and who employed coloured labour for two or three years, say, up to 1904, should be ineligible to claim the rebate.
– The Minister for Trade and Customs put the matter very clearly, as will be seen by reference to Hansard
– That never entered my mind, and I listened attentively to the whole discussion. I never thought for one moment that a planter who employed black labour during 1902, and who, when the conditions under which he was compelled to use that labour ceased to operate, substituted white labour, would be debarred from taking advantage of the rebate. I always understood that the regulations were simply provided to enable planters to come under the provisions from year to year but now we are told that they are debarred unless they are practically registered as growers of sugar with white labour prior to February, 1903.
– They need not necessarily be registered, but they must be growers with white labour.
– I understand the contention to be that, if they do not come under the provisions of the Bill by that date, they cannot take advantage of the rebate at any subsequent period.
– Not while the old roots last.
– The roots will last beyond the period of 1907.
– All roots, however planted, are clear up to the 1st March, 1903.
– I do not think it was ever contemplated that such conditions would be imposed.
– Yes ; that was specially mentioned. ‘
– I understand the roots are safe to the 1st March, 1903, and- that only the subsequent planting of fresh roots by black labour would debar growers from the advantage of the bonus.
– The planting of roots subsequent to February, 1903, may perhaps be on!)’ a minor matter.
– Supposing a kanaka be employed to-day on any cane, that cane cannot under any circumstances earn the bonus under the Bill.
– Supposing black labour is employed during the seasons of 1903 and 1904 on cane planted’ prior to 1903, and that in 1 904 the planter, by reason of the expiration of the contract with the kanakas, proposes to utilize -white labour, is he to be debarred from taking advantage of the bonus?
– He is so debarred under this Bill.
– I do not think that was ever contemplated. Planters have contracts with black labourers, and when the Pacific Islands Labourers Bill was before us, an extension for a considerable number of years was provided, in order to allow those contracts to expire. I can quite understand that for many reasons planters could not dispense satisfactorily with kanaka labour while those contracts existed ; but it was never argued that planters so circumstanced should be denied privileges granted to other planters. I still adhere to the idea which I put forward yesterday, and which has been elaborated by the honorable member for North Sydney to-day, that, provided ali the business of cultivation ofone season’s crop, and the cutting and carrying to the mill, be done by white labour, the bonus should be paid. It is simply making an absurdity of the Bill if we exclude from its advantages planters who are compelled to retain black labour for some time after 1903, but who, when circumstances permit, propose to have their work done by white labour.
Mr. CONROY (Werriwa). - When I referred to the danger of making an alteration in the legislation already passed, I referred to two other Acts closely allied. I find, on reference to Mansard, that the Prime Minister, in speaking on the Pacific Islands Labourers Bill, said - . . . that the question of the treatment of the sugar industry was so closely interwoven with the fiscal question that I could not ask honorable members to go on to debate a Bill which dealt, however . comprehensively, with only one part of the question, and that I must ask them to suspend their judgment until they knew what the Tariff provisions were, as well as the proposals with regard to the employment of kanakas. . . . Therefore I ask honorable members to form their own judgment upon what I shall lay before them, and to form their own judgment upon this Bill with only one reservation - namely, that the Bill stands not alone, but the Bill and the support to the industry which must inevitably be given by the Tariff must be taken and must be read together.
I read this extract in order to show that the Pacific Islands Labourers Bill was incorporated with the Excise Tariff Act ; and when we find three other measures were also involved, I do not think it right on the part of Parliament to attempt to make any alteration in the arrangement then entered into. The Bonus Bill ought to be simply what it was intended to be in the first place - merely an alteration in the method of paying the excise ; and it would be far better, no matter what the views of honorable members may be, to keep to the original arrangement. Some honorable members have stated that it was not the intention of this House at the time that there should be any such difference as has now been made’; and I need only refer to the honorable member for Herbert, who, in speaking on the Tariff in February, 1902, said -
The Minister for Trade and Customs has already affirmed the principle that after this month there will be no possibility oE its being increased to any great extent. He has said that those desiring to grow cane by white labour only must register this month, and that if they do not they will not be entitled to claim a rebate.
– That is not quite so - if they
– For this 3’ear.
– Dothe last two interjections not alter the whole effect ?
– I think not. The honorable member, continuing, said -
That was the impression conveyed to me by the Minister, and I am pleased to hear that he does not adhere to that opinion.
My reading of those extracts is that the Minister for Trade and Customs stated then what he states now - that it was not his intention, except where the planting - which is the most important part of the work - was done by white labour, to allow the rebate. We are not proposing to interfere with people who choose to employ black labour ; we only say that if the cane has not been planted by white labour the bonus cannot be claimed. The honorable member for Herbert will bear me out that the chief work lies in the planting, and that some time has to elapse before there is any return, so that there are many reasons why a rebate of £2 per ton should be asked for. If it had been proposed that a bonus should be given merely on the growing crop, I am sure it would not have been fixed at £2 per ton, or at 4s. per ton of cane, the latter of which actually amounts to more than the cost of cultivating, cutting, and crushing.
– Does the honorable and learned member really believe that ?
– The honorable member for Richmond knows that it does not cost £2 per acre, taking the average yield at ten tons of cane, to pay the cost of the work I have indicated.
– What does it cost to cut the cane only ?
– I have known it to cost as much as 5s. and as little as 2s.
– What is the average?
– That depends upon the crop. I have known 70 tons of cane to the acre, and in other cases only 15 tons, and surely the latter would not be cut at the same rate as the former. My statements in these respects are borne out by the statistics of Mr. Coghlan. During the Tariff debate, in February, 1902, the Minister for Trade and Customs said -
It is difficult to differentiate in regard to conditions, and ascertain whether black labour has been employed. We solve the question as liberally as we can, and say - “ Go on ; there is the rebate after this time, and so long as you get rid of the black labour before the 1st March, you will be equally entitled to it ; we shall not cast against you what you have done in the transition stage.”
The right honorable gentleman had previously said -
What we say to a grower is-“ If you do not employ black labour after the 28th February, we will not count the employment of black labour before that date against you in considering the question of rebate.”
– I thought that referred to the crops.
– No ; taken in conjunction with what he said to the honorable member for Herbert, it is clear that the Minister for Trade and Customs meant that if the planters started afresh they were entitled to the rebate, and he says so now.
– When ?
– On the production of the cane.
– That must include the planting.
– Quite so, or otherwise the bonus would not have been as high as £2 per ton. The period is extended to the 28th of February of this year, and if white labour then is substituted for black labour, it is contended that the planter in the case of crops, the cutting of which may even now have started, shall be paid the bonus although white labour will be utilized for only some four months? If the proposed alteration is made, such a state of things would be possible ; and this shows the undesirability of departing from the original compact. The Pacific Islands Labourers Act, the Excise Tariff Act, and this Bonus Bill are all interwoven, and no one of them should be altered unless honorable members are given an opportunity of dealing with the remainder. It is impossible to say exactly what influenced honorable, members in supporting those measures, but, as they were passed as a whole, no one of them should be amended without an opportunity being given to reconsider the others.
– Does the honorable member believe in ploughing out ?
– No; but I do not believe in a man who has not grown his cane wholly with white labour getting a bonus of £2 per ton for it. The statement of the Minister for Trade and Customs in regard to the provision in the Excise Tariff Act was clear and emphatic. He said that no grower would be entitled to a bonus unless he employed white labour only after the date i therein specified.
– What are the planters who have lost all their kanakas to do in regard to the next crop 1
– It may be that no provision vas made to meet’ their case. It seems to be forgotten, however, that there is a difference of £3 per ton between the excise and import duties on sugar. In one year the production of sugar in Queensland reached .194,000 tons, but, taking the average production at 120,000 tons, that difference means a loss of £360,000 a year to the Commonwealth. If the payment of such a sum annually does not offer sufficient inducement for the employment of white labour only in the cane-fields, it is almost a pity that we have any rich sugar lands at all. We should be better off if the land was barren, because then we should not have to pay the planters the .amount I have named. Even if I were a supporter of the Ministry, I should oppose any amendment of the measure in the manner suggested. All we were asked to do when the Bill . was introduced was to agree to the substitution of one manner of payment for another. .Had- I known, when the second reading was moved, that the alteration now suggested would be proposed, I would have raised the question then, and no doubt there would ha,ve been a long discussion upon it. The position would be different if the Ministry came forward and said - “ The Minister for Trade and Customs, who does not allow any one else to make a mistake without fining him for it, has made a mistake himself, and as certain men have been misled by that mistake, and have altered their methods of cultivation, we ask honorable members to agree to an alteration of the original arrangement.” But, even in that case, I should have opposed the alteration. I ask if it is fair that growers who from the first have employed white labour only, in order to obtain the concession granted by the Excise Tariff Act, should now’ be put on the same footing as those who have hitherto utilized black labour? I cannot conceive of anything more unfair. The Ministry are fast becoming advocates for the employment of black labour. They virtually tell the House that they intend to take advantage of their majority to place growers who employ black labour upon a level with those’ who employ white labour only. If we agree to the proposed alteration of the compact contained in the measures to which I have alluded, our action may in some future Parliament be taken as a precedent. I know that the protectionist party do not want to see any alteration of the Tariff / and, no’ doubt, if it were proposed to alter the sugar duties, the members of that party would say that we should not break a compact which was solemnly entered into by members on both sides of the House. But the force of that argument would disappear if it could be shown that an alteration was made in the compact by the very Parliament whose members passed the Acts originally creating it. I hope that no change will be made.
– The Government are undoubtedly to blame for .this lengthy discussion, because of the manner in which they have brought the subject before us. ‘The Minister for Trade and Customs seems to have been very much in the dark about the whole question from the very first. Last night the Treasurer pleaded hard with the Committee to empower the Minister to fix a date each year after which only white labour could be employed in the production of sugar-cane entitled to a bonus. His proposed amendment practically empowered the Government, as was pointed out by the honorable member for North Sydney and others, to grant bonuses to growers who employed white labour for only a few months in the production of a crop. But that was not the original intention of Parliament, nor was it the desire of the people. Now, however, the Minister for Trade and Customs takes a different attitude, and tells us that he will not depart from the original arrangement, beyond altering the date specified in the Excise Tariff Act to the 28th February, 1903. The Act fixed the date as the 28th February, 1902, and the Minister issued a regulation which was ultra vires, altering it to the 28th February, 1903. Now he tells us, in a perfectly nonchalant manner, that the mistake was a mere nothing, and that he was not aware that he was acting ultra vires. What should we say to him for such a confession, after his attitude towards the public in connexion -with the mistakes which have occurred under the administration of another Act ? Shall we tell him, as he has told others,. that he had a right to know what was in the Act, and should not make mistakes ? That if the officers of his department are not competent to advise him better, he should employ men who are competent ? That he should not sweat his officers or use boys ‘ in knickerbockers who might be expected to make mistakes, but should avail himself ‘of the services of men who are sufficiently well paid to be able to perform the work required of them ‘( If no excuse could be made for the mistakes which have been committed by others in connexion with the administration of the Customs Act, what excuse can be made for the Minister in this instance ? It only shows how fallible -human nature is. The question with which we have to deal is, how far shall we go in offering inducements to planters to abandon black labour and to use white labour 1 I am willing, as I have been from the first, to make considerable concessions to effect that object. I still think that we should give all the inducement and assistance we can to planters to secure the substitution of white for black labour. But having thought the matter over very carefully, I cannot offer anything better than the suggestion which I made last night for an amendment of the clause, providing that a planter who intends to apply for a bonus shall register his intention twelve months before. That would give the Department an opportunity to instruct its officers to watch his plantation to see that no black labour is employed on’ it. If a man does ‘ not register, the Department is not asked to exercise any supervision, but whenever a planter registers he will intimate to the Department that for twelve months before the delivery of his crop he intends to use white labour only, and its officers will then have to see that he carries out his promise. From what I have learned about the cultivation of sugar cane, the season during which the cane is cut lasts for five or six months - from July to December. If we adopt the crop to crop principle, we shall extend the period, which might range from six to perhaps eighteen months. By accepting the twelve months’ period, however, we shall call upon the planters who have decided to employ white labour to register, and then the organization of the Department will be brought into operation, and safeguards may be taken against any evasion of the Act. 1 hope that honorable members will show that they are ready to afford every opportunity to the planters to effect the change from black to white labour, and that they will frame the necessary provisions in a liberal spirit. The honorable and learned member for Werriwa said that some planters had given up black labour and had employed nothing but white labour from -the very outset, and that, therefore, it would be unjust to such men to offer special facilities to those who had delayed making the change. But those who gave up black labour immediately our legislation came into force were, in 99 cases out of 100, in such a position that they could get along with white labour as well as with black. That applies very largely to the New South Wales planters, who had not entered into any contracts for the supply of black labour, and did not require to keep the kanakas for any specified time. As we go further north the black labour trouble is intensified, as was well known to honorable members when the Bills relating to the’ employment of kanaka labour upon the sugar plantations were under discussion. We knew then that many of the planters had entered into contracts for the employment of kanaka labourers in numbers varying from perhaps ten to 200 or 300, and that they could not get rid of them for some considerable time, the unexpired period of engagement ranging from perhaps six months to three years. As our object is to replace black labour with white as soon as possible,’ I think we should allow planters, whenever their contracts for black labour expire, to take advantage of the inducements offered for the employment of white labour. If we make it necessary for planters to register when they desire to start the employment of white labour, and we at the same time prevent them from obtaining a bonus until twelve months after the date of registration, we shall provide all the necessary safeguards. I can see no reason why, if a man has planted his fields with black labour and has tilled them with black labour, we should say to him “No; you must plough out all you have done, and plant over again.” That would involve a needless and wasteful destruction of national wealth. In dealing with this very difficult matter of policy, I think we can afford to treat with justice, if not with liberality, those planters who are willing under the policy we have adopted to get rid of the kanakas at the earliest possible moment.
– In discussing this question last night, I said I would adhere closely to clause 2 as it was then printed. I meant to include the regulation under which the time had been extended until the 1st March, 1903. I had no desire to nullify anything done in that regard. As I was instrumental in bringing about that extension under the regulations, I should have stultified myself if I had taken up any other attitude. The honorable member for Richmond has taken some credit to himself for being able to speak from a disinterested point of view. I stand in an even stronger position than does the honorable member in that regard, because I represent the whole of the North Queensland sugar districts. I think that the electors in my district are more interested than are the sugar planters in the northern districts of New South Wales ; therefore the attitude I take up is simply and solely in support of the white Australia policy. I think that, perhaps, the honorable and learned member for Werriwa was right when he stated that the regulations adopted in the first instance should have been adhered to. At that time, however, I thought some extension should have been granted, and one that was conceded from the 28th February to 31st March, 1902, was subsequently extended to the following September, and again until March of this year. Therefore every opportunity has been given to those who wished to avail themselves of the provisions of the Act.
– That extension was more as regards the registration of claims. It was not an extension of the period for employing black labour, but an extension of the time for registrations.
– Exactly. When Federal legislation was contemplated in regard to the employment of kanakas in Queensland, a number of planters immediately sent away to the islands, and obtained all the recruits they could absorb, their object being to render nugatory, as far as possible, the legislation passed by us. Many of the planters considered they were very smart, but now they are sorry, because they say it is difficult to get rid of their black labour. It has been stated that this position was never contemplated when the Act was passed, but the contrary may be proved by a reference to Hansard, because provision was made that kanakas might be retained upon one part of a plantation, whilst another portion was being worked by white labour. The argument to which I have referred was raised in opposition to what was considered a drastic regulation, and it was then stated that the division of the plantations would be allowed. As a matter of fact, a number of plantations are being worked partly by white labour and partly by black labour, the operations of each class of labour being restricted to different portions of the same plantation. A number of the kanakas now working on the ‘plantations of Queensland were got rid of by their original employers, but they have remained there for many years and have- been re-engaged. The Polynesian Labourers Act provides that when the kanakas have served for three years they may be re-engaged for a period of not less than six months, but many of the islanders who now find employment on the plantations are not under any engagement. This is in violation of the State Acts, because, with the exception of 600 or 700 to whom exemption tickets were granted, all of them should be under engagement to some one occupied in tropical agriculture. As a matter of fact, some of the planters have done everything they could to defeat the object of the Pacific Islands Labourers Act. If we adopt . the proposal to grant the bonus for cane produced by white labour employed for the whole of any season - I am not speaking about the proposal to fix a period of twelve months - it will be possible for planters to carry on their work with kanakas right up to the cutting of the cane and then register, employing white labour for the canecutting. It would be possible for the same planter to again revert to black labour, and once more register his plantation under the Act. The weakness of that proposal lies in the fact that it contains no provision that a man who once registers as an employer of white labour, and afterwards reverts to black labour, shall not be allowed to again register so that he may become entitled to the bonus.
– That would not apply if a twelve months’ period were fixed.
– Yes it would. If the twelve months’ period is adopteda stipulation should be made that in all cases where black labour has been reverted to the planter shall not be allowed to again register as an employer of white labour. If the Minister is willing to accept a suggestion of that kind I shall not oppose the adoption of the twelve months’ period, although, if the Committee divides, I shall certainly support the clause as it stands. I do not know whether the honorable member for Wide Bay has been approached by the fanners in his dis- trict, but the question of affording further facilities for claiming the rebate has never been raised in my electorate. The farmers there were perfectly satisfied. In the first place they did not expect any bonus, and in the second place they did not expect an extension of the time for nearly thirteen months. That came to them as something in the shape of a boon that was never contemplated. I gave them to understand, when I interceded on their behalf with the Minister, that I would not do so upon any future occasion, and I think it will be a mistake for the Government; to go any further. . The position takenup by the opponents of the clause appear to me somewhat illogical. They say that some of the planters cannot get rid of their kanakas, but if all the planters registered, what would become of the kanakas ? As a matter of fact, many of the kanakas have expressed a desire to be sent back to the islands, and I believe the Queensland Government is willing to allow their agreements to be cancelled if the kanakas and employers are alike agreeable, but the planters have stood in the way. They have obstructed the operation of the Pacific Islands Labourers Act all the time. One notable instance of this is to be found in the case of the Mulgrave Central Mill, the capital outlay in connexion with which was met by the Government. At the time the Pacific Islands Labourers Act was passing through this House, the ‘proprietors of the mill indented 250 boys, and are now, in contravention of the State Act, hiring them out to the farmers in the district. This was done with the intention of obstructing the white Australian movement as far as possible. I do not think that I need say any more upon this question. If the Government accept the amendment which the honorable member for North Sydney has outlined, I shall not oppose it. At the same time I certainly think that a good deal of consideration is required before it is accepted. To my mind, its adoption will be tantamount to taking a step in the dark, and, upon the whole, I think it would be better if the clause were accepted with the extension to 1903 proposed by the Treasurer.
– I should not have spoken upon this matter but for the remarks of the honorable member for Herbert. It seems to me that he is inclined to punish those who are endeavouring to carry out the desire of the people to secure a white Australia. It would be very hard indeed if persons who are loyally assisting in the accomplishment of that great object are to be punished because those interested in the Mulgrave Central Mill, and others, who for 20 or 30 years past have been strenuously opposed to that policy, are to be allowed to defeat it. A good deal has been said bv the honorable and learned member for Werriwa in favour of the payment of the bonus being limited to cane which has not been handled by other than white labour since 28th February, 1902. I think that his arguments in that connexion have been well refuted by the honorable member for North Sydney, the honorable member for Richmond, and the honorable member for Wide Bay, and their contentions have not been confounded by the quotations made from the speech delivered by the Minister for Trade and Customs last session, in which he informed the House that, after the date mentioned, the rebate should be payable only upon sugar which had been grown by white labour from the commencement. The point in dispute is as to what constitutes that commencement. Are we to regard it as the period when - after the harvesting of one crop - the next crop shows above the ground, or are we to calculate it from the planting of the cane 1 I hold that the contention of the honorable member for North Sydney and the honorable member for Richmond is correct, and that the beginning of the production of a crop, so far as the provisions of this Act are concerned–
– Can the honorable member plant a crop of cane in cleared ground for less than £5 per acre ?
– The contention of those who are opposed to the employment of white labour on the Queensland sugar plantations has always been that the work, which the honorable and learned member for Werriwa declares constitutes the great bulk of the labour there can be done- by white men. The opponents of the adoption of a white Australia policy have ever argued that white men could plough the land and plant the cane, but that when it grew up into a jungle and the breezes were shut out from it white labour was unsuitable. But the little experience which we have had of the opera- tion of the Excise Tariff Act demonstrates that white men have gone into the cane, cut it, and earned the rebate for the planters. We shall be doing an injustice to growers who are employing kanakas under contract for a term of years if we prevent them from participating in the payment of the bonus proposed under this Bill. In the position occupied by some of them, they are unable to get rid of the kanakas, although they may be very willing to take advantage of the provisions of the Act at a later stage.
– The honorable member desires to give them a bonus for the employment of black labour when there is no occasion for it.
– The honorable and learned member for Werriwa is distorting the facts. The honorable member for Richmond put the position very fairly. Let us take the case of a man who employed black labour for two years prior to the passing of the Excise Tariff Act. In the firm belief that the industry cannot be carried on without the aid of black labour, he may have sold his plantation to an individual who entertains quite an opposite belief. The latter may evidence his belief by employing white labour only from the moment that he assumes control of the plantation. Is it fair to shut him out from the bonus provisions of this Bill ? The feeling of the House at the time the antialien legislation was under consideration was that there should be a gradual change in the conditions offered tlo the sugarplanters. lt was known that under the Polynesian Labourers Act of Queensland, the engagements of the kanakas would not terminate for a number of years. Con- ‘ sequently we allowed a certain proportion of those who were deported from the Commonwealth to be re-introduced up till 1904. From that period onward, no more are to be permitted to enter the Commonwealth, and after 1906, those who can be deported without cruelty or injustice are to be so- deported. These facts show clearly that the Legislature contemplated bringing about the new conditions without inflicting hardship upon the kanakas and without doing injury to the industry itself. I do not think that any honorable member has a higher opinion of the desire of the Minister for Trade and Customs to do justice to every industry in Australia than I have, but at the same time he seems to me to be not acting generously in this matter. Having regard to the great object to be achieved, namely, the cultivation of sugar by white labour only, I shall be obliged to support an amendment on the lines of that suggested by the honorable member, for North Sydney.
Mr. THOMSON (North Sydney).- May I ask the Treasurer as an act of courtesy to withdraw his amendment, in order that I may move a prior one ?
Amendment, by leave, withdrawn.
Mr. THOMSON (North Sydney). - I move -
That, after the word “ employed,” line 4, subclause (2), the following words be inserted : - “ For a period of twelve months immediately preceding the delivery thereof for manufacture.”
I think that this proposal will overcome the difficulties which have been pointed out by honorable members upon both sides of the Chamber. It will get rid of the absurdity of requiring cane to be rooted up for no earthly reason whatever. It will also offer an inducement to the planters to take advantage of the provisions of the Bill so soon as their present engagements with the kanakas permit. Further, it will definitely settle the intentions of Parliament so that there will be no necessity for the framing of regulations antagonistic to the measure, in order to effect what the Minister thinks is desirable. For these reasons and for others which have been given during the course of the debate, I hold that it would be only fair and just to allow .planters who are anxious to fulfil the conditions which we impose an opportunity of doing so. Surely we are not going to make the mere touching of sugarcane by black labour at some previous period a bar to a bonus upon every crop from that root. Such a proceeding would be ridiculous. It would constitute an injustice to the growers, besides tending to discourage them. In some instances the roots of the cane have necessarily been planted by black labour, and under the Government proposal, to enable the grower to claim the bonus, he would have to deliberately destroy those roots - destroy the value attached to previous planting, simply to replant.
– For the sake of getting the bonus.
– But- the Excise Tariff Act was passed subsequent to the planting.
– I agree with the honorable member that there should be no alteration in the Act. If there is to be no alteration, it is undesirable to re-open a question which has previously been settled. But when an alteration is proposed - as it has been - we should see that a reasonable and fair provision is’ substituted and that an amendment is not made which is less satisfactory than the amendment that is now submitted. The honorable member for Herbert has said that he is quite willing to accept that amendment as a compromise. That honorable member represents a northern sugar district, and he, together with the honorable member for Wide Bay and other representatives of Queensland, have spoken in favour of the amendment. The same remark may be made of the honorable member for Richmond, who also represents a sugar district, and I think there are other honorable members who, like myself, are not, as members, interested in this industry, but who see reason, when we are making an alteration, of doing what is fair and reasonable, so as not to prejudice the intention of the Act we are seeking to amend.
Mr. KINGSTON (South AustraliaMinister for Trade and Customs). - I trust the amendment will not be carried. I have listened with a good deal of interest to what has been said, especially to what has fallen from the honorable member for Herbert. I speak in some degree from my own experience recently when I say that an alteration of the basis of the payment of the rebate is not to any extent expected or desired by the people of Queensland. I venture to think that the House of Representatives has already dealt very generously with Queeusland in the matter of the sugar rebate ; and I am not speaking without my book, because, time and again, I have been thanked for the action of the Government in this respect. As to the fixing of the amounts to be allowed per ton of cane, and as to the latest concession to which I referred, I say that the Government have fully anticipated the wishes of Queensland. Let us keep to the basis of the purchase of a white Australia. There is a good deal to lie said in favour of that position. We dealt with this matter comprehensively in the earlier stages of our Federal history, when we had before us the Pacific Islands Labourers Bill, and we dealt with each measure separately, but with each from the point of view of the other. Is it fair, when a Bill is introduced simply for the purpose of taking the money from another source, and removing a slight disability to which 3 o the States were previously subject - but which was fixed plainly enough - to ask that the basis should be further altered to the detriment of other States which were parties to the bargain 1
– That is what the Minister himself is asking for.
– Surely not. The Government are asking that the Bill as amended in- the way we have indicated may be passed ; and to seize this opportunity for altering the basis is not, in my opinion, fair. We provided as clearly as possible that the way in which to earn the bonus was to employ white labour from the very first. We had the regulation before us long ago, and it provides in the clearest possible language that white-grown cane means cane, in respect of which white labour has been employed from and including the preparation of the ground for planting, up to and including the delivery at the mill for manufacture. Honorable members know perfectly well that the understanding was that black labour must have nothing to do with the cane wherever it was possible to dispense with it. We simply made an express provision which we believed to be fair and right under existing conditions. We were legislating in 1901 for something to happen in 1902, and- we told the planters that so long as they did not employ black labour after February or March, 1902, they could earn the rebate. We have now extended the period to 1903.
– The Government were wrong in doing that.
– I think the action then taken was justified, there being ja, number of hard cases in which it was represented there had been no time to make arrangements. When the honorable member for North Sydney talks about it being necessary to up-root cane planted by black labour, he knows well that if the Bill be carried in the form proposed by the Government, not one root planted prior to March last will be affected. All such cane is protected, and in respect of it a rebate can be earned. What more is wanted] It is only in regard to cane which has been planted within the last three months, or since March last, that the Bill does not make provision for a bonus. If a planter has not employed black labour during the last three months he is qualified to earn the bonus, so that there is not the slightest necessity to talk about uprooting the cane. It is admitted that the great cost is in connexion with the preparation of the ground for tilling and planting - that the cost of cutting and carting at the annual harvesting is comparatively small. I do not care to remind honorable’ members of utterances on the other side, but it was pointed out by the ‘ honorable and learned’ member for Parkes - and I know his words are sufficiently well founded - that the cost of the harvesting is little compared- with the initial cost.
– What does the Minister call the “initial cost?”
– The cost of preparing the ground for the tilling and planting of the cane. The result of- the proposed amendment, if carried, will be that instead of having white labour, employed, as we desire, on the most important part of the work - that of the planting, with which it is not disputed white labour is perfectly competent to deal - we shall have black labour, and the planter at his own sweet will and pleasure, when little or nothing remains to be done, will substitute white men and collect the bonus. There is no question of liberality involved now ; the people of Queensland admit that the Government have been liberal, and they desire no more. Let us now be just and pay some attention to the requirements of the other States. The Government are proposing what is fairly justified by the circumstances. By the provisions of the Excise Bill it was found that the cost was falling on the consuming States ; and we are now taking the burden on ourselves willingly and freely enough, and. Queensland does not demand any further concessions. Of course it is difficult for some honorable members to resist voting for the amendment, but, as I say, the generosity to Queensland has. surely gone far enough. Let us be just to other States, and not depart from the principle of the Bill. If we do make the departure proposed, it will be possible for a planter to have black labour to-day and white labour to-morrow ; and where is the consistency of such a position ? The amendment proposes a change from a system which can be defended, and under which white labour is necessary from the first to the last - with, merely the exceptions rendered necessary by existing circumstances, and inseparable from the initiatory stages - to a system of a hybrid character, which I hope will not be accepted.
Mr. FISHER (Wide Bay).- There is no doubt that the Government, and especially the Minister for Trade and Customs, have been thanked for the action taken by them in reference to the sugar industry in Queensland and New South Wales. The honorable member for Herbert this afternoon said that the large planters in Queensland expected nothing and got something ; but that is no reason, or at any rate not a good reason, for our doing something which would militate against the purpose we have in view, f am sure the wish of every one here is to promote the settlement of white men where black men are now employed, and I submit respectfully to the Minister that his proposal does not facilitate that change in the way that the amendment of the honorable member for North Sydney would do. I rather regret the last sentence or two of the Minister -for Trade and Customs, who in them conveyed the idea that the rest of Australia is doing a great thing for Queensland. We ought to remember that Queensland, knowing that it would lose a good deal, generously came into the Commonwealth.
– All I can say is that we are losing a good deal by this sugar business.
– As to the preparation of the ground, it ought to be known that it is against the State law of Queensland for kanakas. to plough land.
– A good many things are done against the law.
– That may be; but, at any rate, the argument about the ploughing of the land falls to the ground. I am not in the least influenced by the strenuous and bitter opposition of th’e big planters ; my object is to carry out what I believe to be a sound policy. If the wishes of Parliament are carried out the planters must substitute white labour for black, and the contention is that to this end planters ought to be allowed to qualify for the bonus from year to year. I am not in favour of any labour or capital in the land being destroyed for a mere sentimental reason ; and I am sorry that the honorable member for Tasmania, Mr. Cameron, should suggest that roots planted by black labour Should be uprooted and planted afresh by white labour.
– I never made that suggestion ; I merely said that the planters must stand by what they had done.
– It is quite evident that all honorable members had not the same idea in their minds when the original Act was passed. It never occurred to me that we were providing permanently that all registration should be made by the 28th February, 1902. I regard it as absurd to provide that all’ those who intend to earn the bonus should be required to register by that time.
– Excepting those who had cultivated cane from the jump by white labour^ - that is, had started fresh planting in the old plantations.
– That brings us back to the old point, that the roots must be pulled out and planting commenced de novo.
– All cane planted prior to the date mentioned is exempt.
– But the planting does not cover the whole difficulty. If a single kanaka has been employed on or about the iane, the planter can receive no bonus ; and there are large plantations in Northern Queensland where there is no cane grown by white labour.
– And there never will be j the planters will get Chinamen as soon as the kanakas go.
– There should be no coloured labour at all if the Commonwealth law be carried out. It is for that reason that the larger plantations should have the opportunity to begin to earn the bonus by employing white labour at the earliest moment they think convenient. What injury will be done to the Commonwealth by allowing them a bonus for cultivating and delivering for manufacture a crop grown absolutely by white labour ?
– They do not earn a bonus offered as an inducement for employing white labour if they employ black labour.
– The point the Minister relies upon is that black labour may have been employed to plant the crop - that, so to speak, there is a small proportion of black labour in the roots. It would be a pity if this legislation, which I believe to be sound and generous, were partially destroyed by a blunder now. I hope, therefore, that the Committee will vote for the amendment of the honorable member for North Sydney. 3 u i
– And vary a compromise which was arrived at only a few months ago !
– As I said before, honorable members have different facts in their minds. It never occurred to those who know something about sugar-growing that all cane-growers could register before 28th February, 1902.
– Then the honorable member would not object to the amendment at some future time of the- other two Acts which were passed in conformity with it.
– I know that the honorable and learned member will follow whatever course he thinks is high policy, irrespective of the possibility of interfering with a compact. I do not lean heavily upon any understanding or compromise which may besaid to have been arrived at. I advocate the adoption of a course which I believe to be a just one, and which will do no injury to the Commonwealth. If honorable members who represent other States fear that too much will have to be spent in bonuses, they should say so ; but I do not believe that the great body of electors object to pay the price required to carry out the white Australia idea. What they are anxious for is that the carrying out of that idea shall not be endangered by the employment of a large body of kanakas in any State. I am not one of those who say that the employment of white labour will make sugar cheaper. Sugar growing is not an industry in which any man can make a fortune. A great many of those who have embarked in it have lost fortunes, and those now in it have to face difficulties as formidable as those which confront persons in any other industry. While I have a great regard for. the opinions of the Minister, I firmly believe that in this instance my views are better than his, and I hope that the amendment will be carried.
Mr. CONROY (Werriwa).- The difficulty I see is this : If the Ministry stand by their Bill, and merely provide for the substitution of a bonus for a rebate, I shall support them, and vote against the amendment. But if they are willing to depart from the sound position that no alteration at all should be made, I am placed between two fires. One honorable member has estimated that at least 30,000 acres may be affected by an alteration such as that which has been proposed by the Government, and the Treasurer estimates that the area will not be less than 10,000 acres. Rut, taking it at 20,000 acres, the Government alteration will cost the country at least £40,000. The financial side of this question has not been put before us. The Ministry are charged with the task of seeing that the expenditure of the Commonwealth is kept as low as possible ; but now they are proposing an alteration in the law which they admit will increase their expenditure by £10,000, and may increase it by £40,000, and even by as much as £00,000. That is a very serious matter. The reasons given by the Minister for Trade and Customs why the amendment of the honorable member for North Sydney should not b« accepted were extremely sound, though they tell quite as strongly against his own proposal, and we cannot consider him so stupid as not to know that. But while I. am opposed to any alteration, I think that if an alteration is made, the whole matter must be fully reconsidered. Therefore, although, if the Government are prepared to stand by the Bill as it was introduced, I shall vote against the amendment of the honorable member for North Sydney, I shall feel compelled, if an alteration is to be made in any case, to vote for that amendment. Because it must be remembered that after 1904 the importation of kanakas must cease ; and many of the planters will then be compelled to employ white labour because they will be unable to obtain black labour. It would be rather hard, therefore, if no provision were made for them. If an alteration is to be made, extending the period within which a bonus can be obtained, at a cost to the Commonwealth of at least £10,000, and possibly of £40,000 or even £60,000, we might as well agree to an alteration which would deal with the whole case, and adopt the amendment of the honorable member for North Sydney. But despite the fact that that amendment would meet the case if the matter had to be opened up again, I would rather see things left as they are. Still if the Government are determined to extend the period fixed in the Excise Tariff Act, I shall feel bound to vote for the amendment of the honorable member for North Sydney.
Question - That the words “ for a period of twelve months immediately preceding the deliveiy thereof for manufacture” proposed to be inserted be so inserted - put. The Committee divided.
Majority … … 12
Question so resolved in the negative.
Amendment (by Sir George Turner) agreed to-
That the figure “2, “ line 7, be omitted, with a view to insert in lieu thereof the figure “ 3.”
Clause, as amended, agreed to.
Clauses 3 and 9, agreed to.
Bill reported with an amendment.
Sir GEORGE TURNER (BalaclavaTreasurer). - I move -
That the standing orders be suspended so asto allow the Bill to be passed through its remaining stages this day.
I am very anxious that this Bill should be- . passed on to the Senate as soon as possible, and unless the course I now propose is followed, I am afraid that we shall not be able to pass the third reading until Tuesday next. If we dispose of the Bill to-day, we shall be able to forward it to the Senate almost at once, and get the second reading fixed for next Wednesday.
Question resolved in the affirmative.
Motion (by Sir George Turner) proposed -
That the Bill be now read a third time.
Mr. BAMFORD (Herbert).- I desire to know whether clause 4 provides for estimating the sugar contents of the cane under a new method?
Question resolved in the affirmative.
Bill read a third time.
Motion (by Sir George Turner) proposed -
That the Bill be now read a third, time.
– I do not approve of the amount or form of bonus that is being provided for, but as the majority of honorable members certainly do not agree with me, I do not propose to raise any further objection, but simpty place my protest on record.
Question resolved in the affirmative.
Bill read a third time.
In Committee (Consideration resumed from 16th June, vide page 967) :
Clause 31 -
In addition to the matters in respect whereof original jurisdiction is conferred on the High Court by the Constitution, the Court shall have original jurisdiction in respect of all matters - (a.) arising under the Constitution, or involving its interpretation ;
arising under any laws made by the Parliament ;
of Admiralty and maritime jurisdiction ;
relating to the same subject-matter claimed under the laws of different States.
Provided that, with respect to matters which are by the laws of the Commonwealth required to be instituted in courts of summary jurisdiction or other courts of inferior jurisdiction, the original jurisdiction of the High Court shall not be exercised except by way of removal of the matter from the Court in which it is pending into the High Court and thereafter hearing and determining it in the High Court.
– I was one of the minority who voted against the second reading of this Bill, and I very much regret the. apparent determination of the Government to persevere with it in the face of the very strong volume of protest in this House as -well as the opposition in the country. Having done my best to secure the defeat of the Bill, I shall now co-operate with those honorable members who desire to reduce the dimensions of the High Court scheme, and to keep it within reasonable and constitutional limits as regards expense and jurisdiction. One of the strong arguments used in favour of the Bill was that a constitutional mandate was imposed upon Parliament to vest the j udicial power in a High Court, and we were reminded of the necessity of having an Australian Federal Court to harmonize the various possibly conflicting decisions of the States Courts invested with Federal jurisdiction. Now it appears that that was not the sole object sought to be achieved, because the measure on the face of it goes further than the creation of a High Court of Appeal as delineated in the Constitution. The arguments against a court of appeal pure and simple could not be so strong as against a court having original and primary jurisdiction. This Bill goes much further than could be justified by any arguments based upon urgency or upon the constitutional mandate. It is not necessary in order to create a court of appeal that we should erect a tribunal clothed with original jurisdiction. I need not remind the Attorney-General of the two great model courts of appeal which are not vested with primary or original jurisdicdiction such as contemplated in this Bill. The Supreme Court of the United States is not vested with primary jurisdiction except in two cases, namely, cases practically of sovereignty, in which States are parties, and actions in which the Ambassadors or representatives of foreign powers are parties. The rest of its powers and functions are exclusively those of an Appellate Court. As such, that great Court holds aloof from the preliminary contests which take place in courts of first instance. It is therefore far more competent to fulfil the functions of a Court of Appeal than is a tribunal composed of Judges who are from time to time required to engage in preliminary investigations, such as take place in courts of first instance. A Court of Appeal, pure and simple, should hold itself aloof from these preliminary contests. Then cases would come before it with the freshness and originality of a suit in which its members had taken no part. But in addition to the court in the United States we have the Canadian Court of Appeal, to which reference has been made. That is a Court of Appeal only, and does not even possess the power to deal with suits to which the provinces are parties, unless the provincial Legislatures first pass certain Acts assigning it jurisdiction. Therefore, the Supreme Court of Canada - like that of the United States - is a court of appeal pure and simple. These courts are held up to us as models, and as such they are entitled to our admiration. I hold that we ought to be quite content in erecting the High Court - if we are to have that tribunal at all - to limit its functions as far as possible to those of a Court of Appeal, and not to invest it with original jurisdiction such asis proposed. I admit that under the Constitution the High Court is ipso facto invested with a certain amount of original jurisdiction with which we are powerless to interfere.
– Unfortunately, those provisions were never discussed in the Convention.
– Looking back at the proceedings of the Convention, I can see that a mistake was made in that respect. Of course many of us were new to the work of Constitution making, and these points were not so thoroughly considered as they might have been in the after light of experience. I say now it is to be regretted that under section 75 of the Constitution, powers were conferred upon the High Court of which we cannot divest it. But although, we cannot take away from that tribunal its powers of original jurisdiction in respect of matters relating to treaties, foreign consuls, States, and the issue of writs ; we can insert in this Bill a clause declaring that the High Court may remit such of these cases as it thinks fit to the States Courts. This measure contains a clause for remitter in connexion with the removal of causes, and I suggest that that provision might be utilized to indicate to the High Court that except in very extraordinary cases coming within its grant of power, it should not exercise original jurisdiction. I submit that if we desire to erect a court of appeal there is no constitutional necessity to give it additional jurisdiction, such as is proposed under this clause. I believe that the additional jurisdiction proposed can be properly exercised by the States Courts. Undoubtedly the exercise of this original jurisdiction will involve a large amount of machinery as well as a large outlay, which will make the whole tribunal loom in the eyes of the people of Australia as a tremendous expense consequent upon federation. I am anxious that at the next election the enemies of federation shall not be able to attack our institutions by pointing to an unnecessary expansion of departments or their expenditure. That is my sole desire. I am afraid that if this Bill be passed in its present form it will go forth to Australia that regardless o.f expense we are enacting legislation the full meaning and burden of which they will one day realize. It may be that in some States the people do not appreciate the possibilities of increased expenditure as much as they do in Victoria, which is the present seat of Government, and where1 naturally public criticism is more acute than it is in some of the distant States. That fact may account for greater sensitiveness to expenditure in Victoria than is to- be found in some of the other States. If the Government are determined to proceed with the creation of this Court, why cannot they be satisfied with a Court limited to appellate functions 1
– And the original jurisdiction conferred by the Constitution.
– Yes; a jurisdiction of which I regret we cannot divest it. I hope that litigation in respect of matters upon which the Court has ‘ original jurisdiction will be of a limited character, though if the view taken by the honorable and learned member for Indi last night be correct, namely, that every case to which the Commonwealth is a party, whether civil or criminal, may be brought before this tribunal, its functions will be vastly extended. I was not aware that it was intended to confer criminal jurisdiction upon the High Court in actions to which the Commonwealth may be a party. The words “suing or being sued,” I should have thought had reference to civil cases only. But according to the honorable and learned member for Indi they extend also tocriminal cases.
– Other honorable membershave taken the same view.
– But is not that view wrong t Look at sub-section (3) of section 75 of the Constitution.
– Certainly this Bill is drawn upon lines inconsistent with the view which is entertained by the honorable and learned member for Indi. I was under the impression that the words used in subsection (3) of section 75 had reference to cases in which a person was suing” the Commonwealth or being sued by it in a civil suit. If the view expressed by the honorable and learned member for Indi be correct, the High Court could entertain any criminal case against the Commonwealth.
– Against the Commonwealth law.
– I do not think it is desirable to invest a court of appeal with criminal jurisdiction. Such a thing is unparalleled in the history of similar tribunals.
– The honorable and learned member does not object to the appeal in criminal cases’?
– Certainly not. I support that appeal.
– A State Supreme Court sits as a court of first instance.
– We are dealing now with the Federal system. The Federal Appellate Court should not be bothered or embarrassed by the exercise of criminal jurisdiction. Last night the AttorneyGeneral suggested that the mere addition of these optional powers to the original jurisdiction of the High Court which is contemplated under section 76 of the Constitution would not increase the expense of its organization. It seems to me that it would do so; because if we confer upon the court general jurisdiction to deal with all classes of Federal cases in the first instance, it necessarily follows that we must have a certain amount of organization to carry out that jurisdiction.
– We have that already.
– No. We shall not require to have in each State district registrars’, sheriff’s officers, marshalls, and deputies, if we do not confer this original jurisdiction. But if we invest the court with this primary jurisdiction, we must make provision in every State for the issue of writs, we must establish offices and appoint officers to issue writs and conduct all the processes of the courts. That cannot be done without expense. We must also provide officers to carry out the various decrees of the court, whereas if we constitute merely a court of appeal there will be no occasion to provide all these outlying branches. Take the case of the Privy Council as an example. That is the highest court of appeal in the Empire. It has none of the numerous officers who are necessarily associated with courts exercising primary jurisdiction. It has no marshal], no sheriff, and no district registrars. Its expense is comparatively light, because its functions are confined to those of a court of appeal. If we extend the functions of the High Court to cases arising under Federal laws, what will be the result ? We may have one class of litigant demanding that it has a right to issue writs in any part of Australia, in matters relating to every Federal law that has been passed, and if we grant the jurisdiction, we must provide facilities for its exercise. It is also true that if we concede this primary jurisdiction, we must provide for the Federal Judge or Judges travelling about to exercise that jurisdiction. This primary jurisdiction cannot be exercised at the seat of Government. As already mentioned, the court must be brought to the doors of the people, and to that end there must be a Judge travelling to the various centres of population throughout the Commonwealth. We should require to have one or two Judges always on circuit to get even a very limited service in the way of judicial administration in the first instance. I would remind the AttorneyGeneral that to grant this primary or original jurisdiction as contemplated, we should not only have to provide a Judge who would not be required for the exercise of appellate jurisdiction, but also to provide for his expenses in travelling, and for the expenses of the officers associated with him; and thus the cost would be enormous. I feel quite confident that the estimate which is submitted, and which might be sufficient to cover the expenses connected with a Court of Appeal will be absolutely insufficient if we have to provide for the exercise of primary courts throughout Australia. As an illustration of what the circuit system means, I have obtained from the accountant of the Law Department of Victoria a return showing the approximate cost of circuit courts in that State for the financial year 1901-2.
– A Judge goes on circuit only once a year in Victoria.
– But one Judge is always on circuit, each Judge in turn undertaking the duty.
– Then. the honorable and learned member is not referring to one particular Judge?
– No ; every month one of the Judges goes’ on circuit. As a matter of practice one Judge is told off month by month to do the circuit work.
– That is not every month in the year.
– Every month in the year, except January, there is a Judge on circuit. The return furnished to me by the accountant, whom I asked to pick out the circuit expenses, shows that the salary of one Judge is £3,000, and his travelling expenses £800 ; that the salary of one associate is £350 ; the salaries of three Crown prosecutors always on circuit, £1,960; salary of a circuit clerk, £350; cost of railway passes for sheriff, circuit clerk,. Judge’s associate and three Crown prosecutors, at £54, is £324 ; travelling expenses of Crown prosecutors, £250 ; travelling expenses of circuit clerk, £70 ; travelling expenses of sheriff and deputy sheriff, £96 ; expenses of witness and jurors, £4,250; and incidental expenses, £100 - a total of £11,550. I understand that the railway passes purchased for the officers cost £54 per annum, but now cost £80, though, for the purposes of this calculation, I have taken the former sum.
– The expenses of witnesses and jurors ought not to be included, because they would have to be paid whereever the trial took place.
– That is quite so, and I observe that the accountant has not discriminated between the expenses of witnesses and jurors. . But if a Federal Judge went to Western Australia to try a civil csise, and he decided to take the trial of a letter-sorter who might be charged with letter-stealing, there would have to be a special panel of 45 jurors subpcsnaed. If such a case were tried by the ordinary States tribunals, that item would form an infinitesimal part of the total expenses, whereas, with a Federal J udge on circuit, all the expense of this special panel of jurors would have to be incurred in connexion with one Court.
– If such a case were tried in a State Court, would the cost be charged to the Commonwealth ?
– No ; if the States Courts exercised Federal jurisdiction, they would do it at their own expense, so that such a trial would not tend to swell the’ expense under the Constitution. In the States there are already Crown prosecutors, with all the requisite machinery for taking trials on circuit, and the duplication of Courts seems to me unwise and impolitic - unwise, because it interferes with the arrangements for the administration of justice, arrangements which are satisfactory with the machinery already in existence, and impolitic and injudicious because it tends to incur unnecessary expense. I trust that the Government will do their best to keep down expenses. If they are going to push this Bill through, let the expense be reduced to reasonable limits, so that it may not be thrown in our teeth that we are squandering the public money by the duplication of courts in which justice may be administered in the first instance. The Supreme Courts of the States are quite capable of doing the judicial work of hearing trial by juries, and disposing of the preliminary stages of cases. Let the High Court deal with questions of law, pure and simple, as a Court of Appeal.
– But honorable and learned members oppose the creation of even a Court of Appeal.
– I do, because at the present stage I think such a. court unnecessary ; but I am endeavouring to assist in making the proposed High Court the least objectionable, so that, when we go to the country, weshall be able to explain that so far as this House was concerned, we did not incur unnecessary expense - that some honorable members, whilst they thought there was a constitutional obligation to establish a Court of Appeal, felt that there was no obligation to increase the jurisdiction of that Court by the addition of jurisdiction in the first instance, which can be exercised by the existing Courts and officers. How can we justify the duplication of all the existing legal machinery ?
– That is not proposed.
– It is undoubtedly proposed that there shall be duplication both in the criminal and civil jurisdiction. Inthe criminal, jurisdiction contemplated provision will have to be made for such officers as I have mentioned.
– As I have already explained, it is proposed to use the State
I officers everywhere.
– But if additional functions be imposed on State officers, those officers, must be paid.
– A relatively small sum.
– I am afraid it will not be a relatively small sum. At any rate, the extension of the jurisdiction will largely swell the expenses of the Federation, -which will have to bear all the obloquy attending an immense expenditure of the kind. Those of us who go to the country will have to help to bear the burden of responsibility, and tha t is the reason I am anxious to keep down the expenses. Even now, at this late hour, I urge on the Attorney-General to agree to the elimination of all surplus provisions, and not to over-burden this new organ with work and functions which can be dispensed with at the present time.
– Like the honorable and learned member for Bendigo, I did all I could to prevent the second reading of this Bill, and having, -failed in that, the next best thing is to make the measure as little oppressive as we possibly can on the taxpayers of the Commonwealth. If we are to look for any consistency in public life, I think we are entitled to claim the votes of the AttorneyGeneral and the honorable and learned member for Indi in confining the jurisdiction of this Court to appellate work. During the second reading of- the Bill those honorable and learned gentlemen spoke in very forcible and eloquent terms, and almost persuaded us - in fact I think they did persuade some honorable members - that they were bound in conscience to obey the Constitution. Their interpretation of the Constitution was that they should create this Court?, not when, it was absolutely required, but on the earliest possible occasion on which we were afforded an opportunity of voting on the question. I am sorry to observe from the subsequent speeches of those honorable and learned gentlemen that their conscience must have been considerably seared and cauterized, because last night it certainly appeared to me that they wanted to depart from the letter of the Constitution, and from the manifest intention of those who framed it. The Attorney-General knows that the Constitution states specifically that the number of Judges shall not be less than three, and he Kas told us that the High Court is the very keystone of the Constitution. Surely it is reasonable to assume that the gentlemen who were intrusted with the framing of the Constitution would give some attention to what we .are told is the keystone of the arch. Are we to assume for a moment that the framers of the Constitution mentioned three Judges, knowing perfectly well that such a number could not do the work? They either mentioned three Judges in good faith, believing that they could do the work which was to be intrusted to- the High Court, or they deliberately intended to mislead the people of the Commonwealth, by naming a number which they knew to be inadequate.I am sure the Attorney-General will not contend for a moment that, if the Constitution intended to vest this Court with general original jurisdiction, the framers of the Constitution would have been guilty of the farce of naming three Judges to do the whole of the work. We know that to do - similar work in any one State would take at least three Judges, and certainly more than three in some of the States ; and, surely, to do the work of the whole Commonwealth would require a great many more. The Attorney-General, when he was speaking of the expenses of the proposed Federation, and advising people to adopt the Constitution, always spoke of three Judges for the High Court. If any further proof were needed of the intention of the Convention in this direction, I think it is furnished by the estimate of expenses set down for the High Court. Is it to be imagined for a moment that the members of the Convention could seriously assume that a court invested with original, as well as with appellate jurisdiction for the whole of the Commonwealth, :;ould be conducted at an annual expenditure of £23,000 ? I am sure that no one would seriously contend that that could be done. The Attorney-General tells us now that he believes the High Court could be conducted at something like that expense, by transferring a large portion of the work to the States. But that is only a recent thought on the part of the AttorneyGeneral.
– The AttorneyGeneral had no such thought in his mind when he introduced the Bill last session.
– Yes; it all appears in Hansard, and I can show the honorable member the passage.
– Not only did the members of the Convention contemplate the appointment of only three Judges in the first instance, but the estimate of the cost of the High Court was based upon the assumption that only three Judges would be appointed. Surely the members of the Convention would not have contemplated the appointment of only three Judges, in the first instance, if they had intended that the Court should be vested with jurisdiction which three men could not satisfactorily exercise. It is clear to me, therefore, that the intention of the Constitution is that we shall commence with a Court of three Judges : and as the second reading was carried largely because of the argument that the Constitution requires the establishment of a High Court at the earliest moment possible, it is not desirable or necessary that we should go beyond our immediate needs. If we commence with an elaborate court and a large number of Judges, and give an extensive original jurisdiction, we cannot, if we afterwards find that we have gone too far, retrace our steps ; but if we commence on a moderate scale, with a court of only appellate jurisdiction and the original jurisdiction given by the Constitution, and appoint only three Judges, we can at any time that we think necessary extend the jurisdiction of the court, and increase
– Have we not im- posed duties to protect Australian industries ?
– We had higher duties, and a much larger degree of protection under the Tariffs of the States.- ‘
– I am speaking of Australia as a whole.
– There is only one State which did not enjoy the benefits of protection before the Commonwealth was established, and we cannot take much credit for extending those benefits to it. The condition of the people is such that we should not impose upon them unnecessary taxation to the extent of even a shilling, and it would be a piece of wanton extravagance to establish a High Court upon a larger scale than is required at the present time. It is surely more prudent, and more iri accordance with the rules of commonsense, to commence on a moderate scale, and’ to enlarge the jurisdiction of the Court, and increase the number of Judges, as occasion may require. The Attorney-General cannotbe indifferent to the wishes of the people, and I do not think any one could doubt but” that if a vote of the electors were taken on the question a High Court would not be established for many years to come. Of course, I recognise that by a majority honorable members have decided to establish a High Court, but we have not decided to create an unnecessarily large court, and I hope that honorable members will set their faces against that. I was so strongly opposed to the establishment of a High Court at the present time that, if I had voted for the second reading of the Bill, I should have been ashamed of ‘ my vote as long as I lived. But I know that many other honorable members, who are of my own way of thinking, but donot feel so strongly on the matter, voted for the Bill because they did not wish to’ embarrass the Government. I think it is the general wish of the Committee, however,, and the almost universal desire of the people, that we should commence on as moderate a scale as possible. If we merely vest the Court with appellate jurisdiction and the original jurisdiction given to it by the Constitution, we shall meet all the requirements of the case. I hope that theGovernment will not press this matter to a division. Why should they place themselves in opposition to what they must recognise as the desire of the great majority of the people 1 I ask the Attorney-General, who, I am sure, is keenly alive to the present condition of the people, to save them from unnecessary burdens.
– We are all with the honorable member for Gippsland in the wish not to create an extravagant High Court. But he has ‘really argued against the establishment of a High Court at all.
– Not this evening, though I do not want to see a High Court established.
– That is the position which the honorable member took up on the second reading, and to which his speech to-night logically leads. He will not acknowledge recognised facts. The division in favour of the second reading, no matter how brought about, though I consider it the honest expression of the opinions of honorable members, showed that there is a majority in favour of the establishment of a High Court. The honorable member for Gippsland admits that the High Court must have an appellate jurisdiction, but he argued against giving it the original jurisdiction which is provided for in this clause. Now, if the High Court is created, it must have the original jurisdiction which is given to it by the five sub-sections of section 75 of the Constitution.
– If there are only three Judges they will not be troubled much with the original jurisdiction vested in the court by the Constitution.
– The honorable member ought to show that paragraphs («), (b), and (d) of clause 31 are not embraced by, or at least are more than an extension of, the original jurisdiction provided for in the Constitution. I think that if he compares this clause with section 75, and especially with the third sub-section of that section of the Constitution, he will see that there is hardly even an extension of the original jurisdiction contemplated, and that where there is an extension it is only a proper one.
Mir. A. McLean. - Why should there be any extension at all?
– It is open to doubt whether there is any extension, and whether the clause is not merely a necessary explanation or interpretation of the Constitution. The honorable member j>resunied to judge of, not only the feeling of his own constituency, but that of all the constituencies of the Commonwealth. But he has evidently been misled by the attitude of the two Melbourne morning journals in regard to this proposal.
– I expressed my present opinion before the newspapers in question published anything at all on the subject.
– I do not say that the honorable member is in the slightest degree influenced by the opinions expressed in those newspapers, but he has been misled as to the tendency of public opinion by the fact that the views expressed in them coincide with his own.
– It is much more likely that the honorable and learned member is misled by his surroundings, whereas I am able to take an impartial view.
– The honorable member considered himself justified in stating that if a vote of the electors were taken the High Court would not be established, but I, on the other hand, venture to say that if the matter were referred to the intelligent electors, and the amount of discussion and explanation preceded the referendum that should take place whenever a question of this kind is referred to the people, the vote would be in favour of the establishment of a High Court. There is a large amount of feeling against the High Court, purely because it will not be a final appellate court, and I ask the Attorney-General whether he will make an attempt to restore the Court to the form proposed in the draft Constitution before amendment by the Imperial Government. Our delegation to London desired to. carry out our wishes, but were misled by the representatives of financial institutions and others who for* warded telegrams to Mr. Chamberlain asking him to retain the right of appeal to the Privy Council.
– If we attempt to do away with the right of appeal to the Privy Council we shall have to reserve the whole Bill for His Majesty’s assent. It would be better to introduce a separate measure with that object.
– Section 74 of the Constitution does not earn’ the King’s power of veto any further than other provisions of the Constitution relating to the King’s right of veto, and I should like to have the promise of the Attorney-General that he will endeavour to carry out the original intention of the people of Australia before the Constitution was mutilated by the Imperial authorities.
– Was it a mutilation?
– I think so, according to the opinions I have heard expressed by even members of this House who oppose this Bill.
– All the legal authorities I know are against the abolition of the right of appeal to the Privy Council.
– One of the principal opponents of this measure, the honorable and learned member for Northern Melbourne, laid the very greatest stress upon his objection to the continuance of the right of appeal to the Privy Council, and I voted for the measure because I thought that the High Court would be largely an appellate court, and because I think it. could be made, in committee, the final appellate court, and because I believe that Australia should be self-contained in every respect. I desire to see the right of appeal to the Privy Council abolished, and I am sure that this would be in accord with the wishes of the great majority of the intelligent people of the Commonwealth. I admit that there is still the possibility of an Imperial court of appeal being established, and I shall not so much object to that, because we should then he treated upon the same footing as the people of England. At present the people of England are able to obtain a fina.] decision far more readily than we can, as their appeals are limited to two stages, whilst ours necessitate four, and upon this fact is based one of my principal objections to -the present arrangement. If the High Court were made a final court of appeal, a great many of the objections now urged against it would disappear, and if the Attorney-General will not take the responsibility of moving an amendment with that object, 1 shall take action myself. I have the greatest faith in the ability and patriotism of the members of every Federal Convention from 1891 onwards, all of which were against the appeal to the Privy Council, and I hope that the Attorney-General will be persuaded to do all he possibly can to give expression to the full desire of the Australian people.
Mr. HENRY WILLIS (Robertson).Thu speech of the honorable member for Gippsland must appeal to every lay member of this House, and to the common sense of every business man who has regard for economy in our administration. Honorable members who spoke in support of the clause last evening apparently desire to make the High Court as comprehensive as possible, for no other reason than to increase the expenditure of the Commonwealth. It is proposed to give to the High Court the same jurisdiction as is now exercised by the States Supreme Courts, and to that extent to duplicate the present courts. We have been told that the Judges of the States Supreme Courts are selected with the utmost care, and, therefore, it cannot be suggested that tribunals of such high character are not fully competent to perform all their present functions. If the High Court is restricted to a purely appellate jurisdiction, the desires of the Australian people will- be fully satisfied. The Attorney General has represented that the proposed extension of the powers of the Court will be in the interests of suitors, but I do not see how any benefit will be conferred upon litigants, whose aim is to obtain justice by the most ready means. Under present circumstances, a litigant can bring an action in one of the lower State Courts, and if he is dissatisfied, can appeal to the Supreme Court of the State, and then to the Privy Council. When the High Court is appointed he can appeal to the High Court, and, if he be still dissatisfied, can make a further appeal to the Privy Council. On the other hand, he might ignore the High Court altogether, and appeal direct from the State Supreme Court to the Privy Council. I do not see any object in interposing the High Court as a tribunal having original jurisdiction. The AttorneyGeneral evidently desires to impose as much work as possible upon the Court, so that it may be necessary to appoint a full Bench of five Judges. If we confer upon the Court only an appellate jurisdiction, there will not be the same necessity for appointing five Judges, and I think that in this connexion the efforts of the honorable and learned members who have fought so staunchly against the Government proposals are to be highly commended. The Attorney-General has expressed the hope that the Court will attract work, not only from the States Supreme Courts, but also from New Zealand, and ho frankly admits that if the work increases to such an extent that the Judges appointed cannot cope with it, he will be prepared to bring down a Bill to strengthen the Bench. I shall oppose the clause, because I do not believe in giving such an extended jurisdiction to the Court. When the late Sir Henry Parkes submitted his proposal for a High Court, he contemplated the necessity for appointing a Bench often Judges. Sir Samuel Griffith contended that whilst possibly at the inception of the court sufficient work would not be found for three Judges, he was prepared to admit that, if the jurisdiction of that tribunal were extended, in all probability ten Justices would be necessary. The appeal of the honorable member for Gippsland to keep the expenditure of the Commonwealth within reasonable bounds is deserving of consideration at the hands of this Committee. It is gratifying to know that the leading men at the bar in practically all the States of the “Union are unanimous that it is not necessary to embody in this Bill a provision conferring upon the High Court additional original jurisdiction.
Mr. L. E. GROOM (Darling Downs).During the discussion which has taken place in committee, various attitudes have been assumed by honorable members, some of which it is difficult to reconcile. In the first place we find that there is practically a desire on the part of some honorable members to block the establishment of the High Court.
– Only for a time.
– Certainly the idea is to block the passage of this Bill. For example, the honorable and learned member for Corinella desires to cut down the number of Judges so as to limit the functions of the court practically to Appellate Jurisdiction. In other words, so long as the seat of government is in ‘Victoria, he wishes the High Court to sit here armed only with Appellate Jurisdiction in addition to the original jurisdiction which must be vested in it under the Constitution. The other States, therefore, are to be denied an opportunity of having its original jurisdiction exercised in their midst. The idea of many honorable members who object to investing the High Court with additional original jurisdiction is to reduce the number of Judges. By the appointment of three Judges and by the Court exercising only Appellate Jurisdiction they urge that we shall dispense with the necessity for the adoption of the circuit system. The honorable and learned member for South Australia, Mr. Glynn, has declared that the principle underlying the Bill is one of centralization, but it seems to me that the desire of the honorable and learned member for Corinella is to prevent the Court from being invested with additional original jurisdiction, so as to reduce the number of Judges to three. Surely that must result in centralization, whereas the scheme forecasted by the Attorney-General will result in decentralization. The right honorable gentleman seeks, to carry out the true federal idea. In some of the more distant States the feeling is abroad that Federation is something entirely outside of them. The Parliament meets in Melbourne, Federal Ministers have their offices here, and federation to them seems something which is entirely foreign. If we constitute a High Court which will sit only at the seat of Government, we shall accentuate that feeling. Our desire ought to be to extend the sphere of Federal influence as far as possible, instead of endeavouring to crowd everything into Melbourne. If honorable members are successful in limiting the jurisdiction of the Court they will establish centralization.
– We will not secure efficiency with the decentralization provided under the Bill.
– I will deal with that matter presently. The honorable and learned member for Bendigo asked this evening why we should do more than create a Court of Appellate Jurisdiction. He declared that in the United States the Supreme Court is only an Appellate Court. Bnt heforgets that when the Judiciary Act was passed there, Congress did something more than to establish a* tribunal having an Appellate Jurisdiction. It not only clothed its Supreme Court with Appellate Jurisdiction, powers of interpretation, and also a certain amount of original jurisdiction, but it provided circuit courtsthroughout the whole of the United States. One of the first acts of the Justices of thatcourt was to go upon circuit. Congress went even further, and created districtcourts.
– They had to do so.
– The position taken up by the honorable and learned member for Bendigo was that Congress had merely constituted a court with Appellate Jurisdiction. But in Willoughby’s The SupremeCowrt of the United States, I read -
The number of circuits has differed at differenttimes. By the Act of 1789 three were provided for ; since 1869 there have been nine. Until . 1869- (excepting a short period in 180.1.) there were nocircuit Judges, circuit work being done by theSupreme Court Justices. By the Act of 1S69 a. circuit Judge was to be appointed by the President for each circuit. One of the J ustices of the SupremeCourt is, however, still allotted to each of the– circuits, who after the expiration of the term of the Supreme Court, visits his circuit, and tries the more important cases which may have arisen there. The circuit court may be held by the circuit Judge, by the Supreme Court Justice, or by the district judge of that district in which the court is sitting ; or by any two of them, or by all three of them sitting together.
Therefore, in the United States itself, a Supreme Court was set up, the Justices of which visited the various States under the powers and jurisdiction conferred upon them as Circuit Judges. The honorable and learned member for Bendigo also pointed to the case of Canada. He said that in the Dominion the7 had nothing but an Appellate Court. He quite overlooked the fact that in 1875, and again in 1S86, in addition to the Supreme Court which possessed appellate jurisdiction, Parliament created an Exchequer Court endowed with a very large exclusive jurisdiction.
– But that is not a Federal Court.
– Legislative authority was used to create a court to try issues connected with the Dominion, a court having also a concurrent jurisdiction in matters relating to the revenue - to cases in which it was sought to impeach any patent, or invention, or any lease, or other instrument respecting land, or in which relief was sought against various public officers. It is a court created BY Parliament for the purposes of the whole Dominion and of its provinces.
– The provinces have their own courts.
– But’ the honorable and learned member for Bendigo led the Committee to believe that Canada had not bothered about constituting a court which was possessed of other than appellate jurisdiction. I am showing that the Parliament of that country went a great deal further. Some of the opponents of this Bill have urged that its operation will result in the centralization of justice. But I contend that if the High Court is going to be worthy of the name litigants in the distant States should not be denied an opportunity of bringing their cases before it. It was contended, prior to the taking of the Federal referendum, that the Constitution was framed in such a way that the smallest State need not fear that it would be deprived of its rights by the more populous States. It was . urged that the Constitution was so elastic that it was possible for the Federal Judges to travel all over the Commonwealth. That was the case in the United States. The framers of our Constitution, however, did not desire to follow merely the American model. They had in their mind’s eye what was being done in the States Supreme Courts. Take, for instance, the Supreme Court of Queensland. In that State we have a court in Townsville, another in Rockhampton, and still another in Brisbane, each exercising Supreme Court jurisdiction, in addition to which there is a Full Court sitting as a court of appeal. That is all that is proposed under this Bill. Under its provisions, district registries will be established, and in each of those districts it will be possible to commence a suit upon Federal matters. Section 75 of the Constitution provides that the High Court shall be vested with original jurisdiction in all matters arising under any treaty, affecting Consuls, orin which the Commonwealth sues or is sued, or in all matters between States, or in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth. Under the Constitution, therefore, we cannot have a court with purely an appellate jurisdiction. When we have constituted this tribunal, and have vested in its Justices that original jurisdiction, it is only right that the residents of South Australia, Tasmania, Western Australia, Queensland, and New South Wales, should be able to have actions to which they are parties tried before the Court in their own States. If we establish the Court, and appoint such a small number of Judges to it that they can sit only at the seat of government, all the matters which it is desired to bring before it must of necessity be brought here.
– Will the honorable and learned member not say that 90 per cent, of the cases are such as would arise under a unitary constitution 1
– Of necessity, under the Constitution, original jurisdiction is given to the Court, and if a plaintiff is to have the right of bringing his action there, the Court should, be framed in such a way that each of the States can have a district registrar to start the cases, and a Judge to hear the matter on the spot, instead of dragging all the witnesses to a central place. The latter condition would cause grievous wrong to the more remote parts of the Commonwealth, and shows the absolute necessity for decentralization. We are told that the proposal of the Government will involve tremendous cost; but would the honorable and learned member for Bendigo favour the abolition of the State Circuit Court which sits in that city ? I am afraid that if such a proposal were made, the honorable and learned member for Bendigo would seriously object to all the witnesses and parties concerned being dragged down to Melbourne simply to gratify some little excitement in the comnninity about economic reform.
– There is no. Supreme Court at Bendigo to deal with State matters.
– But a Supreme Court sits at Bendigo, and, so far as I understand, the arguments of the honorable and learned member for that city were addressed against circuit courts altogether.
– In the figures whiuh the honorable and learned member for Bendigo gave of the cost of circuit courts, he mentioned £4,500 as the expenses of witnesses and jurors. But would that sum not be largely increased if all the witnesses had to be brought from Bendigo to Melbourne ? Would the cost of the circuit Judge be escaped ? It is very plausible to stand on a public platform and refer to £11,000 as the total cost of the circuit courts, but I doubt whether country people would appreciate the argument when they had taken away from them the right to have justice administered at their doors, and the community generally were relieved of expense at the cost of the parties interested” in the trial. It must not be forgotten that it is on the parties to the suit on which the cost of bringing the witnesses to a central place must ultimately fall.
– Does the honorable and learned member anticipate that the Federal Circuit Judges will sit outside the State capitals ?
– No ; but it would be a greater saving to bring South Australian witnesses to Adelaide than to bring them to Melbourne or to a seat of government in New South Wales. The same argument applies in the case of Western Australia and Queensland ; and even if we cannot get an adequate number of Judges it is our duty to get as reasonable a number as we can. We are told that the cost of administration would be great. On this point I would call attention to the Customs cases which were heard in Brisbane, and which extended over four or five weeks. The costs of those cases would have to be incurred whether they were tried before a State Judge or a Federal Judge. Witnesses and jurors would have to be summoned, and the only difference in cost would be the travelling expenses of the Judge.
– It is not so much the cost of the Judge as the cost of conveying the officials of the court.
– With all respect to the honorable and learned member it is far more important to us in Queensland that we should have the cause of action tried in that State, than that there should be a small public saving in the cost by bringing the parties to the seat of government.
– That is not the question.
– Biit it is a serious question to us in Queensland, and I again point out that the Judges’ salaries have to be paid in any event. There is no necessity in constituting a High Court to appoint a large number of officers to travel with the Judge all over the country. We need not convey Crown prosecutors or clerks of courts, or any other officials beyond, perhaps, the Judge’s associate and his tipstaff. Indeed, we might dispense with a tipstaff, leaving only the Judge and his associate to travel to the scene ofthe action. For all other purposes the State officials could be utilized.
– But they would have to be paid.
– Not at all. At the present time State officers are doing Federal work without pay. In the Railway Department of Queensland officials are doing work for the Postal Department without having a penny added to their salaries : and I believe that the idea of the AttorneyGeneral is to utilize the services of the State officials, and thus save expenditure to that extent.
– Except the Judges.
– Does the honorable and learned member wish to make out that the Judges will involve enormous cost?
– Did the Federal Government pay the cost of the Reid cases in Brisbane 1
– The Federal Government recovered the costs.
– The intention of the Procedure Bill, and of this Bill, is to utilize the local machinery as far as possible, and all that is wanted is a Judge who can exercise the jurisdiction to be conferred by the Bill.
An Honorable Member. - But the Attorney-General proposes to give £6,500 a year as an honorarium for the “flunkeys.”
– There is no necessity for honorarium : in the High Court, and I am afraid that the honorable member for Robertson has not had much experience in connexion with the necessary officials of a court. The Attorney-General does not propose any extravagant paraphernalia, and I think his assurance on that score might be accepted. We are told, further, that the State jurisdiction is sufficient - that the State Judges can do all that is required. But the Attorney-General’s position was unanswerable when he said we must remember that we are creating a Court vested with peculiar Federal jurisdiction. That Court will be continually dealing, as the AttorneyGeneral says, with Federal matters, and will thus acquire a distinct knowledge and attain an efficiency which, in the end, must command the confidence of the people.
– Are Federal matters different “to any large extent from other matters dealt with by the States Courts?
– There is a great distinction. In Queensland and other States there is a general common law, equity and criminal jurisdiction, but arising from Federal matters there will of necessity be constant arguments before the Court, and the Judges will thus acquire a profound knowledge of constitutional law. By virtue of constantly exercising Federal jurisdiction the Judges will become thoroughly acquainted with the Federal Constitution and precedents, and the result will be more confidence in and fewer appeals from the decisions given. We should have Judges of that description moving throughout the Commonwealth. We have to give the High Court jurisdiction in the matters set forth in section 75 of the Constitution, and, as pointed out by the honorable and learned member for Indi last night, a great many of the questions which will arise under subsection 3 of that clause would of necessity be tried in the Federal Court whether we give the extended jurisdiction or not. All that the Attorney-General says is that under the Constitution we must confer a certain amount of Federal jurisdiction on the High Court, and seeing that that Court has to be constituted, why not give it the additional jurisdiction,, so that the Judges may be able to deal with matters arising under the laws of Parliament? In this way, if the people desire to have their rights decided by the Federal tribunal, they will be able to have their wish gratified. It is not asked that the Court should be given a general equity and common law jurisdiction ; all the Attorney-General desires is that the High Court Judges should be able to exercise thejurisdiction of interpreting matters that arise under the Constitution. What ‘ othermatters are likely to arise ? In Quick and Garran’s work on the Constitution, several illustrations are given of cases likely to come before the Court; for instance, where a sub.ject of the King resident in one State is subject in another State to a disability or discrimination under section 117 of theConstitution, or as to religious tests required as a qualification for officers or for actions brought against members for holding, contrary to the Constitution,, places of profit ; or questions as to the rights of transferred officers, and so on. In addition, there are other powers specially mentioned under the Constitution, which, may be the subject matter of litigation ; and when these constitutional questions arise,, the Commonwealth, if a party, has the rightto take people before the Federal tribunal. There may be a hundred and one questions of this kind which arise in actions between the Commonwealth and private parties, or between State and State. I am sure that the honorable and learned member for South Australia, Mr. Glynn, who has studied the constitutional history of England and the United States, will find that many of the constitutional questions yet decided have arisen between party and party.
– Nearly all the American authorities condemned the extension of the original jurisdiction.
– The leading case of Gibbons v. Ogden, in America, the case of Stockdale v. Hansard, in England, and the case of Barton v. Taylor, in New South Wales, were all practical])’ between subject and subject. If an action arose with respect tu the Speaker ejecting a member, and it became necessary to determine under the Constitution what were the powers and prerogative of this Parliament, and the rights and privileges of members, would the honorable and learned member like that question to be tried in a State Court, instead of in a Federal Court ?
– Would the case not be sure to go to the court of appeal ?
– It might or it might not ; but let us have a Federal Court which will command the confidence of the people, and so reduce as much as possible the necessity for appeals.
– There would be the right of appeal in any case.
Mr.L. E. GROOM. - But it is desired to prevent a man bringing his action in the Federal Court, so that the only way to have these matters settled authoritatively would be to have a trial in a State Court, and then go to the appeal court. Honorable member have argued for an Australian court with Australian appellatejurisdiction, and have afterwards inconsistently contended that action should be first brought in a State Court, from which an appeal may go to the Privy Council, thus avoiding the Australian appellate jurisdiction.
– That could not be done in respect to constitutional cases.
– We have yet to determine whether, for instance, in the case of a question arising as to an Act passed by a State being contrary to the Constitution, we can compel the State to come to the High Court, or whether it may be allowed to go to the Privy Council.
– We provide -for that in the Bill.
– This clause will not get over the matter, because it is still optional for the parties to go to the States Courts.
– Yes, but I want to give them the opportunity to go to the High Court in the first instance. The jnrisdiction which it is proposed to give to the High Court under this clause is jurisdiction on matters arising under the Constitution, or under the laws made by this parliament. Now, under the laws made by this Parliament, a lot of very important cases will arise, in regard to which litigants should have an opportunity of saying whether they will go before a State Court or the Federal Court. For instance, we have power to pass laws relating to trade and commerce, and if honorable members will turn up the American authorities, they will see that a very large interpretation has been placed upon those words. It might happen, for instance, that a harbor board, in the exercise of the powers conferred upon it, might frame regulations which were regarded as interfering with freedom of trade and commerce between the States, and an action would lie in the State Court. Such an action would not be an action between a State and the Commonwealth, or between one State and another,, but between a private individual and a corporate bo’dy. Therefore the matter would not be one coming under section 75 of the Constitution, and if the parties concerned were not expressly given the right to go to. the High Court, they would be precluded from doing so.
– That is a matter which would be dealt with by the Inter-State Commission.
– The dispute might’, arise quite apart from any decision given by the Inter-State Commission. I am instancing the case as one which might occur under a law made by this Parliament, and in regard to which litigants should have the right to go before the High Court. In the same way similar questions might ariseunder laws passed by us relating to insurance, banking, promissory notes, patentrights, Copyrights, inventions, and any of the various commercial matters upon which we may be called upon to legislate. Arewe going to prevent litigants from taking causes arising from the laws passed b)’ us in regard to those matters before the High Court 1 I submit that we should not. Theground upon which we should give the High Court this jurisdiction is that - the Constitution contemplates the exercise o£ a Federal jurisdiction by the High Court, and we should allow every litigant who thinks that he is being deprived of a right’ which he should enjoy under the Constitution to go to the best tribunal we can create for a remedy. We do not deprive him of his right to go before a State Court if he chooses, but we give him the right to go before the highest tribunal in the Commonwealth.
– Will the High Court be higher than the Supreme Court of a State?
– I believe that in the long run it will be a better tribunal for the decision of these cases, because it will have appeals from all the States, and will be continuously dealing with Federal matters.
– If the High Court can hear an appeal from the Supreme Court, will it not be the higher court?
– I do not undervalue the work done by the States Courts, but I think that in the long run the High Court will be more efficient for the purposes for which it is to be created than any of the Supreme Courts. All the Attorney-General asks is that, in respect to actions arising under the Constitution and under the laws made b)’ this Parliament, litigants may have the opportunity of using the Federal Court contemplated by the Constitution. I intend to support the clause.
– As a layman I hesitate about interposing iri a matter which has been so ably discussed by the legal members of the Committee, and especially by the honorable and learned member for South Australia, Mr. Glynn, and the honorable and learned members for. Corinella, Bendigo, and Northern Melbourne. But I am bound to raise my voice in protest against an unnecessary and very heavy expenditure, to which the people are decidedly opposed ; I can, at liny rate, speak confidently of the feeling of those whom I immediately represent. The very elaborate defence of the clause made by the Attorney-General last night was characterized more by its rhetoric than by its logic, and showed signs of a weakening in his belief in the measure. Apparently he would be glad to see a considerable portion of it amended. He has already expressed a willingness to jettison paragraph («) of this clause, and also the three clauses which’ provide for the transfer of cases to the High Court by right, a monstrous provision, which I think the Committee would not allow to remain. The Attorney-General also made an admission which, I think, was entirely in favour of those who oppose the Bill, when he said that it is impossible at the present time, with due regard to economy, to establish such a High Court as we desire. He does not pretend that the High Court which he proposes to establish will be more than sufficient to meet the demands of the Commonwealth for a limited time to come. By his own showing this is only a makeshift measure, to create a High Court which will be the nucleus of a much more elaborate establishment in the future. I hold, with a great many other, honorable members, that at the present time any High Court is unnecessary. The Attorney-General admits that the vesting of additional jurisdiction in a High Court will not deprive the
States Courts of jurisdiction. Therefore, if we add to the original j jurisdiction of the High Court provided for by the Constitution, we shall only be duplicating our legal machinery ; we shall be creating a second Bench to do that which the first Bench is now doing to the satisfaction of the people, with all the attendant expense, but without any saving by the absorption of the local courts, or their reduction in number.
– The arguments which the honorable and learned member is now using were all used against federation.
– Furthermore, a High Court is not necessary, because the Commonwealth already has a judicature which is able to dispose of the business now being brought before it, or likely to be brought before it in the immediate future. I hope that in committee we who would gladly have seen the Bill thrown out will so amend it that the great cost with which we are threatened will be considerably reduced, so that we shall be able to tell the electors that, so far as it was in our power to enforce economy, we have done so. I urge, for the sake of the taxpayers, who have to meet the charges which will be imposed by the creation of this court, that every step possible be taken to reduce its cost.
Mr. HIGGINS (Northern Melbourne).I understand that the proposal which the Committee is now considering is virtually the omission of clause 31.
– That will be the ultimate question.
– We are practically being asked by those who oppose the Bill not to give to the High Court the jurisdiction provided for in this clause. I must confess that I feel great difficulty in making up my mind as to how to deal with the matter. As honorable members know, I opposed the second reading because I regard a High Court as unnecessary at the present time, and the proposal to establish it as little short of a scandal and a crime. But I must bow to the wisdom of the House. A majority of honorable members have determined that there shall be a High Court, and it is my duty to try to make that court as efficient as possible. If we are to have a batch of highly-paid officers, we must see that we give them plenty to do.. But I feel that I am much in the position of a man who has to find employment for two gangers who have been appointed to supervise the same piece of work, or for two dentists who are engaged to operate upon the same mouth. The wording of the clauses of the Bill is evidence of a frantic effort on the part of the Attorney-General to provide something for the Judges to do. He must feel as we all do thai; if the High Court lias only an appellate jurisdiction and the original jurisdiction provided for in the Constitution, the Judges will have hardly enough to do. What is the result’! It is proposed to take -such work as can be transferred from the States Supreme Courts, and foist it upon the High Court. If we do not give the High Court the extra original jurisdiction now proposed, it will have very little to do in that particular line, and as matters stand it will have a very small appellate jurisdiction. I am confident that if. a litigant has the option of going to the Privy Council or the High Court, he will prefer to carry his appeal’ to the former, and our . Federal Judges will be left to sit in high dignit)7, in ermined robes or furred gown*?, and twiddle their thumbs whilst waiting for work.
– If we provide work for the new J udges, we shall render the States Judges idle.
– Wherever the idleness might be, I should object to it. I have always supported the proper treatment of public servants, but I object to having one more than is required, audi strongly resent the idea of forcing a new High Court, like an incubus, upon the shoulders of the taxpayers of Australia. If we confine ourselves to the original jurisdiction which is compulsory, there will be very little work for the Judges to do. At the same time the appeals will be few in.number, and if we have only three Judges, very few indeed. In Victoria there are usually six Supreme Court Judges - we now have five - and it very often happens that the whole of the Judges are to be found sitting upon the Bench. What a farce it would be if an appeal were allowed from the unanimous decision of five or six Judges of the Victorian Supreme Court to a High Court consisting of three J udges of no higher calibre? Would it not be especially absurd in view of the fact that without any expense to the taxpayer, we can at present appeal to a court of higher standing and calibre across the seas ? With me it is not merely a question of expense, but I ask honorable members not to create a court that will not have enough, work to do. I should like to give the court plenty of work, and make it as useful as possible. What original jurisdiction will the High Court have, unless the clause under discussion is carried ? Section 75 of the Constitution provides that the High Court shall have original jurisdiction in all matters arising under treaties, or affecting consuls, or other representatives of other countries. There will not be a case of either class once in a blue moon. Then there are cases in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party. They may have a few cases under this head, but probably not more than half a dozen in the whole of Australia in any one year. Then there is the class of cases between States or between residents of different States, or between a State and a resident of another State. The High Court will be called upon to deal with a fewcasesof this description, but we know that actions of this kind are tried every day in the States Supreme Courts. Then the High Court will have original jurisdiction in cases in which a writ of mandamus, or prohibition, or an injunction is sought against an officer of the Commonwealth. I have already showu thatthe appellate jurisdiction of the High Court will be very small, and that the business will be further reduced ifonly three Judges are appointed. Now it is proposed to give extra original jurisdiction in order to increase the work of the court. It may be assumed that of the three classes of cases regarding which the Federal Court is to have extended original jurisdiction, the greater number will arise under the laws made by this Parliament.
– Is it not absolutely necessary to have a High Court to deal with cases arising under the Constitution or involving its interpretation?
– No. I should be perfectly prepared to leave those cases to the States Supreme Courts, in which I have quite as much confidence as I could repose in any High Court appointed under present conditions.
– But there, are so many of them.
– Yes ; but -the Privy Council will make their decisions uniform if they differ. The great bulk of the cases that will come before the High Court will be those arising under the laws passed by this Parliament. Under this clause, taken in conjunction with clause 41, if a man is made bankrupt in Sydney by a Judge at first instance, he is to have no appeal, except to the High Court, although under present practice he may appeal to the State Court sitting in the next room. Or, supposing a man were compelled to pay a call under the Companies Act, by a Judge in Melbourne, and wished to appeal against the decision ; he would be deprived of the right he now has to appeal to the ‘Full Court of Victoria, and would be obliged to wait for the sittings of the High Court.
– He would have to wait f6r the Full Court in Victoria.
– Yes ; but the Full Court of Victoria has more Judges and a smaller area over which to operate. If the Government proposals are carried into effect the result will be to deprive litigants of the right which Magna Charta was intended to secure, namely, speedy as well as upright justice. One of the main objects of the law is to secure speedy trial, and yet it is now proposed to put aside the 27 Judges whom we now have in Australia, and insist that all appeals shall be made to the five Judges of the High Court. The proposed change will not secure speedy justice, or any other advantage to the people of Australia. When a man is made insolvent, and his assets are vested in some trustee and he cannot touch them, it is difficult enough for him now to secure the hearing of his appeal ; but it will be trebly hard upon him if he has to wait for the High Court. The Federal Parliament has power to make laws in regard to a greater number of matters than those over which the Federal Parliament of the United States has control. For instance, we can legislate in regard to patents, and the Government proposes that a man who is defeated in a patent case in one of the State Courts shall come to the High Court instead of being allowed to go to the Full Court of the State in which the matter was first tried. The same thing applies to trades marks, to insurance cases, and to the most trivial matters relating to the custody of infants. Perhaps the High Court might be sitting in Bombala, or Orange, Or somewhere in the heart of the continent, and an appeal might have to be sent all the way from Western Australia. May I suggest to the Attorney-General some alterations which would mitigate my objections to the clause1? I would ask him to make justice speedy for every man by giving the States Courts all the jurisdiction which he intends to confer upon the High Court. I would also ask him to allow the States Courts to deal with matters by way of appeal from the Judge at first instance, in place of compelling appeals to be taken before the High Court. Nine cases out of ten never go beyond the Judge at first instance, and of the tenth cases very few go beyond the Full Court. A good deal has been said with regard to the expense of witnesses upon . appeal, but that is all beside the question, because no witnesseswill be required to be dragged to the Full Court.
– Affidavits are often moreexpensive than witnesses.’
– There will be no affidavit on appeals. I do not see why we should, not endeavour to bring justice to the door of every man as far as we can by utilizing the States Supreme Courts as at present, for the - hearing of appeals from the Judge at first instance in matters relating to insolvency, company laws, patents, insurancematters, trade marks, and divorce. If the Attorney-General could grant to the States Supreme Courts the jurisdiction that he now wishes to give to the Federal Court and treat them with the confidence they deserve, ‘many of my objections would be removed. We have had no serious objection taken to our Supreme Courts.
– Hear, hear. But what isthe proposal of the honorable and learned member with regard to the relations between the States Courts endowed with full Federal jurisdiction and the High Court?
– It is better that we should give the States Courts the same original jurisdiction that is given to the High Court; and we should allow, as now, an appeal from a single Judge to the Full Bench. At the same time, if we proceed with the Bill, we must make the High Court an optional substitute for the Privy Council in regard to appeals from the Full Courts. As a rule litigants will not go beyond the Full Courts - they will be quite content with the tribunal which is at their doors. Thus a man will be able to get justice more speedily, because the Full Court Judges will be confined to the States capitals.
– There would be an optional appeal, I take it, either to the Full Court or the High Court.
– I would not allow an option of appeal to the High Court from a Judge of the States Courts. But an. appeal would lie from the Full Court te the High Court if the appellant preferred the High Court to the Privy Council. Clause 41 should be excised, and we should insert a provision which will give to the States Courts the full original jurisdiction which the Government desire to vest in the High Court. My only object in offering this suggestion is to make the best of a bad job. I do not intend to weary the Committee with perpetual protests against a decision which has been carried against me. I have my own opinion upon the matter, but I accept the judgment of the Committee upon it. If by any means I can assist in improving the Bill, and it defeats the fulfilment of my own prophecies, I shall be only too glad.
– If anything were needed to convince me of the propriety of opposing this clause, it would be the speeches which have been delivered by the honorable and learned member for Darling Downs and the honorable and learned member for Northern Melbourne. The former has exhibited a vast vista of expense which we are called upon to face in establishing this court. He has indicated the enormous number of matters which it will be possible to bring before this tribunal in its original jurisdiction, and has emphasized the necessity for extending it throughout the whole of Australia. Honorable members must recognise the heavy expenditure which such a proposal would eventually involve.- The honorable and learned member for Northern Melbourne has shown how very inefficient the court would be under the proposal of the Attorney-General.
– It would be inefficient, he said, because it would drag litigants who desire to appear before the Supreme Full Court to the Central High Court. If that is to be avoided the Supreme Courts of the States must practically be able to deal with everything with which the High Court is called upon to deal, except the few matters in which exclusive jurisdiction is -vested in the latter under the Constitution. I ask honorable members to pause before entering upon federation in the spirit which this Bil] displays. Surely by adopting federation we did not create two peoples.
– We created one.
– We are supposed to have done so, but many of the proposals of the Ministry insist upon regarding the taxpayers of Australia as two different peoples. We are asked to establish two systems of adjudicature throughout the Commonwealth. We did riot-create new requirements amongst the people upon the inauguration of the Commonwealth. It is a false policy to neglect the existing institutions of the States in dealing with Federal matters. When we come to legislate on matters which have been placed under our jurisdiction, and many of these are mere transfers, is it not our duty to ask whether we can utilize the existing institutions and officials of the States 1 If the people could obtain satisfaction from their Judiciaries prior to federation, it is extraordinary that those institutions are to be cast aside by the Commonwealth in minor as well as in major matters, and that we are now to be told that they cannot give litigants satisfaction. If we adopt that attitude federation will not prove a blessing to the people of Australia. I desire that we shall not duplicate existing institutions where there is no absolute necessity for so doing. The honorable member for Darling Downs has asked why we should place the States at a disadvantage by requiring litigants and their witnesses to come t» Melbourne or the Federal capital when it is created, in order to have the cases in which they are interested, determined. But as I understand this matter, if we make the Federal High Court a Court of Appeal only except as to those original matters which are provided for in the Constitution, we shall not require to bring witnesses from the different States. The honorable and learned member for [Northern Melbourne has declared that if we limit the business of the court to appeals, and to those matters in which it is vested with original jurisdiction under the Constitution, the work which the court will be called upon to discharge will be very light indeed. That being so, what is to prevent the objection of the honorable and learned member for Darling Downs being met by the court of Appeal visiting the various States’?
– It would be more expensive to take the whole court than to take only one Judge.
– If we allow that these Judges will not otherwise find sufficient work to do, they will have ample opportunity for visiting the different States. Do not the Supreme Court Judges of the States go upon circuit? Why do they adopt that system ? Because it was contended that justice should be taken nearer to the homes of the people. If that argument is to carry weight, and if we insist that we should reserve all disputes in matters under the control of the Federal Government to the High Court, are we not bound to provide those that use that tribunal with facilities equal to those which have been provided by the Supreme Courts of the States ? That means that we must adopt the circuit system. It means that Newcastle, Goulburn, Wagga, Cobar, and other places will have as good a claim to have the High Court made accessible to them as have the States capitals and as the State Supreme Court is now. As a matter of geography, the court when sitting in some of the States capitals will be nearer to the litigants in another State than will be the court in the capital of that State itself .
– At Broken Hill, for instance ?
– Yes, and Imightf urther instance Albury and places in the northern portion of New South Walesin thatconnexion. It appears to me that by establishing the High Court in the form proposed, we shall not increase the opportunities for people getting justice speedily and rapidly. We should increase those opportunities infinitely more if we conferred the jurisdiction on the States Courts, and allowed them to deal with the questions in the first place. There is a clause in the Bill providing that certain cases go from the States Courts to the High Court ; and, by that, the latter should be a court of appeal to regulate and make decisions uniform and of original jurisdiction in the matters provided by the Constitution. But we should not attempt to establish in every State a duplication of our present courts to deal with the same questions of trade and commerce, with matrimonial causes, Customs questions, and bankruptcies and other matters, which at the present time are efficiently dealt svith by the States Courts.
– The honorable member would allow the States Supreme Courts to have all . the original jurisdiction which is vested compulsorily in the Federal Court.
– I would give the States Courts the fullest jurisdiction, and cases could go from the States Courts to the High Court, as they may now under the Bill.
– The honorable member has been told that there is no appeal from a single Judge in one case out of ten.
– Then there would not be an appeal from the Supreme Court in one case out of ten. Are we to imagine that each of the High Court Judges on circuit would be men so much superior to the States Courts Judges that there would be no appeal from their decisions ? I cannot follow the argument that, because it is deemed well to establish a High Court, we should give the Judges plenty of work when that work is being well done by the State J udges. If suitors have the opportunity of going to either court it means that both must be prepared to deal with a larger amount of business than would otherwise be necessary, as each must be ready to handle almost the whole of the business if it chance to come to it ; whereas with one court there would be no need to provide for more than the average amount of work in the particular State. The honorable and learned member for Darling Downs has said that the proposal of the honorable and learned member for South. Australia, Mr. Glynn, is in favour of centralization and not of decentralization. The proposal is nothing of the sort. The object of the Bill is to centralize justice in each of the capitals at most, while the proposal of the honorable and learned member- is is not to centralize at all, but to give the jurisdiction the full reach - not only of the Supreme Courts, but to all the minor courts of each State.
– Who will travel most tothe inland towns - the Supreme Court Judges or the High Court Judges ?
– I do not think it is intended that the High Court Judges shall travel to the inland towns.
– If there be only three High Court Judges they will not be able to travel at all.
– We have it on theauthority of the honorable and learned member for Northern Melbourne that the time of three Judges will not be fully occupied if the court is an appellate court only.
– A good many honorablemembers agree with the honorable and learned member for Darling Downs, that the appellate jurisdiction of the High Court will keep it very busily occupied.
– In the face of such a difference of opinion between gentlemen high in the legal profession, the best course for laymen is to “go easy” and start on a small scale, because we can always enlarge, while we cannot always reduce. The United States and Canada have been quoted as authorities on both sides ; but to rae’ those quotations have not the slightest weight. In the first place, the conditions of- the Constitution of the United States are different, and in the second place, we know what our Judiciary is at present, while we do not know what; the Judiciary of the United States or of Canada was at the particular time. We know our own circumstances and needs, and the amount of money we already spend in this direction. I admit that our present judicial system is an admirable one, and that it costs a large sum of money, but I would rather it should cost too much and be effective, than cost little and be (he reverse. It is- a great system which has met our needs thoroughly, and it would be utterly unwise to abandon it and set up rival courts, which, it appears, would have almost to tout for business. The AttorneyGeneral glories in the fact that the Federal Court will offer such superior facilities that it will, attract business, but we can still keep in our hands the power of the High Court to control the decisions of the States Judges, and by giving the latter’ Federal jurisdiction, have, as at present, the advantage of their experience. The honorable and learned member for Darling Downs also alluded to the remarks of the honorable and learned member for Bendigo, whose speeches I heard with great interest and obtained much light from, as I did from those of other legal members, although I mav differ from some cf them in opinion. The honorable and learned member for Darling Downs asked whether the honorable and learned member for Bendigo would approve of the removal of the Supreme Court circuit from that city on the score of expense. The answer to that is that there is no Supreme Court at Bendigo, and as certain cases have to be tried in that court, it is naturally desired that f facilities should be provided on the spot. That argument, however, does not apply to the States, in each of which there is a Supreme Court which can be invested with Federal jurisdiction, and which has been doing the very work it is proposed to ask the High Court to do. Outside of the range which would be reached by the High Court, there are ‘ circuits ‘ of the States I
Supreme Courts which bring the jurisdiction nearer to the people than would the High Court. The honorable and learned member for Darling Downs also alluded to the large number of subjects that would come before the High Court, subjects entering into almost all the affairs of the people of the Commonwealth. Do honorable members conceive that when we have passed laws dealing with all these subjects under the Constitution, five Judges will ever be able to handle the business, and also go on circuit throughout the States 1 It is absolutely ridiculous to ask the meanest lay intelligence to entertain such an idea. In each of the larger State capitals there is a Judge occupied solely with bankruptcy matters, and such a Judge could not be removed when cases have been partially heard. Then, in each of the States of New South Wales and Victoria there is a Judge almost entirely occupied with matrimonial cases, and allowing one Judge for the remaining States, three Judges must devote themselves to that work alone.
– I did not allude to that business.
– But it is proposed that the High Court shall deal with such business when we pass the necessary Acts under the Constitution.
– Tes, when we pass the laws ; but not if we make no provision for the exercise of such jurisdiction.
– Then we are to go away from the High Court principle after all. Under the powers conferred upon us by the Constitution we pass certain laws, and the High Court is to have jurisdiction in cases arising under those laws, because they are cases arising under the Constitution, or under the laws passed by the Parliament of the Commonwealth. But the Attorney-General tells us by interjection “ When you pass other laws, 3’ou need not put them under the jurisdiction of the High Court.”
– I pointed out in the course of my remarks that when the Commonwealth takes control of legislation affecting bankruptcy and insolvency, we shall need to make special provision to give the High Court jurisdiction in matters arising under the laws we may pass relating to those subjects.
– That statement supports my argument that five Judges will be altogether insufficient for the work of the court.
– For the work then conferred.
– There is in that statement evidence that the step which we are’ now taking will not be by any means the last step. We are now embarking upon an expense of which we cannot see the end, and in my opinion the only justification for it would be that it is unavoidable. But an excellent means for avoiding it already exists, a means which has met the needs of the people of Australia in the past, and of which it is ridiculous not to avail ourselves. The honorable and learned member for Northern Melbourne said that, not only would three Judges, if appointed as a Court of Appeal with the original jurisdiction provided for under the Constitution, have too little work to do, but their decisions would not carry weight, because in the State of Victoria it is not an uncommon thing - he does not say that it always happens - for six Judges to sit as a Court of Appeal. He regards it as a strange thing to accept the decision of three Judges as superior to that given by six. But if the superiority of a judgment depends upon the number of the Judges who decide the matter, we cannot stop at a court of five Judges ; we must appoint at least eight, because in one of the States there is now a Bench of seven Judges.
– And inasmuch as eight is an even number, we ought to appoint nine, in order to provide for a majority where there. is a division of opinion.
– In my opinion it is not the number of the Judges upon, the Bench that gives weight to the decision of a court. It is not even the fact that the members of the Court of Appeal are abler than the members of the court from which the appeals are made. It is that the Judges of the Court of Appeal have the advantage of the decisions and opinions of the inferior Judges upon the matters which come before them, have a longer opportunity to study the cases which are to be brought before them, and have more experience in connexion with the particular questions upon which they adjudicate. When honorable and learned members refer to the decisions of the Supreme Court of the United States, what they do is to pick out the judgments of particular Justices. Any one of the men whose opinions they quote would probably - although in these matters it is well to have a discussion by different minds - have constituted a satisfactory Court of Appeal. I have no faith in numbers giving weight to the decision of a court. I think that a court of three would give as great satisfaction to the people as a court of twenty.
– The honorable member would not provide for an appeal from a Bench of ten Judges to a single Judge1?
– It is not unusual to appeal from more than- ten persons to one umpire.
– An umpire is not appointed until there is a difference of opinion. The honorable member would not provide for an appeal from ten unanimous Judges to a single Judge?
– larnnotadvocatingthe propriety of appointing only one Judge to the High Court, but if an appeal is not to be made from a large’ Bench to a small Bench, we cannot constitute a High Court with fewer than eight Judges. But in appointing three Judges we gain these advantages. First of all, we do not incur so heavy an expense in creating what is not, in any case, a complete tribunal, if we appoint three, as if ve appoint five Judges. Again, if the J udges appointed have a large amount of time to themselves, after they have performed their duties as conveniently to the public as they can, that perhaps will not be a disadvantage, because it will enable them to give more study to their cases, and will provide for speedy decisions, which the honorable and learned member for Northern Melbourne regards as one of the rights of the subject conferred by Magna Charta. If the arguments of those who support the Bill are right, we shall not lose the opportunity of ultimately carrying out their views. If for the present we start on more modest lines than they propose, we can enlarge the original jurisdiction of the court whenever the necessity arises, if it ever does, to establish a Federal Judiciary which will take the place of our present system. But once we step out on the lines laid down in the Bill, we are committed to the fullest extent. We establish the court, and try to attract to it the cases which arise under the measures passed by us. In doing so we make more work for it, and the fact that the court is in existence, and is attracting work, will mean that we shall have demands from the .people to bring its jurisdiction nearer to them. In this way we shall subsequently be required to enlarge its circuit, and an expenditure will be required the amount of which it is impossible now to name, but which will be infinitely beyond the estimate which has been given. For these reasons I support a limitation of the original jurisdiction of the court, and with such a limitation I cannot see any reason for the appointment of more than three Judges. In making this arrangement, we rob the people of nothing. They will still have that system of jurisdiction in which they have gained confidence, and which now deals with nearly all the matters for which it is proposed to ‘ establish High Courts in each State. Beyond the present judiciaries they will have, if they choose to avail themselves of it, the High Court as a Court of Appeal to equalize decisions, and to give a final Australian voice. The Privy Council will exist as a further Court of Appeal under either system. Under these circumstances we shall be neglecting the best interests of the Commonwealth, and giving ground for some of the attacks which have been made upon the. Federation, if we abandon the means of obtaining justice already established amongst us; which extend not merely to the capitals of the different States, but from end to end of this vast continent.
– The honorable member for Illawarra is also a supporter of the Bill.
– The honorable and learned member’s support was only half-hearted.
– Then there is the leader of the Opposition.
– The honorable and learned member for East Sydney is such a warm supporter of the Bill that he has felt constrained to absent himself from the Chamber for a fortnight. Perhaps his conscience is pricking him, and he cannot see his way to venture here. The honorable member for Melbourne Ports has asked most pathetically - “When lawyers differ, what is a poor layman to do 1 “ My answer is - “ Remain poor - if you pass this Bill.” I desire to direct the attention of the Committee to some opinions which were expressed by the Minister for Trade and Customs in opposition to a Bill of the character now before us. The right honorable gentleman, when speaking at the Convention at Melbourne, in 1898, said -
We should, above all in the early stages of the Constitution of this Federation, be careful lest we involve the Commonwealth in an unnecessary expense - in expense which is altogether out of proportion to the necessities of the case. It seems to me that, although this Bill is in a preferable shape to that in which it originally saw the light, in that it contains no appropriation, within the four corners of the Constitution, of any huge sums for Judicial salaries, j’et, if we do not carry an amendment, such as is now suggested (by Mr. Glynn), we shall takeaway from the Commonwealth a facile means of providing all that is required at least in the earliest period of the history of the Constitution, at the least possible expense.
The honorable and learned member for Indi has drawn a very pretty picture of what might take place in the High Court, but he has not shown the necessity for the tribunal. I will again quote from the speech of the Minister for Trade and Customs, who was then a lawyer in full practice, an eminent constitutional authority, and the President of the Convention.
– Cannot the honorable member see the difference between framing a Constitution and acting upon the Constitution?
– 1 fully understand that I am now quoting the opinions held by Mr. Kingston, which should stand good even to-day. Mr. Kingston is reported to have said -
The fitting solution, I think, is found in the proposition of my friend, Mr. Glynn, which is that there shall be a representation of both the Chief Justice of Australia, the highest officer in the Commonwealth responsible to the Federation, and the other Judges, more numerous, and selected on account of the positions which they occupy in respect to the provinces. I would like, further, to say that I think there is nothing in the contention that the Chief Justices of the different provinces would be unwilling to accept positions of the description suggested. I know of no higher position in the gift of the Federal authority than the position of Judge of the High Court in Australia.
– What did the Convention decide ?
– I have not had time to go through the whole of the report, but I am simply giving honorable members the benefit of the remarks made by the Minister for Trade and Customs. Most of the people of Australia hope never to have to go beyond the police court, or even to reach that place, and they must be appalled at the idea that still another court is to be added to the already formidable array of tribunals at present in existence in Australia. I find that the salaries paid to the Supreme Court Judges in New South Wales amount to £21,700 per annum, whilst the annual appropriations for a similar purpose in the other States are as follow : - Victoria £18,500, Queensland £11,500, South Australia £5,4-00, Western Australia £5,900, and Tasmania £3,900, making a total of £66,900 for salaries alone. The list of States Judges includes 6 Chief Justices, and 22 Puisne Judges : and over and above these it is now proposed to erect a marvellous Federal combination of 5, 10, or 20 Judges. The Attorney-General apparently desires that the High Court should have extended jurisdiction, and that the Judges should tout for business against the various courts now established. They are to expose their wares like shopkeepers in. order to entice litigants to leave the States Courts and intrust their business to the Federal tribunal. In view of the feeling which has been evinced towards the Bill both inside this Chamber and out of it, I shall consider it my duty to endeavour to so whittle its provisions as to make it useless. The cry for economy has been described . by the Prime Minister as a miserable one, but it is miserable only to those who would like tosecure a seat on the High Court Bench. All the predictions of the anti-Billites are being absolutely fulfilled.
– As a federalist the honorable member knew that a High Court would be established.
– Yes, at the proper timeDoes the honorable and learned memberimagine that people voted in favour of federation simply because the Constitution provided for the establishment of a High Court? I find that the total amount represented by associates’ salaries, travellingexpenses, &c, throughout the Commonwealth is £35,989. These figures are compiled from the States Governments Estimatesfor the year ended 30th June, 1902.
– By whom?
– By a most zealous man in the interests of the public. If the honorable and learned member for Indi werepossessed of half as much zeal as is that gentleman, he would be on the side of the opponents of this measure.
– The honorable member must have his joke.
– It is no joke for the people who have to pay this money. The District and County Court Judges throughout Australia absorb. £22,000, and the law officers £118,431, of which Victoria pays £20,440. The sheriffs receive £51,062. Of course, we are told that the High Court can utilize theservicesof thesheriffs of thevariousStates, together with buildings which areowned by the States Governments. But I cannot accept that statement. If the High Court is to be such an exalted tribunal, how can it use second-hand officers. Are we to have a High Court, the officers of which are to be dressed up in second-hand clothes % The Masters-in-Equity throughout Australia receive £16,342, of which New South Wales contributes £7,G50, and Victoria £8,692. The stipendiary magistrates draw £63,920 ; the expenses of petty sessions aggregate £128,024, and “miscellaneous” covers an outlay of £68,638, making a total of £571,306. That is the amount which about 700,000 adults pay for the administration of justice, exclusive of police protection. I predict that upon the establishment of this tribunal the courts will be found to overlap in their jurisdiction. Moreover, the full number of Judges constituting the High Court will not be able to go upon circuit, and will the Justices who can do so be any better qualified to. give decisions upon cases which come before them than are the Supreme Court Judges of the States’? I intend upon every possible occasion to oppose this Bill, with the object of destroying its efficacy. I trust that the arguments which have been advanced in favour of economy will not be again characterized as “ miserable.” Those ardent federalists who desire the Commonwealth to be respected, and who wish it to acquire further powers from the States, ought to remember that every extravagant act in which we indulge will be an obstacle to our progress in that direction. One reason why the High Court should not be invested with additional jurisdiction is that before fi. man can appeal to it his claim must exceed £300. Consequently, admis sion to that tribunal is not open to the masses. It is all very well to say that the Federation should be properly plumed. It sounds very exalted to say so, but the public who have to bear the expense ought to be considered. I would further point out that the Minister for Trade and Customs, when a member of the Federal Convention, advocated practically everything which the opponents of this Bill have urged to-night. “If ever there was a vote recorded in this House which was uninfluenced by party considerations, it was that cast upon the second reading of this Bill, and I trust that the same feeling will prevail throughout its discussion in Committee. Now that honorable members have been released from the power of the whip-
Mr- WILKS. - It is not nonsense. They were squirming like scorpions, and Ministers themselves were openly whipping for the measure. It is well that the public should be informed of this fact. The honorable and learned member for Corinella, with a tremor in his voice, declared thatfor the first time in his life he was compelled to vote against his party.
– I stated that I voted against the Bill without any reluctance, aswill be seen by a reference to Hi.vn.sard.
– I must accept the honorable and learned member’s denial, as it is theparliamentary practice to do so. I am sorry that it is the parliamentary practice.
An Honorable Member. - Is this a stone- wall 1
– If I thought that the Bill would be passed as it stands, I would .” stonewall “. it for a fortnight. I notice that the Government whip is anxious to get the measure through. Will he be as anxious to tell his constituents that it will involve the appointment of ten, twenty, or 25 Judges ? It is of no use saying that somany Judges will not be appointed. The legal members themselves, who are impartial on the subject, have exposed the whole business. They say that the cry is for more and more legal machinery, and more and more courts and Judges. So it will be in the case of the High Court. The Attorney-General himself admitted at the second reading stage that it was intended to appoint five Judges “for a start.” When we give them more jurisdiction more will be wanted. The honorable member for North Sydney has stated that eight or ten will be required, and the Attorney-General did not deny it. There are so many out of the 25 I have mentioned. The honorable and learned member for South Australia, Mr. Glynn, has quoted a number of eminent authorities on this question. He quoted, amongst others, that eminent American writer, Cooley. There is no better authority. The honorable and learned member for Indi, who is so well acquainted with the constitutional writers, must have had many of his opinions shattered when Cooley was quoted. Some one interjected that Mr. Dooley ought to be quoted. Mr. Dooley, who is an excellent judge of human nature, would be a good authority to quote on the present occasion. It is a . pity in the interests of the
Commonwealth that we have not got a Dooley here. Under cover of his humour Mr. Dooley exposes many abuses and absurdities, and he would be a powerful and useful member of this Chamber in exposing such abuses as will arise in connexion with the High Court. It was said by those who opposed federation that it was merely a game for the benefit of a gang of lawyers. I would not use such a phrase in this Chamber, but it almost deserves to be used, particularly as we have reason for believing that the appointees to the High Court will be chosen from what are called men of Parliamentary experience, acquainted with the Federal idea. What right have we to give jurisdiction to men of that character? Am I to understand that the Chief Justices of Australia - men like Sir Samuel Griffith, Sir Samuel Way, and Chief J ustice Darley, who are of the very highest repute in their States - are not competent to carry out judicial duties for the Commonwealth.? Am I to understand that those men are not head and shoulders above the persons alluded to as possessing parliamentary experience and acquaintance with the Federal idea? The most disinterested Judge, and one of the greatest federalists in Australia, Sir Samuel Griffith, has told us that no High Court is required yet. That is a very excellent reason for opposing the extension of this jurisdiction. The legal members of the House who have opposed this Bill are entitled to the thanks of the community. especially allude to the honorable and learned member for Northern Melbourne, the honorable and learned member for Corinella, and the honorable and learned member for South Australia, Mr. Glynn. Some of them have voted
Against their party because they knew there was no necessity for the measure. I deeply regret that I have not the legal training which will enable me to oppose it as effectively as I should like to do. Why have the labour party been so significantly silent 1 All I have heard from them was an interjection from their leader, who said that for constitutional reasons, constitutional questions ought to be settled by the High Court. Surely we have a right to expect a more definite expression of opinion on the subject from them. Probably the honorable member for Bland is possessed of information to the effect that this High Court would confer benefits upon the section of the community which he represents.
– Will the honorable member ask the leader of the Opposition what is his opinion on the matter ?
– I believe that the leader of the Opposition, being a busy man, did not look into the question sufficiently carefully. Now that he sees the enormous expense that will be imposed upon the public by the constitution of the High Court, he may take a different view. But why do not the labour party express themselves more clearly?
– Individual members of the party are in favour of the Bill, but not the whole party.
– How many of the members of the party favour the measure ?
– Six are against it and ten are for it.
– When they are so equally divided, before extending the jurisdiction of the High Court, the benefit of the doubt ought to be given to so strong a minority.
– I expect that they will all vote for the Bill after the honorable member has finished !
– Out of deference to the honorable member for Darling, who expresses his opinion of my speech in such a nice manner, I think I shall conclude, the argument. I believe that the honorable member voted for the Bill. Now, perhaps, he is prepared to vote against it. If I have changed his opinion I have done good work.
Amendment (by Mr. Deakin) agreed to-
That the words, “ (c) Admiralty and maritime jurisdiction,” be omitted.
– I should like to point, out that in effect we are now considering whether we shall have not only three or five Judges, but even a greaternumLer. At the Melbourne Federal Convention in 1898 two members of the present Ministry actually voted to reduce the number of Judges from five to three.
– As a minimum.
– These two members of the Ministry were the Minister for Trade and Customs and the Treasurer, and the reasons they gave for their votes were excellent. The words of the Minister for Trades and Customs on that occasion were -
Another reason . … is the necessity for economy. We should be … . careful lest we involve the Commonwealth in unnecessary expense.
The Treasurer said -
I am of opinion that this court will for many a long clay have little or nothing to do. I cannot see where the work is going to come from . . . I believe the Federal Parliament will be of the opinion that a Chief Justice and two Judges will be all that are required for many a long duy, and when the necessity arises, they will have full power to increase the number.
The reasons given by those two honorable gentlemen are as good to-day as they were then, and it is an important fact that the number of Judges was reduced from five to three.
– By one vote ; and Queensland was not represented at the Convention, while Western Australia was doubtful.
– We cannot get away from the fact that two members of the Ministry, both legal men, and anxious for economy, expressed the opinion that three Judges would be sufficient. There is no necessity to labour tlie point, but honorable members ought to be reminded that when they vote for the retention of this clause, they, in effect, are voting not only for five Judges, but for a great many more, evert to the number of ten. As far back as 1891, the number of Judges actually proposed by Sir Henry Parkes was ten, and if that number was required for the jurisdiction then proposed it is required to day.
– I regret very much that the Attorney-General will not concede the request made by a great many honorable members, because he must have seen, from the tone of the debate, that the opposition to this particular portion of the Bill has not come from this side alone. If we create this additional work for the High Court we shall to that extent relieve the States Courts, and we should be very careful not to duplicate jurisdiction which is already satisfactorily exercised by the latter. The Constitution is mandatory up to a certain point ; but I believe that the creation of powers for the High Court at the expense of the States Courts would be resented throughout Australia, because, so far from being a decrease, it means an increase in expenditure. In Australia, with a handful of people, the Judicial system today costs close upon £600,000 per annum, or nearly as much as the cost of the whole of our defence forces. Under the circumstances it is no wonder that outside there is agitation for econony. The honorable member for North Sydney has shown in as good a speech as has been delivered on the Bill, that the proposal of the Government is wrong “lock, stock, and barrel.”’ While I believe a court of some kind is essential, I am of opinion that we have Judges in Australia quite capable of exercising the jurisdiction, and that their services ought tobe utilized. But the decision come to last week has made that course impossible, and honorable members are reasonable when they consent to give the court the powers provided in the Constitution, bub no further powers.
– No doubt honorable members are anxious to proceed to a division, but this is a question of such vital importance to the whole of Australia that it is well to discuss it more in detail. I do not claim to speak with any legal knowledge as to the merits of the different proposals which have been made, but I can claim to be able to express an opinion as to the effect the Bill will have, in its economic aspect, on the general community. As the honorable and learned member for Northern Melbourne has. already pointed out, the Government proposal means, simply, bringing a second dentist to operate when one is ample, and creating a new and increasing permanent item of expenditure. This is only the beginning of a. number of similar proposals to be considered this session, and I desire at this, and every stage of the Bill, to enter my emphatic protest against incurring this increased permanent expenditure. Gentlemen whom we recognise as authorities have told us that there is justification for the Bill, while other equally competent authorities have, with as much emphasis, informed us that no justification exists. When doctors differ in a matter of the kind, the best course is to place the patient in charge of the most competent nurse to be found ; and it is time the laymen of the Committee exercised their “right to devote a little time to the consideration of what is the proper course to pursue. As I pointed out on a previous occasion, it was the aspiration of a great many Australians, as represented in the Convention, that we should have an Australian Court of final appeal. The Convention in. their wisdom did not see fit to carry out that desire. When they drew up the original draft of tlie Constitution they provided for the establishment of a court to deal with all Australian matters, but having framed that elaborate machinery to deal with conditions which really did not exist, they forgot when putting the finishing touches on the Constitution, to reduce it in any way. Some of the representative members of the Convention saw fit to point out, towards the close of its proceedings, that in their judgment it was unnecessary then to create an elaborate court, involving considerable expense, to discharge functions which were already being carried out by a very efficient tribunal. That fact has been repeated this evening by authorities in this Committee, and nothing I could say would emphasize the point they have made. I have heard no argument which would justify me in supporting at the present time the establishment of the High Court with all this elaborate machinery for original jurisdiction. It has been pointed out that it will not cause justice to be more speedily or cheaply obtainable by any citizen of the Commonwealth. That being so, I am at a loss to understand the reasons which impel the Attorney-General to follow the course he is now pursuing. It may be that the ideals held by him, as well as by the Prime Minister, are altogether above the level of the average citizen of Australia, and that we cannot follow them ; but we all know that States Governments are restricted at present in their operations by their financial position. That being so it behoves us when dealing with exactly the same people to consider whether we should not hesitate before imposing any further burdens upon them until the necessity of doing so is established. “We have had statements made from different stand-points, with a view of showing that the necessity exists, but no evidence of sufficient force, has been given to justify what has been termed a nominal expenditure of £30,000 011 a High Court. That cost within a few years will increase to at least £50,000 per annum. It may not appear to be much to a Government who are dealing with a revenue of millions per annum, but it is this fixing of permanent expenditure that in the past has proved a source of trouble to the States Governments.
– Cannot the States correspondingly reduce the expenditure on their Judiciaries *?
– That hope was held out to many people when we were asked to accept federation.
– It was a bait.
– Exactly. I was foolish enough to plead that it would be possible to reduce the cost of the States judicial systems.
– The bait will not take this time.
– No. I am going to have something more substantial.
– Kyabram has decided against this proposal.
– The question is not what Kyabram has done ; and as a matter of fact I have not been an enthusiastic supporter of the Kyabram proposals. The only argument put forward’ in support of this Bill is that advanced by the AttorneyGeneral, that the judgments of this court may at some future time attract business to it. Is that a sufficient ground to support the creation of a court upon which the present expenditure will be nearly £30,000 per annum ? It offers no justification whatever. We have also to remember that this is not the only item of permanent expenditure with which the Government propose to deal this session. We have other infants coming along in swaddling clothes - the Inter-State Commission, for example.
– And the appointment of a High Commissioner.
– That appointment may be absolutely necessary, but I am not dealina with it now. These various proposals will involve a very considerable expenditure, and we must deal with each on its merits. In this matter it would be well to hasten slowly. With all due deference to the Attorney-General, I would appeal to him to accept the suggestion which has been thrown out, and to agree to the omission of the clause extending, so to speak, the jurisdiction of the court. “Unless that is done we shall have to fight the Bill right through. As a Government supporter I feel very strongly about this matter, and it was with considerable reluctance that I opposed the second reading of the Bill. I have no little sympathy with the Government general])’, and because I have a full knowledge of the facts, I am in sympathy with some of their administrative acts which have met with considerable condemnation on the part of the press. It will be seen, therefore, that it is with some reluctance that I felt impelled to enter my protest against the incurring of this expenditure; and I appeal to the Attorney-General, even at this stage, to say that he will accept the suggestion.
– We are all ready for a division.
– I do not feel ready for a division to be taken on this question. During the second - reading debate I pointed out that honorable members sitting behind a Government are often induced to support the second reading of a measure because of a desire to avoid giving that Government a slap in the face; but during the complications which may subsequently ensue in Committee, those who are opposed to the Bill generally, but who have voted for the second reading because of the.se considerations, are frequently defeated. That is why I took the first opportunity to enter my protest against this proposal. It has already been pointed out that the’ five Judges whom it is proposed to appoint would not meet the requirements of this clause. We have been told that instead of a court of five Judges, with a maximum expenditure of £30,000 a year, we shall require a court of ten Judges, with an expenditure amounting to anything between £50,000 and £100,000 a year. However, jts the hour is late, and I do not wish to detain honorable members, I shall take the next opportunity that offers for expressing my opinion on this subject.
– I think it was inevitable that the debute on this clause should become practically a second reading debate, because the position of affairs has changed since a majority carried the Bill into Committee. We are now considering the details of the measure, and have come to the parting of the ways, and I feel it necessary to occupy a few minutes in explaining my own position.’ When the Bill was introduced last session, I confess that I did not know how to vote in regard to it. I am one of those who look upon the Constitution as worthy almost of veneration, and I was prepared to go to almost any lengths to carry its provisions into effect. I looked upon the establishment of the High Court in some form as absolutely necessary to keep faith with the framers of the Constitution, and I was, therefore, constrained to be very careful how I committed myself to take any part against the Bill. I was then prepared to agree to the appointment of the Chief Justices of the States as an interim arrangement during the initial stages of
Federation. But after I had committed myself to that temporary expedient, the Government practically withdrew the measure. Since then so long a period has elapsed that it seems necessary to me to make some permanent provision to obtain an interpretation of the difficult points which have already arisen, and which must arise in the future in regard to the meaning of the Constitution. Therefore, I listened very carefully to the speech of the Attorney-General, and, in common with other lay members, derived great assistance from- the able state- . ments of the other legal members who spoke. Having listened carefully to those speeches, I came to the conclusion that the creation of a High Court to exercise the functions contemplated by the Constitution was inevitable, and to that extent I am entirely in accord with the proposal of the Government. The Attorney-General, the Prime Minister, and the honorable and learned member for Indi demonstrated very fully the absolute indispensubility of a High Court of some kind, and therefore I paired for the second reading of the Bill. But now that we have entered upon the consideration of the details of- the measure, I am face to face with a number of minor difficulties. In keeping faith with the Constitution, we may go further than its provisions require us to go, and create a body which will be top expensive for our present purposes and circumstances. However, as I understand that it is the wish of the Government to report progress now, I will continue my speech to-morrow.
House adjourned at 10.57 p.m.
Cite as: Australia, House of Representatives, Debates, 17 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030617_reps_1_13/>.