1st Parliament · 2nd Session
Mr. Speaker took the choir at 2.30 p.m., and read prayers.
– I desire to make a personal explanation with reference to the following paragraph, which appears in this morning’s Argus, under the heading “ In the Federal Galleries “ :-
Mr. Wilks, desiring to criticise Mr. Salmon’s attitude with regard to the High Court, found himself in n quandary. How could he, in addressing the Chairman, criticise the arguments of the occupant of the chair? Mr. Wilks got over the difficulty easily. Speaking with such fervour and fluency that an obvious inadvertence was readily intelligible, he persisted in addressing Mr. Salmon as Mr. Chanter, and in bombarding the supposed occupant of the chair with voluble arguments directed - against, the speech of the real occupant.
I desire to point out that I have delivered, only one speech upon this question, and that that speech was in opposition to the Bill. There must have been some misapprehension in the mind of the writer of the paragraph to which I refer, but I should not like a wrong impression to be conveyed to the public.
Mr.’McCOLL. - Has the attention of the Prime Minister been directed to the report that there has been discovered in Spain a ‘ complete remedy for the codlin moth pest, which is the greatest scourge from which our orchardists suffer 1 I ask him to take stepsto procure full information on the subject, and, if necessary, to obtain a supply of the alleged parasites of the moth, and distribute them th roughout the States. If he does so, he will confer a great benefit upon the whole Commonwealth.
– The honorable member must not debate the subject.
– The honorable member . himself brought under my notice this morning the following press report : -
Mr. George Compere, entomologist to the .West Australian Agricultural Department, returned to the State last week, after a lengthy trip through America and Europe in search’ of parasites for pests that have given trouble to local orchards. In Spain he found six different parasites of the codlin moth. One of these had completely eradicated the codlin moth in one Spanish district. Mr. Compere did not bring any of the codlin moth parasites with him, in consequence of their not being required here.
I do not know in what light the action suggested, if taken by me, would be viewed by the Agricultural Departments of the States, but I sholl consider the question with the desire to do anything that lies in the power of the Government to assist the States in. the eradication of so deadly a pest.
– -1 have received an intimation from the honorable member for Macquarie that he desires to move the adjournment of the House to discuss a definite matter of urgent public importance,, namely, ‘’ the delay in the preparation of, and the incompleteness of, the Federal electors’ rolls.”
Five honorable members having risen intheir places,
– I make no apology to honorable members for taking this step, because I find that 150,000 people have been disfranchised by the incomplete collection of the names for the proposed Federal rolls. This House took a great deal of trouble to provide a most liberal franchise for the Commonwealth electors. The Adult .Franchise Act, which confers the franchise upon females as well as upon males, was assented to by the Governor-General on the 18th June, 1902, so that it has now been in operation for twelve months, and the Electoral Act was assented to on the 10th October following, so that it has been in operation for eight months. Honorable members may, therefore, ask how is it that the rolls necessary under those Acts have not been prepared ? In the remarks which I have to make on this subject, I shall speak more particularly of what has been done in New South Wales, because I know more about the state of affairs there than in other States, and I shall leave other honorable members to speak in regard to the States which they represent. Although the Commonwealth electoral law differs very greatly from the electoral law of New South Wales, being much more liberal than it, the Minister for Home Affairs has taken as the basis for the Commonwealth roll the State roll for males which was collected in April, ‘ 1902, and revised in October of the same year. To show the difference between the provisions of the Federal law and those of the State law, I may mention that whereas a man is entitled to vote at the Federal elections after he has resided six months in Australia, no person who has resided in New South Wales for less than twelve months, even though he may have been a resident of Australia for twenty years, can obtain an elector’s right and be enrolled, and every, elector must have resided for a month in the division for which he is enrolled before he can vote at an election. Under the Federal law a man who had resided in Australia for six months and had taken up his resideuce in any State for one month could vote at the Federal elections, but in New South Wales he would not be able to vote at the State elections until he had resided there for twelve months, and in the division for which he was enrolled for one month. Then, again, under the Federal law, persons in receipt of assistance from the Government are entitled to vote ; but under the State law such persons are disfranchised. Furthermore, the members of the military and naval forces in receipt of full pay are entitled to vote at Federal elections, but they are not entitled to vote at the State elections. The State law also contains other disqualifications which are not imposed by the Federal law, and makes it necessary for intending voters to procure electors’ rights, which are not required under the Federal law. Yet, notwithstanding these great differences between the law of the Commonwealth and the law of the State, the Minister -for Home Affairs has taken no steps whatever to obtain the compilation of an electoral roll in accordance with the law of the Commonwealth. A roll has been collected upon the basis of the State roll, but there is a discrepancy between the census returns and the names on that roll of about 42,000 males, and about 29,000 females, or about 71,000 in all.
– That is not the information which 1 have given to the House.
– I think that when the honorable member looks into the matter, he will find that my figures are correct. The roll in the hands of the Minister omits several thousands of electors qualified under the Federal law, because it was compiled under the State law. If allowance is made for the omission of the names of such persons, the discrepancy will be seen to be still greater. No doubt the honorable gentleman will tell the House that he has had a Federal roll prepared, but I would inform honorable members what has actually been done. The New South Wales Government authorized the collection of the names of persons entitled to vote under the State law without reference to the Federal law, and on the 24th September, 1902, a circular was issued, also by the State Government, directing the collection of the names of females entitled to vote, not under the Federal law, but under the State law, which, as I have shown, contains many disqualifications which are not in the Federal law. The roll of female voters collected in New South Wales by the State authorities has never yet been revised, and yet the Minister for Home Affairs wishes honorable members to believe that he has taken every step to so prepare the Federal rolls that every male or female entitled to vote under the law passed twelve months ago shall be placed on the roll. I find that in 1891, when no electors’ rights were issued, after deducting those who were entitled to vote under a property qualification, the difference between the number -of persons on the roll and the total male adult population of New South Wales was 45,362. When we deduct from this number those who were disqualified from one cause or another, there was a difference at that time between those who were actually on the roll and those who were entitled to vote of 01,1 V 7,163. From the time that the electors’ roll in New South Wales was used in 1901, up to October, 1902, when the last return was submitted, there has been an increase of 14,000 in the number of male adults in the population of that State. Yet we find that, whereas in 1901 there were 318,370 electors’ rights issued, the rolls as compiled at present contain the names of only 303,000 male electors. Notwithstanding the fact that there has been an increase of 14,000 in the adult male population of the State, and that many persons were disfranchised in 1901 because of their not having resided in one place for a sufficient length of time to qualify themselves under the State law, and the further fact that the Federal electoral law is much more liberal than the State law, we find that there has been, a decrease of 15,000 in the number of male voters as compared with two years before. This shows clearly that there is a real deficiency, and that upwards of 40,000 male electors in New South Wales have not been placed on the roll. I need not at this stage enter into the question of the rearrangement of the electoral divisions of New South Wales, because I do not think that honorable members have any right to introduce that subject unless they are asked to submit suggestions from the electors. “Under the Federal electoral law, the Minister is required to appoint a chief electoral officer for each State, but I would ask if he has done so? . He is also required to appoint a Commonwealth electoral officer for each division. I would again ask if he has done so ?
– The honorable member has not reason to complain very often about the Minister not making appointments.
– That is quite true, lt is also provided that an electors’ roll for each State shall be prepared as soon as practicable. That provision was made eight months ago, and the Minister has not appointed any officer to prepare the rolls, or to ascertain the exact number of persons to whom the right to vote should be extended. I have taken a good deal of trouble to go through the rolls, and I have found a number of decreases. For instance, although there has been an increase of population in Sydney, the number of electors in every one of the eleven divisions of that city show a decrease, compared with the roll of 1901, the total being 4,842. In the suburban ‘ electorates there is a decrease of 3,600.
– There should be an increase.
– Of course we all know that. In the country electorates to the south, there is a decrease of 2,809 ; in those to the west, a decrease of 2,710; and in those to the north, 1,056 ; or a total decrease for the State of 15,058 compared with the roll of 1900. The Minister has done nothing to ascertain the number of persons who are entitled to vote, and, although I do not for one moment expect that he should give his personal attention to every detail of the work of his office, I think that perhaps he would have been better engaged in looking after the administration of this Act than in travelling about to some of the States. He might at least have secured the services of a competent officer to ascertain the facts of the case, and to make sure that every nian who is entitled to vote is placed upon the roll 1 ask the Minister whether he has any Federal roll whatever at this moment - whether he can show that any roll has been prepared under the conditions of the liberal franchise provided for in the Federal law 1 The basis of the. rolls which he lias must have been the State rolls which have been prepared under .an entirely different law, and a large number of persons who would be disfranchised under the State law would be fully entitled to be placed upon the Federal rolls. There must have been fully 30,000 or 40,000 persons who have never taken up their electors1 rights, but under the Federal law every person who has resided in Australia for six months - whether he has taken up his elector’s right or not - is entitled to have his name upon the Federal roll for the division in which he lives. Supposing that my name were on the roll for. the Bathurst division, and that I moved from Bathurst to Perth, about four miles distant, I should have my name struck off the State roll unless I resided in Perth for one month ; but that would be no reason for omitting my name from the Federal roll. The Federal roll has been framed solely upon State rolls, and apparently no inquiry has been made as to the disqualification attaching to those whose names are not included on the State rolls. I do not wish to detain honorable members any further, but I felt that it was my duty to . direct attention to this important matter, and to, if possible, stimulate the administration into taking the steps required to secure the preparation of proper rolls. If we allow matters to drift as the Minister has done, we shall probably find that from 100,000 to .150,000 persons who are entitled to vote, will be left off the rolls. It was the desire of every member who supported the Electoral Act that every man and woman entitled under the law should be afforded an opportunity to exercise the franchise at the next Federal election, and therefore it is important that every precaution should be taken to secure this end. The decreases to which I have referred should have been the subject of inquiry by the Minister, and he deserves censure-for .not having taken proper steps to administer his Department. He was warned by the leader .of the Opposition that he would probably find himself in some such position as that in which he is now placed, because he appointed as the officer in charge of the Electoral Department a gentleman who was recommended for retirement from the public service of New South Wales in 1884, and who was retired in 1896. It was shown at an inquiry into the administration of the electoral office in that State that 55 officers were employed, and the staff was afterwards reduced to fourteen, at which strength it remains to the present day. I trust that the Minister will see that prompt step3 are taken to insure that every person entitled to vote under the Federal law shall be placed upon the rolls.
– A very unhappy instance has been afforded of the muddle into which a department can fall. It is a pity -that, although the likelihood of this position being brought about was pointed out to the Minister, no provision was made against it. I do not think that we can altogether blame the Minister, because when we put a man into a position which he is not capable of filling we can expect only one thing, and that is muddle. We did expect a muddle, and we have got it, and those honorable members who support the Government are to blame for continuing to give the Minister their countenance. It is plain that at least 150,000 electors have been disfranchised. If the Minister for Home Affairs had had no time to carry out the requirements of the Act, there might have been some excuse ; but over twelve months have elapsed since the passing of one Act, and eight ‘months since the passing of the other, and yet nothing has been done. The collection of Federal rolls in New South Wales, under proper administration, should not occupy more than two months, and if the work were carried out in connexion with the State Electoral Department, the expense need not have exceeded about £1,000. I dare say that fully that sum has been muddled away in other directions, with the result that there is nothing to show for the expenditure. It was pointed out to the Minister at the time that there was a strong probability ‘ of confusion arising ; indeed, the leader of the Opposition went so far as to absolutely declare that confusion would arise. It has arisen. Of course it may seem hard that the blame should fall upon the Minister for Home Affairs, but upon whom else should it rest 1 When honorable members find that the same conditions which prevail in New South Wales obtain, in the other States, we are afforded an excellent illustration of how much time may be wasted in doing nothing. The 150,000 electors who are at present disfranchised in New South Wales, as well as the 60,000 or 70,000 who OCcupy a similar position in Victoria, are entitled to lay the whole blame for the loss of their votes upon the Minister himself. At the same time the Government cannot escape from their responsibility in the matter if they allow the Minister for Home Affairs to continue to fill an office which he is incompetent to administer. By the same process pf reasoning, Ministerial supporters, if they permit the present muddle to be continued, cannot evade their share of responsibility. In two months this confusion could be rectified. The whole of the Federal rolls could be compiled afresh. I understand that in New South Wales an expenditure of £1,000 will be necessary to bring the Commonwealth roll to a proper condition. Will the Minister take the necessary steps to achieve that object, or, if not, will the Prime Minister assume control of the matter? As far back as November last I was convinced that, upon some ground or other, the elections for this House would not take place in December next, if the Minister for Home Affairs could possibly help it. I did not know at that time what excuse could be urged against the adoption of that course, but I see now that his intention is to delay the collection of the rolls and thus to confuse the minds of the people. There is still ample opportunity to prepare the rolls in time for the elections, and if that is not done the Commonwealth will be plunged in an additional expense of £50,000 in May next, to cover the elections for this House. If we are prepared to permit that, can we wonder if there is a general outcry against the extravagant expenditure of this Parliament? Apparently, irrespective of the extravagance of the Government, honorable members are quite content to allow them to continue to mismanage affairs. I admit that the mismanagement is not intentional, but the fact remains that they are incapable of doing anything else. They are not to be blamed for their lack of mental ability. It is their misfortune that they were born without it.
– Why does not the honorable and learned member put them out of office?
– I have endeavoured to do so, and to make their enormities known to the people. Through the efforts of myself and. other honorable members who have been fighting for sound government, I believe that the great body of the electors, when they have an opportunity, will prevent the return to Parliament of representatives who are willing to tolerate the continuance of the existing muddle.
– I am very glad that the honorable member for Macquarie has brought this matter under the attention of the House. It is high time that we expressed our disapproval of the’ delay which has occurred in making the necessary preparations for the forthcoming general election. I have in my hand a telegram from Western Australia which shows that, bad as may be the condition of electoral affairs in the eastern States, it is infinitely worse there, although I cannot submit figures- as the honorable member for Macquarie has done - to demonstrate the discrepancy that exists between the census returns and the electoral rolls. More than a week ago I received the following telegram from a member of this Parliament who is at present in Western Australia -
Cannot find any electoral officer for State.. Has any appointment been made ? No clerical staff has been appointed. Slow progress has been made in the preparation of list of names by the police and postal officials. It is estimated that Kalgoorlie list alone will take several months to complete. The State cannot be distributed into divisions till the lists are complete, and Parliament will not be able to consider the divisions before the elections, unless business isbustled. This will be a very serious position indeed.
That shows that the Department for HomeAffairs has been even more lax in the performance of its duties, so far as Western Australia is concerned, than it has been in the other States.
– The honorable member knows that that statement is not correct, because I have told him so myself. He has no right to repeat the misstatement here.
– I wish to correct theMinister. He is making a very great mistake, because I have had absolutely no conversation with him upon this matter.
– Nonsense; the honorable member’s mind must be going.
– I can assure him that it was not with me that he. had a conversation. I am absolutely certain that he is mistaken. I have never spoken to him upon the matter. Had I clone so, there would have been no occasion’ for me tomake use of this telegram. I have been waiting for him to return from Tasmania in order that I might bring the matter forward. The Minister’s accusation shows that it is his own mind which, is becomingweak. But the chaotic conditions of which I complain are not confined to Western Australia. In New South Wales thedifference between the census returns and the electoral rolls represents 90,000 namesof electors, and in Victoria, 40,000. In those two States, therefore, there are- 130,000 electors whose names are entitled to be placed upon the electoral rolls, butwhich do not appear there. I contend that any division of the electorates, either of Victoria or New South Wales, which is based upon’ such rolls, will not be a just one. There has been a blundering and neglect which is not creditable to the Department for Home Affairs, or its Ministerial head-
Under the circumstances, only one of three courses call be adopted to rectify that blundering. It has been suggested that the elections for the House of Representatives might be postponed until its members retired by effluxion of time. I am sure that if anything of that kind is done, it will be against the wishes of seven out of eight of the members of this House. It would be contrary to the best interests of the Commonwealth if the. elections for the Senate and the House of Representatives did not take place simultaneously. The elections for the other Chamber must be held in December, and the people would be called upon to submit to unnecessary expense if those for the House of Representatives were not held at the same time. That suggestion, therefore, would not receive the support of a majority of honorable members of this House, and I am equally certain that it is opposed to the wishes of the great bulk of the people.
– A correct roll is also needed for the Senate.
– That is so. The same objections which have been urged to the present rolls of electors for the House of Representatives are equally applicable to the rolls for the Senate. There is another proposal which has been made in some quarters, namely, that the elections might be conducted upon the. divisions at present existing in the various States. If that course has to be adopted it will certainly be the fault of the Department for Home Affairs, and it will also be contrary to the desire of honorable members as expressed when the Act was passed.
– It will be contrary to law.
– As the honorable member reminds me, it would be necessary ‘to pass an amending Act before such a step would be in accordance with’ the law. There is only one other course which can be pursued, and that is to endeavour to have all the rolls ready in time to enable the elections for the two Houses of this Parliament to be held - as was originally intended - simultaneously. The elections for the other Chamber must take place prior to the 31st December. If the electorates are to be recast, the Department will have to make almost a -superhuman effort to have the rolls ready in time for the elections. I notice that in the press this morning a time-table is published regarding the fixtures for the elections so far as Victoria is concerned. That tableis very much behind the time when compared with the fixtures for the other States. If it were possible for all the divisions of the States to be completed by the 1st July there would be the greatest doubt whether all the necessary work could be accomplished before the elections should takeplace. The time-table to which I haw referred reads -
July 1. - Division of States possibly completed.
July 31. - Plans will have been exhibited for 30 days iri accordance with the -Act.
August 4.- Plans laid before Parliament.
August 1 8. - -Resolutions passed by both Houses, approving of divisions in all the States.
August 21. - Proclamation of the polling places.
August 21 to September 21. - The assignment of electors to polling places, and the preparation and printing of the lists, containing about l,7S0,00O names.
September 22. - Exhibition of the lists, and notice of the special courts of revision.
October 22.- The lists wiil have been exhibited for 30 days.
November 2 to November 12. - Special courtsof revision.
Arrangements cannot be made in a shorter time, and if the writs for the elections are issued on 31st October it will mean that the rolls cannot be printed or made available for candidates or electors in sufficient time for the necessary arrangements to be made for the elections. Then, supposing that this Parliament objects to the division of any of the electorates, and sends back the report to the Commissioner for a redistribution, the new divisions cannot be fixed in time for the next election. Under the circumstances the Government are undoubtedly at fault for not having made J;he necessary preparations beforehand. The Electoral Act was assented to on the 10th October, or nearly eight months ago, and yet the Commissioners were not appointed, nor any effort made to prepare for the elections, until many months subsequently.
– That is another misstatement. I shall give the dates presently, and I think I shall make the honorable member rather ashamed of himself.
– A start should have been made at the beginning of October, but nothing was done ; and I shall beglad indeed if the Minister can show that what I am saying is not in accordance with fact. I am sure that none of us are desirous of making out a case against the Government unless their action justifies it. But the impression I have is that which any outsider might receive, and the Minister, if he has a good case, ought to be glad that the matter has been brought forward, and an opportunity afforded him to justify himself in the opinion of honorable members, and also in the opinion of the country. As already pointed out, there is a deficiency in two States alone of 130,000 names, and that is a matter an explanation of which is due from the Minister. The Minister would have been far better employed in administering his Department than in gallivanting around Tasmania, telling the people of that State how much he has been attending to the wants of the community. I . wish it to be clearly understood that I am not in any way averse to Ministers delivering political speeches so long as the work of their Departments is attended to ; that is their first duty, and political speeches might be left for their leisure. It is in the interests of the country that Ministers should travel about the Commonwealth, but it is not in the public interest that, in thus travelling about and delivering speeches, they should neglect their work.
.- I notice that there are deficiencies in certain electorates which I know very well cannot be
Attributed to data of recent compilation. In Sydney there are certain districts with -settled and fixed populations, which may become more dense each year ; while there ure other districts in which the population is becoming less, owing to the fact that dwellings are being razed to the ground for the purpose of erecting warehouses and other business premises. I see that the re-adjustment of the Federal electorates has been based on the old State rolls - manifestly an ‘incomplete and imperfect basis ; and in my opinion this House ought to insist on the rolls being compiled by the Federal, and not by the State authorities. I observe that in the Glebe electorate in Sydney there was a voting strength of 3,2S0 in 1901, and that in the intervening period there has been a decrease of 361. I do not know how that result has been arrived at, but it must be within the personal knowledge of the Minister that a fluctuation of that sort is more likely to be accounted for by removals, and by the neglect of new arrivals to apply ‘for electors’ rights, which is not essential under Federal law, than in any other way. It is quite true, as the honorable member for Kalgoorlie said, that the Minister for Home Affairs has been making himself well acquainted with the requirements of this great continent ; but the honorable gentleman ought to have left some competent authority to attend to the business in his absence. That, I am afraid, the Minister did not do. As I have already indicated, I am of opinion that the re-adjustments of the Federal electorates ought to be based on data furnished bythe Federal authorities. The Minister appointed some presumably competent person to perform the necessary work, but it is quite clear that nothing was done by that person towards compiling the rolls on which the Commissioners were to be asked to complete their work. Under the circumstances the Minister should take a conciliatory attitude, and give the House some sort of assurance that that which has not been done should be done immediately. These is no reason for assuming that this motion for adjournment is hostile ; and I am sure honorable members are very much indebted to the member for Macquarie for introducing the subject. I had no idea, and I feel sure other honorable members had no idea, but that the rolls were compiled by the Federal authorities. The female portion of the electors are indebted entirely to the States authorities, although they received the franchise for reasons unconnected with the States, and may vote on considerations different from State considerations. I should like to hear what the Minister has to ‘say to account for the extraordinary lassitude in this particular Department - a lassitude which is only partly explained by the criticism levelled against the head of the Department by the leader of the Opposition, who described that gentleman as utterly incompetent. Whether that is sufficient to explain the lassitude of the Department I do not know, but I can never consent to allow the whole of the blame to rest on the departmental officers. The Minister in charge of the Department must shoulder the responsibility if he chooses to employ incompetent persons.
– I am not in a position to know the cause, but I think the Minister will admit that matters are in a very unsatisfactory condition, in view of the action taken for mapping out the States into new electorates. I do not know that the difficulty could be altogether avoided by the Department. In New South
Wales, on account of the severe drought during the past twelve months, large numbers of electors have been driven away from their usual places of residence. People engaged in agriculture, grazing, and mining pursuits have been compelled to leave the western parts of the State and go towards the east ; and 1 am reminded by the honorable member for Bland, who, like myself, represents a western district, that in a great many cases, although the male population remained, the female population were sent into the towns and cities. In a number of the western centres those entitled to the franchise were temporarily absent when the names were being collected, and in some cases their names were on that ground refused by the police. It is- very doubtful whether the names of these people were collected in the districts where they happened to be temporarily resident, and I know of cases where, under the latter circumstances, the names were refused on the ground that the residential conditions had not been fulfilled. These facts account very largely for the. big difference which has been discovered between the census returns and the rolls, and seem to ‘ indicate the possibility of a very big injustice to country districts under the proposed redistribution. So far as New South Wales is concerned, the political weight in this House has shifted from the country to the city in the case of one representative ; in other1 words, the country has one representative less, and the city one representative more, as compared with the present arrangement. In view of the abnormal conditions, and of the unsatisfactory state of the rolls, the present attempt to carry out the divisions of the State is simply farcical. The whole question of allocating the electors should .be considered before a decision is finally arrived at. Those electors whom the Department believe to be in the State, but who cannot be discovered, should be found, or some attempt made to find them before the final decision. The machinery employed by the States in this work up to the present time has been very imperfect. A considerable number of electors, who are qualified under the Federal law are disqualified under the State law, and no account is taken of these. Then so far as my inquiries go, no complete list of the female voters in the State of New South Wales has yet been compiled. The only list which the Federal Electoral Department has, or which is in any way available to the public, is one on which appear the names of those females who themselves applied for electors’ rights.
– The honorable member should know that that statement is absolutely wrong. I thought he had sense enough to know better.
An Honorable Member. - The police collected the names.
– I am aware that the police collected the names, but I am not aware that rolls containing the additional names have been issued, and there is no certainty as to when they will be issued. My contention is that until very recently theonly names of females appearing on the rolls were the names of those who applied personally for elector’s rights to the different electoral registrars of the States, and not the names which were handed to the police.
– That is not correct. The police canvassed the whole State.
– - -I have recently made a tour through my electorate, and when there I was asked by female electors how they could ascertain if their names had been collected by the police, and were on the Federal rolls. I could not give them any information on the subject, but if the Minister can do so, he will be conferring a great benefit upon them. Of course, I was able to inform them that the Minister had intimated that, if they wrote to the Electoral Officer for the State, their cases would be inquired into ; but unless some other method, is adopted, the Electoral Officers will require large additions to their staffs to enable them to deal with the correspondence which will come to them. The whole matter is in a very unsatisfactory .position. The Minister should devise some scheme which will enable electors to know definitely if their names are upon the rolls, and to take steps, if they have not been enrolled, to get their names placed on the rolls. If the States are divided in accordance with the States rolls the division will be of very little use. What is necessary is that the Federal rolls shall be brought up to date, and that then, they shall be open for the inspection of the publie. Then, when they have been finally revised, the States should be divided. But if the redivision of the States takes place before the Federal rolls are complete, it will be simply farcical, because the work will all have to be done over again. I do not approach this matter in a spirit of hostility to the Department, but I desire that there shall be no delay in the completion of the rolls. If the present anomalies are not removed, the probabilities are that a very large number of the electors of New South Wales will be disfranchised when the Senate elections are held at the end of this year, and if the Government see fit to send the members of this Chamber to the country at the same time, the injustice will be intensified. Therefore it is necessary that consideration should be given to this matter at once, especially as not only is the State of New South Wales affected, but also the States of Victoria and Western Australia, and probably the other States of the Commonwealth, too.
– So far as the electoral rolls in Queensland are concerned, everyone is perfectly satisfied with them.
– Well, I speak for those of my own electorate, which covers more than half of Queensland. Some honorable members have electorates which might almost be effaced with a postage stamp, but it would take more than a blanket to cover mine. The police have had the greatest difficulty in collectingthe Queensland rolls, but the consensus of opinion in my electorate is that the work has been well done. Those whose names have not been collected have in many cases gone to the nearest police station, and had them put on the rolls, and in this way thousands of names have been added since the first collection. Those are mostly the names of the nomadic population, which is very numerous in the western portion of the State - names which the police cannot very easily obtain, because it is impossible for them to visit every water-hole and billabong in the State. But if in New South Wales there has been no systematic enrolment of electors, the dereliction of duty by the officers of the Department is very serious. I know that a bouse in the middle of Grafton, in New South Wales, was un visited by the police. If that can happen in Grafton, I do not know what might not take place in the western parts of the State.It is not tobe wondered at that 42,000 names have been left off the roll. No one has called at the house where I am staying in Melbourne to collect the names of the inmates, and I have advised them to write to the Chief Electoral Officer. But, as the honorable member for
Canobolas has pointed out, if it is left to the individual electors to get themselves enrolled, a great many will be disfranchised. The intention of Parliament was that every man and woman in the Commonwealth, of the full age of 21 years, should be able to vote at the Federal elections, and I am at a loss to understand why there should be such a discrepancy between the number of such persons in New South Wales and the number of names on the Federal rolls for that State. I know that the Minister is fully alive to the facts, because, in conversation, he told me that he could not account for them.
– He has not taken any satisfactory step to prevent the disfranchisement of electors.
– Perhaps he will justify himself later on. There was a very amusing paragraph in the Age this morning, in which it was was stated that a policeman had forgotten to hand in 1,000 names which he had collected. I have heard of men in New South Wales holding 500 electors’ rights, but this policeman was even a better politician, and could keep twiceas many names up his sleeve. The fact of the mutter is that, as everything is new, it is difficult to make the arrangements work smoothly, though I believe that everything will be right when the proper time comes. There is . one question, however, which I should like to ask the Minister. According to statements which appeared in the Queensland press during the recess, no adequate provision has been made for the printing of the Queensland rolls. As Queensland covers a vast territory, it will take some time for the rolls to circulate through the different electorates. Therefore the sooner they are sent out the better. But it is said thatthe authorities do not know how to get them printed - whether they should purchase linotypes, or buy more type. If proper arrangements are not made quickly, however, the rolls may not be available when the elections occur, and we shall then be in a worse position than in the first instance. In Queensland they hold revision courts in November, to purge the rolls, and they do it with a vengeance. One court struck off 400 names at a sitting. They do not ask whether the electors are still qualified : they simply strike their pens through the names, and often men are unable to get themselves re-enrolled before the next election. But if the States rolls are used for the Federal elections, some of us will have great difficulty in getting back. I know that it will be almost impossible for me to do so. I should like the Minister for Home Affairs, therefore, to inform us what provision has been made for the printing of the Queensland rolls, and if everything is in readiness for their publication at the earliest moment %
– I think we are obliged to the honorable member for Macquarie for bringing this matter forward, because, although the Department has had difficulties to contend with which were almost inevitable, I do not think sufficient expedition lias been exercised in the ( Joi lee- tion of the rolls, and in the adjustment of the electorates. It seems to me that, as things are going, the rolls will not be read)’ at the time of the Senate elections, and, of course, would not be available if the elections to this House occured at the same time, as I think they should.
– More than “should”; thev must.
– In my opinion, the manner in which the Department is allowing matters to drift is likely to result in our having either to fall back on the old rolls, or to postpone the dissolution of this House for a longer time than is necessary. The report of the New South Wales Commissioner will not be available for presentation to this House for some weeks to come, and in some of the States even a longer period will elapse. . I do not know whether we shall have any opportunity of criticising the reports or referring them back to the Commissioners for further consideration. If we have an opportunity for criticism we must consider the time that will be available to the Commissioners forgoing through the various divisions once more, and allow for a month after they have completed their labours to give time for the lodging of objections. That is an aspect of the matter which shows the necessity for hurrying the work on, because, once the divisions are settled, the rolls will have to be made up for the different districts from the lists now sent in. That will take some time. Then the rolls must be exhibited for a certain period to enable persons to see them before the Revision Court sits. That will mean another month’s delay, and after the revision has taken place the rolls will have to be corrected again in order to make them complete, in view of the decisions given by the courts. Even if we accept without question the decisions of the Commissioners the complete rolls cannot be issued before at least the end of October. On the other hand, if the House refers any of the reports back to the Commissioners for further consideration, or if the Senate exercises its right to take a similar course, another five or six weeks’ delay will be involved. This being so, it seems to me that the Minister and the officers of his Department have something to explain. I know that the Minister lias shown a desire to push matters on, but his efforts have not been fully seconded by his officers, if one may judge by results. I. think that it is time some change was made in the direction of affairs if we are to have the rolls prepared in time for the next general election. I believe this can be done even now, if the work is taken in hand vigorously, and pushed on with all possible speed.
– If the statements appearing in the press are to be believed-
– Surely the honorable member does not believe the statements in the newspapers 1 The statement which appears in the Argus to-day is absolutely incorrect.
– I do not know anything about the statement to which the honorable gentleman specially refers, but if there is any truth in the statements which have appeared in the press from time to time as to the large discrepancies which have occurred in Victoria and New South Wales - the Age places them at 150,000 - I think honorable members will admit that the matter is very serious. Even if the discrepancy amounts to only half the number stated, I think it was a mistake for the Minister to allow the maps showing the boundaries of the new electoral divisions to be issued.
– They are not issued to the public.
– They have been issued to honorable members, and I took it for granted that they had also been issued to the public.
– They are being exhibited in all the post-offices.
– The Commissioners can do what they like with the maps, and they are compelled by law to issue them in the way they have done.
– A statement has appeared in the press with regard to 1,000 missing electors, and I understand that these belong to me. They will belong to the honorable member for Gippsland, if the new boundaries recommended by the Commissioner are adopted ; but, until the new subdivision is confirmed, the)’ belong to me. If the mistake to which I refer had not been made there would have been no necessity to alter the boundary of the Flinders division, and to bring it within a mile of the town of Brighton in order to include a number of suburban residents, and thus make up the number of electors required for the constituency. In this one instance, a serious mistake has occurred in my constituency, and no doubt the same could, be said regarding others ; and, if there is anything like such a large, discrepancy as reported in the press, a very searching inquiry should be made. It has been stated that the police have made a house-to-house visitation in the whole of the electorates in order to enrol electors ; but they did not como to my house, and I ‘ do not believe they have ever been near the place. One honorable member told me that a short time ago the police visited his house, when he was absent, to obtain information with regard to the roll. The policeman interviewed the housemaid and got information which satisfied him. We know what takes place on such occasions, and, as a matter of fact, in this case the information given was entirely wrong. If that was the general plan/adopted to obtain information for the compilation of the rolls, we can quite understand how the discrepancy occurred. I hope the Minister will have the maps withdrawn and new ones issued when the rolls ure complete.
– The object of passing the Electoral Act last session was to afford the Government plenty of time to make the necessary preparations for the forthcoming elections. So far as Queensland is concerned, I must admit that the roll compiled for the purposes of the next .Federal election is very mush larger than the old State roll, but still a number of names have been omitted. I do not intend to find much fault with this, because I can quite realize the difficulty of collecting names in outlying places, especially when it is remembered that the drought has probably driven some of the country residents into quarters where even the police would not be able to find them. During the last two or three weeks I have received communications from several persons who complain that their names are not on the roll. They do not blame any one for the omission,, but they want to know how they can repair it,, and it is difficult to obtain information. I communicated with the Electoral Department, and was told to write to the police, or to send direct to the Federal Electoral Registrar in Brisbane. I have adopted thelatter course, but whether this will bring about any result I do not know. My principal complaint is that, although the Electoral Act was passed early in October, 1902, it was not until nearly the end of Februarylast that the Electoral Department started, to compile the rolls in Queensland. I understand that some difficulty occurred between the Federal, authorities and the Queensland Government as to the mode to be followed in collecting the names. The Queensland Government desired that the State electoral registrars should collect the names, but the Federal Government insisted, and properly so, that the police should collect them. I want to know how it was that such a long time was allowed toelapse before negotiations were entered into? Several months were allowed to pass without any steps being taken ; but if the Minister and those under him had been alive to the position they would have taken steps immediately after the” passing of the Act toarrange for the compilation of the rolls. Then we could have had . the lists printed, and the final reports of the Commissionersmight have been presented to the House at the opening of this session. To all appearances, however, it is not likely that weshall receive the report of the Commissioner forQueensland for another two or three weeks. lt will be another week or eight days before the maps can be printed. These will have to be sent to the various centres of population for exhibition, so that objections may belodged, and three weeks must pass from the time the maps are sent out before thev can reach such distant places as Camooweal, Burketown, or Windora. What possiblechance can residents in such places haveof registering any objections they may take to the boundaries defined by the Commissioners? A good deal of blame must be attached to the Department for havingallowed a state of confusion to be brought about. It has been stated - .1” do not saythat the report is true - that the Government do not want the election for the House of Representatives to be held in December. If the elections do not come off then, the country ought, to rise up in arms against the Government. I am as sympathetic as most honorable members towards the Government, but I would not screen them if they brought about such a state of confusion that the elections could not take place at the most convenient and desirable time. If the Government do not want the elections to come off in December, why do they not get up and say sot
– Because it is not a fact.
– It is very unfair to make such an assertion.
– I am not making any assertion. Several questions have been asked as to the intentions of the Government, but up to the present we have not been able to obtain any satisfactory reply. If the statement which I have repeated is wrong, the Minister for Home Affairs will have an opportunity of telling us so this afternoon. From present appearances it would almost seem that there is no possible hope of holding the elections for the House of Representatives in December, and, personally, I very much regret it.
– There is no doubt that the compilation of the first Federal rolls has been carried on under exceptional difficulties. In the face of the desire which has been expressed for economy, the Minister has not cared to spend more .money than absolutely necessary, and has tried to make use of the States officers. Although the police officers do their work very well, , taking it all round, our previous experience in connexion with the compilation of rolls is that they miss a considerable number of names, and it now becomes the duty of the Electoral Department to afford to those whose names have been missed every opportunity to become enrolled. In New South Wales the roll was collected in. July, when the condition of the country generally was abnormal. In my electorate a number of large mines were closed down, and in one case alone 300 men were thrown idle, and had to move to other parts in search of work. I understand that in some cases the police refused to enrol men who had no place of residence. This was owing to the difference between the Federal and the State laws with regard to the registration of voters, and no doubt 4 b from this cause alone a large number of men had their . names omitted from the rolls. Then a large number of persons were omitted because of their removal from one part of the State to another. It seems to me unfortunate that any Commissioner should be asked to settle the boundaries of the new electorates under the peculiar circumstances in which we find ourselves. When on a recent visit to my electorate a number of residents inquired of me how they could insure getting their names placed upon the Federal roll. I advised them to go to the nearest post-office and ascertain if their names did not already appear there, adding that, if they did not, under the Federal electoral system it was very easy indeed for an elector to get his name upon the roll, and very hard for him to have it removed, whereas the reverse was applicable to the case of the State roll. In New South Wales we have put a stop to the practice which was referred to by the honorable member for Maranoa, so far as elections for this Parliament are concerned. When the Electoral Act was under consideration, I understood that postmasters were to be created electoral registrars. That appeared to me to be a very wise step to take, seeing that postmasters are Federal officers. In my innocence, therefore, I told the electors to interview the postmasters or the electoral officers. Subsequently, however, I was informed that they had acted upon my advice, but could gain no information whatever. Upon my return to Melbourne I at once acquainted the Minister for Home Affairs with the facts, and I understand that he immediately took steps to ascertain what was the real position. At the same time, I think that the officers of his Department have been slow to grip the situation, although 1 am free to admit that the difficulties which they had to face on the present occasion rendered their work unusually hard, and necessitated the exercise of greater push and energy. I differ from the honorable member for Macquarie when he says that the majority of those who have been disfranchised are to be found in the metropolitan districts. I think that they are to be found in the provincial districts, for the- reason that persons belonging to the back country have been taken off the State roll on account of temporary absence from their districts. I could mention instances in which it is quite evident that - the police never visited certain homes to ascertain whether the names of the female inmates were upon the roll. I suggest that the present difficulty could be met, to a large extent, by making use of the services of the police and postmasters. In the country districts the police are acquainted with almost everybody resident there, and if they were asked to search the State rolls to ascertain whether any names which should appear there have been omitted, and if so, to see that the fault was remedied, I think the discrepancy which now exists between the census returns and the Federal rolls would be considerably diminished. The Minister for Home Affairs, I admit, has already taken some steps to overcome the difficulty by advertising, but I would point out that there are many people who do not see the newspapers, and who therefore are particularly liable to be disfranchised. I think that if we made use of the services of the police officers it would be possible, within the limited time still available, to have the rolls ready for the senatorial elections. At the same time, if the elections for this House are to take place simultaneously with those for the Senate - and I have already expressed myself in favour of the adoption of that course - it will be utterly impossible to decide upon a fair division in connexion with the new electorates unless extreme activity is displayed in the preparation of what is practically a new roll. The failure of the Department has been largely due to its dependence upon the State rolls, although I think that, when the Electoral Bill was under consideration, most honorable members favoured the idea of making use of the services of the police. I know of one instance in which a voter obtained his elector’s, right as far back as the 5th J une of last year, and yet his name does not appear upon the Federal roll. I can offer no explanation for this, but we all know that hundreds of similar cases occur in connexion with the preparation of the State rolls - cases which are not remedied before the Revision Courts hold their sittings. I think that if the officers charged with the work of compiling our rolls displayed a little more activity, it would be quite possible to have them ready in time for the elections in December.
– It appears to me that our object in passing the Electoral Act last session was to place every adult in the Commonwealth in a position to record his or her vote at Federal elections. If the motion submitted this afternoon by the honorable member for Macquarie achieves that result this discussion will not have been in vain. If I followed correctly the figures quoted by that honorable member, it is evident that the last speaker has been misinformed. According to the honorable member for Macquarie, 65 or 70 per cent, of the electors who are- at present disfranchised belong to the metropolitan districts.
– That is a mistake. The officer at Sydney wrote last night informing me that a number of applications for enrolment were coming in from the country.
– I shall be very glad if the Minister has any information to put before the House in connexion with this matter. Some exception has been taken to the collection of the Federal rolls by State officers.
– .How could the work have been done otherwise ?
– To my mind, it does not matter a twopenny-tram ticket whether the rolls are collected- by State officers or not, provided that they are correct. We know, however, that in New South Wales the franchise for the return of members to the State Legislature is so different from the liberal franchise for the Commonwealth elections, that unless special instructions were given to the officers charged with compiling the rolls there, they would naturally fall into error. I understand that no such instructions were given, and the result is that a very great discrepancy exists between the census returns and the Federal rolls. I was really surprised to hear that the female electors had been so overlooked by the Department for Home Affairs. Honorable members have been informed that the female roll has not been revised, much less printed.
– The honorable and learned member is basing his argument upon an assumption which is not correct.
– I am glad to have that assurance from the Minister. I had not previously understood that the statement of the honorable member for Macquarie was inaccurate.
– What statement”?
– The statement that the female roll has not been printed, much less revised.
SirWilliam Lyne. - It has been revised.
– After the women of New South Wales having given credit to the Minister for Home Affairs for granting them the franchise, and after the nice little presentations which they have made him from time to time in the shape of slippers and dressing gowns, it comes as a surprise to me that he has not treated them better. I trust that he will see that they are placed in such a position that they are able to exercise the franchise at the forthcoming elections.
– In dealing with the new electoral divisions which it is proposed to create, I hope that the Minister for Home Affairs will give the residents of outlying districts an opportunity of knowing what position they really occupy. I have recently been in the north-west of my State, where the people, in the absence of maps, do not exactly know in which electorate th ey are. The electorate of Gwydir is connected with the railway system, and the natural course of trade is with the towns along the North- Western Railway line, but some of the important centres of population in the district have been taken from my electorate and included in thatof Broken Hill, a place with which they have no connexion whatever. The people in the Gwydir electorate desire to see maps.
– I would call the attention of the honorable member to the fact that the question before the House is the “ delay in the preparation of and incompleteness of the Federal Electoral rolls.”
– Unfortunately I was not here when the motion was submitted, and I understood that it permitted a general discussion of the subject. The placing of the names on the rolls in” the outlying districts is of great importance, but I find that a number in my district are omitted. Now that we have the adult franchise it is necessary to have country districts very closely canvassed, or otherwise a great preponderance will be given to the city electorates. In the latter, those who have to collect the names have merely to walk from house to house, and there are certain hours when the complete household may be found at home. In the country districts, however, the collectors have to call at the stations, and possibly be content with a list of the employes and other persons about the place, many of whom are probably there to-day and gone to-morrow. In the country, at election times, great difficulty is caused by the fact that many of the settlers find that they are not on the rolls, and I ask the Minister to give instructions that the police be required make as complete a list as possible.
– In some instances a great deal of feeling has been imported into the discussion. I do not object in the slightest degree to the motion submitted by the honorable member for Macquarie ; indeed, I am rather indebted to him for it, because it affords me an opportunity of justifying everything that has been done by my Department, and of clearly proving that there has not been that neglect and delaywhich some honorable members attribute to my officers. The Electoral Act was assented to on the 10th October last, and immediately afterwards preliminary steps were taken with a view to ascertain the conditions under which the cooperation of the States officials would be available in the collection of the lists. When the Electoral Act was before this House, as will be admitted by honorable members, a great desire was shown for economy ; and, therefore, in the compiling of the lists, my object was, as far as possible, to keep down expenditure. It did not seem to me possible, in a reasonable and complete manner, to collect these lists without the aid of the States. Apparently the proper course was to endeavour to get their assistance through the police. The only other course I could have taken was to appoint special collectors throughout the various States, and pay them large sums of money for the work done. I might, of course, have obtained the assistance of the various post-office officials ; and, indeed, in some of the northern parts of Western Australia that was done. On the 17th November a circular letter was issued to each of the States, with the exception of New South Wales, asking officially for the services of the States officers in collecting the names of electors. To that circular letter replies were received from Victoria on the 22nd November, from Queensland on the 26th November, from Western Australia on the 1st December, and from Tasmania on the 6th December. An interim reply was received from South Australia on the 6th December, the question being raised in that State as to which was the best course to adopt. The authorities in South Australia were prepared to take their rolls as completed at the last revision; but I did not agree to that, and after correspondence, an arrangement was made under which the plan suggested by the South Australian authorities was carried out in the northern parts of that State, but in the settled parts in the south the aid of the police was called in. Immediately on receipt of consent from the States to the members of the police force collecting the names, it was arranged that the necessary books and printed instructions should be issued. I arranged that the Federal Government should pay to each foot policeman, and each mounted policeman, so much for the day or week he was employed in the collection of the names. The books and instructions were issued to Victoria at dates from December, 1902, to January, 1903; to Western Australia in January, 1903; to Tasmania in January, 1903. The preparation of these book-lists, as they were called, took up a great deal of time, considerable difficulty being experienced in getting the printing done with reasonable celerity. I ask honorable members if there was any delay up to ‘this stage ?
– That was two months after the passing of the Act.
– The Act was approved on the 10th October, and communications were sent to the various States on the 17 th November.
– Six weeks later.
– No, five weeks later, and in the meantime considerable work had to be done in devising the scheme under which we were to work. I think the honorable member for Kalgoorlie is unfair and unreasonable in saying that there was any delay up to this stage.
– Unless, of course, the Minister was expected to do the work himself.
– If I had gone to expense in engaging special collectors throughout the States, I should have been attacked now for not employing the States officials. A specimen book was forwarded to the Queensland Government on the 31st January, the delay in this’ case arising from a little difficulty between the -Electoral Department here and the Electoral Department in that
State, where the desire was to have lists differently worded. A similar difficulty arose in one or two of the other States, but a little longer time was occupied in the case of Queensland, in arrangingdefinite terms, than in other cases. The lists were then collected by the police, by whom the work was completed in Victoria, Queensland, and South Australia in May, and in Tasmania in June. The completion of the work in Western Australia is promised by the end of this month. When once the books had left my hands I had no control over the action of the police, but I repeatedly corresponded with the Premiers of the various States, and, through my officers, with the police authorities. I was in Western Australia in February, when I ascertained that difficulty had arisen because the police did not desire to dothe work. I thought I had arranged matters satisfactorily, but when I returned to the east I found it necessary to send an officer to Western Australia. It was not, however, until after a great deal of trouble that the arrangement was made for the police to collectthe names in that State. Had it not been for the action taken by Mr. James, the Premier of Western Australia, when my officerarrived there, I should not have been ableto have the rolls compiled by the police in that State; but I understand that sincethen the work has gone on satisfactorily. Honorable members must not blame the Department, or the gentleman who has been attacked, though not by name, in one or two instances to-day, particularly by the honorable member for Macquarie. Thatofficer, Mr. Lewis, has done the work, as well as it could be done by any officer. He may not be everything that everybody desires, but I must give him every credit for working hard, early and late, in overcoming the difficulties and differences which arose in the States. First I had to send Mr. Lewis to Queensland, and afterwards to Western Australia and to Tasmania, though the last-mentioned visit was due to a misunderstanding. Mr. Lewis has done the work in a manner that reflects the greatest, credit on himself. and before I resume my seat, I shall refer further to his characterand his ability for conducting business, of this kind. It is most unfair to attack an officer who is doing his best.
– His best does not seem, to be very good..
– I have had, perhaps, as much experience as any honorable member or Minister in dealing with public officers.
– Mr. Lewis did his work well in Queensland, at any rate.
– Mr. Lewis has done his work in the face of great difficulties in every State. It must not be supposed that the Federal Government had simply to say that a thing should be done in order to have it done. We had to make interim arrangements with the States, and in some cases antagonism was shown. What I have said describes the position of matters up to the present time. The honorable member for Macquarie said that he could not find a Commissioner, Electoral Registrars, or other Electoral Officers in any of the States. The Commissioners are appointed, and are doing their work ; but I have not yet appointed all the officers who will be appointed, because the time has not come when they are required, and thus I am saving money all the time.
– But a large number of people in New South Wales are prevented from getting on the roll.
– The officers mentioned could have nothing to do with the collection of the rolls, and there would have been no difference had they been appointed seven or eight months ago, except that salaries would have been paid where no necessity existed. Surely I could expect that, with the assistance of the police, the rolls would be as well collected as by the State authorities on other occasions 1
– What did the Minister do in New South Wales 1
– In New South Wales, the Revision Court, so far as the male voters were concerned, had just completed its work, and I should like to know whether I was not justified in accepting that revision, and thus saving double expense 1
– No; the Minister was not.
– The honorable member for Macquarie has laid great stress on the fact that twelve months’ residence is required in the State, as against six months in the Commonwealth, to qualify fora vote. But I would point out that the total number of residents of under one year in the State of N.ew South Wales is estimated at only 8,800. If the difference pointed out by the honorable member had any effect, it would not, under these circumstances, be so serious as represented. We must remember that, between the publication of the maps and the final forwarding of them to the Federal Government, there will be an opportunity given of rectifying any omissions. As soon as the matter has been dealt with by Parliament another revision court must be held ; and, therefore, if a few names have been left off, they may very easily be placed on the roll. There are two periods of a month each in which electors will have an opportunity of getting their names on the roll.
– During the first period there will be no officer other than the Electoral Officer for the State, of whose existence very few people are aware, to apply to.
– I have appointed an officer” in New South Wales, whose office is in Sydney, and I have extensively published the fact that all information on the subject is obtainable from him. The discrepancy to which reference has been made is between the number of adults residing in the State according to the last census returns and the number of names appearing on the lists. Now, the collection of names was finished in October last, only about twelve months after the census returns were compiled.
– The names were collected in July
– In July and September ; but the final revision was madein October. Therefore the discrepancy should have been smaller then than it would be now. In connexion with the collection of the female rolls, I agreed with the Government of New South Wales to pay a portion of the cost, because it was more economical for us to pay part instead of the whole cost, since the New South Wales rolls are practically the same as the Federal rolls. Those rolls have now been collected, and most of them have been printed. But when I discovered the discrepancy which has been referred to, I at once arranged with the Premier of New South Wales and the Government Printer of that State to have all the rolls printed. I am getting the work done at a most reasonable cost, and the rolls have now nearly all been sent to the various post-offices in the State. An advertisement has also been published in the newspapers of each district stating why the rolls are being circulated, and asking the electors to look through them, and, if they find that their names have been omitted, to make application to the Chief Electoral Officer in Sydney.
– Would it not have been wiser to do that earlier ?
– I could not do it until I knew of the discrepancy.
– The time allotted to the honorable member under the standing order has now expired.
– I hope with the indulgence of the House to finish my remarks.
– Is it the pleasure of honorable members that the Minister for Home Affairs have leave to finish his speech?
Honorable Members. - Hear, hear.
– Will the rolls which have been sent out contain the female names collected by the police?
– Yes; they will contain every name that has been collected.
– How are they divided - according to the proposed divisions or according to the existing divisions ?
– Only the roll for the district is sent to that district, and I believe that the rolls are divided in accordance with the State electoral divisions, the names on them being arranged in alphabetical order. The honorable member’s question brings me to a matter which has caused a great deal of difficulty. The Act says that in the final arrangement of the rolls, each roll must show the polling places at which the electors must vote.
– There must be a separate roll for each polling place.
– Yes. It is a very inconvenient arrangement, because it will necessitate the printing of twenty or thirty very small rolls ; but it is my duty to conform to the provisions of the law. The rolls,however, cannot be arranged in the manner I speak of until I know what the divisions will be, and what arrangement will be made in regard to polling places. Not only have I sent the rolls to every post-office in New South Wales, but I have asked the Postmaster-General to instruct his officials to pay particular attention to the matter, and to give every facility to persons who wish to inspect the rolls or to make application for enrolment where their names have been omitted.
– On what date was that done ?
– About a fortnight ago.
– When does the Minister expect to be able to make up the new rolls which will include the names which have been sent in to the Chief Electoral Officer ?
– I hope, because of the active measures which have been taken, to be able to place the Commissioner for New South Wales in possession of all the names so sent in before he finally forwards his proposed divisions to the House, which will probably be done during the first week of next month, because the addition of a large number of new names to the rolls may have the effect of causing him to alter his divisions to some extent. All I can do, however, is to try to induce the public to take sufficient interest in the matter to get rid of the present discrepancies, and not allow themselves to be disfranchised. Honorable members who accuse the Department, and myself in particular, of not taking active measures to do what is necessary, have not understood what has been done. When the matter has been dealt with by the House, every opportunity will be given to persons whose names still do not appear on the rolls to be enrolled, because a revision court will be held after an interval of a month. I do not know what people want more than that. In Tasmania the rolls have been completed.
– When will the maps showing the Tasmanian divisions be ready ?
– The Commissioner for Tasmania had the quota telegraphed to him yesterday, with instructions tocommence the work of dividing that State at once. He is engaged upon that work now, and we hope to have his report either at the end of this week or next week. The South Australian divisions have been completed.
– What about Western Australia?
– The returns were promised in May, but the advice we have since received from that State is that we may expect them any day. I cannot prevent the State officers from taking a little longer to do the work than was originally promised. Honorable members must be reasonable, and acknowledge that I cannot do more than urge the State authorities to see that as little delay as possible occurs. I hope to know within a week at furthest what is proposed in regard to Western Australia. Therefore, things stand in this position at present. The Queensland division has been made, and we have received the maps from that State. The same remarks apply to New South Wales, Victoria, and South Australia. We hope to receive the Tasmanian report within a week, and we shall have the Western Australian report within a few days. Honorable members have said that it will be almost impossible to have the rolls ready by December next. Not only will the rolls be ready then, but, even if the House returns to the Commissioners both the New South Wales and the Victorian divisions for alteration,- we shall still have time to get the rolls ready by December.
– The honorable gentleman will be very lucky if he does.
– The whole thing has been arranged, and I am prepared for the contingency. Every opportunity will be given to both Houses to deal with this matter without being rushed. The insinuation that the Government have had in their minds the desire to prevent the holding of the elections for this House simultaneously with those for the Senate is one which it should be beneath any honorable member to make. I deny the truth of such a statement. I have now pointed Out the difficulties with which I have had to Contend. Perhaps honorable members will be surprised when I tell them that altogether about 4,500,000 documents will have beer printed and circulated before the elections can take place. I mention that fact to show how gigantic the work is.
– And yet some people say that the honorable gentleman’s Department has nothing to do.
– My Department is very much undermanned.
– And very much overworked.
– Yes. Unless I had really earnest men to deal with this matter I should be in a difficulty.
– The honorable gentleman should engage more men. He ought not to sweat his officers as he is doing.
– I am glad the honorable member for Macquarie has brought the matter forward, because his motion has afforded me an opportunity to show that the statements which have been referred to have been made under a misconception. Although the honorable member for Kalgoorlie has evidently forgotten the occurrence, I am certain that he spoke to me in one of the lobbies about a fortnight or three weeks ago on the matter he mentioned.
– I am certain that I never had a conversation with the honorable gentleman on the subject. He cannot mention the date of the conversation, the place where it occurred, or anything about it.
– I can mention the place, though- I cannot mention the date. Of course, the honorable member would not knowingly make a misstatement, and I am sure that he will accept what has been said in regard to the matter. The trouble which has been referred to as existing in Western Australia does not exist there.
– I read from a telegram which I had received from a member of the Federal Parliament, who is now in Western Australia.
– I know that that is so, but I may mention that I was told the other day at Menzies’ hotel, where I stay, that no one had taken the names of the persons living there. When I made an inquiry on the subject, I found that my officers had collected every name. I have investigated three or four complaints of the same kind, and in each instance I found that the names had been collected. People often found statements upon surmises which are not true. ‘ The .acting head of the Electoral Department has been attacked to-day, and I feel that he has been unfairly dealt with. He was connected with the Electoral office of New South Wales from the year 1887. He was specially appointed by the late Sir Henry Parkes, and his salary was advanced to £600 a year.
– And he was specially removed by the Public Service Board.
– He was intrusted by the leader of the Opposition, not very long before the right honorable gentleman went out of office in New South Wales, to prepare, in conjunction with Mr. Kelynack, a Local Government Bill, and I believe he did his work well.
– He did not do his work-in the Electoral office well.
– I am inclinedto think that he did. I think that in fairness to the gentleman in question I should read the following statement to the House : -
Mr. Lewis was engaged for 25 .years in the Survey Department of New South Wales, during the latter part of which he had charge of the Reserves Branch, having the administration of some 40,000,000 acres of Crown lands.
On the 30th June, 1887, when in receipt of a salary of £490 per annum, he was retired from this position owing to the abolition of the office consequent on the reorganization of the Department, and the introduction of the scheme of decentralization. Prior to this retirement, Mr. Lewis (together with the Surveyor-General, the Deputy Surveyor-General, the Chief Draftsman, and many other senior officers similarly situated) was granted three months’ leave of absence, and was paid by the Government the unpaid superannuation deductions, in consideration of meritorious service. On the day that the three months’ leave should have commenced, the late Sir Henry Parkes sent for Mr. Lewis and appointed him as Local Government Officer with electoral reform at an advanced salary of £000 per annum. More recently this position was -continued by Sir George Dibbs, and, as Commissioner for the subdivision of the State of New South Wales into districts under the new (State) Act for electoral purposes, Mr. Lewis was entirely responsible for the organization of the new system which came into operation in July, 1894. This service extended over a period of nine years, and it was not until the year J 896 that Mr Lewis retired from the public service of New South Wales. (Seven years ago, not twenty years, as stated by Mr. Reid. )
– He was asked by the Public Service Board to retire.
– That does not appear, and I think the New South Wales Public Service lost a good officer in Mr. Lewis.
– I think that they saved money by getting rid of him. .
– I do not think so. The statement proceeds -
Mr. Lewis also held a commission (from the Bight Honorable George Reid) for the subdivision of the State of New South Wales into shires, boroughs, and district Government districts, under Mr. Reid’s proposed legislation. In conjunction with Mr. Kelynack, he prepared a Local Government Bill under instructions from Mr. Reid. Mr. Lewis was appointed in January, 1900, as one of a Commission of three to divide the State of New South Wales into Commonwealth divisions for Federal purposes. In 1901, the gentleman referred to was appointed as one of a Commission of Experts to formulate a scheme, or electoral system, to embrace the entire Commonwealth.
I may mention that instead of Mr. Lewis getting a high salary, such as has been stated, he receives only £300 per annum, in addition to the pension to which he is entitled from the New South Wales Government.
– He also gets travelling allowances.
– His expenses are paid when he is travelling, but he has no special allowance.
– He was paid £1 a day living allowance when be was in Melbourne some time ago.
– He received’ that allowance only until the House decided that it should be discontinued, and -he has not received any since. The Commonwealth are making a saving through employing Mr. Lewis.
– I believe that we are losing thousands by employing him.
– I am sorry that the honorable member for Bland is displaying such inveterate hatred towards Mr. Lewis, because I know of no justification for any such feeling. It has been stated that Mr. Lewis is a decrepit old man, but he is only 57 years of age, or two years younger than myself : and I do not consider I am decrepit. In justice to Mr. Lewis, I give the House and the country his record, which is a perfectly honorable one.
– He is a very estimable person privately, I have no doubt ; and I have nothing to say about him personally.
– I do not know how I should have got through this electoral business so well if it had not been for Mr. Lewis. After the explanation I have given, honorable members will see that if there has been any delay, it occurred between January and May, the period during which the electoral lists were in the hands of the police, and therefore the Department cannot be blamed for something over which it had no control. It must not be forgotten that we were for the first time compiling the rolls under exceptional conditions.
– What about the discrepancies 1
– There is no discrepancy in Queensland, and the discrepancy in Victoria is not very large - only about 35,000 to 38,000.
– A great many persons declined to have their names placed on the rolls.
– I do not think that would account for any considerable number.
– Yes, it would ; for a considerable number.
– The opinion has been expressed that a discrepancy of between 20,000 and 25,000 might be expected in the first instance under normal conditions.
– But what about the discrepancy of 80,000?
– I admit that I was startled when I saw there was such a large discrepancy, and I lost no time in adopting the most speedy means of affording an opportunity for every person to have his or her name placed upon the rolls.
– Why not do the same in Victoria?
– Because the lists are not printed. I had it in my mind to do something of the kind, but when I asked what the cost of printing the rolls would be, the reply was £3,500. It would be a serious thing if we had to pay such a large sum of money for that purpose. The cost of issuing the rolls in New South Wales will not be more than as many hundreds.
– Why should there be such a great difference?
– Because New South Wales had a roll already printed so far as male voters were concerned.
SirWILLIAM LYNE.- Yes, that is so, and they sell the rolls to any one at a price not exceeding10d. a copy .
– That is the usual course here.
– I do not know anything about that. 1 know that New South Wales charges10d. a copy for the rolls, and that the total cost to the Department will, I believe, be about £225.
– They had a list of male voters already set up.
– Yes; that partly accounts for the difference, but the female lists are being specially printed, and they are nearly finished.
– What has been done in Queensland?
– I communicated with the various States with a view to having the printing done, and in all cases except that of Queensland, the matter has been settled. I was informed - and I communicated with the Premier of Queensland to ascertain if the statement was correct - that it was not intended to print the rolls in the Government Printing-office, but to farm them out. That was not the intention of the Federal Government. We could, ourselves, farm out the printing of the rolls, but our object was to have the work done in the Government Printing-office. The reply received by me does not appear satisfactory.
– When was that?
– About three weeks ago, I think. Yesterday the Prime Minister received communication upon the question, which I have not yet seen. However, if the Queensland Government undertake the printing of the rolls in the Government Printing-office, the whole thing can be entered upon at once, because the price is satisfactory. I have given a perfectly true and plain statement of facts. Regarding the male rolls in New South Wales, I certainly think that as they had just been completed when the Act was passed, the cheapest, most expeditious, and the most satisfactory way was to take them as they were. Supposing I had insisted upon collecting the names in October? They had been collected to the end of June, and therefore there would have been a difference of only three months, which I do not think would have had so much effect upon the lists as would justify us in going to the extra expense. If honorable members supposed that I intended to appoint special officers in every State instead of employing the State officials, they were much mistaken. I think that I have made the arrangements as economically as possible. If I had incurred any very great expense, I should have had the press howling about my extravagance. In Western Australia there will be no difficulty, because the whole matter will be settled in a few days. I do not know whether it will be necessary to submit the reports of all the Electoral Commissioners to the House at once. So far as I can judge, the reports from Queensland, South Australia, Western Australia, and, perhaps, Tasmania, will not be much cavilled at, and will probably be accepted. In New South Wales and Victoria I know there have been expressions of serious dissatisfaction, and I shall have the divisions for those States brought’ forward first, if possible. I think it will be wise to submit them at once, in order to see if the House will accept or return them. I believe that I shall have them’ ready for submission to the House in the first or second week of next month. I can assure honorable members that whatever course is taken, plenty of time will be given for a re-division if necessary, and for meeting every requirement of the law, including the holding of the Revision Courts, and making every preparation for the elections in December. I think that is all the House requires, and all that honorable members can reasonably expect. I have been accused of not attending to this matter, but although I have not always been in -my official chair - and I do not regard it as necessary to be always there - I have given all the requisite instructions to my officers and I am well pleased with the way in which they have carried them out.
– I had hoped that there would ‘ be no necessity for any further debate after the explanation given by the Minister. The honorable member for Macquarie has done good service in fixing the attention of the Minister upon certain lapses of his Department, and in directing the attention of the public to the fact that there is a discrepancy between the number of electors on the rolls and those who should be there. I did not hear any attack made upon Mr. Lewis personally, but the question is whether he has performed his work as an electoral officer with efficiency, or otherwise. I maintain that the delay that has taken place, and the incompleteness of the rolls, are due to faulty administration. The Minister admitted that he was startled at the discrepancy disclosed, but his officers should have been alive to the facts months before they appear to have recognised them. It was only when the Commissioner mapped out certain divisions upon erroneous data that a discrepancy of any considerable character was disclosed.
– While the matter was in the hands of the police we could do nothing.
– Honorable members have not attacked the Minister, but merely the machinery of his Department. The electoral officers had charge of the compilation of the electoral rolls, and they knew of the census returns, and yet the discrepancy between the two was not discovered till a few weeks ago. If ever a Department deserved a rating, at the hands of a Minister, it is certainly that which the Minister controls. Yet the honorable gentleman calmly informs the House that his Department is excellently managed.
– The moment the lists were received so that a comparison could be instituted, the discrepancy was discovered.
– The Minister now assures us that the Federal rolls are being exhibited throughout the different districts. Surely that could have been done before the new electoral divisions were mapped out. I am in thorough accord with most of the remarks that have fallen from honorable members who have addressed the House upon this question, and there is no need for me to dwell upon the points which they have made. But I should like to point out that there is a discrepancy, not only between the census returns and the Federal roll, but also between the electoral rolls for 1900 and 1902. I find, for example, that comparing the present State roll with that upon which this Parliament was elected, there is a deficiency in the city and suburban area of 8,500 electors, whilst in the country the deficiency is only 6,500. That is the best answer which can be supplied to the contention of some honorable members that a proper quota has not been struck for Sydney and its suburbs, and that the .country districts have been neglected. The very reverse is the case. There will always be a large floating population around any city which will account for a great discrepancy in the State rolls ; but under the Federal system, electors can be so very easily enrolled, that there should be practically no such discrepancy. Too much reliance has been placed upon State officers and State machinery. That the city has gained an advantage over the country is not true, as an examination of the rolls for 1900 and 1902 will show. I believe that, to a large extent, the discrepancy which exists can be accounted for by the floating population. I trust that the Minister for Home Affairs will not regard the motion which has been submitted as partaking in any way of the nature of a party attack. I hold that it is the duty of Parliament to puts its electoral machinery in the most healthy condition possible. That it is not in such a condition at present is evidenced by the fact that the names of 150,000 electors have been omitted from the Federal roll. That is a proof of the inefficiency of the Minister’s Department.
– An extraordinary feature of the matter is that in every State except New South Wales and Victoria the names are very evenly collected.
– I have no desire to blame the electoral officers too severely, because of the large districts which they have had to canvass. At the same time it is positively shameful that this discrepancy should have been discovered only after the quota has been decided upon and the districts have been mapped
– I had no intention of taking part in this debate until the Minister for Home Affairs declared that he did not propose to make the same effort to discover the electors whose names do not appear on the Federal roll in Victoria that he intends to put forth in New South Wales. He bases his reason for making this distinction upon the expense which would be involved. ‘ It has been stated in the press that of the 35,000 electors who have not been enrolled in Victoria, 30,000 are resident in the country districts. It is very probable that that isa fact, , because in the drought-stricken districts of this State, whatever may be the position in Ne, South Wales, regarding the distribution of the electors who have not been enrolled-
– I was quoting from the official returns.
– I am perfectly satisfied, so- far as Victoria is concerned, that the names of a large number of the dwellers in the northern areas do not appear on the rolls. At the time that the rolls were collected they were absent from their homes. The whole of the small holders in the mallee district were compelled by the drought to leave their homes and go south, taking their stock with them. This is a most important matter, because 30,000 electors in the country represent not merely a quota, but the maximum for an electorate.
– Their names would still be upon the roll.
– One country electorate has been entirely cut out of the plan of the new districts, and if that has been done by reason of the residents being absent from their homes, and becoming enrolled elsewhere
– They do not water their stock in the metropolitan areas, surely.
– Probably the honorable member does not know as much about this matter as I do. I am aware that the whole of the stock in the district which I have mentioned was removed to districts south of the Dividing Range. Assuming that these people were enrolled outside of their own district, the effect must still be the loss of the electorate from which they came. The Wimmera electorate was reduced by 5,000 votes. Seeing that the temporary absence of these electors from their homes would .have that effect, I do not think that the Minister, because of the expense that would be involved, should stay his hand in endeavouring to find them. He says that such action will cost only £350 in New South Wales, whereas in Victoria it would cost £3,500. Buj, even if it did cost that sum - assuming that a country electorate has been wiped out of existence because of the abnormal conditions prevailing when the roll was being compiled - it is surely worth the expenditure to have it restored. When the Electoral Bill was under discussion, the matter to which I am now directing attention was very strongly argued by the representatives of country constituencies, and was eventually settled in a fair spirit. I hold that, as far as possible, the country districts should be given reasonable representation - a larger representation than that to which they are numerically entitled as compared with the city electorates. That was conceded when Parliament fixed a margin of 20 per cent, either above or below the quota in connexion with the representation of rural districts in this Parliament. If the country is not diligently searched for these electors, and if an electorate has been struck out, the whole advantage which Parliament proposed to confer upon those districts . has vanished. I hope, therefore, that the Minister will reconsider his attitude upon this matter. Certainly the expenditure of £3,500 is not a large one to insure fair play as between town and country districts, which fair play this House decided should be given under the Electoral Act.
– I am sorry that many honorable members have seen fit to attack Mr. Lewis so bitterly, and to condemn the Minister for retaining him in his position. My opinion is that Mr. Lewis is a. real up-to-date, courteous, sympathetic business man, who endeavours in every possible way to facilitate the work of his Department. I have frequently come into contact with him in prosecuting inquiries about electoral matters in Tasmania, and I have always found him able to put his hands upon the necessary papers at once. Is it to be suggested that we should retire officers simply because they have reached a certain age 1 We shall all grow old in a few years, and will it then be said that we are unfit to discharge our duties ? If matters are not progressing satisfactorily, it is easy enough to remedy the evil at a later stage, but that is no reason why we should take advantage of a man who is not able to defend himself upon the floor of this House.
Mr. SYDNEY SMITH (Macquarie). - I was rather surprised at the manner in which the Minister for Home Affairs attempted to justify himself with regard to the collection, of the Federal rolls in New South Wales. My contention is that the State roll was taken as the basis for the mapping out of the new Federal electorates, whilst in the matter of the female roll, a circular was sent out by the State Government of New South Wales directing it to be collected according to the law of New South Wales, and not according to the Commonwealth law. That roll has been collected, and has not been revised. If the Minister had only taken the trouble to look into this matter some months ago, he would have seen that, comparing the State roll for 1900 with the new Federal roll for 1902, there was a deficiency - when there ought to have been a large increase - of 15,000 electors in New South Wales. The deficiency is made greater when we take into account the increase there should be in the number of electors under the extended Federal franchise.
– I told the honorable member that the estimate was S,S00.
– The persons in New South Wales with a residence of under one year are 11,4-00 males, and 5,920 females - a total of 17,000.
– But under ‘ the Commonwealth Electoral Act only six months residence in Australia is required.
– If I happen to have resided the requisite length of time in Victoria, and change my residence to New South Wales, I have only to be in the latter State one month in order to have my name put on the Federal roll, but one year is required under the State law. And in the figures I quote I make all allowance for such cases. We have to consider persons who are in receipt of State aid, and also the military, all of whom ought to be on the Federal roll,- although they are not on the State roll.
– The military votes number 450.
– And those in receipt, of State aid are about 3,100. What I contend is that the Minister or the Department ought to have taken steps immediately after the Electoral Act was passed to have a proper roll compiled, a work which I do not suppose would in New South Wales have cost more than ?1,000 if the police had been employed. I am referring now, of course, to the mere work of collecting the names. I understand that the police in the State of New South Wales last year collected the roll of female names at a cost of about ?900. In my opinion, the names could have been collected, as in 1900, by the police, under the supervision of the State, the Government of which would have been only too glad to afford the necessary assistance. But the Minister has never obtained a Federal roll in New South Wales of either male or female voters, and the consequence is the large deficiency pf 70,000 names. No instructions were given to collect the names under the Federal law, and they were collected under the State law. I felt it my duty, in the interests of the public, to submit the motion, not for any party purposes, but in order that the matter might be fully ventilated. I am afraid, however, that the explanation of the Minister in regard to New South Wales will not be regarded as satisfactory.
Question resolved in the negative.
Sir JOHN FORREST laid upon the table the following paper : -
Gazette notice of alteration of regulations for the Victorian Military Forces.
The Clerk laid upon the table
Return showing the number ‘of private telephones in each municipal or police district in Tasmania (only excepting the cities of Hobart and Launceston) which have been relinquished since the regulations issued by the Postmaster-General came into force.
asked the Minister representing tine Postmaster-General, upon notice -
– The return asked for is not yet complete. It will be furnished as soon as possible.
asked the Minister representing the Postmaster-General, upon notice -
Whether, in view of the fact that the Telegraph Department has authorized the construction of a telegraph line to Tarcoola, in South Australia, without requiring any cash guarantee for construction and maintenance, the PostmasterGeneral will treat the State of Queensland similarly, and place an amount on the Estimates for the construction of a telegraph line from Jundah to Stonehenge (Queensland) ?
– The answer to the honorable member’s question is as follows : -
If it can be shown that the same conditions exist in connexion with a telegraph line from Jundah to Stonehenge, in Queensland, as were shown in connexion with the telegraph line to Tarcoola, in South Australia, the PostmasterGeneral will consider whether the line to Stonehenge should not be constructed under similar conditions.
asked the Minister for Trade and Customs, upon notice -
Whether it is his intention to take any steps in the direction of giving effect to the petition of’ the Cairns Coffee Growers’ Association with reference to giving a bonus on coffee grown within the Commonwealth ?
– The answer to the honorable member’s question is as follows : -
The Government do not propose to add to the list of bonuses to be proposed this session, but will consider the general question of bonuses later on.
asked the Treasurer, upon notice -
– - This information is not within the knowledge of my Department. I should have to send to all the States Departments, and get the returns picked out from the various contingency votes.
– I mean the money paid by the Commonwealth.
– As I say, in order to get the information, I should have to send to the Departments in the various States.
– Surely the Treasurer knows what he has paid 1
– No, because it has been the habit to pay exchanges out of the vote for contingencies - there is no specific vote. If’ the honorable member thinks the information he desires is absolutely necessary, and persists with his inquiry, I shall offer no opposition if he moves for a return. But if he would tell me exactly what he wants, I may be able to get the information in a simpler form. The answers to the honorable member’s other questions are as follow : -
I can assure the honorable member that the Government do all they possibly can to save exchanges, but we have to deal with receipts and expenditure amounting to £24,000,000, and must pay a certain amount of exchange for the work. I do all that I can to keep the amount as low as possible.
asked the Minister for Trade and Customs, upon notice -
Under what authority have the Customs officers of Tasmania this year levied a duty of 25 per cent, and 2i per cent, primage upon rubber boots made specially and used for mining, whereas these boots are exempted from duty under the Tariff in force, and were recently so regarded by the Customs authorities of Tasmania ?
– The answer to the honorable member’s question is as follows : -
Because the boots are wading boots, viz. , boots permitting dry wading above the knee, dutiable on the market value, with 10 per cent. added at 25 per cent. The duty was simply calculated the usual way.
asked the Treasurer, upon notice -
Why have the annual increments not been paid for the current year to South Australian Federal officers who are entitled to the sameby virtue of section60 of the Public Service Act ?
– This is a matter more within the purview of the Department for Home Affairs; but the answer to the honorable member’s question is as follows : -
Mr. McLachlan explains that in certain cases the increments of South Australian officers have not been paid, pending a decision of the Attorney-General. In these cases, if the increments were granted, the effect would be to place the officer in a higher class, e.g. - Increments have been allowed in cases where the salary, plus the increment, would not exceed £184, £185 being the minimum of the fourth class.
It would not be wise to do anything until the classification takes place ; it might have the effect of removing an officer from one class to another. If the honorable member has any particular cases in his mind, and will bring them under notice, they will be investigated.
asked the Prime Minister,upon notice -
Is it a fact that at least one State Premier repudiates the right of the Attorney-General of the Commonwealth to pledge the Government of his State in terms of this cable message?
– In the temporary absence of the Prime Minister, I have to say that the answers to the honorable member’s questions are as follow : -
In Committee (consideration resumed from 17th June, vide page 1063) :
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 -
arising under the Constitution, or involving its interpretation’;
arising under any laws made by the Parliament ;
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.
– When the Committee had this proposal under consideration last night, I was endeavouring to point out what my position was in regard to the measure introduced last year. I had gone so far as to express my approval of the establishment of some sort of High Court as being necessary for the completion of the Constitution, and to safeguard both it and the rights of States and of citizens under it ; and I was proceeding to say that now we have come to the consideration of this clause, we have reached the parting of the ways. It seems to me- that if we adopt all that the framers of the Bill propose, those of us who think it highly desirable that there shall be a High Court, will run the risk of seeing our end frustrated ; because an attempt is being made to establish a High Court which will, be greater than the Constitution requires, and more extensive than the people are- prepared to accept. Honorable members discussed the clause last evening very much as if they were debating the second reading again, but I think there was no help for that, because the whole fate of the measure depends upon the decision which we come to in regard to the clause. If it is struck out the whole Bill will have to be re-cast. That being so, it is almost impossible for honorable members to confine their remarks within the limits of discussion allowed in Committee. The clause confers upon the High Court a wider original jurisdiction than is provided for in the’ Constitution, but I understand, from the speeches which I have heard, that as time goes on it will not be found much wider and that the cost of the court will therefore not be limited to the £23,000 mentioned by the Attorney-General, or even to £30,000, but will run into very much higher figures. For that reason I shall oppose this and the succeeding clauses. While I oppose it for one reason, other honorable members will oppose it for other reasons, but each must defend his own reasons, and therefore I desire to occupy the time of the Committee for a few minutes in explaining my position in regard to the clause, and generally towards the provisions of the Bill. It was my original opinion that it would probably be unnecessary to establish a High Court, but I was convinced of” the necessity for its establishment after I heard the very able addresses of the Attorney-General, the Prime Minister, and the honorable and learned member for Indi. It seems to me that the splendid train of reasoning followed by those three speakers - who, I hope, will be the forerunners of a long line of statesmen who will protect the Constitution, and see its provisions carried into effect - should convince everyone that the establishment of a High Court is absolutely necessary, as the crown of the Constitution, and to protect it, and the rights of States and individuals under it. Personally,
I am fully convinced that a High Court of some kind must be established, and to my mind the fact that its establishment will cost money does not weaken the position of those who support it. If its establishment is necessary under the Constitution, we have not to consider “the question of cost. The Commonwealth would have saved money if the framers of the Constitution had conferred upon the States Legislatures the right to nominate representatives to this and to the other Chamber, but I am convinced that no one contemplated the saving of the £50,000 or £60,000 which we shall have to spend upon the Federal elections every few years by the adoption of such an arrangement. For the same reason we cannot question on the score of cost the establishment of a High Court of some sort to perform the equally important, if not more important, work of interpreting the Constitution, and preserving the rights of States and individuals under it. There has been a great deal of clamour in regard to this measure outside, but when it is said that those of us who support the measure are indulging in extravagance, I, for one, reply that I am prepared to meet my constituents at any time to defend my action in supporting the proposal to establish this necessary body. Furthermore, I feel convinced that if the States had not federated, the time would shortly have come, and would probably have come as early as now, when they would have created a Court of Appeal for Australia. I recall several discussions upon that question, .notably in the old Federal Council at Hobart ; and I have been informed by the honorable and learned member for South Australia, Mr. Glynn, that a Bill was drafted in Victoria for the establishment of such an Appeal Court. Everything pointed to the fact that sooner or later some some sort of Appeal Court for Australia would be established, and the cost of such a court would not have been less than the cost of the High Court which I am prepared to see established under the Constitution. I intend to vote for a Court of five Judges for reasons which I will give later on. I do not think that if an Appeal Court for the whole of Australia had been established prior to federation, fewer than five Judges would have been appointed. My idea, when the- Bill was brought before Parliament last session, was that we might have in the first instance an interim arrangement, under which the Chief Justices of the Supreme
Courts -of the States would perform the necessary duties for a time ; but, as I stated last night, that idea has been exploded, partly because of the period which has elapsed since the Bill was introduced - which makes it too late to think of anything but a permanent arrangement - but chiefly because of the precise and definite wording of the Constitution, which does not contemplate in any line of it that Parliament should have power to adopt any temporary expedient in this matter. The Constitution lays it down very definitely that Parliament shall create a High Court whose Judges shall be appointed for life, subject to their good behaviour. No provision is made for the creation of a temporary court. Therefore, whatever Judges are appointed will be appointed for life, and there will be no getting rid of them except on the vote of both Houses, on the ground of misbehaviour or failing abilities. But apart from the effect of the Constitution, it seems to me that there would be no more wisdom in selecting the Chief Justices of the six States to form a Bench, than in selecting the six tallest or six shortest Justices in the States Courts. It is notorious, though I am not speaking of the present state of affairs, that in the history of the Judicial Bench of Australia, as well as elsewhere, the best men have not always been the Chief Justices. Much depends in the creation of the High Court upon the personnel of the gentlemen who are first appointed to occupy positions upon the Federal Bench - its future success, the confidence of the nation, and the gradual development of a Judiciary which in course of time will gain full power to finally determine every legal question which may arise in Australia, will be greatly influenced by the character of the first appointments. I regret that the power which was asked for in the draft Constitution Bill, to confine appeals in certain cases to the High Court in its appellate jurisdiction, was not given in its entirety. I do not sympathize with the views of those who have spoken highly of the Privy Council. The Privy Council, like many other institutions, is a time-honoured body, but it no longer meets the exigencies of the Empire, and much less the needs and necessities of Australia. It is an accidental thing, and quite out of touch with our conditions. I believe that there are fifteen members of that court, and that its quorum is four, so that it may happen that four of its weakest men are called upon to decide cases of the greatest weight and moment. Where questions of commercial and ordinary law are in dispute, I think they can be settled by the Privy Council aswell as by an Australian Court, but in purely Australian cases, and especially in constitutional cases, the members of thePrivy Council would be less fitted to deal with disputes than the best men we could select in Australia. If the Ministry appoint to the High Court as Judges men who are selected for the excellence of their intellect and abilities, five will not be too many, and we shall have a court which, as time goes on, will get more and more appeal work under the provision of the Constitution which gives this Parliament the right to limit appeals in certain cases to the Privy Council, and because it will command the increasing confidence of the nation. I cannot see any advantage in perpetuating theright of appeal to the Privy Council. Indeed, in constitutional cases, there is. very grave danger in having to appeal to that body. Our Constitution should be interpreted by an Australian Court. In this way we -shall get definite decisions upon several doubtful points, and probably, as has been the case in the United States, the decisions of the court will in effect amend the Constitution to meet the popular will in several particulars in regard to which it is not worth the trouble and expense of going through “the forms of amendment provided for in the Constitution. If we did not create the High Court, but took our interpretation of the Constitution from the States Courts, with the right of appeal to the Privy Council, we should run the greatest danger. That body has in many instances interpreted the Canadian Constitution, but I think it is notorious amongst legal men that the judgments given were almost invariably those of the late Lord Watson, who for twenty years made the provisions of that Constitution his especial study. In giving these decisions he apparently had. the approval of every member of the Privy Council, simply because he above all the others, had made the subject his special study. I do not think we could depend upon anybody to take a similar interest in our Constitution. Lord Watson probablyperformed very great service to Canada in devoting his time almost exclusively tothe work of interpreting its Constitution. Owing to the fact that the Privy Council’, has now on its records many decisions with regard to the Canadian Constitution, we should, in the event of our applying for an interpretation of our Constitution, run the risk of having certain decisions in Canadian cases read into our Constitution, which is not upon exactly the same lines as of that of Canada. Our Constitution is sui generis. It does not follow Canadian lines, and differs from theUnited States and Swiss Constitutions. It is a Constitution of our own making, and consequently it ought to be interpreted by Judges of our own creation - by men who have grown up amongst us, and who are permeated with Australian ideas. I think we can find all the necessary Judges amongst ourselves. We do not require to restrict our choice to Judges of the States Courts, or to men of eminence in public life, but if we choose the best men available in the Commonwealth wherever they may be, we shall create a Court which will grow more and more into the confidence of the people, and which will be able to safely direct us upon all matters affecting the interpretation of our Constitution and our laws. That is the ideal which I desire to work up to. It has been very eloquently and lucidly set forth by the supporters of the Bill, and I shall do all I can to realize it. When we come to consider the Bill, we find that its framers, actuated by a desire to erect a strong Court of five Judges which would command respect, have gone further than is necessary in order to afford full reason for their appointment. I go the length of saying that if there were no work to be done by the Judges at present, we should still appoint them. A very old friend of mine used to pay £20 per annum to a doctor to attend upon his rather large family, but he did not require the services of the doctor from year’s end to year’s end. He did not complain, because he regarded the absence of sickness as an excellent state of affairs. Similarly, if we have five Judges and they have nothing to do, we ought to congratulate ourselves upon that fact. So long, however, as we have no High Court, and no means of settling our own disputes, we may expect an increase of litigation. If five Judges are appointed, with the limited duties to which I would confine them, they will not cost the Commonwealth more than about £20,000 per annum. Unfortunately, they will cost us that sum as soon as we create the Court, but I do not think that the outlay will be any greater in. twenty years hence, when they will have much more work to do, and will be much more necessary for the protection of our growing interests. I am satisfied that such a Court is required, and that we cannot do with less than five Judges. If we appoint only three Judges, we may save £5,000 or £6,000 per annum, but we shall have an emasculated Court that will not command the same respect as a Bench of five Judges. We should frequently be compelled to accept the decision of two Judges out of three, and we could not feel satisfied with such a Court having the final word upon important subjects. In the United States they started their Supreme Court with six Judges, and that Court had not the same extensive functions that we propose to confer upon our High Court. Their duties were confined to the interpretation of the Constitution and to cases arising under the Constitution or between States or parties in different States. When that Court was appointed the United States were not in as good a position as is Australia to-day. Their population in the last decade of the 18th century was about 1,000,000 less than ours at the present time. They had no large cities like Melbourne, Sydney, or Brisbane, because Philadelphia, the largest centre in those days, had a population of only 42,520, New York came next with a population of 33,131, and there was no other city in the Union at the time the Federation was started that had a population of more than 20,000. They had a number of small towns scattered throughout the Union. The famous Boston, their intellectual centre, had only 13,000; Charleston had a population of a little more, and Baltimore only 14,503. While the United States had far less population than we have, the extent of her trade and commerce was relatively still smaller than ours ; because, as the world progresses, all communities have relatively more trade and commerce than was the case with similar populations in days gone by. The American Union, knowing full well the necessity for the Supreme Court, appointed six Judges, although, as I have stated, the functions of the Court were limited to the decision of Constitutional questions. I do not know why they appointed six J udges, because it seems to me that it is desirable to have an odd number, and therefore I favour the appointment of five Judges.
When I am asked what these Judges are to do, I do not think it is necessary to do more than point to the Constitution. Where is the necessity for creating work by granting extended original jurisdiction? Is it not plainly apparent that it has been feared by the framers of the Bill that there would not be sufficient work for five Judges, unless some extra jurisdiction were given to them? I think it is singularly unfortunate that this view was taken. All true lovers of the Constitution, with a patriotic desire to see the Federation progress, would have willingly supported the appointment of five Judges, if for no other purpose than that set forth under the Constitution, and I regret that i the Bill has been hampered by other provisions which, to my mind, rather mar its effect. I intend to vote for the strikng out of the clause now under discussion, but I shall support the appointment of five Judges. There is another reason why we should have five Judges. If only three Judges are appointed to constitute the High Court at the commencement of its career, the inevitable increase in the work of the Court in the near future will soon necessitate an increase in the number of its members. But in the mean-time serious constitutional questions may have come before the Supreme Courts of tine States foi’ their decision, or may have been warmly discussed in the Federal Parliament and in the- press of the Commonwealth, and the selection of the additional Judges for the High Court will inevitably be influenced by their known or suspected opinions on the questions under discussion in the political arena, or in the Supreme Courts of the States. An illustration of such an influence in the selection of additional Judges is found in the history of the United States of America, in connexion with the long controversy upon the question of the power of Congress to issue paper money. In consequence of the quarrel between Congress and President Johnson, an Act was passed by Congress to prevent the President filling up any vacancies that might occur on the Bench of the Supreme Court until the number of the Judges fell below seven. Towards the close of the President’s term of office the number of the Judges of the Supreme Court had become reduced from ten to seven, and at the time at which the Court consisted of only seven Judges the question of the power of Congress to issue paper money came before the Court t01 decision in the case of Hepburn v. Griswold. The Court, by a bare majority of four Judges against three, decided that the issue of paper money by Congress was illegal. Shortly afterwards General Grant was elected President, and the Act of Congress, which prohibited the appointment of additional Judges, was repealed. The new President immediately appointed two new Judges, who were known, or believed to be, of the opinion that Congress had the power to issue paper money. One of them, Mr. Justice Strong, had previously delivered a judgment in the Supreme Court of Pennsylvania in support of .the legality of such money ; and two years after the two new Judges were appointed, the same question came again before the Supreme Court of the United States in the cases known as “ The Legal Tender Cases,” and judgment was given in favour of the legality of the paper money issued by Congress, by a majority of five Judges out of the total number of nine which then constituted the Court. These historical events clearly demonstrate the desirability of appointing a sufficient number of Judges of the High Court of Australia at the commencement of its career, in order, to prevent a prospective increase of work being converted into an excuse for increasing the number of Judges for political purposes at a subsequent time. If we start with five Judges we shall probably find them sufficient for a very long time. If the only argument against the appointment of - that number is based upon the expense involved, I would rather face the consequences in that direction at once than risk the necessity of strengthening the Bench later on under conditions such as I have indicated. I feel that I must support the Bill, but as some of its provisions are unnecessarily wide, I shall endeavour, to modify them. I am satisfied that if we agree to this clause we shall confer on the High Court a wider original jurisdiction than it is necessary to clothe it with, that five Judges will not be sufficient to transact its business, and that the estimated expenditure of £30,000 per annum will prove utterly inadequate. If we invest this tribunal with original juris diction in connexion with matrimonial and bankruptcy matters, fifteen Judges would not be able to do the work. But if we confine the functions of the Court to appellate jurisdiction, the interpretation of the Constitution, and the primary jurisdiction conferred under the Constitution, . I think that the expense of its maintenance will be about £20,000 a year. Although I am sorry that it ma)’ cost that sum now, 1 would vote for it if it cost £40,000 per annum. At the same time I do not think it will cost more than £20,000 per annum, even after ten or twelve years have elapsed.
– As this clause involves ‘the denning of the functions of the High Court, iu was calculated to call forth the opinion of the legal talent in this Chamber. In the course of the debate which has taken place upon this measure,’ some very able and instructive addresses have been delivered from both sides. The Attorney-General gave us a very able.exposition of its principles, and his position was forcibly supported by the honorable and learned member for Indi and the honorable and learned member for Darling Downs. Equally able speeches were made against the Bill by the honorable and learned member for Bendigo, and the honorable and learned member for Corinella, whilst the honorable and learned member for Northern Melbourne lias delivered addresses both for and against the Bill. But the speech which appealed to me most was that delivered by the honorable member for North Sydney. It contained a good deal of hard-headed, Scotch common sense. Before committing themselves to the proposals of the Government, honorable members would do well to carefully peruse that address. There is no doubt that provision is made in the Constitution for the establishment of a High Court, and other tribunals of a more or less judicial character. But Federation has been in existence for more than two years, and until now the Government have never betrayed undue anxiety to carry that provision into effect, and I fail to see that the Constitution has suffered irreparable damage in the absence of these legal ma,chinery measures. Personally, I do not think there is an)’ urgent need for the establishment of a High Court, and in my judgment it would be wise to defer its creation until such a tribunal becomes absolutely necessary. If we commit the Commonwealth to the establishment of *a Court of this character, we cannot expect it to do anything like justice to the people, unless we are prepared to sanction the expenditure of a considerable sum of money. Matters have proceeded & c 2 satisfactorily enough in the absence of this tribunal, and the public have not exhibited any strong anxiety for its creation. In view of the wide difference of opinion .which exists, both in this Chamber and outside of it, the Government would be acting wisely in withdrawing the measure and allowing honorable members .to deal with more urgent legislation. When the need becomes apparent, I shall be quite prepared to sanction the establishment of a High Court, but I shall want to see such a tribunal erected as will reflect credit upon the Commonwealth. I cannot, however, go all the way with the Government in their desire to establish a Court that will practically run counter to the States Courts, and duplicate the work in that respect. I think that the honorable member for North Sydney stated the position accurately when he declared that we must not lose sight of the fact that in our Federal legislation we are dealing . with the same people as are affected by State legislation. We are not providing for an entirely new order of affairs. I should like to see the High Court, when it is created, work as far as possible in harmony with the States Courts. Indeed, I think it should be supplementary to those courts, and form a court of appeal from their decisions. I do not hold with those who believe that there must necessarily be antagonism between the States and the Federal judicial systems, and that the Judges of the States Courts, in dealing with Federal matters, would regard them from a parochial stand-point. I believe that they are quite competent to deal with such matters. I am in favour of making the High Court so completely a part of the States Courts that I am averse to conferring upon that tribunal the original jurisdiction proposed under this Bill. I believe that the best talent upon the States Courts should be drawn on from the outset to constitute the High Court. In that way we should bring the Federal and the States Courts into harmony, and the greater the harmony that exists the better it will be for the people. We must not forget that the States have established and maintained at considerable cost the courts which are already in existence. The Federal Government, in my opinion, should use those courts in the way I have indicated. No injustice could result to the Commonwealth from the adoption of such a procedure. On the contrary, if we clothe the States Courts with Federal jurisdiction, to enable them to deal with all Federal matters, we shall effect great savings. If afterwards our experience shows that there is sufficient work to warrant the creation of a High Court as a court of appeal, we can enact the necessary legislation, thus providing for our needs as the)7 arise. We must always remember that the cost of the Federal, as well as the State administration, is borne by the one people. I have in my hand a return prepared by Senator Zeal which shows the amount of money that is annually expended by the various States upon their judiciaries. From this document I find that the salaries of the Judges throughout the Commonwealth total £66,900 ; the expenses in connexion with them, £35,989. The District Court Judges draw £22,000; the law officers, £11S,431 ; the sheriffs, £51,062 ; the Masters in Equity, £16,342; the Stipendiary Magistrates, £63,920 ; whilst the petty sessions cost £128,024; miscellaneous expenditure is responsible for £68,638 ; making a total of £571,306. That amount does not include the cost of providing police protection, but “simply covers the courts of justice and the paraphernalia immediately connected therewith. That total is disdistributed over the States ‘as follows : - New South Wales, £255,994 ; Victoria, £135,701 ; Queensland, £75,906 ; South Australia, £27,840; Western Australia, £57,142; and Tasmania, £18,723. Senator Zeal compares this expenditure with that which takes place in the sister Commonwealth of Canada. He says chat, compared with Canada, the extravagance of this Commonwealth is remarkable. In the Dominion the annual cost of the judiciary and police combined is £474,221, or £97,0S5 less than the cost of the judiciary of the Commonwealth.
– The cost of our judiciary does not include the cost of the police.
– - That is so, whereas in Canada the maintenance of the police is included in the sum I have mentioned. I am informed that the judiciary of Canada amply supplies adi wants ; and, if that be so, we ought to be satisfied with more reasonable proposals than those submitted by the Government. The States have incurred great expense in establishing the present judiciary, and the machinery at our disposal ought to be utilized as far as possible ; certainly we should not duplicate the tribunals in the way proposed by the Bill. There are many other directions in which money can be usefully expended on good government for the benefit of theCommonwealth ; and all that is necessary atpresent is to clothe the States Courts with thenecessary Federal jurisdiction. If there isneed for a High Court of Appeal Jet such a. Court be established, but, in our present circumstances, there is no necessity for a duplication of jurisdiction. It has been urged that the proposal of the Government will cheapen law within the Commonwealth; but in my opinion the man who can solvethe problem of how to lessen the cost of litigation in this community will be a genius.. I am glad to say that I have had nopersonal experience of law courts ; but from what I can see he is a wise man who keeps out of litigation. In nine cases out of ten the parties on both sides are the losers, theonly persons who seem to reap a rich harvest being the legal gentlemen employed ;. and that experience will, I am afraid, berepeated in the Federal High Court. It must be remembered that a Federal tribunal sitting in Sydney, Melbourne, orAdelaide will only constitute a- part of the High Court, and the probabilities are that in many cases the decisions will form the subjectof appeal to what will be known as the Full Court. The honorable member for Tasmania, Mr. O’Malley, claims to have had special experience of the High Court in another Commonwealth, but the conditions, there are very dissimilar to our own ; at any rate, I do not think we shall see such a free use of the revolver as the honorablemember seemed to indicate in the High Court of which he spoke. If it were possible under the Constitution to establish a purely Australian High Court, in the sensein which the word “Australian” is ordinarily used, there might be some reason foiagreeing to a proposal in that direction ;. but the decisions of the proposed Court, with the exception of those relating to theinterpretation of the Constitution, and cases originating in the States Courtswith Federal jurisdiction, may be taken to the Privy Council. While our needs are not very pressing, I do not think weneed fear following the example of Canada so far as questions affecting the interpretation of the Constitution are concerned ; and I shall endeavour to give Federal jurisdiction to the States Courts, with the High Court as a court of appeal. I do not se& any need for the original jurisdiction proposed to be given to the High Court, notam. I of opinion that so large a number of Judges as proposed ought to be appointed. We ought to start with the lesser number, And when the need becomes evident appoint more Judges. I strongly protest against what appears to be the policy of the Government in establishing an ornamental judiciary, an Inter state Commission, and other expensive bodies. If these bodies be established, and an appeal is made for legislation in other directions of more vital importance to the community, such as the establishment of Courts of Arbitration and Conciliation, the reply will be made that our resources have been exhausted ; and, therefore, I shall support the amendment which I understand has been moved to eliminate from the Bill the clauses which give original jurisdiction to the High Court.
–! have been very pleased to find, during the course of this debate, that we have in this Chamber a number of lawyers, who, although they would derive personal advantage from the setting up of the High Court proposed by the Government, are patriotic enough to remember the interests of the general pu blic, and therefore hesitate about committing the country to the large expenditure which the proposal would entail. It is a very difficult thing for any of us to say what the cost of the proposed High Court would be, but in a matter of this kind we must rel v greatly upon the opinions expressed by the legal members of the Committee. and after listening to the very able speeches delivered by members of the legal profession, I have como to the conclusion that the proposal should not be adopted. Of course, we are all of opinion that the public should be given the right to proceed, if they think fit, against the Federal Government. I know that difficulties have arisen in the past, and I was one of those who complained of the delay on the part of the Government in not providing for some court - not an expensive court such as is now proposed - which would be given jurisdiction to hear cases brought against the Federation. When, towards the close of last session, the AttorneyGeneral submitted a short Bill to enable the public to bring suits against the Federation, an attempt was made to amend it so as to extend the jurisdiction, and I believe that if that amendment had been carried it would have been to the advantage of all
I concerned, though it might have been incon venient for the Government. But while, as I have said, difficulties have arisen, f think that they could be met for the present by extending the jurisdiction of the States Courts pending the establishment of a High Court. Those of us who voted against the Bill did so, not because we are opposed to the establishment of a High Court as a court of appeal, with the original jurisdiction provided for in the Constitution, but because we object to the expenditure which a High Court, established on the lines proposed, would entail.
– In voting against the Bill the honorable member voted against the principle contained in it. The question of expense is a matter to be dealt with in Committee.
– There is a very great difference between a court such as many of us would like to see established and that proposed by the Government. My honorable friend will have an opportunity of justifying his vote before the country, but’ no one ever thought that the Government would propose to establish such a court as is provided for in the Bill. What does the proposal of the Government mean ? They propose to go much further than the Constitution contemplates. The Constitution provides for an appeal to the High Court in certain cases, and for a certain limited original jurisdiction, but it does not take away the right of. appeal to the Privy Council, which some people think would often be better than an appeal to the High Court, because the Privy Council is far removed from all local jealousies. That view is taken by many prominent lawyers. But the Government propose to go much further than is contemplated by the Constitution, and to place under the jurisdiction of the High Court many matters which. are not specifically referred to it.
– The Government can give to the High Court only the jurisdiction provided for bv the Constitution.
– I am aware that the Constitution allows this jurisdiction to be given, to the High Court ; but it does not require it to be given. The Government propose to go beyond what is contemplated by the Constitution, and they provide for the establishment of a Court with such a wide jurisdiction that it would practically be necessary to set up a number of COUrtS in each of the States, although a much less expensive arrangement could be made to meet the needs of the public. I am very strongly opposed to the Government proposal, because of the expense which it will involve, and because I know how necessary it is that we should be careful not to increase the burdens of the people more than we can help. If the clause is not struck out, instead of five Judges being ‘ able to do the work which will be required of the Court, at least fifteen Judges will be necessary. I have risen to enter my protest against this attempt on the part of the Government to increase the expenditure of the Commonwealth. I feel sure that they are asking us to embark upon an undertaking which .will involve us in an expense which they themselves do not anticipate, whereas a simple and inexpensive court might be created which would meet all the requirements of litigants, and would safeguard the interests of the Commonwealth, the States, and the people.
– I have 1 listened with some interest to the discussion upon this important proposal. I did not intend to join in the debate, because to my mind the question is one upon which legal minds should best advise us, but, having listened to the speeches which have been delivered by the legal members of the Committee, I find . them so contradictory - as lawyers often are - that I feel in great danger of being led astray altogether. I have, therefore, endeavoured to sift the arguments on both sides, and I find that, while some are afraid that the proposed High Court will have so much work that three times the number of Judges proposed will be unable to cope with it, others oppose the Bill, because they believe that the Court will not have any work to do. It will he a good thing for .Australia .when the Courts have no work. I believe that instead of our having p- to increase the number of Judges in the future, the. work of the Courts will decrease, because .the;’people will trouble the lawyers less and less as they become more intelligent. So far as I can understand, it is generally admitted .by honorable members on both sides that the Constitution demands the establishment of the High Court, but they §ay that the present time is not opportune. Pursuing their line of argument still further, we .find that the whole question resolves itself into one of saving a few pounds. It is hinted that public opinion generally is in accord with .that ‘opinion which seems to be manufactured in the city of Melbourne. Some one has said that public opinion is opposed to an increase in the expenditure of the Commonwealth, and the poor unfortunate taxpayer has been dragged into the matter in much the same way that the poor widow used to be pathetically presented to us during the Tariff debate. Honorable members know perfectly well that the taxpayer will not benefit to the extent of one farthing if we refrain from establishing the High Court, and that, on the other hand, he will not pay one farthing more if we carry out the Government proposal. There are considerations of much more importance than those connected with expense. I have listened carefully in order to ascertain how long honorable and learned members consider it necessary for us to wait before establishing the High Court, and I gather that most of them hold the view that we should not be able to get along without it for any great length of time. I cannot help thinking that the mixing up of the time limit with the question of spending a few pounds and the so-called expressions of public opinion will lead to a confusion of ideas. The half-dozen men who have been expressing their views before public meetings in Melbourne, in such a way as to exhibit their utter ignorance, do not represent public opinion, nor do thoseirresponsible persons who write letters to the newspapers occupy any representative position. If these gentlemen who make so much of the cry for economy desire to represent the real trend of public opinion, why do they not quote the resolutions of the Political Labour Council or of the Trades and Labour Council- bodies which represent perhaps 60,000 or 70,000 electors *1 They should not quote the ideas of a few . men- who, “‘like the three tailors of Tooley-street, think they can run thecountry. Even some of the opponents of the measure admit that only a year or two can elapse before we shall - haveto create the High Court, which, according to the Constitution, we should bring into existence without delay. I believe that the Government proposals arebeing opposed by an interested press, becausethe Federal Parliament has shown itself too democratic for some people who do not likethe work which it has done, and who, therefore, would like to prevent it from passingfurther legislation. The opposition which has come from this quarter has made me feel the more satisfied to cast my vote in favour of the measure. I do not regard a few men in Melbourne, or the editor of a newspaper, who writes articles to order, as representing public opinion. There are principles more important than money, and there are some things which money cannot buy, and I shall vote for the establishment of the High Court because I fear that something disastrous to the future of the Commonwealth may happen if we leave the interpretation of our Constitution to those who cannot know much about our aspirations, conditions, ideas, or sentiments. I am not prepared to run the risk of submitting the interpretation of our Constitution to the Privy Council, which may lay down a precedent binding upon us for all time. It appears very much as if some honorable members were willing to sacrifice the interests of the people of the Commonwealth for the sake of a few thousands of pounds. In considering a matter of this kind, those who object to give effect to the clearly expressed wish of the people, because of the small expense that may be involved, are taking the very lowest possible ground. The people of Victoria who are now clamouring against the carrying out of the provisions of the Constitution, were those who were the most anxious to have federation accomplished. Some of us in New South “Wales voted against the Constitution, but now that it has been adopted we are prepared to throw our weight in with the majority in order to see that its provisions are faithfully fulfilled. If the people of Victoria voted in ignorance of the cost of federation, they will now learn a lesson which should prove of use to them in the future. Have those honorable members who are objecting to the establishment of the High Court on the ground of expense considered that if we throw the whole of the Federal work upon the States Courts we shall be expected to pay for it ? Is there not a strong tendency on the part of the States Governments1 to require the Federal authorities to pay for services rendered by their officials to the Commonwealth1! If they adopt a similar attitude. with regard to the Courts, where will be the saving? We should not for the sake of a few pounds abstain from carrying out the expressed will of the people as embodied in the Constitution approved by them. We know very well [ that there are a number of cases awaiting the decision of the High Court, and there is every prospect of many others of great importance arising in the near future. We shall be called upon to consider a proposal for the establishment of an Arbitration Court, and if that tribunal is created, we shall very probably have to call upon the High Court to define its jurisdiction. It may not suit the purposes of the Employers Federation to have the High Court and the Arbitration Court established, but it will suit the people who desire to see more peaceable methods adopted for settling trade disputes. Although we have had a great deal of ‘assistance . from the States, I do not think our experience enables us to say that we can get along very well without having our own departments under direct Federal control, and this applies with as much force to the Judiciary as to any other Department. I shall support the Government proposal for the appointment of the five Judges, and I am also in favour of conferring upon them original jurisdiction. I hope honorable members will very earnestly consider the serious effects that may follow any postponement of the appointment of the High Court. It is true that the Constitution adopted by the people provided for the abolition of appeals to the Privy Council, but because we have not been able to secure all we want there is no reason why we should not obtain all we can. I think we should establish a High Court, if only for the purpose of interpreting our Constitution.
– I do not intend to prolong the agony by indulging in a second reading speech under cover of this clause. Upon the motion for the second reading of the Bill, after a fair fight, we have been handsomely beaten, and we have taken our gruel like men. I strongly object, however, to taking another dose of gruel, and that is the position which 1 occupy at present. Oliver Wendell Holmes says it is a special virtue in a sporting man when he is in luck to crow gently, and when he is beaten to own up, pay up, and shut up. Fortunately, we have another chance upon the present occasion. The Government have successfully “ bullocked “ through the second reading of the Bill, and now find themselves in an “angel” of a fix to provide work for the Judges. .What is the expedient which they propose to adopt in this connexion It is nothing more or less than an attempt to divert the legal business of the country from its natural channels to the High Court. They wish to dam back the current of litigation until it rises to the altitude of the High Court. I think that the honorable and learned member for Northern Melbourne showed very clearly the absurdity of passing the doors of the States Courts in order to take litigation to the higher Court. I am thoroughly of his opinion that it is a stupid thing to do. I cannot see any object in adopting that expedient, unless it be to provide new billets and new officials under the Government. If the Government intend to force litigants into the High Court, why do they not go a step further and issue coupons to all suitors before that tribunal entitling them to a pound of tea weekly, for the term of their natural lives. The proposal is utterly ridiculous. Merchants and business people do not usually adopt such practices, nor do large corporations. Can honorable members imagine the Harbor Trust saying to the people that they have found the straight cut to Port Philip which has been made at an enormous expense is of very little use to them and that they proposed to construct a new canal by way of Bacchus Marsh or Warrenheip to the Bav. Such a proposal would resemble the methods of the Government in connexion with this Bill. It is altogether beyond a joke. As the Government carried the second reading of the Bill simply upon the contention that the establishment of the High Court was mandatory under the Constitution - a contention with which I thoroughly agreed -I do not think that we ought to give them one ounce more than the Constitution directs. What does the Constitution say? Section 75 refers to five matters upon which the High Court is to have original jurisdiction. It says -
The High Court shall have original jurisdiction, &c.
That is mandatory. But in section 76 the words used are -
TheParliament may make laws, &c.
Those words are optional. The same remark is applicable to sections 77 and 78. All these provisions show that it was the intention of the framers of the Constitution to confer original jurisdiction upon the High Court in the five matters mentioned in section 75, but in no others. Surely it is absurd to talk of investing the High Court with further power before it has even been constituted. Honorable members will recollect a scene in the “Merchant of Venice,” in which Portia says -
Then take thy bond, take thou thy pound of flesh ;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the State of Venice.
That is exactly the position which I assume in regard to this matter.I would concede to the Government all that is mandatory under the Constitution, but not a pennyweight more.
– Does the honorable member mean to insinuate that the Government are Shylocks?
– No ; and I have the highest respect for Jews. I think they are the noblest race God ever made. Honorable members have recently heard a good deal about that mysterious modern disease which has troubled all the world, called appendicitis. It cannot be cured by medicine. It can be removed only by the knife - by cutting the appendix off. I regard this clause as the appendix of the Bill, and will not be satisfied until it is removed. Under this provision we have to find some work for the Judges. We cannot pay them high salaries for doing nothing, and as a way out of the difficulty I would recommend that we form the High Court into a Court of Arches. A Court of Arches is used for the purpose of debating spiritual causes. It may be said that we have no established church, and that no ecclesiastical disputes will arise, but I am sure that the Attorney-General and the Prime Minister are ingenious enough to find something to connect cases under, say, Customs administration with spiritual causes. Some mention has been made of the opposition to this clause having been prompted by party motives. I am quite sure that the Attorney-General will acquit me of being influenced in this matter by any such motives. My vote upon the measure will be cast in the direction which I conceive to be best in the public interest, and no blandishments will affect me. I simply desire to see justice done.
– As I was absent from the House during the second-reading debate upon this Bill, I desire to say that I am quite in sympathy -with those who are in opposition to the clause under discussion. At the same time, I cannot avoid expressing my amazement that the second reading of the measure should have been imperilled. If ever there was a question which I thought would receive the almost unanimous approval of Parliament it was the proposal to establish a High Court. The statement which was made by the honorable member for Macquarie, that honorable members were justified in opposing the second reading of the Bill, simply because they are in antagonism to some of its details, is one which I never expected to emanate from any one possessed of parliamentary experience. I have always understood that the vote upon the second reading of any measure simply determines whether its introduction is necessary. It is left to honorable members to arrange the details of Bills in Committee. I should have no sense of parliamentary duty . if I had voted against the second reading of the Bill simply because I was opposed to this clause.
– The honorable member is very young in politics.
– I hope thatI shall always remain young. Upon a question of this kind I was quite prepared to trust the legal members of this House. But I find that they are absolutely opposed to each other. For example, the Attorney-General is opposed to the honorable and learned member for South Australia, Mr. Glynn, and the honorable and learned member for Indi to the honorable and learned member for Bendigo. Similarly, the honorable and learned member for Northern Melbourne entertains one view and the honorable and learned member for Darling Downs another. When we find the legal members of the House so diametrically opposed to each other, the ordinary layman is forced to bring his own common sense to bear. I think that every one will admit that the establishment of a High Court is obligatory under the Constitution. The obligation to establish a High Court is even stronger than the obligation to establish a Federal capital ; yet the honorable members for New South Wales will use very different arguments in regard to the latter matter. What will these honorable members say when they hear Victorian members observe - “ Yes, we admit the obligation to establish a Federal capital, but there is no hurry.” In the Constitution a c ontract was entered into by the various States for the establishment of a High Court, and even if only one State asked t hat such a Court should be provided, and t he other five States were against the pro- posal, the request would have to be granted. The citizens of Australia voted for the Con- s titution in which the ‘promise of a High Court was embodied; and if such a Courtis not established, they will feel thatthey have been falsely dealt with. The question before us now is that of the restriction of the j urisdiction of the High Court.I listened with great attention to the speech of the Attorney-General, and one argument of his struck me very forcibly. That argument was that there would be Federal Judges throughout Australia, and that a litigant in any part would havethe choice of the Court to which he preferred to go - the State Court or a Federal Court. But if that should prove to be the case, it will not be a ques- tion of three or five Judges, but a question of eight or nine Judges, in order to deal with the enormous amount of work which will be provided throughout this great continent. I shrink, as other honorable members shrink, from adding unnecessary bur- dens on the people, and I give my full assent to such restriction of the powers of the Court as will be carried out by the rejection of this clause. It had been my intentionto vote for sub-clause (a), and reject the other sub-clauses ; but as the Attorney-General has already carried the rejection of sub-clause (c), I am debarred by the rules of the House from taking that step. I call the attention of the AttorneyGeneral, however, to sub-clause (a), which refers to questions arising under the Constitution or involving its interpretation. I hope that the Attorney-General, if the Committee do reject this proposal, will be able to tell us that the Bill will not be passed without its being specified that the Federal Court alone shall have the power to interpret the Constitution.
– On appeal, certainly.
– I am not satisfied with that, because I would allow no State Court to interpret the Constitution.
– Unless we pass sub-clause (a) the High Court will not be able to deal with such cases except on appeal. Subclause (a) must be passed to begin with, and then a further sub-clause added, if we wish to make the jurisdiction exclusive. All that sub-clause (a) does is to allow the Judges of the High Court to deal with questions arising out of the Constitution or i ts i nterpretation .
– The AttorneyGeneral has cut a plank from underneath his feet by securing the rejection of sub-clause (c). Had we allowed that sub-clause to remain until the end of the discussion, I should have been ready to move that subclauses (b) (c) and (d) be rejected, while retaining sub-clause (a). Of course, the AttorneyGeneral may recommit the Bill before it is finally dealt with, and embody in it sub-clause (a). There will be appeals, no doubt, but, as I say, I should not give the States Courts the right to interpret the Constitution. I think the suggestion of the honorable and learned member for Northern Melbourne was an excellent one if, as it seems, the motive for objecting to this clause is to curtail the work of the Federal Judges, and to keep their number down to three at the start. It is quite manifest that the members of an Appeal Court of three Judges cannot travel all over Australia to hear all sorts of appeals. If a litigant goes before a single State Judge, and is not satisfied with the judgment, he ought to be permitted to appeal to the State Full Court, which will sit in the same building and decide the matter in a very short time, instead of keeping him waiting, perhaps, for months. We often seem to forget that we are not dealing with a single State, but with a vast continent, and that it is impossible for the people to go to this Appeal Court on minor cases from all parts of Australia. My object is to keep the number of Judges as low as possible, thoughat the same time I should be preparedtovotefor anynumber which is deemed necessary. I can onlyhope,however, that the Government willsee their way to be content with three Judges until it is proved that more are absolutely indispensible.
– After several days of discussion not much more remains to be said, and I had not intended to speak but for the inquiry of the honorable member for Dalley as to what was the matter withthe labour corner. So far as I am concerned,. I am wholly and solely with the Government on this Bill, simply because everybody who is opposedto mein the political world is against it.I listened with great interest to the speech of the honorable and learned member for South
Australia, Mr. Glynn, on the irrigation question, and it would appear that there is a desire in Victoria to stop the water from flowing to South Australia. 1 mention this in order that I may illustrate my argument by saying that the political opponents to whom I refer are much in the same position as the people ofVictoria ; and when they want to “stop the water from running “ I cannot help thinking that there is something “crooked” in the business: We have heard a great deal about economy, and the honorable member for Tasmania, Mr. O’Malley, has, in figurative language, shown, why economy is preached here. That honorable member, in a story about an American telegraph master and a dog, put the position very neatly ; ever since the tail of the economical dog has been squeezed in Collins-street, that animal has been barking in this House.
– Order! The honorable member must not apply an illustration of that kind.
– I maintain that the people of Australia have not spoken against the Bill. The editor of the Argus and the editor of the Age are not the public of Australia, nor are the members of the Employers’ Federation, or the Citizens’ “ deformed” League ; they are the friends of only a section of the community. Yesterday morning I heard two gentlemen in the street talking about the High Court Bill, and one of them said - “The Bill is cooked ; Meudell has spoken.” I do not know who Meudell is ; but, from all I hear, his figures are in a terrible muddle. What did the honorable members who are opposing this Bill on the score of economy do when it was proposed to give a salary of £10,000 per annum to the Governor-General ? They voted for the proposal. “ as solid as a brick wall.”
– Not allof them.
– Only four or five honorable members stood out against the proposal. That money had to come out of exactly the same pockets as the money for the High Court, and I can tell the New South Wales members that the little crowd on the Government cross benches will treat the capital site proposals in the same way that they are treating this Bill.
Mr.Conroy. - Surely the honorable memberdoesnotproposethat we should sell our ideas.
– Your ideas? Where are they? They are like the four cardinal points of heaven - “all over the shop.” I haveheard talk about an “ unholy alliance” with the labour party, but what about the “unholy alliance” between the Opposition and the Government “ rats “ ?
– I must ask the honorable member not to apply such a term to any honorable members.
– I am not talking about any individual member, but about honorable members politically. The same arguments now being used against the Bill were used against federation ; but I read in one of the speeches of the honorable and learned member for Bendigo - a speech whichI read with greater interest than I have felt in the utterance of any other public man - that we were to have purity, not only in politics, but in a Federal High Court. Every one who voted for the Federal Constitution knew that a High Court formed a part of it, and it is no use their now saying that they “ did not know it was loaded.” It was for the people to accept or reject the Constitution, and I for one took the advice then given by the honorable and learned member for Bendigo, and voted for federation. If we are to have the Constitution interpreted, let it be interpreted by our own High Court ; and whether that High Court be large or small, depends on the will of the Committee. To talk about the necessity of saving £30,000 is to draw a red herring across the trail, because when the Estimates come before us honorable members will be ready to vote away millions of pounds inanight. The fact is that a large number of people ontside are beginning to howl, and I am sorry that the majority of the howlers are free-traders. Since they cannot prod the House on the Tariff question, they are beginning to use something else.
An Honorable Member. - What about the Age?
– We have the Age and the Argus together. That is another unholy alliance. It has been saidthatthepricewhich the labour party are to receive for their support of this measure is the Arbitration Bill. But had thelabour party anything to do with thef raming of the Constitution, which makes the establishment of a High Court necessary ? I think it is a very lucky thing from the point of view ofmany that there were no labour members in the Convention.
But we are bound to carry out the provisions of the Constitution, and I shall always be ready to support the Government in any action of which I have expressed my approval before my constituents. I should be a cur if I refused to give a helping hand to the erection of the machinery which is to give my constituents what they want. Undoubtedly an Arbitration Court will be established soon. That is as certain as it is that the sun melts snow. If there is to bean appeal from the decisions of that Court, who is to decide the question? I think that such an appeal should lie only to the High Court, and for these reasons, and for many others which I have not stated, I intend to help the Government over the ditch on this occasion.
Mr. CONROY (Werriwa). - I do not think the honorable member for Maranoa quite understands the question which we are debating. What the Committee are considering is whether we should give to the High Court the original jurisdiction provided for by this clause. One reason for not doing so is that which has been stated by many honorable members, that five Judges would not be enough for the work of a court with such an extensive jurisdiction. At the very least, from fifteen to twenty would be required, and to make the Court accessible to the great mass of the people, we should need nearly 100. I can understand honorable members taking the view that it is better to have five than to have three J udges on the Bench of an Appellate Court ; that is a question on which there might easily be a difference of opinion, though I consider thatthree Justiceswould besufficient. But we,who oppose theclause, do so because it confers such a wide jurisdiction upon the High Court, that five Judges would not be enough for the work to be done. That view is taken by a great many other legal members of the Committee besides myself. Furthermore, we knowthat to bring justice in the matters referred to the Court within. the reachof the masses of the people, we should have to appoint many moreinf erior Judges, because it is of no usetoestablish a courtunless it is accessible to the poorer classesof thecommunity. If the expense of appealing to a Court isso great that many persons cannot afford to appeal to it, justice is absolutely denied to them. But where is the expense to the Commonwealth to end? Surely we are entitled to ask that question.
– If the work nas to be done, it must be paid for.
– Yes; but it can continue to be done by the States Courts. But if jurisdiction in Federal matters is not given to the inferior States Courts, we shall have . to appoint inferior . Federal Courts to bring justice within reach of the people. One of the reasons for Judges going on circuit, is to make the Courts accessible to the- people, although the arrangement is a very expensive one. The honorable and learned member for Bendigo has shown that in Victoria it costs £11,000 a year for one Judge alone. But if the Court sat only in Melbourne, the expense of bringing witnesses here from other parts of the State would be so great that litigants could not afford to bring their cases before it. What we object to is this : The Ministry, seeing that the work of a Federal Appeal Court could not be much, have given to that Court a wide original- jurisdiction, and to satisfactorily exercise that jurisdiction a great many more J udges would be required than the number provided for. Of course, if the Constitution is mandatory on the point, we must obey it ; but I say that it is not. Section 71 provides that the judicial powers of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, but if the framers of the Constitution - many of whom were lawyers - had wished to make the provision mandatory, they would have said “A Federal Supreme Court, to be called the High Court of Australia, shall be created, and the judicial power shall be vested in it.” All that the Constitution says is that when the. Federal Court is created the judicial power of the Commonwealth shall lie vested in it. If we create only an appellate court, we shall avoid the necessity of doubling our legal machinery, and thus of creating unnecessary expense. If the clause stands, no one can say where the expense will end. We propose to strictly limit the jurisdiction of the High Court in the first instance. Then after two or three years, Parliament can, if it thinks the experience which has been gained warrants it in doing so, extend the jurisdiction of the Court, and appoint additional Judges. I hope that the clause will be omitted.
– I shall not detain the Committee very long, but it is my duty to point i out for the benefit of those who have not been present during the whole of the discussion, that the intention of the clause is not to confer upon the High Court exclusively, as some believe, the extra original jurisdiction with which it deals ; it simply permits the High Court to deal, both as a court of original jurisdiction and as a court of appeal, with the particular classes of subjects mentioned in it. That is the whole substance of the clause.
– What about clause 40 ?
– We are not now dealing with clause 40. We must consider that clause on its merits.
– The two must be taken as a whole..
– Yes ; but clause 40 has no relation to this clause, although this clause, if it is passed, will have relation to clause 40. Obviously the Committee is against me in this matter, and the honorable member for New England was correct in stating that, by moving the omission of paragraph (u), I have prevented the consideration of the most important paragraph in the clause, though not that under which the greatest amount of business would arise. If the High Court is entitled to exercise original ‘jurisdiction of any kind, it is entitled to deal as a court of first instance with cases arising under the Constitution or involving its interpretation. A strong argument can be presented in favour of the retention of each of these’ paragraphs, and undoubtedly the strongest argument can be advanced in favour of the retention of that to which I refer, and I think that a number of those who are opposed to the clause will, on further consideration, see reasons for reinstating it.
– Will the AttorneyGeneral cite a case which would come under it 1 ‘
– Cases cannot be enumerated by any other classification than that in the clause. A question affecting the Constitution may arise in any class of civil cases. All that the clause does is, not to coerce, but merely to throw the door of the High Court open to litigants who desire to enter it as a court of first instance before going to it, if they go to it again, as a court of appeal.
– Would it not weaken the High Court as a court of appeal, to allow one of its Judges to decide a matter, sitting as a court of first instance 1
– I do not think so. If one J udge sat as a court of first instance, we should still have two to sit as a court of appeal, supposing three Judges are appointed, or four, supposing five judges are appointed. But as I realize that the Committee is against me, I propose to allow the clause to be struck out on the voices, and later on to re-introduce paragraph (a), when I earnestly trust that favorable consideration will be given to the proposal to vest in the High Court an original jurisdiction in regard to cases arising under the Constitution, or involving its interpretation.
Clauses 32 and 33 agreed to.
Clause 34 (Mandamus - Prohibition - Ouster of office).
Amendment (by Mr. Deakin) proposed -
That the following new paragraph be added - “(e) Of habeas corpus.”
– I think that some of the paragraphs require explanation. I should like to know why it is necessary to insert paragraph (b), which enables the High Court to make orders, or direct the issue of writs requiring any court, not being the Supreme Court of a State, to abstain from the exercise of any pretended or asserted Federal jurisdiction. The “ asserted “ jurisdiction may belong to the Courts, and the word “pretended” is an extraordinary one to use in regard to jurisdiction. Why not use the words “any jurisdiction with which it is not invested,” or “any jurisdiction which it does not possess?”
– We have followed the terms used in the American Act, but I will consider the phraseology.
– I understand this clause gives power to the Court to issue a mandamus to an officer of the Commonwealth. Is that the reason why the honorable the Attorney-General, in the amendment in another clause of which he has given notice, does not include such a provision ?
– I should like the Attorney-General to say to whom the writs of habeas corpus are to be directed. The paragraphs at present in the clause indicate very clearly to whom the other writs are to be directed. Is it to be inferred that the High Court will be able to interfere with the jurisdiction of States Courts under State laws, or will their power be restricted to cases in which a man is arrested under the Federal law ?
– The writs will relate only to matters of Federal jurisdiction, because the High Court cannot interfere in matters of States jurisdiction.
Mr. CONROY (Werriwa).- It is very confusing for honorable members to be called upon to consider these clauses, in view of the elimination of clause 31. We cannot know how far it will be necessary, under the altered circumstances, to limit or extend the powers now provided for in the Bill, and it would be well for the AttorneyGeneral to withdraw the Bill for the present, and have it re-drafted.
– I shall, if necessary, recommit any provisions which may not be in accordance with amendments made in other parts of the Bill.
Mr. GLYNN (South Australia).- In regard to paragraph (b), I believe that the Supreme Court of the United States has power to issue a prohibition directed against a State Court. In the United States, however, the States Courts have no Federal jurisdiction, and there is no appeal from their decision, so that, if the Supreme Court could not intervene by way of prohibition, there would be no means of correcting the wrongful exercise of jurisdiction. We, however, have the Privy Council to which we can appeal from the decisions of all the States Courts, and I believe the Privy Council has always refused to issue a prohibition directed against a Colonial Court on the ground that the remedy lies by way of appeal. Therefore, I think, that paragraph (b) has been wrongly inserted.
– The provision was inserted for greater security.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 35 agreed to.
Clause 36 -
The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other court of a State from which at the establishment of the Commonwealth an appeal lay to the King in Council, shall extend to the following judgments and to no others, namely :
Every judgment, whether final or interlocutory, which -
is given or pronounced for or in respect of any sum or matter at issue amounting to or, of the value of £300; or
involves directly or indirectly any claim, demand, or question, to or respecting any property or any civil right amounting to or of the value of £300 ; or
affects the status of any person under the laws relating to aliens, marriage, divorce, bankruptcy, or insolvency ; but so that an appeal shall not be brought in the case of an interlocutory judgment except by leave of the High Court :
Any judgment, whether final or interlocutory, and whether in a civil or criminal matter, with respect to which the High Court thinks fit to give special leave to appeal : including any such judgment whichhas been given or made before the commencement of this Act, and as to which -
leave to appeal to the King in Council might at the commencement of this Act be granted by the Court appealed from ; or
leave to appeal to the King in Council has before the commencement of this Act been granted by thu Court appealed from, and up to the commencement of this Act the conditions of appeal have been complied with within the periods limited ; or
a, petition for special leave to appeal to the King in Council has been lodged and is pending at the commencement of this Act.
Mr. GLYNN (South Australia).- This is a comprehensive clause, regarding which the Attorney-General might give us some explanation. I understand that even existing appeals are affected.
– Existing appeals will be affected if they have not been actually set down for hearing by the Privy Council. This is the chief of the clauses which confer appellate jurisdiction, and honorable members will find in paragraphs (a) and (b) two matters well worthy of their consideration. Whereas the appealable amount in every State except Tasmania is £500, we have lowered the required sum to £300. In sub-paragraph 3 of paragraph (a) we have introduced the power of appeal even when£300 is not involved, provided ‘that the status of a person is in question, under the laws which this Parliament has the power to make relating to aliens, marriage, divorce, bankruptcy, or insolvency. Then in the latter part of the clause, honorable members will find a provision which will enable appeals that are now pending to the King in Council, and which have not yet been listed, to be taken to the High Court. This would not deprive the parties of the right of appeal to the Privy Council, but might enable us jn some cases, in which the Commonwealth is a party, to take them before the High Court if necessary. It would also give the other parties a similar option.
– Does the latter portion of the clause apply to paragraphs (a) and (b) ?
– Yes; although I believe it applies nominally only to paragraph (a).
– As a matterof grammar it might be interpreted as applying to (b) only.
– I will look into the matter.
Mr. GLYNN (South. Australia). - I am not quite sure that this clause does not contain a provision that is ultra vires of our powers. In section 73 of the Constitution there is a provision that the High Court shall have jurisdiction, “ with such exceptions, and subject to such regulations as the Parliament prescribes, to hear appeals.” It also provides -
But no exception or regulation prescribed by the Parliament shall preventtheHigh Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
In other words, while the Parliament may prescribe regulations and exceptions regarding any appellate jurisdiction that it confers upon the High Court, it has no power in relation to appeals which, at the establishment of the Commonwealth, lay from the Supreme Courts to the Privy Council. The honorable gentleman proposes to insert a provision which declares that there shall be no appeal where the amount involved is not more than £300.
– Is not a limitation of £500 imposed by the various States in regard to appeals to the Privy Council?
– I cannot recall the conditions which obtain in all the States, but I know that they are not similar. My point, however, is that we cannot prescribe any limitation. It is for the States to do that. In effect this clause declares that there shall be no appeal to the High Court in cases in which the amount involved is less than £300.
– It is fixed by an Order in Council.
– Yes ; and with an Order in Council we have nothing to do. If there is a prescription in an Order in Council which is applicable to a particular
State, that is the State law, with which we cannot interfere.
– Why not?
– Because we have no power to do so. We are asked to insert a provision which amounts to a limitation, although it is affirmatively expressed. Does not the affirmation of any proposition include the negation of its opposite ? We have no right to insert any such limitation in this clause.
– The point raised by the honorable and learned member for South Australia is one of interest. As the
Author of this particular -clause, I am impressed with any reading which he may have .to offer, but to me its words seem to impose only one restriction upon this Parliament - a restriction against the insertion of any restriction. We do not impose any restriction, but we find that one has been imposed under an Order in Council. That restriction is that the amount involved must not be less than £500. We do not propose to increase that restriction but to decrease it. As I understand the Constitution, we cannot increase the restriction imposed so as to make it more difficult to appeal from the Supreme Court of a State to the High Court than it was, at the time of the passing of this Bill, to appeal from the Supreme Court of a State to the Queen in Council. As long as we remove restrictions, instead of imposing them, it seems to me that we are acting within the powers conferred by section 73 of the Constitution.
Mr. HIGGINS (Northern Melbourne).I understand that clause 35 which has been passed relates merely to appeals from Justices of the High Court, and from the Supreme Courts as courts of first instance. But I apprehend that the clause under discussion is meant to apply to appeals in matters of Federal jurisdiction or otherwise?
– Then the object of this clause is to define the limitations of the power of appeal - whether in Federal matters or not - from the decision of the Supreme Court of a State. May I therefore ask the Attorney-General if he has considered whether this provision confers upon the ‘High Court - as it ought - a clear right to hear appeals from the Full Court of a State ? It declares -
The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other court of a State, from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council, shall extend, &c.
It was certainly the intention .of the framers of the Constitution to give the High Court the right to hear ordinary appeals from the Full Court. In our ordinary practice a Judge of the Supreme Court first decides any case which comes before him. Then if a litigant is dissatisfied he appeals to the Full Court. If defeated there, he can, at present, appeal to the Privy Council. The intention of the framers of the Constitution was to give the High Court the right to deal with those cases which would otherwise have gone to the Privy Council. I apprehend that the Attorney-General has no idea of robbing the Full Court of its right to deal with appeals in the first instance ; and I merely wish him to consider whether .under this clause he has secured to the High Court a right to deal with appeals from the Full Courts. The Supreme Court of a State has been taken to mean only one Judge.
– It may mean one or more.
– In framing section 73 of the Constitution the Judiciary Committee intended to cover, by the general words which are there used, an appeal not merely from a Judge in the first instance, but from the Full Court. I agree that technically the Supreme Court is the Full Court.
– I think that the point which has been raised by the honorable and learned member for Northern Melbourne . is a very important one, but it is not within our power to take away from the Supreme Courts, however they may be constituted, the right of appeal to the High Court. Amongst the appellate powers conferred upon the High Court by sub-section (2) of section 73 of the Constitution is the power to hear appeals from the Supreme Court of any State. It does not matter whether the Court is composed of one Judge on!)’, or two or three Judges: it is the judgment of the Supreme Court. There may be internal arrangements, according to the State laws, as to how the Supreme Court jurisdiction shall be exercised. If a litigant obtains a judgment from the Supreme Court of a State irrespective of whether that tribunal consists of one Judge or six Judges, it seems to me that such judgment clearly come3 within the scope of section 73 of the
Constitution. Nothing we can do can derogate from that.
– But for the sake of clearness, I think that when we speak of appeals from the Supreme Court we ought to say “ Full Court.”
– Clause 36 does not purport to give any appellate jurisdiction. It assumes that appellate jurisdiction is conferred by the Constitution. It then proceeds to exercise restrictive powers, and to say that the appellate jurisdiction of the High Court with respect to the judgments of the Supreme Courts - plainly referring, it seems to me, to the jurisdiction already existing under the Constitution - shall extend to certain judgments and to no other. That is an exercise, not of enabling powers, but of the restrictive powers conferred by the Constitution. Therefore, it seems to me that the words “ Supreme Court of a State “ must be interpreted to mean what they undoubtedly mean in section 73 of the Constitution.
– I would ask the Attorney-General if this provision does not infringe the provisions of section 73 of the Constitution ?
– It merely enlarges the power of appeal from the Supreme Courts of the States to the High Court.
Mr. ISAACS (Indi).- There is one point to which I should like to call the attention of the Attorney-General. It is contained in sub-clause (a), and it may require considering from the aspect indicated by the honorable and learned member for South Australia, Mr. Glynn. The concluding lines of sub-clause (a) are -
That may mean that, even although the Supreme Court of a State granted leave to appeal upon an interlocutory judgment, it would not He. There is a provision in the Order in Council, which existed at the time of the establishment of the Commonwealth, by which the Supreme Court may grant leave to appeal from an interlocutory judgment, and I am afraid that these words might he read as taking that power away.
– I am inclined to think, in the light of the illustration just given, that we may possibly have transgressed here, and I shall reconsider the matter.
Clause agreed to.
Clauses 37 and 38 agreed to.
The judicial power of the Commonwealth shall be exercised by Federal Courts, or by Courts of the States which are by the law of the Commonwealth invested with Federal jurisdiction.
– Unless this clause is modified, I think it will absolutely confer original jurisdiction on the High Court.
– No. It is only a general declaration to bringthe whole judicial power of the Commonwealth conferred by the Constitution into effect in this measure.
– Quite so ; and that is why I say that the clause ought to be modified. The principle of the drafting of this Bill may be very good, but it is very puzzling, because we confer powers, and then proceed to limit and cross-limit them. We must watch a clause like this, because it is very general, and unless one understands the subsequent limitation, we are puzzled to know to what extent powers are conferred. This clause confers all the powers, original and appellate, on all the Federal Courts ; but there is only one court under the Bill, namely, the High Court, though others may be created subsequently.
– This clause is only declaratory of the Constitution.
– That is all.
– Then why is the clause put in, seeing there is only one Court in the Bill, the High Court ?
– But hereafter other courts may be created by Act of Parliament.
– What the Constitution declares is that judicial power shall be vested in the Federal Supreme Court.
– And in such other Federal Courts as may be created.
– But there are no other Federal Courts, so the High Court must be meant. Does the clause include original as well as appellate jurisdiction? I merely draw attention to this matter so that by this clause we may not be giving that original jurisdiction which, by a previous decision, we have taken away.
– The clause does not confer any further powers.
– I desire to call attention to the words “shall be exercised by Federal Courts.” I do not know what other courts are referred to, because at the present time there is only the High Court created by the Constitution, and no others are proposed in the Bill. The word “which” may refer to the Federal Courts ‘ as well as to the Courts of the States ; and I see no meaning in the clause, nor necessity for it.
– The honorable and learned member should look at section 71 of the Constitution.
– But we are not creating other courts, and so far as the judicial power vested in the High Court is concerned, it is vested by the Constitution, and this Bill adds nothing to it.
– The clause is simply declaratory.
– Then what is the use of dragging in the expression “ Federal Courts,” when there are no other courts in existence 1 The clause is confusing and unnecessary.
– It seems to me that a High Court, when constituted, can exercise original jurisdiction without any declaration in this Bill- If this Bill, as an Act, comes before a court, especially before the High Court, for interpretation, the Judge, in the absence of the words “be it declared,” or any sign of its being declaratory, will ask what is the meaning of the words. Judges, as we know, try to give a meaning to everything in an Act, but even they fail sometimes. Clause 31 is at present out of the Bill, and if the Bill be finally passed without it, the Judge may say - “ Here is a clause not vesting jurisdiction, but declaring that the Court should exercise the judicial power of the Commonwealth, which includes the optional original jurisdiction under section 76.” This clause would have been in entire harmony with clause 31.
– There is no occasion for the words in the clause.
– And I am afraid that the words may be interpreted as having the meaning of clause 31.
– That is not possible.
– Section 71, leaving out irrelevant words, provides that the judicial power of the Commonwealth shall be vested in the High Court and in such other courts as are invested with Federal jurisdiction. Section 75 of the Constitution provides that in certain matters the High Court shall have original jurisdiction, while section 76 says that Parliament may make laws conferring original jurisdiction on the High Court. It is even possible to interpret clause 39 as a declaration that Parliament 4d is conferring original jurisdiction which must be exercised by some body, namely, the Federal Court, created in pursuance of the Constitution. I do not say that we, who know what is intended, would interpret the clause in that way, but there is no knowing how it may be interpreted by those whom the Attorney-General knows from frequent experience take no notice of what is said in debates when they are construing an Act. At the best, the clause is a purely declaratory statement which has no validity, and at the worst, it is’ am enacting clause which may produce results we little anticipate at the present moment. As prudent men, it is not desirable for us to leave dubious words in the Bill under such circumstances.
– I thoroughly agree with the arguments advanced by the honorable and learned member for Corinella. Section 71 of the Constitution is clear, and if it is merely wished to give the powers therein contemplated, we should use the words of the section. But there is no necessity to do so, because the provision is already in the Constitution, and will be observed. There is no doubt that this clause might raise very serious debate as to whether the powers conferred on the courts in sections 75 and 76, not only as to original jurisdiction, but as to additional original jurisdiction, would not be vested in the Court. If the clause is merely, in conformity with section 71 .of the Constitution, there is no necessity for it ; on the other hand, it may open up a wide door of doubt - so wide that, considering we have already secured the exclusion of clause 31, it should not be allowed to remain. If the clause be removed, no dispute can arise, and if it includes what is contemplated in sections 75 and 76 of the Constitution, or there is any likelihood of its doing so, it ought not to remain.
Mr. HIGGINS (Northern Melbourne).I do not think we ought to strike out the clause until the Attorney-General has had time to consider it with reference to the striking, out of clause 31. It may be that there are reasons which we do not know at present for the retention of this clause. I agree with the honorable and learned member for Werriwa that the clause .is either unnecessary or dangerous, but at the same time I suggest that if the Attorney-General will undertake to recommit it, the purpose will be answered.
– I am much obliged to honorable and learned members for the assistance they are giving me in this connexion. I only too readily welcome any suggestions, because it is impossible in a measure so vast and intricate as this to avoid some risks, which are certainly greatly diminished by the assistance which honorable and learned members can lend. It does not appear to be possible that the danger apprehended by the honorable and learned member for Corinella can arise, because in section 76 of the Constitution the optional jurisdiction we have the power to confer is named and defined. The only optional jurisdiction we can confer is that in the four sub-sections, and I do not think it can be contended that either any one or all of them together ‘can be taken to be conferred on the High Court simply by a general declaratory clause of this kind.
– Why not ?
– The object with which the clause was inserted was simply to make it clear that the Bill went as far as the Constitution - that whatever the Constitution conferred would be conferred by this measure. The High Court is created on the one side, and the Federal jurisdiction of the States Courts on the other. The clause meant to imply that, so far as they are concerned, it conveys the whole judicial, power of the Commonwealth.
– Would it not be better to use the words, “ until other Federal Courts are established”?
Mr-. DEAKIN.- I- will consider that point.
– The matters referred to in section 76 of the Constitution are within the judicial power of the Commonwealth.
– Tes, when they are specially conferred, but not until then.
– Could it not be provided that those general words are to be limited by the subject-matter to which they relate - the powers the Constitution gives them ?
– I recognise the assistance I have received, and will postpone the clause in order to reconsider it.
Mr. L. E. GROOM (Darling Downs).Is it intended by the” clause to also confer criminal jurisdiction ?
– Not directly ; only by association with other Acts.
– Clause 39 does not confer any jurisdiction.
– No; it confers judicial power, but not jurisdiction.
– The remaining clauses dealing with criminal matters deal mostly with questions of criminal procedure, and I want to know if the Attorney. General would at a later stage give his opinion as to whether the Constitution confers criminal jurisdiction, or whether it will be necessary to invest the courts with that power only as each Act is passed.
Clause 40 -
The jurisdiction of Federal Courts shall be exclusive of the jurisdiction of the several Courts of the States iri the following matters : -
Matters arising under any treaty ;
Matters affecting consuls, or other representatives of other countries, in respect of any act done by them in their capacity as such consuls or representatives ;
Suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State ;
Suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State ;
Suits against the Commonwealth ; (/) Matters in which an order or writ is sought to be obtained against an officer of the Commonwealth in respect of some act done or omitted to be done by him in the execution of his duty.
Mr. HIGGINS (Northern Melbourne).I have tabled an amendment on this clause, to which I should like to direct the attention of the. Committee. Of course I tabled it on the assumption that clause 31 was to be carried as it stood in the Bill, and I shall bear in mind that it has been dropped. The object of clause 40, as it stands, is to prevent the States Supreme Courts- from dealing with matters which, by the Constitution, pertain to the original jurisdiction of the High Court.
– Nearly all; not quite all.
– With some modifications perhaps. The clause practically excludes the Supreme Courts of the States from dealing, for instance, with matters arising under any treaty, or a matter in which the Commonwealth is a party. Suppose an ordinary action against the Commonwealth by a public servant. There would, if this clause be passed, be no right for a Supreme Court to entertain it even if it were only an action to recover arrears of salary.
I wish to give the Supreme Courts of the States original jurisdiction not only in those matters which are referred to in the expunged clause 31 - matters “ arising under the Constitution or involving its interpretation,” or “ arising under any laws made by the Parliament,” or “ relating to the same subject-matter claimed under the laws of different States “ - but also as to those matters as to which original jurisdiction is conferred on the High Court by the Constitution. Technically, I think there is no objection to there being, as to the matters referred to in section 75 of the Constitution, concurrent jurisdiction in the States Supreme Courts and the High Court It is a mere question of expediency. I intend my amendment to have the effect of allowing litigants to have access by way of original jurisdiction to the court that is nearest to them in point of place or in point of time - whichever they think will give them the speediest redress. I had some experience four, or five years ago as chairman of a Royal Commission for the reform of legal procedure.
– Which has not been reformed.
– It has in some respects. If I did not succeed in other matters, I succeeded in learning a lot ; and one thing I learned was that there is nothing more important than to secure, to people who are aggrieved quick remedies near at hand. It is with that view that I suggest that original jurisdiction should be given to the States Supreme Courts, even though ultimately perhaps the case would have to come before the High Court in one form or another if there be an appeal. Suppose, for instance, a case arising under the bankruptcy laws which we are to make, or a commercial case concerning an ordinary bill of exchange, or a case as to the custody of an infant where there is nothing more than family relations involved.
– Why not give the County Courts jurisdiction ‘(
– I rather think that I should go as far as that ; but I want if I can to prevent mixing up two issues at the same time. The present Bill reserves to the High Court jurisdiction in matters affected by section 75 of the Constitution. The High Court will consist of five Judges at most. The States Supreme Courts have 27 Judges. The States Judges, being more numerous, will be more accessible to people than the
High Court will be for original purposes. There will be more of them to do the work ; they are confined to a limited area ; and therefore they will be able to deal more readily with applications that are made. It is in that view that I ask the AttorneyGeneral to consider whether it is not well to confer as wide jurisdiction as possible upon the Supreme Courts of the States.
– In cases such as the honorable and learned member mentions - bankruptcy cases, and so on - there is nothing to prevent those being considered by the States Courts.
– I admit that the Bill provides in clause 41, with great limitations, power for the States Courts to consider those matters which I have mentioned - such matters as bankruptcy cases and bills of exchange cases. But in order to make the scheme dovetail, I have to refer to the whole subject covered by the amendment. I shall, of course, afterwards ask the AttorneyGeneral to consider matters under clause 41. I think he might simplify clauses 40 and 41, which are hard to follow, by giving the States Supreme Courts original jurisdiction in the matters which now appear in clause 31, and also in those matters which are referred to as exclusive in clause 40.
– The whole of them 1
– I think so. I do not see any objection. For instance, why on earth should not suits against the Commonwealth be tried in the States Supreme Courts t It must be remembered that if at any time the States Supreme Courts should fail in dignity and strength, there is full power in this Bill to withdraw jurisdiction. The matter is not irremediable. Looking at the present condition’ of things throughout Australia, the courts being fairly well administered, I cannot see any harm in allowing the Supreme Courts of the States to entertain a suit against the Commonwealth or by the Commonwealth.
– No Australian State permits itself to be sued except in its own courts, and the Commonwealth is asked to submit to courts which are not its own.
– But is not that objection rather technical ? The Government of England would not allow itself to be sued in France J but we are speaking of Australia.
– The New South Wales Government would not allow itself to be sued in a Victorian Court.
-We are speaking now of a federated Australia, and I do not see that any harm oan be done. There is really no practical difficulty in the matter. If the Attorney-General is so wedded to a theory that he is to close his eyes to the existence of the States, and the State Attorney-General is to close his eyes to the existence of the Federation, I have nothing to say. I am quite sure that he simply desires to get a practical Bill - a Bill which will meet the needs of the people as nearly as he can, which will involve no extra expense, and which will leave to the High Court the original jurisdiction which has been given by the Constitution. The Committee has deprived the High Court of original jurisdiction as to the most numerous class of matters which may arise under Federal laws. But as it has not been given to the High Court it must be given to the Supreme Courts of the States. I consider that clause 41 is too restricted. I think that, having regard to what has been done to-night in regard to clause 31 we must extend clause 41. I would suggest that in place of clauses 40 and 41, we should have one clause. With that object in view, I move -
That all the words down to paragraph (a) be omitted, with a view to insert in lieu thereof the following words : - “ The Supreme Court, in each of the States, shall have original jurisdiction in the following matters : - “
That is to say, in the matters which are mentioned in paragraphs (a) to (f) of clause 40.
-Subject to an appeal to the High Court.
– That will appear in another clause.
– It ought to be very distinctly stated in that clause.
– If my honorable and learned friend will look at clause 41, hewill see that it is provided for. With regard to appeals to the High Court we could have a separate clause.
– Has the honorable and learned member considered whether paragraph (c) would confer upon Victoria the right to sue New South Wales in the Victorian Supreme Court?
– I see no objection.
– That is the one case where I do see a doubt.
– I admit there may be a doubt. But I would treat the State as any defendant is treated. You would have to find out where he is, and sue him primâ facie where he is. The ordinary rule as between jurisdictions is that you follow your defendant. . We might fairly say that if a State Court is to entertain a suit against a State Government it must be in the State in which that State Government has jurisdiction. That is the only matter as to which I feel any doubt. At the end of the clause I propose to add the following words : - “(g) arising under the Constitution, or involving its interpretation ;
There will be no objection to striking out admiralty and maritime jurisdiction if it is thought that it is already conferred, but I included the paragraph in order to exhaust the matter. It will be seen that I am not proposing to deprive the High Court of any jurisdictibn which it has ; to shear it of its dignity, importance, or value, such as it has. I should like to see the courts accessible to the people. I should like to see that a man injured in Adelaide is able to bring his action in Adelaide right off, without having to wait until the High Court shall come there, or without having to go to Bombala. The expense of dragging lawyers and witnesses about is a tremendous one. In our Commission report we went so far, even within the narrow limits of Victoria, as to recommend the diminution of the number of assize towns in order to avoid the expense of dragging witnesses and Judges about here and there. I think it is a good principle to follow. If you have a court with sufficient weight, by all means utilize it for the purpose of all the jurisdiction for which it can possibly be utilized. I should suggest, therefore, that as clause 31 has been omitted, there are still stronger reasons for adopting my proposal.
– It may be regarded as presumption, if not profanation, for a layman to intervene in this discussion. But when the honorable and learned member for Northern Melbourne spoke of the desirability of giving the Supreme Courts of the States concurrent jurisdiction with the High Court, it occurred to me that, as there is no one here to put in a word for the junior Bar I should do so. If the Supreme
Court of a State is to have concurrent jurisdiction, I do not see why the county courts should not also have concurrent jurisdiction in the smaller matters mentioned by the honorable and learned member? Why should not the average police court lawyer also have a ‘ chance under the Bill ; why should not the police courts have concurrent jurisdiction in small matters ? Supposing that a man wishes to recover 40 shillings from the Commonwealth, why should he be required to go to the Supreme Court of the State to do so ? Is there any reason why he should not be entitled to go to any petty debts court and sue for the debt there ? I regret my inability to follow the intricate reasoning of the honorable andlearned member for Northern Melbourne. But I heard him state, in a very emphatic way, that if the second reading of the Bill were carried, he would do his best to make the High Court the strongest Court in Australia. Will it make the High Court the strongest Court in Australia to give the other courts the same jurisdiction, and to lessen the business with which in the ordinary course it would deal ? This new attitude does not seem to be quite consistent with the assurance of his second-reading speech.
– It will not in the least weaken the High .Court; it will simply bring convenience to the public.
– In that case, why does not the honorable and learned member propose in his amendment to give jurisdiction to the county courts, small debts courts, and police courts ?
– I desire to deal with one question at a time. I. admit that there is a great deal’ of force in saying that we ought in small matters to give jurisdiction to the police courts.
– The honorable member will see that that is partly provided for in clause 41.
– I am glad to hear that it is, because I feel that if we are to give the fullest facilities to the public, we ought to give concurrent jurisdiction to the courts all round. I should like, as a layman, to feel that I thoroughly understood the tortuous arguments of the legal members of the House. ‘
– Do not say that.
– Well, their reasoning is highly technical at any rate, and partakes of the atmosphere of courts, which I suppose agrees as slightly with other honorable members as with me. Except when absolutely necessary I have avoided courts of law, and am therefore not so familiar with legal forms as is desirable in those who have the privilege of making the laws which these courts interpret. And, speaking frankly, much as I appreciate the great talents and high character of the honorable and learned member for Northern Melbourne, I cannot wholly appreciate his attitude towards this measure. He belongs to a party, if I may be permitted to say so without offence, that desires to exclude every English commodity from * this country ; but apparently there is one thing that he is unwilling to exclude from it. We are to have everything Australian, with the solitary exception of Australian law. We are to have a branch stream of the great river of British justice coursing through the plains of Australia. That was the honorable and learned member’s contention. In some respects the honorable and learned member recalls a famous countryman of his who advised his fellows to burn everything that came from England except its coals. He seems to me a trifle less consistent than Dean Swift, because, although he rejects everything else, he is still willing that Australia should go to Britain for finality in law. That may be a . very good principle. I do not say that it is not ; but it seems to me that if we can obtain good law from England we should be able to secure other good things from the same country.
– Preferential trade, for example.
– Doubtless when that matter comes up for consideration the honorable and learned member for Corinella will take the stand usually adopted, and see that the interests of Castlemaine are not overlooked.
– Is that a fair taunt ? Is it not rather small ?
– Possibly it is ; I will not dispute that the honorable and learned member is an authority. I have not risen to throw any light upon this problem from a legal point of view ; but I shall not vote for the amendment in default of evidence that it would . be a benefit to the people, or unless the honorable and learned member is prepared to extend it so as to give jurisdiction to the smaller courts. If that were done, people in poor circumstances who desired to obtain redress might secure it at the least possible expense.
– I desire to point out to the honorable member for Coolgardie that there are certain matters which, under the Constitution, are inseparably vested in the High Court, but in regard to which . the honorable and learned member for Northern Melbourne contends the High Court should not have exclusive jurisdiction. He urged that in the’ ordinary course of legal business they might also be dealt with by the States Courts.
– I must confess that I limited my proposal to the Supreme Courts of the States, but I have no objection to extending it to the other Courts.
-The honorable and learned member suggests that the States Courts generally should exercise this concurrent jurisdiction. There are certain matters now proposed to be vested exclusively in the High Court, which I think might fairly be left to the various Courts of the States having jurisdiction.
– To what matter does .the honorable and learned member refer ?
– To the suits against the Commonwealth mentioned in paragraph (e) ; cases against the Commonwealth.
– Perhaps that might be done.
– An action against the Commonwealth might be dealt with either in the Supreme Court or the County Court.
– Would the honorable and learned member include the suits named in paragraph (d) ?
– I think that paragraph refers to suits brought by the Commonwealth against a State.
– Yes ; surely the honorable and learned member would not include them in his proposal.
– I think that those cases should be dealt with exclusively by the High Court, and that the matters referred to in paragraph (/) might also be exclusively vested in the High Court.
– Would the honorable and learned member allow treaty matters to be dealt with as proposed?
– I do not think so. We are not under any obligation to provide that they shall be dealt with exclusively by the High Court. They do not arise under the Federal laws or under the Constitution. Hitherto, if any cases of the kind have occurred, they have been dealt with by the Supreme Courts of the States. They would not arise perhaps once in 100 years.
– I do not know that there have been any, but if a case of the kind arose it would affect Federal interests and obligations.
– What about extradition treaties ?
– They are expressly provided for. There is no occasion for vesting matters affecting consuls exclusively in the High Court.
– Only in their representative capacity.
– I find that according to Curtis, page 9, States Courts in the United States of America are now at liberty to undertake suits to which consuls are parties.
– Does that power refer to actions against them in their private, or in their representative capacity ?
– It refers to any suits affecting consuls.
– The power was first extended to cover all suits against consuls. In order to meet that we have limited the power to cases affecting them in their representative character.
– -It was first thought, in the United States, that the power to hear any matter affecting a consul in his official capacity should be confined to a Federal Court. That provision, however, has been reversed of late years, and consuls can now be sued in the States Courts. I think that in all the matters dealt with in paragraphs (a), (6), and (e) there ought to be concurrent, and not exclusive, jurisdiction.
– The question which has been raised as to- the amendment proposed by the honorable and learned member for Northern Melbourne, and to which reference has been made by the honorable member for Coolgardie, shows how difficult and how dangerous it is for the Committee to proceed with this measure, in view of the fact that clause 31 has been eliminated. We really do not know where we shall land ourselves. If we are to have only an appellate court, it is perfectly clear that we must have something of the kind proposed by the honorable and learned member for Northern Melbourne. If we omitted paragraph (1) of clause 41, and the first three words in paragraph (2), as suggested by the honorable and learned member for South Australia, Mr. Glynn, we should confer sufficient power on “ the smaller Courts. I think the amendment should be carried ; but we should not strike out paragraph (e) of clause 40, as suggested by the honorable and learned member for Northern Melbourne.
– The suggestion made by the honorable and learned member for Bendigo is that we should retain some exclusive jurisdiction. The question raised by the honorable and learned member for Northern Melbourne is whether there shall be any exclusive jurisdiction in the High Court.
– The honorable and learned member’s contention is practically that there should- be no exclusive jurisdiction in the High Court. Where we have power to give original jurisdiction, we are, in effect, vesting it in the Supreme Courts of the States and are making the High Court practically only an Appeal Court.
– The honorable and learned member is going beyond that.
– We are in this position : that, having struck out clause 31, we must give this jurisdiction to the Supreme Courts. Otherwise it will not be vested in any court, because we have decided that it shall not be vested in the High Court. I submit that, as the Government agreed to the omission of clause 31, they should withdraw the measure, and have it re-drafted in accordance with the opinion of the Committee. This is a verv big matter, and I think that before going further we should determine how many Judges are to form the High Court. Why did we decide to refuse to give this original jurisdiction if we did not intend to vest it in the Supreme Courts? It must be vested either in the Federal Court or in the States Courts. We determined that it should not be given to the High. Court, because it would create more work than a court of five Judges c’ould perform. But I am willing to go even further than the proposal of the honorable and learned member for Northern Melbourne, and to confer a certain amount of Federal jurisdiction upon the inferior courts.
– Within the limit of their present jurisdiction. The honorable and learned member would not allow a justice of the peace to decide a suit between States ?
– Of course, within limits similar to those which confine their present jurisdiction. I think that suits between States might be left wholly to the High Court, but if Federal (jurisdiction . is not given in some degree to the inferior courts, injustice will be done to a good many people. At the present time, the PostmasterGeneral can be sued for negligence only under the Claims against the Commonwealth Act, which ceases to have effect directly this Bill becomes law. But supposing the Bill was law, and a man wished to bring an action against the PostmasterGeneral. Take the case of a line repairer, who thought that he had been unjustly deprived of a couple of weeks’ earnings - an amount representing £4 or £5. Why should such a suitor be compelled to bring his case before a Supreme Court, where the writ would cost almost as much ? It would be absurd to ask him to do so. I trust, therefore, that provision will be made under which the inferior States Courts can entertain such cases.
– I think that the honorable and learned member for Werriwa has slightly confused two different matters. The amendment has no relation to clause 31, which contained the proposal of the Government to confer additional original jurisdiction upon the High Court. Clause 40 does not relate to additional jurisdiction at all. It deals only with the compulsory jurisdiction provided for by the Constitution, and only with a portion of that jurisdiction. Therefore, there is nothing in common between the clauses, and the amendment has nothing to do with clause 31. What the Committee refused to do, in striking out clause 31, was to give the High Court more than the compulsory original jurisdiction of the Constitution. Clause 40 provides that part of that compulsory jurisdiction shall be confined to the High Court.
– But when we decided to omit clause 31 we practically dealt also with clause 3, and were limiting the work to be done by the High Court with the intention of limiting the number of the Judges to be appointed to that court.
– I do not quite follow the honorable and learned member. I should like now to point out what I think should be done with clause 40. I agree very largely ‘with what has been said by the honorable and learned member for Bendigo, and I am therefore compelled to vote against the amendment of the honorable and learned member for Northern Melbourne, because I think that some matters at all events should be exclusive in the High Court, and if there is only one matter exclusive in the High Court we must vote against that amendment. The proposal which I understand the honorable and learned member for Bendigo to make is that the clause in effect should provide that the Federal High Court should have exclusive jurisdiction of suits dealt within paragraphs (c), (d), and (f). I think there is great reason for each of these, and I should feel disposed to support that proposal. It would be anomalous, I think, to allow a State Court to summon to its bar another State. I think it would interfere with what we may fairly call the relative independence of the States. Then, in suits of the Commonwealth against the States the same principle applies.
– Surely, as regards paragraph (d), the Commonwealth has its choice as plaintiff, and it cannot hurt the Commonwealth to give jurisdiction to a State Court?
– I think it would be wrong to make a distinction in that case, and allow the Commonwealth to summon before the bar of any one State any other State, because the honorable and learned member will see that there is no distinction here. Why should the Commonwealth sue the State of South Australia before a Victorian State Court ?
– I agree with the honorable and learned member there. I was thinking of matters brought before the courts of the State concerned.
– There must be exclusive jurisdiction to some extent. I do not think it is easy to clearly draw the line of distinction. Besides, I do not think there would be much use in giving the optional power, because the Commonwealth would always go to its own court.
– Would its own Court be partial ?
– I think not ; I think it would be perfectly independent and impartial, but I see nothing to be gained by drawing the distinction even if we could overcome the difficulty. With regard to paragraph (f), dealing with mandatory orders to officers of the Commonwealth to do something in the execution of their duty, it seems to me more appropriate that the Commonwealth Court should be the tribunal to command the execution of a duty by a Commonwealth officer under a Commonwealth law. I can see, of course; that there could be an order by a State Court, but I think there is a very great deal to be said for reserving matters dealt with in that paragraph to the Commonwealth Court. However, I do not feel so strongly upon that paragraph as upon paragraphs (c) and (d).
– I think those are most important.
– I think the other ought to be dealt with in the same way .
– There is no occasion to fight about the matters dealt with in paragraph (d). If we leave exclusive jurisdiction in matters dealt with in paragraph (c) it will be quite enough.
– I think there should be exclusive jurisdiction with respect to paragraphs (c) and (d), and also paragraph (f), though I do not feel so strongly about paragraph (f).
– When the honorable and learned member for Northern Melbourne was speaking upon this clause, I interjected to ask him how he regarded paragraph (c). I understand that the honorable and learned member is now sufficiently persuaded that there should be exclusive jurisdiction in respect to matters dealt with in paragraph (c).
– I thought that at the time I admitted that was the only case.
– I think that as regards paragraph (c) those matters ought to be reserved for the Commonwealth Courts. There would be endless difficulties arising if two States had a suit, and it could be heard in a State Court of either. It would be still more extraordinary if it could be heard in the court of a third State. As regards paragraph (d), I really see no reason for giving exclusive jurisdiction to the High Court. In the cases dealt with in that paragraph, the Commonwealth’ is plaintiff, and the Commonwealth may be just as anxious to get a speedy decision as a State would be in the converse case, and it may be just as unable to proceed in the High Court, under the limitations of time and space, as it would be in the alternative proceedings. There can be no harm done if the Commonwealth is permitted to proceed in a State Court.
– I understood the honorable and learned member to say that there should be some limitation with respect to paragraph (d) ?
– That is so. I would limit paragraph (d) to the extent that if the Commonwealth proceeds in a State Court against a State, it must proceed in the court of that State against which it is proceeding. I would not, for instance, allow the Commonwealth to sue Queensland in a State Court of New South Wales.
– That can be settled by the procedure clauses.
– Under paragraph (e) a suit against the Commonwealth by a State, I think, would have to be brought in the Supreme Court of the State.
– Under paragraph (e) a suit against the Commonwealth by a State would have to be brought either in the High Court, or in a court of the State concerned, and not in the court of some other State.
– If we allow concurrent jurisdiction to the Supreme Courts, under paragraph (e), I do not see any reason why we should not allow concurrent jurisdiction under paragraph (f). I see substantial reasons why jurisdiction underparagraph (f) should be prompt and speedy. There are many cases in which it will be much more desirable to get a mandamus if you are entitled to it, at once, than it would be to be able to bring a suit for damages for the recovery of money in another way. There is a case sub judice across the Murray at the present time, in which the one ground of complaint has been that of excessive delay, and similar delays might arise if the High Court alone had jurisdiction under this paragraph. I think we can safely trust the Supreme Courts of the States not to give a mandamus against a Commonwealth officer merely because it is a Commonwealth officer who has been proceeded against for the order. Therefore, I think that first of all matters under paragraph (c) should be exclusive-
– And under paragraph (a)?
– Matters under paragraphs (a) and (b) will, I think, be somewhat like black swans used to be before Australia supplied so large a stock of them.
– Suppose an offender was wanted, and his extradition was sought for under the Extradition Act, would not that come under paragraph (a) ?
– I am not prepared to say whether it would or not at the present moment.
– I do not think it would I think it would be under the Act.
– Even if it is, I do not think that any harm would be done by making the jurisdiction in this case concurrent.
– There would be, if the matter came under a treaty, and not under an Act. We should be brought into relations with foreign powers.
– Surely we can trust the Supreme Courts in all the States to deal with such matters.
– It is not a question of trusting them ; it is a Federal responsibility outside of the States or their courts.
– If that argument be carried to its conclusion it would be against any Federal matters being dealt with by States Courts, which is going very much further even than the Attorney-General’s Bill goes. I should personally be prepared to vote to give concurrent jurisdiction except in respect to paragraph (c), and limiting (d) (e) and (f), so that a suit shall be brought in the State concerned. That of course could be dealt with in the procedure clauses. The Attorney-General has been very obliging for some little time past, and perhaps he can see his way to accept these proposals.
– I suggest to the Attorney-General that he should abandon paragraphs (e) and (f) also. In view of the apparent intention to cut down the number of Judges, it will be necessary for us to afford some opportunities to private individuals for bringing such suits before the States Supreme Courts. With regard to paragraph (e), a good many of the suits will relate to matters of negligence, and will be brought by private individuals against the Commonwealth. In cases of very great importance the Commonwealth might be able to insist upon their removal to the High Court under clause 45. I should like to see the jurisdiction of the States Courts extended to the matters referred to in paragragh (f), because by striking out clause 31 we have prevented actions arising under the laws made by the Commonwealth from being brought in the High Court as a court of first instance. As the Bill stands, officers acting under the statutes we pass regulating trade or commerce may do, or refuse to do, certain acts, and thus give rise to actions for damages, which must be brought in the States Courts. If, however, it is desired to compel : an officer to do an act which he has abstained from doing, it will be necessary to bring the matter before the High Court if paragraph (f) stands. The peculiar position is this - that if a suitor wanted to secure damages he would have to go before the State Court, whereas if a mandamus were required, an application would have to be made to the High Court. It would be absolutely impossible for a suitor to bring alternative claims for damages, or a mandamus in a State Supreme Court. I can only conceive of matters arising under treaties in connexion with extradition cases, which are regulated by the various State and Imperial Acts. If we wish to regulate extradition matters, we shall have to pass a Federal Act, and as we have declined to give the High Court original jurisdiction in matters arising under laws made by this Parliament, we shall have to rely upon the States Courts. However, these matters are not likely to prove of any great importance.
Mr. HIGGINS (Northern Melbourne).I always recognise that there is force in the view that the High Court alone should deal with matters arising between State and State. Speaking for myself, I should be quite prepared to trust the States Supreme Courts in such cases. For instance, I should be content to leave the Supreme Court of New South Walestodecide a matter in which Victoria and New South Wales were in conflict, because I do not think there would be any practical danger. But if we have a High Court it will be as well to restrict these matters, if anything, to its jurisdiction. I should not, therefore, object to alter my amendment by retaining the words at the opening of clause 40 and paragraph (c). I do not think that anything would be gained by allowing the rest of the clause to stand. Paragraph (d) relates to suits by the Commonwealth against a State, or any person being sued on behalf of the State, and as the Commonwealth has its own choice it can bring the matter before the High Court if it deems it expedient. There are cases, however, in which it might be convenient for the Commonwealth to have the matter determined by the Supreme Court of a State, and I do not think we should be injured by the excision of the provision. If the words which I suggest are retained in the clause, I propose to add later on the words indicated in the amendment, of which I have given notice. In the meantime, I desire leave to withdraw my amendment.
Amendment, by leave, withdrawn.
– I suggest to the honorable and learned member for Northern Melbourne that it would be better to test the whole question of vesting the States Courts with jurisdiction under clause 41, because this clause really deals only with exclusive jurisdiction. If the honorable and learned member will consent to do that, perhaps the Attorney-General will consider another point. It seems to be assumed that clause 41 itself confers original jurisdiction, but I do not think it does. It only follows clause 39, which provides that the judicial power of the Commonwealth shall be exercised by Federal Courts or by the courts of the States, which are by the law of the Commonwealth invested with Federal jurisdiction. That is to say, by laws which are to be subsequently passed. Clause 41 then provides that the investment of jurisdiction is to be subject to certain limits as to locality, subject-matter, or otherwise ; therefore it appears to me that clause 41 confers no jurisdiction. I think that under this clause we should prescribe the limits of exclusive jurisdiction, and then, by an addition to clause 41, invest with general jurisdiction the several courts of the States. It is almost impossible to define the courts that are not Supreme Courts, and I suggest that between this and the next discussion of the Bill, the matter of defining the subordinate courts may be considered.
Mr. MAHON (Coolgardie). - I understand that some remarks which I previously made have been taken by the honorable and learned member for Corinella as casting some reflection on him. I had no intention of doing anything of the kind, and I desire to withdraw any remarks to which the honorable and learned member may take exception.
– I shall have pleasure in considering the suggestions made by the honorable and learned member for South Australia, Mr. Glynn, as to the possibility of distinguishing between the various courts of the States. I am gratified that the honorable and learned member for Northern Melbourne has seen his way to withdraw his amendment, which would have deprived the High Court of all exclusive jurisdiction. But there are still other portions of the clause which ought to be preserved. Provision might be made, for instance, for the High Court to hear suits against the Commonwealth, if brought by a State. Such an amendment might prove acceptable to the honorable and learned member, the generally admitted desire being that suits between State and State should be tried in the High Court. It would be a proper thing if suits by the Commonwealth against tho State also were tried in the High Court, and thus comprise a class of cases for which that court is peculiarly suitable. I shall also have one or two considerations to offer - although the cases are much less numerous and important - as to the wisdom of retaining sub-clauses (a) and (6). The latter relates only to consuls in their representative capacity, and the former, if necessary, could be so amended as to clearly relate to cases under treaty, and not arising from my Acts passed in consequence of a treaty.
– Have we power to make treaties ?
– No; but a treaty made by the mother country is binding on this Federation, either by adoption, as is the case occasionally with commercial treaties, or by the simple will of the Imperial Government, and if, under the circumstanced, a ;ase should arise directly under a treaty, surely as the Federal Government is the only Government responsible and answerable to the mother country, and through the mother country to any foreign power, such a case would bo a proper one for the High Court.
– Surely the Federal Judiciary must be absolutely independent of the Federal Government.
– That does not make it of importance which court decides the case.
– The same argument might apply to the Federal Parliament or to its Executive, when contrasted with those of the States ; and yet, as a matter of fact, special duties in regard to external affairs are cast on this Parliament, and through Parliament on the Executive. That is only logical ; but, however that may be, the honorable and learned member will confess that this is more a point of theory than of practice. I wish to have an opportunity of carefully considering the suggestions made, and also of looking a little ahead into the next clause, which, now that clause’ 31 lias been- omitted, raises a great number of difficult problems. The alterations proposed will require to be supplemented or replaced by others, and, under the circumstances, I propose to agree to a request just mode, not to proceed further this evening.
– When does the Attorney-General propose to again deal with the Bill?
– I propose to deal with it next Tuesday.
Mr. SPEAKER reported the receipt of the following message : -
The Senate has this day agreed to the following resolutions : -
That the Senate approves of an extension, for a period of two years, of the’ arrangements entered into on the 5th day of Jane, 1899, and the 10th day of August, 1899, by the Governments of New South Wales and Queensland respectively, for the carriage of mails between Australia, Fiji, and Canada by the steamers of the Canadian-Australian Boya! Mail Line, upon the following terms : -
That this resolution be communicated by message to the House of Representatives.
– I have to inform honorable members that, at ten minutes past three o’clock to-morrow, His Excellency the Governor-General will receive the address in reply to his opening speech passed by this House.
House adjourned at 10.35 p.m.
Cite as: Australia, House of Representatives, Debates, 18 June 1903, viewed 6 July 2017, <http://historichansard.net/hofreps/1903/19030618_reps_1_13/>.