House of Representatives
23 June 1903

1^st Parliament · 2^nd Session

GOVERNOR-GENERAL’S SPEECH : ADDRESS IN REPLY
- Tennyson,
- Governor-General. 19th June, 1903
QUESTION
- ELECTORAL ROLLS
QUESTION
- PACIFIC ISLAND LABOURERS ACT
PAPERS
QUESTION
- DEARNESS OF MEAT
QUESTION
- SORTING OF MAILS
QUESTION
- FEDERAL STAMPS
QUESTION
- ADMINISTRATION OF NEW GUINEA
QUESTION
- TELEPHONE GUARANTEES
QUESTION
- ALLEGED FEDERAL EXTRAVAGANCE
QUESTION
- OVERTIME : POST-OFFICE EMPLOYES
QUESTION
- CUSTOMS FACILITIES, BURNIE
QUESTION
- TELEGRAPH GUARANTEES
JUDICIARY BILL

Mr. Speaker took the chair at 2.30 p.m., and read prayers.

page 1181

GOVERNOR-GENERAL’S SPEECH : ADDRESS IN REPLY

Mr SPEAKER:

– I have to inform honorable members that His Excellency the Governor-General was pleased, on Friday last, to make the following reply to the address adopted by this House : -

Mr. Speaker and Gentlemen of the House of Representatives -

It gives me great pleasure to receive your address in reply to the speech delivered by me on the occasion of the opening of the second session of the first Parliament of the Commonwealth.

I thank you for your expression of loyalty to the Throne and person of His Most Gracious Majesty.

I trust that your earnest consideration of the various measures submitted to you will result in benefit to all classes of the Commonwealth.

Tennyson,

Governor-General. 19th June, 1903

page 1181

QUESTION

ELECTORAL ROLLS

Mr PAGE:
MARANOA, QUEENSLAND

– I wish to know from the Minister for Home Affairs if his attention has been drawn to the following telegram, which appeared in the Argus of the 19th June : -

Brisbane, Thursday

The Premier, when interviewed with reference to the printing of the Federal rolls, said that two months ago the Federal Government were advised by the Treasurer that arrangements had been made to have the work clone in the Government Printing-office. Sir William Lyne’s statements, he thought, were not correct. Two tenders were submitted, one for linotypesetting and the other for setting by hand, but so far the Queensland Government had not been informed which tender would be accepted. Howcvet-, on the assumption that linotype-setting would be preferred, arrangements have been made to get the necessary machines, and the printing-office was quite prepared to undertake the work. There never had been any intention to farm out the work. The Treasurer also said that there was no justification . for Sir William Lyne’s statements, and added that it had been very evident all along that the Federal Government was anxious to find some excuse for keeping the printing of the rolls in Melbourne.

Sir EDMUND BARTON:
Minister for External Affairs · HUNTER, NEW SOUTH WALES · Protectionist

– The Minister for Home Affairs will be here presently, and will then, I have no doubt, be able to give a complete answer to the honorable member’s question. But, as a part answer, I can say that the suggestion that this Government is endeavouring to find an excuse for keeping back the perfecting of the rolls is wholly inaccurate.

page 1181

QUESTION

PACIFIC ISLAND LABOURERS ACT

Mr FISHER:
WIDE BAY, QUEENSLAND

– The following paragraph appears in to-day’s Argus : -

His Excellency the Governor-General (Lord Tennyson) suggested that the King should not assent to the Pacific Island Labourers Bill until the regulations to be framed under it were issued. The King did not, however, withhold theRoyal assent. The regulations governing the deportation of kanakas have not been prepared yet, but the Prime Minister states that they will be forthcoming when any are found necessary.

I wish to know from the Prime Minister if it is true that His Excellency the GovernorGeneral took the opportunity to suggest a certain course to the King without being so advised by his Ministers?

Sir EDMUND BARTON:
Protectionist

– I believe that the papers containing the passage upon which that construction has been put have been made parliamentary papers in England, and I will see that they are laid upon the table of this House, so that honorable members may. form their own impression upon the subject.

page 1181

PAPERS

MINISTERS laid upon the table the following papers : -

Defence Forces. - Regulations under States Acts and Constitution of Commonwealth, dated loth June, 1903.

Audit Act 1903. - Transfers of amounts approved b3’ Governor-General, financial year 1902-3.

page 1181

QUESTION

DEARNESS OF MEAT

Mr McDONALD:
KENNEDY, QUEENSLAND

– I wish to know from the Prime Minister whether, in view of the high price of meat in Australia at the present time, the Government is prepared to introduce a Bill to provide for the imposition of an export duty upon it?

Sir EDMUND BARTON:
Protectionist

– It has not yet occurred to the Government that there is any necessity for the measure to which the honorable member alludes,and, so far as I can speak from personal impressions, I do not think that the necessity will arise.

Mr O’MALLEY:
TASMANIA, TASMANIA

– Following up the question of the honorable member for Kennedy, and having regard to the unsatisfactory reply of the Prime Minister, I should like to ask the right honorable gentleman whether, inasmuch as it was proved last week that there is a combination here to raise the price of meat, he will invite the Premier of New Zealand to open his butcher’s shops in Melbourne instead of in London, so that we may be supplied with New Zealand meat ?

Sir EDMUND BARTON:

With reference to the Administrator of New Guinea’s last annual report, recently presented to the House, in which the following passage appears : - “ Mr. Symons made a trip into the district of the offending natives, accompanied by several of the owners of property that had been stolen. In order the better to arrest culprits, and to try and find stolen goods in the small scattered villages, Mr. Symons divided his party. Some of those who were notunder Mr. Symons’ eye were not sufficiently careful about keeping strictly within the law. The result was that exaggerated rumours of natives being wantonly murdered, and so on, were spread abroad. These rumours, when sifted and reduced to distinct charges, and to the evidence that supported them, showed that, considering the circumstances, nothing very exceptional had taken place. One European had shot a native without justification, though it is but fair to the offender to state that he thought he was justified in doing what he did. Another European, believing that he had come upon an ambush, fired at what he supposed to be an hostile native man, and found that he had shot a native woman.”

Will the Prime Minister cause inquiries to be made us to whether any trial and punishment were incurred by the alleged murderers referred to above; and will he communicate to the House the result of his inquiries ?

Will he further inquire and state what are the ordinary conditions of life in New Guinea, if such conduct is regarded by the Administrator as “nothing very exceptional.”

Sir EDMUND BARTON:
Protectionist

– The answers to the honorable and learned member’s questions are as follow : -

The alleged murderers were tried before the Chief Justice of British New Guinea, in November, 1901. The trial was a prolonged one, lasting two days. The result was that one man was found guilty of manslaughter, and sentenced to six months’ imprisonment with hard labour. The others were acquitted.
The alleged offences occurred during the progress of an armed expedition through territory the inhabitants of which were hostile. The phrase “ ordinary conditions of life “ cannot therefore be properly applied to such an incident. A considerable portion of British New Guinea is still unexplored ; and even in the better-known districts the natives are hardlyyet under the complete control of the Government.

I may add that the Lieutenant-Governor considered that Mr. Symons had acted indiscreetly in not retaining full control of the persons composing his party, and he removed him from his position as assistant magistrate of the district to perform duties of a different character.

page 1183

QUESTION

TELEPHONE GUARANTEES

Mr CONROY:

asked the Minister representing the Postmaster-General, upon notice -

Whether, in view of the fact that cash guarantees have been dispensed with in connexion with some telephone lines, the Postmaster-General will consider the advisability of proceeding with the following lines, which have been delayed in construction on account of guarantees being required : -

Binda to Bigga?

Bungonia to Goulburn?

Windellima to Goulburn or Bungendore (whichever is the more economical) ?

Wombat to Murrumburrah or Young (whichever is the more economical) ?

Sir PHILIP FYSH:
Free Trade

– The answer to the honorable and learned member’s question is as follows : -

In cases where cash guarantees have been dispensed with, the estimated revenue has been considered sufficient to afford a reasonable return for the expenditure. With respect to the lines mentioned this is not the case, the particulars being as follow : -

Binda to Bigga. Estimated cost of erection, without including cost of operating, &c., is £490 ; the estimated revenue under £13 per annum.

Bungonia toGoulburn. - Estimated cost of erection, without including cost of operating, Ac, is £312; the estimated revenue, £20 per annum.

Windellima to Goulburn. - No application has been received, but the estimated cost of erection, without including cost of operating. &c., is £579 ; the estimated revenue about £20 per annum.

Wombat to Murrumburrah or Young. - The cost would be about the same, and is estimated at £280, without including operating, &c.; the estimated revenue, £9 per annum.

Under these circumstances the PostmasterGeneral cannot favorably consider the provision of the lines without guarantees.

Mr Conroy:

– Cash or other guarantees?

Sir PHILIP FYSH:

– Cash guarantees.

page 1183

QUESTION

ALLEGED FEDERAL EXTRAVAGANCE

Mr HUME COOK:
BOURKE, VICTORIA · PROT

– In asking the series of questions,upon notice, standing in my name, I should like to make a short personal explanation. The questions are as follow : -

With reference to an article in the Age newspaper of the 15th instant -

Is it true “that through Federal extravagance the State Governments do not receive the returns of revenue to which they are entitled.” If not true, what are the facts ?
Is it true “ that dozens of officers whose positions were sinecures under the States were transferred to the Federal service at largely increased salaries “ ?
What is the total of new appointments ?
Is it a fact that some State officers have been appointed to Federal positions “at double salaries.” If so, how many, and what are the salaries paid ?
Is it true that the private secretaries of two Ministers are being paid out of Commonwealth funds ?
Are anyofficers of the Commonwealth service, whilst travelling, having their living expenses paid out of the public funds ?
What was the Adelaide estimated cost of federation per head : and, including the proposed High Court expenditure, by how much has that estimate been exceeded?
What was the pre-federation cost of the military and naval forces, and what is the present cost?
What is the actual saving per head by the reduced military expenditure?
What is the net cost of federation per head of the population’?

The article which prompted those questions, appeared in the Age of the loth inst., and the questions were prepared with a view to getting an authoritative reply to the very important statements which it contained. Since then, in its issue of the 19th June, the Age has published the following statement : -

In the House of Representatives on Wednesday afternoon Mr. Hume Cook was put up toask the Prime Minister a series of questions based upon an article published in the Age of Monday last in regard to Federal extravagance. One of these questions, at least, was framed in such a way as to distort the statement to which it was supposed to refer, possibly with the object of making a denial a little easier.

I should like to say that, if there is any unfairness in the questions as I have prepared them, I am solely responsible for it, my endeavour being, as I have said, to get an authoritative reply to the Statements made in the article of the 15th. As to my being “put up,” I desire to say that the questions were not suggested to me by any member of the Government or any member of this House. As a matter of fact I have had no consultation with any person, either inside or outside the chamber, in , reference to them.

Sir EDMUND BARTON:
Protectionist

– I have had no consultation with the honorable member for Bourke, nor, so far as I am aware, has he consulted with any member of the Government, with regard to the questions of which he has given notice. Neither I nor, so far as I am aware, any member of my Cabinet knew of his intention to give notice of these questions until they appeared on the business-paper. The answers to the honorable member’s questions are as follow : -

It is not correct to. say that the State Governments do not receive the returns of revenue to which they are constitutionally entitled, or that they do not receive all that in honour and reason ought to be paid to them.
1. The Commonwealth is bound by the Constitution to return at least threefourths of the total net Customs and Excise revenues to the States.
2. It is bound in honour and reason to return, beyond such three-fourths, any surplus after the requirements of the Departments of the Commonwealth have been economically providedfor. During 1901-2, the only year for which complete figures are available, a sum of £888,742 over and above the necessary three-fourths was returned to the States. ‘The subjoined table shows the exact figures : -

It is not correct tosay “that dozens of officers whose positions were sinecures under the States were transferred to the Federal serviceat largely increased salaries.” This statement, besides being unjust to gentlemen who occupied onerous and. responsible offices in the service of the States, is inaccurate in so far as it refers to the Commonwealth service.

It is true that some officers who were transferred from the States are receiving under the Commonwealth higher salaries than they received under the States ; but this is in every case because they occupy higher and more responsible positions in the Commonwealth service. It is also true that the salaries attached to the higher offices referred to are in nearly every case less than the salaries attached to corresponding offices in the State services.

In justification of the statement referred to in the honorable member’s question, the paper referred to published the following list, to which I have added, to illustrate the unfairness of the statements in question, the columns showing the salaries paid to the holders of similar offices in New South Wales and Victoria : -

In correction of the figures in the Age, I might say that the salary of the President of the Senate is £1,100, not £1,500 ; that the State salary of the Clerk Assistant to the House of Representatives was £560, including two allowances, not £450 ; that the former salary of the Secretary to the Treasurywas£700, not £600 ; and that the State salary of the Comptroller-General of Customs was, including an allowance of £200, £1,200, not £1,000. It should also be explained that the salary of £600 named in the table as attached to the position of Chief Parliamentary Reporter in Victoria is not fairly comparable with the salary of £700 paid by the Commonwealth, as the work controlled under the Commonwealth by this, officer is, in Victoria, distributed between two officers, whose aggregate salaries amount to £1,210. To continue my answer to the honorable member’s question -

As to these officers, with reference to whom it is suggested that “they do little or no work for months while Parliament is out of session.” it is pointed out that this list includes nine Parliamentary and six non-Parliamentary officers. It is not correct to sa)’ that the Parliamentary officers have no work to do while Parliament is not in session : and it is also incorrect to say that Departmental officers, such as the ComptrollerGeneral of Customs, the Secretary to the Treasury the Secretary to the Post-office, “ do little or no “work for months while Parliament is out of session.” It should further be stated that the salaries paid to the officers named are, in most cases, less than those attached to similar offices in Victoria or New South Wales.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I rise to a point of order. I desire to ask you, Mr. Speaker, whether the course now being adopted by the Prime’ Minister is not an abuse of the ordinary method of questioning Ministers and eliciting replies ?

Mr SPEAKER:

– What is the point of order?

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– My point is that the Prime Minister is reading an answer of inordinate length in answer to a question which should not have been placed upon the notice-paper.

Mr Watson:

– The Prime Minister is giving us very interesting information.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Undoubtedly; if it were obtained in the ordinary way, but it is not such information as should be given in the form of an answer to a question.. The Prime Minister is discussing certain statements which have appeared in the newspapers, and, if such a practice is to be permitted, there will be nothing to prevent any honorable member from embodying in a question the principal statements contained in a newspaper article, and eliciting from a Minister an argumentative statement in refutation. This practice might be carried to such a length that no other business could be transacted in the House. I submit that the question is out of order, and that the answer now being given is also out of order on account of its length and detail. 4 g

Sir Edmund Barton:

– On the point of order, Mr. Speaker, I desire to say that it is a matter of everyday practice for questions to be asked whether statements in thenewspapers are correct or otherwise, and inasmuch as news often appears in the newspapers before it can be madeaccessible to the public by means of official documents, one cannot wonder at the practice. I am confining my answer to a statement of the facts, and I submit that when I find that a newspaper contrasts the salaries attached to offices held in the States with those attaching to superior and more responsible positions in the Federal service, I am surely entitled to give details as to the salaries attached to positions in the States similar to those held by the Federal officers whose salaries are the subject of cavil.

Mr Conroy:

– I suggest that it might save time if direct answers were made to questions in the ordinary course. Another opportunity may be sought if it is thought necessary to place before honorable members details such as those now being submitted. If the course now being followed by the Prime Minister is to be permitted, I can conceive that it may lead to very serious abuse of the forms of the House.

Mr SPEAKER:

– There is no standing order which prevents an honorable member from asking such a question as that placed upon the notice-paper by the honorable member for Bourke, or a Minister from giving a reply, even at such length as that now being offered. But it is contrary to custom, and to the best practice of Parliament, that a reply, involving so much detail, should be given in answer to a question. It is far better that details, such as those now being submitted, should be laid upon the table in the form of a return. In future, if I consider that any question is likely to call for detailed information, I shall intimate to the honorable member giving the notice that his question should take the form of a motion for a return. I shall be glad if Ministers will, in future, abstain from supplying particulars such as those now being given in the form of answers to questions.

Sir EDMUND BARTON:

– I shall be very glad to follow the practice indicated by you, Mr. Speaker, because it will relieve me of the necessity of going into much detail. I have mentioned the figures given above by way of illustration only, because I have not been able to obtain full particulars. Of my own knowledge, however, I can say that the same comparisons would apply throughout, the difference being in some cases on the one side, and in some cases on the other. The answers to the other questions are as follow : -

The total of appointments to new offices created since the establishment of the Commonwealth is 26. If the honorable member intends his question to cover any wider ground than this I shall be happy to obtain the information.
Five officers are now receiving salaries double the amount they received in the States. They were specially selected, and are now performing much more onerous and responsible duties. Their aggregate salaries in the States were .-£740 ; their aggregate salaries now are XL, 560. Corresponding positions in the public services of New South Wales and Victoria are more highly paid.
Ministers have no private secretaries. The official secretary to the Prime Minister and the official secretary to the representative of the Government in the Senate are both officers of the Commonwealth, under the Public Service Act, and their salaries as such are annually voted by Parliament.
Officers while travelling receive travelling allowances at a rate fixed by the public service regulations. There are no expenses allowed them beyond those stated.
The Adelaide estimate of the cost of Federation, including provision for the High Court, was ls. Sd. per head. The expenditure for the halfyear ending 30th June, 1901, was 4jd. per head; for the year 1901-2, ls. Id. per head ; for the year ending 30th June, 1903, ls. Id. per head. Had the High Court been established in that financial year and throughout its currency the expenditure would have been increased by 2d. per head, if as much as £30,000 had been spent on it. This estimate does not include expenses not caused by federation, namely, administration of New Guinea and non-recurring expenditure - expenses of opening Parliament and Royal receptions and coronation celebrations.
The approximate expenditure for 1900-1 upon the military and naval forces was £860,000. This allows for the services now charged for in the votes of the Department, and also a sum of £25,000 for the expenses of salaries, pay, and contingencies of men away in South Africa, which are borne on present estimates. Estimate for 1903-4, say, £700,000 ; reduction, £160,000. Just before Federation the States very largely increased their defence expenditure, probably by £75,000, but it did not come into operation, except to a very small extent in 1900-1, and if it had, the amount for that year would, of course, be increased. Neither of the amounts given includes repairs, &c, which, however, would probably approximate pretty closely. In 1900-1 large sums were expended out of loan moneys for defence purposes, namely, £132,000, and although these would be far in excess of the amounts proposed for next year, they have not been taken into consideration.
The actual saving per head by the reduced military expenditure is about lOd.
The net cost of federation per head has been given in the answer to question 7.

The questions raised by the honorable member will be more fully dealt with by the Treasurer in his Budget statement.

page 1186

QUESTION

OVERTIME : POST-OFFICE EMPLOYES

Mr HUGHES:
WEST SYDNEY, NEW SOUTH WALES

asked the Minister representing the Postmaster-General, upon notice -

How has the grant of £2,000 voted for deserving officers and overtime pay of Sydney Postoffice officials been allocated ?
Is it a fact that the whole, or practically the whole, of this sum has been paid to officers receiving over £200 a year, while lower grade officers have not only received no increments for ten years, but have not been paid anything for overtime since Christmas last, notwithstanding that they have been recalled to’ extra duty on the ‘ arrival of the English mails and other occasions when there has been an extra press of work 1

Sir PHILIP FYSH:
Free Trade

– The answer to the honorable and learned member’s questions is as follows : - 1 and 2. Nothing is known of the £2,000 referred to, but of the £1,000 provided on the Estimates of 1901-2 for increases to deserving officers, 33. officers with salaries over £200 received £415, and 81 officers of lower grade £585. Of the amount of £750 voted for the same purpose in 1902-3, 50 officers, receiving over £200 a year, obtained £475, and 48 of lower grade obtained £275. It is impossible to answer without names as to those who it is said have received no increases for 10 years, but it is assumed that they have received the maximum salary provided by the regulations as all others have received annual increments. The matter of payment for overtime is receiving consideration.

page 1186

QUESTION

CUSTOMS FACILITIES, BURNIE

Mr HARTNOLL:
for Sir Edward Braddon

asked the Minister for Trade and Customs, upon notice -

Whether any steps have been taken - and what steps, if any - to effect the necessary improvements in the Customs accommodation and staff at the port of Burnie, Tasmania, as to which the Minister has been addressed at length by letter ?

Mr KINGSTON:
Minister for Trade and Customs · SOUTH AUSTRALIA, SOUTH AUSTRALIA · Protectionist

– The answer to the honorable member’s question is as follows : -

These matters are under consideration in connexion with the Estimates.

page 1186

QUESTION

TELEGRAPH GUARANTEES

Mr MAHON:

asked the Treasurer, upon notice -

Referring to the second paragraph of his reply in this House on 11th June to questions concerning the Tarcoola telegraph line, does he not consider it his duty to obtain an estimate of the probable revenue to be derived from it before proceeding further with a work costing £14,000 ?
Referring to the third paragraph of his reply, are not the additional telegraph lines to Eucla and Yardea, mentioned byhim, part of the main system between Western Australia and the Eastern States ; and is not their construction rendered imperative by climatic or commercial reasons, on which the question of guarantee has little, if any bearing.
Does not the line to Tarcoola terminate at that place; and, if so, whatis the justification for placing it, as his reply does, in the category of lines connecting two States of the Commonwealth.
Was any guarantee required before the Tarcoola telegraph line was undertaken ; and, if not, why was the guarantee condition dispensed with.
Are recommendations of new works by local officers submitted to any scrutiny except that of the central authority in Melbourne.

Sir GEORGE TURNER:
Treasurer · BALACLAVA, VICTORIA · Protectionist

– This matter comes within the Department of the PostmasterGeneral, who has supplied me with the following information : -

The Postmaster-General does not consider this necessary.
The additional telegraph lines to Eucla and Yardea mentioned constitute part of the State systems of Western Australia and South Australia respectively, and their construction is considered necessary for commercial reasons ; therefore the question of guarantees was not considered in connexion with them.
The line to Tarcoola terminates for the present at that place ; but it may eventually be extended to Western Australia in connexion with the suggested railway between South Australia and Western Australia.
No guarantee was required before the Tarcoola telegraph line was undertaken ; the conditions were considered sufficient to justify the guarantee condition being dispensed with.
Recommendations of new works by local officers are dealt with in such manner as the Government or the Postmaster-General may consider most suitable under the circumstances of each case.

page 1187

JUDICIARY BILL

In Committee (Consideration resumed from 18th June, vide page 1155) :

Clause 40 -

The jurisdiction of Federal Courts shall be exclusive of the jurisdiction of the several Courts of the States in the following matters : -

Matters arising under any treaty ;

Matters affecting consuls, or other repre sentatives 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. DEAKIN (Ballarat- AttorneyGeneral). - I propose to meet the criticism which has been directed against the first portion of this clause, by substituting for the words “Federal Courts” the words “ the High Court.” On a former occasion it was pointed out by several honorable members, that although the phrase “ Federal Courts “ includes the “ High Court,” at the present time it is not proposed to establish any Federal Court other than the High Court, and that perhaps it would be as well to leave that plain. I therefore move -

That the words “ Federal Courts,” line 1, be omitted with a view to insert in lieu thereof the words “ the High Court.”

Mr GLYNN:
South Australia

– Personally I think that the amendment proposed ought to be made. It would be a mistake to include in this Bill the words “ Federal Courts,” because, when we come to create Federal Courts by special Act of Parliament, the question of the extent of their jurisdiction will be settled by the Act.

Amendment agreed to.

Mr DEAKIN:

– I move-

That the words “against the Commonwealth,” line 19, be omitted, with a view to insert in lieu thereof the words “ by a State, or any person suing on behalf of a State against the Commonwealth, or any person being sued on behalf of the Commonwealth.”

When this measure was previously under discussion, it was pointed out that these words might possibly cover a number of actions in different parts of Australia where it would be difficult for litigants to await a visit from a Justiceof the High Court. I therefore propose to omit them, and to introduce words which will simply cover actions by a State against the Commonwealth. These will have the effect of making the provision precisely parallel with that contained in the previousparagraph.

Mr. GLYNN (South Australia). - I would point out that if the amendment proposed by the Attorney-General be agreed to, there will be no power to decide the extent of the area within which exclusive jurisdiction is to be vested in the High Court. In the discussion which took place on Thursdaylast, several suggestions were made as to the particular provisions of the clause which ought to be retained, and those which ought to be eliminated. I think it was the honorable and learned member for Bendigo who suggested that paragraphs (a), (b), and (e) ought to be excised. The Attorney-General, however, proposes to retain paragraphs (a) and (6).

Mr Deakin:

– I will show why.

Mr GLYNN:

– We all know well enough that actions in matters arising under treaties will be very rare indeed. But if such cases do arise, ‘why should we confine jurisdiction in them to the High Court? Under this Bill defendants are empowered to remove suits involving a matter of Federal jurisdiction from the States Courts to the High Court, so that Commonwealth interests, if they are involved, are amply protected, if the clauses relating to the removal of causes are retained. But even if those clauses perish, a right of appeal to the High Court will still remain. Thus, any interests which the Commonwealth may have in any matter are thoroughly guarded. Something may possibly be said in favour of conferring exclusive jurisdiction on the High Court in cases arising under any treaty. That is not a very important matter, but as the honorable and learned member foi’ Bendigo spoke strongly upon it, and as lie is absent to-day, I venture to call attention to it. Further, I do not see why States Courts should not have concurrent jurisdiction in matters affecting consuls. I remember a case which occurred in Adelaide a few months ago, in which action was taken for the recovery of £15, which had been paid to a consul under the Merchant Shipping Act, and which sum was held in trust by him for certain sailors. In that case the consul was sued by a creditor of one of the sailors. It was a comparatively trivial matter. Surely it is not advisable that jurisdiction in a case of that sort shall be exclusively vested in the High Court ] If it is, either the suitor will have to await the visit of a Judge upon circuit, or the suit will have to be heard at the seat of Government, wherever that may happen to be. I ask the Attorney-General to agree to the suggestion of the honorable and learned member for Bendigo, and to excise paragraphs (et) and (b) in addition to some of the succeeding paragraphs 1

Mr DEAKIN:

– When this matter was. previously under discussion, I had an opportunity of’ replying to the honorable and learned member for Bendigo upon both the points which have been raised. In answer to , an interjection, I think he admitted that he had never known of a case under a treaty arising in Australia, and he had great difficulty in conceiving how one could arise. Under the circumstances, I put it to him that no possible injury could follow the retention of exclusive jurisdiction in the Commonwealth Courts. Moreover, it is clearly a matter which for the dignity of the Commonwealth and of its Courts ought to be dealt with by them. The cases provided for under the clause are limited to those which arise in consequence of some alleged breach in a treaty obligation.

Mr Glynn:

– I think ‘that the honorable and learned member for Indi raised a similar point.

Mr DEAKIN:

– I think not. The honorable and learned member for Indi referred to paragraphs (e) and (/). Seeing that the Federal Government is charged with responsibility in all matters arising, under any’ treaty,, it would be only proper, if such a case did occur, that it should be dealt with by the High Court. I put that point as a matter of no very great importance from the standpoint of litigants, but as of some importance from the point of view of the dignity of the Commonwealth and its Courts. In the same way the honorable and learned member for Bendigo directed attention to the possibility of actions of any kind being taken against the consuls of other countries, and quoted from the United States practice in this connexion. But it was pointed out to him that under this provision the area covered had been expressly limited to actions against any Consul in his representative capacity. Thereupon the honorable and learned member for Bendigo admitted that such cases would be of very rare occurrence, and I understood - though he did not discuss .the question further - that he was generally satisfied that these two paragraphs might be retained without injury to any one. The whole burden of the argument which took place was directed against paragraphs (e) and (/), and it is in one of them that I propose to make the amendment which I have already submitted. It was admitted that a number of these cases might arise, and it can well be argued, that if litigants have to await the sittings of the High Court in remote States, they might be involved in additional expense. I ask the Committee to accept the amendment which I have moved.

Mr. GLYNN (South Australia). - I desire to move a prior amendment if the AttorneyGeneral will permit me to do so.

Mr Deakin:

– Certainly.

Amendment, by leave, withdrawn.

Mr GLYNN:

– With regard to cases which may arise under treaties, I offer no objection to the provision in its present form ; but I think I have already shown that there is some reason for making the jurisdiction conferred by paragraph (b) concurrent. Time after time claims will arise by sailors against consuls, or by parties ‘having claims against the wages of sailors. Surely in such cases it is inadvisable that exclusive jurisdiction should toe vested in the High Court. We ought not to increase the expense incurred by litigants in such pettifogging cases. I would further point out that this paragraph proposes to confer upon the High Court a jurisdiction which does not exist under the American Constitution. In America the jurisdiction of the Court in such cases is purely concurrent. I therefore move -

That paragraph [b) be omitted.

Mr CONROY:
Werriwa

– I hope that the Attorney-General will consent to the amendment proposed. I would point out that the honorable and learned member for Bendigo and the honorable and learned member for Corinella both urged the same objections to this paragraph that are now being put forward by the honorable and learned member for South Australia, Mr. Glynn. I am sure that the Committee desire to prevent the possibility of the expense to litigants being increased. Let me invite the attention of honorable members to what would occur if an action under this clause arose in Western Australia, and required to be determined at once. In such a contingency, the High Court would have to go to Western Australia or the litigants would have to come here. In either case there would be unnecessary expense. Personally, I think that when we come to discuss the appellate clauses of the Bill we can well allow any Court to determine matters such as those which are mentioned in paragraph (b). Then, if the Commonwealth is dissatisfied with any decision in which it is interested, it has the right of appeal from the State Supreme Court to the High Court. Thus the whole difficulty would be solved. I trust that what was the evident desire of those honorable and learned members, who had looked into this question, will be followed.

Mr MAHON:
Coolgardie

– I am disinclined to agree with the honorable and learned member for Werriwa. If his idea be adopted I. think that the expenses incurred by consuls who desire to secure justice will be increased. I take it that the settlement of these matters by the High Court is necessary to secure absolute uniformity in decisions. If each State Court is allowed to give its own judgment, it may happen that these judgments will be in conflict.

Mr Conroy:

– There is always the right of appeal to the High Court.

Mr MAHON:

– Exactly. A consul in Western Australia who was subjected to a decision by the Supreme Court of that State which conflicted with a judgment by the Supreme Court of New South Wales, would naturally feel that he had been denied justice, and would appeal to the High Court ; whereas, if that tribunal had dealt with his case in Perth in the first place, he would have obtained satisfaction at much less expense. Consequently, under the clause as it stands, litigants would secure finality quicker than they would under the amendment proposed.

Mr. CONROY (Werriwa).- In reply to the honorable member for Coolgardie, I would point out that the States Courts practically sit all the year round. If the High Court is composed of either three or five Justices, it will be impossible for them to visit the remote States more than once in six months.

Mr Mahon:

– In certain circumstances the litigants might come to the High Court.

Mr CONROY:

– Under such a provision the expense involved may be so great as to prevent them from obtaining justice. ‘ If appellate jurisdiction is to be vested in the High Court, it is clearly within the power of that tribunal to correct all conflicting judgments. In the event of a decision being given by one of these States Courts, with which the Commonwealth Government was dissatisfied, an appeal would always lie tq the High Court. Thus uniformity would be obtained for all practical purposes, and at very much less expense than would be the case under the provisions of this clause.

Amendment agreed to.

Mr DEAKIN:

– I move-

That the words “against the Commonwealth,” line 19, be omitted, with a view to insert in lieu thereof the words “by a State or any person suing on behalf of a State against the Commonwealth, or any person being sued on behalf of the Commonwealth.”

The amendment simply renders the subclause parallel with the preceding subclause. We have provided that jurisdiction in suits by the Commonwealth against a State shall be exclusive, and I now propose a similar provision in regard to suits by a State against the Commonwealth. It was generally agreed, when the Bill was last before us, that these were two classes of cases in regard to which the jurisdiction might very properly be vested exclusively in the High Court.

Mr. HIGGINS (Northern Melbourne).If any jurisdiction is made exclusive, the jurisdiction contemplated in this sub-clause should also be exclusive. From my own point of view I should trust the States Supreme Courts with any power ; but, if the Committee determined to make any jurisdiction exclusive, I see no objection to this sub-clause as amended. It will still be competent for a public servant to bring a suit in a Supreme Court to recover from the Commonwealth salary or damages for wrongful dismissal ; the States Supreme Courts will still be available for small actions which continually arise between a Government and its employes.

Amendment agreed to.

Mr. HIGGINS (Northern Melbourne).Is there any objection to excluding subclause (f), which provides that the jurisdiction of the High Court shall be exclusive of the jurisdiction of the States Courts in -

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 Deakin:

– I shall not object if the honorable and learned member desires to move the omission of the sub-clause.

Amendment (by Mr. Higgins) agreed to-

That sub-clause(f) be omitted.

Clause, as amended, agreed to.

Clause 41 -

The jurisdiction of Federal Courts in matters not mentioned in the last preceding section shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.
In such matters the several Courts of the States shall, within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with Federal jurisdiction, subject to the following conditions and restrictions : -
1. except as hereinafter provided Federal jurisdiction shall not be exercised by a superior Court of a State otherwise than as a Court of first instance ;
2. except as hereinafter provided every appeal from a decision of a Court or Judge of a State exercising Federal jurisdiction, not being an appeal from one inferior Court to another inferior Court, shall be brought to the High Court ;
3. provided nevertheless that in any suit in the Supreme Court of a State which cannot be removed by a defendant into the High Court as of right, the Supreme Court shall have appellate jurisdiction as well as jurisdiction as a Court of first instance ;
4. wherever an appeal would lie, but for this Act, from a decision of any Court, or Judge of a State to the Supreme Court of the State, an appeal from the decision shall lie to the High Court.
5. wherever a decision of a Court or Judge of a State is declared by the law of the. State to be final, the High Court may, if the decision is given in the exercise of Federal jurisdiction, grant special leave to appeal from the decision to the High Court.
6. The Federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a. Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction.

Mr DEAKIN:

– I move-

That the words “Federal Courts,” line 1, be omitted; with a view to insert in lieu thereof the words “the High Court.”

This is a similar amendment to that which has been made in the preceding clause.

Mr GLYNN:
South Australia

Mr DEAKIN:

– Such a private individual may bring his suit in any court.

Mr. HIGGINS (Northern Melbourne).So far as the mere matter of expression is involved, I do not feel justified in interfering with the drafting of the measure. I never do so interfere, because it is utterly impossible for a large body like this Committee to draft a Bill ; and the responsibility in this connexion must rest on the AttorneyGeneral. But I think this particular clause raises some very grave questions of substance. In clause 40 we have defined where the High Court is to have exclusive jurisdiction, and in clause 41, we ought to show where the High Court is to have concurrent jurisdiction with the Supreme Courts, or other Courts of the States. Of course, the simple and obvious way of doing this would be to provide that the jurisdiction of the High Court shall be concurrent with the Courts of the States in certain matters. However, the Attorney-General, in the exercise of his discretion, has said that he. would like to provide first that it shall be exclusive, and afterwards to use special granting words in regard to it. I should not strenuously object to that, as I feel that we may attain the same object in other ways, if the Committee accede to my views. If honorable members will look at what the honorable and learned gentleman proposes to insert in clause41 in lieu of paragraphs (a), (b), and (c), it will be seen that he wishes to substitute the High Court for the Full Courts of the States. I hope I am not dealing with technicalities more than is absolutely necessary, because it is a very important matter, and will go to the very root of the position of the High Court. The amendment says -

Every appeal from a decision of the Supreme Court of a State or any other Court of a State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council, shall be brought to the High Court.

– Quite so. The honorable and learned gentleman desires to delete the words “ in such matters “ at the beginning of sub-clause (2), so that it shall then read as follows : -

The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with Federal jurisdiction, subject to the following conditions and restrictions.

Mr Deakin:

– No ; the words are to come in after the word “ jurisdiction,” so that the provision will then read -

In all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it, except as provided in the last preceding section, and subject to the following conditions and restrictions.

Mr HIGGINS:

– I have not had the privilege of seeing the list of amendments until this moment. I understand the honorable and learned gentleman to wish that the several Courts of the States shall be invested with Federal jurisdiction in all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it ?

Mr Deakin:

– We transfer the whole - we give a complete endowment to the States Courts.

Mr HIGGINS:

In all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it.

So far as we can deal with original jurisdiction at all, by those words we invest the

States Courts with the whole of that jurisdiction - put it beyond all question by explicit words. Next we proceed to say -

Except as provided in the last preceding section.

That, of course, is necessary, because in clause 40 we have left a few matters, which are still to be exclusively in the High Court. But, by this form of words, we make it as plain as it can be made that, with the exception of those few matters, we vest the whole of the jurisdiction of the High Court. Now we come to the first affirmative proposition. We strike out paragraphs (a) (6) and (c) from the sub-clause, and substitute the new paragraph, which was printed and circulated last week, as follows : -

Every appeal from a decision of a Supreme Court of a State, or any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council shall be brought to the High Court.

The other Courts which are . there alluded to are the Equity Court in New South Wales, the Equity Court in Victoria, where the decision of a single Judge may be appealed against to the King in Council, and also that curious Court which is peculiar to . South Australia. These are the only Courts from which an appeal lay to the Queen in Council at the time of the passing of the Commonwealth of Australia Constitution Bill. So that practically the substance of that paragraph relates to the appeal from a decision of the Supreme Court of a State. The honorable and learned member for Northern Melbourne has asked whether that includes a decision of the Pull Court of the State. I take it that it does, that it in no respect alters, at ail events it is not intended to alter, the present system by which appeals can be taken from a single Judge of a State Court to the Full Court of that State. The paragraph refers only to appeals which, having reached that stage, may otherwise be sent to the King .in Council without going before the High Court, even although they were matters of Federal jurisdiction. This paragraph says that if there be an appeal in such a case, the parties not being satisfied with the decision of the Full Court of the State, that appeal shall be brought to the High Court. The operation of the provision is practically external, if I may use the word, to the practice of the Supreme Court, to which I understand that my honorable and learned! friend, the member for Northern Melbourne,, was alluding when asked whether the endowment of the States Courts was absolute,, and whether or not it was intended to interfere with their appeals within their own States, I replied distinctly that that was notintended, except so far as paragraph (d), confers that option. We have not arrived, at paragraph (d) yet, but I have called, attention to it. That paragraph says -

Wherever an appeal would lie but for this Act, from a decision of any Court or J udge of a State to the Supreme Court of the State, an appeal from the decision shall lie to the High Court.

That is to say, they are to have jurisdiction in respect of all matters under section 75 of the Constitution. That jurisdiction is to be as exclusive as-

Mr Deakin:

– No. It sets out what jurisdiction the States Courts are to be invested with. It is. investing the States Courts with all the jurisdiction.

Mr HUGHES:

– The position must be very clear to the Attorney-General, or he would not stand by his proposal ; but if any honorable member can prove to me that the effect of clause 41 is not to take away directly the effect of the amendments made in clause 40, I shall be happy to receive that explanation.

Mr. HIGGINS (Northern Melbourne).- I think I should intimate at this stage that I intend to move an amendment of the amendment to insert new paragraph (a), notice of which has been given by the AttorneyGeneral. The proposed new paragraph provides that -

Every appeal from a decision of the Supreme Court of a State, or any other Court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be brought to the High Court.

In my opinion, that provision would be void as a matter of law.

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– I understand from the Attorney-General that clause 41 vests the superior as well as the inferior courts of the States with jurisdiction 1

Mr Deakin:

– Yes.

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– I presume that it is designed to confer upon them jurisdiction in regard to all laws’ made under the authority of Parliament t

Mr Deakin:

– Yes.

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– That being so, I think I should illustrate the point I desire to make by referring to the Immigration Restriction Act, which provides that penalties shall be imposed on summary conviction, but prescribes no tribunal for hearing cases of the kind. The words “summary conviction” appear in the Act, but no court is vested ‘ with jurisdiction. The AttorneyGeneral will also observe that in the Punishment of Offences Act 1 901, we make provision to carry on pending the establishment of the High Court, and we must remember that on the passing of this Bill, all the authority conferred on States Courts under that Act will cease. I desire, only as a matter of interpretation, to learn whether the AttorneyGeneral considers that this clause will be sufficient to confer jurisdiction upon all inferior courts to hear cases under Commonwealth Acts, which impose certain penalties for certain offences, but which do not give jurisdiction to any particular court.

Mr DEAKIN:

– Before the honorable and learned member for Northern Melbourne moves the amendment of which he has given notice, I should like to reply to the honorable member for West Sydney. I presume that he was absent when I explained that the object of the first sub-clause is to carry out precisely what he desires shall be done. It proposes to take all the Federal jurisdiction outside the exclusive jurisdiction, and vest it in the High Court, in order that the whole of it shall then be transferred from the High Court to the States Courts. I believe that object will be effectively accomplished by the sub-clauses which follow. Having vested the whole body of Federal jurisdiction, outside clause 40, in the High Court, we next provide in subclause (2), in the widest words I have been able to find, that the whole of the Federal jurisdiction shall be vested in the States Courts, subject to certain limitations. We thus give them an area of authority which embraces, as the honorable and learned member for Darling Downs has pointed out, the vesting of jurisdiction in them, to deal with cases under all the Commonwealth statutes in which penalties have been imposed, but in which the inferior courts required to act have not been specified. I am unable to conceive of a more complete vesting of all the Federal jurisdiction in the States Courts.

Mr Glynn:

– All that can be conferred upon them.

Mr DEAKIN:

– Yes. I am not speaking of the possibilities of the future. I take it that the very essence of any amending Act; or any Act dealing with any extension of jurisdiction that may be passed, will be a provision as to the courts by which that jurisdiction shall be exercised, and the extent to which it shall be employed. It is at this point that I part company with the honorable and learned member for Werriwa. I cannot conceive that any House of Parliament would be so blind to the position as to proceed to greatly extend the jurisdiction of the High Court, or other Federal tribunals, without at the same time making provision for the exercise of that jurisdiction. Even a Parliament in which there was not one member of the legal profession would not do that. I am not attempting, in this Bill, to provide for all the extensions of jurisdiction which this Parliament, or future Parliaments, may think fit to authorize. “ Sufficient unto the day is the evil thereof.” Surely it is enough to provide here, in the amplest way, for all the matters with which we have power to deal, and all the jurisdiction which we are actually vesting. If we give to the States Courts all the jurisdiction that we now have power to give, why should we enter upon the consideration of questions of what we might or might not give in the future?

Mr. CONROY (Werriwa).- I feel that the Attorney-General himself has fully justified my objection. When the Committee dealt with clause 40, it laid down the very definite principle that the High Court should be practically an appellate court. The object which the Committee had in view in making that provision was to save expense. Honorable members saw that if original jurisdiction other than that absolutely conferred by the Constitution were given to the High Court, fifteen or twenty Judges, instead of five, would be necessary, or a number of inferior courts would have to be created.

Mr Deakin:

– We are not departing from that principle.

Mr CONROY:

– The Attorney-General admits that he has gone outside it, and that he intends to extend the jurisdiction of the High Court, unless certain restrictive clauses are contained in every measure which we may subsequently pass. If we were to pass any Bill in which there was not a restrictive clause, the jurisdiction to deal with cases under it would vest in the High Court.

Mr Watson:

– The exclusive jurisdiction?

Mr Deakin:

– No.

Mr CONROY:

– That practically would be the result. The Attorney-General admitted that it would be so when he asked the Committee whether there would not be a sufficient number of lawyers in the House to see that every Bill brought forward contained a few clauses determining what court should exercise jurisdiction under it.

Mr Deakin:

– The honorable and learned member is not applying my statement correctly.

Mr CONROY:

– I do not see how the honorable and learned gentleman can get away from that position. I intend to move -

– I am perfectly willing to use the word “ can “ instead of the word “ may.” I hope that under these circumstances the Committee generally will accept my assurance that this matter has been given most careful consideration. In spite of the obvious objection to first giving a power and then transferring it, the way in which the Constitution .is drawn in my opinion, renders this course desirable. This is a deliberate opinion formed after a good deal of examination. The drafting of the clause in the way proposed will render the transfer more explicit. I am prepared to do what the honorable and learned member for South Australia, Mr. Glynn, has asked.

Mr Higgins:

– Am I to understand that the honorable and learned gentleman will be prepared to recommit the clause if he subsequently finds that it will not work well?

Mr DEAKIN:

– Certainly.

Amendment agreed to.

Amendments (by Mr. Deakin) agreed to-

That the words “ in such matters,” line 6, be omitted.

That, after the word “jurisdiction,” line . 10, the following words be inserted : - “ in all matters in which the High Court has original jurisdiction, or in which original jurisdiction can be conferred upon it, except as provided in the last preceding section and “.

That paragraphs(a),(b), and (c) be omitted.

Amendment (by Mr. Deakin) proposed -

That, after the word “ restrictions,” line 11, the following words be inserted : - “(a) Every appeal from a decision of the Supreme Court of a State, or any other court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be brought to the High Court.”

– That is the intention. I rather think that these words will have the effect of limiting it to cases of Federal jurisdiction, because the amendment to which we have just agreed proposes that the several courts of the States shall within the limits of their several jurisdictions be invested with Federal jurisdiction

In all matters in which the High Court has original jurisdiction, or in which orginal jurisdiction can be conferred upon it, except as provided in the last preceding section.

Then there is the new proposal involving this condition and restriction : -

Every appeal from the decision of a Supreme Court of a State, or any other court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be brought to the High Court.

Although I agree with the honorable and learned member forWerriwa that in this clause it would, perhaps, have been better to expressly state “ every appeal where Federal matters are involved,” still I am assuming that the present drafting will be put right, and that that is the intention. I desire now to raise the substantial question whether there is any right on the part of this Parliament to say to a litigant who has been defeated in a Supreme Court of a State - “ You must appeal to the High Court, because there is some question of Federal law involved.” I dispute the constitutionality of the proposed amendment. If one looks at the Order in Council made on 7th June, 1860, in pursuance of the Acts 7 and S Victoria, it will be seen that the litigant has a right of appeal in any case in which a Supreme Court of a State decides against him where over £500 is involved. The words are -

Any person or persons may appeal to Her Majesty, her heirs and successors, in her or their Privy Council, from any finding, judgment, decree, order, or sentence of such Supreme Court of the colony of Victoria in such manner and within such time as hereinafter mentioned.

The provision could not be more universal than that. The mere fact that there may be new laws made after the Order in Council, which for this purpose may be treated as an Imperial Act, would not prevent the Order in Council applying. So that the effect of the Imperial Act, taken with the Order in Council, is that, no matter what new laws may be made by the Parliaments of Australia, and no matter what orders may be made in the Supreme Courts of New South Wales, Victoria, or any other of the States, the right of appeal lies to the Privy Council. Our Supreme Court Judges have the right, and do frequently decide as to the meaning of Imperial laws. I had a case of the sort only a few weeks ago. In the course of the working out of a case it may become necessary to decide as to the meaning of an Imperial law and a fortiori, the courts will have to decide as to the meaning of Federal laws. We cannot put Federal laws upon a higher basis than Imperial laws. I claim that the Constitution of the Commonwealth, though an Imperial law, has not altered the Imperial law which gives the right of appeal to the Privy Council. I do not dispute that the Imperial Parliament can change its mind and make any alteration it likes, but I say that so far it has not done so. In 1844 the Imperial Parliament said in effect, through an order in Council under the Act, that any person aggrieved by a decision of the Supreme Court of New South Wales, may appeal to the King in Council. Then there is another Imperial Act, passed in the year 1900, which says that the Parliament of Australia may create a High Court to which appeals from the Supreme Court of Victoria, New South Wales, or any of the other States may lie. The Imperial law enables litigants to appeal to the High Court of Australia, but it does not compel them to do so.

The extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is vested in the Courts of the States. and vesting it or any part of it in State Courts. I submit, therefore, that under section 77, sub-section 2, it is possible for us to give exclusive jurisdiction to the High Court in all those matters of Federal jurisdiction which go on appeal to the Supreme Courts of the States, and to require that all appeals in matters of Federal jurisdiction which come before them shall be brought before the High Court. If, then, we have the power to make this appellate jurisdiction exclusive, and to shut out the Supreme Courts of the States or to define the extent to which they shall exercise jurisdiction, that implies that we have the right to invest them with power to hear appeals subject to certain conditions. That is what is sought to be done in this clause. First of all, we absorb in the High Court the whole of the Federal jurisdiction, and then invest the States Courts with it, subject to certain conditions. The position I take is that we are empowered under the Constitution to render back the appellate jurisdiction upon Federal matters to the Supreme Courts, with the condition that any appeals from them shallbe brought before the High Court. They will have no such jurisdiction except under that condition. I admit the force of the contention of the honorable and learned member for Northern Melbourne, but, notwithstanding the deference which I pay to his opinion, and to the opinions of other honorable and learned members, venture to submit that the Constitution justifies the assumption that we have the power to condition these appeals. The inconvenience, loss, and difficulty created by the optional appeal to two different courts justifies us in endeavouring to claim this power. The appeals to the King in Council preserved either by section 73 or74 of the Constitution, are those as of grace as distinguished from those as of right, and as the only appeals with which we propose to deal in the new paragraph are appeals as of right - I admit our inability to reach appeals as of grace, which would still be retained in these matters - it seems to me a fair construction to place upon the whole of these clauses when read together, to say that just as section 74 disposes of appeals as of right from the High Court, and leaves untouched appeals as of grace, in like manner sections 71, 73, and 77 when read together, empower this Parliament to deprive litigants of appeals as of right from the States Courts always leaving them the prerogative appeals as of grace.

Mr Hughes:

– When the AttorneyGeneral speaks of an appeal as of grace, does he mean an appeal direct to the Privy Council or to the High Court ?

Mr DEAKIN:

– Section 74 refers to appeals from the High Court only, but section 73 relates to appeals to the Judicial Committee of the Privy Council from States Courts in matters arising in them apart- from Federal jurisdiction.

Mr Hughes:

– Under this clause does the honorable gentleman say that an appeal would lie direct to the- Privy Council in any circumstances ?

Mr DEAKIN:

– This clause does not attempt to deprive litigants of the right of appeal as of grace. Its effect is to take away from them the appeal as of right from States Courts. Both on the particular reading of the words relating to these appeals, and on the general construction to be placed upon the whole chapter, the insertion of the new paragraph can be justified. Unless it be disposed of upon considerations of expediency, as being, perhaps, premature, there is a great deal to be urged iti its favour from the stand-point of taking the utmost advantage of our powers in the Constitution, of reading them in the largest possible way, while not attempting to deprive litigants of the prerogative appeal as of grace, to the Judicial Committee of the Privy Council. I hope the lay members of the Committee will understand that if this paragraph be inserted, it will still leave, even in matters of Federal jurisdiction, the .same appeal from’ the States Courts upon special leave to the Privy Council that exists to-day. We cannot entirely abolish appeals to the Judicial Committee of the Privy Council. It will abolish only appeals as of right. But if my proposed paragraph be inserted, all matters involving the exercise of Federal jurisdiction would first have to be brought before the High Court. It would then rest with the appellants to determine whether they would go farther. We know that in the great majority of cases the decisions given by the Supreme Courts of ‘ the States are accepted by suitors as satisfactory. The functions of the High Court would cover a larger ambit, and probably a great many of the cases coming before it would not be taken on to the King in Council. I do riot dispute that there is much force in the contention of the honorable and learned member for Northern Melbourne, but from> the , reading* of ‘the Constitution which I have given, it seemsto me that we are .within the, power of Parliament if we enact this sub-clause.

Mr. GLYNN (South Australia). - Personally, I ‘ lay less stress upon the legal objection to this clause, because of the possibility of its validity being challenged on the ground that it is unconstitutional, than I do upon the wisdom of passing it.. The honorable and learned member for Northern Melbourne has declared that if a clause is. ultra vires it is our duty not to place it upon the statute-book. I confess to entertaining a slight doubt about that matter. -The balance of my opinion is with the honorable and learned member, but I cannot absolutely set up that opinion against the posi-tion assumed by the Attorney-General, and also by Professor Harrison Moore, that Federal jurisdiction can be conferred upon State Courts subject to a condition. I quite agree with the AttorneyGeneral that possibly appeals as of right will be affected by the adoption of this paragraph, whilst appeals as of grace may not be affected. I am not quite sure upon that point. But -quite irrespective.bf whether or not we vest Federal jurisdiction in the States Courts, I would .point but that under the Constitution itself, probably those courts already have that jurisdiction. If so, appeals, both as of right and as of grace, are permitted to the Privy Council. At the same time any Act that we pass may,’ by implication, repeal appeals as of grace to the Privy Council, though it is generally acknowledged that to accomplish that end express words must be employed. It has been laid down in a Canadian case that Parliament cannot negative a prerogative which exists without the use of express words having that effect. The Dominion Parliament passed an Act in ‘-which it declared that notwithstanding any ‘ prerogative to the contrary an appeal was abolished. Within the past two or three years a case was heard in England, in which it was decided that the old rule requiring a prerogative to be expressly negatived did not hold good in all cases. It was held that by implication the prerogative could be cut down. That being so, it is quite open to argument that under the Acts Interpretation Act, and under section 2 of the Constitution which expressly binds the Crown, we may, by implication, limit the power of appeal to the Privy Council as of grace - that is with the permission of the Privy Council. But subjectto that qualification, I agree with the Attorney-General that the appeal as of grace will be open, and that what we are now attacking is the power of appeal as of right. The honorable gentleman declares that where we vest Federal jurisdiction in a court, we can vest it subject to any condition which we choose to impose. To some extent I have answered that contention by showing that we may not be required to vest it by Act of Parliament, because such jurisdiction may have been conferred upon theStates Courts by the Constitution. It is a doubtful point, but it has been held by some -and I think by Professor Harrison Moore - that the jurisdiction may exist under section 5 of the Constitution. I believe he even goes further and says that as a matter of general British law this jurisdiction may exist without it being specially conferred by Act of Parliament. If that be so, the appeal as of right to thePrivy Council exists under the Constitution. The original jurisdiction exists without any actionbeing taken by us, and incident to that jurisdiction is the power to appeal to the Privy Council. If, as the AttorneyGeneral says, we bestow jurisdiction, it might be we can limit it, but if it exists without us we cannot cut it down.

Sir John Quick:

– Where does the honorable and learned member say that Federal jurisdiction has been vested in the States Courts?

Mr GLYNN:

Mr McCAY:
Corinella

– I listened with very great attention to the view put by the Attorney-General as to the constitutionality of the clause. But I confess that I was unable to go with him in his reasoning to the conclusion at which he arrived. He has had to say in effect that, taking section 73 of the Constitution with section 77, he could spell out from the two an implied power to place a condition upon the bestowal of jurisdiction on the Courts of the States. Section 73 deals solely with one of the courts created by the Constitution, or that may be created under the Constitution, but does not deal in any way with the jurisdiction to be bestowed on existing courts on which we have the right to bestow further powers. Then, if we look at section 77, upon which the honorable and learned gentleman relied, we find in sub-section (2) that the Parliament may make laws -

Defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States.

– Exactly, “Invested in the Courts of the States.”

Mr McCAY:

– Quite so, but the definition of extent is only permitted with respect to Federal Courts. We can only say as regards a Federal Court, that this jurisdiction shall be exclusive of State jurisdiction. But it does not convey the power to impose a condition upon the investment of the States Courts with Federal jurisdiction. It does not convey the power to define the extent to which Federal jurisdiction shall be bestowed upon States Courts, because, when we come to sub-section (3), we have the investing power given without any corresponding power of defining the extent. Sub-section (1) refers solely to courts created by the Parliament. In sub- section (2) the words “any Federal Court,” refer solely to courts created by the Parliament, and it is only in the case of courts created by the Parliament that we can define the extent of their jurisdiction in the sense in which we can impose a condition with respect to jurisdiction. In sub-section (3) - beyond section 71, of course - we get the only express authority for investing States Courts with Federal jurisdiction. There is no power to be spelled out of that sub-section, or any other portion of the chapter which allows us to impose a condition at the same time that we invest the

– No; it is an inherent power.

Mr Glynn:

– There was no Privy Council, and the power was subsequently conferred by statute.

Sir JOHN QUICK:

– It may be’ that the Privy Council, as a-Court of Appeal, has also ‘ inherent jurisdiction of removal,- but the position is quite clear from the remarks of Mr. Justice Story, in the case Marin v. Hunter that the High Court will have the power of removal. Mr. Justice Story said -

This power of removal is not to be found in express terms in any part of the. Constitution ; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language, a grant of original jurisdiction : it presupposes an exercise of ‘original jurisdiction to have attached elsewhere. ‘ The existence of this power of removal is familiar ‘in courts acting according to the course of the common- law, in criminal as well as civil cases, ‘and it is ‘exercised before as well as after judgment. But this is always deemed, in both cases, an exercise of appellate, and not of original jurisdiction.

According to that principle the High Court of Australia would, in any case dealt with by theStates Courts in the exercise of Federal jurisdiction, have power, as the Court of Appeal, to remove a cause from the States Courts, whether or not this provision proposed by the Attorney-General be passed. If that can be done by the inherent authority vested in the High Court as a Court of Appeal, I see no objection whatever to an express provision in the Bill vesting in the High . .Court, in the first instance, the -exclusive right of appeal from the States Courts exercising Federal jurisdiction. Also, on the ground of ‘ expediency, 1 think, it would be better to accept the proposal so as to avoid -any option in a case where one party desired to go to the Privy Council, while the other party desired to go to the High Court. Of. course, the proposal does not in any -way interfere with the ‘ inherent power, which is still vested in the Privy Council, to grant leave to appeal from the decision of a.State Court; and it is not proposed to take away that power. All that is taken away by :the Attorney-General’s proposal is the legal right to appeal under Orders in -Council. Nor does the provision’ interfere with the ultimate right of the Privy Council to grant leave of appeal from decisions of the High Court provided. no’ constitutional question is involved. ‘ Under .these : circumstances, I feel’ quite .justified, < according to constitutional principles, as well - as on the grounds of expediency., in supporting the proposal of the Attorney-General. x»J . . .

Question - That the word “ shall,” proposed to be omitted, stand part of the proposed amendment - put. The Committee divided.

AYES: 24

NOES: 23

Majority … … 1

Amendment of the amendment negatived.

Amendment agreed to.

Sir JOHN QUICK (Bendigo).- I should like to know how the clause stands as amended. Is it still proposed to retain paragraph (d)?

AYES

NOES

Mr. Deakin. - Yes.

Sir JOHN QUICK:

– If that be so, it does not come within the limitation of the newly-added paragraph(a).

Mr GLYNN:
South Australia

– Paragraph (e) states that -

Whenever a decision of a Court or Judge of a State is declared by the law of the State to be final, the High Court may, if the decision is given in the exercise of Federal jurisdiction, grant special leave to appeal from the decision to the High Court.

I had intended to move an amendment upon that paragraph, but I do not think I shall bother about the point now. As regards paragraph (f), I do not know whether the Attorney-General ever does appoint magistrates to act in a Federal capacity in a State. This paragraph appears in one of our Acts, which provides that summary jurisdiction under Federal laws may be exercised either by a stipendiary or police magistrate, or a magisrate of a State who is specially authorized by he Governor-General to exercise such jurisdiction. In other words, the Justice of a State exercising Federal jurisdiction must have a special authorization. But I know of cases where magistrates have been acting without that special authorization. I gave notice of appeal on this ground in one case, but from other’ considerations did not go on with it. I saw the other day that a case had arisen in Western Australia, where the point was taken that the magistrates acting were not specially appointed. Surely the administration should see that magistrates who act in Federal cases are not without the necessary authority, or should prevent them from sitting. But as it is, a magistrate may be authorized, and beside him upon the Bench there may be two or three other justices who have no authorization. Personally, I think it would be better to strike out the rest of the clause, but I do not intend to move in that direction.

Mr DEAKIN:
Protectionist

– The honorable and learned member will notice that this clause is negative. The section of one of our Acts to which he has alluded is positive. That section endows police and stipendiary magistrates or other magistrates to be specially appointed, with power to sit as courts of summary jurisdiction. This paragraph provides that the summary jurisdiction shall not be exercised except by a police or stipendiary or special magistrate. It is not a qualifying provision. But I admit the difficulty of which the honorable and learned member has spoken. A case has occurred in Western Australia. It will be necessary to meet that difficulty, although I do not know that it would be desirable to meet it by appointing many of the honorary magistrates. It is desired that there may be, if possible, a higher standard of qualification.

Clause, as amended, agreed to.

Clauses 42, 43, and 44 negatived.

Clause 45 -

Any cause or part of a cause involving a matter of Federal jurisdiction which is at any time pending in any court of a State, and whether it is or is not removable into the High Court under the foregoing provisions of this part of this Act, may at any stage of the proceedings before final judgment be removed into the High Court, under ail order of the High Court, which may, upon the application of any party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon motion in open Court by the Attorney- General of the Commonwealth or on his behalf.
When any such order for removal is made, the proceedings and documents in the cause or certified copies thereof shall be transmitted to such registry of the High Court as is directed by the order, in the same manner as hereinbefore prescribed in the case of a removal by a defendant.

Mr DEAKIN:
Protectionist

– This is an important clause to which I would direct the attention of honorable members, first of all by way of indicating the amendments which I propose tomove. I propose to omit the words “ and whether it is or is not removable into the High Court under the foregoing provisions of this part of this Act.” That amendment will be necessary, because, the foregoing provisions having disappeared, the words I have quoted must disappear also. I move -

That the words “ And whether it is or is not removable into the High Court under the foregoing provisions of this part of this Act,” lines 3 to6, be omitted

Amendment agreed to.

Mr DEAKIN:

– The nextamendment is in sub-clause (2.) I move -

That the words “ And documents in the cause or certified copies thereof,” lines 15 and 16, be omitted, with a view to insert in lieu thereof the words “in the cause and such documents, if any, relating thereto, as are filed of record in the court of the State, or, if part only of the cause is removed, a Certified copy of those proceedings and documents,”

Mr CONROY:
Werriwa

– In my opinion the whole of the clause ought to be struck out.

Sir JOHN QUICK:
Bendigo

– I wish to direct the attention of the AttorneyGeneral to the concluding portion of subclause (1) -

And shall be made as of course upon motion in open court by the Attorney-General of the Commonwealth or on his behalf.

I wish to know whether that means in suits to which the Attorney-General is a party, or whether it is intended that the AttorneyGeneral may interpose in a suit between two private persons, and move that it be removed to the High Court?

Mr Deakin:

– Yes.

Sir JOHN QUICK:

– I do not think that is j ustifiable. Why should the AttorneyGeneral interfere between plaintiff A as against defendant B, and say - “I will not allow you to have this case settled in the court of the State ; you must have it removed to the High Court.”

Mr Watson:

– Is it intended to cover constitutional points?

Sir JOHN QUICK:

– I do not know. It seems to refer to all cases.

Mr DEAKIN:

– I look upon that matter as one of the questions of substance with which I propose to ask the Committee to deal presently. I propose to make these formal and necessary amendments, and then to submit the clause as a whole. If any difficulty occurs, I shall be prepared to recommit the clause.

Amendment agreed to.

Amendment (by Mr. Deakin) agreed to -

That the words “ in the same manner as hereinbefore prescribed in the. case of a removal by a defendant,” lines18 to 20, be omitted.

Mr McCay:

– Is it contemplated to remove a cause to a hearing before a single Judge of the High Court, or to the Appellate High Court direct ?

Mr DEAKIN:

– It can go, under this clause, to a single Judge of the High Court.

Mi-. McCay. - That means a nisi prius hearing with a subsequent appeal, which is exactly what is covered by the previous clause.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– Would the AttorneyGeneral pay the costs of the litigants where he intervenes ?

Mr DEAKIN:

– That is a question for the Committee to consider.

Mr Conroy:

– If he would all suits would be removed.

Mi-. DEAKIN.- If honorable members will look at the clause they will see that it provides that a suit -

May at any stage of the proceedings before final judgment be removed into the High Court under an order of the High Court.

– I do not assert that removal is essential to that. Sometimes that can be obtained without this mode of removal.What I wish to impress upon the Committee is the importance of the power, and at the same time my entire willingness to consider any proposal that will safeguard removals, and which authorize it only upon reasonable and proper grounds, so as to prevent it being made what one of my honorable friends calls an instrument of oppression. I am perfectly prepared to consider any limitations either of the matter to be removed or the manner of removal. I have no desire to multiply proceedings or to increase costs.

Mr McCay:

– I suggest the insertion of the words “ on appeal “ after the word “ pending “ to begin with.

Mr DEAKIN:

– What I desire is to retain this power as a safeguard, in order that the class of cases for which the Federal Court is specially created, and to decide which it will exist, may be brought before it when necessary, in the most summary and inexpensive manner. That is the design underlying all the removal clauses, and I hope I shall have the assistance of honorable members in shaping them in any better form than is at present proposed to achieve that end. I do not desire that they should be unduly elaborate, coercive, or cumbrous. I hope that honorable members are agreed as to the necessity of possessing a power of removal, and am willing to accept their assistance to so safeguard its exercise, and the manner of its exercise, as to meet all the objections we can.

Mr. CONROY.(Werriwa).- If the powers conferred in clauses42, 43, and 44 had remained, clause 45would probably have been rightly drawn, but since this Bill was introduced we have started upon entirely different lines. We are now trying to secure that the High Court tobe created shall be purely an appellate court, and regarding, it as an appellate court, especially in view of the alteration we have made in clause 41, I cannot see how clause 45 can possibly be necessary. It may work much evil, andit should therefore be eliminated.If the Attorney-General drafts a clause to deal with cases, pending appeal or on the lines lately suggested by himself, it might , meet with a different reception from the Committee. At present we cannot disguise the fact that this clause is altogether too wide, and , would allow the Attorney-General to control and to entirely alter the jurisdiction which we have decided to vestin the High Court. The honorable and learned gentleman would, of course, in his opinion,be rightly exercising his powers under this clause, in giving original jurisdiction to the High Court. Any one can see that that was the honorable and learned gentleman’s intention in regard to it. If somelater Attorney-General is of the same opinion honorable members can imagine thedifficulty we shall be met with-we shall have gone altogether outsideof what the Bill as amended by the Committee is intended to provide for. As theclause is drawn, we have no option butto exciseit ; butit could be drafted in a very much narrower form to meet the class of cases which. the AttorneyGeneral has suggested. Perhaps the honorable and learned gentleman, upon recollecting that this clause was drawn when very much larger powers were provided for under the Bill, will see his way to withdraw it.

Mr Thomson:

– We have restricted the power of the High Court, and we are now being asked to expand it.

Mr CONROY:

– Really this clause amounts to that. I remind the Committee that, under clause 15 -

Any Justice of the High Court, sitting alone, may exercisein court, or, in the cases hereafter specified; in chambers, all or any part of the jurisdiction of the High Court.

So that, so far from any savingof time being secured bythis clause, considerableadditional delay might be involved . There would, for example, be a removal to a Justice of the High Court, and then the right of appeal would still continue from the J ustice of the High Court to the Appellate High Court. There could be no possible saying of time under those circumstances. While the Supreme Courts of the various States are practically always ready to give their decision, it will, be admitted that, considering the limited number of Judgesof the High Court which the Committee seems likely to agree to, the delay under this proposal will be very much greater than without it. However, the chief objection I have to the clause rests on the ground thatwe are here being asked to extend a power which has been removed from the previous clauses by the Committee. So far as we could take it away, the Committee has taken away the whole of the original jurisdiction proposed to be conferred upon the High Court, and our desire has been, as far as possible, to create an appellate court only. Two principles were at first involved, the giving of appellate and also of originaljurisdiction, and this clause 45 deals with questions of original jurisdiction, as if no alteration whatever had been made in the preceding clauses. The very fact that the Attorney-General was unable satisfactorily to answer the question put to him by the honorable and learned member, for Corinella should preclude us from accepting the clause as it stands.

Mr McCAY:
Corinella

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– Until the facts had been ascertained.

Mr HIGGINS:

– Yes ; until the final stage.

Mr McCay:

– I do not know that he has agreed to that.

Mr HIGGINS:

– At any rate the honorable gentleman seems inclined to act in that way. I would further point out that during the hearing of cases a Judge frequently makes observations which disclose the direction in which his mind is working; consequently the interested parties to any suit listen with great eagerness to such observations. But under this clause as soon as a suitor discovers that .a particular Judge takes up an antagonistic attitude towards him, he will at once avail himself of its provisions, and find some reason for the removal of his cause to the High Court, because he will thereby secure another “ run for his money.”

Mr McCay:

– Proceedings will have to be stayed till the application to the High Court is heard.

Mr Isaacs:

– The clause does not provide for anything of that sort.

Mr HIGGINS:

Mr DEAKIN:

– My present thought is to leave the Attorney-General power only on the same terms as any other person if I do not make a separate provision allowing the Attorney-General of the Commonwealth or of the States to refer certain cases as was suggested by my honorable and learned friend, Mr. Glynn, or in the manner suggested by the honorable and learned member for Indi. That proposal seems to me to be one which, if separated from this clause, might be very useful. It certainly could not prejudice the interests of any litigant, while it might assist the. solution of difficult problems if such happen to arise in minor cases which would otherwise not be brought to appeal. The decision in such a case might, within a State at all events, and perhaps over a wider area if it were a court exercising Federal jurisdiction, operate unfavorably to the construction of the Constitution which, in the interests of the Commonwealth, ought to be maintained. If honorable members will pass the clause as it is it will be reprinted, and they will then be able to grasp with less difficulty the significance of the amendments I shall propose.

Clause, as amended, agreed to.

Clauses 47 to 51 postponed.

Clause 52 -

There shall be paid to the Chief Justice a salary at the rate three thousand five hundred pounds a year, and to each other Justice a salary at the rate of three thousand pounds a 3’ear.
There shall also be paid to each Justice of the High Court, on account of his expenses in travelling to discharge the duties of his office, such sums as are considered reasonable by the Governor-General.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– Pensions are also provided in this Bill, and will be dealt with later on ; at any rate, the question of pensions is not mixed up with the question we are now discussing.

Sir Malcolm McEacharn:

– If the honorable member is comparing the proposed salaries with the salaries of the States Judges, it must be remembered that the latter receive pensions, and that the clause providing pensions under this Bill may hereafter be struck out.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Quite so. Take the case of the Secretary for External Affairs. He gets £800 a year, but the head of a corresponding Department in New South Wales receives £1,100 a year. The Secretary for Home Affairs receives £700, whereas £1,000 is paid in New South Wales. The Secretary to the AttorneyGeneral’s Department receives £750 a year ; a similar State officer receives £950. And so, all through the gamut of these salaries, we have deliberately fixed them at a much lower rate than is paid in the States.

Mr Higgins:

– There is no Federal extravagance there.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I see none. On the other hand, it is only fair to say that I do not believe that the Federal officers have the same amount of work ‘to do as have similar officers of the States, for the simple reason that all our functions are not yet developed. Similarly, my own opinion is . that the Judges will not have so much work to do ; that is to say, it will not be so continuous, and their noses will not be kept so close to the grindstone in the earlier stages of federation, as is the case with the Judges of the States Courts. My object is to give to the court as few functions as possible. It is a much easier matter to clothe the court with greater powers, and to increase the salaries of the Judges at a subsequent period, than to curtail its powers and pay the Judges less, once the court becomes a settled institution in the country. .We see how difficult it is to interfere in any way with the present States Courts. Reductions ought to be made in connexion with all of them. That is the doctrine that is being preached industriously throughout the Commonwealth. But it is found to be a matter of prodigious labour and of almost insuperable difficulty to curtail the privileges and the functions of State institutions in any way whatever. So it will be with the Judges of the High Court. Therefore we shall do a wise thing, and certainly a thing that will be in keeping with our protestations of economy, if we reduce the amount to be paid to the Judges. I move -

That the word “three,” line 2, be omitted with a view to insert in lieu thereof the word “ two.”

I move this amendment with the object of fixing the salary at £2,500 a year.

Mr Mauger:

– Make it £3,000 and many of us will vote with the honorable member.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– I consider that £2,500 would be an adequate salary.’

Mr O’MALLEY:
Tasmania

Mr DEAKIN:

– The salary which Chief Justice Way receives from the State is not the income upon which he depends. If he received nothing from the State he would still be independent. When the honorable member can show us a number of persons as able and as wealthy as is Chief Justice Way, we shall be in a happy position. But we shall be placed in an unfair position, especially at the outset of the Commonwealth, if we have to offer salaries lower than those actually paid in three of the States of the Union. The gentleman holding this position is to be the Chief Justice of the whole of Australia, but if measured by his income he is to be a man of less standing than are the Chief Justices of three of the States over all of which he presides, and all of which fall within his area. This is to be the status of the, first Chief Justice of the Federal Courts which are to interpret our Constitution and our laws, and upon whose interpretation of the Constitution its future reading for a long time is certain to depend. I do not wish to delay the Committee, but would remind honorable members that the salaries we have fixed are far below the standard set by English salaries. It is true that they are above those paid in Canada and the United States, which were fixed a century ago ; but they are not above the amounts which to-day have to be paid in Canada and the United States, where they seek to obtain the best men. and do obtain them. We have no desire to constitute a court such as that in Canada, to which the chief legal journal of the Dominion has referred in the severe terms which have been quoted. We have no desire to see our court passed by because there is no confidence in its decisions. We have no desire to see it the Chief Court in Australia only in name, because men will not accept positions on the Bench.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– The salaries paid in Canada are not one-half the amount of those proposed by the Government.

Mr DEAKIN:

– The Chief Justice receives £1,650, while the other members of the Bench are paid £1,450 per annum. But what is the statement that has been made concerning that court ? Professor Harrison Moore states that -

Of the highest appellate tribunal in the country it was declared last year that it did not possess the confidence of the profession or the public ; that litigants went there, not from any belief in the goodness of their cause, but “on the offchance of a reversal by another set of Judges, gambling on the uncertainty of the law.”

Mr WILKS:

– We know pretty well already the amount of work they will have to do. The honorable member is backing up the Attorney-General, who referred to the gambling that takes place in courts in Canada; but we know that so long as there is a higher court, they will gamble. I do not think the fact that the Judges will not be very highly paid will encourage gambling in law. I remind honorable members that the Prime Minister of this country receives a salary of £2,500 a year. He has no permanency, and no pension, and, in fact, occupies a very precarious position. He has to superintend the whole of the affairs of Australia, and although he will have the appointment of these High Court

Judges, he only gets £2,500. Once we introduce comparisons of this kind, honorable members will see how absurd the Government’s proposal is. If the argument be sound that to get the best men of the legal profession to accept positions as Judges of the High Court, we should pay a salary of £3,500 a year, we should pay the Prime Minister of the Commonwealth £5,000 a year. The present Prime Minister is a well-known lawyer, and is regarded in the . profession as a lawyer of high standing, but we find him working for £2,500, with no chance of a pension and no permanency.

Mr McCay:

– We are told that it is a permanent position.

Mr WILKS:

– It is permanent until the election. I agree with those who ask for a reduction of the salaries proposed. The Attorney-General has not shown how the confidence of the profession, or of the general public, will be shaken by a reduction, but we know how the public will be shaken by an increase of the salaries. I should like to hear some argument against the proposal to fix the salary at £2,500 a year. We are told that younger men at the Bar, getting £8,000 or £10,000 a year, will not be attracted by the offer of a position on the High Court, but this is the age of economy, and we must not fix as current rates the. rates which existed in the boom period.

Mr DEAKIN:

– If I understand that it is the wish generally of honorable members to consider clause 53 before clause 52, I shall now move the postponement of clause 52 until after we have considered clause 53. Before doing so I may take the opportunity of reading one short extract which I missed, and which I intended to have used relating to the effect of the salaries paid to the Canadian J udges -

A letter to the EmpireReview for March points out that the names of many of the Judges appear on the directorates of trusts, finance, insurance, or other corporations.

Amendment, by leave, withdrawn.

Motion (by Mr. Deakin) agreed to -

That clause 52 be postponed until after the consideration of clause 53.

Clause 53 -

A Justice of the High Court, if disabled by permanent infirmity from the performance of the duties of his office, shall be entitled to retire upon a pension to be continued during his life at a rate -
1. equal to two-tenths of his actual salary at the date of his retirement if he has served for less than five years ;
2. equal to three-tenths of that salary if he has served forfive years ;
3. equal to five-tenths of that salary if he has served for ten years ;
4. equal to seven-tenths of that salary if he has served for fifteen years.
A Justice of the High Court who has served for fifteen years as a Justice of that court shall be entitled upon reaching the age of sixty-five years to retire upon a pension to be continued during his life at a rate equal to seven-tenths of his actual salary at the date of his retirement.
When any Justice of the High Court is entitled, by virtue of any right preserved by the Constitution, to any pension upon retirement, that pension shall be deemed to be in reduction, pro tanto, of the pension to which he is entitled under this Act.

Mr CROUCH:

– If he does he is not in the pitiable position that he has to remain on the bench through fear of poverty. If we wish to get the best men to occupy these positions, and if we wish only to retain them so long as they are able to efficiently perform their duties, we shall provide for a pension. I support the clause, and I trust the Committee will not accept the suggestion of the honorable member for Melbourne Ports.

Mc. BRUCE SMITH (Parkes).- If the honorable and learned member who has just spoken would read the clause a little more carefully, he would see that it is distinctly, in favour of the Commonwealth. It provides for a case in which a Judge is disabled by permanent infirmity from the performance of the duties of his office The honorable a.nd learned member for Corio will not contend for a moment that it is not in the interests of the Commonwealth that, when a Judge has developed some permanent infirmity which renders him incompetent to perform his functions as a Judge, some inducement should be offered to him to resign. We cannot provide in a Bill of this kind that a Judge shall occupy his position only so long as he is competent, in the estimation of the permanent law officers of the Crown, to discharge his duties, and therefore our only recourse is to provide that, when a Judge is afflicted with some permanent infirmity, a moderate pension shall be offered to him to retire and allow a more competent man to take his place. It is therefore proposed that -

A justice of the High Court, if disabled by permanent infirmity from the performance of the duties of his office, shall be entitled to retire upon a pension, to be continued during his life.

Then the rates are set forth. If the Judge has served for less than five years he is to be entitled to a pension equal to twotenths of his salary. If he had been appointed at a salary of £3,000 a year, he would thus be entitled to a pension of £600 a year.

Mr Poynton:

– How much would he get. if he were outside 1

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– That is not the question. We are framing a Bill by which we hope to secure the services of, if not the very best, certainly some of the very best men in the community. We want men upon whom four millions of people can depend for the interpretation of the Constitution. It cannot be said that anybody will be good enough to act as a J udge of the High Court, and we may rely upon it that by reducing the salaries we shall also lessen our chances of securing the best men. . Even moderate men would not be attracted to positions of this kind if they felt that, in the event of sudden illness overtaking them, and rendering them unfit to longer continue their duties, they would be shelved, and left to take their chance in the hurly-burly of life. It will be to the interest of the Commonwealth to offer an inducement to Judges who may be thus disabled by permanent infirmity to give up their positions, and we may fairly give them a moderate recompense for the sacrifice they will in such a case be called upon to make. There is no parallel between the provisons of the clause and the case put by the honorable member for Melbourne Ports, in which a Judge of the Supreme Court of Victoria retired at the age of 60 upon a pension of £1,500. The Bill proposes that a Judge who has served fifteen years on the High Court Bench shall be entitled to retire upon a pension - but only when he has reached the age of 65. Although human life is said to be lengthening, 70 years is still about the average span for the most healthy among us, and, therefore, it is only reasonable to provide : that when a Judge has reached the age of 65 years he shall be entitled, if he has served fifteen years, to receive a pension equal to 7-10ths of his salary. AV e are not thus legislating so much in the interests of the Judges as in the interests of the Commonwealth, because if 70 years be taken to be the maximum age at which most men fail to retain their full faculties, it is not extravagant to provide that when a J udge is five years short of the end of his natural life he shall be allowed to retire on a pension. AVe do not want upon the Bench palsied men - men who are really not in the possession of their full faculties, and who are incompetent to do the very difficult work which will fall to their lot. Therefore, instead of looking at this clause from the point of view of the Judge, it should be regarded as a safety-valve which will enable the Commonwealth to clear the Bench of Judges who have become broken down by age or permanent infirmity. I would point out also to the honorable member-for Melbourne Ports that, if no pensions were provided for, it would be open for any Judge to remain on the Bench long after he had become incompetent, through illness, to do his work faithfully and well.

Mr Isaacs:

– The Constitution provides for removal in such cases.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Yes ; but unless a Judge were grossly incompetent no Government would take the extreme step of removing him. 4 k 2

Mr Mauger:

– Would not the same thins apply, even if pensions were provided for, if a Judge still desired to remain on the Bench?

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– No; because Parliament would be much more ready to take steps to remove a J udge when they knew that a pension was provided for in case of his lacking ability, through illness, to proper!)’ perform his duties. I submit, therefore, that it is fair that Judges who have arrived at an age within five years of the recognised allotted span of life should be offered an inducement to retire from the Bench, and make way for younger men.

Mr CRUICKSHANK:
Gwydir

– This seems an opportune time to discuss the whole question of pensions, which is ever recurring in connexion with the discussion of Estimates. AVe should deal with this matter in the broadest possible spirit, and fix the salaries upon such a liberal scale that we shall encourage our best and youngest men to take up the positions of Judges. We should also endeavour to secure as Judges men of such an age that it will be possible to provide for them by way of insurance, instead of adding to the burdens of the taxpayers by granting pensions. We should not make the High Court Bench a place of refuge for barristers who desire to retire from the active practice of their profession. The honorable member for Melbourne Ports proposes that no provision shall be made for pensions, but I take a very liberal view of pensions in the case of Judges, because I feel that we must get the best men. I should, however, be in favour of offering the highest possible salary, fixing the amount of the pension in inverse ratio to the amount of the salary. Our Judges should be not only the best men, but the healthiest, and such as would most likely be able to render us good service for many years.

Mr WILKS:
Dalley

– I listened very attentively to the arguments of the honorable and learned member for Parkes in regard to the proposed pension arrangements, but I should like to know why, if a J udge is suffering from some permanent disablement - the palsy, or an enlarged liver, perhaps - the amount of pension paid to him should be in inverse ratio to the length of his service ? The clause provides that if the Chief Justice of the High Court becomes disabled before five years’ service he is to receive a pension of £700 a year; if after five years’ service, of £1,050 a year if after ten years’ service, of £1,750 ; and if after fifteen years’ service, of £2,450. As a matter of fact, however, a Judge who becomes permanently disabled at 55, and thus wholly dependent upon his pension for support, has a longer life before him and will be worse off than a Judge who becomes permanently disabled at 65. It seems to me absurd that there should be any connexion between the salary and the pension.

Mr Deakin:

– The longer their services to the country the better their rewards.

Mr WILKS:

– Then am I to understand that their salaries alone are not to be regarded as paying for their services 1 If their salaries pay them for their services, we have no right in fixing their pensions to consider their length of service. I hope that the Committee is not prepared to abolish pensions altogether, but I would rather vote for their abolition than for a differential scheme like this.

Mr O’MALLEY:
Tasmania

– I should like clause 52 to be settled before we go further. If - the scale of pensions allowed for is agreed to I shall certainly vote for much smaller salaries. I think that pensions of a certain amount should be provided, so that Judges who become incompetent by reason of physical or intellectual misfortunes may have something to support them. I should not like any of the Judges of the High Court to be placed in the position in which we saw an old warrior here in Victoria lately. They had a great battle to get anything( for him, though he was one of the greatest democrats that Victoria ever produced. His case made every man who had any human .sympathy in his soul blush with shame at the meanness and parsimony of this State. We must make such provision that we shall not have Judges who have made financial mistakes reduced in penury in their old age. It is easy to say that men in such a position should provide for their future, but, as a rule, Judges are not financiers. They are law-givers, not money-grabbers. They are not sharp enough for the money-grabbing business. Consequently they may lose all they have through some financial mistake on their own account, or to help their sons. But no one would like to see an old J udge of the High Court qf this great Commonwealth going round bare-footed. I heard Holman, of Indiana, the watch-dog of the United States Treasury for 40 years, say when he was bidding good-bye to his people, after a young lawyer had come to his district while he was away and put him out, that - paraphrasing Cardinal Wolsey - if he had served his family half as faithfully as he had served his electors, he would not have been indigent in his old age. I do not want our Judges to be indigent when they are old. I would not give large pensions, but I would give them as much as .£500 a year. It is well known to every thinker that the great men, the intellectual giants of the world, are not those who make money. . They have no time for that sort of thing, and do not know how to do it. They have not studied the methods of gathering in. But, before settling the pension question, I should like to deal with the question of salaries. If I knew that the three Judges were to get £3,000 a year each, without distinction, I would vote for a pension of £500 when a Judge had to retire by reason of intellectual or physical disability. That would enable him to live out in the country with his books, away from the stir and noise of city life.

Mr. L. E. GROOM (Darling Downs).Honorable members have expressed the desire that the field of choice for the Judges of the High Court shall be made as wide as possible, although some have suggested that politicians shall not be permitted to occupy seats on the Bench. I draw attention, however, to’ the fact that under clause 53 pensions are payable to the. Justices of the High Court at certain rates “ if disabled by permanent infirmity.” But it may be desirable to choose some one or more of the Judges of the States Courts.

Mr O’Malley:

– Certainly not. We can fill the High Court Bench out of this Chamber.

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– The Executive should have the right to choose a Judge of a State Court, if they thought him the most suitable appointment.- I would point out, however, that the Judges of the States Courts have pensions secured to them after a period of fifteen years service, or upon disability. But the provisions in clause 53, would make it necessary for a man who was taken over while in full possession of his faculties, and before the completion of fifteen years of service, to abandon some of his existing rights, as, unless he has served, fifteen years in the State, he has no right to a pension at all.

Mr O’Malley:

– We do not intend to take them over.

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– I desire to leave the Executive free to exercise an untrammelled choice.

Mr Poynton:

– Will the honorable and learned member vote in favour of a proposal to give the State J udges the first refusal of the positions ?

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– No. I believe in allowing the Executive to have a free hand in this matter. If we are to grant pensions to the Justices of the High Court we ought to make provision whereby Judges of the States Courts, if appointed to the Federal Bench, shall not be placed under any disadvantage. Sub-clause (3) of this clause reads -

When any Justice of the High Court is entitled, by virtue of any right preserved by the Constitution, to any pension upon retirement, that pension shall be deemed to be in reduction pro tanto of the pension to which he is entitled under this Act.

That means that we can practically only appoint to the High Court Bench J ustices who have actually served fifteen years in theStates Courts, and who have thus acquired a right to a pension. If we decide to grant pensions to the Justices of the High Court we ought to provide that State Judges shall not be placed under any disability by reason of their having undertaken to serve the Commonwealth in a higher capacity.

Mr DEAKIN:
Protectionist

– If the honorable and learned member for Darling Downs will carefully read the sub-clause in question he will find that the contingency which he has suggested has been anticipated.

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

– But if he has not served nine years he will receive no pension.

Mr DEAKIN:

– The sub-clause provides that in the event of a State Court Judge being appointed to the High Court, and being entitled under the State law to a pension, such pension shall be deemed to be paid in reduction of the pension to which he may be entitled under this Bill ?

Mr Isaacs:

– But that will apply only to Judges who are entitled to State pensions.

Mr DEAKIN:

– The last portion of section84 of the Constitution says -

Any officer who is at the establishment of the Commonwealth in the public service of a State, and who is, by consent of the Governor of a State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth, and were retained in the service of the Commonwealth.

– Well, a Judge might become incapacitated for a day.

Mr CONROY:
Werriwa

– I think it would be much better to use the words employed by the Constitution. The suggestion of the honorable and learned memfor South Australia, Mr. Glynn, is a very sound one in view of the language used in sub-section (2) of section 72.

– I shall not oppose that amendment.

Mr. HUME COOK (Bourke).- Some of us desire to test the question whether there shall be pensions or not.

Mr Deakin:

– That can be done by voting on the whole clause.

Mr HUME COOK:
BOURKE, VICTORIA · PROT

– Would it not be better to test the point by cutting out the words “upon a pension”?

Mr. MAUGER (Melbourne Ports).With due respect to the Attorney-General I prefer to test the question before the subclause is altered. We ought to have a clear and distinct understanding. If the clause is whittled down an amendment against pensions is likely to be defeated.

Amendment, by leave, withdrawn.

Mr. MAUGER (Melbourne Ports). - In order to test the question, I move -

That the words “upon a pension “ be omitted.

Mr. WILKS (Dalley). - The temper of the Committee has undergone a considerable change within the last few minutes, and the Government are now prepared to compromise. The difference between those who do not believe in the payment of pensions and those who support the clause as it stands has been greatly altered. The amendment moved by the honorable member for North Sydney was put forward, because he considered that a money payment would prevent temptation. The honorable member argued that the lives and liberties of the public, which are in the hands of our Judges, would be better cared for if pensions were granted.

Mr Thomson:

– I did not say that.

Mr WILKS:

– That was the purport of. the honorable member’s remarks. The argument put forward in regard to the question of salaries applies with equal force to the payment of pensions. The Prime Minister of the Commonwealth, for example, does not receive a pension, nor does any honorable member of the House receive one ; but the lives and the liberties of the public are in our hands while we are here. The difference between the work of legislation and of administration is very slight. I contend, however, that neither salaries nor pensions can be said to be a material factor . in protecting the affairs of the country. The poorest man that Australia ever had in public life was the late Sir Henry Parkes, and yet he was the most determined in looking after the interests of the people. He was a man who retired upon the slightest insult being offered to his Government.

Mr Page:

– He went out once too often.

Mr.WILKS. - The honorable member is scoffing at the memory of the greatest public man who ever lived in Australia, and who, by the way, rose from the ranks of the workers.

Mr Page:

– That is a question.

Mr Thomson:

– Members of Parliament are not prohibited from earning their living by following other occupations.

Mr WILKS:

– That may be so: but let us look for a moment at the position of officers in banking institutions. The honorable member for New England said that the managers of our banks receive very large salaries. We must not forget, however, that they have to provide for their own pensions out of their salaries.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Not at all.

Mr WILKS:

– In the Bank of New South Wales and the Commercial Banking Corporation a deduction is made from the salary of every officer - from the general manager to the officer occupying the most subordinate position - to provide for his pension.

Mr Thomson:

– But the management contribute to the fund.

Mr WILKS:

– It is proposed that a certain pension shall be paid to a Judge who becomes incapacited by permanent infirmity, not less than five years after accepting office. But if a Judge suffers from some physical infirmity after two years service, should he not be entitled to equal consideration on the part of the public as is the man who after five years service becomes incapable of remaining on the Bench ? I see no wisdom in saying that the pension shall start after five years service. If it is right that pensions should be granted, let them start from the time that they are actually required. I can understand the Government proposal. They provide that if a man becomes paralyzed, or suffers some other infirmity during the first year of office, he shall at once be entitled to a pension. But under the amendment which has been temporarily withdrawn, a Judge would be entitled to no such pension if he became incapacitated within five years of his appointment to the Bench. For these reasons, I hope that the honorable member for Melbourne Ports will adhere to his amendment.

Mr. BATCHELOR (South Australia).I have not spoken during the debate on this Bill, but there are one or two phases relating to the payment of pensions to which I desire to make brief reference. When we were dealing with the Public Service Bill, we discussed at length the position of the civil service, but throughout that debate no suggestion was made that we should give a pension to any class of our public servants. Notwithstanding what has been said during the discussion on this clause, I fail to see why any distinction should be made in the case of Judges of the High Court. As a matter of fact, when the Public Service Bill was before us, some honorable members went so far as to oppose a proposal that adults - married men - who had been in the service of the transferred departments for some years, should receive a bare living wage. They were opposed to the payment of a minimum wage, apart altogether from any question of making a retiring allowance to a civil servant suffering from physical infirmity. It would be a great mistake for Parliament to draw this distinction between one class of civil servants and another. I have every respect for the Judges of the States, and I am just as anxious that we should obtain the very best men available for the position of Judges of the High Court as is any honorable member ; but I do not consider it necessary for us to hold out an incentive of this kind. If we offer adequate salaries our Judges, like other persons occupying prominent positions outside the service, will be in a position to purchase life annuities. We compel our public servants to insure their lives, and if in the case of our Judges some provision must be made for old age or physical infirmity, let us make it compulsory for them to purchase life annuities. Such a provision, however, need not necessarily be inserted in the Bill. I intend to protest as strongly as I can against the proposal that special treatment shall be meted out to one particular class of public servants.

Mr. CONROY (Werriwa). - I would remind the honorable member for South Australia, who has just spoken, that there is a great difference between a Judge and the other officers of the public service to whom he has referred, inasmuch as an ordinary member of the service can be dismissed straightway while a Judge cannot.

Mr Batchelor:

– That does not count against my argument.

Mr CONROY:

– Sometimes a Judge may become slightly deaf or suffer from some other infirmity which it is extremely difficult to prove, although it is injurious to his capacity on the Judicial Bench. In such a case it might be possible to induce him to retire by the offer of a fairly large pension. If a man incapacitated in this way continues on the Bench, the cost to the community is infinitely more than would be the payment of a pension. That is one reason why we should grant pensions to our Judges. It is far better that a Judge suffering from deafness, or some other infirmity, should be able to retire voluntarily than that a Bill should be introduced setting one of the very worst precedents for the removal of a member of the Bench. In how many cases has this ever been required ? When one listens to the objections raised against the proposal, one would think that we were dealing with vast sums of money, yet I find that under paragraph (a), the amount involved would be £600, under paragraph (b) £900, under paragraph (d) £1,500, and paragraph (e) £2,100, assuming that the proposals of the Government are carried into effect. If a Judge should develope some infirmity, it would surely be better to hold out some inducement to him to retire. I trust that the Government will be able to carry out their proposals in their entirety, or that they will at least be able to carry them with the modification which has been suggested.

Mr SALMON:
Laanecoorie

– I am rather astonished to find that there is any apologist for the perpetuation of a system which in the past has been condemned throughout the length and breadth of Australia. I am also surprised to find some honorable members who are opposed to pensions for certain branches of the public service advocating that they should be granted to the very highest paid officials of the State. I fail to see any consistency in that. I agree with the honorable and learned member for Werriwa that we are making precedents, and the Committee should establish a precedent in this case which the States could well follow. We can also set a precedent in the matter of salaries, because these, in my opinion, are fixed too high in the Bill, and I shall have something to say upon that when we reach the clause dealing with them. It is our bounden duty to remove altogether from the Federal public service any hope that its members, and especially those receiving high salaries, will have pensions paid to them when they leave the service, though in some of the States the pensions paid nearly equal in amount the salaries which the officers have been receiving when in full service.

It is the duty of those who are in receipt of regular and sufficient payment from the State to make provision for the time when they will not be receiving salary. We can set an example, which some of the States very much require to follow, by wiping out altogether from our annual charges the pension list which, in the past and at present, is in the States proving a terrible, burden upon the taxpayers of Australia.

Mr. BRUCE SMITH (Parkes).- I should like the Committee to consider whether the position in which we find ourselves now is a fair one. The honorable member for Melbourne Ports is endeavouring to have a division taken upon this clause, without first trying whether it cannot be made acceptable to a majority of the Committee in the way suggested by the honorable member for North Sydney. The speeches made so far suggest that there is a very large number of honorable members who are disposed to accept this clause with some modifications, but the honorable member for Melbourne Ports has candidly said that he desires to take a division upon the clause as a whole, because he fears that, if the Committee has an opportunity of modifying it, it may be made acceptable, and he will lose his opportunity of strangling the proposal. The honorable member’s suggestion is the same as if, upon the second reading of a measure, it were assumed that it would be unalterable, and that we should, therefore, take a division upon it in the condition in which .it is first submitted to the House, and without the understanding that, in passing the second reading, we have an opportunity of making the measure acceptable in Committee. Why should we not modify this clause if there is some chance that it may be made acceptable to the Committee ? It will be open to honorable members subsequently to express an opinion upon the whole clause after it has been modified.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– We do not go into Committee upon the Bill before we pass the second reading. We take the principle first, and then deal with the modifications.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– The honorable member for Melbourne Ports is trying now to put the cart before the horse. He is endeavoring to take a final division upon a clause with the expectation and the knowledge that we shall not have an opportunity of making it acceptable to the Committee. We can safely agree to the second reading of a Bill, as we have done in the case of the very Bill now under consideration, on the understanding that we can amend any part of it in Committee.

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– Suppose the second reading is lost.

Mr BRUCE SMITH:
PARKES, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

– If the second reading is lost there is no chance of amending the measure afterwards, but honorable members frequently vote for the second reading of a Bill with the full knowledge that they would not accept it finally in the condition in which it is submitted. If the suggestion of the honorable member for Melbourne Forts is agreed to, the whole clause will be negatived, although I have formed the opinion from the speeches which I have heard that many members of the Committee at the present time are willing to accept the principle if the conditions arc modified in the way suggested by the honorable member for North Sydney. If there is not a majority willing to have the clause in a modified form we shall find that out very shortly, but if there is, by adopting the course proposed by the honorable member for Melbourne Forts, we shall be presenting a majority in the Committee accepting the principle in a modified form, merely because the honorable member has chosen to take the clause by the scruff of the neck, in order to kill it at the first stage of discussion. I submit that unless honorable members desire to do that in the face of the majority, an opportunity should be given to fashion the clause so as to make it acceptable.

Mr A PATERSON:
Capricornia

– As I was one of the first to ring the pension note, I think I have a right to say a word on this question. As a matter of fact, I should like very much to see all Government pensions abolished with the exception of pensions to soldiers who have been crippled in battle. But I quite recognise that there is absolutely no hope of inducing the Committee to accept that policy in a case like this. From the remarks made by the honorable members for Bland and North Sydney, and the sympathy generally expressed by the Committee, I can see clearly that there would be no use in attempting to do away with these pensions. Wecould not expect capablegentlemen of the learning, attainments, and experience necessary to occupy such a position as that of Judge of the High Court without some such provision as this. I am strongly in sympathy with the views expressed by the honorable member for North Sydney, and I have thought it well to explain my position in this respect.

Mr EWING:
Richmond

-I understand that if the principle of paying pensions be established, honorable members will be afforded an opportunity of voting on the amendment suggested by the honorable member for North Sydney, or some proposal in a similar direction.

Mr Deakin:

– Hear, hear.

Question - That the words proposed to be omitted stand part of the clause - put. The Committee divided.

AYES: 20

NOES: 29

Majority … … 9

AYES

NOES

Question so resolved in the negative.

Amendment agreed to.

Progress reported.

House adjourned at10.57 p.m.

Cite as: Australia, House of Representatives, Debates, 23 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030623_reps_1_13/>.

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House of Representatives23 June 1903

GOVERNOR-GENERAL’S SPEECH : ADDRESS IN REPLY

Mr SPEAKER:

Tennyson,

Governor-General. 19th June, 1903

QUESTION

ELECTORAL ROLLS

Mr PAGE:MARANOA, QUEENSLAND

Sir EDMUND BARTON:Minister for External Affairs · HUNTER, NEW SOUTH WALES · Protectionist

QUESTION

PACIFIC ISLAND LABOURERS ACT

Mr FISHER:WIDE BAY, QUEENSLAND

Sir EDMUND BARTON:Protectionist

PAPERS

QUESTION

DEARNESS OF MEAT

Mr McDONALD:KENNEDY, QUEENSLAND

Sir EDMUND BARTON:Protectionist

Mr O’MALLEY:TASMANIA, TASMANIA

Sir EDMUND BARTON:

Mr CONROY:WERRIWA, NEW SOUTH WALES

QUESTION

SORTING OF MAILS

Mr MAHON:COOLGARDIE, WESTERN AUSTRALIA

Sir PHILIP FYSH:TASMANIA, TASMANIA · FT

QUESTION

FEDERAL STAMPS

Sir LANGDON BONYTHON:SOUTH AUSTRALIA

Sir PHILIP FYSH:Minister (without portfolio) · TASMANIA, TASMANIA · Free Trade

QUESTION

ADMINISTRATION OF NEW GUINEA

Mr CROUCH:CORIO, VICTORIA

Sir EDMUND BARTON:Protectionist

QUESTION

TELEPHONE GUARANTEES

Mr CONROY:

Sir PHILIP FYSH:Free Trade

Mr Conroy:

Sir PHILIP FYSH:

QUESTION

ALLEGED FEDERAL EXTRAVAGANCE

Mr HUME COOK:BOURKE, VICTORIA · PROT

Sir EDMUND BARTON:Protectionist

Mr JOSEPH COOK:PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr SPEAKER:

Mr JOSEPH COOK:PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr Watson:

Mr JOSEPH COOK:PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Sir Edmund Barton:

Mr Conroy:

Mr SPEAKER:

Sir EDMUND BARTON:

QUESTION

OVERTIME : POST-OFFICE EMPLOYES

Mr HUGHES:WEST SYDNEY, NEW SOUTH WALES

Sir PHILIP FYSH:Free Trade

QUESTION

CUSTOMS FACILITIES, BURNIE

Mr HARTNOLL:for Sir Edward Braddon

Mr KINGSTON:Minister for Trade and Customs · SOUTH AUSTRALIA, SOUTH AUSTRALIA · Protectionist

QUESTION

TELEGRAPH GUARANTEES

Mr MAHON:

Sir GEORGE TURNER:Treasurer · BALACLAVA, VICTORIA · Protectionist

JUDICIARY BILL

Mr GLYNN:South Australia

Mr DEAKIN:

Mr Deakin:

Mr GLYNN:

Mr DEAKIN:

Mr Glynn:

Mr DEAKIN:

Mr Deakin:

Mr GLYNN:

Mr CONROY:Werriwa

Mr MAHON:Coolgardie

Mr Conroy:

Mr MAHON:

Mr Mahon:

Mr CONROY:

House of Representatives
23 June 1903

Mr PAGE:
MARANOA, QUEENSLAND

Sir EDMUND BARTON:
Minister for External Affairs · HUNTER, NEW SOUTH WALES · Protectionist

Mr FISHER:
WIDE BAY, QUEENSLAND

Sir EDMUND BARTON:
Protectionist

Mr McDONALD:
KENNEDY, QUEENSLAND

Sir EDMUND BARTON:
Protectionist

Mr O’MALLEY:
TASMANIA, TASMANIA

Mr CONROY:
WERRIWA, NEW SOUTH WALES

Mr MAHON:
COOLGARDIE, WESTERN AUSTRALIA

Sir PHILIP FYSH:
TASMANIA, TASMANIA · FT

Sir LANGDON BONYTHON:
SOUTH AUSTRALIA

Sir PHILIP FYSH:
Minister (without portfolio) · TASMANIA, TASMANIA · Free Trade

Mr CROUCH:
CORIO, VICTORIA

Sir EDMUND BARTON:
Protectionist

Sir PHILIP FYSH:
Free Trade

Mr HUME COOK:
BOURKE, VICTORIA · PROT

Sir EDMUND BARTON:
Protectionist

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr JOSEPH COOK:
PARRAMATTA, NEW SOUTH WALES · FT; ANTI-SOC from 1906; LP from 1910; NAT from 1917

Mr HUGHES:
WEST SYDNEY, NEW SOUTH WALES

Sir PHILIP FYSH:
Free Trade

Mr HARTNOLL:
for Sir Edward Braddon

Mr KINGSTON:
Minister for Trade and Customs · SOUTH AUSTRALIA, SOUTH AUSTRALIA · Protectionist

Sir GEORGE TURNER:
Treasurer · BALACLAVA, VICTORIA · Protectionist

Mr GLYNN:
South Australia

Mr CONROY:
Werriwa

Mr MAHON:
Coolgardie

Mr GLYNN:
South Australia

Mr HIGGINS:
NORTHERN MELBOURNE, VICTORIA

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr WATSON:
Bland

Mr CONROY:
Werriwa

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr HUGHES:
West Sydney

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934

Mr L E GROOM:
DARLING DOWNS, QUEENSLAND · PROT; LP from 1910; NAT from 1917; IND from 1931; UAP from 1934