1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Mr. FOWLER presented a petition from the Western Australian Chamber of Manufactures, praying the House to repeal subsection (8) of section 3, and section11, of the Immigration Restriction Act.
– I desire to make a personal explanation. Unfortunately I was away last night when the division on clause 53 of the Judiciary Bill, which deals with pensions, was taken, because I did not know that that clause would be reached. I had paired as usual against the Government, but had I been present I should have voted most heartily with them for the retention of pensions for the Judges of the High Court.
ask asked the Prime Minister, upon notice -
Whether, in view of the large surplus of the Commonwealth revenue, as shown by him yesterday, he will immediately bring in a Bill establishing a system of national old-age pensions ?
– The answer to the honorable member’s question is as follows : -
The surplus mentioned by the honorable member has been distributed among the several States, as mentioned by me yesterday ; and it is believed that without it, embarrassment to their finances would have taken place. Moreover, if the large sum mentioned could have been withdrawn from the above purpose and applied to the carrying out ofa system of old-age pensions, it is more than doubtful whether it would hare proved sufficient to pay throughout the Commonwealth pensions on the lines adopted in New South Wales and Victoria.
asked the Minister representing the Postmaster - General, upon notice -
– The answers to the honorable and learned member’s questions are as follow : -
asked the Minister representing the Postmaster-General, upon notice -
– The answers to the honorable member’s questions are as follow : -
Sir EDMUND BARTON laid upon the table
In Committee (consideration resumed from 23rd June, vide page 1245) :
Clause 53. (Pensions.)
Sir WILLIAM McMILLAN (Wentworth). I am sorry to delay the Committee, but I feel very strongly on the question of pensions.
– I hope that the Committee will be given an opportunity to reconsider it. I know that if we create the pension system it will probably endure for all time, but it must be recollected that if at this stage of our history we run the risk of not obtaining on the Bench of the High Court the best judicial talent in Australia, we shall run the risk of injuring irreparably the Constitution to which we are sworn. The Judges of the High Court will have the same duties to perform as were so nobly performed in the case of the American Constitution by the Judges of the Supreme Court of the United States after the creation of that great Commonwealth, the mass of whose judicial learning is to-day part and parcel of the Constitution itself. Not only do we want the ablest talent available, but we should be able to get it while its possessors are in the prime of life. But if we do not offer to our Judges a provision for old age, it cannot be expected that the men who are earning ?4,000, or ?5,000, or ?6,000 a year at the Bar will give up their profession to accept seats on the Bench. They will be prevented from doing so, not merely out of consideration for their own interests, but also for the sake of their families. It would be preposterous to expect men who are earning large incomes to accept positions to which much smaller remunerations attach, unless provision is made for their support should they be overtaken by sickness, or have to retire through old age. The present Chief Justice of New South Wales accepted a salary of ?3,500 when he was earning ?9,000 a year at the Bar.
– That shows thatit was not the monetary reward that attracted him.
– The offer of the position was made to him by the Government of the day, but he said that with a young and growing family, and because of other considerations, it was impossible for him to give up his present income. Sir J ulian Salomons was accordingly appointed Chief Justice; and I need not enter into the history of the fortnight or so during which he occupied that position. Then one of the ablest and most brilliant men that New South Wales probably ever had, the late Right Hon. W. B. Dalley, feeling that a great position was being dragged into the dust, appealed repeatedly to Sir Frederick Darley, and ultimately succeeded in getting him to accept the appointment. But no position of the kind, however honorable, is sufficient to causea man to wreck perhaps the whole of his private interests, and no country has a right to ask a man to do such a thing. Without pensions we shall have on the High Court Bench either second - rate barristers or worn out first-rate barristers. If we have second-rate barristers to interpret, not merely questions of ordinary law, but matters affecting the Constitution, upon which enormous interests hang, we shall have a feeble administration of justice which will be ruinous to the country. On the other hand, if we get able men on the Bench, it is only natural that, there being no pension upon which they can retire when they feel themselves past the age for full work, they will probably remain there after the time at which a man’s faculties are reasonably good, and the unfortunate spectacle of a Judge asleep on the Bench may perhaps be the result. Judges like other people are not the most competent to determine their own abilities and the state of their health, and as the vote of the two Houses of Parliament is necessary to secure the removal of an incompetent Judge, the Government of the day will find it almost impossible to remove a man until a public scandal has occurred. This rage for economy is something which is on the breeze, and, therefore, every one is taking up the cry without discrimination.
– It is Kyabram in the air again.
– Every one seems anxious to proclaim from the public platform, or from his place in Parliament, his desire for economy, and the opposition to a proposal like that in the Bill comes either from such people, or from those who think that no one should be paid more than £400 a year.
– The honorable member has no right to say such a thing. Such a remark is an insult.
– I am not speaking personally, because I do not know who voted for the amendment, as I was not present. But there are some who think that salaries of more than a few hundred pounds should not be given to any one. I discovered the same opinion in the Parliament of New South Wales. As the result of the reduction of a vote upon the Railway Estimates there upon one occasion, the Government of that State lost one of the ablest engineers it ever had.
– I question that; What about the Lapstone tunnel ?
– Notwithstanding the feeling which exists throughout Australia that economy is necessary in the administration of both the Commonwealth and the States Governments, I believe that if this matter of pensions to Judges were put before the people by way of referendum, the vote of last night would be reversed.
– A referendum would result in wiping out the High Court - lock, stock, and barrel.
– We can judge of the general opinion of the people only by the views which have been expressed in the States in the past. It was understood when Federation was brought about that we should enlarge the area of our operations, and also enlarge our minds. I would ask honorable members whether there is any State in which the Judges are not entitled to pensions ? I know that in New South Wales and Victoria pensions are provided for, and that no proposal has ever been made to do away with them.
– I rise to a point of order. I wish to know whether it is in order to reopen the whole question of pensions after the decision arrived at by the Committee last night.
– Clause 53, as amended, is before the Chamber, and all its provisions are open to debate.
– On the point of order, Mr. Chairman, I submit that your ruling should be clear and distinct. The question is whether, in view of the decision arrived at last evening upon the question of pensions, the honorable member for Wentworth is in order in discussing the whole matter over again.
– The whole clause, as amended last evening, is now before the Committee, and, as it deals with pensions, that subject is open to discussion. The only words omitted were “ upon a pension,” and it is quite competent for the Committee to adopt some other means of bringing the clause within its original intention.
– I was not very well last night, and I left the chamber because I had no idea that any clause, excepting those dealing with technical matters, would be considered. It is as a matter of courtesy only that I desire to say a few words in order to make perfectly clear my position as acting leader of the Opposition. I believe that the desire for economy may lead us too . far. As in many other cases, the abuse of pensions has led to a reaction. No doubt the arrangement in New South Wales, under which a Judge could retire upon a pension within three months of the time of appointment, was highly improper ; -but that has nothing whatever to do with the question of providing for a reasonable allowance for Judges in their old age, after many years of honorable service. When a man is once made a Judge of a tribunal, such as the High Court, he ought to be removed, not only from the political arena, but from every disturbing element of life. If he has to look forward to a possible withdrawal from the Bench, and to pecuniary difficulty, and has still to conduct private business transactions, he cannot enjoy that equanamity of mind, and that perfect restfulness with regard to the world and its affairs, which is necessary in a man occupying such a high position. The Judges occupy quite an exceptional place among the servants of a State, and should be dealt with entirely apart from questions of ordinary and very proper economy.
– No one will take exception to the action of the honorable member for Wentworth in expressing strong opinions upon the subject under discussion, but I think that, as one of those who voted against the granting of pensions, I may fairly object to some of the language he has used. He has implied that all those who opposed pensions voted for the amendment because there was a passing breeze of economy, and that they were apeing economy because the newspapers were urging them to practise it.
– Hear, hear.
– I hope that the honorable member will confine his interjections to the representatives of his own State. As one of the representatives of “New South Wales, I can assure honorable members that the opinions expressed in the Melbourne press do not influence us in the slightest degree. We have nothing to do with Kyabram, and I am not conscious of any bias in the direction of the Victorian reformers. I have been desirous from the first day I sat in this Parliament to effect reasonable economies in the public service, and I am still following that course, irrespective of what any newspapers may say, or of any economical breeze that may happen to be blowing. The honorable member for Wentworth insinuated, most insultingly I think, that every man who voted against pensions last evening apparently objected to any one receiving an income in excess of £400 a year. The honorable member’s remarks upon this point were quite gratuitous and uncalled for.
– The honorable member spoke as the acting leader of the Opposition.
– Unfortunately the honorable member for Wentworth does not lead the Opposition on this particular matter. It is well understood that this is not a party question. If it had been we should have expected the Government to announce their resignations to-day. The subject is one upon which every honorable member can express his opinion without let or hindrance. The honorable member for Wentworth, in order to make out his case, referred to a shocking example which had occurred in New South Wales. He told us that that State had lost a most able engineer through refusing a pension. That is altogether a matter of opinion. Some people in New South Wales are wild enough to believe that it was one of the best things that ever happened to New South Wales when the engineer went home. The only evidence we had of his ability was a railway tunnel, which everyone looks upon as a death trap and as a huge engineering mistake. So much for the one shocking example. I agree with the honorable member that if, as the result of what was done last night, only secondrate men are appointed to the High Court Bench, it will be a great calamity for the Commonwealth.
– Some honorable members who voted for the amendment wish to kill the Bill, or to make it as worthless as possible.
– The honorable member for Bland is not in that category, because he has voted to make the High Court as expensive and as comprehensive in its functions as possible.
– That is not correct. The honorable member might confine himself to facts for once.
– I thought I was doing so. I am sorry if I misunderstood the honorable member. I am not complaining of his attitude, but as he has supported the most expensive form of court, I am not doing him any injustice.
– That is not correct.
– I will withdraw the statement if the honorable member says it is not correct. At any rate, he supported the Bill as it was brought in by the Government.
– No. I supported the second reading of the measure.
– I always understood that when an honorable member voted for the second reading of the Bill, he approved of its main principles, at any rate. I believe that those honorable members who voted for economy last evening have also assisted to secure a thoroughly competent court to administer the judicial affairs of the Commonwealth. I should have been glad to see an even more economical scale of expense adopted. I should not have objected to a provision which would have enabled the J udges of the States Supreme Courts to be employed for the present.
– That would be unconstitutional.
– Everything is unconstitutional that is opposed to the provisions of the Bill. I am sorry that the Attorney-General is making such heavy weather in piloting this measure through Committee. I believe that the majority of honorable members are in closer touch than is the Attorney-General with the feelings of the people in the matter of the High Court, and I have heard nothing to make me regret the vote I gave last night. I see no reason why Judges should be treated upon an exceptional footing. There are other people connected with the public life of the country who have equally onerous duties to perform, and who discharge them quite as well as if they had pensions to look forward to.
– A great deal depends upon the salary which we agree to to pay.
– And yet we have heard honorable members who favour the granting of pensions multiply instances to show that the amount of salary has nothing whatever to do with the question. Take the case of Chief Justice Darley, in New South Wales. Every one knows that he was earning a very large income when he was invited to assume the position of Chief Justice, and the other unfortunate example selected by the honorable member for Wentworth was that of Sir Julian Salomons. It is well known that that gentleman, when he was called upon to take a seat upon the Supreme Court Bench in New South Wales, was earning quite as much as, if not more than, Sir Frederick Darley.
– What salary is paid to the Chief Justice of New South Wales ?
– And yet the honorable member wishes to cut down the salaries below that amount and still grant no pensions.
– The question of salary is largely one of accident. The Chief Justices in the smaller States are paid only £2,000 a year, and yet I doubt if any honorable member will suggest that the ability of such Judges is determined by their salaries : that because one Judge gets £2,000 per annum he is inferior to another Judge who receives £3,500. The question of pay is not determined by the relative ability of the various Judges, and I do not fear that as the result of the vote given last night we shall not secure a Bench capable of giving us those ‘ learned and luminous decisions which we are told will have to take the place of those amendments of the Constitution which may from time to time appear to be necessary. I should like to see the Constitution amended, not by reading into’ it the implied powers suggested, but by following the course prescribed by the Constitution itself. I do not agree with the idea that the Judges will have to read powers into the
Constitution which are not expressly stated! therein, and thus do away with its amendment by the. ordinary process. I believethat so far as the interpretation of the Constitution is concerned, we shall get an adequate, loyal, and able- court, at thesalary which it is proposed to pay to its Justices, and minus the pensions about which so much is being made at the moment.
– I did not speak upon the motion for the second reading of this Bill, and I refrained from discussing it in Committee to any extent until yesterday afternoon, with the view of economizing time. It seems to me that we have so’ much work to perform this session, and so little time in which to ‘ do it, that it is necessary for honorable members generally to curb their natural desire totake part in the discussion of all measures, if we are to transact the business on the notice-paper. At the same time, since the honorable member for Parramatta has misinterpreted my action, it is perhaps right that I should definitely state my attitude in regard to this Bill. First, I may say that I desire to see a High Court established. I wish to see the constitutional provisionsunder which we are working interpreted by an Australian Court, instead of being leftto the decision - whether right or wrong - of a number of gentlemen who are far removed from Australian sentiment, and whohave no conception of the conditions under which the Constitution was framed. , I donot object to honorable members entertaining a contrary view, though I deplore their lack of patriotism in suggesting that we arenot able to interpret the laws which weenact.
– No one has made thatstatement during the debate.
– That, however, seems, to me the natural inference which is to bedrawn from the statements of a number of honorable members. Surely it will not besaid that Australia is in such a parlous condition financially that we cannot afford tokeep a few Judges.
– That is whatthe newspapers think.
– It is undoubtedly whatsome of them think, but I am glad to know that there are a good many journals in Australia which express quite a contrary opinion. I should be sorry to think that we have arrived at such a position that we; are afraid to carry out our natural inclination to establish a court of which we might be proud, simply because of the few pence involved. The object for which I am striving will be sufficiently met by the establishment of a court having appellate jurisdiction, and therefore exercising control on appeal over matters affecting the Constitution. So long as that is secured, I am satisfied.
– I must ask the honorable member not to discuss that matter.
– The honorable member for Parramatta declares that I have supported the Bill in the form involving the greatest expenditure. As a matter of fact, I took the same side as those who were prepared to vote in favour of a reduction in the number of Judges from five to three. I further took the ground that it was not a proper thing to allow the High Court original jurisdiction in matters other than those set out in section 75 of the Constitution. Surely my action in this connexion was in accord with the desire to establish the court as economically as possible, consistently with its exercise of appellate jurisdiction upon constitutional questions. Dealing with another aspect of this matter, I notice that one of the daily newspapers, anxious to bolster up its own side of the case, compares my attitude upon this question withmy advocacy of fair conditions and the payment of a minimum wage to private employes.
– They have been praising the honorable member for two years, and it is about time they criticised him.
– I am not concerned overmuch with either their praise or their blame, but my attitude towards this Bill certainly appeals to my own conscience in a different light from that which they have presented. I am with the honorable member for Wentworth to this extent : that we can make no sacrifice which is too great to insure that the High Court Judges are placed above the possibility of temptation as far as is necessary. If the question resolves itself into one of choice between good men who might be subject to temptation, and others who are of second-rate ability, I say that we should not hesitate to make any sacrifice to secure the services of the best men. Therefore I regard the matter of the appointment of the High Court Justices, and the conditions under which they are to remain in office, as being quite apart from the conditions which apply to civil servants generally. I regret, as much as does any one, the creation of the pension system which has obtained in the various States in the past. I have always denounced it as calculated to work great injury. But on the present occasion the question to be considered is one as to the conditions under which we can secure the best menavailable, and notone as to the conditions that should apply. It is not a question of whether we are justified intrinsically in paying a certain salary to a certain individual. When the. late Mr. Eddy was imported from England to manage the New South Wales railways, I was of opinion that the salary paid to him was an enormous one ; but I have since come to the conclusion that, if another Mr. Eddy could be found, it would pay that State to give him £10,000 a year rather than continue the second-rate administration which prevails at the present time. I am not particularly concerned with the question of a pension as such. I look at the matter in the light of what obtains in the States to-day, and in the light of what we are prepared to offer to attract to the High Court either some of the States J udges or men of equal calibre. I do not care whether they receive their remuneration by way of pension or of increased salary, so long as that result is secured. I dare say it could be secured by providing an adequate salary. The honorable member for Parramatta spoke of the position taken up by the present Chief Justice of New South Wales. He pointed out that that gentleman accepted office after having at first refused to do so, and as the result of pressure brought to bear upon him for some time. But the honorable member omitted to emphasize the fact that Chief Justice Darley assumed office under terms similar to those which were originally embodied in this Bill. He was to receive a salary of £3,500 a year, combined with a pension upon which he could retire after having served a certain period, or upon becoming incapacitated.
– The pension represented seven-tenths of his salary.
– Therefore the argument of the honorable member for Parramatta has no weight.
– Yes, it has ; because the whole of the pension rights accruing to him under those conditions would not represent the difference between his official salary and the income which he derived at the Bar in one year.
– That may be so ; but still it is certain that whilst the conditions obtaining amongst the legal fraternity are such that the best men can earn enormous incomes, every pound by which we whittle away the salary or emoluments of the Judges will make it increasingly difficult for us to secure the best possible talent. That is the only point that I wish to emphasize. I am not in favour of the payment of high salaries as such, but I am prepared to pay anything within reason in order to obtain the best class of men for the High Court.
– I was very much surprised upon entering the chamber some ten minutes after the hour of meeting to find the Committee engaged in a discussion upon a matter which was debated for some hours last night, and which was decided upon a vote which I understood was accepted by the Government as a test one.
– Of course we accepted it ; we are not responsible for this debate.
– If the Government accepts last night’s vote as a decision that this clause shall be excised, I have no more to say upon the matter.
– We accept it subject to any rights that we may have under the Standing Orders.
–I had been under the impression that last night the Committee’s vote was taken on a proposal to strike out the words “ upon a pension.”
– That is practically equivalent to striking out the whole clause.
– But there is reason to think that some honorable members voted in favour of abolishing the pension provisions of the clause, while possibly conceding that the other side had a good deal the better of the argument. Undoubtedly there is a very strong feeling throughout Australia against any official of the public service being pensioned, and it is undoubtedly difficult to reconcile before a popular audience the pensioning of Judges, who are highly salaried gentlemen, with the practice of compelling the ordinary poorlypaid official to make provision for the evening of his life. On the other hand it should be made perfectly clear to the public that no fair parallel can be drawn between the two cases. In the very nature of things, a Judge has to be placed in a position in which neither the people nor Parliament can affect him. He has to be invested with powers which control not merely the people, but Parliament itself. I have long entertained the opinion that no one should be appointed to such a high office as that of a Judge - which usually carries with it a large salary and extensive pension rights - without being compelled to undergo, as do the other officials, a physical examination. This idea may seem very absurd ; but I know of one very painful case in Australia - I would rather not indicate the locality more closely - in which, soon after a very able man was elevated to the Bench, it became apparent, not merely to the Bar, but to everybody associated with, him, that his mind’ had practically given, way. Of course, it may be hard to compel a. man at the time of life when he would most likely be elevated to the Judicial Bench - possibly at 50 years of age - to undergo a. severe physical test. At the same time, I think that the Government might fix the retiring limit of age at about 70 years. Unless we are able to offer the Justices of the High Court some substantial pension, I am afraid that such a time limit would be absolutely necessary, because we all know that the veteran is- the last to realize that he lags superfluous upon the stage. He himself is the very last to appreciate the fact that his day has passed, and that he should retire. There is a means, I think, by which, even those who voted against the pension provisions contained in this, clause might be disposed to reconsider the * whole question, and possibly induced to arrive at a different conclusion. The salaries proposed are very substantial, and I do not see why we cannot adopt some scheme whereby the Judges would contribute to their own retiring allowances. For intance, we might deduct 15 per cent. from, the salaries, and place that to a fund forthe provision of those allowances.
– The Constitution says that the salaries of the Judges are not to be diminished.
– I take it that under my suggestion we should not be diminishing the salaries. A sum of £450 would represent 15 per cent, of a salary of £3,000, and if tothat £450 the Government added a bonus of £750, or 25 per cent, on the salary, there would be each year provided no less than £1,200. We may take it that the Judges will on the average serve twelve years, and £1,200 for twelve years represents, with accumulated interest, a capital sum approximating to £20,000, which invested, as itcould be, in Government securities at 4 per cent., would yield an income of £800 per annum. It might be understood further that if the Judge died, either before or after the expiration of twelve years, the £450 per year which he had contributed, would be returned to his representatives.
– I - It would be better to insure the Judge.
– My scheme probably is one which would be more readily fashioned into shape by some actuary or insurance authority. I am now merely throwing out a suggestion to the Government. There are a good many honorable members who, like myself, voted against the granting of pensions, but who recognise the practical difficulties which confront the Government, and are desirous of finding a means of surmounting them.
– I understand that clause 53 is now before the Committee, but there seems to be a general discussion on the question of pensions. I do not intend to take part in that general discussion, butdesire simply to remind the Committee that this question was decided by a test vote lastnight, when the provision for pensions was struck out by twenty-nine votes to twenty. We are told by the honorable member for Wentworth, who seems inclined to impute motives at this juncture, that there were honorable members who voted against pensions because the high-water mark of salaries was, in their opinion, £400 a year. I object to any one, whether he be a Minister or private member, imputing motives to others. Are we to understand that the twenty honorable members who voted in favour of pensions are the “ pure merinos” of the House? If I chose to impute motives I could turn round and say that the honorable member for Wentworthvotes on lines of social caste. Every honorable member, I take it, has reason for the votes he records, and the reasons of those who voted against pensions were fully given last night. Personally, I am opposed to pensions on principle . The honorable and learned member for Parkes seems to be actuated by a regard for the Judges.
– Is the honorable member for Dalley against old-age pensions?
– The Judges in New South Wales get pensions of £2,450 per annum, which is quite beyond comparison with any proposal for old-age pensions, which generally amount to 8s. or 10s. per week. Every member of the community, including the Chief Justices, and even the honorable and learned member for Parkes being entitled to the sum. And, judging from his past history, the honorable and learned member for Parkes would be quite as quickly at the Treasuryas any man who is really in need of a pension of 10s. per week. Those who vote for very large salaries ought to consider that it is not their own money, but the money of the people which is being expended. Some reference has been made to what is termed the popular cry for economy ; but it must be remembered that a cry for large salaries and pensions may be popular from a social and club life point of view. If honorable members will “ sling mud “ they must expect mud back again ; and the honorable and learned member for Parkes ought to be the last to oppose those who are fighting against the exploitation of the Treasury. I have no doubt that the twenty honorable members who voted for pensions are quite as keen to catch the public ear as are the honorable members who voted in the contrary direction. The honorable member for Melbourne, I dare say, is very keen in organizing for his return, and in feeling the pulse of the electors.
– I would not abandon my opinions in order to gain the vote of an elector. I would not be under the whip of anybody.
– I shall go further and state, without any disguise, that my desire is to kill the Bill.
– A number of honorable members are in the same position.
– The honorable member for Wentworth spoke of Mr. Eddy, the New South WalesRailway Commissioner ; but when the honorable member voted for the salary for that gentleman, he did not stipulate for any pension.
– I did not mention Mr. Eddy’s case.
– Mr. Eddy’s was only a seven years’ appointment, and a pension would not be provided in such a case.
– I am against any special pensions being granted. It has been argued that barristers ‘eligible for the position of Judges earn from £9,000 to £10,000 per annum. It may be that a barrister can earn £S0O in one month, and nothing the next ; and I can assure the Committee that this battle was fought over and over again in the Parliament of New South Wales, and the present Minister of Lands in that State issued a challenge, when the case of Sir Frederick Darley was under consideration, to those concerned to prone that he earned £9,000 or £10,000 per annum. The Chairman of Committees in this House has a salary of £900 per annum, and if the House sat for six months, I should be justified in saying that he received £1,800 per annum, if earnings are to be computed as in the case of the barristers to whom I have, referred. By this train of reasoning, a banister might swell his income up to £1,000,000 per annum, and then say he was willing to take the position of Chief Justice at a salary of £3,500, with the pension. I should not have risen but for the remarks of the honorable member for Wentworth. The vote taken last night was not a snatch vote, more than two-thirds of the members of the House taking part in the division. I trust that those honorable members who were against pensions last night will remain firm.
– I should like to ask the Government, or the Minister in charge of the Bill, whether the reply given just now to the honorable and learned member for Corinella is final - whether the Government have abandoned this clause ? For my part, I paired in favour of pensions, but I voted against the Bill, and would do anything in a legitimate way to kill the measure. I will not, however, stab the Bill in the back. I shall vote against the third reading unless the measure pleases me better than it did in the form in which it stood on the second reading ; but I do not propose, as some honorable members propose, to vote against the pensions clause, not because they think pensions are good, bad, or indifferent, but because they prefer that way of killing the measure and effecting a party triumph. I do not see why all this heat should be introduced into the discussion, nor can I understand the attitude of the Government. It is claimed that it is necessary to give a good salary and a good pension in order to get the- best men in Australia, and yet the Government °it meekly down when an equivalent of at least one-third of the proposed salary has gone. We must remember that the salary paid plus the pension equals the real salary; and yet the Government are prepared to accept the dictum of the Committee. If I were the Government, I should be prepared to accept the dictum of the Committee, but I should not be prepared to go on with the Bill under the circumstances. It is absurd to say that a salary which was insufficient to attract Sir Frederick Darley or to attract Judges to the Supreme Courts of New South Wales and Victoria is sufficient to attract the best men in Australia to a High Court. But the Government are dealing with the Bill in such a way that no man knows what salary is to be paid to these unfortunate Judges. The discussion of the question ‘ of salary was postponed because the pensions were in some mysterious way held to be a prelude to the fixing of the salar)7. But the pensions are gone, and there is no proposition on the part of the Government to consider the salaries to be paid. Presumably we are to go on to consider clause 54 and subsequent clauses.
– The honorable member is quite in error. Clause 52 was postponed until after the consideration of clause 53 at the request of the Committee. The question of salaries will come on for discussion as soon as we are allowed to go on with the business.
– Then many honorable members are in error as to the intentions of the Government. The Minister in charge of the Bill allowed the honorable member for Wentworth to make a speech, and made no set declaration of the intentions of the Government.
– I was not called upon to do so. The honorable member for Wentworth rose to make what was practically a personal explanation.
– In an important matter like this the Minister in charge of the Bill, directly the Order of the Day was called on, ought to have insisted upon stating the intentions of the Government. As a.matter of fact, three-quarters of an hour have now been wasted through the fault of the Government.
– Honorable members opposite have wasted the time.
– But the Attorney; Genera, has charge of the Government business.
– Apparently the honorable member wants to take charge of the business, and tell me what to do.
– The waste of time is’ owing to the fault of the Government, who should have stated what they proposed to do.
– Order ! The honorable member must discuss the clause.
– I recognise that I am out of order, but the whole discussion is out of order. I venture to think that your decision on the point, Mr. Chairman, was simply an efflorescence of your own goodtempered easy-mindedness - it was certainly not according to the rules of procedure laid down in May. I do not wish’ to say anything more, however, since I have learned that the Government are going to do something definite. We shall ultimately find out what they propose to pay the J Judges of the High Court, in order to get the best men in Australia, but I am sorry that so long a discussion should have been necessary at this stage to ascertain their intention.
– The honorable member has made an impassioned appeal to the Committee which seems to me to indicate that, while he intends to treat the Bill with absolute fairness, and not to stab it in the back, he is still anxious to destroy it. I am not going to satisfy his curiosity. The Government have not taken part in the discussion this afternoon, because they consider the question settled for the present. I can say no more than that. We have the same rights as private members in charge of legislation to ask for the recommittal of a Bill for the reconsideration of any clause in it, or we may reserve what action we wish to take for another place. I decline, however, to say at this moment what course we shall adopt, though we shall adhere to our determination not to take part in the debate at this stage, and shall not relinquish our rights under the standing orders to take whatever time is necessary for consideration.
– I was quite willing to accept the vote taken last night as a settlement of the question.
– It was distinctly understood that it was to be a settlement of the question.’
– This afternoon, however, members who formed the majority last .night are not satisfied with their victory, and one of them, the honorable member for Dalley, has made insinuations against those who voted with the Government.
– What I said was only in reply to the statements of the honorable member for Wentworth.
– I do not know how far the honorable member was justified in what he said by the remarks of the honorable member for Wentworth, because I was not present when the honorable member for Wentworth spoke, but the honorable member for Dalley went beyond such a reply. I do not think it necessary, however, for ‘ those who voted with the Government to defend, themselves against such accusations. They are not worthy of attention, and it would be much better if such statements were not made here. In reference to the statement of the Prime Minister, I wish to point out that it is extraordinary that the Government did not make sure that they would be supported by their own followers upon one of the most important provisions in a large measure of this sort. Excepting four of the Ministers, only seven of their followers voted against the amendment. They were supported by eight members from the opposition side of the chamber, and by the leader of the labour party. Surely the Committee had a right to expect that the Government would secure more support for an important and leading provision. I think it is time that the Government considered its position in connexion with the measure, seeing that it is getting less support from its own followers than from the members of the Opposition.
– I ask the honorable member not to discuss the vote taken last night.
– I have finished what I desired to say upon that matter, though I was only replying to the remarks made by the Prime Minister which were permitted by you, sir. On the question itself, I would add one statement which I omitted to make last night. It seems to me ridiculous to suppose that we can get men to accept positions on the most important Bench in the Commonwealth - I am not speaking of the immediate present but throughout the history of the court - at lower rates of remuneration than are being paid to the Judges from whose courts they will have to hear appeals. Honorable members are constantly complaining that some officer in the Commonwealth service is receiving a lower salary for doing the same work as an officer who is receiving a higher salary, or the same salary as . another officer whose work he supervises. Such a thing is considered an injustice in the public service, and yet it is proposed to give a smaller remuneration to the Judges -of the High Court than ‘ is paid to the Judges of the subordinate States Courts.
– We have done that in the case of other public officers.
– We have not done it. We have given lower salaries to the heads of some of the Commonwealth Departments than are paid to the heads of some of the States Departments, but that is because our Departments are small, and employ only a few clerks. But in dealing with large Departments such as the Customs Department and the Post-office, we pay salaries equal to or larger than those which are paid to the heads of Departments in the States.
– How does the salary of the Crown Solicitor of the Commonwealth compare with that of the Crown Solicitors of the States?
– I am not sure ; but the Crown Solicitor of the Commonwealth has less to do than have the Crown Solicitors of the States, and in no way supervises their work.
– Will it not be the same with the Judges of the High Court 1
– The Judges of the High Court will constitute a Court of Appeal, to supervise the decisions of the States Courts. In my opinion the decision of last night entirely destroys the standing of the High Court in relation to the States Courts. I would rather now vote for a court consisting of the Judges of the Supreme Courts than establish a court whose J Judges will be asked to accept less than is paid to the Judges of what we have termed subordinate courts. To my mind the action of the Committee makes it less likely that we shall get the best men available.
– I have been actuated, in regard to many of the clauses of this Bill, by the same laudable motive which has moved the honorable member for Bland, the desire to save time. But it appears to me from the discussion this afternoon, that a great deal of misunderstanding exists as to the reasons which actuated honorable members in voting for or against the amendment carried last night. I hold the opinion that a mistake was made by the Attorney-General in allowing the Committee to deal with the question of pensions before the question of salaries was settled. The two questions had naturally to be considered together, but to my mind the question of salaries should have been settled first. In voting against the clause, I was in no way actuated by the desire to stab the Bill. I wish to see it carried, and aHigh Court created to which the best men available will be appointed. But I object - and this is the only reason which actuated me in voting for the amendment - to theprinciple of pensions. I am aware that there are good arguments for paying pensions toJudges, but I know that in certain cases in the history of the States the pension system has led to abuses, both in regard to appointments and in the retirement of Judges beforethey should have retired. There is now living in London a gentleman who for the last twenty year’s has been receiving a pension from a neighbouring State, because of his retirement from the Bench, while there is. another case nearly as bad in connexion with the Bench of another State. I should not like to see that sort of thing happen in connexion with the Judicial Bench of the Commonwealth. I wish to get the best men available, but I do not think it necessary toprovide pensions in order to secure the services of such men. Furthermore, if’ we provide for pensions, we shall notknow exactly what our liability will bein respect to the cost of the High Court. We might find ourselves a short time hencerequired to pay as many as a dozen pensions to Judges who had retired, because somefuture Administration may not be so careful in their appointments as the present Government will be, and may appoint gentlemen merely to secure for them pensions after a short term of service. In my opinion thebalance of the argument is against the institution of the pension system in the Commonwealth. If it is necessary to increase the salaries provided for the Judges of theHigh Court, in order to secure the servicesof the best qualified men, I would rather dothat, and leave it to the persons appointed to provide for their old age or infirmity, than agree to the payment of pensions. I believe, however, that it is possible to get the best men in Australia for the salariesfixed in the Bill, without giving pensions atall. The salaries paid in the United States- of America are notoriously low, and yet member after member has during the debates upon the Bill pointed out the signal and patriotic services rendered to that country by her great Judges. We have an equal right to expect that admirably-gifted men will, from patriotic motives, give up lucrative practices at the Bar here to accept the honorable positions provided by the Bill.
-I recognise that the position last night was final so far as the present stage of consideration is concerned, and therefore I do not intend to go into the merits of the question again. I rise to express the hope that if the matter is to be re-opened, the Prime Minister will not have it done at the initiative of a member of the other Chamber. If the clause is to be reconsidered that should be done here. What becomes of responsible government if a Ministry, after having an adverse vote given against it, practically withdraws a clause from this Chamber and takes the initiative in having it reconsidered in another place 1
– We should know how to deal with such an amendment by the Senate.
– Order ! I cannot allow the honorable and learned member to continue his present line of argument. I have been very liberal, but I cannot permit any more latitude than has already been granted to honorable members.
– I think I have already said enough to indicate the nature of my objection to the course suggested. The feeling of the Committee with regard to the clause in an amended form was really not tested last night. The honorable member for North Sydney suggested an amendment reducing the pro rata allowances, and the Government agreed to accept it. It was proposed that instead of a J udge being allowed a pension equal to two-tenths of his salary upon his retirement at any time within five years - perhaps a week after his appointment - no allowance should be made unless he had been at least five years upon the Bench. The Attorney-General was also willing to. accept my suggestion to substitute 70 for 65 as the age at which a Judge would be absolutely entitled to a pension. Although several honorable members supported the Government against the excision of this clause, it does not follow that they would support the clause -as amended.
– It was proposed last night that we should allow the test vote, to be taken upon the principle of paying pensions after the clause had been modified, but I suggested that we should vote on the principle at once, and that plan was eventually adopted. A clear-cut issue was thus put before honorable members, and the vote’ was taken accordingly. What is now suggested by the honorable and learned member for South Australia, Mr. Glynn, is hardly correct, because we determined to test the principle, and as the House has already decided against pensions, there can be no modification; The object sought to be achieved last night was to economize the time of the Committee.
– I have no objection to honorable members recording their votes against one proposal or another, but I protest against honorable members asserting that they vote against pensions for Judges on principle, whilst, at the same time, declaring themselves in favour of oldage pensions. The principle is exactly the same in both cases. Under the old-age pension scheme, the proposal is that pensions shall be paid to men who have rendered service to the community, and, in the case of the Judges, it is suggested that a certain sum shall be paid back to them at the close of their long and honorable career in consideration of services rendered. If an honorable member is opposed to pensions of all kinds, I can thoroughly understand his opposing the Government proposal, but do not let us have any confusion of ideas with regard to the two classes between which a distinction has been drawn. It has been said that this is not a party question, but I deny that any matter of such importance can be raised without becoming a party question. It may not be a .party question upon which tlie House is divided upon the lines of cleavage which obtained last session in regard to the fiscal issue, but still–
– Order ! I must ask the honorable and learned member not to pursue that line of argument.
– But there must be a party for or against this principle.
– Order ! It is outside the honorable and learned member’s privilege to discuss anything beyond the provisions of the clause.
– Exactly. Therefore I say that there must be a party supporting this clause, and also a party against it.
– Order ! The honorable member is doing what I have asked him not to do.
– It is impossible for me to discuss the measure unless I am at liberty to refer to the influences which are operatin its favour and against it.
– I do not wish to enter into a controversy with the honorable and learned member, but I wish to point out to the Committee, thatwhilstIhave given the fullest latitude consistent with the standing orders, it would not be my duty to allow any further indulgence to honorable members on one side or the other. It is certainly not within the privilege of the honorable and learned member to say what any party should or should not do. The question is whether the clause shall be accepted in its amended form.
– I submit that I am entitled to discuss the reasons which would actuate one side or the other in supporting or opposing the Bill. If I am not to be allowed to use the word “ party,” I must adopt the term “ combination of men” on one side or the other. I submit that it is of the utmost importance that one side or the other should be prepared to take the full responsibility of this measure. I take it for granted that theGovernmentdid notinsert this clause before they were fully convinced of its necessity, and if the pensions are to be regarded as part of the salaries proposed, the Government should have been prepared to enforce their view by every means in their power. It has been urged that this is a matter of economy, pure andsimple, butmany honorable members who are opposed to pensions have supported other clauses in the Bill which will entail ten times asmuch expense as will be involved in the payment of pensions. I supported the proposal of the Government, because I considered that we were precluded from exercising our own judgment, owing to the salaries and pensions provided for J udges of the States Supreme Courts. We could not offer less than was given elsewhere.
– I - If the States had paid Judges £10,000 a year, the honorable and learned member considers we should have made similar provision.
– We should certainly have to consider that question. If we fix the remuneration of the Judges at too low a figure, we shall probably act in the interest of political lawyers, who may have Judgeships offered to them, because barristers in full practice and earning large incomes will not come forward. I hope that the Government will make their position perfectly clear to the Committee, so that we may know how far we are required to take the responsibility of shaping the measure.
– It is deplorable that the time of the Committee should be wasted in this way. There is no doubt that honorable members voted last night with their eyes wide open, and I think that a mistake was made by you, Mr. Chairman, in allowing the question to be re-opened to-day.
– Order ! I desire to point out that I have not allowed any honorable member to do more than he was entitled to do. Every honorable member is perfectly at liberty to discuss the whole of the clause before the Committee, and I cannot interfere. I have attempted, in one or two occasions, to confine the discussion to the clause itself.
– It is a great pity that in discussing this clause honorable members could not leave the personal element out of their speeches. They would have shown better taste if they had taken their defeat more gracefully. The discussion was started by an honorable member who was paired in favour of what was done last night. The honorable and learned member for Werriwa has declared that he can see no distinction between an old-age pension and a pension such as is proposed under this Bill. Personally, I am entirely opposed to granting pensions to a few individuals who are in receipt of very large salaries. Some honorable members have made a great deal of the work which the Justices of the High Court will be called upon to perform, notwithstanding their previous declarations that its work will be of a very limited character. It is argued that because the States pay high salaries to their Judges, and bestow upon them pension rights, the Commonwealth should emulate their example. But it has been repeatedly urged by members of the legal profession that the tribunal which it is proposed to create under this Bill will have very little work to do.
– Who says so 1
– The honorable and learned member for South Australia, Mr. Glynn.
– But he is entirely opposed to the Bill.
– I am sure that the honorable member for Bland will do him the justice of admitting that he would not use an argument in this Chamber which was based upon an untruth. There is not a member of the Committee who indulges in greater research before making any statement than does the honorable and learned member for South Australia, and he does not speak without being able to quote authorities in support of his contentions. I repeat, that the High Court will be called upon to transact only a moderate amount of work. My opinion is that it would be wise to give the Justices of that tribunal an adequate salary, and to withhold pensions from them absolutely. It is a wrong principle to introduce into our legislation.
– The honorable member is opposed to the Bill.
– I am opposed to the creation of the tribunal contemplated, because I believe that the Judges of the States Supreme Courts would be able to impartially administer justice in all Federal matters.
– Would the honorable member allow the rivers question to be decided by a Victorian Court ?
– Undoubtedly I would allow it to be determined by a court vested with Federal jurisdiction. I am confident that such a tribunal would be as fair as are honorable members of this House. Does the proposal to grant pensions to the J Justices of the High Court originate in the suggestion that without offering such an inducement we cannot ask the States J Judges to accept positions upon the Bench ?
– State Judges would carry their pensions with them.
– I understood the At- torneyGeneral to say so upon a former occasion. Last night I voted to abolish the proposed pensions. Every honorable member of the Committee knew exactly what he was doing, and it is useless to endeavour to make it appear that some misapprehension existed.
Postponed clause 52 -
– Whilst honorable members may regret the time that has been occupied in discussing a matter which most of us thought had been settled last night, it may after all prove a useful prelude to the consideration of the clause with which we are now called upon to deal. The Committee have decided that no pensions shall be granted to Justices of the High Court, and honorable members have now to accept or modify the clause which sets out the salaries that the Government thought it necessary to offer, with pensions, to obtain for such distinguished offices the pick of the Benchesand Bars of Australia. I am aware that many of those who voted against the pension proposals of the Bill, did so because they believed from their knowledge, or as I submit, want of knowledge, that it would be possible to obtain men of sufficient status for the High Court Bench without offering them the inducement of a pension. A section of honorable members voted against those proposals because they are opposed under all circumstances to the pension system unless it is made universal, and is applicable to the whole population. Other honorable members voted in the same direction in the mistaken belief that we can still offer the Justices a salary equivalent to the salaries and pensions which are at present paid in every State of the Commonwealth except South Australia. I hope that they will now follow the natural course which is dictated by that opinion. Having struck out the pension proposals of the Bill they must realize that it will be necessary to vote larger salaries than they would have been prepared to sanction had those proposals been retained. Not only ought we to compensate our Justices for the loss of their legal practices, but we ought to pay them salaries which will allow of their continuing to live as they have done hitherto, and enable them to make provision against old age when they quit the service.
– Does the AttorneyGeneral argue that the salary is the only recompense which a J Justice will get for accepting a position upon the High Court Bench 1
– No. Income is not the only recompense which a man derives from the practice of his trade or profession. But it supplies the one constant universal motive which exists side by side with other motives. Indirect motives we cannot command, but this we can.
– I think that we can command other motives.
– In some respects we can. If we had made the High Court a tribunal of great scope and authority, it would have proved a greater source of attraction to gentlemen possessed of the highest legal talent. But the motives with which we now have to deal are those of self-interest, including family interest. It is admitted that a man who is fit to fill a position upon the High Court Bench must be earning a salary at the Bar which, taking it year by year, will either equal or approximate, and in many cases considerably exceed, that which we are now offering. What do we give in return for the pecuniary sacrifice that he will be called upon to make? We offer a permanent position of great honour and dignity - a position for which men who appreciate its possibilities of achievement might be willing to make considerable sacrifices. But allowing for this, something has to be said for the dignity of the Commonwealth, and for its own sense of the value of the work performed. The Justices of the High Court require to be placed in a position more absolutely independent than that occupied by any other .public servants. In our Public Service Act ample provision is made for individuals who generally enter the service young. These youths usually join the service at sixteen years of age, when they receive a salary of, say, ±’40 a year. But from the very outset of their careers we compel them to contribute towards a compulsory insurance fund, which prevents them from coming upon the State, after they have served it for many years, if, by reason of any of the unfortunate incidents sufficiently common to be provided against, their savings for years chance to be swept away. But we are not able to do that with men whom we take - as we should do in this instance - from the top of their professions. They are bound to be men who have attained middle-age, and it is too late to make any provision of the ordinary insurance kind for them. Special provision must be made. If any such provision is to be made it must be made under this clause. I trust, therefore, that in view of the action which the Committee have taken, honorable members will not seek to lower the salaries which are here proposed, which are only equal to those now paid in three States, and, save in South Australia, are accompanied also by pension rights.
Mr. GLYNN (South Australia).- Before any amendment is moved regarding the salaries to be paid to the Judges, it occurs to me - seeing that the pension proposals have been abolished, and that the jurisdiction of the tribunal which we are to create has been very considerably limited - that the present is a convenient time to determine whether, in constituting it, we should not temporarily avail ourselves of the services of the States Judges. If we agree to the salaries proposed under this Bill, it will be utterly impossible, on’ the score of economy, for the Committee to adopt my suggestion.
– I - If we appoint States Judges, they will hold office for life.
– That matter was argued upon the motion for the second reading of the Bill. I should like to refer to the only serious objection arising under the Constitution which has been urged by the Prime Minister and others in opposition to the suggestion which I have made. It was stated that we cannot constitutionally appoint State J Judges ; but there is nothing to prevent such appointments, while there is something in the Bill that shows they can be made. Therefore, I can really answer the Prime Minister from the Government’s own measure. In the first place, the difficulty, or suggested difficulty, arises under section 72 of the Constitution, which provides that the Judges cannot be removed except on the address of both Houses establishing misbehaviour or incapacity, and that their remuneration shall not be diminished during their tenure of office. If this is a good suggestion which will promote economy and insure the required degree of ‘ efficiency, the difficulty as regards removal can be easily got over. My suggestion, of course, depends on the consent of the States ; but if the States wish to economise - and if we wish to economise during a period when the business will be exceedingly small - they will certainly consent to our utilizing their Judges, on the condition that they retire at any time on the suggestion of the Commonwealth Government. .
– How as to New South Wales, where the Judges are already fully occupied, and there is a demand for another
Appointment to the Bench 1
– We have heard from the Attorney-General that as soon as we pass this Bill there will be a shrinkage in the business of the States Courts.
– But the Bill has been so altered as to prevent that.
– I do not agree with the Attorney-General as to. the shrinkage of the ^business in the States Courts. He now -fella us that the Judges are overworked, though lie did say there would be a great shrinkage in their work.
– If the Bill had been carried as proposed there would have been a shrinkage.
– The Attorney-General said that with this shrinkage the Bill would lead to economy ; but his two propositions are inconsistent and destroy one another. The slight difficulty owing to Judges holding office during good behaviour can easily be got over by asking the States to make a provision that a Judge appointed to the Federal High Court shall retire when asked to do so by the Commonwealth Government. When our business grows and appeals to the Privy Council are abolished, as they must be eventually, and when clear necessity exists for a High Court manned by new Judges, the States Judges will, on the suggestion being made, send in their resignations. In a day or two it could be tested whether the States are willing to co-operate with us in this connexion. Besides, if the business did increase, and the work of the High Court could not bc carried on by the States Judges, - an address from both Houses would gut rid of any appointment. We need not charge the Judges with misbehaviour, but may simply allege that ‘ they are incapable of carrying on the work. What I take’ it is meant is a general incapacity, not arising from any particular cause, and if it could be shown that the States Judges were incapable of carrying on the duties of the Federal High Court, owing to the large increase in business, then an address from both Houses of Parliament would be effective.
– D - Does the honorable and learned member not think that the States
Premiers would appoint Judges in the place of the Judges sent to the High Court?
– The honorable member will agree that it would he improbable.
– It is very probable that it would be done.
– The States Judges would be appointed only to deal with appellate jurisdiction ; it would be an appeal court with such original jurisdiction as is given to it under the Constitution, and that jurisdiction is exceedingly small. Except in the few matters that we have made the subject of exclusive jurisdiction, the juris-diction would be concurrent with tho jurisdiction of the States Courts. As a matter of fact, all the original jurisdiction vested in the High Court under the Constitution need . not be carried out by the High Court, because the States Judges’ have concurrent jurisdiction. If any suitors wish to avail themselves of the original jurisdiction -under section 75 of the Constitution, it will be in very rare cases. We have heard that there will he very few cases, if any, arising under treaty, and the consular cases will be infrequent and unimportant, usually those referring to the Merchant Shipping Act, the wages of sailors, and similar points.
– What meaning does the honorable and learned member give to the word “incapacity” in section 72 of the Constitution 1
– I have already mentioned that I think it is a general term, meaning that a J udge is incapable of discharging tho duties of the office.
– But surely it means internal qualities, and not external circumstances.
– I think the honorable and learned member will recognise that the word covers both.
– I am afraid not.
– Circumstances have to give a meaning to words. No doubt, under the States Constitutions, “incapacity” generally means mental or physical incapacity, but there are as yet no external circumstances to give meaning to the” word. We have those external circumstances under Federation, because, if we make appointments from the States Benches, the external circumstances - that is the necessity for discharging the State duties as well as the Federal duties - might give rise to Federal “ incapacity.” Therefore I say that the word has a wider meaning than that it receives under the States Constitutions.
– I take the word to refer to misbehaviour and personal conduct.
-I am afraid the honorable and learned member is guided by the meaning which is generally assigned to the word “ incapacity.”
– I am.
– It will be for Parliament to decide as to the meaning of the word “ incapacity,” so that we can make the meaning as elastic as we honorably think it can be made.
– Not beyond the Constitution.
– It is in our power to declare what the “incapacity” consists of ; but it will not be a matter of impeachment. This question was thoroughly thrashed out in the Federal Convention, and I think I suggested that Judges should be impeached as in America, because there a Judge may enter into an elaborate defence, the accusation being directed against him personally. But in the case of incapacity it rests with Parliament to declare in what the “ incapacity” consists. So long as we act morally and fairly in the matter we can make the connotation of the word sufficiently comprehensive to cover the necessities of the particular occasion; and the necessity for removing a Judge may arise because he cannot properly carry out the dual duties of a Federal Judge and a State Judge. It will be seen that really without the consent of a State, we could, under the Constitution, get over a dead-lock caused by the nonresignation of the Judges. As regards the business of the court, we find that the appeals to the Privy Council avorage only about twelve annually ; that there have been only about two dozen -Federal appeals to States Courts in the last two years, and those only petty cases. I think the honorable and learned member for Bendigo mentioned the fact that there had been 22 appeals.
– But I doubled that list.
– I know ; but if weextend the number to two dozen, or to three dozen, in eighteen months we shall have reached the limit.
– There have been more than four dozen appeals, and some are not complete.
– But these cases did not involve matters of Federal interpretation.
– Some of them did.
– Then there must have been very few. Surely an information under the Customs Act for making a false entry could not be taken as involving matters of Federal interpretation. What cases of ultra vires have we had, or what cases, except one or two, of the jurisdiction of the Commonwealth as against the jurisdiction of a State?
– They were very important cases.
– No doubt; but we are not going to appoint a tribunal at a cost of £30,000 or £40,000 per annum to decide an occasional important case, which for many years to come can very well be decided by the Privy Council.
– We might lose a much greater amount than that involved in these appointments by a single decision of the Privy Council.
– Are we really to assume that the Commonwealth, or a State, will suffermonetary loss by taking a case to the Privy Council?
– Those are risks incidental to any court.
– Stretch the imagination as much as the Attorney-General seems to stretch his as to the business that is going to find its way to the High Court, and weshall not have an average of more than twodozen cases a year, and most of those not dealing with matters of Federal import. In America, from 1820 to 1830, when there were, I think, something like twenty States, and the bulk of the original jurisdiction consisted of cases between States, there were not more than an average of 58 cases a year altogether.
– I - It takes three years to reach a case now, anyhow.
– No doubt, but that is because recent Acts have enormously extended the work of the American Federal Courts; and this is an extension which many writers - amongst them Willoughby, who was quoted by the honorable and learned member for Darling Downs - strongly condemn as destructive of the efficiency of the States Courts by absorbing their jurisdiction. The result is that there is a great clog in the business of the Supreme Court of America, and it very often takes four years before a decision can be given, showing that the efficiency is not. quite so great in regard to expedition as some honorable members seem to think. In speaking of the American Court, I am dealing with the early years, which are the only years which can guide us. It is significant that in the first year of the American Supreme Court there was not a single case on the list. That was in 1790, and in 1803, when Marshall ascended the Bench, there were only nine cases awaiting trial. I have, on a previous occasion, mentioned that during the period 1790 to 1803 there were only six really constitutional cases that called for a decision by the court, and it is constitutional cases we have to look to in the creation of the new tribunal of Australia.
– There is mere power to make laws under the Australian Constitution than there is under the American Constitution.
– But I think the jurisdiction is wider in America: In the States the railway laws are much more complex than they are here, there being 46 States with interlacing lines. No doubt on paper there is more power under the Australian Constitution ; but power does not depend on additions to the various matters we delegate to the Federal Parliament, but on the class of business likely to arise under the powers. In America the power of regulating commerce between States will, perhaps, give rise to as many cases as twenty of the other powers.
– The Australian Constitution gives power to regulate commerce between States.
– No doubt. If we merely take the enumeration of powers under our Constitution, and under the Constitution of America, the former may be greater ; but, at the same time, greater effects follow the business of Parliament in America. There are more than 1,000 Bills presented annually to Congress.
– But how many pass? There is a separate Bill for every pension paid.
– The number of Bills isdue to a variety of causes, and it would not be fair to attribute it to any one cause. I merely mention the fact to show that in America there is very great exercise of jurisdiction by Parliament, which, by the way, unlike this Parliament, has power over the lands and roads. In America there is the biggest effective river system in the world, and in relation to navigation a huge Department has been created, necessitating regulation by law. Then in America they have a foreign policy, which we have not; so on the whole the effect of the business in the American Parliament is far greater than it is likely to bo under our Constitution. But to come back to the judicial business. I say that at all events it ought to press with very great force on us that, for the first ten or twenty years under the American Constitution, the cases were exceedingly few. During the whole of Marshall’s time the constitutional cases were only 62, or on an average of about two a year. We are not going to create a court to deal with any but constitutional matters. . We surely are not going to say that there is any Federal necessity to have a High Court to construe the taw on bills of exchange, promissory notes, or the law of marriage or divorce. All these, though nominally Federal matters, are really State matters. We are continually hearing about the necessity of having Federal matters decided by the Federal Court, but in ninety-nine cases out of a hundred there is no distinction in substance between Federal matters and State matters. For the sake of securing uniformity, the Commonwealth has taken over several matters which were formerly legislated upon by the States Parliaments ; but they are essentially unitary matters, they are not matters involving questions between State and State, or between Statu and Commonwealth. When the necessity of
I having a tribunal to protect the interests of the States and the interests of the Commonwealth is spoken of, it is in matters arising between State and State, or between Commonwealth and State, and not in unitary matters, such as must constitute the bulk of the so-called Federal cases, that we require protection. If we wish to create a Federal tribunal to preserve the proper constitutional relations between State and State and between Commonwealth and State, surely, considering the small amount of business which there will be to occupy the attention of any court in relation to such matters, we should, to promote economy, avail ourselves of the services of the States judges. I have already mentioned that it is not unconstitutional to appoint them. That is made clear even by the provisions of the Bill. The Prime Minister has told us that we cannot appoint State Judges to a Federal Court; but, if that is so, why has the Attorney-General introduced a Bill which declares that one of the qualifications of a Justice of the High Court shall be that he is a Judge of the Supreme Court of a State?
– At the time of his appointment - not after his appointment.
-The insertion of that qualification shows that under the Constitution there is no ban upon the appointment of a State Judge.
– But upon his appointment to the High Court he ceases to be a State Judge.
– The point has been taken by the Prime Minister and the honorable and learned member for Indi, that under the Constitution a State Judge cannot be appointed ; but I say that he can, and that my contention is borne out by the provision which I have just referred to. It is also sustained by the provision in clause 7, which seeks to. prevent a Judge from holding his State office after his appointment to a Federal office. If the Constitution would prevent a Judge from holding a dual appointment, why should we take the trouble to declare that a Judge appointed to tho Federal Bench must resign his State position?
– Clause 7 applies to officers of all descriptions.
– Yes, but it includes the Judges of the High Court.
SirWilliam McMillan. - How could such a Judge serve two masters?
-I do not think it is a case of one man serving two masters. In theory there is a sort of antagonism in certain matters between State and Commonwealth’; but that antagonism has been too much insisted upon, and will seldom come into judicial play. In ninety-nine per cent. of the cases which will arise under our legislation, there cannot be antagonism between the interests of State and Commonwealth.
– But the time of the States Judges might be taken up with their State work, and they would be directed by their States.
– The Judges of the States Courts are absolutely independent. They hold office during good behaviour, and their salaries cannot be reduced by an ordinary Parliamentary vote.
-But they must do their State work first.
– Yes; and the arrangement which I propose will depend upon the giving of consent by the States. As the people of the States are asking us to be economical, surely we might delay the settlement of this question for a week or two until it can be seen whether the Governments of the States will fall in with our proposal.
– Might not the States Governments delay jurisdiction at any time to prevent the Federal Government from getting justice?
– I take it that the honorable member suggests that the Governments of the States might not allow their Judges to como together to do Federal work. No doubt that is possible, but statesmen do not deal with mere possibilities; they must deal with what is probable. There is not a power under the British Constitution which is not theoretically open to abuse, but are they abused t Are there not the checks and balances of which we heard so much during the second reading debate ?
– What would the honorable and learned member propose in the case of a State Judge ceasing to hold office as a State Judge t
– If he were willing to continue to hold his position as a Federal Judge, so much the better. None but a patriotic man would surrender a salary of £3,500 a year, and continue to hold a position worth only £500 a year.
– The directing power of the work of the States Judges would come primarily from the States.
– That argument does away with the theory of the freedom of the Judges, of which we have heard so rauch.
– How can the States Governments be the directing power in the sense to which the honorable member for Wentworth refers? Surely a State Government would not step in where the question involved was whether a bill of exchange was properly stamped?
– I am speaking of the work of the States Courts. The Federal Government would require to occupy a certain portion of the time of the States Judges.
– I thought we decided this matter om the second reading?
– If every detail in the Bill was settled when the second reading was carried, I wonder that the honorable member pressed his amendment last night to a division. This matter was discussed on the second reading, but it could not be decided then.
– Would not the honorable and learned member’s amendment come best in clause 7?
– I thought so at first, but if an increase in the proposed salaries of the J udges is made, I shall be met with a further objection.
– It is very awkward to mix the question up with the question of salaries.
– We should have dealt with it before we considered the question of pensions.
– The fact that the Committee struck out the pension provisions should support my proposal, because one of the principal objections which could have been urged against it otherwise would have been that a State Judge might, at any time, resign from the Federal Bench, and we would still have to pay a pension to him. If the Commonwealth pays no pensions, that will not happen.
– But the proposal of the honorable and learned member has the effect of mixing up two separate questions.
– It is difficult to know under what clause to bring forward the proposal, but I think that we should settle it before we decide what salaries are to be paid.
Mr.McCAY. - If the honorable and learned member’s proposal were carried, the Government would have to abandon their salary proposals.
– If States’ Judges were appointed would they not continue to be entitled to the pensions to which they were entitled under the States laws ?
– Yes ; they would not lose either their States salaries or their States pensions, but that would not affect the Commonwealth.
– They would continue States Judges, and this would be a States Court.
– They would continue to be States Judges, but we should not have to pay their States pensions. If, however, the amendment moved last night had not been carried, their States service would have counted in the fixing of Commonwealth pensions.
– How often would the States Judges meet to form a court?
– In 1871 a Bill was drafted in Victoria for the establishment of a court similar to that which I now propose. I have a copy of it here. It provides for the establishment of such a court upon the agreement of three of the States to the arrangement. There was no idea then that the work of, the States Judges would be interfered with, or that the time necessary for their State work would be absorbed.
– Then whywas not the court constituted?
– Because the Imperial Government said that the cases sent to the Privy Council were so few that there would not be work enough for the proposed court.
– In 1891, however, a conference of States Judges rejected the proposal.
– I know that that is so, but more than one of our Chief Justices is in favour of surmounting the difficulty which confronts us, at the initiation of Federation, by some such arrangement as that which I now propose. I have their authority declared in the Convention, for saying that the thing can be done, while a number of honorable members think that it cannot be done. My proposal will save a number of incidental expenses, such as the salaries of registrars, marshals, &c.
– Because all the records will be States records.
– Then it will be a States Court and not a Federal Court.
– The tribunal will be a Federal one, but the machinery of the States Courts will be used.
– We propose to use the machinery of the States Courts.
– The proposal of the honorable and learned member requires the duplication of machinery. Who is to keep the double record which will be required?
– The States officers.
– The cases which will come before this Court will nearly all be State cases, which will be dealt with by way of appeal, when the Judges are called together.
– Where will they meet?
– At the seat of Government ultimately, but in the beginning, wherever the cases awaiting hearing are most numerous. That was the arrangement suggested in 1871. There are no insuperable difficulties to my proposal, and there are plenty of ways of getting over any difficulties that may be suggested. If honorable members really wish to adopt this temporary expedient they can thereby practice a considerable amount of economy. I know the feeling of some honorable gentlemen as to the necessity of economic administration, and there is a pretty strong opinion outside that some such court as I propose will be sufficient for the next twenty years. I move, in order to test the question -
That after the word “of,”line 2, the words “ five hundred “ be inserted.
– If the honorable and learned member presses his amendment, there will be a danger of mixing up the issues as to utilizing the services of the States J udges, and the salaries to be paid to the Judges of the High Court. We could more fairly test the opinion of the Committee by allowing the question of salaries alone to be decided in connexion with this clause, leaving the other matter to be dealt with in connexion with clause 7. I am a good deal in sympathy with the honorable and learned member’s amendment, and would support it if a clear-cut issue could be put before the Committee.
Mr. GLYNN (South Australia).- I consulted several honorable members, who thought it would be better to test the feeling of the Committee upon this point before the salaries of the Judges were fixed, but so long as my object is not prejudiced, I have no objection to postpone action until clause 7 is considered.
Amendment, by leave, withdrawn.
– The honorable member for Parramatta has requested me to move an amendment in the direction of securing further economy. I move -
That the words “five hundred,” line 2, be omitted.
The object of the amendment is to reduce the salary of the Chief Justice of the High Court to £3,000, and if that is agreed to, I intend to propose a reduction of the salaries of the other Judges to £2,750. Thus, there will be a difference of only £250 between the salary of the Chief Justice and those given to the other Judges. It is considered that there should be some distinction, on account of the higher position of the Chief Justice and the special expense to which he may be put in entertaining and in other ways. Personally, I confess that I do not usually agree with the sentiments expressed by that honorable member for Tasmania, who frequently affects the idiosynocracies of the American in this Chamber, but I think there is something to be said in favour of placing all the Judges upon the same footing. The honorable member for Parramatta, however, pointed out to me that such a proposal might not meet with the acceptance of the Committee, and I am therefore now acting in accord with him. Ministers must feel that there is a decided feeling on the part of the general body of the electors that this new born Commonwealth is being driven recklessly down hill with both brakes up, and that those who have the reins in hand ought to take a pull at the horses and check them in their reckless career. It has been stated that the Judges of the States Supreme Courts in somes cases draw higher salaries than are. indicated in the amendment which I am now submitting to the Committee. But it must be remembered that the salaries now paid were fixed in more generous times than the present, and that if the various States were now called upon to select Judges they would fix the salaries on a more moderate scale than in the past. Three thousand pounds per annum is a very handsome salary for any man, however high his position and however great his intellectual attainments, and the cases which have been referred to in which barristers have derived incomes ranging as high as from £5,000 to £10,000 must be very exceptional. These well remunerated gentlemen would not receive such high incomes throughout their lives, and a salary of £3,000 per annum for life would be better perhaps than £5,000 per annum earned for a short period only. I submit the amendment to the Committee in the full belief that they will regard “economy” as the word which is now written on the wall. Those who do not see that writing will inevitably fall at the next general election.
– I opposed the Bill on the second reading, but as it has now been decided to establish a High Court, I hold that the Judges should be paid adequately. I was strongly in favour of pensions being granted so that we might at all times have an efficient Bench.
Three thousand pounds appears to me to be a sufficient salary for the Chief Justice, and I am in favour of fixing the salaries of the other Judges at £2,500. It has been argued that at least three of the States pay their Chief Justice £3,500, but I believe that the tendency in all the States is to reduce the salaries of Judges, and that when it is found that the salary attached to the position of Chief Justice of the High Court - the blue ribbon of the judiciary of the Commonwealth - is fixed at £3,000, it is more than likely that the emoluments attached to the States Judgeships will be considerably reduced.
– I hope the salaries proposed will not be reduced. The Committee, in deciding against pensions, have, I believe, exposed us to the very great risk of not being able to secure the very best men, and I am in doubt whether the Bill should not be withdrawn now that pensions have been abolished. The Committee should, at any rate, recognise that salaries should be fixed upon as high a scale as possible. I do not understand the position of the honorable member for Robertson, because he is in favour of pensions and yet is now proposing to reduce the salaries of the Judges.
– Hear, hear ; but I shall still vote in favour of granting them pensions, with a view to keeping our Bench at the highest state of efficiency.
– Although I voted against the Bill in the first place I should like to see the High Court made as strong as possible. I am afraid that, in view of the amendments already made in the Bill, the court will not be of the high character which I should like to see ; and perhaps, from the point of view of some honorable members it might be better to kill the Bill at this stage. I think, however, that although I voted against the second reading my duty now lies in the direction of making the Bill as good a measure as possible.
Sir WILLIAM McMILLAN (Wentworth). - I hope the clause will not be amended. We have heard a great deal about principle in this discussion ; but, to my mind, we should view the selection of the Judges for the High Court in exactly the same way that as we should regard the question of engaging a man to discharge the duties pertaining to any other occupation. Certainly if we put aside the question of principle - seeing that pensions are not to be paid to the High Court Justices - this matter becomes purely a practical one. We have further to recollect that these Justices will be selected from Australia, and is the Commonwealth to compete with the different States in regard to the salaries paid to their Judges?
– If so, we should secure only the leavings.
– Of course. Some honorable members have said - “ What about the honour attached to the positions? Surely the only consideration with the Justices is not that of pay.” Certainly it is not; but at the same time everything must be in proportion. Whilst a man might be disposed to sacrifice a practice worth £6,000 or £7,000 a year for the honour of filling the office of Chief Justice at £3,500 or £3,000 a year, and whilst the other Justices from similar motives might be willing to relinquish practices worth £4,000 or £5,000 for less lucrative judicial positions, it should be recognised that there is a point at which considerations of sentimentand high position must be ignored, and at which men, in the interests of their families, would not feel justified in making further sacrifices. It would be better, for the sake of the few hundred pounds involved, for the Commonwealth to keep in line with the various States.
– I voted against the second reading of this Bill, and should do so again if a similar opportunity presented itself. Seeing, however, that we have now to determine the basis of the High Court, we must be dominated by high considerations. Last night I voted in favour of the pension proposals in the Bill, with the full intention of agreeing to a lower salary than that which is now proposed. Had the Committee adopted an amendment in favour of granting pensions to the Justices of the High Court upon the lines indicated in the amendment of the honorable member for North Sydney, I should have thought that salaries of £2,500 would be adequate. I am of opinion that a moderate pension would probably prove a greater inducement to good men to occupy seats upon the High Court Bench than would a higher salary, inasmuch as it would constitute some provision for their declining years. As the matter stands, however, I intend to vote for the clausein its present form, because, after listening to the opinions of those honorable members who ought to be well informed upon the matter, I feel that unless we offer these salaries we shall not secure the best talent available. So far, I have not- met outside one single member of tlie legal profession who holds the opinion that’ this court is necessary at the present . time. The consensus of opinion seems* to be that the work of the High Court could be well discharged by a tribunal constituted of the Supreme Court Judges- of the States. I shall vote for .the clause, -but I believe that if we could utilize the services of the States Judges in the way indicated by the honorable and learned member for South Australia, Mr. Glynn, that would be the best course to adopt.
– I I should like to vote with my colleague from Tasmania ; but when I declared in favour of paying the Justices of the High Court salaries of £3,000 a year, I was fighting for a small pension of £500 a year. Had the Attorney-General accepted that suggestion, I could have supported a reduction in the salaries ; but there must be reason in everything. Last night, against my inclination, I had to vote in favour of the entire abolition of pensions, because the AttorneyGeneral would not agree to the payment of a small pension.
– Yes, he would.
– No No ; he fenced and dodged the question - I mean in a spiritual sense. It- is on record that one man in Western America declared that a certain Judge had sent nearly every rich man’s relations to the penitentiary, and that if he ever became impoverished they would shoot him. I suppose that the position of the Australian Judges is very similar. I feel that we ought not to place a Judge in a false position. It is of no use arguing that we can hire the ablest men for small salaries. W e cannot do it. If we want to secure the best men we must pay them well for their services. It is true that the Chief Justice of the United States receives only £2,100 a year, but it should be recollected that a condition precedent to his appointment is that he must have had 25 years’ successful practice at the Bar. The last occupant of that distinguished office, Chief Justice Fuller, gave, up a practice which was worth 150,000’dollars a year, and it took him three months to decide to accept the position. Judges are only human beings; after all ; and it is necessary that we should, pay them reasonable salaries if they are tobe placed above temptation. Personally, I think that we should fix the salaries of the. Justices at £3,000. The honorable and learned member for South Australia, Mr.. Glynn, declared that Chief Justice Marshall, during the time that he occupied his position in the United States, was called upon to deal with only 62 constitutional cases. But what, I ask, would have been the effect if a State J udge had occupied his. position 1 Every leading writer of the world to-day admits that it was Chief Justice Marshall who galvanized the United States Constitution, which to a large extent we have copied, into life. That is. exactly what we want here. We want a Judge whose decisions will be quoted 100 years hence by other nations. It is a great pity that some honorable members are saturated with State bigotry and parochialism. What does it matter to the Commonwealth whether a State pays £1,000 a yearor £50,000 a year to the members of its. judiciary ? AVe ought to do what reason dictates. I think that £3,000 yearly is a. fair salary to pay to our Justices, because,, though a business man may make £5,000 this year, he may lose £15,000 next year.
– We must give the Chief Justice more than the other Justices.
– Why Why 1
– He receives more in the United States.
– Onl Only £100 more, and that is the result of an accident. Only the other day the Chief Justice of Victoria gave a decision which three of his colleagues afterwards upset. Can it be urged for a, moment that those gentlemen do not stand as high in the estimation of the people as., does the Chief Justice ? I know that they stand higher in the estimation of this Par-‘ liament. Unfortunately, in every English country, people are too prone to consider the position to be filled instead of the character of the man who is to occupy it. I desire to see the Justices of the High Court paid a salary of £3,000 annually, and a small sinking fund established, so that in their old age they will be protected from destitution.
– I shall certainly support the clause. I do not agree with the honorable member for Tasmania, Mr. O’Malley, that a Chief
Justice should not be paid more than the other Judges. A Chief Justice has certain duties to perform, and we know that he must be put to greater expense than are the other Judges, because, for instance, in the case of visiting J Judges from England, India, or elsewhere, he is. expected to entertain. But, apart from that, I consider that the Chief Justice would be placed in an invidious position if he received the same salary as the puisne J Judges. I feel that this Bill is brought forward at a very unfortunate time, when proposals and suggestions for economy and reductions in every direction are in the air. I interjected a little while ago as to the votes of Victorian members ; but I am aware, as are other honorable members, that .a number of Victorian representatives stood out for economy long before there was any press tirade on the subject.
– And have been denounced for it.
– I have been denounced for some of my votes, and I have been threatened with all sorts of pains and penalties. But I am not going to alter my opinion on account of press comments or at the dictation of any reform leagues. I am here to do what I think is right, and it is not for any one to attempt to brow-beat me as to the votes I shall give. I have referred to this question because I feel sure that, outside of those honorable members who have taken a firm stand for economy from the beginning, there are others who are affected by what has appeared in the press - who are afflicted by what I call “press funk.” But I hope that that funk is going to be overcome, so far as this House is concerned, and that we will endeavour to do what we think is fair ; and, further, that we shall not stand silent under continual charges of gross extravagance, for which no grounds exist. There is no stronger advocate than myself for keeping down the Commonwealth expenditure in every direction ; and I consider that the figures which have been brought forward by the Prime Minister are quite sufficient to show that as representatives -we have studied economy in every possible way. I hope that this particular clause will be carried, especially now that the provision for pensions has been struck out. When we come to the question of salaries- for the other Judges, I shall certainly vote for the sums proposed in the Bill. In my business career I have never yet found that the cheap man was the best man. So far as business is concerned, the best results are achieved by offering such salaries as will tempt the very best men ; and I am convinced that if the Judges’ salaries be reduced, ‘ especially now that the pensions have gone, we shall not obtain the men we desire for the Federal Judiciary.
– I regret very much that clause 52 was not taken in its order last night. I entered the chamber when the discussion was going on with the intention of voting for that clause as it stands, and of opposing pensions, or if the salaries were reduced, of voting for a smaller sum with a moderate pension. But I was not in the House twenty minutes before I heard some talk of reducing the salaries to £2,000 with no pension, and then I thought it was time to take a stand. In my opinion, it is absolutely impossible to get first-class men as Judges at such a figure. It seems ridiculous that appeals should be heard by Judges receiving, perhaps, £1,000 per annum less than the Judges whose decisions they are reviewing. There is no greater economist than myself in the House, but, at the same time, I hope I have some sense. In Scotland, where there is about the same population as in Australia, my economical countrymen pay their ordinary Judges £3,600 per annum, and their Lord Justice General £5,000. When we take into account the cost of living, and the advantage of residing in a civilized city like Edinburgh, it will be seen that the salaries paid in Scotland are fairly large; and we have to lake into account the fact that the general style of living in Australia is higher, or more extravagant, than at home. To accuse the Go’vernment of extravagance in proposing the salaries in the Bill is perfectly absurd. When I saw there was a danger of the Judges’ salaries being reduced, I voted for pensions - not that I agree with the payment of pensions, but because I did not want our first Australian High Court made an object of contempt and derision.
– We have in this chamber to-night what may be regarded as rather a remarkable spectacle. Members receiving £400 a year for giving great service to the State - for giving, virtually, the whole of their time to . the State - are considering the wisdom of giving lawyers to render what is also great and loyal service, a salary of seven or eight times as much. But perhaps it is our experience of public life, .and of what usually happens to a man who gives services to his country for inadequate payment, that brings us to the conclusion at which I believe the majority of the Committee will arrive to-night. The honorable member for Dalley, when speaking yesterday, mentioned Sir Henry Parkes, and in doing so he spoke of a man who for mil time, notwithstanding defects and errors, will ever stand in the forefront «.s one of the founders of the Australian nation. Sir Henry Parkes’ great brain was not the first, maybe, to suggest, but certainly was the first to grip, the great question of Australian union. He was one of the great forces which operated in bringing it to a conclusion. Sir Henry Parkes, notwithstanding his defects, is conceded to be, because of his great intellect and individuality, one of the greatest men Australia has seen. It will be some time ^before we see a greater. To a man of that kind is always given all that is possible in the competitive arena. Sir Henry Parkes held office for a considerable period, and large amounts of public money went through his hands ; but how were the last days of that patriotic statesman spent? In absolute poverty, and almost without food. It is no discredit to a man who has held high office that he should find himself absolutely without any benefit beyond that which he has derived from his official salary. It is such an example - when .we find men who have given great services to the country paupers at the end of their lives - which causes us to hesitate to ask other able men to face a like fate. If a man neglects his own affairs, and gives the whole of his strength and intellectual power to the service of his country, only one thing awaits him - a pauper’s death. It is only by an unfortunate, and at times unavoidable, mixing up of the responsibility to their constituencies and the responsibility to their homes that such men are able, it may be, to make some provision for their later days. What is the basis of payment of members? Is it not exactly what I have just stated ?
– It is only an allowance.
– -The country does not want gratuitous services ; they are never good. Australia, whatever her defects may be, is still in a sufficiently satisfactory position to pay for any services rendered to her.
– Some of the best service to humanity is rendered gratuitously.
– Humanity has not done under such circumstances its duty to the individual. What does civilization and Parliament and the making of laws mean ? Parliament is the consensus of public opinion, and we cannot, in decency, allow men to serve humanity and starve in their old age. The honorable and learned member for Werriwa has interjected that the £400 per annum paid to Members of Parliament is an allowance for expenses incurred. I say, without fear of contradiction, that no member of the Federal Parliament, if he depends on what the people are paying him, can do more than genteelly starve at his post. The people do not desire that. Payment of members was instituted not to enable men who desired to be in Parliament to be returned there, but to enable the people to get the men they want as representatives. In the same way, Australia does not desire to make judicial positions for lawyers who desire to hold them, but the object is to get the most able servants - men who will be an adornment to the station. I should like the Committee to consider the absolutely democratic idea underlying the suggestion of the Government to pay good salaries to good men. Why does an able or competent man get a high salary 1 It is because the people, and not Parliament, decide that he is worthy of it. If an honorable member broke his leg, he might have it amputated by an agricultural labourer with a hay knife, or a butcher’s assistant with a cleaver ; but he would prefer to have it attended to by some surgeon who, by his skill, had raised himself to a position which might be worth thousands of pounds a year. That simply means that in the community there is common sense enough to recognise ability. In a democratic community it is not necessary to point out the great importance of merit in the man who stands as an ideal. What is the value to a man of being the best athlete? He may win by a mere half yard in a hundred yards ; but that difference makes him worth a great deal, while the other competitors are worth nothing. It is the same with artists of every kind. The people of this country will go in thousands to witness the performances of the ablest boxer, the most adroit wrestler, or the best cricketer in the world, when they will not stir to see a second-rate man. It is excellence that the people want in every branch of work, of art, and of sport, and they are willing to pay for it. So; too, the Commonwealth must pay for excellence in its lawyers. Where an able lawyer is concerned, we know that if we only sneeze in his office we must pay him a few guineas for the privilege. But we all believe that it is better to pay enormous fees to secure the services of the best man available than to pay small fees to a second-rate, and perhaps incompetent man, and eventually lose our case. The action of private individuals in recognising merit, and being ready to pay for the services of those who possess it, makes it absolutely necessary for the Government to do likewise. Each member of the public who goes to the office of an able lawyer to engage his services, helps to build up for him an income, which aggregates in the course of a year the sum of £3,000, £5,000, or, perhaps, £6,000, and if the Government wishes to obtain the exclusive use of his services it must pay him a salary which is the equivalent of that income. It might be argued that people are willing to pay highly for those whose services they employ in the prosecution of their own business, because they rate the importance of their business so highly. But is not the business of the nation our business too, and ought we not to rate its importance highly ? What does the honorable member, who has moved this paltry Tasmanian reduction, do in the case of his own business ?
– I - It is a New South Wales reduction. The amendment was moved by the honorable member for Tasmania, Mr. Hartnoll, to oblige one of the representatives of New South Wales.
– In any case it is a paltry amendment. Does the honorable member employ incompetent men in his own business ? Does he haggle in regard to the few pounds which they ask for their service? On the contrary, he seeks to obtain the best men, and pays them the highest price for their services. But when it comes to the interpretation of treaties, to decisions affecting the relations between States, to the settlement of questions of riparian rights, to the building up and expounding of the Constitution, he is of opinion that a cheap and nasty lawyer is good enough.
I ask the Committee to vote for having the best lawyers obtainable. In doing so they will be doing what is right, and what is best in the interests of Australia. Does the honorable member not see what will happen if an unfortunate or ignorant interpretation is put upon our Constitution? The result will be that a long trail of wrong precedents will be created, with consequences ruinous to the Constitution and injurious to the people of Australia. I do not desire to say of the lawyers that they stand for sale in the market place ; but, inasmuch as they have certain abilities, qualifications, and experiences, if the country requires the services of the best of them, it must pay them the highest rewards, just as private individuals have to do. I hope that the Committee will take that view, and will agree to salaries which will pay for the best abilities procurable. Of course, in dealing with this matter, we come at last to this difficulty, that although we may pay for the best ability, we may notgetit. That brings us back to the consideration of the duties of a responsible Government. The Minister in charge of the Bill, and his colleagues, will be responsible for the appointments made under it. We can do no more than provide for salaries for which they can obtain the services of the best men, and place the blame upon them if they do not appoint such men. But if we provide inadequate salaries, we cannot blame them if they do not procure the services of the best men.
– Unfortunately we cannot get rid of a bad man.
– But we can change the Ministry. That is the only penalty for a bad appointment. We know how important Ministerial office is to the ordinary individuals who hold it - of course, I am not speaking of the members of this Government, who are above such considerations - and that whatever a Minister does, he takes care not to do anything which may cause him to lose office. We have laid it down that persons doing Ministerial work shall receive reasonable salaries, and under the Constitution Ministries are presumed to be composed of competent men. It is also presumed, when a change of Ministry occurs, that the new heads of departments are men of intelligence, who understand the responsibility of their positions, and are altogether larger minded, bigger brained, and more able thantheir under-secretaries. Unfortunately, however, that does not always happen.We pay large enough salaries, but we do not get the right men. It sometimes happens that the leader of a Government is a great political gladiator, a man wooden in intellect, but strong in jaw, who has carried the flag of what perhaps is regarded as reform in front of the battle. He is strong and virile, and of a type which succeeds, but he is not the ablest man for the position. With him come some others whose capabilities are about equal to those of a lavatory attendant. They had been useful tohim during his long fight, and while he was out of office, and when he gets into office he rewards his parasites. When that happens - not in Australia, of course, but in other parts of the world - the people have the spectacle of a combination of men in power who cannot bepresumed to be representative of the intellect of the community, or capable of looking after its interests. But although - in other places, of course - the people have that spectacle before them year after year, they still keep the salaries up. They provide salaries of £1,200 or £1,500 a year for Ministers, and hope for a better state of things. And here I should like to say a word about the Kyabram reform movement. I have heard some honorable members say that because the reform movement comes from Kyabram they will not listen. I think, however, that they are wrong there. Whatever is right should be accepted on its merits, irrespective of its source. In my opinion, we should pay special attention to Kyabram, because it is clear that she holds the master key to proper administration, which is competence combined with economy, though unfortunately she holds it in a drunken grasp. But although her speech may be accentuated with hiccoughs which speak of a recent debauch, and her breath redolent of beer, we should hear what she has to say. Kyabram is entitled to speak on the subject of political debauchery and repudiation, because she has herself repudiated, and knows the horrors of the situation. She has sinned, but she is determined that no one else shall do so. Her voice is the voice of experience, and therefore we should pay attention to it, and avoid her evil ways.
– Does the honorable member consider £3,500 a good salary ?
– Not for a man who can earn more. If the honorable member wants the best suit obtainable he must pay the best price. The cheap and nasty is never worth anything. We do not like cheap law for ourselves, and we should not try to obtain it for the country. All members of Parliament - except, of course, the members of this Parliament - become guilty, sooner or later, of’ what may be called moral cowardice.We were returned to Parliament with certain responsibilities, and pledged to vote for certain things, of which the creation of the High Court was one. The establishment of the High Court will require the expenditure of a certain amount of money. Now, in regard to the proposal of the Government, there are two courses open to us. We can vote against the provisions of the Bill, and have a cheap and unsatisfactory Bench ; we can save our political skins, and say to our constituents - “ I did the best I could for you when the Tariff was under discussion, but when it was proposed to pay good salaries to obtain the services of the best men in Australia for the work of the High Court, I would not vote for the proposal, because it would cost money. I am a reformer, a Kyabramese. I valued my position as a supporter of the Government, but I put economy above all things.” Do not honorable members see what a cowardly attitude that would be 1 If Australia is to have a High Court, she must pay a good price for it, and every man who believes in the establishment of the High Court should be ready to tell his constituents that he declined to support what was cheap and nasty, that he refused to place the supreme affairs of Australia in the hands of second rate and, possibly, incompetent men, and determined at all hazards, even at the risk of his seat, to do what was right. This spurious cry of reform means in this case the degradation of the offices of the Justices of the High Court, and the ultimate failure toobtain the most suitable men to fill them. I have put the two positions before the Committee, and I think that every honorablemember who believes that a High Court is required, and has any manliness in him, will not quibble in regard to the proposal to give a few pounds more or a few pounds less to the men who are to constitute it.
– Unlike the honorable member for Richmond, it is my intention to vote for the proposal of the honorable member for Tasmania, Mr Hartnoll. I am not affected by any views of economy which may be temporarily in fashion. i protested against extravagance at the earliest opportunity afforded to me, and that was when Ministers proposed to increase their own salaries.
– They did not.
– I contend that they did. Not a single Minister stated when the adoption of the Constitution was being advocated that he intended to draw two salaries.
– The fact that both salaries would be payable was patent on the face of the Convention estimate of the cost of the Federal Parliament published everywhere.
– I opposed that step as strongly as I could, and i have consistently supported economy ever since. i do not advocate the payment of inadequate salaries for any office, but, on the other hand, I do not advocate extravagance. i refuse to believe that we cannot obtain for the High Court the best talent available in Australia for £3,000 a year. Events will show that we can. If it were a matter of spending money for the improvement of the condition of the people, it would be a different matter. 1 should be as ready as any man to invest money in undertakings of that description. But we should not forget that, from the very inception of the Commonwealth to the present time, we have been doing nothing but create remunerative offices. I admit that we have not gone beyond the Constitution, but we have provided for these offices before they had become necessary. We are trying to do everything authorized by the Constitution within the duration of the first Parliament, and that is not necessary. It- seems to me that £3,000 is a very fair remuneration for the Chief Justice of the High Court, when we consider the difficulties of earning a great deal more than that at the Bar at the present time. We have to consider something more than the remuneration. Every person who is likely to be eligible would attach some importance to the honour and dignity of the position, and to the benefit that he might be able to confer upon the community.
– He would also have to think of his wife and children.
– Yes, and so have other people. One of the ablest men at the Bar in Victoria has recently taken office for £1,000 a year, without any security of tenure. I refer to the Premier of that
State. No one imagines that that is an. adequate, remuneration for that gentleman. Most of our best men are public-spirited, and do not expect to wring the very last farthing out of the taxpayers. If they obtain a fair and reasonable salary, in keeping with what is paid to those occupying similar positions in other parts of the world, they ought not to expect any more, and our past experience shows that there is no great difficulty in securing the best men at a reasonable salary. It was very much easier years ago than at present to earn money at the Bar. We know that at one time the ablest barristers were making £8,000 or £10,000 a year, and it was freely stated at the time the ‘ present Chief Justice was appointed that his income reached the higher amount. He, however, readily, accepted 4:3,500 per annum for a permanent position, in which he could do credit to himself and render efficient service to the country ; and I. am perfectly sure that the members of the Bar will not be less patriotic where the Commonwealth is concerned. It is not the few hundred pounds, more or less, which ic may be proposed to pay the Judges that has to be borne in mind, but the necessity for bringing about uniformity throughout the whole .service of the Commonwealth. We have to take into account every grade of servant from the highest to the lowest, and fix reasonable remuneration for each. I am perfectly satisfied that£3,000 is quite enough to pay for the highest position. It is not necessary to make a difference of £500 per annum between the salary of the Chief Justice and that of the other Judges, especially in view of the fact that we have abolished pensions. There is no doubt that the Chief Justice has to incur greater expense in the way of entertaining than other Judges would be called upon to bear. When we remember that in Canada there is a difference of only £200 between the Chief Justice and the other J Judges, and in America a difference of only £100, a distinction of £250 in our case would be quite sufficient. In any event, I regard £3,000 as the high-water mark for the salary of the Chief J Justice.
– I shall support the amendment, and I agree with those honorable members who say that it will be sufficient to make a difference of £250 between the salary of the Chief Justice and those of the other Judges. Three thousand pounds a year should be sufficient for the Chief Justice, even without a pension. I am altogether opposed to pensions in any form, and always have been. It has been urged that some of the States pay higher salaries than are now being proposed, but the fact that the States have done wrong affords no reason why we should perpetuate their error for all time. A similar argument has been used all through in connexion with the fixing of salaries, but it seems to me ridiculous to take up such a position. We are here to look after the interests of the Commonwealth, and we have no right to pursue the evil system of offering enormous salaries because the States have been giving them in the past. I have also heard it stated from time to time that a number of barristers are earning enormous salaries, but I do not believe that the present income of one member of the Bar in Victoria reaches anything like £3,000 per annum after paying all expenses. It is all very well to say that a barrister is earning £3,000 or £4,000 a year, but when the expenses and the risks are taken into account, there are very few who would not be glad to accept a salary of £3,000 as a Judge. I agree with the honorable member Gippsland that those who would be eligible for appointment as Judges would not consider only the salary, but would have some regard for the honor attached to the position.
Mr. KENNEDY (Moira).- A good deal of stress is being laid upon the fact that three of the States are paying higher salaries than the amount proposed under the amendment.
– And a pension.
– Yes, I recognise that. But we are now fixing the salaries for f uture J Judges, and I venture to say that none of the States would attempt to pay their J Judges upon the present scale if they had an opportunity of revising the salary list. In Victoria an Act passed in 1S95 provides that the salaries of Judges who may be appointed in the future shall be upon a lower scale than that hitherto prevailing. The present rate of remuneration for Judges was fixed in what may be called the golden age, as compared with the present day. I think that we have an altogether exaggerated idea of the value of such positions as those of the Judges. Reference has been made to some of the eminent Judges of America, and more particularly to Mr. J Justice Marshall, and to the unlikelihood of our being able to obtain Judges of equally high calibre unless we agree to the proposals of the Government. Honorable members who have directed attention to those cases have, however, lost sight of the fact that these eminent Judges were secured for less salary than the Government propose.
– Nominally less than, but actually as much as, we are now offering.
– Yes, that may be so. We are told that the Victorian Reform League and the newspapers in Victoria are influencing our votes in the direction of cutting down the salaries of the Judges. I do not intend to impute motives to other honorable members, but I wish to explain that before the Reform League was even mentioned in Victoria, and at the time when the first Estimates were submitted, I directed attention to the high scale of Commonwealth expenditure, and at every subsequent opportunity I expressed my opinion upon what I considered to be the extravagant habits of the Government. It was not on one occasion only that the House had to force the Government into economical paths. The economy that has been effected has not been brought about at the instigation of the Government, and I do not intend to allow it to be said that I am voting under the domination of the press upon this occasion. I feel confident that we shall run no risks by reducing the salaries in the way now proposed. The positions of the Judges will not go begging, but we shall probably be able to secure the most competent men in Australia, because we shall offer a fixity of tenure and of salary which will be much preferred by even our most eminent barristers to the varying conditions with which they have to contend in private practice, and the constant pressure of competition from year to year. I shall support the amendment.
Mr. CONROY (Werriwa).- I cannot be accused of lending my support to the Government upon any occasion on which I can avoid doing so, and, further, no one will charge me with supporting any extravagant notions that they may entertain. I thought that the Bill in the form in which it was brought forward was unnecessary, and, therefore, I opposed it upon the second reading ; I intend also to vote against it on the third reading, because I think we can accomplish all we want in another way.
– Did not the honorable and learned member say that there would be no work for the court 1
– I have said that the court, as proposed, was unnecessary, but, as the Committee have decided that there shall be a High Court, I hold that it should be composed of the ablest men only. The question for our consideration now is whether the salary proposed by the Government is too high or not. It has been admitted by honorable members on both sides that if we are to have a High Court it must be constituted of the most intellectual members of the Bar, and in order to bring about this result we must make sure that we are offering conditions which will make the Commonwealth service more attractive than those of the States. Even if the Government proposal is accepted, we shall offer less for the position of Chief J Justice than is now given in three of the States, because we have eliminated the provision relating to pensions.
– Victoria will not pay £3,500 to any future Chief Justice.
– I understand that it has been decided that any future Chief Justice in Victoria shall be paid at the rate of £3,000 per annum, but that amount will be accompanied by a provision for a pension. Even under the Government proposal provision will be made for only £500 per annum in excess of the £3,000 to which the future Chief Justices of Victoria will be entitled. The best example that we can set to any State is to select the best men available for the positions of Judges. We require the services of highly-trained men, who will make as few mistakes as - humanly speaking - it is possible to make, because the consequences of a wrong judgment are so momentous. All the inferior tribunals will be bound by the decisions of the High Court. Those decisions will extend to all the cases that may arise upon similar points throughout the Commonwealth. If the honorable member for Gippsland imagines that the services of the best legal talent available can be secured by the adoption of the amendment, I can understand his position ; but I cannot agree with him. Men with family responsibilities are bound to consider the sacrifices that would be involved in their acceptance of an appointment to the High Court Bench. I do not consider that it is necessary to create that tribunal at the present time; but in view of the fact that the pension proposals of the Bill have been eliminated, I see no course open to me but to support the Government upon, this clause.
Mr. G. B. EDWARDS (South Sydney). - I do not think there is a member of this Committee who has been more determined that in Commonwealth affairs a policy of economy shall be practised than I have. The only instance in which I did not follow the so-called economic party was in connexion with the Public Service Commissioner. For the same reason I now intend to support the clause proposed by the Government. I do not think that real economy will be effected by securing for the High Court Bench anything short of the very best legal talent available. I support the clause as it stands, more particularly as the provisions relating to pensions have been excised. I think that the cry for economy, of which we hear so much, is sometimes carried to extremes. At any rate, I am prepared to defend my vote upon this matter before my constituents. I believe in paying a reasonable price for the valuable services which we expect to be rendered to the Commonwealth by the Justices of the High Court. The adoption of a cheapandnasty policy in connexion with this matter would .be most disastrous. The . first Justices of the High Court will probably stamp the character of that tribunal for centuries to come. Perhaps some of the most important questions that will ever be decided by that court will be settled during the first five years of its existence. It would therefore be a short-sighted policy to accept the services of. other than the best men we can command. The question then arises - “At what price can we obtain the best talent “1 To my mind, the price mentioned in the clause is the minimum at which we can expect to obtain it. It is the salary that is paid to some of the States Judges. Probably we shall have some difficulty - if it is deemed desirable to appoint any of the States Judges to the High Court Bench - in persuadingthem to accept a similar salary to that which they are now receiving. It is truethat these gentlemen already enjoy pension rights, which they will not sacrifice upon resigning their present positions. That isthe only consideration which induces thehope that we may be able to secure the services of one or two of the brilliant Judges, of Australia. I recollect a passage in a comedy by Bulwer Lytton, in which one of the economic reformers complained that theSpeaker of the House of Commons received £2,000 or £3,000 a year, whilst he had an uncle who presided at vestry meetings, who would fill the position for half that amount. I think that we could obtain Justices to undertake the work which the High Court will be called upon to discharge for half the sum that we are offering; but it would be the vilest economy to accept other than the best men to be had in Australia. We cannot get that best for a smaller sum than is proposed by the Government. Last night I was anxious that the question of salaries should be considered before the pension proposals of the Bill. My idea was to support the salaries proposed, but to vote against the granting of any pensions. As the pension provisions have now been eliminated, I think we are bound to agree to the salaries proposed by the Government. I hope that the clause will be carried, because I fear that if any considerable reduction be made in the salaries offered, the passage of the Bill will be jeopardised. Honorable members must realize that it is not desirable to establish a sort of makeshift court. We want a really effective tribunal, and if we cannot obtain it, I shall feel strongly tempted to. indorse the proposal of the honorable and learned member for South Australia, Mr. Glynn, and to constitute a strong Bench of five or seven Judges from the existing States Courts, giving them a small salary for the extra duties imposed upon them. I do not regard that system as the best that can be adopted, but, if we cannot secure a proper tribunal, I think that it is the best substitute. Whatever Ministry may be in power when the first appointments are made to the High Court Bench, I trust that we shall obtain the services of patriotic men, and that only the best results will follow from the constitution of the High Court. I do not think that we are discharging our duty to the people, or to the framers of our Constitution if we do not make that tribunal one that will, from its inception, command the respect of the entire Commonwealth.
– The honorable member who has just resumed his seat has expressed the hope that men imbued with patriotic ideas will be appointed to the High Court Bench. But how, I ask, can patriotism depend upon monetary payment ? I believe that the truest patriotism springs from the breasts of those who desire to render their country some service. Are we to weigh a man’s patriotism by the amount of gold that we give him for the exercise of it? I do not believe that patriotic service depends in any measure upon a monetary return. When we are discussing a simple matter of salaries it is not fair to express the wish that those who accept them will be imbued with patriotic ideas. I regard this matter from a standpoint different from that of any honorable member who has addressed the Committee this afternoon. I still hold that this Parliament should occupy the position of an elder brother to the States - that we should endeavour to set the States an example. I do not desire to forcibly take away from them functions which they most admirably fulfil at the present time. But I feel that, in the matter of expense, a salutary lesson is needed by them. When the people of Australia were being so strongly advised to adopt the Federal Constitution, one of the principal arguments used upon every platform was that under its operation great savings would be effected. In common with the honorable ‘ member for Gippsland, I regret that, so far, the efforts of this Parliament seem, to have been directed towards increasing the demands made upon the public purse, rather than in conserving the financial interests of the States. I should not like this Parliament to commit any overt act in the direction of forcing the States to exercise more economy. I feel, however, that we have constant opportunities of proving by example the very high regard which we have for economic government. If we were to show that by the expenditure of a less sum of money than that which is proposed we could get judicial services of the highest character, it would prove an object lesson to the States which they could not fail to copy. Then we should be discharging one of the highest functions that we can hope to fulfil. We should be lessening the burden that is already pressing too heavily upon the general taxpayer.
– Does the honorable member think that is so ?
– I am using language that the Minister for Defence does not understand. He has not been compelled
– I have been more economical all my life than has the honorable member.
– Not with other people’s money.
– I am sure that the records of Western Australia will not bear out the Minister’s statement in that respect.
– I take exception to the remark as not correct. .
– If the right honorable gentleman takes exception to that remark I certainly withdraw it. We have an opportunity, of which we should not fail to take advantage, of setting an example to the States. I am not one who believes that the services which will be rendered by the occupants of the High Court Bench are to be commanded by any sum of money. We require on the Bench men of sufficient patriotism to altogether refuse to allow financial considerations to weigh with them in the exercise of their duty. If we were to pay men on the basis which some honorable members desire, what amount would some representatives in this Chamber receive ? Look at the sacrifices which honorable members make from day to day and from week to week in the endeavour to do their duty to the Commonwealth in Parliament. Yet there is not in the mind of any honorable member a feeling of regret for the sacrifices made ; they recognise that they are discharging the highest duties a man can. discharge - the duty he owes to the State which gives him protection.
– But theVictorian Government make us pay income tax for the protection afforded us here.
– That is a mere local affair about which we need not say anything at this juncture. I ask honorable members to attempt to realize what a salary of £3,000 really means. It means, as one honorable member said, a great deal more than most men who will be eligible for the position are receiving at the present time. A Judgeship means absolute security ; that so long as a man is capable of performing his duty he will receive his salary. Bad seasons will not affect him, nor will he be susceptible to differences in the rates of the money market ; he will receive his salary without deduction or diminution as regularly as the sun rises. A salary of £3,000 per annum means about £60 a week ; and when the case is stated in this way, honorable members more readily recognise what a large sum it is to expect from the Treasury for the services we are to receive in return. If there is not a single case before the court in the whole twelve months, this enormous sum will be still paid to the Judges ; and, further, the salaries of the court officials will be graded in accordance with those we pay to the occupants of the Bench.
– The salaries of the court officials are not measured by the Judges’ salaries.
– But has not a similar grading been proved to have taken place in every Department we have created?
– Is it not a fact that in the Departments of the Commonwealth which have been taken over, there are officers to-day receiving salaries far in advance of those paid for similar services in the States?
– The point of the honorable member is that there will be a proportion between the salaries paid to the Judges and the salaries paid to the officers associated with the courts. There is no such proportion. The duties are entirely different, and it would not affect the salaries of the officers of the court if the Judges were paid salaries of £5,000 or even £15,000.
– My contention is that if we determine on economical administration in the higher branches, we shall have economical administration right throughout the service. If, however, we pay extravagant salaries in the higher positions, there would be reasonable justification for assuming that the same extravagance will permeate the whole of the service.
– The Judges stand by themselves, apart from everyone else.
– Why should the comparatively high rates of salary be limited to those who occupy the higher positions ? If we pay £3,500 to the Chief Justice, and pay the sums proposed for the other Judges, we shall be setting a very bad example to the States, and we shall deserve undoubtedly some of the opprobrium that in future will be levelled against the first Parliament for not better conserving the interests of the people, and of the various States - for not, indeed, keeping better faith with them. I have given some consideration to the question of union and the results that would follow it, and have devoted the best years of my life to an endeavour to place facts fairly and properly before the public ; and there is no doubt in my mind that the people of Australia at the present time believe that the Federal Parliament is not acting in consonance with the promises made before the Constitution was finally adopted.
– Does the honorable member not think that the people expect too much from us ?
– I think they do; but I also know that they believewe are rushing into great extravagance, and endeavouring to carry out during the life-time of the first Parliament work which it was never anticipated would be dealt with for the first ten years of federation at any rate.
– Are the States doing their share in the work of economy ?
– I think not; but this Parliament, which occupies a higher position, should set an example, and show that, although we believe the Chief J ustice for the whole of Australia should be superior to the Chief Justices of any of the States, we will not allow that belief to weigh with us in fixing the salary to be attached to the office, and because the States pay their Chief Justices £3,000 per annum, pay the Federal Chief Justice £3,500 per annum. On the other hand, we should express theopinion that theoccupant of the position will beadequately remunerated with £3,000 per annum, and that we do not care if the States choose to pay their Chief J ustices £7,000 per annum. The spirit of emulation in paying away the people’s money has done too much harm to Australia in the past. “We have had States bidding against each other for Governors and other high officials; and that is the sort of thing we hope under the Commonwealth to see relegated to oblivion. The only idea that animates me is that of making the Bill as little harmful as I possibly can to the interests of the people of Australia. Long before the present agitation for economy was commenced, I expressed my opinion publicly about the proposal to establish a High Court, and I have opposed that proposal from the time it was first mooted. I have been anxious to postpone, but not to repudiate, the establishment of that court; but since it is to be established, I hope to see it put on such a basis as will, while not interfering with efficiency, prove conclusively to the States that this Parliament is not wanting in its duty, and that we are prepared to set them an example which they can profitably follow. If we do that, instead of blame being fixed on us for the work we are doing, although it may be premature in the opinion of some, it will be admitted that by exercising due economy we have done our duty to the States and to Australia as a whole. I repudiate altogether the assertion - which has been implied rather than openly made - that the rectitude of the J udges will depend on the salaries ; the history of the past in Australia is altogether opposed to such an idea. We have been told to-day that the Judges must be kept above temptation ; but there never has been in Australia any temptation of a character which would cause a Judge to be false to the oath which he took on assuming his very high and responsible office.
– If there were a liability to temptation, a difference of a few hundred pounds a year would not keep a Judge straight.
– We are told that we must secure the very best men, and that the only way to do so is to pay £3,500 per annum to the Chief Justice, and correspondingly large salaries to the puisne Judges.
– By paying salaries commensurate with the position ; it is not a question of £500 a year.
– I say that we have not to consider the position, which carries its own compensation. The man who occupies the position of Chief Justice will, in that fact itself, have all the compensation he desires, or, at any rate, deserves ; what we have to do is to pay him for the work he does. The range of man’s ambition is not bounded by the salary which he may receive ; the satisfaction of his ambition will depend on the true and faithful performance of his duty. The advantages of the position are held in very highesteem by those who will probably sit on the High -Court Bench ; and that fact must be recognised. There are no doubt men of undoubted ability and of standing in Australia who would be prepared to take the position without pay ; but I am not advocating the acceptance of their services. I do not think the Commonwealth should accept from an individual services which are not paid for, or which wearenot prepared to recognise in a proper fashion. I trust that these are the last words I shall have to say on this Bill, which I have opposed from the beginning, and which I do not now like any more than I did before. In the performance of my duty to those who have sent me here, and to the people of Australia, I must enter my protest against the large salary proposed for the Chief Justice, and announce my intention of supporting the amendment.
Mr. MAHON (Coolgardie).- The amendment which has been moved by the honorable member for Tasmania, Mr. Hartnoll, provides that a reduction of £500 shall be made in the salary of the Chief J Justice of the High Court, and of £250 in the salaries of the other Judges so that if the court is constituted of three Judges, the total saving to the Commonwealth will be about £1,000 a year. I have taken the trouble to make a calculation as to what that saving amounts to per head of population, and I find that, assuming the population of the Commonwealth to be 4,000,000, it will be just 1-1 6th of Id.
– It is not so much the amount that will be saved as the principle.
– I heard that stated by the honorable member at some length quite recently.
– I am sorry if my speech did not convert the honorable gentleman.
– It neither converted nor convinced me. If we are to have economic reform, it should be genuine : we should not be content with a mere cheeseparing attempt to whittle down the cost of an institution when, in the end, it may result in the difference between getting really good men and getting second-rate men. That being so, I do not feel disposed to vote for the amendment. When a division was taken last” night upon the pension question, I did not feel at all comfortable in the company in which I found myself. I noticed that amongst the advocates of economy are gentlemen who have been referred to by the honorable member for Richmond as connected with the Kyabram movement. In my opinion, the proposals for economy which come from that quarter ave rather spurious and one-sided, and ‘ are being advocated in a very hysterical manner. The curious part of the whole agitation is that the very individuals who are now so loudly clamouring for what they call financial reform and economy in this State are the men who, a couple of years ago, were throwing up their hats in Collins-street over some alleged
victory in South Africa to which this unfortunate State had contributed at a verylarge expenditure of life and of money. The honorable member for Gippsland, who is now one of the foremost, and I might say the only realty imposing leader of the movement in this Chamber, is a gentleman who has continually boasted of having sent away from Victoria several contingents ; and, in fact, of having initiated the policy of interfering in foreign affairs. I find that either he or his Government was instrumental in spending no less than £138,327 of Victorian money on these expeditions. It hardly lies in the mouths of gentlemen who have played fast and loose with the funds of the peoplein that fashion to come here and quibbleover a proposed expenditure of £1,000 a year.
– Where did the honorablemember get his figures relating to the- war expenditure of Victoria 1
– From page 40 of a document distributed this morning, and entitled - “ Papers relating to a Conference between the Secretary of State for the Colonies, and the Prime Ministers of the selfgoverning colonies.” Personally, I have always in this Chamber supported economy, and I believe that we should, so far as we can, see that the administration of the Government is carried on in an economical way. The honorable member for Gippsland said that this Parliament has done nothing since it first met in Melbourne but create billets and incur fresh expenditure. But the Commonwealth Constitution, like an)’ other great machinery, must be set in motion, and the initial expense of starting machinery is always considerable. I hardly thought that a gentleman of sq acute a mind as his could have overlooked a fact sosalient as that. It was his duty to qualify his statement by mentioning that themachinery of government had to be built up, and offices created, as a matter of compulsion under the Constitution. It was. hardly fair to reserve that qualification.
– D - Does the honorable member know that it is the land bankbursters who are the Kyabramapootras now t
– I know that some of the leaders in the movement have not the cleanest record ; but, as anything we say is privileged, I do not think we should take away the characters of those who have not fin opportunity to reply to us, or the means of taking us into court to make us prove the truth of what we say regarding them.
– H - How can we take away their characters if they have none ?
– Of course, honorable members accept with a grain of salt a good many of the statements which appear about this reform movement. The other day we saw how a leading Melbourne newspaper juggled with figures with regard to the expenditure of the Commonwealth upon certain offices, and how facts were concealed by it in order to mislead public opinion. If any one wants a guide as to how to act, he ought always to ascertain what course the two great newspapers which claim to dominate public opinion in Melbourne favour, and then go in the opposite direction. If he does that, he is almost certain to be right.
– I - I am not sure of that, even.
– I know that the honorable member has another press mentor, which he follows more than either of those to which I have referred.
– H - Hear, hear; the Bulletin, the only Christian paper.
– I think that a fair proposal with regard to the Federal Judiciary would be to pay the Chief Justice and the other Judges the salaries fixed in the clause, but provide that the Chief J ustice shall set apart £500 a year, and the other Judges £450 a year, to create a fund to provide retiring allowances for them. If that were done the net salary of the Chief Justice would be £3,000 a year, and that of the other Judges £2,550. I think that such an arrangement would receive the approbation of the gentlemen who are qualified to fill the positions, and that a good many members of this Committee would be disposed to agree to it. The salaries would be paid as fixed in the Bill, a retiring allowance would be provided for, and we should know exactly how much the Commonwealth would be called upon to pay. But while I have always advocated economy, and believe in economical administration, I wish to mention that the cheap courts of America and Canada, to which reference has been made so often, are not satisfactory courts.
– They are cheap and nasty.
– We can learn a great deal from the history of the United States. In almost every newspaper one picks up in which there is the letter of an American correspondent, one reads that there is a rumour of this Judge and that Judge having been bought.
– Those rumours do not attach to the Judges of the Federal Court of Appeal.
– Possibly not ; but they attach to the minor Judges. It was a notorious fact that Boss Tweed in his day practically owned the State Judiciary of New York.
– That was an elected Judiciary.
– That is true, but it seems to me that if you pay a man too little, whether he be an elected Justipe or an appointed Judge, you tempt him, if not to do something corrupt, to engage in some enterprise or speculation which will occupy his time and take off his mind from the work which he is appointed to perform.
– The men of whom the honorable member speaks - Boss Tweed’s Judges - were getting very big salaries.
– From Tweed.
– The honorable member forgets that, although nominally their salaries may have been large, considerable deductions were made from them for party purposes. It is misleading to refer to the salary of a Judge as 20,000 dollars or 30,000 dollars a year, if he has to pay 5,000 dollars or 10,000 dollars for the nomination of his party. The universal rule is that if you pay a good salary you get a competent man. We could not have more important work to be performed than the Judges of the High Court will have to do. It is false economy to whittle away at a provision like this to save an amount which is a mere bagatelle in relation to the total expenditure of the Commonwealth. If we have inferior Judges, more money may be lost in connexion with the preliminary stages of one single case than the saving of a year under the amendment. I am one of those who believe in having an exalted High Court - a court which no Australian need have any fear to enter ; a court not merely raised above the States Courts, but one to which the whole of Australia can look for absolute impartiality and justice. Unless we get the best men we shall not attain the desired end, and unless we offer good salaries we shall not secure the best men. Therefore, I intend to vote for the Government proposal, conditional upon some provision being made for a deduction from the Judges’ salaries with the object of providing them with retiring allowances. It would be very dangerous for us to appoint a Judge permanently, and to allow him to remain on the Bench after he had become incapacitated. The only way in which we can get over the difficulty is by offering a substantial inducement for retirement, or by imposing an age limit of, say, 65 or 70 years. The objection to the latter course is that under such a condition we might force off the Bench a really good man, who would be able to serve the country for five or even ten years longer. We know that the intellectual ability of men is not diminished very much up to the ages I have mentioned, because we have the case of Mr. Gladstone and others who have made reputations and ruled the State even after they had arrived at an extreme age. I hope the Government will adopt this suggestion, and afford the Committee a way out of the difficulty with which they now find themselves face to face. No one cares for a mere infinitesimal saving, and if a proposal is made under which we shall be able to see exactly the extent of our liabilities, I am sure that the decision arrived at last night will be reconsidered by many honorable members.
Mr. HIGGINS (Northern Melbourne).I had hoped to avoid the necessity for speaking upon this occasion, but as I opposed the Bill upon several grounds, I fear that I shall be misunderstood in some quarters if I do not explain my position. I take up the stand that if we are to have a High Court we should not allow any parsimonious considerations to affect the standing of that tribunal.We should not, in fact, spoil our ship for the sake of a barrel of tar. If the amendment is adopted we shall be able to save £1,000 per annum in the event of only three Judges being appointed, whereas, if five Judges are appointed, we shall save £1,500 per annum. This will be a very small thing for the country, but it may mean a great deal in connexion with the choice of our Judges. I think that some speakers have displayed a want of perspective in their views of the relative importance of the questions which have been submitted for their consideration. There are far more vital considerations than the saving of £1,500 a year. I do not despise small economies, but if by giving an extra £1,500 a year we can secure the pick of the men eligible as Judges, and if without giving it we can not do so, I say we should by all means provide for the additional expense.
– Will the suggested increase make all the difference ?
– I would ask the honorable member to look at the payments now made to Judges in the States. We cannot afford to underbid the States. The honorable member for Laanecoorie has stated that it is not money but patriotism that induces men to work for the State. That is very true, but if a barrister can equally display his patriotism by servingthe State or the Commonwealth, the difference in the salary may influence his choice.
– The honorable and learned member is speaking for his own profession.
– I am only meeting the honorable member’s argument. An ordinary Judge of the Victorian Supreme Court Bench receives £2,500 per annum, and is entitled to a pension. Under the amendment indicated by the honorable member for Tasmania, Mr. Hartnoll, the Federal Judges are to receive £2,750 each, and are not to have any pension. Now, consider which of these positions would be preferred by a man who would be eligible for a Judgeship, and who would, in most cases, probably be past the prime of physical life. By adopting the amendment, we shall go down to the very lowest water-mark, and it will be dangerous to follow that course.
– The man who wants to sell his services will consider which position will make the greater demand upon his abilities.
– Does the honorable member mean that there will be less work for a Federal Judge than for a State Judge?
– That constitutes one of the difficulties attaching to my position. I admit that I have expressed the view that the High Court will not have enough to do. I am not going to burke that point, but I propose for the present to assume that I am wrong in that regard. My desire is to adopt the course which is calculated to secure for us the very best men to do the work.
– The suggestion that the Federal Judges will be placed in a position of disadvantage relates only to the reduction made in the quantity of the work, and not to the importance of the suits to be tried, or to the influence of their decision.
– Quite so. The honorable member for Coolgardie stated that the saving which would be effected by adopting the amendment would represent only onesixteenth of a penny per head of the population of the Commonwealth. We are at present spending in connexion with this House - including the interest on the building we occupy, salaries, and all other expenses - about £300 per day ; and I may point out that we are incurring this expense in order to effect a saving of £1,000 a year. It may be objected that there is not much force in this argument, but it should cause honorable members to reflect. I have looked very carefully into the case of Canada. It is very dangerous to use analogies without looking into all the circumstances, as I think I shall be able to show. On consulting Wheeler’s “ Confederation Law of Canada,” it will be seen that the Supreme Court of Canada sits only three times a year - in February, May, and October - and hears appeals only. Therefore it is not to be wondered at that Judges who have to sit, perhaps, for only one quarter of the year, are paid much less than are the Judges of our States Courts. Apart from the Supreme Court of Canada, we find that in each of the provinces the number of Judges is far greater than in any of these States. In Quebec alone there are 36 Judges whose positions correspond with those occupied by our Supreme Court Judges. Ontario also has twelve–
– They have83 or 84 Judges altogether in the higher Courts of Canada.
– Just so. If I felt certain that the J udges of the High Court, if it be created - and I think it is still doubtful - would have only the same work to do as falls to the lotof the Appeal Court in Canada, I should be content to reduce the salaries down nearly to the Canadian scale. If, however, our Federal Judges have to do the same amount of work as the Judges in the States Supreme Courts, the Canadian scale will not be high enough. As to the extra payment proposed to be given to the Chief Justice, there is a good deal of misunderstanding. It is quite true that the Chief Justice may be no better lawyer than his colleagues, but at the same time he will have work todo which will not be shared by his brother
Judges. He will be responsible for the court work ; he will have to look after the administration of the courts, and to call his colleagues together to deliberate as to the work of the year. He will be a kind of figure-head to the courts, and the sheriff and officers will be directly responsible to him. Therefore, apart from the reference which has been made to entertainment, to which I attach no importance, the Chief Justice ought to have something more than his colleagues. We must look at this question all round. The honorable and learned member for South Australia, Mr. Glynn, has from first to last proposed to create a special court consisting of Judges of the States Supreme Courts, but however laudable that idea may be it would not work out in practice. I am not influenced to take this view by the argument that no man can serve two masters, because 1 know that the Governments of the States are not the masters of our Benches. In this fact lies one of our chief guarantees that the laws shall be carried out. I can recollect a case which brought this fact home to my mind in the most forcible manner. A certain politician was a litigant in a case in which eventually the issue was reduced to the simple question whether the politician in question was a liar or not. He was found to be a liar, and he has since become a Minister of State.
– I hope the honorable and learned member does not put that forward as a statement of cause and effect.
– I knew that that politician could work insidiously among his fellow members for a long time, and would pursue his intentions for years. I believe that what lies at the root of the excellence of our administration of justice is the fact that the Judges are absolutely without masters, and completely free from restraint by the Government. Our courts have on many occasions decided against the Government. There have been instances in which they have been called upon to decide important matters relating to the administration of the lands, and they have flouted the Government of the clay. I have heard of the dispute over the Darling grant, and when the Ministry were trying to collect customs dues on the mere resolution of the Assembly. In those cases the Government were flouted by the court.
SirWilliam McMillan. - Would not the States lay down the arrangements as to the sittings of the court?
– Seeing that the States have not more Judges than they require, I do not think the scheme would be practicable. If they have not more Judges than are required in their own Supreme Courts, the position would be very awkward indeed if the attendance of a Judge who lived in Perth was required in Brisbane. Let honorable members imagine the case of a Justice in Western Australia, who is told that the High Court will sit in Brisbane upon a certain day, and that his presence there is expected. He would have to perform his own State work, and which of the two orders would he obey? It is very important to the people that the attainment of justice shall be made as speedy as possible. Those who voted for this Bill must go to the extent of making the High Court a fully equipped and complete tribunal. There is no half-way house. Of course a good deal depends upon the number of Judges that we decide to appoint. Several honorable members voted for this measure because they favour the appointment of only three Judges. I would not vote for the appointment of three Judges because I know that such a scheme would prove utterly unworkable. If one of the three were indisposed the whole of the Federal machinery would be stopped. We must allow some margin for accidents. Further, we cannot expect the public to repose confidence in a tribunal consisting of only three Judges as a court of appeal from the decision of a Bench consisting of five or six J udges, especially where the five or six were unanimous. It is absolutely absurd to suppose that where the Justices were about equal in weight, learning, and skill, the public would appeal to a Bench of three Judges from the decision of a Bench of five or six.
– To get over that difficulty i t would be necessary to have a Bench of thirteen Justices to constitute a Court of Appeal.
– I do not intend to carry logic to a conclusion of that sort. I have never known a case in Australia in which there were more than five or six Justices upon one Bench. It would be a mistake to create a Court of Appeal unless we could make it stronger than a court of first instance. Unless we can make the High Court stronger than are the Supreme Courts of the States, it is of no use erecting it In Canada there is nothing to prevent any court within the limits of its jurisdiction from dealing with any question of Federal law. The amount which will have to be paid to the Justices of the High Court by way of salary does not by any means represent the only cost that will be incurred in the establishment of that tribunal. Even if we constitute the Court of the States Judges, officers will be required to obey their orders and execute their judgments. Of course, the idea of the Attorney-General is to secure for a little extra payment the services of the States officers, such as sheriffs, &c. The only alternative with which we are faced is - “ Shall we secure a High Court with ample equipment by expending all that is necessary to make it a powerful tribunal, or shall we vest Federal jurisdiction in the Supreme Courts?” If we adopt the latter course we shall not require to appoint a single new officer.
– The States Governments will have something to say upon that matter.
– It would simply mean that instead of the sheriffs carrying out the Customs law enacted by the States Parliaments they would carry out that law as enacted by this Parliament. But the gnawing doubt which is at the root of all my observations is - “ Will this court have sufficient to do ? “ Upon that point I still adhere to the view that it will not be the guardian of our Constitution. I am more firmly convinced than ever that, if the Bill be carried, the Privy Council will still be the tribunal which will ultimately decide upon constitutional questions. That body will still be the Court of Appeal for the States. Where litigants have an option, they will prefer to go to the Privy Council - which offers them finality and higher qualifications - rather than to the High Court, no matter how it may be constituted. For the reasons mentioned, I have determined to cany out the pledge which I gave upon the second reading of the Bill to make the High Court, if it is created, the strongest tribunal in Australia.
– I have no desire to detain the Committee at any length, but I do not wish to give a silent vote upon this important question. Like other honorable members, I am anxious that the Commonwealth expenditure shall be kept within the lowest possible limits. At the same time I think that for positions such as the Justices of the High Court will occupy, a liberal salary must be forthcoming. I have had some difficulty in arriving at a conclusion as to what would constitute an adequate salary, but, now that the pension proposals of the Bill have been eliminated, the atmosphere has become somewhat clearer. It has been stated that three of the States pay their Chief Justices £3,500 a year. That fact does not weigh with rae in the slightest degree, because the salary in question will not be permanently paid by them, Only two or three sessions ago an Act was passed through the Queensland Legislature, providing that the future Chief Justice of that State shall be paid £2,500 a year instead of £?,500 as at present, and that the puisne Judges shall receive £2,000. It is possible that the other States will follow the example of Queensland in that respect, and revise the stipends payable to their Justices. At any rate we may rely upon it that the position of Chief Justice of the High Court -will become the blue ribbon in the Federal Public Service. I do not see my way to support the amendment proposed by the honorable member for Tasmania. The saving which would be effected b)’ its adoption would be very trivial, and. the offices to be filled are so important that it should be our aim to secure the very best talent available. I shall therefore support the clause as it stands.
– I agree with the honorable member who has just resumed his seat that we ought to secure, as Judges of the High Court, the services of the ‘very best men who are available. As the Committee are aware, I have opposed this Bill from its very inception. But, although I shall vote against its third reading, I recognise that it is our duty to try to make it as perfect a measure as we possibly can. The Attorney-General, replying last night to the argument that the salary of the Chief Justice of Canada is only about £1,750 a year, said that the judgments given by the High Court of the Dominion are not satisfactory. But I have here an expression of opinion by Bourinot, who is a well-known authority on Canadian affairs ; at any rate, I should say he is as good an authority as Professor Harrison Moore. Bourinot, speaking of the Canadian High Court, says -
So far its decisions have won respect in Canada, and have been rarely overruled by the Judicial Committee of the Privy Council.
It is I think unfair for the AttorneyGeneral, when it is pointed out that the salary paid to the Canadian Chief J Justice is small, to turn round and discredit the decisions of the court over which he presides. The Attorney-General should have been prepared to give some glaring instance of an unsatisfactory decision ; but his only reply was to quote the opinion of Professor Harrison Moore-, who, I have no doubt, is an authority of good repute.
– Sir J. G. Bourinot is the Clerk to the House of Commons of Canada. The quotation given by the honorable member for Macquarie is from the Canadian Law Journal.
– What is the date of the publication ?
– The date of publication is 18S9 ; and I do not think we have heard of any glaring instances of unsatisfactory decisions since then. As to the salaries paid in the United States, we have only to take the instance of Mr. Justice Marshall, whose decisions won the respect of the people.
– - Do not place Justice Marshall’s Court in the same category with the Canadian Court.
– What salary did Mr. Justice Marshall receive 1
– Much less than he deserved.
– The salary paid to Mr. Justice Marshall was 5,000 dollars, or about £1,000 a 3’ear, and he presided over the United States Court for 35 years. He was the Chief Justice up to the year 1S35, when, I dare say,, the population of America was about 15,000,000. Therewere no pensions granted to J Judges in the United States until 1869, when an Act was passed providing that a Judge who was 70 years of age, or upwards, and had served ten years, should receive a pension. It will be seen that under such conditions there are not many Judge pensioners. I heard the Attorney-General say that the American Judges in the early days really built up the United States Constitution, and built it well : and this work was done on a salary of 5,000 dollars. I do not mention this as an argument in favour of reducing salaries in Australia to the same amount, but merely as an answer to the’ Attorney-General and others behind him, who made it appear that the Chief Justice in the United States received a much higher amount than is proposed in this Bill. Even at the present time the salary of the Chief Justice in the United States is only 10,050 dollars ornearly £1,000 less than is proposed by the amendment, which, in my opinion, is quite sufficient to attract the best talent. The honorable member for Oxley has announced his intention of voting against the amendment on the grounds that the salary proposed by the Government amounts to only a small sum per head of the population. The AttorneyGeneral the other night pointed out that the High Court would prove an inexpensive method of hearing causes ; but I am afraid that the expense will amount to £20,000 or £30,000, or possibly a larger sum per annum. The honorable and learned member for South Australia, Mr. Glynn, has sketched a scheme which would meet our requirements at present, and, at the proper time, I shall be glad to support his proposals. In the meantime, with a view of placing the salaries on a fair basis, I shall vote for the amendment.
Mr. WILKS (Dalley).- There are two speculations before the Committee. The first speculation is that, without a high salary, we shall not attract the best men to the Bench, and the second is that there will not be sufficient work for the High Court. I question very much whether the high salary proposed by the Government would prove more attractive than the reduced salary mentioned in the amendment, and I am satisfied, even from the utterances of those who advocate what they call a “properly equipped “ tribunal, that there will not be any work to do. There is no necessity for the Bill, and, as I suggested previously, I believe in bludgeoning it on every occasion. I am prepared to vote for a reduction of the salaries to any amount the Committee is prepared to adopt, with the view of having the cases heard by the Supreme Courts of the States. The honorable member for Oxley admits that the cry for retrenchment and economy, which is so much scouted here, has been heard in Queensland for some time past, and he says it has been decided that the next Chief Justice of that State shall receive not £3,000, but £2,500 per annum. I believe that similar reductions are to take effect in Victoria, while in South Australia the salary is still less for such a man of repute as Chief Justice Way. The Attorney-General and the Prime Minister hug the Federal Constitution to their breasts with the fervour of Buddhists, and contend that we must be loyal to it if we are to obey the people’s vote. I again draw attention to sub-section (3) of section 72 of the Constitution, which provides that the Judges shall receive such remuneration as Parliament may fix, and that that remuneration “ shall not be diminished during their continuance in office.” I shall vote for the lowest possible salary, so that should the AttorneyGeneral’s speculation prove correct, and we cannot attract the best men to the Bench, to perform this heavy work, the amount may be increased. We know that it is always possible to increase, but seldom possible to diminish the salaries of Judges ; and if a high figure be fixed to-night, no change will be possible if it be discovered that the best men have not been attracted, or that there is no work to do. Should we see such a result as the AttorneyGeneral anticipates, I shall be only too pleased to vote for an increased salary, but in the meantime I ask the Government to stick to the spirit of the Constitution.
Question - That the words “ five hundred “ proposed to be omitted stand part of the clause - put. The Committee divided.
Majority … …8
Question so resolved in the affirmative.
Clause agreed to.
Clauses O’t to SG postponed.
Postponed clause 1 agreed to.
Postponed clause 2 (Interpretation).
Mr. HIGGINS (Northern Melbourne).I think that the word “appeal” must be made to include more than applications for a new trial. Some important matters may arise before the local courts which will not go on appeal to the High Court. For instance, in Victoria an order made under the Customs Act is not the subject of an appeal, but the higher courts deal with such an order by way of a rule nisi, which is quashed. I think we must include such cases under that definition. I understand that the Attorney-General will consider this matter.
Clause agreed to.
Postponed clause 3 -
The High Court shall be tv superior court of record, and shall consist of the Chief Justice and four other Justices, who shall respectively be appointed by commission.
Mr. GLYNN (South Australia). - I move -
That the word “ four,” line 3, be omitted, with a view to insert in lieu thereof the word “two.”
The object of the amendment is to provide for a court consisting of a Chief Justice and two other Judges, instead of a Chief Justice and four other Judges. I do not think it necessary to discuss the proposal at any length, because it has been thrashed out pretty well already. We have limited the original jurisdiction of the High Court to that conferred by the Constitution. Cases arising under that jurisdiction will, as has been pointed out to the Committee from time to time, make but a small demand upon the time of the Judges, although their importance will be very great. The court will be practically an Appellate Court. It has been argued that an Appellate Court must be a strong tribunal, and that to make it strong there must be five Judges. But I have heard eminent Judges say that there is a greater sense of responsibility where only three Judges are sitting than where there are five Judges on the Bench, and it may happen that the bigger tlie tribunal the smaller the amount of attention paid to the case by the individual Judges.
States I do not see why it should not be considered sufficient for ours.
Court of the work which it would be proper for it to do, which ought to come to it eventually, and of which we could very well relieve the States Courts. I have put this position to honorable members with such force as I could command, but nevertheless have not been able to convince them of the necessity for giving the High Court that work with which it would be proper to intrust it, but which is not required by the Constitution to be given to that tribunal. I wished to see the court continually occupied, but only with such business as might be appropriate to its character, and which might be taken to it with advantage to litigants. These then are the principles upon which this measure was constructed. I have hesitated to interpose when’ honorable members have been criticising me for having given to the High Court jurisdiction which was not necessary in the first instance, but which was desirable in order to fully utilize its Bench. As we were obliged to create the court, and as in order to constitute it an effective tribunal it was essential to appoint five J Judges, the next; and the only really economical course was to provide that the Judges of the High Court should perform work which they could transact with more advantage than could the States Courts.
– The complaint against the Privy Council is that even it consists generally of only four or five Judges’.
– Exactly. Seeing that so much of the business that may be transacted by the High Court must depend upon its qualifications, the responsibility rests with us of seeing that its strength, as- well as its character and reputation, are such as to give confidence to the people of Australia that they can obtain from it what is practically a final judgment. Unless it is a court of the highest repute it will not get the cases which it would have been sure to get under the Bill as introduced. I submit these considerations to the Committee, because the honorable and learned member for Northern Melbourne and myself have a certain number of purposes in common. He takes up the position that because he cannot now obtain what he desires, namely, the legal autonomy of Australia - subject only to the Imperial Court of Appeal which we all hope to see established in lieu of the dual courts at present existing in London - he should decline to assist in the establishment of any Australian tribunal until the conditions of appeal to the mother country are so altered that we can endow a local court with power to deal with the whole range of Australian litigation. That course appears to me to be defensible, but I hold that it is not the most practicable. If we establish our own court and make it the best that Australia can afford, it will naturally though gradually draw to itself the very powers with which he desires to endow it. Having established such a tribunal, we should be able to secure legal autonomy with much greater ease than we should if we followed the path proposed by my honorable and learned friend.
– The whole question depends upon whether we shall do better by starting with a court under bad conditions.
– It depends upon whether we shall do better by establishing a court under imperfect conditions, with- an imperfect jurisdiction, and with alternative appeals that we all desire to dispense with, so that there should be one course only for litigants to follow, or by doing nothing until we can do all. We all feel that the least satisfactory portion of our Constitution is the chapter relating to the Judicature, because of the amendments which were made in it. That fact explains many of what honorable members choose to term the “imperfections” of this measure. They forget that it is based upon imperfect powers, that it has been framed under many disadvantages, and that its so-called complexities represent the best effort of which we are capable to get rid of as many imperfections as we can, preparing for the development of that better condition of things which we all ardently desire.
– The Convention was too explicit.
– No; the Convention was not too explicit, but at the last moment its members who had clung to the idea of establishing a single Australian Court of Appeal felt that by insisting upon such a provision they would imperil the acceptance of the Constitution by the people.
– It was an unintentional error. Senator Symon declared emphatically that there was no option of appeal under the Constitution.
– I am aware that there was confusion upon the point. I think that the honorable member for Wentworth and a number of other members of the Convention felt so strongly upon the proposed omission of the right of appeal to the Judicial Committee of the Privy Council that to have persevered would either have cost us their support in the struggle which took place in the various States, or have deprived them of a great deal of the enthusiasm which they exhibited in the Referendum. It was rather to meet their views that the Convention consented to leave the Judiciary portion of the Constitution in an even more imperfect form than it left the financial provisions. The financial clauses represented a series of compromises, and the judicial clauses several compromises. Consequently, I feel entitled to the sympathy of honorable members in bringing forward this measure. It is because we have based our proposals upon the faulty provisions of the Constitution relating to the Judiciary - because we have endeavoured to piece them into one consistent whole that the length and complexity of this Bill has been necessitated. The question of the number of Judges to be appointed under it, while purely a legal one, will not be a question of importance to the High Court alone. One of the reasons why it is advisable to appoint five Judges is that it may be deemed desirable that the President of the Conciliation and Arbitration Court, which the Government hope to establish, shall be a Justice of the High Court. At all events, it is highly desirable that the Conciliation and Arbitration Court should be presided over by a gentleman who is endowed with special knowledge of the processes of litigation and of legal principles. A strong Bench will allow of that course being adopted. It does not follow that the Committee will adopt that proposal, although it is a one which the Government have under serious consideration. Then there is the Inter-State Commission, to which allusion has been made. The members of that commission are required to be appointed much as are the Judges under the Constitution. They are to be appointed for a term of seven years, and the conditions are laid down in section 1 03. But it is a matter for consideration on which I have no decision to announce at present, whether, in regard to this measure as well, it would not be economical to utilize the services of one of the Judges of the High Court.
– And pay him £3,000 a year for it.
– I should say to utilize part of the services of one of the Judges. It is required that one of the members of the Inter-State Commission shall be experienced in the law, and the question is whether, after all - although the Justices of the High Court will be receiving a high salary - part of the time of one of the members of the Bench might not be occupied in this direction.
– Would it not be time enough to appoint a Judge for that purpose when Parliament has decided on an Inter-State Commission?
– No; because, so far as I can see, neither of these measures would require the whole time of a single Judge ; but they might very conveniently form part of the work to be undertaken by Judges. I dare say I shall be told that these are matters for future consideration. But they require to be taken into account to the extent that it is not necessarily within the four corners of this Bill that honorable members must look for matters on which the Justices of the High Court might be utilized in the service of the Commonwealth and its people. There are such possibilities, if this Parliament in its wisdom should see fit hereafter to adopt them.
– Does the honorable gentleman really think that, under section 72 of the Constitution, he could appoint a Judge of the High Court a member of the InterState Commission? He could not inquire into facts, and the tenure of office is different.
– That only raises the difficulty as to questions of appeal. I was going to refer to that, but as the proposal is only in embryo, I do not wish to debate it at any great length. If it be decidedthat a Judge may act on the Inter-State Commission, and that it is desirable that he should so act, the difficulty will be that if there are only three Judges, an appeal from the Inter-State Commission would be heard by only two J udges, when they could be got together ; whereas if we had the greater number of Judges, four of them who were not members of the InterState Commission, would furnish an ample court to which such questions could be taken.
– Then the measures to which the honorable gentleman now refers should have preceded the Judiciary Bill?
– Not necessarily, because it would have been too soon to make provisions of the sort until honorable members had seen what work was proposed to be done by the Judges in the discharge of their purely legal duties. I do not know that it matters much which measure comes first ; but at all events it is just as well that we have the Judiciary Bill in the first instance. Consequently, if honorable members look at the proposals in the Bill, I hope they will realize that there are still several important considerations which depend on the strength of the Bench to be appointed. One of these considerations is the visiting of the different States by single Judges. It is perfectly true that the original jurisdiction of the High Court, and therefore of each single Justice, has been cut down ; but if it is desired that we should have a Federal Court which will be kept in touch with the several States by means of the visits of Justices of that court’ on circuit for the transaction of such original business, or even such appellate business as a single Judge may be able to deal with, then it will be necessary to have a larger Bench. If we are to be limited to a Bench of only three Judges, we must forego much circuit business. It would be undesirable that one Justice out of three should visit the States, when, as has already been pointed out, the illness of any one of them might leave only two sitting together as a Court of Appeal. Appeals from the States Courts, in every State of the Commonwealth, would be from at least three Judges. In spite of the higher reputation of the Federal Court, presuming we get three men distinctly superior to the average Judges on the States Benches, there will be appeals from courts of only three Judges to .a court of three Judges. That, I think, honorable members will see, would be a very unsatisfactory condition of affairs. The whole of the clauses relating to the quorums in the measure would require to be altered. In the case of removing questions to the Privy Council, if they are constitutional questions, we should not have more than three Judges, and we should require to altogether recast this part of the Bill. I feel that the tendency of the Committee is against me. The Committee desire to be content with what may be termed, without offence, a skeleton High Court. They wish to have the smallest court compatible with obedience to the dictates of the Constitution; to clothe the court with the smallest possible amount of power apart from that bestowed by the Constitution ; and to give simply the barest possible fulfilment to the mandate of tlie judiciary chapter. The Committee desire the smallest court, with the narrowest jurisdiction, and consequently the smallest amount of business - a court the least important in the public eye, and with the least influence on the judicial systems of the States. Of course, as the Constitution stands, that would be a fulfilment of the Constitution ; a bare fulfilment only, it is true, but a fulfilment. Those who consider themselves swayed by economical considerations may urge that if they do so much they do all that can be asked of them in the discharge of their duty to the people. But in my opinion that is not the most economical method. For the reasons I have given, it would be more economical to have a larger court with more business, and ena”ble it to act, as I fear it will not act, with the lesser number of Judges, as the centre of the courts of the States, on which the latter would rely, and to which litigants would turn as practically a court of final resort. That would be the most economical method. The best court is the cheapest court anywhere and everywhere, .and never was that truer than it is of the High Court. It is not a question of salaries ; it is not even a question of the ordinary cost ‘ of its administration. It is a question of the amount of business it attracts from the people of Australia, and the satisfaction it gives. If the court saves the people from oversea appeals, and gives them greater content than they are able to obtain from the States Courts, if it prove an impartial arbiter between States, if it prove a wise and judicious interpreter of the Constitution, the money spent on it will be wisely spent. My honorable friend says that the money is not expended in connexion with the producing interests or encouraging their development. I say that it is so spent, inasmuch as appeals on every subject can be brought to the court, and inasmuch as it will be the court of Appeal for the whole range of State jurisdiction as well as of Federal jurisdiction.
– Does the Attorney-General say “ tlie Court of Appeal ? “
– The honorable and learned member is quite right ; I should say “ a Court of Appeal.” The court is made a Court of Appeal, and questions which may be of the most vital importance to all classes of producers may be submitted for judgment - questions which will affect all classes and interests, most materia] not merely to individual litigants, but to all future litigants, for whom it will establish precedents and lay down principles making the path of the law somewhat less devious, costly, and difficult than it now is. All that a strong and highly competent court can do, but a weak and inconsiderable court cannot. The first economy is to create a strong court that may relieve the Courts of the States, and really* give the people better results than they receive at present. It is with this aim that the measure was shaped from its first line to its last.
Mr. A. McLEAN (Gippsland).- This is not the first time I have listened with great pleasure to the Attorney-General without agreeing with him. The honorable gentleman would have us believe that the only road to heaven is through the High Court. But, after all,it is only the few people who indulge in the costly luxury of litigation. The great body of the people do not trouble the courts, and have no desire to trouble them. It is marvellous how conscientious we can be about following the dictates of the Federal Convention when they accord with our own desires, and how readily we can set those dictates aside when there is not that accord. The AttorneyGeneral told us to-night that the court should be established at the earliest possible moment, even though it was not required, and he added that although, in the opinion of this Parliament, the court was not required, it should be established, because the Federal Convention had so determined, though no time was fixed for its creation. But when the Attorney-General came to deal with the number of the Judges, he set the views of the Convention aside, and he admits that he himself, in the Convention, voted for three Judges. It is true the Attorney-General has told us, that he voted for three Judges because it was possible that only three or four States might join the Federation at the outset, but a little later on he informed us that apart from the amount of work which would have to be done, the nature of the cases would be of such a character as to render a larger number of Judges imperative. Would the nature of the cases be in any way different if one or two of the States had stood out of Federation?I am sure the Attorney-General did not try to mislead the Committee, but in his enthusiasm that was the result he brought about. If the nature of the cases remained the same, why would he not require a Bench of five J udges, even in the event of only three or four States entering the Commonwealth ? I can hardly conceive of any case in which more than three or four of the States would be directly interested, and the Attorney-General must see that there is no consistency in the line of argument he has adopted. The honorable gentleman admitted that when he introduced the Bill he made provision for a great deal of business for the High Court which the Committee have cut out of the measure ; and he now says that it is very problematical what the extent of the business will be. Is it not in accordance with common sense and reason that we should refrain from appointing a larger number of Judges until we find that they are necessary ? Will it not be time enough to appoint additional Judges if experience points to the expediency of such a step? The Attorney-General is usually very persuasive and very logical, and though he has been persuasive to-night, the logic is wanting. He has not, I am sure, convinced a single member of the Committee that more than the number of Judges contemplated by the Convention is necessary at the present time, and now that part of the business has been cut put, it would be reasonable to follow the course laid down by the Convention. It is a course that would be followed by any business man, and if the business element were only half as strong in the Cabinet as the legal element, we should not be dealing with this Bill, but with something of a more practical character. We should not be wasting the time of the Commonwealth Parliament in creating costly tribunals, the use of which is very problematical. . I admit that the time will come when a High Court will be necessary.
– All the harm will have been done then.
– Where is the harm ? The honorable member for Bland was captured immediately by the Attorney-General when he said that it was intended to use one of the J udges in the Arbitration and Conciliation Court. That was a very diplomatic shaft, and it has evidently found its mark.
– I am in favour of having only three Judges, but the honorable member is now arguing against the creation of the court.
– I am opposed to the creation of the court before it is required, but I should be prepared to vote for it the moment its necessity was demonstrated.
– After the injury is done?
– How can injury be done? Parliament could create the court at any time. However, the question has been decided, and I can take my beating. Let us, however, confine the court within reasonable dimensions at the outset. Afterwards, if we find it necessary to do so, we can enlarge the scope of its jurisdiction, and increase the number of its Judges. The Attorney-General is evidently afraid that if a court of three Judges is given a trial there will be very little chance of the appointment of two additional Judges for some years to come. I hope, however, that the Committee will follow the dictates of prudence and common sense, and not appoint a larger tribunal than is likely to be sufficient for its immediate work. When we have ascertained that a larger number is required, we can appoint additional J udges.
Sir WILLIAM McMILLAN (Wentworth). - I think that the honorable member for Gippsland has fairly covered the ground, and, as I fancy that the minds of honorable members are made-up, I do not wish to delay the taking of a vote. At the same time, I feel that the question is one which it is very difficult for a layman to decide. Three is the absolute minimum number of Judges allowed by the Constitution, and if three only are appointed we must not forget that ill-health on the part of one of them may reduce the Bench to two, which is a very unsatisfactory number. Still I think the feeling of the Committee is that only three should be appointed now, and that when the machinery gets to work, and the actual conditions are known, Parliament can, if it thinks fit, increase the number. I think, therefore, it would be well for the Government to accept the amendment. My personal opinion is, notwithstanding my desire for economy, that the number will have to be increased in the very near future, and I do not think it is a matter of years before additional appointments will have to be made. But if we now provide for a bench of three, we shall satisfy the public, who are anxious that economy shall be exercised, and we shall satisfy those who are opposed to the Bill that we are going carefully, and do not intend to incur unnecessary expense.
Mr. JOSEPH COOK (Parramatta). - I do not think that the Attorney-General has done his case any good by the speech which he delivered this evening, though it was an excellent and beautiful one, such as he invariably makes.
– I suppose it was too frank?
– Undoubtedly it was. The Attorney-General admitted too much. He admitted, as he had already done before, that he hopes to establish a court which will come into competition with the States Courts, and take business away from them.
– It is Federal business.
– It is semi-State business - cases arising between the States and the Commonwealth. I do not see why we should appoint a Federal Court to compete with the States Courts in that way. I take it that the most we are obliged to do is to set up a court to which people can go if they feel that their case is exceptional. I deny that there is any obligation to create a court which will attract business which under ordinary circumstances would be dealt with by the States Courts. Yet that, in the opinion of the Attorney-General, is one of the best features of his proposed High Court. He went on to say that if the Judges were idle for half their time, we might employ one of them in the Arbitration Court, and, if the remainder were still drawing huge salaries and doing practically nothing, we might borrow another for the work of the Inter-State Commission. That statement is the clearest evidence that there is in the mind of the Attorney-General a grave doubt as to whether five Judges are required for the work to be done under the Bill. I should like to reply to the honorable and learned member in the language used by one of his colleagues during the sittings of the Adelaide Convention. No one spoke more clearly upon the subject then than didthepresentMinisterfor Trade and Customs, whose words I commend to theAttorney-General. He says -
I believe that for the safety of the Constitution we must have a High Court of Australia, andI think we should have one worthy of the name. At the same time I’ am inclined to think its dignity and reputation will not depend so much on its numbers as on the learning and integrity of the Judges which constitute it.
I think that that is a sentiment with which we can all agree. The Attorney-General advanced as a strong argument for appointing five Judges that appeals would be made to the High Court from Benches of three Judges ; but the Minister for Trade and Customs says that the dignity and reputation of the court will not depend upon its numbers. He goes on to say that he would not object to a court of this kind if it was not less than two. Here he meets the contingency referred to just now by the honorable member for Wentworth, that one of the three Judges may fall ill. But, so long as you have two Judges of eminence and ability, trained in a knowledge of Federal law, and possessed with an aptitude for its interpretation, there is nothing, he thinks, to be afraid of.
– Except of divisions of opinion between the two.
– I submit that the utterances ofthe Minister for Trade and Customs upon a subject like this are entitled to the highest and fullest consideration. Every one admits his ability as a lawyer, and I have never heard it questioned. It is known that he is one of the clearest-headed lawyers in Australia. He argues strongly for a High Court such as the honorable member for South Australia, Mr. Glynn, wants to create. He says -
As to the score of economy, I suppose the salaries of five Justices would total ?15,000 a year. It cannot be a less salary to each than the average salary of the various provincial Chief Justices.
Sir William Zeal. We pay ours ?3,500.
– I put that as a reasonable estimate. Reduce the numbers by two, and you will put it in the power of the Federal Parliament to save ?6,000 a year. This saving in two salaries of ?6,000 is worthy of consideration, and if we cannot trust the Federal Parliament altogether, it will be just as well to provide that there is an official High Court of Appeal, and you can constitute that with a Chief Justice and two Judges.
That is precisely what is proposed to-night. The Attorney-General argues that there will be no saving, but I submit that the Minister for Trade and Customs is a far better authority upon a question of law than upon a question of Customs administration. At any rate, I subscribe to his doctrine ; and the speech of the AttorneyGeneral has brushed away from my mind the last long, lingering doubt which pervaded it, in that he has shown that the Judges will have practically nothing to do unless the Court enters into swift and keen competition with the States Courts, and attracts business from them, or they accept other functions in connexion with the InterState Commission and the Arbitration Court. That was my argument this afternoon when I declared that, in my opinion, a smaller salary than that proposed in the Bill would attract sufficiently able men, because of the small amount of work which, in the beginning, at any rate, would have to be done. Now that the question of salary is disposed of, the Attorney-General finds himself compelled to admit that there will not be very much work for a Court of five Judges, and he suggests an additional occupation for them. But the work which he proposes to add to their duties could be done at less cost and in a better way by others than Judges possessed of only a legal training.
I think that the Committee will be quite safe, on the statement of the AttorneyGeneral, in voting for the amendment.
Mr. HUGHES (West Sydney).- This is a question which we may well consider carefully, but I am bound to say that the arguments which I have heard do not predispose me to accept the amendment. The position taken is that the High Court is now practically an Appellate Court. Now a Court cannot hear appeals unless it is composed of three Judges. It will be impossible under the Constitution to appoint an acting Judge if one of the three happens to fall sick, or becomes injured when on a journey. Judging by what we see in our own courts, it rarely happens that the whole Bench is able to go on hearing appeals throughout the full term. From the moment that one Judge of the High Court of three proved to be unable to sit, the whole of the appeal business would be at an end. We could not appoint an acting-judge, because all the appointments must be permanent. The honorable member for Parramatta has quoted the opinions of the Minister for Trade and Customs, and no doubt the right honorable gentleman is an excellent authority. We have heard of the devil quoting scripture, and, although I should be doing an injustice by comparing the honorable member for Parramatta with the devil, or by suggesting that there is any resemblance between the opinions of the Minister for Trade and Customs and scripture, it is exceedingly funny to hear the honorable member for Parramatta quoting the opinions of the Minister for Trade and Customs, and it certainly constitutes no argument. If it could be shown that the High Court could carry on its business with three Judges, I should be delighted to vote for that proposition, but otherwise I shall vote for five Judges, because it will be of no use to set up a Court and ask it to do what no court could humanly be expected to do. If we could have a Court of only three Judges, it might be absolutely necessary to apply the physical test suggested by the honorable member for Coolgardie, because the Judges would then have to be always fit to carry out their duties as members of an appellate court. Much as I dislike to add one penny to the burdens of the people, and bitterly as I was opposed to the second reading of the Bill, I shall not aid in rendering the whole measure contemptible and absurd by depriving the Court not only of its original jurisdiction, but also of the power of exercising its appellate jurisdiction.
Mr. G. B. EDWARDS (South Sydney). - I think that the Attorney-General, by his frankness and honest)’, has exposed himself to greater criticism than he would otherwise have received ; but, at the same time, I commend the attitude he has adopted in grappling with the difficulties which have occurred to the Committee. He has no doubt laboured under great disadvantages owing to the way in which ‘the Constitution deals with the creation of the High Court, and also in consequence of the amendments made by the Imperial authorities. I sympathize with his view that tlie Court should be so constituted that it will gradually develop and command more and more respect throughout the Commonwealth. I agree with him that we may look in this direction for ultimate savings in the administration of justice. I do not mean that economy is to be effected by reducing the expenses of the High Court so much as by limiting the expense involved in the administration of justice in the States Courts. Some of the arguments used against the appointment of five Judges seemed to me to be so dangerous that although I have previously directed attention to the risks we should run, I should like to again refer to them. The honorable member for Wentworth has admitted that it would be far better to have a Court constituted of five Judges, but at the same time he considers that we should start with three, and subsequently appoint additional Judges if we find it necessary. We might find it indispensable to have more than three Judges in connexion with certain cases at the very outset, and as I have previously pointed out, it would be in the power of the Ministry to appoint two other Judges entirely because of certain opinions which they might hold regarding certain constitutional matters.
– That would be an act of corruption.
– Yes, it would be ; and it is just that kind of corruption that has occurred in America, and against which we ought to guard here. We should look forward to the creation of a Court that will fulfil the purposes of the Constitution, not only to its last letter, but in its full spirit ; and we have no right to consider the little extra expense that may be involved in our securing a thoroughly competent tribunal. I think that the Attorney-General was justified in pointing out that the services of Judges who -will not be required to sit every day, but who will at the same time be required to constitute a Court of sufficient strength to deal with appeal cases, might be made use of in connexion with other Federal institutions, and in suggesting that one of them might be a member of the Inter-State Commission. We could not expect to create a satisfactory Court of Appeal constituted of less than three Judges. If we look at the circumstances of the United States when the Federal union was established, we shall find that although they had less population than we have and less trade, and although their Supreme Court was not vested with such a wide jurisdiction as the proposed High Court, yet they started with a Bench of six Judges, and their Bench has since been further strengthened. I think, therefore, that the necessity for more than three Judges at the outset must be admitted. Then again we may look at the case of Switzerland. I do not pretend to say that the circumstances of Switzerland are precisely analogous to our own. It is notorious that in such countries salaries are much lower than those which prevail here. The Federal High Court of Switzerland is constituted of nine J Judges, and the people who, through their democratic institutions, have every means of imposing a check upon the actions of the administration, have consented to the appointment of nine substitutes, in order that the Bench may be kept up to its full strength.
– Switzerland is perhaps the most economical country in Europe.
– Yes, and yet they find it necessary to appoint nine substitutes to assist nine Judges constituting a court, with no greater jurisdiction than is proposed to be conferred upon the High Court under the Bill as amended. The Federal High Court of Switzerland deals with constitutional questions and suits affecting the cantons, or between parties and the cantons.
– They must go to law for the fun of the thing.
– Indeed, they do not. The Swiss have displayed much common sense by providing a magistrate who is appointed to prevent litigation ‘ by acting as a mediator.
– Do they pay him £3,500 per annum 1
– No; nor do they pay any one else such salaries as, thank God, we can afford to pay in Australia. Honorable members who complain about the allowances made to them as Members of Parliament would be very sorry indeed to put up with the honorarium which is paid to the members of the Swiss Legislature. The Swiss nation has about the same population as our own, and it is in many respects, perhaps, the purest democracy in the world, because its legislation has the direct sanction of a democratic referendum, and yet they not only have nine Judges, but also nine substitutes, in order that they may keep their appellate court up to its full strength. The jurisdiction of the Swiss Court extends beyond that proposed to be given to the High Court in so far as it is empowered to deal with cases of treason, and it seems to me that that should have been included among the subjects to be dealt with by the High Court. Perhaps that power is implied, but I certainly think that none but the High Court should have any power to try cases of that description. I think we shall be studying economy if we provide for the full number of Judges and that we shall derive from a strongly constituted court the greatest satisfaction in future years.
– I still retain very strongly the opinion I expressed upon the second reading of the Bill, that to do the work of the country properly and satisfactorily we must have a court of five Judges. I did not rest my opinion upon the fact of the court having optional jurisdiction. The Constitution vests in the High Court certain compulsory jurisdiction which would embrace, I believe, every case of Federal jurisdiction that has come before any of the courts in Australia up to the present. In addition to that there is the appellate jurisdiction which relates both to Federal matters and to State matters. Now, whether or not those cases to which I have referred would, in the first instance, go to the States Courts, they would in all probability come to the High Court on appeal. In addition to that there is State jurisdiction of an appellate nature from six different Supreme Courts - not merely from six different Full Courts, but from any of the single Judges in the States jurisdictions - and I think it is highly probable that many litigants will
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endeavour to avoid the expense and delay, to say nothing of the annoyance, of a double appeal, first to the Full Court and then to the High Court, by coming at once from a single Judge of a State Supreme Court to the High Court. I believe that that will be the constant and increasing tendency.
– That is a very good argument in favour of the appointment of only three Judges.
– I will point out to my honorable friend why it is not. He must see that it will be so provocative of a large amount of work that the High Court will be kept busily employed in dealing with questions in which it is called upon to exercise only appellate jurisdiction, thus allowing it no time whatever for the performance of other absolutely necessary functions.
– Why not appoint additional J Judges when they are required 1
– I would point out that more than three Judges will be required at once. As the honorable and learned member for West Sydney mentioned during the course of his valuable speech, there is no “power under the Constitution to appoint an acting-Judge. If, therefore, during a Parliamentary recess, by reason of some unfortunate accident, a Judge were unable to perform his functions, the Court would come to a stand-still so far as appellate jurisdiction is concerned, even supposing that it were required to sit iri one place only. We have been told that in Canada there is a Court of Appeal. But I would point out that the Canadian Constitution forbids the Supreme Court from being anything but a Court of Appeal, and that under Canadian legislation it can sit at Ottawa only. Yet that tribunal consists of six Judges.
– According to the Attorney-General, they do their work very badly.
– It would not be done better if there were only three Judges, but rather very much worse. In the light of the experience of other . countries, it is of no use to expect the work in Australia to be properly performed by a Court consisting of only three Judges. Of course, it is within the discretion of this Committee to determine whether there shall be three, four, or five Judges. It is not necessary for us to choose between three and five only. We can overcome the difficulty of an accidental illness, or of a Judge being temporarily incapacitated, by fixing the number of justices at four instead of five, as was indicated by the honorable and learned member for West Sydney. We do not need to appoint two additional J Judges to meet that contingency, and it may be that four would be a fair compromise between those two numbers. But my belief is that this Court will not effectually perform the whole of the work for Australia, unless it is composed of five Judges. The honorable member for Gippsland I think, did the Attorney-General an unintentional injustice when he contrasted the fair, frank and candid speech of the honorable gentleman this evening with the attitude which he took up when a member of the Convention. Tt is not true that the Attorney-General declared in favour of three Judges during the sittings of the Convention. The truth is that he voted in favour of a proposal that the High Court should consist of not less than three J Judges. When he voted thus, Queensland was wholly unrepresented in the Convention, and it was very doubtful whether she would enter the Union. Hopes were expressed that she would, but fears were entertained that she would not. Western Australia was ably represented by the present Minister for Defence and his colleagues, but that State had passed an Act declaring that she would join the Federation only upon the condition that New South Wales entered it. How many States the Commonwealth would consist of was therefore very doubtful. It might have consisted of three of the less populous States. The Convention determined by a majority of one that, even under these extreme circumstances, three Judges should constitute the minimum number of the High Court Bench. I unhesitatingly affirm that had Queensland been represented in the Convention or . had it been positively known that four or five States would join the union, the decision of that body would have been in favour of not three, but of five Judges.
– -The honorable and learned member’s argument relates to the quantity of work, but not to its importance.
– Queensland was represented at the Sydney Convention in 1891, when the minimum number of Judges was fixed at five.
– And the people did not accept the draft Constitution.
– But they did not reject it for that reason, but upon totally differentgrounds. If we excluded New South Wales, or Queensland, or, indeed, any of the States from the union, we should instantly affectenormously the amount of work that would come before the High Court as an appellatetribunal. In that respect the honorablemember for Gippsland did not do justiceto the Attorney-General.
– But the AttorneyGeneral laid stress upon the nature of thework. He admitted that it was difficultto say what amount of business the High. Court would be called upon to transact.
– The Attorney-General laid very great stress upon the fact thatwhen the Convention sat the number of States that would enter the Federation wasunknown. That involved the question of the amount of work which would come before the High Court as an appellate tribunal. If New South Wales and Victoriahad held aloof, the number of appeal casesthat would come before it would be enormously diminished. It seems to me, therefore, that there is no force in the contention of the honorable member for Gippsland regarding the attitude taken by the AttorneyGeneral in the Convention. If w& regard the High’ Court simply as an. appellate tribunal, plus its necessary original jurisdiction, it will be seen that we musthave some Judge or J Judges who are ready to administer that original jurisdiction ; we must have others who are prepared to deal with interlocutory matters in appellatejurisdiction, and we must also have several able to sit together in their appellate jurisdiction.
– Then five Justiceswill not be half enough.
– In future, perhaps, when we have started to legislate upon thevarious subjects upon which we are empowered to legislate, a big strain would be imposed upon the Judges of the High Court if they were compelled to visit the various States. Even with the jurisdiction conferred by the Bill as originally framed, and with all the optional jurisdiction which is cast upon the High Court, I believe that five Judges could have done the work. But when we consider the matters upon which that tribunal has mandatory original jurisdiction and appellate jurisdiction, it must be apparent that three Judges cannot satisfactorily perform the duties required of them. To my mind failure is certain to result from any experiment with that number. Some honorable members have urged that the appeal to the Privy Council has been altered, but I think I have shown that it has been altered in a very trifling degree, and that so far as the ordinary affairs of life which lead to litigation are concerned, no alteration has been made. There has been no ‘ alteration made in the appellate provisions of the Constitution as to ordinary litigation. The only provisions that have undergone any change have reference to the construction of the Constitution of the Commonwealth or of a State. These, as was pointed out by some members of the House of Lords, have been widened in some respects and narrowed in others. The change that has been made is a negligible quantity. But it should be the aim of my honorable friends who do not like appeals to the Privy Council, and who, but for the right of appeal which exists to that body, would have voted for a stronger High Court, to restrict appeals to the Privy Council. If they think that the High Court is a more desirable tribunal as a Court of Appeal for Australians, they should alford litigants every facility for bringing their cases before it, and for obtaining satisfac-tion. There is no virtue in numbers beyond the bounds of reason. I do not say that “twenty Judges would do the work of the Court more satisfactorily than would five or seven, but if we urge that numbers are of no importance, we might as well have a High Court composed of a single Judge. “We want a variety of minds to be “brought to bear upon the one subject. When we have two Judges called upon to review the decision of their colleague it is a very unsatisfactory state of affairs.
– The Bill provides for two Judges as a Court of Appeal in some cases.
– Not in the cases referred to by the honorable and learned member for Indi.
– I do not think that the Bill provides for two Judges in the cases to which I refer. I do not think there is any provision in the Bill for the decision of one J udge of the High Court being reviewed by two of his brother J Justices ; but that point will have to be considered, though not finally determined, when we deal with the question of the number of Judges. If we could only throw ourselves forward and, in imagination, see this Court in actual operation - if we could so detach ourselves from the lesser considerations which beset us for the moment, and ask ourselves if the working of the Court was satisfactory for Australia - I believe we could not conceive of a tribunal of three Judges fulfilling these high and important duties. I believe that if one extra Judge were appointed- it would add enormously to the chance of efficiency in the Court, and guard against the accidents to which the honorable member for West Sydney has referred. The addition of one Judge might be regarded as a compromise, and though the number would not be sufficient, it would be a great step towards avoiding possible disaster. The expense of one additional Judge would be infinitesimal compared with the importance of having the judicial work satisfactorily performed. What does it mean to a Government or even to an individual whose interests are being adjudicated upon? Many thousands of pounds may be involved, and it is therefore our duty, at the outset of our Federal life, to see that a proper appellate tribunal is provided. People may sneer, and say that the High Court is an expensive luxury, but I do not so regard it. A provision has been made in the Constitution for a High Court, and a strong appellate tribunal is looked upon in every civilized community as one of the bulwarks of the people. If we had a Court, consisting of a sufficient number of Judges, to do the Work in an effectual and proper way, it will be something we should be proud of in the future. We can afford to stand all the criticism that may be levelled at us for doing our duty fearlessly and properly, and we may avoid disaster if we insist upon doing what reason would dictate - this is, place this Court beyond the reach of any unfortunate accident.
– I should like to hear the honorable and learned member on the point of the urgency of the greater number of Judges at the present time.
– I thought that was included in my observations. If we start with three Judges we assume that three must always be engaged in their full strength on every appellate case : that they must practically all be on the same spot. We cannot expect this Court to travel all over Australia, leaving no judicial provision in any other place than where the Court happened to be for the performance of the mandatory original jurisdiction, or any interlocutory duties. We shall simply have a court in one spot engaged in its full strength, without the means of doing anything else ; and that is a very serious position. And then, as has been suggested,, if one of the Judges happens to fall ill, there is an end to the judicial tribunal, and the other two Judges will be drawing their salaries unable to do any work. If Parliament happens to be in recess at such a time there will be no means of remedying the evil ; and the expense of calling Parliament together would be far more than the expense of an additional Judge. I can see that perhaps a majority of the Committee are opposed to five Judges, and think that a lesser number ought to be appointed.
– Supposing there are four Judges, and two take sick ?
– The chances of accident are not so great with four Judges. Of course we might imagine twenty Judges and eighteen sick, or that all the Judges might die. But I am addressing my arguments from a reasonable stand-point. J Judges, like other human beings, are liable to accidents ; and in this matter we are considering not them but the Commonwealth. We shall be running a very great risk, and doing what is wrong if we confine the appointment to three Judges, which was the minimum number for the minimum number of States, with the minimum population. I believe we should be doing right if we constituted this Court of four Judges, although I do not see my way to modify my opinion that five will be required to do the work.
Mr. O’MALLEY (Tasmania). - I am not in favour of having too many Judges, and I think three -ought to be sufficient to start the High Court.
– Make it four.
– The There might be four” Judges, one being kept as a sort of emergency man. The talk about extravagance is all nonsense, because there is no extravagance when one gets justice. What I have had to complain of in the past is paying, and not getting justice. If a litigant has a really bad case, he requires the best lawyer, and with even a good case, a bad lawyer ma)’ get one into trouble. Similar remarks apply to J Judges. In the United States, the present ambassador to Europe went before the Court, and obtained a declaration that the income tax law was null and void on the ground that it showed a discrimination in taxation. An ordinary lawyer would have lost such a case, because it was bad from the people’s point of view ; but Mr. Choate, able lawyer that he is, won it. I think there ought to be a compromise on this clause, because the honorable and learned member for Indi has convinced me that there ought to be an emergency Judge. I am given to understand that at this moment there is no power to appoint a States Court Judge to sit with two Federal Judges in a case of emergency ; and, if that be so, it is possible that the Commonwealth might be involved in heavy expense, through the sickness of one of the Judges, necessitating an appeal to the Privy Council. Such a circumstance would leave it open to the enemies of the High Court to- say that they had always regarded the establishment of the tribunal as a fraud. I have been criticised so often in this country that I want to guard against any injustice in the High Court; and under the circumstances I shall vote for four Judges. I may say here that no Kyabram roosters or any birds with or without feathers, have any effect on me. If these gentlemen think they can beat me I trust they will send their ablest man to contest my seat with me on the West Coast of Tasmania at the next election. What I am doing now I am doing on my own judgment, and no man can arrive at a conclusion without consideration and reflection. I am convinced, from what the honorable and learned member for Indi said, that it would not be fair to the Commonwealth to appoint only three Judges, and not provide for the contingency of the Court being closed for three or four months because of the illness of one of them. Only recently a Judge in Western Australia became paralyzed, and another Judge had to be sent to do his work. If such a thing happened to a Judge of the High Court, the Court, would be shut up for a considerable time, to the great inconvenience of the public. I wish to amend the amendment by substituting the word “ three “ for the word “ two.”
– The question before the Chair is the omission of the word “four” with a view to the insertion of the word “ two.”
– If the word “ four “ is omitted the honorable member can move to insert the word “ three.”
Mr. WILKS (Dalley).- During this debate we have had several fine addresses upon the question before the Chair, and it seems to have become the custom of the legal members of the Committee, when another honorable member has expressed opinions with which they agree, to refer to the “valuable speech of my honorable friend.” In this way the honorable and learned member for Indi referred to the valuable speech of the honorable and learned member for West Sydney. Although I am a layman, I will follow the practice of legal members in that respect, and take this opportunity to refer to the highly practical and most valuable speech, from the Commonwealth point of view, made by the honorable member for Gippsland. ‘ The honorable member for Indi and the AttorneyGeneral concur in the view that if the High Court consists of three Judges, and one of them falls ill, it will become incapable of sitting as a Court of Appeal. But what I may term the illness argument is a very sick one indeed. In the first place, if a Judge’s illness is only temporary, it will not inconvenience the public except for a very limited period, even if the High Court has to be closed, whereas if he becomes permanently incapacitated* his position is, under the Constitution and the Bill, thereby rendered vacant. I have listened very attentively, however, to the views which have been expressed, and I find that it is only in very special cases that three Judges will be required, and that ordinarily two will be quite enough. That makes the illness argument still more sick. The AttorneyGeneral tells us that in the Convention he and others decided that the Court should consist of not less than three Judges, because they thought that only three States would enter the Union. I have looked through the Convention debates in regard to this matter, but I do not find there any reference to the belief that only three States would join the Union. Such an idea might have been in the minds of the framers of the Constitution, but it is not expressed in their speeches. Apparently we are getting in their speeches to-night what was in their minds then. If the oneStateoneJudge theory is to have effect, why do the Government propose to constitute the Court of five Judges instead of six 1 Why have they left out one of the States 1 The AttorneyGeneral was particularly unhappy in his reference to the United States, where, he says, they have nine Judges. I have read that originally, when there were only thirteen States in the Union, they had six Judges, but that now that they have 46
States they have nine Judges. Therefore, the State representation theory has not been carried into effect in America.
– They have nine Appellate J Judges in America, but they have a large number of other Federal Judges.
– We have a large number of State Judges to do our work. Further, I would point out that the decisions of the High Court are not final, because litigants have the right of appeal to the Privy Council. The Attorney-General has also admitted that there will be very little work for the Judges to do ; but, to support his proposal, he argues that one of them could be employed to preside oyer the Inter-State Commission, and another could be appointed to the Arbitration Court. But there again he was very unhappy, because sub-section (2) of section 103 of his beloved Constitution says that the Inter-State Commissioners are to hold office for seven years only, whereas the Judges of the High Court are appointed for life. The honorable member for South Sydney referred us to the example of Switzerland. I am content, however, to follow the example of Great Britain, and I find that two very important Courts there, that of the Master of the Bolls, and that of the Lord Chancellor, are each presided over by only one Judge, from whose decisions there is very seldom an appeal. Furthermore, it is stated that there is no evidence of any appeal having been made from the judgments of the late Sir George Jessel when he held the office of Master of the Rolls. That Court is one of the most important in the Empire, and its Judges deal with matters of law and not of fact. Such an example disposes of the argument that five Judges are necessary in our case in order to give laymen and the members of the legal fraternity confidence in the High Court. I prefer, in this matter, to turn to a country where the conditions and the people are similar to our own. I intend to follow the advice given by the honorable member for Gippsland, and vote for the three Judges provided for under the Constitution.
Mr. JOSEPH COOK (Parramatta).- It is amusing to listen to the arguments in favour of this clause. If one only listens long enough, one soon finds how mutually destructive they are as they are turned out from the legal mind. The Attorney-General assures us that the example of Canada is above all others one that ought to be avoided in legal matters, and has quoted at length from that very learned gentleman, Professor Harrison Moore, to that effect. But the honorable and learned member for Indi says we must copy the example of Canada in regard to the number of our Judges. There are six Judges at Ottawa, and, therefore, we are told we should have five. Another honorable member has quoted Switzerland, which has nine Judges and nine Substitutes. How absurd these analogies are ! Switzerland is an old Federation, with every one of her functional powers fully developed, and a history behind her which has made all this legal work necessary. We have not developed our functions. The thirty-nine articles of the Constitution are hardly touched as yet. Where, therefore, is the sense of making analogies between an old historical Constitution and our own 1 These honorable members prove too much. If it is necessary now to have five Judges to do the work of the High Court, after we have shorn it of so many of its powers, it must, according to their own argumentation, have taken at least fifteen or twenty Judges to do the work under this Bill as originally introduced. Either an attempt is being made to mislead the Committee now, or we were sought to be misled previously. If honorable members believe that five Judges are now necessary, they must have been misleading the Committee when they led us to believe that five could have done the work under the Bill before it was amended. AVe had better take no notice of these gentlemen and judge for ourselves. Let us appoint three Judges, and then if the work is found to be beyond the power of three, we can appoint others.
Question - That the word “ four “ be omitted - resolved in the affirmative.
Mr. ISAACS (Indi). - I wish to move to fill the blank by the insertion of the word “ three.” I do not intend to repeat the reasons I have already adduced. I wish to move this amendment now, because it seems to me that if it were proposed to insert “ two,” and that amendment were rejected, it would leave the Committee no option but to insert a lesser number than two.
– AVe should take the lower number first.
Sir EDMUND BARTON (HunterMinister for External Affairs). - It has been interjected that the smaller number ought to be put first. That is the practice which is pursued when the Estimates are in Committee. The smaller sum being put first and negatived, the proposed sum on the Estimates remains. The object of putting the smaller number first in Committee of Supply is in order that the larger sum, in that event, may be left, leaving the whole field of reduction still open. But the process here is the converse; because in Committee of Supply you do not propose to alter a certain sum to a certain other sum,’ but to reduce ifc by a certain amount. That is not what is now being proposed. The proposal is that there shall be two Judges in addition to the Chief Justice, whilst another honorable member suggests three in addition to the Chief Justice. The process which would be correlative to that adopted in Committee of SupPlY in regard to amounts would be to put the larger number first.
– I should like the Prime Minister to consent to report progress now. A new phase has been put upon the question altogether, and we should have time for reflection.
Mr. GLYNN (South Australia). - This is the second occasion on which we have had a full-dress debate on the question, and I see no necessity for an adjournment. Honorable members have made up their minds. I was first in the field with an amendment, ‘ and if now the amendment of the honorable and learned member for Indi is put, the chances are that I may not have an opportunity of testing mine. Where there is a possibility of some one being injured, the person who was Aust in the field is entitled to the first opportunity. If there is any precedent with reference to what is done in Committee of Supply, the fact that the smaller number is invariably put first should have weight.
Mr. WILKS (Dalley).- It seems to me to be clear that the smaller number should be put first. The honorable and learned member for South Australia, Mr. Glynn, suggests that the number should be two, and the honorable and learned member for Indi suggests three. The former would be the prior amendment, and therefore the honorable and learned member for South Australia is entitled to have his amendment submitted first.
Sir EDMUND BARTON (HunterMinister for External Affairs). - I do not wish to ask you, Mr. Chairman, to give a decision off-hand upon this very important question, but I. should like to add a word or two to what I said before, by way of illustration. Supposing that we were discussing the Estimates, and that a vote of £100 was proposed for some purpose. Supposing, further, that one honorable member desired to reduce the vote by £90, and another by £80, is it not obvious that the proposal for the reduction by £80 should be put first, as it would leave the larger remainder? That would be the very converse of what we are asked to do here. When you propose to make a reduction, the larger the reduction the less will be left of the original amount, and therefore the smaller reduction is put first in order that the vote may, if possible, go down by gradations, until it reaches the minimum.
Mr. THOMSON (North Sydney). - I think that the Prime Minister is wrong in the view he has put forward. When the Estimates are under discussion, the lower amount is taken first, in order that an opportunity may be afterwards afforded of considering the larger amount. In this case the Prime Minister admits that if the proposal to appoint three Judges is carried, no opportunity will be given to any honorable member to propose a reduction to two, and that if the proposal to appoint two Judges is carried there will be no opportunity of moving an amendment for the appointment of three. Therefore, each proposal is on the same footing, and the amendment which was moved first should be put first.
Mr. ISAACS (Indi). - It seems to me that we have to consider another matter in. addition to the point stated by the honorable member for North Sydney. Any honorable member who may bo in favour of the appointment of three Judges must necessarily favour two. But at the same time some honorable members may favour the appointment of two Judges, and be opposed to three. I think, therefore, that if the proposal to appoint three Judges is submitted first, those who are opposed to three Judges can vote against it. Those who are in favour of three will necessarily be in favour of two, and perhaps the fairer course will be to put my proposal first.
– I submit that the honorable and learned member for Indi is perfectly right. In the Queensland Parliament the practice is to submit the larger number first. Some honorable members may desire to appoint ten Judges, and they should have an opportunity of voting for that number. If such a proposal were defeated, one for the appointment of a smaller number could then be put, and gradually thenumber could bebrought down to that which would meet with the approval of a majority of the Committee. Any two or three members are entitled to have their votes recorded in favour of the number which they believe to be right.
– But if the proposal to appoint three Judges is approved of, those who are in favour of two only will not be able to record their votes.
– But if the proposal to appoint three Judges is defeated they will have their opportunity ; and, obviously, the proposal for the larger number is the more likely to be defeated.
– I have no difficulty in deciding a matter of this kind, which is not a point of order. If it be a matter of convenience to take the words “ two “ and “ three “ as numerals, the practice previously followed can be observed here. Our own standing orders make provision for it. Standing Order 133 deals with amendments for the insertion or addition of other words, and Standing Order 138 deals with the question of the amendment of an amendment. When a blank is created, the amendment first proposed becomes an original proposition, and that can be amended before the blank is filled. Therefore, if it is proposed to insert the word “ two “ itwill be competent to amend the amendment by substituting some other word.
Mr. ISAACS (Indi). - In accordance with your suggestion, Mr. Chairman, I move -
That the amendment be amended by the omission of the word” two,” with a view to insert in lieu thereof the word” three.”
Mr. THOMSON (North Sydney).- I previously informed the Committee that I preferred the form of economy which would be represented by the reduction of the number of Judges to three, rather than that which would be effected by the reduction of salaries, which I feared might result in the deterioration of the personnel of the Court. It has been suggested with a good deal of force and some plausibility by the honorable and learned member for Indi that it is desirable for other reasons to have four Judges of the High Court. The honorable and learned member stated in the first place that the work to be carried out would be more than could be accomplished by three Judges. But having regard to the way in which we have cut .down the jurisdiction of the Court, it seems to me that as five Judges were considered sufficient to carry out all the duties imposed upon the Court under the Bill as -originally introduced, there cannot now be work for more than three. It was also stated by the honorable and learned member that if one Judge fell sick the Court would not be able to do any work in its appellate jurisdiction. But there are means of overcoming that difficulty, or at all events of very considerably reducing it. Sub-clause (2) of clause 20 provides thai; -
Appeals from Judges of any other Court exercising Federal jurisdiction may be heard and determined by a Full Court consisting of two or more Justices.
The Bill provides for a number of cases which may be heard* on appeal by only two Justices.
– Those are appeals from minor courts.
– There are other cases which, under the Bill as it stands, must be heard by three Judges, but which might very well be brought under this provision. I refer to the- cases covered by paragraphs (b) and (c) of clause 20, which relate to appeals from the judgments of a Judge of the Supreme Court of a State exercising Federal jurisdiction, or from the Inter-State Commission.
– Surely the honorable member would not suggest that there should be power to appeal from a decision of a Pull Court of three Judges to two Judges of the High Court who might differ among themselves ?
– How is it that an appeal to two Justices of the High Court is provided for in the Bill ?
– That provision relates not to an appeal from a Full Court, but from the decision of a single Judge. If we had two Judges of the High Court differing between themselves there would still be two Judges to one, because the Judge who presided at the original hearing would count. But, if the honorable member’s proposal were carried out, a decision given by three J Judges of the Full Court of a State could be overridden on appeal by one Judge of the High Court who differed from his brother Judge.
– The honorable and learned member, the Attorney-General, said that provision could be made for such a case - that an appeal could not be upheld unless the two Judges were against the decision given. Under the original proposal we were to have single Judges on circuit, and if the Appeal Court in order to doits work promptly in these circumstances must frequently consist of three Judges, how are we going to settle these appeals 1 In some of the States there are only three Judges dealing with appeals, but they have managed to overcome the difficulties which have been pointed out.
– The difficulties are dissimilar. In their case there is not the possibility of the decision of a court of three or perhaps five Judges of another jurisdiction being overridden by the senior Judge differing from the junior one.
– We come back again and again to that argument which, if good, would necessitate a Court of thirteen Judges. If, for example, six Judges of the Supreme Court of New South Wales adjudicate upon an appeal and find unanimously in a certain , direction, and if the High Court is not to upset the judgment of those six Judges by the decision of less than six members of the Court, it will be necessary to have thirteen Judges of the High Court. It will be necessary to have that number in order to obtain the lowest majority of seven.
– That is not the argument.
– That must be the position if it is necessary that a decision shall be upset only by a number of Judges greater than that constituting the Court whose judgment is appealed against. If, on the other hand, it is possible to upset by the decision of two the decision of four, we have a difference of two : and if the opinion of six is upset by the decision of four, there is still a difference of two. We can, at least, try how the Court will succeed with only three Judges, and if it is found that more Judges are necessary, further appoint- . ment can be made. But, in view of the fact that we have greatly restricted the jurisdiction of the Court, and that the honorable and learned member for Indi and the Attorney-General have said that five Judges would have been sufficient to deal with the wider jurisdiction of the court under the Bill as introduced, I fail as a layman to understand why the number should not be reduced to three. For these reasons I cannot support the amendment which has been moved by the honorable and learned member for Indi.
Mr. O’MALLEY (Tasmania).- This is an entirely new question, and as the discussion must occupy some time, I hope the Attorney-General will agree to report progress. Let us continue the discussion to-morrow, when we shall all be in our sober senses.
– I consider that there is something in the contention of the honorable member for Tasmania, Mr. O’Malley. If a fair division could now be taken the position would be different. I would point out, however, that several honorable members left the chamber after pairing on the only question which was then before the Committee - the question whether we should have five Judges as against three. The suggestion that there should be four Judges, had not then been brought forward, and I contend that it would be absolutely unfair to use these pairs on a division relating to a proposal to reduce the number to four. It would be equally unfair to take a snatch division upon a matter of so much importance, without allowing these honorable members an opportunity of voting on the question whether there should be four or three Judges.
Mr. EWING (Richmond).- Surely honorable members have no desire to place their brother members who are away in a false position in regard to this matter? It is unfair to those who are away that a division should be taken upon the question to-night.
Amendment of the amendment negatived.
Amendment agreed to.
Clause, as amended, agreed to.
Motion (by Sir EdmundBarton) proposed -
That the House do now adjourn.
– I desire to ask the Prime Minister whether there is any chance that the question which I asked today about the printing of the Federal rolls in Queensland will be answered to-morrow ? I should like to get some definite reply, or otherwise we must take a different course.
If I get a favorable reply, we shall not require to talk at any length upon the subject to-morrow, which, as honorable members are aware, is grievance day.
– I should have tried to obtain answers to the questions asked of the Minister for Home Affairs to-day, had I not been under the impression that the honorable gentleman would have been well enough to be present. To-morrow I will make sure of answers to the questions asked by the honorable member for Maranoa, and also by the honorable member for Grampians.
Question resolved in the affirmative.
House adjourned at 11.13 p.m.
Cite as: Australia, House of Representatives, Debates, 24 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030624_reps_1_13/>.