House of Representatives
30 June 1903

1st Parliament · 2nd Session



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

page 1519

SUPPLY BILL (No. 1)

Mr. SPEAKER reported the receipt of a message from His Excellency the GovernorGeneral, recommending that an appropriation be made from the Commonwealth revenue for the purposes of a Bill for an Act to grant and apply a sum out of the Consolidated Revenue Fund to the services of the year ending 30th June, 1904.

page 1519

PETITIONS

Mr. KNOX presented a petition from the Melbourne Chamber of Commerce, praying the House to repeal sub-section (1) of section 16 of the Post and Telegraph Act.

Petition received and read.

Mr KNOX:
KOOYONG, VICTORIA

– I desire to move -

That the petition be printed and circulated.

Mr SPEAKER:

– The honorable member cannot move such a motion now. I had hotter read, for the information of members generally, the rules of the House in regard to the presentation of petitions and the moving of motions relating thereto, so that they may be more closely followed. Standing Order 88 provides that -

Every member presenting a petition to the House shall confine himself to a statement of the parties from whom it comes, of the number of signatures attached to it, and of the material’ allegations contained in it, and to the reading of the prayer of such petition.

With regard to the moving of motions relating to petitions which have just been presented, Standing Order 90 provides that -

The only questions entertained by the House on the presentation of a petition shall be - 1. “That the petition be received ; “ 2. “That the petition be read ; “ 3. (In the case of a petition against a return by the returning officer) “ That the petition be referred at once to the Committee of Elections and Qualifications ; “ or 4. (in the case of a petition respecting any subject then under consideration of a select committee) “ That the petition be referred to the select committee.”

The motion which the honorable member for Kooyong wishes to move does not come within that category, so that I am unable to accept it, though he can, of course, give notice for some future date.

Mr. SYDNEY SMITH presented a petition from the Australian Chambers of Commerce, praying the House to forthwith adopt measures to bring the Minister for Trade and Customs, and his officers, under the jurisdiction of some court of law wherein any citizen may claim justice.

Petition received and read.

Mr. SYDNEY SMITH presented a similar petition from the Sydney Chamber of Commerce.

Petition received.

page 1520

QUESTION

COMMONWEALTH CONTRACTS: MINIMUM WAGE

Mr MAUGER:
MELBOURNE PORTS, VICTORIA

– I desire to ask the Minister for Home Affairs, without notice, if his attention lias been directed to a statement in the newspapers to the effect that tenders in. which a clause providing for the payment of a minimum rate of wage has not been inserted are being called by the State Public Works Department for Commonwealth public works 1 If that statement is correct, will the Minister see that the resolution of the House is respected, and have such a clause inserted?

Sir WILLIAM LYNE:
Minister for Home Affairs · HUME, NEW SOUTH WALES · Protectionist

– My attention has not been called to the matter, nor do I know anything about it beyond what I have seen in the press. If, upon inquiry, it turns out that the resolution of this House has been disregarded, I shall take care that the matter .is dealt with in accordance with the wishes of honorable members.

page 1520

QUESTION

INCREMENTS TO PUBLIC SERVANTS

Mr THOMSON:
NORTH SYDNEY, NEW SOUTH WALES

– I desire to ask the Treasurer whether ho intends to make provision upon the Estimates for the increments to “Victorian servants provided for under the State Act passed at the last moment prior to the establishment of federation? further, if Victorian officers in the transferred services are tq be paid salaries equal to the highest given for similar work in other States, is it intended to place the officers in other States who are receiving less than certain Victorian officers on a similar footing as regards salaries? In other words, are the maximum salaries paid by the States prior to federation to be adopted by the Commonwealth 1

Sir GEORGE TURNER:
Treasurer · BALACLAVA, VICTORIA · Protectionist

– We hav«. already passed an Act dealing with the public service, which is being administered by a Commissioner. The matter referred to by the honorable member is now under the consideration of the Cabinet, and I shall be able to deal with it in a few days.

page 1520

FEDERAL CAPITAL SITE

Sir WILLIAM MCMILLAN:
WENTWORTH, NEW SOUTH WALES

– I wish to know from the Minister for Homo Affairs when he intends to circulate the. report of the Commission appointed to inquire into the Federal capital site, which, I have heard, is now in his hands ) When ho places the report upon the table, will ho intimate to honorable members when, or about when, the matter will be brought forward for discussion) I presume that a reasonable interval will be allowed tfr elapse between the placing of the report upon the table and its discussion by honorable members.

Sir EDMUND Barton:

– I have already promised that a reasonable time shall hegiven for the consideration of the report.

Sir WILLIAM LYNE:
Protectionist

– The report is not in my hands, but since the House met I have received a telegram from the Chairman of the Commission, stating that it is. in the hands of the printer, and will be ready within the next few days.

Mr CHAPMAN:
EDEN-MONARO, NEW SOUTH WALES

– I desire to know if the attention of the Minister for Home Affairs has been directed to a paragraph, published in the Age this morning with reference to tho report of the Federal Capital. Sites Commission, and if the statementtherein contained is correct 1

Sir WILLIAM LYNE:

– I saw the telegram to which the honorable memberrefers, and I waa very much surprised. I at once communicated with the Chairman of the Federal Capital Sites Commission, and) pointed out that, if the statements contained in the telegram wore true, the Commission had exceeded their duty. I received the-‘ following reply : - .

None of the Commissioners nor the Secretary has given the slightest information on the subject, of Capital Sites. The Commissioners read with-, the utmost surprise Senator Neild’s statement in this .morning’s Telegraph that he had learned. from an authoritative source that Carcoar-Garland has been selected.

page 1521

QUESTION

RETIREMENT OF CUSTOMS OFFICERS

Mr R EDWARDS:
OXLEY, QUEENSLAND · PROT; FT from 1913; ANTI-SOC from 1906; LP from 1910

– In view of the retirement at four or five days’ notice of a number of Customs officers, owing to their being over the age limit, will the Minister for Trade and Customs consider the desirability of granting them some compensation for the very short notice given ‘!

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

– We felt it to be our duty to direct attention to the provisions of the Public Service Act, but we do not think it proper to discharge old servants at four or five days’ notice, and we therefore propose to allow them to remain in the service for three months.

Mr Thomson:

– Was the notice given as reported 1

Mr KINGSTON:

– Yes. It was necessary and proper to give it, but afterwards a further notification was made that the Arrangements for the necessary changes in the staff would not be completed for three months.

page 1521

PAPER

Mr. DEAKIN laid on the tablePapers relating to the appointment of Mr. Chas. Powers to the office of Crown Solicitor.

page 1521

OVERTIME TO POSTAL OFFICIALS

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

– With reference ito the overtime payable to postal officials in the Sydney office, I would, ask the right (honorable gentleman representing the PostmasterGeneral to urge the desirability of having the money paid at once.

Sir EDMUND BARTON:
Protectionist

– I shall have pleasure in transmitting the purport of the honorable member’s request to the PostmasterGeneral, and I have no doubt that lie will give me information as to the course ^proposed to be taken.

page 1521

ELECTORAL ROLLS

Mr PAGE:
MARANOA, QUEENSLAND

– I desire to direct attention to the following paragraph which was published in the Argus this morning: -

Brisbane, Monday. The Premier was shown a telegram containing hi statement from Sir William Lyne regarding the printing of the Queensland Federal Bolls. Mr. Philp did not think the telegram worthy of any reply.. He remarked that bis telegrams had been exchanged with Sir Edmund Burton, and not Sir William Lyne. No word had been received from the Federal Government to definitely go on with the printing ot the rolls.

In view of the statement made to me last Friday by the Prime Minister, I desire to know whether the information conveyed by the telegram is true 1

Sir EDMUND BARTON:
Protectionist

– A telegram corresponding with the answer that I gave to the honorable member on the occasion referred to had .already been sent to Mr. Philp. I think that covers the whole ground.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– In the absence of the Minister for Home Affairs on Friday last, I asked the Prime Minister whether it was the intention of the Government to take advantage of the rolls now being prepared by the State Government in New South Wales. I recently called at one of the post-offices in the State and ascertained that although application forms were available, no instructions had been given as to the qualifications of electors. I should like to know whether the Minister for Home Affairs will arrange with the State Government to have the Federal rolls compiled at the same time as those required by the State ?

Sir WILLIAM LYNE:
Protectionist

– The New South Wales rolls were collected by the State Government in May and June last year, and the revision court was held in October. The Electoral Act became law about the same time, and I accepted the rolls just taken by the State Government. Since then rolls of women voters have been collected. An arrangement was made with the State Government to collect the names required for Federal purposes at. the same time, the expense being partly defrayed by this Government.

Mr Thomson:

– But the franchise differs.

Sir WILLIAM LYNE:

– It differs only in this regard, that under the ‘State law twelve months’ residence in the State, is required, whereas under the Commonwealth Aci only six months’ residence within the Commonwealth is necessary to qualify for the exercise pf the franchise.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– And one month’s residence in a district.

Sir WILLIAM LYNE:

– The State officers say that three months’ residence in a district is required, and I presume that the report as to the discrepancy was made upon that basis. Instead of that, however, only one month’s residence is required under the law passed in New South Wales in 1S96. Apart from any discrepancy that may arise owing to this fact, there will be only the military and the paupers to be accounted for, the numbers being 450 and 4,100 respectively. We have the State registers giving the names of all the military and the paupers, and these are transferred to the Federal lists : therefore, there should be no further trouble in that regard. After the discrepancy - which appeared to be between 80,000 and 100,000- was found to exist between the census and the rolls, I obtained lists which are now. being exhibited at every post-office in New South “Wales, together with a notice asking persons who are entitled to exercise the Federal franchise to apply to have their names placed on the roll. Each postmaster has been instructed to give every information and to offer every facility. The names are now coming in, but not so rapidly as I could wish. A statement has been made that the census returns and the calculation up to date are inflated, and that the real discrepancy is very much smaller than lias been represented, but whether that statement is true I do not know.

Mr E SOLOMON:
FREMANTLE, WESTERN AUSTRALIA · FT

– I desire to know from the Minister for Home Affairs whether the Western A ustralian rol ls have been completed?

Sir WILLIAM LYNE:

– The last telegram I received came to hand on Friday, and stated that all the lists excepting three which were expected to come in on Saturday last had been collected. I have not received any further information, but I expect it at any moment. When the anticipated telegram comes to hand I shall have the total number of electors in Western Australia. The quota will then be obtained and telegraphic instructions will be sent to the Commissioner to enter upon the work of subdividing the State at once.

Mr PAGE:

– Following upon the answer given by the Prime Minister, I desire to ask the Minister for Home Affairs if he has definitely instructed the Premier of Queensland to go on with the printing of the Federal rolls?

Sir WILLIAM LYNE:

– Yes, most definitely, in the telegram referred to, which went from my office through that of the Prime Minister. As I anticipated some congestion in the printing-offices, I gave instructions that lists should be prepared for various polling places in New South Wales and Queensland, which are not likely to be disturbed by any alteration of boundaries. I believe that either to-day or tomorrow we shall have 80 lists ready to proceed with in Queensland, that ten lists will be ready in Victoria, and several for New South Wales. In any case, there will be plenty of work to go on with. Theobject of preparing these lists is to enable the printing to proceed without congestion, as far as possible, and to avoid trouble towards the end, after the final divisions are made.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– .Following up my previous questions, I desire to ask the Minister for Home Affairs whether he isaware that the number of electors whosenames appear upon the State rolls of NewSouth Wales which were collected in 1902-3 is 15,000 less than that upon theFederal roll of 1900 1 ‘.la view of that discrepancy, and of the fact that the State Government are now busy collecting a Stateroll, will he arrange with the New South Wales Premier to utilize the services of thePolice Department to simultaneously collecta Federal roll under the Commonwealthfranchise, thereby- insuring that every person who is entitled to vote shall be afforded an opportunity of doing so ?

Sir WILLIAM LYNE:

– It is somethingnew to me to learn that the New South Wales Government are collecting a, State roll. I have heard nothing whatever about the matter.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– They intend commencing to collect a State roll on the 1st. J July

Sir WILLIAM LYNE:

– If the Government of New South Wales intended to collect, a new State roll,- 1 think I should have heard of the matter. When I learn that they aretaking such action, it will be time enough for me to act. I have adopted every meanspossible to secure the inclusion in the New South Wales Federal roll of the names of all the electors who are entitled to vote.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– The roll is 90,000- short.

Sir WILLIAM LYNE:

– Between thecensus returns and the number of electorswhose names appear upon the Federal roll there is, no doubt, a difference approaching- 90,000 names ; but I have yet to learn whether the calculation as to the increase of population since the census was taken, is correct, and whether it has not been inflated. If I find that it has been, a great deal of the anxiety that has arisen in this connexion will be allayed. Up to the present I have- done all that I can do to insure the compilation of a proper roll. Lists are now being exhibited at every post-office, and in:structions have been issued to afford all possible information to electors. After the electoral divisions have been finally dealt with by this Chamber, Revision Courts will “be held, and a month will be allowed for the addition of names to the rolls. I do not know what more I can do to enable electors to secure the inclusion of their names upon the rolls. I do not intend to take any further steps than those I have jil ready taken, and I am not aware that the New South Wales Government are collecting a new State roll.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– In view of the importance of obtaining a proper roll, will the Minister take steps to ascertain whether the New South Wales Government intend to collect a new State roll, beginning upon 1st July, and, if so, will he arrange for simultaneously securing the collection of a Federal roll under the Federal franchise, “thus securing an addition of thousands of names to the present roll ?

Sir WILLIAM LYNE:

– The honorable member asked that question just now, and I answered it. I do not intend to do anything which will have the effect of delaying the holding of the Revision Courts until such a period as will prevent the elections for the Senate and for this House being held upon the same day. I have taken every step possible under the circumstances,

And the rolls will be as complete as they can be made.

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

– I desire to ask “the Minister if he will ascertain whether the statement that the New South Wales Government intend to collect a new State roll commencing upon 1st July is correct?

Sir WILLIAM LYNE:

– I have not the slightest objection to doing so ; but that -will not assist us in any way.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– As this is a very important matter, I desire to ask the Minister for Home Affairs-

Sir EDMUND BARTON:

– On behalf of the Government I wish to intimate that the Minister is not here to be put through a catechism, and if honorable members persist in that course they will be asked to give notice of their questions.

Mr SPEAKER:

– I would point out that the honorable member for Macquarie, with every other honorable member, has a right to ask any ordinary question, and the Government have an equal right to answer it or to ask for notice.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– I desire to ask whether the Minister will arrange with the New South Wales Premier to obtain from the Statistical Department information as to the number of adult males and females in the various State and Federal electorates, and the number of males and females whose names appear upon the State rolls 1

Sir WILLIAM LYNE:

– I have all that information.

Mr SYDNEY SMITH:
MACQUARIE, NEW SOUTH WALES · FT

– Will the Minister lay it before Parliament ?

Sir WILLIAM LYNE:

– I have all the information to which the honorable member for Macquarie has refer-red, and if lie wishes me to obtain more, I must ask him to give notice of his questions.

page 1523

QUESTION

MANAGEMENT OF STATES SAVINGS BANKS

Mr MAHON:
COOLGARDIE, WESTERN AUSTRALIA

– I desire to ask the Prime Minister whether the Government have received a communication from any State expressing an intention to withdraw the States Savings Banks from control and management by the Commonwealth ?

Sir EDMUND BARTON:
Protectionist

– I believe that there has been some correspondence upon the subject referred to by the honorable member. The matter was mentioned to me casually by the Postmaster-General ; but I am not prepared at the present moment to state the nature of that correspondence. If the honorable member will give notice of his question, I will obtain for him the desired information.

page 1523

QUESTION

SORTING OF MAILS

Sir EDMUND BARTON:
Protectionist

– Referring to the following questions asked by the honorable member for Coolgardie last week : -

  1. Does the Postmaster-General not consider that economy and expedition would be promoted if the English and other mails were sorted during the four days passage of mail steamers from Fremantle to Adelaide ?
  2. Has this question been formally considered since the Commonwealth assumed control of the Department ; and, if not, will the PostmasterGeneral cause inquiry to be made ?
  3. Has the attention of the Postmaster-General been directed to the lack of up-to-date facilities at Largs Bay for discharging mails, and to the great delay which usually occurs in placing them on the mail train ?
  4. Have any complaints been made to the Department by or on behalf of the. staff of sorters engaged on the trains between Adelaide and Melbourne?

I am now in a position to answer the honorable member’s questions. The replies are as follow : -

  1. The Postmaster-General does not consider that economy or any considerable expedition would be promoted if the English and other mails were sorted during the passage from Fremantle to Adelaide.
  2. Reports have been obtained from the Deputy Postmasters-General of Victoria and South Australia quite recently, and the question has been formally and fully considered.
  3. The attention of the Postmaster-General has not been directed to the lack of facilities at Largs Bay for discharging mails, or to any great and unusual delays in placing them on the mail train. Delays sometimes occur in rough weather, but as a rule the mails reach Adelaide in about three or four hours from the time of the steamer anchoring.
  4. No complaints have been made to the Department by or on behalf of the staff of sorters engaged on the trains between Adelaide and Melbourne, except that it has been stated that the work could be more expeditiously performed if larger vans were provided.

page 1524

QUESTION

OVERTIME TO CUSTOMS OFFICIALS

Mr HUGHES:
WEST SYDNEY, NEW SOUTH WALES

– I desire to ask the Minister for Trade and Customs whether the officers employed in the Customs Department are to receive similar treatment to those engaged in the Postal and Audit Departments in regard to payment for overtime worked by them. In reply to a question put by the honorable and learned member for Illawarra the other day, the Minister representing the PostmasterGeneral said that recently the latter had informed him that the claims for overtime by New South Wales officers in the Departments to which I have referred would be paid. Is it intended to apply a similar rule to the officers of the Customs Department 1

Mr KINGSTON:
Protectionist

– The rule is that we do not pay for overtime, except in regard to that which is received from the public for the special services rendered by any officer. If the honorable and learned member desires me to answer the more elaborate question, I would ask him to put it upon the notice-paper for a day or two ahead, because it is difficult to obtain replies affecting more than one State within twentyfour hours.

page 1524

QUESTION

GUARANTEES : POSTAL DEPARTMENT

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

– I wish to- ask: the Prime Minister whether he has. yet received an answer to the questions which I asked the Postmaster-General, through him at least a month ago 1

Sir Edmund Barton:

– To what did they relate 1

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

– They related to guarantees in New South Wales. The PrimeMinister promised to obtain an answer at least a month ago.

Sir EDMUND BARTON:
Protectionist

– I did makethe promise, referred to by the honorablemember, and I must apologize to him fornot having secured the information sought.. It has not yet reached me, and it is just possible that- the matter may have been inadvertently overlooked by mc.. I will, however, see that an answer is forthcoming at the earliest possible moment.

page 1524

QUESTION

OVERTIME TO POSTAL OFFICIALS

Mr HUME COOK:
BOURKE, VICTORIA · PROT

asked the Ministerrepresenting the Postmaster-General, upon notice -

  1. Are the gatekeepers at the General Postoffice, Melbourne, compelled to work on a. majority of Sundays during the year ?
  2. Is it true that they are paid for Sunday labour at the ordinary rates for week-day work ; and, if true, will the Postmaster-General causethe system to “be altered or better [jay given ? .
Sir EDMUND BARTON:
Protectionist

– The answersto the’ honorable member’s questions are asfollow : -

  1. There are no gatekeepers at the General’ Post-office, Melbourne. All the men who attend at the gate are watchmen, and it is absolutely necessary that they should be present on Sundays. Prior to 1896 the watchmen were appointed on condition that they should attend on Sundays without any other compensation than was provided by the salary attaching to the position, but duringthat year an additional watchman was provided to afford relief and enable the attendance of each watchman to be reduced to six days each week.
  2. They are paid for attendance on Sunday at.’ ohe rates paid on other days, which range from . 7s. 8d. per day to fis. per day. As this rate is much higher than that paid by commercial houses where watchmen are employed, and as the-, public service regulations do not authorize a higher rate of payment for Sundays than is paid., for other days, the Postmaster-General does notpropose to make any alteration-.. ;

page 1525

QUESTION

EXPORT OF AUSTRALIAN PRODUCE AND FODDER

Mr CROUCH:
CORIO, VICTORIA

asked the Minister for Trade and Customs, upon notice -

  1. It it is the practice of his Department to assist exporters of produce and fodder with information of foreign markets and prices if desired ?
  2. If his attention has been drawn to the War Office proposals to invite tenders in Australia for fodder to be used in South Africa ?
  3. If he will take steps to secure details as to freights and prices and necessary information to producers, so that they may compete on even terms with the producers of other countries in outside markets ?
Mr KINGSTON:
Protectionist

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

  1. This has hitherto been considered a matter for attention by each State or by private enterprise.
  2. The War Office has addressed the Commonwealth Government and each of the States Governments on the subject, and public advertisements have already appeared.
  3. It is not considered necessary at present to take any Federal action on the subject.

page 1525

QUESTION

PUBLIC SERVANTS’ LIFE ASSURANCES

Mr HUME COOK:
BOURKE, VICTORIA · PROT

asked the Minister for Home Affairs, upon notice -

What are the names of the life assurance companies “ approved by the Governor-General under clause 170 of the public service regulations?”

Sir WILLIAM LYNE:
Protectionist

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

Australasian Temperance and General Mutual Life Assurance Company Limited.

Australian Metropolitan Life Assurance Company.

Australian Mutual Provident Society.

Australian Widows’ Fund Life Assurance Society Limited.

Citizens’ Life Assurance Company Limited.

City Mutual Life Assurance Society Limited.

Equitable Life Assurance Society of the United States.

Mutual Life Association of Australasia Limited.

Mutual Life Assurance Company of New York.

National Mutual Life Association of Australasia Limited.

New York Life Insurance Company.

Standard Life Association Limited.

page 1525

DEFENCE BILL

Resolved (on motion by Sir John For- rest) -

That leave be given to bring in a Bill for an Act to provide for the naval and military defence and protection of the Commonwealth and of the several States.

Bill presented, and read a first time.

page 1525

HIGH COURT PROCEDURE BILL

Second Reading

Mr DEAKIN:
AttorneyGeneral · Ballarat · Protectionist

– I move -

That the Bill be now read a second time.

I ask. the House to pass the second reading of this Bill in order that it may be transferred to the Committee stage, and dealt with as soon as we have disposed of the Judiciary Bill in Committee. The High Court Procedure Bill confers no new powers, but is practically a part of the Judiciary Bill, and, relating as it does to details of practice, has, as a matter of convenience, been introduced as a separate measure. The Bill provides voluminous rules of court for temporary adoption. It will be necessary to revise the measure in the light of the alterations made in the Judiciary Bill; but as it simply provides the necessary machinery for the exercise of the powers given by the Judiciary Bill, it would be convenient to discuss it at once in Committee. No new principle is involved in the Bill, which is limited in its scope by the Judiciary Bill, and is simply complementary and supplementary to that measure.

Mr GLYNN:
South Australia

– I did hot expect that the High Court Procedure Bill would have come up for consideration to-day. There is, nevertheless, no reason why the measure should not go into Committee at once, though I am rather surprised at the Attorney-General pushing it on before we have absolutely disposed of the Committee stage of the Judiciary Bill.

Mr Deakin:

– The only object is to have the High Court Procedure Bill read a second time.

Mr GLYNN:

– It is evident that there are several clauses in the High Court Procedure Bill which will have to be omitted in consequence of the amendments made in the Judiciary Bill, and there are other clauses which will have to be finally dealt; with after we have completed the Committee stage of the latter measure. For instance, there are clauses dealing with criminal procedure.

Mr Deakin:

– Those clauses will have to be omitted from the High Court Procedure Bill.

Mr GLYNN:

– But I did not think the High Court Procedure Bill would have been taken before we had disposed of the Committee stage of the Judiciary Bill. We had looked forward to the probability that the Attorney-General would make an announcement as to what he intended to do in regard to the High Court Procedure Bill ; but, on the ground of personal convenience, the course suggested by the AttorneyGeneral may expedite matters.

Question resolved in the affirmative.

Bill read a second time, and committed pro forma.

page 1526

JUDICIARY BILL

In Committee (Consideration resumed from 25th June, vide page 1455) :

Postponed clause 63. - (State laws to apply as to the preliminary proceedings in criminal cases.)

Mr DEAKIN:
AttorneyGeneral · Ballarat · Protectionist

– I move -

That, after the words “ custody of offenders,” the words “ or persons charged with offences “ be inserted.

This amendment simply makes the State laws applicable ; this is not particularly a High Court endowment.

Mr GLYNN:
South Australia

– I suppose it is intended to repeal the Act No. 14 which we passed in 1901, and of which the clauses before us, dealing with criminal jurisdiction, are simply a copy. I do not think, however, that we expressly repeal the sections of the Act to which I have referred.

Mr Deakin:

– Yes, we do ; I refer the honorable and learned member to clause 3 of the Procedure Bill.

Mr GLYNN:

– I mention this matter for the reason that the whole of the Act to which I have referred is not incorporated, there being one provision in regard to the omission of which I should like some explanation from the Attorney-General. There is a provision in the Act of 1901 to the effect that appeals may be taken to the States Courts. Is it intended that all appeals in regard to ordinary offences shall be taken ‘to the Federal Court? Is that a reason why the sub-section in the Act to which I have referred was left out, while the rest of the provisions were incorporated? Mr. Deakin. - No.

Mr GLYNN:

– Section 4 of the Act No. 14 of 1901 provides-

Subject to the provisions of any Act, an appeal shall lie from any conviction, judgment, sentence, or order of any court of a State exercising jurisdiction under this Act, to the court, and in the manner provided by the law of that State for appeals from the like convictions, judgments, sentences, or orders in respect of persons charged with offences against the laws of that State.

I am not quite sure whether under the Bill before us we. have preserved the right of appeal to the States Courts.

Mr Deakin:

– I think so.

Mr GLYNN:

– Under the appellate clauses reference is not made to the States Courts, but there is provision, without limitation as to amount, for taking appeals from the Federal Courts to the High Court. In clause 36, sub-clause (6), are the words -

Any judgment, whether final or interlocutory* and whether in a civil or criminal matter, with respect to which the High Court thinks fit to give special leave to appeal. .

According to these words there may be appeal to the High Court.

Mr Deakin:

– Only on special leave.

Mr GLYNN:

– No doubt; but is it the intention that in every petty case in summary jurisdiction, the appeal shall be by special leave to the High Court, and to the High Court only?

Mr Deakin:

– This is a supplementary power given if the case be thought important enough. We do not exclude appeals to the States Courts from ordinary courts which now exercise original jurisdiction in criminal matters - appeals will, in the ordinary way, .lie from the inferior to the superior courts.

Mr GLYNN:

– We are going to pass laws which originally the States were competent to deal with, and in regard to which many of the States legislate at the present moment ; and in dealing with this and other Bills we ought not to take away the appellate jurisdiction of the States Supreme Courts. The Attorney-General may contend that the moment we unify the laws of the States, we pass a Federal law in respect of which we must give jurisdiction to the States Courts; and if that be so, it includes appellate jurisdiction. It may be, however, that the moment the

Federal law is passed, the appellate jurisdiction of the States Courts goes. It ought to be provided that in all summary jurisdiction an appeal, as at present exercised, shall lie to the Supreme Courts of the States. Of course, there will be the concurrent provision under which an appeal on application may still be had to the High Court - an appeal which should seldom be exercised, because it is not the intention that on an ordinary information, where, perhaps, a £5 penalty may be involved, there shall be appeals to the High Court - or that even where two courses of appeal are open, the one to the High Court shall be generally exercised. In almost all cases where small matters are involved the appeal ought to be to the State Court, and I want the Attorney-General to promise that this point shall be made clear. Perhaps the Attorney-General will also explain whether commitments are to be to the States Judges or to the Federal Judges.

Mr DEAKIN:

– The last observations of the honorable and learned member for South Australia, Mr, Glynn, touch the point at issue. I understand that the will of the Committee, which I have accepted, is that the abolition of the original jurisdiction of the High Court is to include the abolition of its original jurisdiction in criminal matters - that in regard to the latter the jurisdiction shall be exercised only on appeal. That being admitted the ground is clear. If honorable members will look at clause 41, as we propose to amend it, they will see that the only appeals required to be brought to the High Court are those from the Supreme Courts of the States, and, consequently, appeals in matters of summary jurisdiction will follow their ordinary course to the Supreme Courts of the States, unless the matters be thought of sufficient importance to justify their being removed to the High Court instead.

Mr Glynn:

– Is that clear?

Mr DEAKIN:

– It will be made perfectly clear. There is the one exception that we do not give up the appeal, on special leave. If one of the parties can satisfy the High Court that, for some remarkable and exceptional reason, it is necessary to grant special leave, that may be granted. But I need scarcely say that it will be very rarely, if ever, that such a course will be resorted to.

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

– Do I understand from the Attorney-General that it is not intended to have any machinery for criminal trials in the High Court 1

Mr Deakin:

– That is so, except in the case of criminal matters on appeal.

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

– I mention this because I notice that one authority has expressed the opinion that, under the Constitution, there is criminal jurisdiction inherent in the High Court.

Mr Deakin:

– I propose to make no provision under this Bill for original criminal jurisdiction.

Amendment agreed to.

Clause, as amended, agreed to.

Postponed clause 64 (Indictments).

Mr. GLYNN (South Australia). - I think that the honorable and learned member for Bendigo made some suggestion in regard to the employment of . legal representatives of the Commonwealth in the Courts.

Mr Deakin:

– The .provision that indictable offences shall be prosecuted “in the name of the Attorney-General of the Commonwealth, or of such other person as the Governor-General appoints in that behalf “ covers the ground.

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

– May I ask who will form the Grand J Jury and file the bill ?

Mr Deakin:

– The Attorney-General of the Commonwealth, or some person on his behalf.

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

– Then the AttorneyGeneral practically appoints the State officers ?

Mr KIRWAN:
Kalgoorlie

– The honorable member for Kennedy has given notice of an amendment to add the following new sub-clause, to follow sub-clause

  1. Any person committed for trial for an indictable offence may at any time after committal and before the jury is sworn apply to a Judge in chambers for the appointment of counsel for his defence. If it be found to the satisfaction of the Judge that such person is without adequate means to provide such defence for himself, or that it is desirable in the interests of justice that such an appointment should be made, the Judge shall certify this to the Attorney-General, who shall thereupon cause arrangements to be made for the defence of the accused person.

The honorable member is not at present in the chamber, and, in his absence, I desire to impress on the Attorney-General the desirability of a provision of this kind. This is by no means a novel proposal, and if it be introduced in the Judiciary Bill it will set a good example for the States to follow. The desire should be not so much to secure convictions as to administer justice. The Crown in all prosecutions goes to a considerable amount of expense, with an army of police and several Crown Prosecutors, and something might be done to provide counsel for the defence of prisoners, who otherwise might be placed at great disadvantage. There is at present a Bill before the House of Commons with the object of providing for the defence of poor prisoners, and one of the clauses of that measure might, in my opinion, be substituted for the amendment of which notice has been given by the honorable member for Kennedy. The clause in the British Bill is as follows : -

A copy of the depositions on which the prisoner is committed, shall be furnished by the clerk to every prisoner as soon as possible after his committal, and there shall at the same time be given to him the prescribed form, together with a notice that if he is without means to prepare his defence, he may have a solicitor and counsel allotted to him for ‘ his defence, on making application in the prescribed manner.

It is not in any way a new idea. I understand that what is proposed was a common practice in England prior to the year 1836, and that it is a common practice in Germany at present. The Bill now before the House of Commons on similar lines, according to the London Times, is receiving very influential support. But it does not quite accord with the spirit in which the honorable member for Kennedy has put forward his proposition. The principal proposal of the English Bill is that -

The clerk of the peace in every county and the town clerk in every borough shall keep a list of solicitors who are willing, without fee or reward in that behalf, to prepare the defence of poor prisoners at quarter sessions and assizes, and instruct counsel for them. Counsel accepting such instructions shall not receive any fee.

I trust that this Committee is not prepared to approve of such a principle. It seems to me to be very unfair to require counsel to do work for which they will receive no payment whatever. I refer to the English Bill in order to show that the principle that a poor prisoner ought to be defended is recognised by many in Great Britain, and to show that we ought to have something of the kind in connexion with cases occurring in Australia. I’ should like to read in this connexion the opinion of a Judge whose view, I am sure, will receive a great amount of respect from the lawyers in this Parliament It is the opinion of the late Sir James Stephen, who,

I understand, was one of the greatest criminal lawyers of the latter half of the last century, and who is widely known as the author- of the History qf Criminal Law. Referring to the argument formerly used by Judges to justify the rule which deprives prisoners of counsel on matters of fact, which was that “in order to convict the prisoner the proof must be so clear that no counsel could contend against it,” he writes -

In the very commonest and simplest cases there is some truth in this, if it is assumed that the witnesses speak the truth ; but if the smallest complication is introduced, if the facts are at all numerous, if the witnesses either lie or conceal the truth, an ordinary man deeply ignorant of law, and intensely interested in the result of the trial and excited by it, is in practice utterly helpless if he has no one to advise him. . . The safeguards which the experience of centuries has provided in our days are, I think, sufficient to afford considerable protection to a man who has sense, spirit, and above all, plenty of money. But I do not think it possible to avoid a good deal of injustice where these conditions fail.

Mr. Justice Stephen further writes

When a wrong conviction does occur in an English Criminal Court, it is usually caused by treating a poor and ignorant man as if he were rich, well-advised, and properly defended. If money enough is to be had to procure the services of skilful counsel and solicitors, and to provide all the evidence which may be required, the presumption that every point is taken which can be taken, and that matters passed over are passed over advisedly, is probably true, and I think that nothing can be fairer or more completely satisfactory than a great criminal trial so conducted.. A poor and ill-advised man, on the contrary, is always liable to misapprehend the nature of his offence.

In further support of this amendment, I will read from a very recent copy of the London ‘dimes weekly edition a resolution adopted at the annual meeting of the Bar Council in the year 1899. It is to the following effect : - “ That it is in the interest of :11 prisoners (considering their interests alone) that they should be defended by counsel ; and that the passing of the Criminal Evidence Act, 1898, renders it more desirable than before that they should be so defended.”

I take this extract from an article dealing with the “Defence of Poor Prisoners,” which goes on to say that the system was introduced at the Easter sessions of .1 902, and had been in force for a year, during which time the lawyers who defended ‘‘“poor prisoners were not paid. They gave their services gratuitously, and the result of their action is given as follows : -

It is considered that at least five prisoners were acquitted who would otherwise have been convicted in cases involving cither indecent assault, housebreaking, or uttering false coin.

I trust that the amendment which will be proposed by the honorable member for Kennedy will be carried by the Committee. The principle is one which ought to be introduced in Commonwealth legislation, and would no doubt be a good example for all the States to follow. It is already recognised where a prisoner’s life is in danger, and it means an extension and broadening of the general principle that the object of the Crown in prosecuting should not be so much to secure convictions as to insure that justice is carried out.

Mr MCDONALD:
Kennedy

– I move -

That the following new sub-clause be added - “(2) Any person committed for trial for an indictable offence may at any time after committal and before the jury is sworn apply to a Judge in chambers for ohe appointment of counsel for his defence. If it be found to the satisfaction of the Judge that such person is without adequate means to provide such defence for himself, or that it is desirable in the interests of justice that such an appointment should be made,’ the Judge shall certify this to the Attorney-General, who shall thereupon cause arrangements’ to be made for the defence of the accused person.”

There is nothing really new in my amendment. . It is merely an extension of a principle already adopted in most of the courts of Australia, when counsel are appointed to defend prisoners in capital cases. It was my original intention to move that a public defender be appointed, but seeing that, as the Bill stands, the High Court will be purely an appellate court, it would be an unwise waste of time to discuss that now. Further, the appointment of a public defender would involve a large amount of expenditure. While it would be a very good thing that a public defender should be appointed in t,he States to assist those persons who are without means to defend themselves, there is no need to go further than I hare done iti submitting the amendment now under consideration. There is this also to be said - - that, under the system which at present obtains, counsel who is assigned to defend a prisoner where a capital offence is charged is generally chosen at the last moment, and really has no time or opportunity to consider the defence in an adequate manner. Under wy proposal, after a man was committed for trial he would be able to make the necessary application and set the law in motion to obtain counsel to defend him properly. Counsel would be able to devote such time as was needed for the consideration of the facts, and would have an opportunity of working up the case. The majority of persons who are accused of offences under the criminal law.are totally unable to defend themselves. I remember a case which came under my own notice. I was a juryman concerned in the trial of a prisoner who had been committed by the lower court on a charge of perjury. An extraordinary procedure was adopted, according to what we were told by the Judge. The case was re-opened after the jury had been locked up ‘for several hours, .and without leaving the box we acquitted the accused. That fact certainly showed that, if the accused had had the means of defending himself, there would have been no hesitation about acquitting him. in the first instance. But as the accused was undefended lie probably had a very narrow escape of undergoing a term of imprisonment. That would have been a grave act of injustice to him. I dare. say that other honorable members could quote a number of cases where such things have taken place. Under the circumstances I think it only right that provision should be made to enable those persons who are without means of defending themselves to acquire counsel to conduct their defence, and that the task of seeing that they are defended should be undertaken by the Government.

Mr DEAKIN:

– I confess that, in my study of the network of amendments which are necessary, I have overlooked the honorable member’s proposition. In moving the amendment the honorable member has correctly stated the practice with which I am personally familiar, and which, I believe, is followed in the several States. The practice is to assign counsel to prisoners only in capital cases, and the power to do so is not very frequently employed; The first consideration in this matter is the unknown expense in which we should probably be involved by the acceptance of the amendment in .its present form. I was much interested in the quotation read by the honorable member for Kalgoorlie from the English Bill which is in his possession. That measure goes, perhaps, to another extreme ; but it indicates as much economy as consideration for the interests of the prisoner.

Mr Kirwan:

– We should not ask counsel to work for nothing.

Mr DEAKIN:

– Cases in which that occurs are more frequent than the honorable member is perhaps aware. If the honorable member for Kennedy will allow the matter to stand over, I will endeavour to form some opinion as to the probable cost which it would involve, or to frame some amendment of his proposal which would enable us to keep some check upon the cost. As it it is, the amendment would throw the door open to every man who asserted that he had not the means to prepare his defence.

Mr Watson:

– But the Judge would have tobe satisfied.

Mr DEAKIN:

– I am aware of that; but if the amendment were carried there never would . be a person indicted for an indictable offence who would confess that he was able to pay his legal expenses.

Mr Watson:

– He would have to be satisfied with second-rate legal assistance, because the Attorney-General would not assign him the foremost counsel at the Bar.

Mr DEAKIN:

– My experience goes to show that many persons whom one would suppose to be absolutely without means succeed in finding the funds necessary to enable them to engage leading counsel for their defence. These people belong to a class who, I am sure, would have no difficulty in establishing to the satisfaction of a Judge their inability to find the necessary money; but, nevertheless, the money is found, and the very best counsel engaged. I confess that I am speaking to this amendment without the consideration that I should desire. The honorable member will lose nothing by agreeing to temporarily withdraw it. If he does so, he” will have an opportunity of moving it again in committee, and, in the- meantime, I shall think over the possibility of safeguarding any measure of leniency which the Committee may desire to show. There is a great deal to be said on behalf of some such procedure as this, as long as the Commonwealth is adequately protected against unscrupulous people.

Mr McDonald:

– Does the honorable and learned gentleman desire that the whole clause shall be postponed ?

Mr DEAKIN:

– That course may be adopted if the honorable member prefers it.

Amendment, by leave, withdrawn.

Clause further postponed.

Postponed clauses 65 and 66 negatived.

Postponed clause 67 agreed to.

Postponed clause 68 negatived.

Postponed clause 69 -

When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General may decline to proceed further in the prosecution, and. may, if the person is in custody, by warrantunder his hand direct the discharge of the person from custody, and he shall be discharged accordingly.

Mr. GLYNN (South Australia).- I wish to ask the Attorney-General whether he is. not prepared to modify this clause ? I understood, from the answer given by him to the Committee, that the services of theAttorneyGeneral of a State could be utilized, in these circumstances.

Mr Deakin:

– Yes.

Mr GLYNN:

– Under the clause as itstands it would be necessary for the AttorneyGeneral of the Commonwealth to take the necessary steps in every case in which itwas decided to abandon the prosecution. There might perhaps be forty or fifty cases.

Mr Deakin:

– I referred to cases under this Bill.(

Mr GLYNN:

– I recognise that therewould be very few Federal cases, but itmight be convenient to place the power of discontinuance in the hands of the AttorneyGeneral of a State.

Mr DEAKIN:

– I think that the opinion expressed by the honorable and learned member for South Australia, Mr. Glynn, iscorrect, and, therefore, I move -

That the words “or such other person as theGovernorGeneral appoints in that behalf,” be inserted after the words “Attorney-General,”’ line 3.

Amendment agreed to.-

Mr CROUCH:
Corio

– I think that, this means the absolute abolition of thegrand jury system, for there is no provision for a grand jury in any part of the Bill. Certain cases which have occurred in Victoria - notably the Davies case, in which theSolicitorGeneral of the day differed from the Attorney-General as to the course to befollowed - show that it is very necessary to provide for a grand jury. The AttorneyGeneral will, perhaps, remember another case, in which Detective Dungey had been a party to a crime, but in which the Crown did not desire to proceed. Some private individual, however, availed himself of thepower to apply for a grand jury, and the case was brought into the Criminal Court. Perhaps the Attorney-General will make a. note of the point.

Mr Deakin:

– There will be very few cases under the Federal legislation.

Mr CROUCH:

– Nevertheless this takes away a right which might be required. It would be a matter for regret if the right were not retained. It is only exceptional cases that give rise to grand juries, and provision should be made for them.

Mr Deakin:

– It is a very clumsy procedure, but I shall look into the honorable and learned member’s suggestion.

Clause, as amended, agreed to.

Postponed clause 70 -

  1. When any person is indicted for any indictable offence against the laws of the Commonwealth, the court before which he is tried must on the application of counsel for the accused person made before verdict, and may in its discretion either before or sifter judgment without such application, reserve any question of law which arises on the trial for the consideration of a Full Court of the High Court……
  2. The presiding Judge is thereupon required to state in a case signed oy him the question of law so reserved with the special circumstances upon which it arose, and the case shall be transmitted to the High Court at the Principal Registry.

Mr. GLYNN (South Australia).- This is rather an important clause. It seems to me that the intention is that any question of law raised during the trial of a person for any indictable offence against the laws of the Commonwealth shall be referred to the High Court.

Mr Deakin:

– Yes.

Mr GLYNN:

– Do not the Government propose to allow the Full Court of a State to hear matters of law affecting cases which may be decided in the courts of that State 1 Under this clause, it would be necessary to refer to the High Court; not only important points of law arising under the Constitution or the laws made by the Parliament, which might be regarded as being to some extent of a Federal character, but any question arising in a case in which a Federal Act was involved.

Mr Deakin:

– In regard to indictable offences against the law of the Commonwealth.

Mr GLYNN:

– But the clause goes beyond that, for it provides that the court may reserve “ any question of law.” The point might be simply a question as to the admissibility of evidence at common law or under a local statute. Instead of such a question being decided at once by the court in which the trial was proceeding it would have to be referred to the High

Court of Australia. I do not care to attempt to amend the clause myself, but I would ask the Attorney-General to consider the point.

Mr Deakin:

– In the altered circumstances, I think that something of the kind is desirable.

Mr GLYNN:

– I think that the wordsarising under the Constitution or laws made by the Parliament, might be inserted after the word “laws,” line 2. I do not know whether I should consent to the clause even with the addition of those words, but I am simply making a suggestion with a view to cutting down to some extent the questions that must, as the clause stands, be sent on to the High Court. The smallest matter, relating perhaps to the relevancy of particular evidence, would have to be sent on the High Court under the clause as it is drafted. That is an expedient which would lead to considerable expense and trouble. A lawyer engaged in a case in Western Australia would have to be briefed, perhaps, to take an appeal to the High Court at the seat of government, perhaps, 1,500 miles away. Perhaps the AttorneyGeneral would agree to the postponement of the clause. It is exceedingly difficult to amend it at once in the direction recognised as necessary.

Mr DEAKIN:

– I think that the altered circumstances with regard to the original jurisdiction of the court call for such an amendment as the honorable and learned member has suggested and that we might venture to make it now, by adopting the words of the Constitution. I move -

That the words - “ arising under the Constitution or involving its interpretation or arising under any laws made by the Commonwealth,” be inserted after word “ law,” line 7.

That amendment would provide for the only two cases in which it is necessary that such questions should go to the High Court. It would put the matter beyond doubt.

Mr Higgins:

– The clause refers already to “laws of the Commonwealth.”

Mr DEAKIN:

– - Yes; but as my honorable and learned friend points out, while the offence may be against the laws of the Commonwealth, the point raised may be an ordinary matter relating to the law of evidence or some familiar question of the kind. It would be unnecessary to take such questions to the High Court. The object of this amendment is to provide that the only questions to be taken to the

High Court, shall be those arising under the Constitution or involving its. interpretation, or arising under the laws of the Commonwealth - that is to say, questions strictly Federal in character.

Mr. HIGGINS (Northern Melbourne).I was under the impression that the honorable and learned member for South Australia, Mr. Glynn, was raising a larger question. I understand the wish of the Attorney-General to be that if a question arises at the trial of a man for some alleged offence, great or small, against the laws of the Commonwealth, it shall be taken to the High Court, and that the Full Court of the State in which the case is heard shall have no power to. deal with it.

Mr Deakin:

– If the point arises under a local law it will go to the Supreme Court of the State, but if it arises under the Constitution or has reference to a Federal law it will go to the High Court.

Mr HIGGINS:

– Provision is made in the Customs Act for certain offences. At present if a man is charged with an offence, and his counsel raises a question of the interpretation of the Customs Act, the point could be discussed perhaps in a few days by the Supreme Court of the State ; but according to the suggested amendment the idea is that because the Customs Act happens to have been passed by the Federal Parliament, and not by a State Parliament, the accused person must wait, perhaps in custody, until the High Court can deal with the matter. I feel that there is no reason for that. Allowing the Attorney-General’s desire to be to force as much business as possible inco the High Court - because that is very obviously the honorable and learned gentleman’s intention - I do not think it is well, considering the smallness of the High Court, and the wide area over which it must act, to compel a man to have the interpretation of a Federal law delayed until the High Court can deal with it.

Mr Watson:

– Might it not save expense to go to the High Court directly, instead of first going to the Supreme Court of the State?

Mr HIGGINS:

– I think not. I am, of course, ‘ assuming that’ there will be only three J Judges of the High Court, whilst we . have throughout the States some 30 State Judges. If the High Court happens to be sitting in the eastern part of New South Wales, it would be very awkward that a man charged with an offence in Kalgoorlie should have to wait until arrangements can be made to have his point of law decided by that court.

Mr Watson:

– Might it not have to comebefore the High Court after all, from the> Supreme Court of the State ?

Mr HIGGINS:

– No. In about 99 cases’ out of 100 a point never goes beyond the Supreme Court. I mean to say that, as a rule, a man has one run for his money and no more. In criminal cases, we very rarely have more than one appeal of any sort to< any court from the trial. The ordinary course, when a man is charged with a crime, is to have a point reserved at his trial for the Full Court, and after the Full Court, gives its decision the man may be released or imprisoned. There is no occasion that I can see for imposing upon an accused person or the Crown the obligation to go to the High Court. As a rule, a litigant is quite content with the decision of a Full Court of the Supreme Court of his State. I am unable to see why we should not leave a State Court to interpret. a Federal law as to crime against the Customs in the same way that we leave a StateCourt to interpret Customs laws made by theFederal Parliament. This proposal seems tome to be a mistake, and I think it is but another instance of an attempt to give theHigh Court business at the ‘expense of all interested, and notwithstanding the inordinate delays which must result from the adoption of such a course. It should be made plain that just as we give original1 jurisdiction to the Supreme Courts astc nearly everything, so we should givethem jurisdiction to deal in the first instance with every question of law which may arisein the course of a criminal trial. The amendment of the clause which .1 would suggest would be the insertion after the words “ High Court,” at the end of sub-clause (1), the words “ or of a Full Court of the Supreme Court of the State.” That would leave the accused person or the Crown the option of going to the Supreme Court of theState or the High Court, whichever wasmore expeditious. No matter how much we may differ upon this- Bill I am sure it is the desire of every honorable member togive expedition. If a prisoner can be freed by an early decision of the point of law raised in his case so much the better, and he should not be detained. If the Crown can get a particular business done soon and go on to the next, all the better.

Mr. GLYNN (South Australia). - I did suggest the wider point which the honorable and learned member for Northern Melbourne has explained, but I did not care to move any amendment until I heard the views of other honorable and learned members. My first impression was that the clause should be struck out. Though I had the words to the effect of the amendment which the Attorney-General is now suggesting on the margin of my copy of the Bill confining the provision to any question of law arising under the Constitution or under laws passed by the Federal Parliament, I remind honorable members that we are really now adopting the criminal procedure as well as the criminal jurisdiction of the States. “We are adopting the laws of the State, and if we put this in, we shall have two clashing jurisdictions. It is being proposed that a point of law shall be reserved for the High Court ; but we are using the procedure of the States, and that will be the procedure under which the point of law will’ be reserved. We cannot take a part of the local Act and say we will use that part of the procedure, but not the rest of it. I would ask the Attorney-General whether, when he considers the matter from that point of view, he does not think it would be better to strike this clause out altogether. If a point does arise in any case tried by a State Judge and jury, it will be reserved under the State Criminal Law Consolidation Act, or whatever the State provision may be, for the Supreme Court of the State. I really do not know that it can be reserved for the High Court, because, although in an earlier clause of the Bill dealing With appeals the word “ criminal “ is used, I cannot see how criminal cases could be referred in the way proposed. We are now dealing with cases stated and with points of law. .Though under the earlier clause 36, in criminal as well as in civil matters there may be an appeal to the High Court by special, leave, I do not see how we are going to appeal to the High Court in a criminal matter at all except it be in a case in which the Privy Council has jurisdiction.

Mr Deakin:

– In the case of a question of law arising.

Mr GLYNN:

– It would not be an appeal. I am speaking with local knowledge of the South Australian practice, and there would scarcely be an appeal to the High Court on a point of law, though there < might be an application for a writ of error or a point might be reserved. The earlier clause to which I have referred deals with ordinary appeals taken afterjudgment is given. As a general rule, all the intended proceedings in criminal matters are taken during the trial before, the jury, and are not taken afterwards by way of appeal. There may, of course, be a writ of error or. a case stated during the trial. I mention this to show that I have some slight doubt whether we should pass this provision in some form, in order that the Judge at a trial may reserve a case stated,, or a point of law, for the High Court. But I think that the procedure followed would be the procedure of the State, whatever it might happen to be.

Mr DEAKIN:

– If the amendment suggested by the honorable and learned member for Northern Melbourne is accepted,, the amendment which I have proposed will hardly be necessary. I will therefore nob press my amendment, as the amendment which the honorable and learned memberhas suggested will enable a question of law to be reserved for the Full Court of the State, or for the High Court, by option.

Amendment, by leave, withdrawn.

Mr HIGGINS:

– I am glad ‘that theAttorneyGeneral has seen his way to accept my suggestion. I move -

That after the words “High Court,’ line 9, the following words be inserted - “or of a Full. Court of the Supreme Court of the State.”

Amendment agreed to.

Mr DEAKIN:

– In view of the amendment just made it is necessary to verbally amend sub-clause (3).

Amendments (by Mr. Deakin) agreed to-

That after the word “ and,” line 13, the words, “if it be reserved for the High Court” be inserted.

That the words “High Court at the,” line- 14, be omitted.

Mr. L. E. GROOM (Queensland).- Does the Attorney-General intend to provide any means for taking’ a constitutional question, from the decision of a Supreme Court of a State to the High Court in these cases 1

Mr DEAKIN:

– We have that power in another part of the Bill.

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

– Does the honorable and learned gentleman believe that the. power we have provided for would coverthat ? I agree with the amendment submitted by the honorable and learned member for Northern Melbourne, but I should!1 like to be sure that there will a right of appeal in criminal matters, because, as a rule, in such matters the decision of the Full Court of a State is final, and an appeal to the Privy Council is only by special leave.

Clause, as amended, agreed to.

Postponed clauses 71 to 74 verbally amended and agreed to.

Postponed clauses 75 and 76 agreed to.

Postponed clause 77 -

An injunction shall not he granted by any court exercising Federal jurisdiction to stay proceedings in any Court of a State except in cases when the proceedings are taken in disobedience to this Act, or to an order of the High Court made under this Act.

Mr. HIGGINS (Northern Melbourne.)This clause appears to be taken from the statutes of the United States. I am not familiar with those statutes, but I do not think the expression “injunction’’ ought to be used.

Mr Deakin:

– In New South Wales there is still an injunction against an inferior court to stay proceedings at law.

Mr HIGGINS:

– So far as I know, under British law there never has been an injunction to stay proceedings. There is never an injunction against a court. The only injunction which one can obtain is against a person who is litigating. It may be a form of expression only ; but as we are dealing with British law, and legislating under an Imperial Act, I do not think that we ought to depart from the phraseology which has become known to British lawyers. The whole clause appears to me to be fruitless. If the proceedings are taken in disobedience to the Act, they are simply null and void. I cannot see what is the use of the provision.

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

– Was the clause put in when there was exclusive jurisdiction in. the High Court?

Mr Deakin:

– It is to protect the exclusive jurisdiction ; it introduces a novel element.

Mr HIGGINS:

– Assuming for a moment that, the State Supreme Court should deal with a matter in which the jurisdiction is vested in the High Court, the proceeding is simply null and void, because the State Court would be an agent acting without authority.

Mr Deakin:

– Should it be allowed so to act?

Mr HIGGINS:

– So far as I can see, it is of no use to issue an injunction against an act which will be void.

Mr Deakin:

– If it is important enough to interfere at all, the case should be stopped at its inception.

Mr HIGGINS:

– I do not like to interfere with a provision whichhas been adopted in the United States. I would not venture to propose its omission, unless the Attorney-General thinks that it ought to be omitted. I think it would be better if he would adhere to the meaning of the term as it is understood in British Courts. The expression “injunction” is misused in the States - at least to our understanding, it is used in a host of cases where it is not used in British law. I should say that the word “order” ought to be used, but I do not see any use in the clause. If the parties go on to obtain an order or decision in a case where the State Court has no jurisdiction, it is simply void. They go on at their own risk.

Mr DEAKIN:

– I think there is a good deal in what my honorable and learned friend has said. I considered the clause in that aspect before, but it was deemed a second line of defence. I shall consent to the clause being struck out, and, if it is required, I shall make a substituted proposal.

Clause negatived.

Postponed clause 78 agreed to.

Postponed clause 79 (Common law to govern).

Mr. HIGGINS (Northern Melbourne).The clause speaks of the statute law in force in the State in which the court in which the jurisdiction is exercised is held. What isto happen as to the Federal capital assuming that it embraces a large territory?

Mr DEAKIN:

– We had a provision in that regard, but we decided to take it out, and when we establish the Federal capital to make special provision. It is alluded to once or twice here.

Clause agreed to.

Postponed clauses80 to 84 agreed to.

Postponed clause85 (Rules of Court).

Mr. GLYNN (South Australia). - I do nor quite understand the position under this Bill and the High Court Procedure Bill as regards the rules of court. I believe that there is a provision in the latter measure for the framing of rules of court in all matters of procedure, and a similar power is taken in this Bill.

Mr Deakin:

– This clause is giving the power itself.

Mr GLYNN:

– I think that the High . Court Procedure Bill contains a similar provision. The Attorney-General proposes to make the first rules statutory rules, and to allow the Judges afterwards to vary them.

Mr Deakin:

– Yes.

Mr GLYNN:

– It is somewhat anomalous.

Mr Deakin:

– No ; the only provision we make there is that the rules in the first schedule shall regulate proceedings which may be annulled or altered. All we do in that Bill is to deal with particular rules which are temporarily made.

Clause agreed to.

Postponed clause86 agreed to.

Mr DEAKIN:

– I move-

That the following new clause be inserted : - 17. (.1) In any matter pending in the High

Court, not being a matter in which the High Court has exclusive jurisdiction, the Supreme Court of a State shall, subject to any rules of court, be invested with Federal jurisdiction to hear and determine any applications which may be made to a Justice of the High Court sitting in chambers.

  1. Such jurisdiction may be exercised by a single Judge of the Supreme Court sitting in Chambers, and the order of the Judge shall have the same effect as a similar order of a Justice of the High Court sitting in chambers.

If honorable members will look at the measure they will see that there was a proposal in clause 17 to enable a Judge of the Supreme Court of a State, at the request of the Chief Justice, to act in matters pending in the High Court when referred to him in chambers. But the form of the clause was taken exception to, and it was doubted whether, under the Constitution, we had power to authorize a State Judge to intervene in that direction. Yet it was admitted that it was an extremely convenient proposal - one which would greatly tend to cheapen and facilitate proceedings. The new clause represents the form in which it appears most desirable to take this useful power. I am aware that it may be questioned whether we have the power to invest a Supreme Court of a State or a single Judge of that court with this authority. But I am inclined to think that our power of investiture is large enough, and that, manifestly, it will be so great a convenience, especially in the more distant States, that it is worth whiles to take a little risk even if the doubt remains. Take a case which by the choice of the parties is to be pursued in the High Court, or which by the necessities of exclusive jurisdiction, must be proceeded with in the High Court, if any interlocutory matter arose in Queensland or Western Australia, the presence of a Justice of the High Court would be necessary before it could be dealt with. By this short and simple means we enable the Supreme Court of a State and a single Judge of that court - subject to the rules of court - to deal with the matter, and thus avoid having to wait for the arrival of a Justice of the High Court, or to make an application to some distant centre. Any safeguard that may be needed in regard to the particular matters to be dealt with can be provided by the rules of the court. I submit that the clause offers a very expeditious mode of advancing suits which are pending in the High Court.

Proposed new clause agreed to.

Mr DEAKIN:

– I move-

That the following new clause be inserted : - “31. In addition to the matters in which original jurisdiction is conferred on the HighCourt by the Constitution, the High Court shall have original jurisdiction in all matters which involve any question, howsoever arising, as to the limits inter se -

  1. of the Constitutional powers of the Commonwealth and those of any State or States, or
  2. of the Constitutional powers of any two or more States. “

When the Committee thought fit, by negativing clause 31, to deprive the High Court of its original jurisdiction in all matters left optional under the Constitution, I indicated that I might move the reinsertion of some of the provisions of that clause. Having regard to the discussion, I now ask that this original jurisdiction be extended to the High Court in regard to only one class of cases - those which affect the Constitution of the Commonwealth, or the Constitutions of the States. In such cases, the High Court is, under the Constitution, the final Court of Appeal, unless its Justices authorize their transmission to the Judicial Committee of the Privy Council. The Constitution separates them from every other class of case, and endows the High Court with an authority in regard to them with which it is not endowed in regard to any other matter. Consequently, it seems to me that, to make this measure harmonious with the Constitution, it is necessary that we should confer this original jurisdiction upon the High Court. The jurisdiction is a not exclusive. The

Ci all ie merely sets the High Court upon the same footing .-is the States Courts, so that litigants will have the option of commencing proceedings either in a State Court or in the High Court, to which it is certain in this instance that the cases must sooner or later find their way on appeal. This arrangement is iu the interest of litigants in general, and is one to which the Committee need not hesitate to give its approval. The cases coming under the clause, although of the highest importance, will be extremely rare-

Mr. GLYNN (South’ Australia). - I think it would be better not to insert the proposed nev.’ clause. The reason for not giving the High Court original jurisdiction an the matters dealt with in clause 31, was that at best the cases would be tried by only one Judge. It may be objected that if these cases are tried in the States Courts they may be heard by J udges sitting alone : but litigants will have the advantage of being able to proceed in their local courts. If the proposed new clause is agreed to, however, in questions concerning the constitutionality of a Commonwealth or State statute the plaintiff will have the option of going to the State Court, or of dragging the defendant to the High Court, sitting in the Federal capital, in the heart of Australia, or compelling the High Court Judges to go on circuit.

Mr Higgins:

– But the arrangement is an optional one.

Mr GLYNN:

– Yes, and that, in my opinion, makes it worse. Instead of having a regular High Court circuit, it will be within the power of the plaintiff either to force the Justices of the High Court to go on circuit to hear particular cases, or to drag the defendant to the Federal capital. It is not right that any capitalist, who happens to be a plaintiff, should be given that power. I cannot see that a better judgment may be expected from a Federal Judge than would be obtained from a State Judge. In any case litigants can appeal to the High Court. The clause is, to my mind, objectionable, because indirectly it may limit the right of appeal to the Privy Council. Under the Constitution, if a case of the kind dealt with here goes to the High Court, there cannot be an ‘appeal to the Privy Council without the permission of the Justices of the High Court. But if it does not go to the High Court at all, the parties probably may appeal 4,0 the Privy Council. i Therefore, this is a sinister method of en croaching upon the jurisdiction of the Privy Council.

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

– How can it be a sinister method, if we are acting within our constitutional powers’’

Mr GLYNN:

– It is questionable that we are. The argument used by the honorable and learned member for Northern Melbourne the. other night applies, to some extent, to this case. It is probable that, if an action were taken before a State Judge, an appeal could be made direct to the Privy Council ; but if the proposed new clause is agreed to, the defendant may be dragged at once to the High Court, and cannot then appeal to the Privy Council, except with the consent of the court. I call the attempt a sinister one, because this effect of the clause was not mentioned by the AttorneyGeneral, and I think that such, an important matter should have been mentioned. In my opinion, justice will be as efficiently and more economically administered by leaving these matters to the jurisdiction of the States Courts as by entrusting them to the High Court.

Mr. HIGGINS (Northern Melbourne).I have felt some difficulty in making up my mind in regard to this clause. I certainly think its provisions expedient, inasmuch as they leave it optional to plaintiffs to enter the High Court or a State Court, as one or the other happens to be more convenient to them. It is quite true, however, that it may have the effect of inducing the Justices of the High Court to spend a great deal of their time in travelling, and that would give the Attorney-General good ground for sayin a year or two - “ we must increase the Justices of the High Court.”

Mr Deakin:

– How many of these cases will, arise? The clause gives jurisdiction only in matters involving questions as to the limits inter se of the constitutional powers of the Commonwealth and the States.

Mr HIGGINS:

– Yes ; but each of these little attempts to give original jurisdiction to the High Court tends to increase its work. I have read that the best method to insure getting your own way is to arrange for the inevitable. If we make the machinery of the High Court such that at least five Justices are required to exercise it, it will become necessary to appoint five Justices. I do not think that there will be many of these cases however, and I do not think that the jurisdiction conferred by the clause can be fairly refused. I, therefore, ask the honorable and learned member for South Australia not to press his objection to the clause to a division. I think that having created a High Court we should give it this work to do.

Proposed new clause agreed to.

Mr DEAKIN:

– I move-

That the following new clause be inserted : - “34A. Any person making any claim against the Commonwealth whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose.”

The clause which I have just read is the first of five new clauses dealing with suits against the Commonwealth and against the States.. Honorable members will notice that when any person makes a claim against the Commonwealth, or against a State in respect of a matter in which the High Court has or may have original jurisdiction, he may bring his suit in the High Court or in the Supreme Court of the State in which the claim arose. But claims by a State against the Commonwealth, or against another State, may be prosecuted only in the High Court.

Mr Higgins:

– Is it intended that the provisions of the Claims Against the Commonwealth Act shall continue to have force ?

Mr DEAKIN:

– No.

Mr Higgins:

– Will a person who makes a claim against the Commonwealth have to wait for some person to be nominated as the defendant on. behalf of the Commonwealth?

Mr DEAKIN:

– That is necessary under the Claims Against the Commonwealth Act, but it will not be necessary under the Bill.

Mr Higgins:

– I am glad to hear that. I objected to the provision in the Claims Against the Commonwealth Act.

Proposed new clause agreed to.

Amendment (by Mr. Deakin) agreed to -

That the following new clauses be inserted : - “ 34b. Any State making any claim against the

Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court.” “ 34c. Any person making any claim against a

State, whether in contract or in tort, in respect of a matter in which the High Court has original jurisdiction, or may have original jurisdiction conferred on it, may in respect of the claim bring a suit against the State in the Supreme Court of the State, or (if the High Court has. original jurisdiction in the matter) in the High Court.” “ 34d. Any State making any claim against another State may in respect of the claim bring a suit against that State in the High Court.”

Amendment (by Mr. Deakin) proposed- -

That the following new clause be inserted : - “34e. In a suit against a State brought in the-

High Court, the High Court may grant an injunction against the State and against all officers of the State and persons acting under the authority of the State, and may enforce the injunction against all such officers and persons.”

Mr. GLYNN (South Australia).- I am very glad to notice that all the suggestions made, first at the Convention and afterwards brought forward last session, by myself and the honorable and learned member for Northern Melbourne are at length being carried out.

Proposed new clause agreed to.

Mr. CROUCH (Corio).- I move-

That the following new clause, to follow clause 35, be inserted : - “ No appeal shall be permitted to the King in

Council in any matter involving the interpretation of the Constitution, or of the Constitution of a State, unless the public interests of some part of His Majesty’s dominions, other than the Commonwealth or a State, are involved.”

I need only say that this is an exact copy of the clause that formed part of the Commonwealth Constitution Bill that was passed by the people of Australia and submitted to the Imperial Parliament. The people of” Victoria, New South Wales, Tasmania, and South Australia passed the Bill twice, and it was passed by the people of Western Australia on one occasion.

Mr Mahon:

– We had only one referendum in Western Australia, and the Bill did. not then contain this clause.

Mr CROUCH:

– Yes ; the Bill was passed only once by Western Australia, but I think this clause was included. The Federal delegation which was sent to England to watch the progress of the Bill through the House of Commons consisted of the Prime Minister, the AttorneyGeneral, the Minister for Trade and Customs, Sir Philip Fysh, and the Minister for Defence. After they left Australia the represenfcatives of several financial institutions and commercial organizations, and others who were very much astray with regard to the opinion of the great majority of the people of Australia upon the subject of the Bill, and upon this clause, in particular, raised a great hubbub against the abolition of the right of appeal to the Privy Council, because they did not look too kindly upon the proposed High Court. They sent several cablegrams to Mr. Chamberlain, and raised an agitation in the press against the passing of this clause. The result was that Mr. Chamberlain began to suspect that the clause had been included in the Bill by mistake, and that the delegates whom we sent to England did not properly represent the Australian people. He was led to suppose that the people of Australia really did not know their own minds, and he then proposed to do what was ultimately decided upon, namely, to empower Parliament, under section 74 of the Constitution, to make laws limiting the matters in which leave to appeal to the Privy Council might be asked, with the proviso that proposed laws containing any such limitation should be reserved by the Governor-General for Her Majesty’s pleasure. Now is an opportunity to show the real mind of the Australians upon this subject, and I desire to read to honorable members what the Prime Minister has said on this subject. Speaking on the 11th instant, lie said -

The safeguards provided in the 74th section will enable the High Court to give such decisions in interpreting the Constitution as will be the just and, in almost every case, the fina) arbitrament of disputes between State and State, or between State and Commonwealth. If it is found that it is not so much the effective guardian and arbiter us we hope, what is the duty of Australians ? To decline the court, or to sweep it away ? No ; to exercise the powers which the Constitution gives us. It is Our duty to use those powers in amending the Constitution so that, without any authority withstanding us. we shall be able to give the High Court the whole of its attributes, and thus dispose of tho arguments of those who say that because it is not big enough it ought not to be established. In any. case, under section 74 we have the power to limit appeals, and there is nothing to prevent us from exercising that power at any time.

The honorable and learned member for Northern Melbourne, speaking upon the same subject, is reported at page 338 of the records of the Convention of 1898 as follows : -

Not one man in 100,000 cares a snuff about a Privy Council appeal. Very few people go there - only a few wealthy corporations, and a few working against them particularly. Who cares about the Privy Council, or the Privy Council appeals V It is not a matter of popular rights. It is simply a question of whether we here, in framing a Constitution, are too timid to take upon ourselves the responsibility of carrying out rights between party and party. Of course I admit there is no popular demand for it. But I ask is there a popular demand that the appeal to the Privy Council should be given ?

At the Convention which met in Adelaide, in 1897, the honorable and learned member said -

There are certain phrases becoming current about this subject which are scarcely applicable to the position. It is said that we are cutting one of the links which .binds Australia to England.’ I rather like the expression “ link,” but if you consider it one of the irritating “ links “ - one of the fetters round the feet of the people in Australia - then, of course, it is by no means” conducive to amity between the old country and ourselves. If there is an appeal to the Privy Council when one of t he parties to the action is beaten he does not like that body. As a rule, both parties dislike the Council, because of the expense. How, then, it is to be considered conducive to harmony between England and Australia I do not know. How many are affected by this appeal to the Privy Council ? I undertake to say there is not one man in 100,000 who has an appeal to go to the Privy Council ; and I am sorry to think that Sir William Zeal, and others who agree with him, think this appeal to the Privy Council is one of the means by which the Empire is held together.

Sir William Zeal. I have not expressed an opinion on it. You have talked me out.

Mr HIGGINS:

– We have d stronger link with the old country than this - a silken tie in the direction of language, history, and sentiment - than in this miserable right of appeal to the Privy Council.

I wish honorable members to recognise that it is largely owing to the fact that appeals may still be made to the Privy Council that such a strong objection has been expressed to the Bill. No doubt if the High Court were to have final appellate jurisdiction in all matters involving the interpretation of the Constitution, or of the Constitution of a State, a great deal of the objection to the proposed tribunal would disappear. The honorable and learned member for South Australia, Mr. Glynn, speaking on the 9th June, said -

I was one of those who advocated the abolition of appeals to the Privy Council, but it has been retained, and for this reason I believe the creation of the High Court is premature.

The honorable and learned member for Corinella, upon the following day, said -

Although I do not profess to have the Same experience as some other honorable and learned members, I venture to predict that appeals to the Privy Council will continue on the whole to be the choice of litigants. One among the several reasons which induce me to take this view is the fact that under the Constitution as it stands, even if the High Court has finally dealt with any dispute, there is still power for the Privy Council to grant special leave to appeal from the High Court to itself upon all but inter se questions. The result will be that the litigant who has failed before the Supreme Court, and who desires to carey an appeal to a higher tribunal, will be face to face with the fact that if he goes to the High Court and wins there, he may still have to fight the matter through another stage, and eventually appeal to the Privy Council. Consequently, the inclination will be to go straight to that court from which there can be no further appeal.

I do not wish to overburden ray speech with statements regarding the Privy Council, but I think it is appropriate to direct attention to the proposal of Sir Henry Parkes at the Convention in 1891 to establish

A Judiciary consisting of a Federal Supreme Court, which shall constitute a High Court of Appeal for Australia, under the direct authority of the Sovereign, whose decisions, as such, should be final.

In submitting his resolution, he said -

In seeking to create this Supreme Court of Australia, it will be observed that I seek to create within it an appellate court from which there should be no appeal to the Queen in the Privy Council …. 1 think we shall make a great mistake if we allow any appeal to be made outside the shores of the new Australia.

I do not propose in this clause to go as far as that, although I should like to see the Privy Council entirely abolished so far as its control over our Australian courts is concerned. I believe that in our law, as in our legislation, we should have the final voice and control. But unfortunately the Constitution does not enable us to entirely abolish appeals to the Privy Council, empower being restricted to the limitation of them. Therefore, I propose to adopt the provision originally contained in the Constitution Bill. That Constitution was approved by a large majority of the people in the face of considerable opposition, and it is a great pity that the Imperial Parliament, acting upon the advice of Mr. Chamberlain, who in his turn was swayed by the representations of a re-actionary minority, should have altered the Bill. As has already been stated, the Federal delegates worked very hard for the Bill in its original form, and they strained every effort to secure its passage, and I hope that they will now show that they acted according to their own deliberate convictions. We cannot feel that there is any great advantage in having the right to appeal to a court which has shown its want of respect for our tribunals by abuse which has called down the reprobation of the Chief Justice of New Zealand. The more we restrict the right of appeal to the Privy Council the sooner shall we bring about that condition of affairs which is most desired by the people of Australia, and the more rapidly shall we promote the creation of that Imperial Court of Appeal, under which the people of the Empirewhether in England or outside it will have equal rights. At present the English litigant has the advantage of an appeal to the House of Lords ; whilst the Australian has to go through three courts .to reach finality.. What we want is equal treatment through an Imperial Court of Appeal such as theAustralian delegates asked. When the American colonies were first formed the Supreme Courts of Massachusetts, RhodeIsland, and Connecticut denied the right of appeal to the Privy Council, and if we had not adopted the later American precedents, we should not have occupied our present position. The Government do not desire to continue the right of appeal to the Privy Council to the extent of ignoring the provision in the Constitution Bill which was approved by the people of Australia, but they wish to avoid the necessity of having the Bill reserved by the Governor-General for HisMajesty’s pleasure. The Attorney-General will, perhaps, assent to the proposition that there is already in the Bill a limitation of the right of appeal to the Privy Council. Section 74 of the Constitution gives the Pr(ivy Council the right toreview the decisions of the High Court. In this Bill we have declared that the High Court may consist of one Justice only, but we have limited the power of appeal to the Privy Council by insisting that any such appeal must have the concurrence of three Justices. Further, as was pointed out by the honorable and learned member for South Australia, Mr. Glynn, one of the new clauses proposed by the Attorney-General tonight imposes still another limitation upon the right of appeal to the Privy Council. But even assuming that such a limitation applies only to the clause which I have submitted, and that its adoption will render it necessary for the Governor-General to reserve the Bill for His Majesty’s pleasure, I still ask the Attorney-General to accept it, because by so doing he will have affirmed, upon the first opportunity which has presented itself, that the attitude taken up by- the Australian Federal delegates who were sent to England to secure the passage of the Constitution Bill was the correct one. The insertion of this clause will clearly show that we believe in the result of the referenda to the electors of the Common-

I wealth. Even if the measure be reserved for

His Majesty’s assent - as I have no doubt it will if this clause be inserted - I would point out that within two years of its presentation by the Governor-General - in other words, within a brief period - the King would be advised to assent to it simply because, by our action, Mr. Chamberlain would know that the Australian people supported the delegates in their request.

Mr CONROY:
Werriwa

– If the remarks of the honorable and learned member for Corio had had any relevance to the question at issue, I should have listened to them with pleasure and interest. But his misconception upon this matter is so strong that it is high time the attention of the Committee was called to it. He invites us to regard the Privy Council as a body which enacts laws. But I would point out that it is nothing of the sort. It merely interprets laws. If this Parliament did not approve of its decision upon any law, it would be quite within our power to enact legislation the very next day, altering that law. The insertion of the proposed new clause would have the effect of delaying the passage of this measure for a considerable time, and would conclusively show that the argument advanced by its opponents, that the creation of the High Court was not an urgent matter, is correct. I do not see that it is possible for the Government to accept the proposal of the honorable and learned -member, and, therefore, I shall not labour the matter further.

Mr MAHON:
Coolgardie

– In contending that the Privy Council does not make laws, but merely interprets them, the honorable and learned member for Werriwa attempts to establish a distinction where there is very little difference. We are all aware that appeal courts are constantly reading into Acts of Parliament meanings which the Legislature did not entertain at the time they were passed. Consequent!)’, although the honorable and learned member may be strictly correct in affirming that the Privy Council does not make laws, he has not substantially stated the facts as they exist. It is notorious - as was boasted by the “Attorney-General in moving the second reading of this Bill last session - that Chief Justice Marshall drew from the American Constitution interpretations which did not expressly appear there, but which were absolutely necessary for the smooth working of the Federal machine. In the light of these facts I hold that the honorable and learned member for Werriwa did not place the matter fairly before the Committee. If the honorable and learned member for Corio presses his proposal to a division I shall be found voting with him. I believe that we have men in Australia who are as well, if not better, qualified to interpret our Constitution and to determine what was the meaning of this Parliament as is any tribunal upon the other side of the globe. I chiefly rose, however, to convince the honorable and learned member for Corio of his error in declaring that bis proposal was contained in the Commonwealth Constitution as submitted to the people of Western Australia. My recollection upon this matter is borne out by Messrs. Quick and Garran. I find from their work, The Annotated Constitution qf the Australian Commonwealth, that the Constitution was finally passed by the House of Lords upon 3rd July, 1900, and that it was assented to by the Queen upon 9 th July, whereas it was not submitted to the people of Western Australia until the 31st of July of the same year. Consequently this clause did not appear in the Constitution as it was presented to the electors of that State.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– I intend to support the insertion of the proposed new clause, and I think that the Attorney-General - in view of his attitude throughout the discussion of this measure - ought to adopt a similar course. It seems to me that the honorable and learned member for Werriwa has quite misunderstood the scope and effect of the proposal. It is all very well for him to say that this Parliament has power to enact legislation which would absolve us from the effect of any judgment by the Privy Council which did not accord with our own ideas. But I would point out that the proposed new clause aims at securing the interpretation of our Constitution by the High Court. We know from American experience that it requires many years to effect an alteration in the Constitution, even when a majority of the people are in favour of its amendment. But, apart from that consideration, the proposed new clause coincides with my own ideas as to the way in which we should deal with the High Court and with our Constitution. If we are to create a High Court, I hold that that tribunal, and no other, should determine all matters affecting our Constitution. 1 I shall support the “honorable and learned member for Corio, unless it’ can be shown by legal luminaries ; that his proposal contains some defect.

Mr DEAKIN:

– I trust that the Committee will not agree to the proposed new clause. I am not deterred from saying this by the fact that - as the honorable and learned member for Corio correctly supposed - it reflects my own ideas of what the High Court ought to be. But I do not assume that it represents the views of a majority of the people of Australia who approved of our Constitution. They approved of that Constitution with a greater limitation upon the appeal to the Judicial Committee than the Constitution Act now imposes. I doubt if a majority of the people at any time were sufficiently informed upon this, question to adopt the view which was entertained by the Convention until its very last sitting. The members of the Convention desired that the High Court of the future should be the sole Court of Appeal in all matters arising in litigation in Australia. But, as representations were received from State after State, the conviction was forced upon the delegates in England that if they insisted upon embodying the views contained in the Bill as submitted to the country, they would lose a large measure of support and probably imperil its acceptance. It was in obedience to what they believed to be the wish of the people that modified proposals were inserted in the Constitution. That was the reason why the original proposition of the Convention which abolished all appeals to the Privy Council was whittled down to the form in which it appears in this amendment. I have just been refreshing my recollection by a perusal of the report of the proceedings in the House of Commons and the House of Lords when the Constitution Bill, as it was indorsed by the people of Australia, was submitted to those august bodies. The proposal which our Bill contained when amended by the Imperial Government was to sweep away every restriction imposed upon the right of appeal to the Privy Council. It was only after a long struggle, to which reference has already been made, and at considerable peril,, and after a division amongst the Australian Federal delegates .in England, that we were obliged to accept section 74 of the Constitution in its present form, rather than an absolute and unlimited right of appeal embodied in the Constitution Bill.

We obtained that section only upon condition that there should be placed at the end of it the words to which the honorable and learned member for Corio has referred, and which require that, though this Parliament may make laws limiting the matters in which the right of appeal may be asked, such laws shall be reserved by the GovernorGeneral for His Majesty’s pleasure. I have two doubts as to this proposal. First, I doubt whether the people of Australia as a whole, or a majority of them, are in favour of the proposal, and, having that doubt, am of opinion that they should have an opportunity of expressing their views on a clause of the kind before it is embodied in an Act.

Mr CROUCH:

– The people have had several opportunities apart from this proposal.

Mr DEAKIN:

– I think not. A proposition of the kind, would, I think, require to be specifically submitted - along with other propositions undoubtedly - at a general election in order to obtain a satisfactory verdict. At any rate, there is very little evidence to show that the majority of the people have ‘ changed the opinion which we believed them to entertain in 1900. Then there is the second consideration that to introduce this new clause would be, certainly, to require the reservation of the Bill for the Royal assent, for, it might be, two years - a period of uncertainty which would be in the highest degree undesirable. Whether honorable members have opposed or have supported the establishment of a High Court, they will unite in agreeing that it would be in the highest degree unwise to have a measure of such importance “hung up “for a year or two.

Mr A McLEAN:
GIPPSLAND, VICTORIA · PROT

– That is the only redeeming feature of the proposal.

Mr DEAKIN:

– Although the honorable member for Gippsland retains his opposition to the measure, he will agree that it ought to be either passed or defeated - that a Bill of the kind ought .not to be left in such a position for months that no one can say whether it has been accepted or rejected.

Mr CROUCH:

– Would there not be an opportunity given to the people of expressing their opinion at a general election ?

Mr DEAKIN:

– That would be too late to determine the matter.

Sir William McMillan:

– And it might be dangerous.

Mr G B EDWARDS:
SOUTH SYDNEY, NEW SOUTH WALES · FT

– It would be of no use reserving the question for a general election, seeing that no referendum would be taken.

Mr DEAKIN:

– Exactly ; moreover, when this or a similiar provision is proposed, I dare say the clause now before us - although, perhaps, the best we can get up to the present - could be improved on. The way to educate the people on the question is, first of all, to establish a court to which they may - transfer the confidence which many of them now repose in the Judicial Committee of the Privy Council. Not until we have a court of repute, of standing, and of manifest capacity, shall we be able to .satisfy the great body of the people as to the judicial decisions which they may obtain in their own country. There is a proverb in several languages to the effect that far fields always look the best, and, no doubt, “ distance lends enchantment to the view,” even in judicial matters. Not until the public of Australia have had an opportunity of witnessing directly the working of a High Court amongst ourselves, so that their confidence may be reposed in that court, would it, in my opinion, be judicious to submit to them a proposal to further limit appeals to the Judicial Committee of the Privy Council. At present there is no doubt that the great body of the people of Australia have confidence in that body; and it appears to me unwise, even on the part of those who desire to see appeals limited, to press a proposition of the kind until a High Court has been established, and has justified its establishment by creating its own reputation. Under the circumstances, I hope the honorable and learned member for Corio will not press his amendment, because, if he does so, I shall be compelled to vote against it inorderthat this measure may not be left in a condition of suspended animation - in order that we may know definitely whether the Bill is to be accepted or rejected, and in order that we may not run any risk of adopting a proposal to which the people are opposed. The new clause, even if adopted, would not destroy the Bill, because, in my opinion, “-to this complexion must we come at last.” This proposal, or some similar proposal will, in my view, be adopted within the next few years. The present proposal may be premature - possibly it is - but it appears to me that the High Court of the future, when once it is well grounded in the confidence of the people, will be trusted in Australia whether or not the appeals to the Privy Council are limited. A right of appeal will still be possessed either to the presentJudicial Committee of the Privy Council, or, let us hope, to the one Imperial Court of Appeal which we. all desire to seeestablished. But when demonstration can be afforded that litigants can obtain from a court of the first class in Australia, at less expense and at less delay, judgments which may be relied on ; when litigants are satisfied that they have at their own doors a court as trustworthy - perhaps in Australian matters more trustworthy than a distant court however eminent - weshall find that the practice of appealing, oversea will gradually fall into disuse, and that, without any new restriction of this kind, the High Court will draw to itself theappeal business of Australia. But beyond, that, when it has been so demonstrated, if Parliament thinks fit, it will still be possibleto alter the law in this direction with theconsent of the people here, and without creating any difficulty in the mother country.

Sir WILLIAM MCMILLAN:
Wentworth

– After the lucid and intelligentspeech of the Attorney-General, the honorable and learned member for Corio might well withdraw his amendment. It is a matter of satisfaction to me, as a member of the Convention, that another luminous mind is of the same opinion as were most of thedelegates in that body. I have always held that the matter of the interpretation of the Constitution ought to be one for a High Court of Australia. The Constitution is practically an Australian measure, and theImperial Government have allowed us, in anything relating to our local autonomy, totake our own course. It seems to me that, in regard to a Constitution framed on Australian soil, the High Court is the proper tribunal to which to look for ite interpretation. At the same time, as the Attorney-General has said, this matter has been thrashed out. An Act of Parliament has been passed in England, with the view that the majority of the people of Australia were against theviews of the Federal Convention. I believe the people of Australia consider that the right of appeal to the Privy Council is a. great legal tie between the outlying parts and the heart of the Empire ; and, that being the case, the Committee might verywell reject the proposed clause and leave” it for consideration at a later date. As the honorable and learned member for Corio is certain to be a member of the next Parliament, he will have an opportunity of again introducing the subject.

New clause declared negatived on the . voices.

Mr Crouch:

– I think the “ ayes “ have it.

The CHAIRMAN:

– The standing orders provide that, unless there be more than one voice a division cannot be called for.

Postponed clause 64 -

  1. ) Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf. . . .
Mr DEAKIN:

– This clause was postponed in order that the honorable member for Kennedy might have an opportunity of submitting the amendment which has been already indicated. In the absence of that honorable member, I presume there will be no objection to passing the clause, on an undertaking being given that it will be recommitted, to afford the honorable member the opportunity he would have had now.

Clause agreed to.

Bill reported with amendments.

Motion (by Mr. Deakin) proposed -

That the .Bill be now recommitted to a Committee of the Whole House for the reconsideration of clauses 10, 11, 20, 21, 22, 24, 28, 32, 34, 36, 38, 41, 45, 55, 58, 64, 72, and 74, and the heading of Part VI.

Mr. GLYNN (South Australia). - I suppose it is thoroughly understood that on the recommittal honorable members, in considering the clauses, will not be limited to the purposes specified by the Attorney-General, but will be able to submit amendments on amendments moved by the honorable and learned gentleman 1

Mr Deakin:

– The whole of each clause is recommitted.

Question resolved in the affirmative.

In Committee. -

Clause 10-

  1. The Governor-General may, on the recommendation of the Justices of the High Court, or a majority of them of whom the Chief Justice is one, establish District Registries at other places within any State.

Amendment (by Mr. Deakin) agreed to-

That after the word “State,” the words “or territory “ be inserted. 1

Clause, as amended, agreed to.

Clause 1 1 verbally amended and agreed to.

Clause 20 verbally amended and agreed to.

Clause 21 (Quorum of Justices on appeals from State Supreme Courts).

Mr DEAKIN:
Protectionist

– If honorable members turn to clause 22, sub-clause (2), they will see that it is provided that the Appellate Jurisdiction of the High Court shall be exercised by a court “consisting of not less than three Justices.” Now that we have reduced the number of the Judges of the High Court to three, I propose to transfer sub-clause (2) of clause 22 to clause 21, with the omission of the words “consisting of not less than three Justices.” Thus transferred, the sub-clause will be associated with the other cases, wherein we provide that the court shall consist of not less than two Justices. I move -

That the following new sub-clause be added : - “(1) Applications for leave or special leave to appeal to the High Court from a judgment of the Supreme Court of a State, or of any other court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be heard and determined by a Full Court.”

Amendment agreed to.

Mr DEAKIN:

– In the same clause, after the words “judgments of the Supreme Court of a State,” the Committee inserted the words “ sitting as a Full Court or Court of Appeal.” I find that those last words may lead to some difficulty, and therefore I propose to omit them. I move -

That the words “or Court of Appeal” be omitted.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 22 consequentially amended and agreed to-

Clause 24 (Decision in case of difference of opinion).

Mr DEAKIN:

– There was originally a proviso to this clause which, at the suggestion of one of my honorable friends, I struck out. But on further consideration it will be seen that the proviso is needed, because where a point of law is simply raised before a single Judge of the High Court or of a Supreme Court, and he pronounces no opinion upon it, it would be unfair to consider him as having pronounced either one way or the other. . This proviso allows a Judge or a Justice when a question of law is raised upon which he does not feel it necessary to express an opinion to intimate that such is the case.

Mr Glynn:

– Suppose therearetwo Judges sitting, and they differ, who is to decide?

Mr DEAKIN:

– The senior Judge. I move -

That the following proviso be added : - “ Provided that in the last-mentioned case if the Justice or Judge whose decision is appealed from reports to the court that he desires that the matter shall be determined without reference to the fact that he has pronounced or given the decision, the opinion of the Chief Justice or senior Justice present shall prevail.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 28 and 32 verbally amended and agreed to.

Clause 34 -

The High Court may make orders …. requiring any court …. to abstain from the exercise of any pretended or asserted federal jurisdiction.

Mr DEAKIN:
Protectionist

– Attention has been called to the necessity for omitting the words “ pretended or asserted.” I intend to ask the Committee to omit them, and to insert in place of them, after the word “ jurisdiction,” the words “ which it does not possess.” I move -

That the words “pretended or asserted” be omitted, and that after the word “jurisdiction” the words “which it does not possess” be inserted.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 36 (Appeals from Supreme Courts of States).

Clause verbally amended.

Mr DEAKIN:

– The honorable and learned member for South Australia, Mr. Glynn, drew attention to the fact that we were apparently placing obstacles in the way of appeals. We may avoid that by removing the necessity of asking leave to appeal. I move -

That the following words be added “(2) It shall not be necessary in any case in order to appeal from a judgment of a court of a State to the High Court to obtain the leave of the court appealed from.”

Amendment agreed to.

Clause, as amended, agreed to.

Clause 38 verbally amended and agreed to.

Part VI. (Federal jurisdiction of States Courts).

Amendment (by Mr. Deakin) agreed to -

That the heading” Federal jurisdiction of States Courts” be omitted, with a view to insert in lieu thereof the words “Exclusive and invested Federal jurisdiction.”

Clause 41 -

  1. The jurisdiction of the High Court in matters not mentioned in the last preceding section shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section.
  2. The several courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subjectmatter, or otherwise, be invested with Federal jurisdiction in all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it, except as provided in the last preceding section, and subject to the following conditions and. restrictions : - (aa) Every appeal from a decision of the Supreme Court of a State, or any other court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be brought to the High Court.

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

Mr. GLYNN (South Australia). - I think it will be necessary to omit sub-clause (I), because we have amended the remainder of the clause so as to make it read as an express declaration that the Federal jurisdiction is vested in the courts of the Statessubject to the qualifications mentioned in the provisions which follow.

Mr Deakin:

– That is the old argument.

Mr GLYNN:

– Yes. Some honorable members, including the honorable and. learned member for Northern Melbourne, who, unfortunately, could not remain in. the Chamber, feel very strongly about it.

Mr Deakin:

– When the sub-clause was last before us, the honorable and learned member for Northern Melbourne rather agreed with it.

Mr GLYNN:

– He now wishes to have it omitted. On his behalf, I move -

That sub-clause (1) be omitted.

I agree with the view held by the honorable and learned member for Northern Melbourne that this provision is really unnecessary. The Attorney-General himself is in doubt as to whether it ought to be retained.

Mr Deakin:

– No.

Mr GLYNN:

– It was only for greater caution, in the circumstances, that the Attorney-General desired that it should remain.

Mr Deakin:

– Yes, but I had no doubt about the matter.

Mr GLYNN:

– It was only because of possible doubts, which he could not enumerate, that he desired its retention. The objection we have taken to this sub-clause is that to some extent it might operate so as to give, in regard to all the matters, not enumerated in this clause, exclusive jurisdiction to the High Court. We have jurisdiction of every kind conferred upon the States Courts in respect of matters not enumerated - and they are few - in clause 40, as amended, but if original jurisdiction were conferred on the High Court, under a separate Act, that jurisdiction would become exclusive under this proviso. It is really an addition to the exclusive jurisdiction of the High Court.

Mr Deakin:

– A bridge from the exclusive jurisdiction of the High Court to the States Courts’ jurisdiction.

Mr GLYNN:

– It might be more than that. The fear expressed by the honorable and learned member for Northern Melbourne was that this provision might so work, that original jurisdiction conferred upon the High Court would become exclusive.

Mr Deakin:

– It could not do so.

Mr GLYNN:

– Certain matters have been enumerated in clause 40 in respect of which the jurisdiction of the High Court is to be exclusive. We have also cut down other provisions in the Bill which give original jurisdiction to the courts of the Commonwealth, and we have conferred to-day upon the High Court one matter which was among those struck out on the previous occasion.

Mr Deakin:

– One very small matter.

Mr GLYNN:

– It is not mentioned in clause 40.

Mr Deakin:

– Exclusive jurisdiction is not given in regard to that matter.

Mr GLYNN:

– But the jurisdiction of the High Court would become exclusive under this sub-clause.

Mr Deakin:

– No.

Mr GLYNN:

– I should like to be convinced to the contrary. The honorable and learned member for Northern Melbourne did not explain to me his reasons for desiring the omission of the sub-clause ; but he is anxious that it should be struck out. In regard to any matters in which it has original jurisdiction, and which are not enumerated in clause 40, we deny exclusive jurisdiction to the High Court, but the effect of this sub-clause will be really to give it exclusive jurisdiction to deal with them.

Mr Deakin:

– That would be so if this provision stood absolutely alone.

Mr GLYNN:

– I see nothing in the subsequent part of the clause to destroy that. We confer exclusive jurisdiction, and we subsequently proceed to cut that out.

Mr Deakin:

– No ; we proceed only to transfer it.

Mr GLYNN:

– Why insert it if it is to be struck out. As the provision is ambiguous and unnecessary, why let it remain ?

Mr DEAKIN:
Protectionist

– I have no wish to accomplish any such purpose as that which the honorable and learned member for South Australia, Mr. Glynn, has just mentioned. On the last occasion that we discussed this matter, I understood that the honorable and learned member, and the honorable and learned member for Northern Melbourne, both expressed their doubt as to the wisdom of this sub-clause, because they failed to perceive what purpose it could serve. Being unable to see what purpose it would serve, they were rather apprehensive that there might be some occult influence exercised by it on some other parts of the Bill. Nothing of the kind is intended. This purely drafting sub-clause is, as I interjected just now, a bridge. To my mind its value was that it constituted a bridge from the position created by clause. 40 under which the High Court is given exclusive jurisdiction in regard to certain matters, to the sub-clauses under which the remaining Federal jurisdiction is given to’ the States Courts. If honorable members will read the whole clause, as amended, they will see that we could not make an ampler gift of Federal jurisdiction to the States Courts. The original paragraphs (a), (b), and (c) have been struck out, and a new provision takes their place. That being so, we escape the risk to which the honorable and learned member for South Australia has referred. He says rightly that under clause 40 exclusive jurisdiction is given to the High Court, and he asks why, if under the rest of clause 41 we give all the rest of the jurisdiction which is not exclusively vested in the High Court to the States Courts, subject to appeal to the High Court, we should require to interpose sub-clause (1) between these two gifts. My reply is, as it was on a previous occasion, that I wish to make it plain that the endowment of the States Courts in the latter part of clause 41 is derived through the High Court - that the judicial power of the Commonwealth is to be divided between the High Court and the States Courts. What the High Court will possess. is conferred upon it by the direct endowment of the Constitution and by this Bill. What the States Courts are to have is, by investiture under this Bill, through the High’ Court. Thus the High Court, by this first sub-clause, has conferred upon it absolutely the whole of the judicial power of the Commonwealth in the first instance, and then, by the rest of clause 41, that power, with the exception of that part of it which is made exclusive in clause 40, is immeadiately transferred to the States Courts. I hope I convey myself to honorable members, because I think the amendments we have made effectively meet the objections which the honorable and learned member for South Australia, Mr. Glynn, took to this clause in its original form. I confess that its operation was wide while paragraphs (<i), (6), and (c) remained. Under those paragraphs the High Court was given jurisdiction of a character which, so to speak, invaded the dominion of the States Courts. We had the decisions of inferior States Courts, or a Judge pf a Supreme Court, brought under compulsory appeal to the High Court. All that is gone. We have struck out those paragraphs, and the sub-clause which takes their place allows the High Court to deal only with appeals from the Supreme Courts of the States, and does not interfere with the rest of their jurisdiction. It is difficult now for honorable members to follow the clause as amended, but as soon as the Bill has passed through Committee I propose to present them with a clean print of the measure, which they will be able to consider upon the third reading. If they look at it now, they will see that the fears of the honorable and learned member for South Australia have been dissipated by the amendments which have been made. Sub-clause (1) is simply to act as a conduit pipe, so that the jurisdiction affecting the States Courts is conveyed to them through the High Court. That is to say, the whole of the judicial power of the Commonwealth is first vested in the ‘High Court, and then, with the exception of everything in clause 40, is vested through the High Court in the States Courts.

Mr Glynn:

– That is not the ‘ scheme of the Constitution.

Mr DEAKIN:

– I think it is.

Mr Glynn:

– The Government are conferring something by Act of Parliament, assuming what exists in the Constitution.

Mr DEAKIN:

– I am afraid we are. at cross purposes. Perhaps the honorable and learned member will inform me in what respect this provision is contrary to the Constitution.

Mr Glynn:

– It is not exclusive in the Constitution.

Mr DEAKIN:

– The judicial power is here first vested in the High Court, and under the Constitution we have absolute power to define the extent to which jurisdiction is to be exclusive in the High Court. This Parliament might vest the whole jurisdiction in the High Court.

Mr Glynn:

– How can it be in it if we have to invest this power by Act of Parliament 1

Mr DEAKIN:

– We define the extent of its jurisdiction ; and thus invest it. We might define it in such a way that the whole of the jurisdiction under sections 75 and 76 would be exclusively vested in the High Court.

Mr Glynn:

– How can we take it out of it if it is not in it ?

Mr DEAKIN:

– This is not a case in which we are seeking to do anything of the kind. We have the power of endowment by definition, and can use it to the full. I submit to my honorable and learned friend that sub-clause (I) as it now stands gives no occasion for the alarm which he formerly expressed. I have given its meaning in the illustration of the conduit pipe. It seems to me that in view of the immense powers with which we are endowing the States Courts - giving them the whole sweep of Federal jurisdiction, except as limited by clause 40, no longer making their minor courts- subject to the appeal to the High Court - there can be no complaint that we are restricting the gift to the Supreme Courts of the States by this sub-clause. It does not limit our gift to them in the slightest degree. It only shows the source from which the gift is derived - the judicial power of the Commonwealth flowing te the States Courts through the High Court. This is of importance as a matter of drafting. It does not deprive the Supreme Courts of the States of anything, and it does not finally endow the High Court with anything more than is provided for in clause 40. It puts in a clear light the important fact that the whole of the judicial power of the Commonwealth is vested either in the High Court or in the States Courts, and that whatever is not provided for in clause 40 is vested in the States Courts mediately.

Mr. GLYNN (South Australia).- I still think that the sub-clause should be omitted, and I do not agree with the AttorneyGeneral’s reading of the Constitution. He acknowledges that the clause as originally drafted was faulty. Asa matter of fact, it did not confer any jurisdiction on the States Courts, although it may have been intended to do so.We have now altered it so as to confer concurrent jurisdiction on the courts of the States subject to the qualifications mentioned in the subsequent part of the clause. The Attorney-General desires to make it clear that the whole power through which this jurisdiction comes is the High Court. The Constitution does not establish that. Section 71 of the Constitution declares that -

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other courts as it invests with Federal jurisdiction. . . .

Every one of the courts are conditioned by by the terms of the grant. The High Court, when established, must have the judicial power, but not necessarily in its fullness.

Mr Deakin:

– It may.

Mr GLYNN:

– But it may not. There is nothing in that section alone to say that the grant of the jurisdiction is conditional. The same thing applies to the courts of the States. There are, however, subsequent sections of the Constitution which prescribe the conditions under which this jurisdiction is to be vested. The difference between the High Court and the other courts simply amounts to this : that the judicial power is given to the High Court by the Constitution and to the other courts by Act of Parliament, but in any case the conditions and the extent of its exercise are to be prescribed by Act of Parliament or are set forth in other sections of the Constitution. There are no other sections of the Constitution that give the whole judicial power to the High Court. As a matter of fact, section 75 says it does not belong to it, because it enumerates certain special matters in which it is to have original jurisdiction, but not exclusive jurisdiction. This clause declares that in all matters not enumerated in clause 40, the whole jurisdiction is not to be merely in the High Court, but exclusively in the High Court.

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

– What matters would those be under this Bill?

Mr GLYNN:

– It is a wide net, to which I think we should not agree. As I have pointed out, an action by a State against a State, or by the Commonwealth against a State, is to be taken in the High Court, according to an amendment agreed to today, and that becomes exclusive under this provision.

Mr Deakin:

– No;

Mr GLYNN:

– It is open to argument that it may become exclusive. I object to these wide nets, and we cannot at the present moment clearly define what is likely to be included within the comprehension of this clause.

Mr Isaacs:

– Does not the honorable and learned member see that it may prevent a series of vexatious and expensive appeals in the States Courts?

Mr GLYNN:

– lean see that the latterportionof the clause gives concurrent jurisdiction in matters not mentioned in clause 40, and if that be so, why should we say that in all matters not mentioned in clause 40 the jurisdiction is to be exclusive in the High Court?

Mr Isaacs:

– Because it might include appellate jurisdiction, and this would prevent a series of appeals all the way up to the final appeal to the High Court.

Mr GLYNN:

– The Attorney-General has notgiven that reason. The honorable and learned gentleman does not rely upon that. His contention is that the whole jurisdiction belongs to the High Court, and that the jurisdiction given to the States Courts is a grant from the High Court, and not from Parliament.

Mr Isaacs:

– That is involved in what he says.

Mr GLYNN:

– It is rather involved, if it is in what the honorable and learned gentleman says. I admit that the AttorneyGeneral is always clear, “but his cases are not necessarily so. I have no desire to labour the point, but the honorable and learned member for Northern Melbourne would speak very strongly upon it if he were here.

Amendment negatived.

Amendment (by Mr. Deakin) proposed -

That, after .the words “ shall be,” paragraph (a), the following words be inserted : - “ final and conclusive, except so far as an appeal may be.”

Mr. GLYNN (South Australia.)- The honorable and learned member for Northern Melbourne suggested an amendment upon this proposal. When the matter was previously under consideration, he argued that under the wording proposed it might be said that State matters as well as Federal matters were included, as it might include every decision of a Supreme Court of a State.

Mr Deakin:

– There is a limitation in the covering words, “ if invested with Federal jurisdiction.”

Mr GLYNN:

– I rather think there is, but I promised, in the absence of the honorable and learned member for Northern Melbourne, to mention the matter again. He was of opinion, and upon examination his opinion was not shaken, that unless we inserted words to this effect, “involving a matter of Federal jurisdiction,” it might be held that this sub-clause refers to State jurisdiction as well as to Federal jurisdiction.

Mr Deakin:

– But we are only investing the courts with Federal jurisdiction ; we could not invest them with anything else.

Mr GLYNN:

– I rather agree with the Attorney-General, but I remind the Committee that the honorable and learned member for Northern Melbourne was of that opinion.

Amendment agreed to.

Amendment (by Mr. Deakin) agreed to.’

That the words “ shall lie,” paragraph (d), be. omitted, with a view to insert in lieu thereof the words “ may be brought.”

Mr. GLYNN (South Australia.) - I think this sub-clause was carried only by one vote on the last occasion, and there were some honorable members absent who would have voted with those who opposed it, had they been present. If the matter is to be again decided, as some honorable members are anxious it should be, that should be done now.

Mr McCay:

– How can we decide it until we have a clean print of the Bill as amended 1

Mr GLYNN:

– I only mention the matter now, though I do not wish to have it decided unless there is a full attendance of honorable members.

Clause, as amended, agreed to.

Clause 45 -

  1. Any cause or part of a cause involving a matter of Federal jurisdiction which is at any time pending in any court- of a State, may at any stage of the proceedings before final judgment be removed into the High Court under an order of the High Court, which may, upon the application of any party for sufficient cause shown, be made on such terms as the court thinks fit, and shall be made as of course upon motion in open court by the Attorney-General of the Commonwealth or on his behalf.
Mr DEAKIN:
Protectionist

– In dealing with this power of removal of a cause involving a matter of Federal jurisdiction, we agreed that it should be cut down to causes arising under the Constitution, or involving itsinterpretation, and this only by special leave. I moye -

That the words “involving a matter of Federal, jurisdiction,” lines 1 and 2, be omitted, with a. view to insert the words “ arising under the Constitution or involving its interpretation.”

Amendment agreed to.

Amendment (by Mr. Deakin) proposed -

That, after the word “State,” line 3, the words- “ on appeal “ be inserted.

Mr McCAY:
Corinella

– It ‘was upon my suggestion, I think, that these wordswere to be inserted, but I would ask the Attorney-General whether they may not be more general than he intends them to be for exactly the same reason as has been given for the amendment to which we have just agreed.

Mr Deakin:

– I think not.

Mr McCAY:
CORINELLA, VICTORIA · PROT

– Would these words “on appeal “ include an appeal to general sessions, from petty sessions t

Mr Deakin:

– No. It is an appeal tothe High Court.

Mr McCAY:

– It does not necessarilymean that. It may mean an appeal from one court to another court of a State, and it might then be removed into the High. Court.

Mr Deakin:

– Or it might mean that when it was concluded in the Supreme Court it might be removed into the High Court.

Mr McCAY:

– Would not these words “ on appeal “ include an appeal from petty sessions to general sessions on a matter involving Federal jurisdiction ? The Bill is now altered to cases “arising under the Constitution or involving its interpretation “; but even then it might be as I suggest. I do not think it is intended that we should allow a transfer from one in,ferior court to another inferior court to be regarded as an appeal within the meaning of this clause.

Mr Isaacs:

– Was it not intended to make one appeal only, to prevent a multiplicity of appeals ?

Mr McCAY:

– An appeal from petty sessions to general sessions may be an appeal upon facts as well as upon law, whereas the other appeal is only on questions of law, and the facts are not re-heard.

Mr Deakin:

– They, require special leave. I now recollect that that was intended.

Mr McCAY:

– Perhaps as the difficulty would not be likely to arise in practice, it is not worth while pressing the matter.

Mr GLYNN:
South Australia

– I think the Attorney-General has not quite carried out the suggestion which was made. I understood the honorable and learned gentleman to promise that this amendment would be limited to questions arising under section 74 of the Constitution, where the constitutionality of a statute is involved.

Mr Deakin:

– No.

Mr GLYNN:

– I remember, perfectly, suggesting that it should be limited to cases arising under section 74, where the constitutionality of a statute is involved.

Mr McCay:

– This is what the AttorneyGeneral promised.

Mr GLYNN:

– I do not think it matters very much. I know I referred to causes arising under section 74, but perhaps the honorable and learned member for Corinella went further:

Amendment agreed to.

Amendment (by Mr. Deakin) agreed to -

That the words “ upon the application of any party for sufficient cause shown be made on such terms as the court thinks fit, and shall be made as of course upon motion in open court by the Attorney-General of the Commonwealth, or on his behalf,” lines 6 to 11, be omitted, with a view to insert in lieu thereof the words “for special cause shown upon application by any party, or by, or on behalf of, the AttorneyGeneral of the Commonwealth or of a State, be made on suchterms as the court thinks fit.”

Clause, as amended, agreed to.

Clause 55 -

  1. Any person entitled to practise as a barrister or solicitor, or both, in any State, shall have the like right to practise in any Federal Court.
Mr McCAY:
Corinella

– I know that the honorable and learned member for Bendigo desired to bring under the consideration of the Attorney-General, in connexion with this clause, a point raised the other day as to whether we should not add to sub-clause (1), of clause 55, the words “or court exercising Federal jurisdiction.” Of course that would be practically declaring that there shall be a right of the amalgamation of the legal profession in all courts exercising Federal jurisdiction.

Mr Deakin:

– We have given it in the case of the Federal Courts, and the honorable and learned member for Bendigo desired that the right should be extended in all courts exercising Federal jurisdiction.

Mr McCAY:

– I point out to the Attorney-General that in clause 56 we give this right to the Crown Solicitor. Personally I am rather doubtful whether wehave the power to amalgamate theprofessions or make rules to enable legal practitioners to appear before the States Courts exercising Federal jurisdiction. The Supreme Court of a State, for example, may say to a legal practitioner “ Who are you, sir ?” He may reply “ I am so-and-so ; a practitioner of such a State ; and I am appearing before you. as a court exercising Federal jurisdiction.” The court might very well say, “ We are the Supreme Court of this State, and we have our own rules as to the practitioners who may appear before us, and how they may appear.” How is the Attorney-General to get the Crown Solicitor out of the dilemma any more than any other solicitor?

Mr Deakin:

– By the courtesy of the courts.

Mr McCAY:

– I do not think that the question can be settled by the courtesy of the courts. Take a suit, for instance, in the Supreme Court of Victoria. There are rules by which the parties may enter an appearance by their solicitors, and give addresses for services, and so on. A solicitor who is not on the register of the court cannot get on the record as the solicitor for a party; and, if we have not the power to enact this provision, how can the Crown Solicitor as the defendant’s solicitor get on the record of a court of which he is not a practitioner? Either we can tell the States Courts that it is a condition of their exercise of Federal jurisdiction that they shall hear any one who is enrolled on the register of the High Court, or we can leave the matter to the discretion of the States Courts. I do not feel sufficiently clear on the point at present to express a decided opinion either- one way or the other ; but I think it is desirable, for the sake of uniformity, to assert the power entirely or not at all. For many years my opinion has been that it should be left optional to persons who have qualified as lawyers to practise in either branch of the profession, or in both, as they chose. I should like to see the clause amended by the addition of the words “ or courts exercising Federal jurisdiction.”

Mr ISAACS:
Indi

– There is a great deal in what the honorable and learned member has said. It is not at all certain that we have this power ; but if the Committee think that it ought to be done, I see no reason why it should not be done. After full consideration, I think that Federal jurisdiction should be treated as Federal jurisdiction wherever it is given. We might assume this power by virtue of the 39th sub-section of section 51 of the Constitution, which authorizes the Parliament to legislate with respect to -

Mutters incidental to the execution of any power vested by this Constitution in the Parliament, or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

By the term- “ Federal Judicature “must be meant any of the courts which are included in the “ Judicature “ chapter of the Constitution, and the words “courts exercising Federal jurisdiction “ must include the States Courts, in so far as they are vested with Federal jurisdiction. I think that when we are exercising the power of investing these courts with jurisdiction, we not only have the liberty to say that justice shall be administered by the States Courts in these matters ; but we may prescribe the conditions under which that jurisdiction may be exercised - prescribe amongst other things who may appear before the courts to urge the claims of litigants. In that case we can certainly prescribe other matters, and we have done so. We have not left it entirely to the practice of the States Courts. We have dealt with the right of appeal, which is a much more serious matter, and we ought not to lightly concede our inability to deal with this matter. If it is thought by the Committee that it is a desirable thing to do, we ought to proceed to enact it.

Mr DEAKIN:
Protectionist

– In considering this question, J came to the conclusion that the 39th sub-section of section 51 of the Constitution was the only ground we could have for the exercise of the power, but felt that as it was not conveyed in express words, and as it would have to be deduced from that general authority it might be open to some doubt - at all events it would probably be contested, and in my opinion it would be undesirable to challenge a decision on the question, until our legal system is a little more developed. There is some ground for considering that the Crown Solicitor occupies officially a special position. Unless we are enabled to authorize him to appear in any matter of Federal jurisdiction, we should be confessing our inability to appear in the courts of the States except through private practitioners. His case is much stronger than that of any other person, because the Crown is compelled to appear in every State, and unless it is to appear by six different persons it must appear by some person qualified to appear on its behalf. While relying on the 39th sub-section as the authority for the proposed grant of power to the Crown Solicitor, I admit that it would also be on that sub-section I should rely if seeking to extend the operation of the clause as suggested. But, for the reasons given, it is undesirable at present to take that course. Other solicitors are under no new disability. Although it ‘ might be to the public advantage, as well as their own, that they should freely appear in all courts of Federal jurisdiction, it would certainly occasion difficulties. It would certainly be challenged, and it is unwise to proceed to evoke that challenge at the present time.

Mr. McCAY (Corinella). - I do not agree with the view of the Attorney-General. . I do not think it is likely to evoke any tremendous storm. I think that there are other greater storm-compelling elements to be found in our legislation. I intend to test the feeling of the Committee. I move -

That, after the word “court,” the following words be inserted : “ and in any court when exercising Federal jurisdiction.”

Mr THOMSON:
North Sydney

– From what the legal members have put before us we are able to judge of the effect of this amendment. In the first place they have not felt sure of their own ground ; they have expressed very grave doubt as to the legality of what is proposed. In the first years of our legislation we should be satisfied as to the legality of any action which it is proposed to take. In the second place honorable and learned members are trying to force on the States generally conditions which some of them have hitherto rejected. I think it is very undesirable to force certain practitioners into the courts of the States even when those courts are exercising Federal jurisdiction. We should stay our hand until our judicial system has been tested, and then if it is desirable we can make the provision which is now suggested. At this stage such legislation is sure to meet with resistance and to cause irritation in some of the States. It would be much better to wait until we shall have gained some experience before we enter on the course proposed by honorable and learned members, who seem very uncertain as to our right to exercise this power.

Mr E SOLOMON:
FREMANTLE, WESTERN AUSTRALIA · FT

– I rise to support what was said by the honorable member for North Sydney. I think that if there is any doubt as to the legality of what is proposed, we had better not pass it. Last session, in dealing with the Customs Bill, we passed a clause which the honorable and learned member for Indi at the time said was in conflict with the provisions of the Constitution, and since the Bill became an Act the matter has been brought before the Victorian Court, and the point again, and successfully, sustained by the same honorable and learned gentleman.

Mr Crouch:

– The decision was reversed by the higher court.

Mr. McCAY (Corinella).- I hope that the Attorney-General will accept the amendment. Referring to the remarks of the honorable member for North Sydney, I think that so far as the legal aspect of the question is concerned, the matter is one upon which this Parliament is competent to legislate. As’ to the expediency of the course proposed, I would point out to the honorable member that what is suggested will not bring about the amalgamation of the two branches of the legal profession in opposition to and against the wishes of the Parliaments of some of the States. All that is proposed is that legal practitioners who are citizens of the Commonwealth, and qualified to appear before some one of the States Courts, shall have the right to appear, not only in the High Court, but in a State Court when a Federal case is being heard there. The original jurisdiction, and therefore the work, of the High Court has been very much reduced by the determination of the Committee to largely utilize the States

Courts for the exercise of the Federal jurisdiction. That is a new jurisdiction which has been conferred upon them, and, in vesting it iti them we make them, for the purposesof that jurisdiction, Federal Courts. Surely a man who might appear in the High Courtshould be able to appear in a State Court when that court is exercising its Federal jurisdiction. The proposal seems to me so reasonable that I cannot see why the. Attorney-General will not agree to it.

Mr Deakin:

– It is quite reasonable.

Mr McCAY:

– Then the honorable and’ learned member thinks that the adoption of the amendment is inexpedient, because the States might regard it as an invasion of their privileges 1

Mr Deakin:

– I think they would so regard it.

Mr McCAY:

– I understand that the Attorney-General’s argument is that, although the amendment may be a perfectly lawful one to pass, it would unnecessarily interfere with the conduct of affairs in States Courts. But, as I have pointed out, when the States Courts are exercising Federal jurisdiction they are, for that purpose, Federal Courts. The Constitution which binds both the Commonwealth and the States provides that this Parliament may, if it chooses, turn the States Courts into Federal Courts for Federal purposes. Consequently no offence can reasonably be taken if we say that our rules as to who shall practice in the Federal Courts shall apply as to whoshall practice in the States Courts when thosecourts, are exercising Federal jurisdiction.. It may be said that this provision will allow persons to practice in the States Courts who could not practice there now, and that is so. But we are empowering those persons to appear, not in the States Courts,, in their present jurisdiction, but in the States Courts in their Federal jurisdiction.

Mr Deakin:

– Does not the honorable and learned member think that the adoption of the amendment would occasion friction? ‘

Mr MCCAY:

– Does the AttorneyGeneral suggest that if a Western Australian practitioner appears before a Queensland Court, while it is exercising Federal jurisdiction, the Queensland practitioners will feel hurt at the unwarranted intrusion of a stranger 1

Mr Isaacs:

– The suit might be one be: tween a person residing in Western Australia and a Queenslander.

Mr McCAY:

– I am much obliged for the illustration. In a matter of considerable importance, a Western Australian suing a Queenslander in a Queensland Court might wish to take one of his legal advisers with him to Queensland to see that his case was properly prepared there. Without the proposed amendment, the litigant would have to employ another set of legal advisers in Queensland. There is some reciprocity, though it is far more imperfect than it should be, between the States now, but I should like to see matters so arranged that lawyers, like doctors, could practice anywhere within the Commonwealth if they could find clients to support them. The only complaint against the practice which might arise if the proposed amendment were carried is the complaint which might be made by lawyers, who would say - “ Here is a case being conducted in our court by a barrister from another State, which, but for the provision in the Judiciary Act, would have had to go to one of ourselves.” The Attorney-General, however, knows that such a thought would never enter the mind of a legal practitioner in any of the States, and the honorable and learned gentleman’s wellknown suavity is sufficient warrant to the States that there is no possible cause of offence in the provision.

Mr Deakin:

– At what stage would the court be sure that the matter was one coming within its Federal jurisdiction? The fact might not appear in the statement of claim, and might not be known until the defence was filed.

Mr McCAY:

– That seems to me the only case in which doubt could arise. In such acase a plaintiff would not think it desirable to bring in a practitioner from another State.

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

– And a practitioner would not be sent from one State to another merely to issue a writ.

Mr McCAY:

– No. A litigant would notrequire totake his legal adviser from one State to another merely to conduct the first formal steps in his case, but “he might wish the lawyer who had prepared the case in one State to conduct it for him in the Supreme Court of another State. I think that if we passed the amendment it would set a good example to the States, and go a long way to insuring reciprocity’ in this and other matters. The legal profession is the only one which has preserved the InterState barriers. The Constitution provides that trade and intercourse amongst the States shall be free, and it is free in regard to most matters. In this instance we have an opportunity of making it free in regard to matters of Federal jurisdiction.

Mr. ISAACS (Indi).- I wish to point out to the Attorney-General that new- clause 17, to which the Committee has agreed tonight, requires the introduction of a provision such as this. When a case is commenced in the High Court, any qualified practitioner may conduct it, and may appear in any application to a Justice of the High Court sitting in Chambers. But power to hear an application in any matter pending in the High Court, in which the High Court has not exclusive jurisdiction, is also given under the clause to a single Judge of a Supreme Court sitting in Chambers. Is it intended, then, that a practitioner who could appear in an application which was being proceeded with in a normal way before a Justice of the High Court could not appear in the same case in an application made before a Judge of a Supreme Court ? If that is so, a clause which was intended to facilitate the progress of suits might actually impede progress, because a practitioner might be debarred from making an application to a J udge of a Supreme Court when that would be simpler, more expeditious, and cheaper than to go before a Justice of the High Court.

Mr GLYNN:
South Australia

– I was rather puzzled at first as to which side to take upon this question, and was impressed by the remarks of the honorable and learned member for Corinella; but, having considered the matter further, I think that more inconvenience would result from passing the amendment than from leaving the clause as it stands. It could scarcely be contended that, because an Act of local application is an Imperial Act, and must be regarded if cited in an Australian court, Imperial barristers should be allowed to practise before Australian Courts. That being so, I cannot see why the fact that a Commonwealth Act is cited in a Supreme Court should give the right to a practitioner to appear in that court.

Mr Isaacs:

– There is no Imperial Act which confers upon Australian Courts the jurisdiction to hear Imperial cases.

Mr GLYNN:

– There can be no question that the Imperial Parliament has the right to do that, but, for the purposes of the honorable and learned gentleman’s argument, we have to assume that sub-section (39) of section 51 of the Constitution gives this Parliament similar power. That, however, is extremely doubtful. The sub-section refers to matters which are really necessary to enable us to fulfil the purposes of the Constitution, but it cannot be stated that the extension of the rights of legal practitioners in the manner suggested is necessary to give effect to our legislation. The proposed practice would be attended with great inconvenience. Suppose a practitioner were not struck off the rolls of the State Court in which he was admitted, what power would there be in the court of another State, acting merely in its Federal capacity, to prevent that practitioner from appearing before it t

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

– The practitioner’s right to appear in any court of Federal jurisdiction would cease when he was struck off the -State roll.

Mr GLYNN:

– My point is that the court of the State in which the practitioner appeared would have no power to strike him off the rolls. Only the court of the State in which he was admitted to practice or the High Court would have any control over him. Suppose for instance a practitioner in Western Australia appeared in a South Australian Court exercising Federal jurisdiction? Unless the High Court or the Western Australian Court struck him off the roll ‘ he could still appear, although he might have been guilty of conduct which would lead to his being struck off the roll if he were a South Australian practitioner ? By making the amendment proposed by the honorable and learned member for Corinella, we shall place it beyond the power of some of the courts in which lawyers are entitled to practise to say whether they shall continue to be practitioners or otherwise.

Mr Isaacs:

– If a practitioner does wrong in his own State, he can be dealt with by the State Court, and if he misconducts himself in acourt of Federal jurisdiction the High Court oan strike him off.

Mr GLYNN:

– Yes; but the question whether he shall be struck off may not rest with the court in which he is practising. It is proposed to allow a practitioner to go into another State, the court of which can exercise no control over him.

Mr Isaacs:

– That would be an inferior Federal Court.

Mr GLYNN:

– No ; it would be a State Court which had been invested with Federal jurisdiction, and of which we were availing ourselves.. There will also be inconveniences in regard to the differing States laws. Practitioners may have no knowledge of the laws of any State beyond their own, and although they are to be allowed to appear before the courts of another State only when such courts are exercising Federal jurisdiction, the whole range of the local laws may be involved. I might point out; also, that under the Bill it is proposed to adopt the procedure of the States Courts of which practitioners from other States will, in nine cases out of ten, be quite ignorant. I am sure it will be safer not to make the proposed amendment, because it will call forth some remonstrance from the States Courts.

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

– I support the position taken up by the Attorney-General; although my sympathiesare very largely ‘ with the honorable and learned member for Corinella, and the honorable and learned member for Indi. .1 agree with them that admission to the Bar of one State should be sufficient to enable a man to practice in any court of the Commonwealth ; but, unfortunately, we know that very different conditions exist in the States with regard to examinations before admission to practice is granted. In Queensland we have barristers and solicitors, and at the same time an Act is in force which enables barristers and solicitors to practice in either capacity. In “Victoria they have their own method ofadmission, and unfortunately the high educational test applied in that State has had the effect of excluding Victorians from the Queensland Courts* Whilst this test insures a training that is undoubtedly the best to be obtained in any of the States, it is the only bar to complete reciprocity amongst the States. As a legal practitioner goes from State to State separate fees have to be paid, but no other obstacle is put in the way. We admit to practice in Queensland any one who has qualified in any other State upon the same terms as those upon which Queensland practitioners are admitted in the State of which the applicant is a practitioner. It is. this condition which excludes Victorians from practising in our- courts. Many Queenslanders came to Victoria to be educated, and found that owing to the want of reciprocity between the States they could- not be admitted to practice in their- own State until a special rule of court was adopted to meet the difficulty. Between Queensland and New South Wales the utmost friendly feeling exists. About two years ago the Attorneys-General of the States made an effort to bring the qualifications for practitioners into line and to provide for reciprocity, extending not only to the Federal Courts but to the States Courts, and I do not think it is desirable on our part to make any attempt to accelerate that movement by a Federal enactment.

Mr McCay:

– My proposal would not interfere with it.

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

– No. But it will have the effect of exercising statutory power to promote a movement which will come about in its own good time, if we leave it alone. I do not think it expedient at this stage to interfere, because if we do it will cause a certain amount of friction, and induce the belief that we are endeavouring to invade certain State privileges. I believe that this discussion will do a great deal to promote uniformity of practice and complete reciprocity.

Mr CROUCH:
Corio

– I shall support the amendment proposed by the honorable and learned member for Corinella. Not long ago an honorable member coined the phrase, “ One Tariff, one economic area,” and in my opinion we should have “ One Federal jurisdiction, one Federal practitioner.” I understand the honorable and learned member for South Australia to argue that a Queensland lawyer misconducting him.self before a New South Wales Court of Federal jurisdiction would be entirely beyond the control of such court. I am not impressed by that argument, because the court in which a legal practitioner is admitted looks at his actions not only whilst he is practising within its jurisdiction, but at all times and in all places, and always has the right to correct him or strike him off the roll. We are told that if the amendment is carried we shall be invading State rights, but I submit that the whole of our actions under the Federation have involved an invasion of State rights. Federation, to the extent that it creates a Federal jurisdiction, takes away from the previous rights of the States. We have taken up and gathered together certain common rights that existed separately in the States, and we are exercising them for Federal purposes. We are entitled when investing States Courts with Federal jurisdiction, to make it a condition that every lawyer in Australia shall be entitled to practise before them. I do not attach any importance to the argument that we shall cause friction by adopting the proposal, because we are told that what we are now seeking .will be brought about some day, and probably within a very short time. . There is no -time like the present, and in any case we cannot avoid friction. The sooner the friction arising from the creation of the High Court, and the exercise of its jurisdiction is at an end, the better it will be for the whole community. I trust that the amendment will be accepted.

Mr. THOMSON (North Sydney).- I am rather surprised at this proposal to establish free-trade in law. I am not one of those who would oppose legal reciprocity between the different States, but I would point out that in the past they have had every opportunity to extend that reciprocity, and with the exception of Victoria have done so pretty freely. I believe that reciprocity will come.

Mr Isaacs:

– The Victorian Act provides for reciprocity.

Mr THOMSON:

– In effect it does not. There is not reciprocity between the Victorian Bar and the other States.

Mr Isaacs:

– - The reason is that in Victoria the profession has been amalgamated, and New South Wales will not recognise us because there the profession is not amalgamated.

Mr THOMSON:

– The adoption of a uniform system is no doubt very desirable. But is it wise for us to attempt to enforce it by a Federal Statute ?

Mr Isaacs:

– Under this clause we do not interfere with State jurisdiction.

Mr THOMSON:

– What is proposed is an extension of the Bill as it ‘ was drafted by the Attorney-General. But why, I would ask, do the supporters of this proposal stop short at the Commonwealth ? To be logical they should extend its provisions to New Zealand and Great Britain.

Mr Isaacs:

– We cannot legislate for New Zealand.

Mr THOMSON:

– We can legislate to admit their barristers to our courts. The honorable and learned member for Corinella drew a touching picture of a litigant in Western Australia who desired to proceed to Queensland and to take a barrister with him from his own State.

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

– A touching picture 1

Mr THOMSON:

– It was an extremely touching picture considering that the client would have to pay the travelling expenses, as well as the fees, of the barrister. Let us suppose that a resident of New Zealand having an action under Federal jurisdiction, desired to bring a barrister with him from that State. If the argument of the honorable and learned member for Corinella is a good one, the clause should be extended to provide for such a case as I have indicated. But my own idea is that when we are introducing so many changes, we ought to endeavour to create as little friction as possible in the different States. We ought not to engender animosities between influential persons in the various States - animosities which will add to the discontent that has naturally been created by the numerous changes effected. It would be much better to leave the Bill in the form in which it was drafted by the Attorney-General, in the hope that the States themselves will adopt uniform legislation and consequently bring about mutual reciprocity.

Question - That the words proposed to be inserted be so inserted - put. The Committee divided.

AYES: 22

NOES: 23

Majority … ….. 1

AYES

NOES

Question so resolved in the negative.

Amendment negatived.

Clause agreed to.

Clause 58 (Registrars).

Amendment (by Mr. Deakin) agreed to-

That the word “January “ be omitted, with a view to insert the word “July”

Clause, as amended, agreed to.

Clause 64 (Indictments).

Mr DEAKIN:
Protectionist

– The honorable member for Kennedy has presented a new sub-clause, which he desires to move in an amended form. I think the Committee may accept it, with a view to seeing how it will look when we consider a clean print of the Bill. The provision, as it is proposed to amend it, and which I now move, will read as follows : -

Any person committed for trial for an indictable offence against the laws of the Commonwealth may at any time within fourteen days after committal, and before the jury is sworn, apply to a Justice in chambers, or to the Supreme Court of a State, for the appointment of counsel for his defence. If it be found to the satisfaction of the Justice or court that such person is without adequate means to provide defence for himself, and that it is desirable in the interests of justice that such an appointment should be made, the Justice or court shall certify this to the Attorney-General, who may, if he thinks fit, thereupon cause arrangements to be made for the defence of the accused person.

Mr Poynton:

– Why say “ may “ cause arrangements to be made? Why not substitute the word “shall?”

Mr DEAKIN:

– Because such a provision would involve an unknown expenditure. In agreeing to the amendment in the form I have indicated, I am taking a long step in advance of any similar legislation in Australia, and am a little doubtful whether it may not be abused.

Mr Page:

– The Attorney-General could say that in reference to every law.

Mr DEAKIN:

– That is so, but it is applicable to this proposal more than to most. We have a double safeguard, inasmuch as, first of all, the Judge or court must be satisfied that the accused is without means, and that it is a case which ought to be defended, and then, should anything be subsequently discovered, the AttorneyGeneral has the opportunity, if he takes the responsibility, of saying that in spite of the recommendation made the man shall not be allotted counsel. There is no doubt that the cases in which this privilege islikely to be applied for and granted will be of some moment, not only to the individual, but to the Commonwealth, seeing that they may involve sittings of some days’ duration and consequent expense. This is a new proposal for Australia, and if it proves to work well, either in this form or as it may be amended, it will be easily possible to extend its operation afterwards. We shall probably see very few criminal cases for years to come, but it is undesirable that, in consenting to accept liability for persons indicted, we should commit the revenue of the Commonwealth to unknown expenditure.

Mr Isaacs:

– Does the provision apply to offenders, no matter how often they may have been convicted ? /

Mr DEAKIN:

– At present the provision does so apply.’

Mr Isaacs:

– It only shows the necessity of allowing some discretion.

Mr DEAKIN:

– The Attorney-General will exercise discretion, and in the case of an offender who has been convicted three or four times the privilege is not likely to be granted.

Mr O’Malley:

– A - A man who has been presented three or four times for offences may require more defending than any one else.

Mr DEAKIN:

– I am sure the Committee will be unanimous in the opinion that, because of poverty, a man charged with a serious offence must not be subject to any injustice. If a man can satisfy the court or Judge and the Attorney-General that it is in the interests of justice he should be defended at the expense of the Commonwealth, he ought to be so defended.

Mr CONROY:
Werriwa

– The provision as amended in the way suggested by the Attorney-General is, perhaps, not so objectionable as it appeared before. I would point out, however, that if a man were presented three or four times, his counsel or attorney could under the sub-clause very readily extend the case over three or four days, and, further, in cases where the persons charged were palpably guilty, we should never have them pleading guilty. In this way the time of the court might be wasted ; but I think that, with the safeguards proposed, the clause might be allowed to pass. I cannot say I am much in favour of the provision, seeing that in ‘difficult cases, even at the present time, where hardship is likely to occur, an accused person is by custom allotted counsel.

Mr Deakin:

– In capital cases.

Mr CONROY:

– In capital cases it is certainly the custom to assign somebody to defend an accused.

Mr Mahon:

– The honorable and learned member for Werriwa has well said “ somebody,” because it is generally the youngest junior at the Bar who is assigned.

Mr CONROY:

– It is a matter of expense. It must be remembered that a man generally has an opportunity of making some defence in the court below, and if he does not avail himself of that opportunity it is generally because he has not an adequate defence.

Mr McDonald:

– What about a man who is locked up and has no opportunity of getting evidence outside 1

Mr CONROY:

– In the police court an accused is allowed to call evidence on his own behalf, though it is true the case is not the settled if there be what is called a prima facie case. Money is not spent simply to get a man convicted, and in nine cases out of ten the accused is already at war with the Commonwealth, which is merely the representative of law and order.

Mr McDonald:

– A provision of the kind is called for if only one innocent man be convicted.

Mr CONROY:

– In taking care of the innocent man we must not allow ten times the injustice to take place in regard to guilty men. Uncertainty of punishment leads to multiplicity of crime, and the chief object to be aimed at is sure detection, which enormously lessens the number of offences. The experience cf all men who have studied the question is that there ought to. be certainty, even if the punishment which follows is inadequate, it being found in all countries that an increaseof crime is the result of any chance of escape from prosecution or punishment. AsI have said, however, I think the safeguards suggested are sufficient, and that the provision as amended may be accepted.

Mr KIRWAN:
Kalgoorlie

– I understand that the Attorney-General intends to re-draft this clause, and, if so, he ought to remember that it is intended for men who are quite ignorant of the law, and who have no money to provide for their defence. Even educated men very often know nothing whatever about the law, and it is very probable that an ignorant man may be perfectly unaware of the power given by this Bill. I have already quoted from a Bill which is at present before the

British House of Commons,’ and which provides that a person accused shall be supplied with a printed form, informing him of the steps he may take in order to have himself defended at the public expense. How is the average man to know how to apply to a Judge in Chambers 1 I suggest that some words should be added to the clause providing that an accused person shall be notified of the steps he may take in order to have the necessary application made. No similar provision is in force in any of the States, and some time must elapse before the public become acquainted with the provisions of this Bill.

Mr O’MALLEY:
Tasmania

– I I hope that the suggestion of the honorable member for Kalgoorlie will be acted upon. It is a very serious matter to be arrested in a British country, because, from that moment, the unfortunate accused is regarded by the community as already condemned. The bars, gaols, policemen, and Judges in gowns are enough to frighten the life out of an ordinary man ; and we desire to prevent the possibility of an innocent person being convicted. Unfortunately the police desire to get convictions, and there is no hope for a man who is once captured, unless he be a millionaire. In the latter case there is no hope of getting him into gaol. Why should a man not be able to personally apply to a Judge in Chambers under this clause ?

Mr Kirwan:

– I desire a clause similar to that which is found in the British Bill.

Mr Deakin:

– I hope to have an opportunity of seeing that clause.

Mr MCDONALD:
Kennedy

– Personally I am inclined to accept the provision as amended by the Attorney-General. I regard the sub-clause as amended as a very fair compromise. .

Mr Deakin:

– It is a very great advance on any law in Australia.

Mr MCDONALD:

– The provision is, as the Attorney-General says, greatly inadvance of anything attempted prievously in this direction, and I think the sub-clause ought to be allowed to pass in its amended form. At the same time I quite agree with the honorable member for Kalgoorlie ; indeed, I should have liked the provision to go much further. I should have liked to see a public defender appointed, but I realize that with such an official there would have to be power to engage detectives and other officers in order to work up the case on behalf of an accused person. I differ entirely from the honorable and learned member for Werriwa in that I would rather see 50 guilty men go free than one innocent man subjected to injustice. If an innocent man be hanged, it is not possible to afford any redress, whereas there is a chance of dealing with guilty men who may escape punishment for the time being. The honorable and learned member for Werriwa pointed out the necessity there is for malting every effort to sheet home a charge ; but we must take into consideration the fact that once a man is arrested and thrown into prison he has very few opportunities of preparing his defence, and it is only in capital cases that a defending barrister is allotted to a poor prisoner. In such cases it is only when the prisoner is actually on his trial that the Judge calls upon some barrister in court to take up the case, and perhaps the barrister gets an hour or two in which to obtain a statement of the facts from the accused. A man in such a position, if he be innocent, is less likely to be able to give a proper account of what took place than if he were guilty. I think the amendment to which the Attorney-General has agreed goes a long way in advance of anything that has hitherto been done in Australia, and I am thoroughly satisfied with it.

Mr MAHON:
Coolgardie

– I am surprised that the honorable member for Kennedy should father this amendment, which, on the face of it, is absolutely worthless. This proposal may be an innovation on anything now in existence in Australia. If it be an innovation, to my thinking it will nevertheless prove to be perfectly futile. First of all, under the amendment the accused has to prove that he is without means ; and, secondly, he has to prove - according to the alteration made by the Attorney-General, substituting the word “ and “ for the word “ or,” - that it is in the interests of justice that the Crown should provide a lawyer to defend him.

Mr Conroy:

– The honorable member would not provide a defender if it were against the interests of justice ?

Mr MAHON:

– Does not the honorable and learned member see how elastic a phrase of this kind is, and how varying the judgments of the different Judges would be under it? What would the late Mr. Justice Windeyer have done under a clause of this kind ?

Mr Higgins:

– The honorable member means that the accused would have to prove his innocence in advance 1

Mr MAHON:

– It would be much easier for the accused ‘to proceed with his own defence right away, than to surmount the obstacles raised by this clause. If the Attorney-General had left the sub-clause as it stood originally - that is to say, that when it was proved to the satisfaction of the Judge that the accused person was without adequate means to provide the defender, or when the Judge thought it was desirable in the interests of justice, a defender might be appointed - the provision might have been useful. All then necessary apparently would be for the accused to prove that he was a pauper and had no means to provide for his own defence. But I submit, with great respect, that it is not fair to put an accused person to the necessity of proving it to be “ in the interests of justice” that he should be defended by the Crown. How is he to do that ? Does not such a proceeding in itself involve the question whether the accused is innocent or guilty 1 If he has to prove his innocence, and in doing so, to prove that his is a deserving case, he may prove a little too much. He may give away his case to the very parties who, later on, are to endeavour to secure his conviction - it may be in a trial in which his life is at stake. If I were in the position of the honorable member for Kennedy, I would ask for the clause to be withdrawn altogether. 1 should not like to say that it is a hypocritical attempt to meet the difficulty, but, to my thinking, it is certainly a most delusive effort to meet the necessity which exists fora person without means to be proper])’ defended in a court of justice. It has been mentioned that it is the practice in some States to assign competent counsel to a man who is without means. I say without fear of contradiction that in every case within my experience, the assigned counsel was a briefless barrister or one who had just concluded his examination for admission to the Bar. In such cases legal assistance sometimes did the accused more harm than good. If we are going to insure that poor people shall be properly defended, let there be an opportunity for them to obtain the best, or at any rate second-rate legal talent, instead of the services of juniors who have merely passed their examinations.

Mr Conroy:

– Would the honorable member compel barristers to accept briefs for their defence1!

Mr MAHON:

– I would compel- them by offering them a decent retainer. That is the sort of compulsion a lawyer would recognise.

Mr DEAKIN:

– I think that I ought to say in reply to the honorable member for Coolgardie that he has entirely misconceived the meaning of this sub-clause as amended. I can assure him, if assurance be necessary, that I would be no party to passing it unless I believed that it would confer a real and substantial benefit. I think that it does. I believe, at the same time, that it will prove to be a -fairly expensive piece of justice for the Commonwealth to undertake. Many of my professional brethren, I am sure, will start back aghast at a proposal of this kind, although it means employment for the profession. The amendment will not, I am sure, be interpreted, in the sense in which the honorable member for Coolgardie has interpreted the words “ in the interests of justice.” Those words are among the widest that can be used, and they will be interpreted by courts which are themselves without any bias in the matter - except, if there be a bias, a desire on the part of the Judge that he should be relieved from what is to most J Judges a very painful task, that of deciding a case in which an undefended man is being prosecuted. The tendency of every court will be to grant such an application in such a manner as to leave the Judge better able to discharge the task devolving upon him, and to render it -more easy for him to charge the jury. The Judge will know that he can accede to the application at no expense to his Department, and no expense to his State - because it will be State Judges who will administer this provision. The tendency will be, therefore, both on the grounds of official inclination, and in the interests of justice, to deprive no man who apparently has a fair case for defence of the means of being defended. But if the sub-clause as drafted by the honorable member for Kennedy had been adopted, it would have applied even to cases in which it was clear that there was no defence. The Commonwealth would have been put to the useless expense of retaining counsel. It will be a perfectly easy thing, in most cases at all events, for an accused person to prove prima facie that he is unable to pay for counsel.

Mr Mahon:

– And the proof would have to be adduced in such a way as to show that it was in the interests of justice that the accused should have a defender. Say that a man is accused of murder ?

Mr DEAKIN:

– In a capital case the accused gets a defender allotted to him practically without any question. What is now proposed is an addition to the customary practice. In some States I believe it is the law that persons accused in capital cases shall be defended, but at all events it is the general practice.

M.v. Mahon. - In effect it is an almost worthless practice.

Mr Isaacs:

– A charge of murder can hardly be an offence against the Commonwealth.

Mr DEAKIN:

– I can hardly imagine it. But I take the instance given by the honorable member for Coolgardie as the strongest possible. The practice may differ in different States. In Victoria, it has been to allot thoroughly competent counsel to assist in defending the accused person. But I agree with the honorable and learned member for Indi that a case of murder can hardly come within the category of indictable offences under the laws of the Commonwealth. I take it that when an accused person can show that he possesses no means of defending himself, and can make such a statement of his position as will satisfy the J udge of the desirability of providing for his defence, the whole leaning and tendency of the court will be” to grant the application.

Mr Isaacs:

– Especially if the Judge sees that difficult questions are likely to arise.

Mr DEAKIN:

– If the Judge sees that a question of law is likely to arise, that alone would induce him to determine that the accused absolutely must have counsel. I can assure the honorable member for Coolgardie that, so far from having emasculated the sub-clause as drafted by the honorable member for Kennedy, I have only provided some necessary protection; and I am not sure that I have provided all. I feel certain from what I know of the practice of Judges that in a matter of this kind they will be far more ready to grant such applications than to refuse them. It will cost them nothing to grant an application ; it will cost them something to refuse it. By refusing they will have to take a greater responsibility upon ‘themselves. If the J udge who refuses the application is the Judge who is to try the case, he will be taking upon himself a very serious responsibility. He will be running the risk of causing a man who is not guilty to be found guilty, or to be found guilty upon charges against which he has not had a proper means of defending himself.

Mr HUGHES:
West Sydney

– I think that the honorable member for Kennedy is right in accepting the emendations suggested by the honorable and learned gentleman in charge of the measure. They do not appear to me to strike at the basis of his amendment. This is a very important innovation upon our system - a system which hitherto has uniformly refused to recognise the functions of such a person as a public defender. In my own State for many years past a friend of mine has sought to engraft upon our judicial system the office of public defender, and has uniformly failed to get the proposal even considered. I think the amendment proposed is a very effective one. It is only reasonable that the AttorneyGeneral should at least exercise some discretion, inasmuch as he is the person to whom weshall attach the responsibility for the ex tra cost. It may be an expensive- provision to work, and of course it is right that the Attorney-General should exercise some discretion. It is very natural that in some cases the Judge may be ready to take some of the responsibility off his own shoulders. An accused person who comes into court undefended is not, as the honorable member for Coolgardie supposes, in an unfortunate situation. He may even be in a fortunate position. The Judge goes out of his way to explain the difficulties that arise for the benefit of the accused, and the jury » have a tendency to say - “ Poor fellow ; these sharks are at him ; we will let him through.” Considering that the amendment is, in itself, an innovation, the very nature of which, until the present moment, we had not dreamed of discussing seriously, I think that my honorable friend, the member for Kennedy, is justified in thinking that the Attorney-General has done all that could be expected of him. The alterations he has made in the amendment seem to me to be perfectly reasonable. The honorable member for Kennedy may be well satisfied if he gets the amendment through as it stands. He will have succeeded in removing a very grave defect - a defect that is not always apparent, but which when it exists may be a most serious barrier to the interests of justice.

Mr BROWN:
Canobolas

– As As the AttorneyGeneral has very properly remarked, what is now proposed is a very large departure from the present generally accepted practice in this connexion. I agree with the honorable member for Kennedy that it will be a departure in the right direction. It is the duty of the State to see that the innocent are not wrongly dealt with, as well as that the guilty do not escape. Experience shows that great injustice is often done, and that in many cases innocent people are subjected to undeserved punishment, owing to their inability to provide for their defence, and to the fact that, instead of giving assistance in that direction, the State uses its full weight to secure the conviction of those who are alleged to be guilty. In addition to all this machinery for the punishment of the guilty, there should be provision for the defence of accused persons, and to prevent the conviction of the innocent. When a person is charged with an offence ample provision should be made to enable him to prove his innocence. It should be in the direction of providing him with . counsel, and sifting out the evidence which he may desire to call. I recognise that this is a big step towards that end, and I am glad that the Attorney-General is prepared to give it a trial. Of course the full benefit of such a proposal would be experienced in the States Courts, but the trial of this principle in the Federal Courts may be the means of inducing the States to strike out on similar lines. In that way we may have in the near future a tribunal well equipped to secure the proper defence of a defendant as well as to insure the conviction of the guilty. For these reasons I support the amendment.

Mr KIRWAN:
KALGOORLIE, WESTERN AUSTRALIA · FT

– - In regard to the suggestion which I made recently I would place before the Committee a clause from the British Bill for the Defence of Poor Prisoners, which I think might be added, with a slight alteration, to the proposed new sub-clause. According to the London Times, the Bill is backed up by the leading lawyers in the House of Commons.

Mr Deakin:

– But it involves no cost.

Mr KIRWAN:

– I am aware of that, fact. The provision which I desire to see added to the amendment reads as follow : -

A copy of- the depositions on which the prisoner- is committed shall be furnished by the clerk to every prisoner as soon as possible after his committal, and there shall at the same time be given to him the prescribed form, together with a noticethat if he is without means to prepare his defence he may have a solicitor and counsel allotted tohim for his defence on making application in the prescribed manner.

That provision might be added to the amendment proposed by the AttorneyGeneral with a slight alteration that if the prisoner is without means to prepare hisdefence he may - apply to a Judge in chambers for the appointment of counsel for his defence.

I submit this suggestion to the AttorneyGeneral and urge him to accept it.

Mr Deakin:

– I do not propose to accept it now, but I shall be very pleased totake the English Bill and consider it with this in order to see if there is any part of it that can be applied.

Mr GLYNN:
South Australia

– I think it would be better for the honorable member to leave that matter to be provided for in the rules of the court. The clause, as read by him, would considerably extend the effect of the amendment. At the present time in some of the States the provision for the defence of a prisoner is limited to the briefing of counsel. The Crown does not employ a solicitor but simply gives a fee proportionate to the ability of the barrister. In South Australia the barrister is nominated by the Crown, and the prisoner is not allowed to throw money at any man he may choose to ask to defend him. They have taken a good deal of trouble to prevent the abuse of a provision of this kind.

Mr Kirwan:

– My proposal is that a copy of the depositions be supplied to the prisoner-

Mr GLYNN:

– I heard the clause in the English Bill read, and I know it provides that the man is to be notified that he may apply for the services of a solicitor and counsel.

Mr Kirwan:

– But I suggested that it should- be altered so that it would apply to this Bill.

Mr GLYNN:

– That qualifies my remarks. As read by the honorable member, it would mean the interpretation of the preceding clause as providing for the cost of solicitor and counsel. The practice in force in South Australia would not be liable to much abuse here, because offences against the Commonwealth will be very few. I imagine that they will not occur for years to come, except under the electoral law, so there will not be much harm in trying the experiment. It would, however, startle many if a similar provision were inserted in the legislation of the States.

Mr KIRWAN:
KALGOORLIE, WESTERN AUSTRALIA · FT

– By way of explanation, I should like to refer briefly to what the honorable and learned member for South Australia, Mr. Glynn, has said. My proposal is simply that an addition should be made to the new clause, so as to provide that -

A copy of the depositions on which the prisoner is committed shall be furnished by the clerk to every prisoner as soon as possible after his committal, and there shall at the same time be given to him the prescribed form, together with a notice that if he is without, means to prepare his defence he may apply to a Judge in Chambers for the appointment of a counsel for his defence.

That would not mean any additional expense, but would simply lead to a prisoner being notified that such a course was open to him.

Mr GLYNN:
SOUTH AUSTRALIA, SOUTH AUSTRALIA · FT

-The honorable member did not originally read his proposal in that way.

Mr KNOX:
Kooyong

– The AttorneyGeneral has acknowledged, and honorable and learned members with a larger experience of these matters than I possess have admitted, that this is a very important and far-reaching innovation. It is true that for a long time to come its operation under the Bill as it stands will not be very extensive : but in the future, when the scope of the Bill is enlarged, it may be very serious in its effects. My feeling in regard to the suggestion which has been made by the honorable member forKalgoorlie is that it would place in the hands of any one charged with an offence an invitation to apply for legal assistance. I am sure that it is the desire of every honorable member that there shall be no miscarriage of justice in any of our courts, and that an injured person shall receive every assistance in establishing his innocence. I pride myself in the belief that a miscarriage of justice has rarely occurred in our courts. It is within the province and functions of the presiding Judge to see that there is no miscarriage of justice, and it must be remembered that the presiding Judge is always watchful of the interests of a prisoner who is undefended. I believe that the Attorney-General will support that statement.

Mr Deakin:

– Hear, hear.

Mr KNOX:

– In such cases, the Judge acts really as an advocate to see that justice is done to the prisoner. We must be careful that we do not take a step which will open the door to very wide expenditure in the future, and give rise to the abuse of the system. I do not wish to curtail any proposal which may be suggested to insure that justice shall be done where justice is required. I wish only to emphasize the point that the presiding Judge is always on the side of an accused person who is undefended, and that that is a guarantee that the accused will receive a fair trial. I feel that attention should be drawn to this matter, because there seems to be a desire to at once accept thisamendment. It seems a desirable innovation, but it is one that may be very serious in its consequences if abused.

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

– I have just heard with some little surprise for the first time that during a trial of a person who is undefended the presiding Judge takes the position of advocate for the prisoner. I am afraid that my honorable friend is going a little beyond what actually takes place in such cases. Has he ever heard, for example, of a Judge looking -up authorities in advance to pit against the authorities quoted by counsel for the prosecution ?

Mr Knox:

– Allthat I desired to point out was that in such a case the Judge would be careful to avoid a miscarriage of: justice.

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

– That is quite a different matter. The honorable member will recognise, upon reflection, that a Judge does not perform for a prisoner all that counsel assigned to him could do. May I suggest to him that he need not vex his soul so much in relation to this provision, because we are told by the AttorneyGeneral that it is only an experiment. Have we not been told by him that he is going to support its insertion in the Bill - just as we would put together a piece in mosaic - to see how it looks. If, after the Bill has been reprinted, this does not quite accord with his artistic tastes, I presume that it will have to come out. At all events, he has not definitely committed himself to the amendment. He has told us distinctly that he proposes to incorporate it in the Bill as an experiment - just to see how it will look when the Bill is reprinted. If that be the case, may I suggest to the Attorney-General that for the same reason he might also agree to the insertion in the Bill of the second piece of legal mosaic - the proposal made by the honorable member for Kalgoorlie. “ I am sure that it would fit in admirably with the proposal made by the honorable member for Kennedy, and at the same time be a very proper provision if that amendment is to be permanent^’ incorporated in the Bill. I hope the amendment will be carried, and remain in the Bill. It has already passed the experimental stage, and, so far as the limited jurisdiction of this Bill is concerned, we may very well make the venture. We know how it will look, even after the measure has been subjected to revision by the Parliamentary Draftsman. I therefore suggest that as this is only a machinery clause to carry out the idea which the Attorney-General has already accepted on approval, he may very well accept the suggestion of the honorable member for Kalgoorlie.

Mr HARTNOLL:
Tasmania

– It is a very salutary rule in life that if we desire to accomplish anything we should do it properly and effectively, lt appears to me that all the honorable member for Kalgoorlie desires to see given effect to is, that an accused person who might otherwise be ignorant of a provision such as this, shall have the- information concerning it placed at his command by some authorized officer of the court, and shall not be left at any disadvantage on account of his want of knowledge of the law as it exists. If, as the honorable member has stated, an intelligent person and one conversant with the various enactments knows of this particular provision, and he is in such poor circumstances that he can immediately take it into account, he is at an advantage as against the poorer or more illiterate individual who is ignorant of its existence. All that the honorable member for Kalgoorlie desires to see accomplished is that all accused persons shall be placed upon an equal footing, and that the illiterate man shall be given the knowledge required to enable him to take advantage of this salutary provision.

Mr. GLYNN (South Australia).- Perhaps an amendment might be introduced to carry out the suggestion of the honorable member for Kalgoorlie, though not exactly in the words of the English Bill which the honorable member has mentioned. I understood from what he said a few minutes ago that the honorable member proposed to modify the provision- contained in that Bill so as to meet the conditions of the amendment. I was going to suggest a few words in lieu of the provision which the honorable member quoted, to the effect merely that notice that he might avail himself of the Act should be given to the prisoner on his arrest, in a form to be prescribed by rules. The English Bill goes beyond that and raises questions about the depositions, but what I suggest would be adequate for the purpose.

Mr ISAACS:
Indi

– I think the AttorneyGeneral has gone a very long way, though not a bit further than he ought to have gone. I mean to say that this is a great step in advance of existing procedure and rules, and I believe there is great justification for it, because questions of law will arise under the Commonwealth criminal jurisdiction that do not arise under State laws. Questions of constitutionality and other difficult legal questions will arise that will render it highly desirable that some such provision should be made, independently, of course, of the principle now advocated and supported, and which has a great deal to recommend it.

Mr Deakin:

– I am prepared to add these words “upon committal the person committed shall be supplied with a copy of this sub-section.”

Mr ISAACS:

– I was going to suggest something of the kind - that at the time of committal the court, committing the accused, should inform him of the substance of this sub-section. The wording suggested by the Attorney-General would meet the case. I do not think there is any danger whatever that this provision will be regarded as an invitation, because the application has to run the gauntlet of the court’s certificate, and whether a prisoner is invited or not to make the application it cannot succeed unless it is a proper one, as otherwise the court would not give the necessary certificate. .

Mr DEAKIN:

– It appears to me that, having gone so far, it will be necessary to take one more step, though I must say I shrank from adopting for the moment, the provision contained in the excellent measure to which the honorable member for Kalgoorlie referred, based upon a very economical plan of administration which, however, we do not adopt here. With the permission of the honorable member for Kennedy, I move -

That the amendment be amended by the addition of the words, “upon committal, the person committed shall be supplied with a copy of this sub-section.”

Amendment ot amendment agreed to.

Amendment, as amended, agreed to.

Clause, as amended, agreed to.

Clauses 72 and 74 consequentially amended and agreed to.

Bill reported with further amendments, and (on motion by Mr. Deakin) recommitted for the reconsideration of clauses 4 and 7.

In Committee : (Second recommittal).

Clause 4 (Qualification of Justices).

Mr POYNTON:
Australia · South

.- I was told by the Attorney-General that it was a reflection upon the House, when I moved, the other evening, that the clause should be amended by the addition of the following proviso : -

Provided that no member of the Federal Parliament shall be deemed qualified unless he has ceased to be a member of such Parliament for not less than twelve months.

I desire to show that if that amendment was a reflection upon the House, he . and other members were guilty of a much worse reflection upon the House when it was decided to insert a similar provision in the Constitution. I find from the proceedings of the Adelaide Convention that a sub-clause very similar in terms, but with a six months’ limitation, was ably supported by the honorable and learned member for Indi, the Treasurer, the Attorney-General, the honorable and learned member for Northern Melbourne, the Minister for Trade and Customs.

Mr Isaacs:

– Will the honorable member read the motion to which he is referring?

Mr POYNTON:

– It reads as follows :-

Until Parliament otherwise provides no person being a member or within six months of his ceasing to be a member shall be qualified or permitted to accept or hold any office, the acceptance or holding of which would under this section render a person incapable of being chosen or of sitting as a member.

The motion was carried by nineteen ayes to eighteen noes. It was urged that it would be a monstrous thing to permit the first Parliament of the Commonwealth to have the right to appoint the members of the High Court, the High Commissioner, or, as 5 H lt i 2 he was then termed, the Agent-General, and the members of the Inter-State Commission. It was contended that if the principle was a good one it should apply to legal as well as lay Members of Parliament, as it did in many State Acts. The honorable and learned member for Indi mentioned that in Victoria a similar provision was in force.

Mr Isaacs:

– No.

Mr POYNTON:

– I do not wish to make a statement which is incorrect. I shall read what the honorable and learned member said -

In Victoria we have put a-penalty in the Act upon a person who takes a position. It is clause 25 of the Constitution Act : - “ If any person shall, while he is a member of the said Council or Assembly, or within six months after ceasing to be such member, accept any office or place of profit under the Crown, he shall forfeit the sum of f 50 for every week he shall hold such office or place, with full costs of suit for any person who shall sue for the same. “

Mr Isaacs:

– Is that all of it?

Mr POYNTON:

– That is all of it.

Mr Isaacs:

– Oh, no !

Mr POYNTON:

– The honorable and learned member went on to say that it was not enough. On page 747, he said -

I would carry it much further than clause 48. If it is wrong that a Member of Parliament should take an office of profit, we should say that the appointment should be absolutely null and void.

Mr Kingston:

– Prevent the appointment.

Mr ISAACS:

– Ses. I would not allow a man to secure the position and merely ask him to pay a penalty for it.

Then the leader of the Convention proposed an amendment, and finally the provision I quoted was carried.

Mr Isaacs:

– Was it not pointed out that the Agent-General and the Judges of the Supreme Court were exempt from that provision in the Constitution Act 1

Mr POYNTON:

– Not in that debate. At the close of the Adelaide Convention the Houses of the States Parliaments and other persons outside had the right to suggest amendments in the draft Constitution, which appears as an appendix to the official report of the debates. When the Convention sat in Sydney a most singular thing occurred. Notwithstanding the fact that the Houses of six Parliaments were interested in this matter, not one Chamber, except the Legislative Council of New South Wales, which was a nominee body, suggested that that provision should be omitted. The debate on the suggestion was a very short one.

Several delegates who had supported the provision in the Adelaide Convention had evidently changed their mind in the meantime. A certain number of the delegates adhered to their view. The Minister for Trade and Customs remarked that it would be monstrous to make fish of one and flesh of another, and that it was of no use to lock the stable-door after the horse was gone. The honorable and learned member for ^Northern Melbourne, the honorable member foi’ Indi, and also the Speaker of this House, supported the retention of the provision. It was evident from their silence that all the Houses except the Legislative Council of New South Wales anticipated no great danger from allowing the provision to stand. On a day when the attendance of the delegates was very small it was struck out by nineteen votes to ten. Amongst those who voted with the ayes were the honorable and learned member for Indi, the Minister for Trade and Customs, and the Minister for Home Affairs. When I was told the other night that my proposition was a reflection on the House, I felt that I ought not to suffer the statement to go forth without pointing out that, after mature consideration, the Adelaide Convention deemed it a right and proper thing to insert a similar provision in the Constitution. It may be a wrong principle to apply, but it is applied by the lawyers in nearly every instance. As soon as there is a position which a layman can fill, a provision of this kind is passed to prevent a member of a State Parliament from being chosen. But directly it is proposed to apply the rule to the legal profession, the contention is raised that we cannot get enough of the right class of men outside Parliament to make a proper selection. I move -

That the following words be added: - “Provided that no member of the Federal Parliament shall be deemed qualified unless he has ceased to be a member of such Parliament for not less than six months.”

Mr. DEAKIN When I said that the Committee in agreeing to an amendment of this kind would be reflecting on its own members, I referred, of course, to the fact that we should be voting to exclude our own members. No such consideration could arise in the Convention. I supported the proposal brought forward in the Convention, but in putting before the Committee the reasons for objecting to an amendment such as that now proposed here, I mentioned as one of them, that, in passing it, we would be reflecting on members of our own body. In that sense only is it a reflection upon Parliament.

Mr Isaacs:

– The fact that the Convention twice pronounced against a proposal of this sort makes a great difference.

Mr O’MALLEY:
Tasmania

– Is Is there, any provision in the measures we have passed which discriminates between lay members of this Parliament and other laymen in regard to the filling of billets 1 The Constitution declares that there shall be no discrimination. If laymen are to be discriminated against, I want discrimination to be exercised in regard to lawyers. If lawyers are to have goose to eat, we are going to have goose, but if we are made to eat bandicoot, they must eat bandicoot, too.

Mr. BATCHELOR. (South Australia).I do not intend to argue the question, but as the honorable member for South Australia, Mr. Poynton, seems to think that he is practically unsupported in his proposal, I take the opportunity to say that he has my hearty support. Some members of the Committee, who are certainly above the suspicion of working in their own interests, have been attacked upon the supposition that they are supporting the Judiciary Bill with the object of fixing up billets for themselves, and the measure has been called by one of the leading newspapers of Australia the “ Fat Billets Bill.”

Mir. G. B. Edwards. - Are we to be influenced by that?

Mr BATCHELOR:
SOUTH AUSTRALIA

– No. But if it is right in principle to debar the members of a particular Parliament from accepting positions, I think that this is a case in which we should apply that principle, because of the suspicions which, although unfounded, undoubtedly exist in the public mind.

Mr BROWN:
Canobolas

– -The honorable member for South Australia, Mr. Poynton, has - placed the Committee under an obligation in reading to us the opinions of certain members of the Convention upon this subject, and I hope that they will favour us with an explanation as to how it is that, while they held one -set of opinions then, they hold a contradictory set now. I do not think that because a man is a Member of Parliament he is thereby disqualified for a position of this kind, but I hold that the appointments to the High Court should be made from the Benches of the Supreme Courts of the States, and I should like to see a system of that kind ingrafted upon the Constitution. I disagree with the contention that the States Judges are so parochial and narrow minded that they should not be trusted with Federal jurisdiction. I shall support the amendment.

Mr GLYNN:
South Australia

– During the Convention I tried to postpone the appointment of the High Court, and to arrange for the creation of a temporary court composed of States Judges. I also strongly opposed the provision to which the honorable member for South Australia, Mr. Poynton, has referred. I think it would be a mistake to agree to his amendment. Some of the ablest men who have sat on the Bench of the Supreme Court of the United States have been politicians, and we should view a matter of this kind apart from our personal predilections and prejudices. In constitutional matters it is better to have a Judge whose outlook has been widened by a political career than to have a merely pedantic lawyer.

Mr Mauger:

– That is what Professor Harrison Moore said.

Mr GLYNN:

– Yes. In a recent article he suggests that the establishment of the High Court should be postponed for some time, and in effect that it is better to have men on the Bench who have been trained in politics, and can take an elastic view of points of constitutional construction, than to have as Judges pettifogging and pedantic lawyers. 1 hope the honorable member will not press the amendment, because the carrying of it would mean the exclusion of otherwise eligible men.

Question - That the words proposed to be added be so added - put. The Committee divided.

AYES: 10

NOES: 29

Majority…… 19

AYES

NOES

Question so resolved in the negative.

Amendment negatived.

Clause agreed to.

Clause 7 -

A Justice of the High Court shall not be capable of accepting or holding any other office or place of profit within the Commonwealth, except any suchoffice as is granted to him under the King’s sign-manual or by the authority of the Lords of the Admiralty of the United Kingdom in matters of prize, or as is conferred upon him by law.

Mr ISAACS:
Indi

– This clause has met with general acceptance so far as its meaning is concerned, but it will require some alteration in order to make its intention clear. As I read it at present, it would permit a Judge of the High Court to accept the’ position of Acting Governor of a State, and in that capacity to act upon the advice of his State Ministers, and ask to be furnished with military force to put down some rising. He might afterwards have to sit as a Federal Judge, to determine the legality of his action as the Governor of the State. The clause as it stands would also permit a High Court Judge to be a State Judge. I therefore move -

That, after the word “or,” line 3, the words “ any other” be inserted ; after the word “such,” line 4, the word “judicial” be inserted: after the word “by,” line 7, the words “or under any” be inserted ; that after the word “law,” line8, the words “of the Commonwealth” be inserted.

Mr DEAKIN:
Protectionist

-The honorable and learned member for Indi was good enough to allow me an opportunity of considering his amendments before submitting them. To my mind, they certainly make clear what was previously doubtful, and I have no hesitation in accepting them.

Amendments agreed to.

Amendments (by Mr. Deakin) agreed to-

That the word “ is,” lines 4 and 7, be omitted, with a view to insert in lieu thereof the words “ may be.”

Mr CROUCH:
Corio

– I wish to ask whether the amendments which have just been carried do not exclude the Chief Justice of the High Court from holding the position of Acting Governor-General?

Mr Deakin:

– They do.

Mr CROUCH:

– Did not the Convention distinctly decide against the adoption of a similar proposal ?

Sir Edmund Barton:

– No. The Convention decided against embedding such a provision in the Constitution, principally upon the ground that Parliament should be left free to take its own course.

Mr CROUCH:

– I think that the disqualification should be pointed out.

Mr Deakin:

– The honorable and learned member for Indi referred to it.

Mr THOMSON:
North Sydney

– I do not think the Committee understood that under this provision the Chief Justice of the Commonwealth would be disqualified from accepting the appointment of Acting Governor-General. Of course, I do not accuse the Attorney-General of desiring to deceive the Committee. I was under the impression that the provision would merely have the effect of preventing a Justice of the High Court from acting as a State Governor.

Mr Deakin:

– It has that effect.

Mr THOMSON:

– But does it prevent the Chief Justice of the High Court from being appointed Acting Governor-General?

Mr Deakin:

– It does.

Mr Isaacs:

– I confess that the point which has been raised by the honorable and learned member for Corio did not occur to my mind.

Mr THOMSON:

– I think that some good reasons should be given for disqualifying the Chief Justice of the Commonwealth from accepting the position of Acting GovernorGeneral. I cannot conceive of any gentleman who ought to be better fitted to fill the position should an emergency arise. Moreover, such an arrangement would overcome that clashing of interests which otherwise would frequently make a temporary appointment a troublesome matter. Seeing that the mover of the amendment did not understand that it would have the effect referred to, I think the Committee should be afforded an opportunity of reconsidering it.

Mr. ISAACS (Indi). - I am very glad that the disqualification of the Chief Justice has been pointed out, because it did not occur to my mind. My remarks referred only to the office of the State Governor. I agree with the honorable member for North Sydney that it would be wrong to exclude the Chief Justice of the Commonwealth from accepting the position of Acting Governor-General, and I have no objection to the addition of words which will make that clear.

Sir Edmund Barton:

– Is the honorable and learned member quite sure that it is desirable to allow the Chief Justice to occupy an Executive as well as a judicial position ?

Mr Glynn:

– Is it better to appoint the Chief Justice of the Commonwealth than the senior State Governor, who at present fills the office in the event of it becoming vacant under His Majesty’s Commission ?

Mr ISAACS:

– It was not my intention to exclude the Chief Justice of the Commonwealth from temporarily filling the office of Governor-General ; but as there appears to be a difference of opinion upon the matter, I will not submit an amendment.

Mr DEAKIN:

– When the honorable and learned member for Indi proposed his amendment, I read it as excluding the Chief Justice of the Commonwealth from accepting the position of Acting GovernorGeneral. The words “ any such judicial office” at once disqualified him. For my own part, I think it is highly undesirable that we should have any Acting Governor-General. If such an appointment is to be made, it is better to allow the senior Governor of the States to fill the position. He is an Executive officer in his own State,, is appointed by the Crown, and is only asked to exercise functions of a similar nature to those which he has been discharging. From my stand-point, a State Governor is distinctly preferable for this position to the Chief Justice of the Commonwealth, who should not be drawn from his high office with its many duties by any Executive call. Moreover, if the number of Justices of the High Court is liable to be diminished by one of the three being called upon to fill the position of Acting Governor-General, which office may require hispresence in another part of the Commonwealth, we shall still further reduce the strength of an already far too small Judiciary. I think that is a practical reason which will appeal to the honorable member for North Sydney, whose remarks on this question are quite to the point, and, in fact, express views I myself originally held, but which I have now abandoned for the reasons given.

Mr McCAY:
Corinella

– I submit to the- Committee that there are two reasons which differentiate the case of the Chief Justice of the Commonwealth, in connexion with the office of Acting GovernorGeneral, from that of the Chief Justice of a State, in connexion with the office of Acting Governor. First, in a State there is not the person or class of persons to whom resort can obviously be made for the position of Acting Governor, that there is in the case of the Commonwealth with its constituent States and respective Governors. It seems an obvious and proper course, under the circumstances, to appoint the senior State Governor as Acting Governor-General. The Chief Justice has been appointed Acting Governor in each of the States from time to time because he is regarded as, next to the Governor himself, the person most apart from party politics. The other reason is that the Judges of a State do not stand in the same relation to the Executive and Parliament of a State that the .Judges of the Commonwealth will stand in relation to the Executive and Parliament of the Commonwealth. There is no such guardianship of the States Constitution, to use a well-known phrase, intrusted to the States Judges as there is of the Federal Constitution intrusted to the Commonwealth Judges. In view of the Judicature chapter in the Constitution it seems to me that if there is one thing about which we should be scrupulous it is in keeping the Judges absolutely apart from the Government of the Commonwealth, except so far as the Constitution distinctly lays down the limits of the functions they have to perform. We should be almost infringing the spirit of the Constitution if we contemplated the Chief Justice becoming at any time the Acting GovernorGenneral.

Mr HIGGINS:
Northern Melbourne

– I do not know whether attention has been called to the fact that there was a clause in the Constitution, as passed in Adelaide and Sydney Conventions on this very matter, but it was struck out by a large majority of more than two to one on my motion in the Melbourne Convention. That was clause SO, which provided -

No person holding any judicial office shall be appointed to or hold the office of GovernorGeneral, Lieutenant-Governor. Chief Executive Officer, or Administrator of the Government, or any other executive office.

It was thought by some of the members of the Convention that the object of the clause, as passed at Adelaide, was obviously to let the President of the Senate be the person who should be nominated by Her Majesty for the office ; and several members were opposed to the clause for that reason.^ The view which I placed before the Convention, and on which there was a division, was that it is our business to leave the Sovereign an absolutely free hand as to whom he shall appoint - that we have no right to dictate as to who shall be the Sovereign’s agent for any purpose. It is not a matter within the area of our constitutional rights ; and I find that at first I suggested the milder course of inserting the words “ or parliamentary “ after the word “ judicial.” That proposal, however, was not accepted by the Convention, who struck out the whole clause by a majority of 26 to 11, although it had been previously adopted at Adelaide. It is not expedient, in my opinion, for us to dictate as to who shall be the agent of the Sovereign.

Mr. THOMSON (North Sydney).- I raised this question because many honorable members had not considered the matter, and were no doubt taken by surprise. I am quite willing to admit that the Attorney - General has given some reasons for the position he takes up. One reason, especially, satisfies me as to the desirability of accepting his view, namely, that the number of the Judges of the High Court has now been reduced, and that it is desirable that ‘the three members of the Court should devote their time to the duties of their offices. All I wished was that the Committee should have an opportunity of hearing the explanation which I thought ought to be given for such exclusion.

Clause, as amended, agreed to.

Bill reported with further amendments.

page 1567

ADJOURNMENT

Minimum Wace - Queensland Weather Bureau - Country Mail Services

Motion (by Sir Edmund Barton) proposed -

That the House do now adjourn.

Mr TUDOR:
Yarra

– I should like again to refer to the fact that the Minister for Public Works in the State of Victoria is calling for tenders without making any provision for the payment of the minimum wage. On looking through the Victorian Government Gazette of 24th J une, I see that a number of contracts have been let for repairs and other works at post-offices in that State, including the erection of two large buildings at Cobram and Terang. According to the conditions the contractors are compelled to tender with a provision for the payment of the minimum .wage, according to the schedule provided, and without the minimum wage, and it is distinctly announced that any tender not containing the two prices shall be treated as informal. This matter was brought under our notice by, I believe, the honorable member for Melbourne Ports, who submitted a notice of motion relating to wages, hours, and conditions of labour. It is also distinctly provided in the Post and Telegraph Act that idi contracts shall be subject to the conditions ruling in the district. But evidently Mr. Bent, the Victorian Minister, thinks that because the principle of the minimum wage has been practically abandoned in that State, it is quite proper that it should also be abandoned in connexion with Commonwealth works. We have had many complaints that the Federal Government is extravagant, but if contracts of this sort are called for by State Ministers, without any provision for a minimum wage, it is high time there was a Commonwealth Public Works Department. In regard to painting and repairs at the Postoffice, Port Melbourne, the contractors are requested to furnish alternative tenders under the following conditions : -

  1. The workmen employed to be paid not less than the minimum rates set forth as the rate of wages to be paid, and the work to be executed under the conditions appearing in connexion with these rates. (£>) The contractor is at liberty to employ the labour he requires at less than the minimum rates set forth if he desires, so long as the men employed a are competent men and labourers.

This House should enter its protest against the principle of the minimum wage being set aside by this particular State Minister. In Victoria, just before Christmas last year, there was what was perhaps one of the worst scandals which ever took place in connexion with tendering, and the present Victorian Government was then in power. Tenders had been called for the particular work, and after they had been received the rate of wages was lowered from 7s. to 6s. per day, and this Government allowed one contractor to alter his tender even after the contracts had been closed. I trust that the House will take a decided stand on this matter, and that the Minister for Home Affairs, by whose Department these works are supervised, will intimate to the Victorian Minister for Public Works that all contracts let on behalf of the Commonwealth must contain a minimum-wage clause, and provide that any repairs to be done shall be paid for at the standard rate ruling in the district.

Mr MAUGER:
Melbourne Ports

– I hope that the Minister for Home Affairs, without in any way interfering with State matters, will insist that Commonwealth work shall be done under the conditions laid down by this Parliament. It is certain that if the tenders referred to by the honorable member for Yarra are accepted without containing the minimum wage clause, it will mean that wages are to be cut into. There can be no other explanation. I know that the Minister for Home Affairs has sympathy with the minimum wage provision, and. I hope that he will see that the tenders sent in as to the work in question shall not be opened at all unless the tenderers contract to comply with the minimum rate of wage provision. Surely the Commonwealth is not in such a position that it cannot pay a fair and reasonable wage ; and to say that the minimum rates ruling generally at present are unfair is, to my mind, to make an encroachment upon wages without any excuse. I sincerely hope that the Minister will be most emphatic in this regard.

Sir WILLIAM LYNE:
Minister for Home Affairs · Hume · Protectionist

– It is only within the last day or two that the matter complained of has been brought before Ministers and before me. Recognising that this House passed a resolution on the 19th June, 1901, to the following effect : -

That, in the opinion of this House, provision should be made in all Government contracts for the payment of a minimum rote of wage, such rate to be in accord with the ruling rate of wage in the district in which the work is to be carried out, and for the fixing of a maximum number of hours of labour,

I was rather surprised when I was informed that the Government of the State of Victoria, in carrying out Commonwealth works, had varied what was the previous practice in the State of Victoria, and what I know has been the practice in New South Wales. Of course for the sake of economy and convenience most of our public works are being carried out by the Public Works Departments of the States ; and when the business leaves the Department of Home Affairs, I have but little control over it, under the existing state of things. All I call do is to direct the attention of the Public Works Department of a State or the Premier of the State to the facts of the case. That I certainly shall do at the earliest possible moment through the medium of the Prime Minister. I shall direct attention to what is taking place, and if there is a refusal to give effect to the decision of this House, there will be no other .course open to us but for the Federal Government to carry it out themselves. Personally - and I think I may speak for other Ministers - I am strongly in favour of the course pursued in the past. Certainly I am. In the case of some works near to Melbourne, we have lately dealt with them ourselves with very satisfactory results, I think.

Mr MAUGER:
MELBOURNE PORTS, VICTORIA · PROT

– Port Melbourne is near to Melbourne; the Minister himself was there- the other night.

Sir WILLIAM LYNE:

– Quite so. All 1 can say is that I will direct the attention of the Victorian Public Works Department, through the Premier of the State, to this matter. If the State raises no objection, and will conform to the request made to them, the difficulty will be at an end. If not, the question will have to be considered. It is one which I regard as being of a grave character. I shall bring it before the Prime Minister, and have no doubt that he will bring it under the attention of the State Premier.

Mr Tudor:

– Some of the tenders have been called for Thursday.

Sir WILLIAM LYNE:

– I will waste no time. I will do it to-morrow.

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

– I should like to draw the attention of the Prime Minister to the announcement that has appeared in the press that the Queensland Weather Bureau has been practicallly abandoned. The Prime Minister will remember that communications took place between the Queensland Government and the Federal Government with respect to some method of continuing the then existing Queensland Weather Bureau. The bureau was taken over by Mr. Wragge, and it was practically agreed that the Queensland Government, in conjunction with the Governments of other States, should subsidize it. This Parliament passed an amendment to the Post and Telegraph Rates Bill, by virtue of which it was enacted that in connexion with any Meteorological Department subsidized by the State the telegrams should . be carried free. It now appears, however, that the Queensland Government have changed their attitude towards the weather bureau, and that this very useful department, which has existed for the benefit of the whole of Australia, is to be abandoned. The operations of the bureau have been of value to all the States. The forecasts issued by Mr. Wragge were appreciated throughout Australia. They have been of very great value in New South Wales, and have been useful even as far south as Tasmania. In Queensland the weather forecasts of Mr. Wragge have been of material advantage, and have saved hundreds of pounds to persons engaged in the various industries of the State - to planters, to farmers, to shipping men, and to members of the commercial community generally. I see that Mr. Wragge has issued a note to the following effect : -

We regret to have to inform the public, and especially pastoralists, agriculturists, planters, commercial houses, and shipping interests throughout the Australasian region, that, as the Governments of Queensland and New South Wales cannot see their way to continue the subsidy to the office, the Central Weather Bureau, Brisbane, will cease to exist, so far as we are concerned, at midnight on the 30th June instant, after which time the usual forecasts will not be issued.

Seeing that the State Government practically asked the Federal Ministry to grant some concession to them in the Federal statutes affecting the weather bureau, in order that it might be carried on for the benefit of Australia, I am anxious to know whether any communications have taken place with the object of ascertaining whether it was not possible for the Federal Government to take action. No doubt the best way of dealing with the subject would be for the Federal Government to establish a

Commonwealth Weather Bureau, but I realize that there are many difficulties in the way of doing so. To judge from statements which have been published, it appears to me that some precipitate action has been taken, and that this very useful department has been suddenly disbanded very much to the injury of the whole of’ the people of the Commonwealth. I should be very pleased if the Prime Minister would inform the House if the Queensland Government has communicated with him upon this very important subject ?

Mr McCAY:
Corinella

– I should like to draw the attention of the Minister representing the Postmaster-General to what, as far as I .can make out, is the too prevalent practice of the Postal Department in its method of economizing. I dare say that this method is found operating in other States as well as Victoria, but it is surprising to find what a number of small country postal services are being closed up on the plea of economy. It has always seemed to me that these cheap services, which connect the remote country districts of Australia with the centres of commerce, are very valuable ; and the closing of them does not effect a very large saving. Yet, though they are amongst the last which should be closed, they are the first. Cases of this kind have occurred in the district which I have the honour to represent. Small services have been closed on account of the loss of £3 or £4- a year, although the effect of closing them is to cut the people affected off altogether from any business or social communication with the outside world, unless they make use of their own horses or their own vehicles.

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

– The Minister must make the Department pay.

Mr McCAY:

– H - He must do so as far as possible ; but I have always understood that the principle underlying uniform postage is that the districts where the delivery of letters costs more than the penny or twopence paid for postage are compensated for by those in which the cost is less, and that it is impossible to apportion the charge exactly to the expenditure incurred.

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

– They ought to be asked for a guarantee.

Mr McCAY:

– I am not referring simply to the opening of new services, but to the closing of services to which people have been accustomed for many years. Services costing, say, £10 a year, and the revenue in connexion with which is one-half or two-thirds that amount, have been closed with the result that a comparatively small number of people living 7, S, or 10 miles away from the post-office have to travel that distance to post to obtain their letters, and one is justified in protesting against what I at all events regard as a very false species of economy.

Mr BROWN:
Canobolas

– The grievance which the honorable and learned member has brought under the notice of the Government is not confined to Victoria. It is a very serious grievance in New South Wales, and I believe it is also a source of dissatisfaction throughout all the States. I hold with the honorable and learned member that every effort should be made to keep remote settlements in touch with centres of civilization, for in that way pioneering work which is of vital importance to the Commonwealth is enabled to be carried out.

Mr McDonald:

– The assistance given to these outside settlements reacts on centres, of population.

Mr BROWN:

– It undoubtedly does so. The policy adopted by the Postal Department is a very short-sighted one, and is certainly a reversal of the system which obtained in New South Wales prior to the transfer of the Department. The withdrawal or refusal of facilities of this kind is keenly felt by remote settlements in that State. The facilities given to outlying and scattered districts have been reduced by the withdrawal of postal communications in cases in which it is thought that the revenue is insufficient, and when any new communication is demanded, the Department appear to place such a high estimate upon the cost and such a low estimate upon the revenue to be derived, that it is practically impossible tosecure any further additions to the service. I know of instances in which mining settlements of considerable extent in the outlying parts of New South Wales have been refused facilities by the Department, under Federal control, which would readily have been afforded by the State Government. That is one source of grievance. In other settlements official offices which have been in existence for many years have been reduced in status for purposes of economy, while another serious source of complaint has arisen in connexion with the prevalent and unprecedented drought conditions in New South Wales. Contractors carrying out the mail services have had to do so under very adverse conditions. Many of them have been unable to comply with the terms of their contracts, not because of any fault of their own, but owing to the drought conditions. In many cases the Department has come down upon the contractors - and on their sureties, where they have failed to squeeze the contractors - and has made them bankrupt by compelling them to carry out the terms of the agreements. Cases have occurred in which the surety, in order to complete the contract, has been forced to incur an expenditure of £200 or £300 in excess of the amount paid by the Department. The Department compelled contractors to keep to the terms of their contracts, and upon the expiration of the agreements, when the conditions were a little more favorable, it re-let services at rates 300 and 400 per cent, over and above what it was called upon to pay for a number of years before. This is a pennywiseandpoundfoolish policy, inasmuch as it must mean the crushing out of small contractors, and the placing of various services in the hands of large and wealthy institutions who will squeeze the Department. Instead of seeking to be a revenue-earning source, the Department is going in the other direction. It is now paying much more for its contracts, and is likely to do so, because of the very harsh treatment which has been meted out to a number of contractors. I think that in the exceptional circumstances which have prevailed in New South Wales and Queensland, and to a lesser degree in Victoria, the Department should have extended some little consideration to its mail contractors.

Mr AUSTIN CHAPMAN:
EdenMonaro

– I indorse the remarks which have fallen from the honorable member for Canobolas with reference to the system that has been followed by the Department in New South Wales, not only in regard to postal services, but in relation to telephone facilities. I know of cases in which it has threatened - and in some instances it has carried out the threat - to bring contractors and their sureties into court. I desire specially to refer to some of the regulations which have been framed. The responsibility for them can scarcely be placed at the door of the Department, but still the Department should see that regulations which prove to be very irksome and are almost unworkable are altered. Parliament is responsible to a very great extent in having allowed these regulations to pass, but the Department should certainly take action in the matter. In some parts of New South Wales, where the rainfall is very heavy in the winter,- settlers and others along the mail routes have been in the habit of having their letters and newspapers wrapped in canvas, before being th ro own out on the roadside, so as to protect them from the weather. The Department now rules, however, that the wrapping of letters in a piece of canvas is the equivalent of a private mail-bag, and the postmasters in charge of these country offices have been ordered to demand £2 per annum from each of these settlers along the mail routes. If the fee is not forthcoming, the letters are not to be wrapped in canvas before being thrown out. In that way the mail is stopped. This is a very harsh proceeding to take. I think much of the trouble is to be attributed to the fact that the Department is expected to pay, and that the return for these services is supposed to come from the sparsely-populated districts concerned. It would hardly be possible to grant any convenience to these districts if it had to be based solely upon considerations of revenue and expenditure. We all know that if this policy had been pursued in the past, there would have been- very few mails or other conveniences granted in the scattered districts of New South Wales. The same complaint applies to telephones. I have at the present time an application in from my own district for a telephone to a small centre within 12 miles of a large town, and within a quarter of a mile of the telegraph line ; but because there seems to’ be some doubt in the minds of the Postal officials whether a telephone would pay at this small centre, they demand a cash deposit of £92- before they will agree to put up an instrument in that post-office to give it a trial. I have asked for a reconsideration of the decision, but I am told that this is now the practice of the Department. If that be so, all I can say is that it requires alteration. I could quote other cases, but I hope some notice will be taken of the continual complaints which are being made. No one seems to be able to obtain any redress, but surely something could be done to alter the existing state of things 1 I have also to” bring under notice the great delays which have taken place in the carrying out of repairs in the country districts of New South Wales. In November last repairs to the post-office at the important town of Milton, in my own district, were authorized to the amount of £900 odd. Although seven months have gone by, notwithstanding the fact that the doors are falling off, that the place has been declared insanitary by the local health official, and that repeated applications have been made to the Department, nothing has yet been done. It seems that the responsibility for the delay is bandied about between one Department and another. I do not know the right door at which to lay the blame, but if the Public “Works Department in New South Wales is to be permitted to put aside Federal work at the instance of State members in order that some repairs may be done to a State school, or that other work for which a State member is held responsible may be attended to, and we cannot get Federal works carried out promptly by State officials, it is high time that some one should be appointed by the Federal Government to attend to them. This is only one case of many to which I could call attention.

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

– In many cases the delay has extended over more than twelve months.

Mr AUSTIN CHAPMAN:

– I should like to indorse what has been said by the honorable member for Canobolas regarding mail contractors. I know of many contractors who have been ruined because, owing to the drought, they have been unable to continue carrying the mails for the payments made under their contracts. The Department, it appears, is not satisfied with ruining the contractors, but they follow up their sureties, bring them to court, and threaten them with all sorts of legal proceedings. The end is ruin to a number of men who are deserving citizens, and who, though they have made a contract, are entitled to the consideration that business men would give them. After all, a contract is a bargain, and if it is found that the bargain made cannot be kept, surely it is not for the Federal Government, representing the people of the Commonwealth, to demand their “ pound of flesh,” and drive these men into the Insolvency Court. I mention these cases because I have listened to the complaints of honorable members, and I have endeavoured, in every possible way, to obtain satisfaction or redress, and it seems to be impossible to get any satisfaction under existing circumstances. I hope that the publicity given to these complaints will result in some alteration being made, and that some satisfaction will be given. If this cannot be done, there should be an intimation to all country members that the time has passed to ask for any of these small mail services, or for any of the conveniences which help to make life worth living in the country districts. What is. the use of men writing to members of thisHouse, asking them to use what influence they may have with the PostmasterGeneral, or those in authority, ‘ to give some little consideration to their requirements if every application that is made is. to be met with a pointblank refusal because the service asked for will not pay 1 Either the system must be altered or there must be a public noticethat it is useless to make these applications unless it can be shown either, that the service asked, for will pay, or that the people who ask for it are prepared to put up a tremendous cash guarantee. If this course is to be adopted it will simply mean that the system of centralization which has. cursed New South Wales, and probably the other States also, will be accentuated, and people will be driven to the centres of population. I recommend that the Department here should show some little progress in its administration, or we might adopt the system adopted in New South Wales when, I think, the honorable member for Parramatta was Postmaster-General for thatState, of giving a number of small mail services on trial for three or six months, to see how thev would work and what revenue was likely to be obtained from them. In that way information was obtained to guide the authorities in deciding whether the requests for such services were justified. If the Departmentacted in a common-sense- way like that, there would be some reason in their action. There is no doubt that the cry about thesematters has been long and loud throughout the Commonwealth, and it is high time that some change was made in the administration of this Department. I have vainly endeavoured by representations to get some redress in a number of instances. But it seems that the system is at fault, and as honorable members of this House are to blame for the system the sooner wedecide to alter it the better.

Mr McCOLL:
Echuca

– I desire to add my protest to those of the honorable members who have just spoken, on the subject of the shutting up of the small mail services. I have a notice here sent to the holder of aloose bag, which has been carried for many years at a cost of £5 a year, to say thatit will be discontinued from 1st July. I need not repeat all the arguments which honorable members have used, but surely it is enough that people in the outlying.- parts should be cut off from civilized society, and should have to endure all the discomforts and privations of their lot, -without being deprived of the advantage of ordinary postal communication. When the closing of these small services is considered, with the fact that we are paying some £40,000 or £50,000 a year in extra salaries to officers delivering mails in the large centres of population, it would appear as if we were saving money at the spigot and letting it run out at the bung-hole.

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

– We should have the Postmaster-General in this House where we could talk to him.

Mr McCOLL:

– I do not wish to take up time, as we may be able to refer to this matter on the Supply Bill to-morrow. But I think it is time that country members, from whichever State they come, should band themselves together, and insist upon getting justice for the outlying districts. They have suffered from drought during the lost seven or eight years, and if we are now to have these small mail services closed, it is time that country members stood together to see justice done to the outlying districts.

Sir EDMUND BARTON:
HunterMinister for External Affairs · Protectionist

– On the question raised by the honorable and learned member for Darling Downs with reference to the weather bureau in. Queensland, I have to say that I understand that that is a private enterprise subsidized by the Governments of Queensland and of New South Wales, at least, if. not by some other State Governments. I inquired this evening when the honorable member spoke to me on the subject, and found that no communication as to the intended closing of this office had been received by my Department, although I am aware that there has been lately in the newspapers a paragraph of which, of course, I could not take official cognizance. The Government is not in any way responsible for the closing of this bureau, because it was open to the Queensland Government, as in the case of all the other States, to support their Meteorological Bureau or not as they pleased. The Post and Telegraph Bates Act was, as the honorable member rightly says,amended during its passage. Section 5 reads as follows : -

Telegrams, letters, and postal articles transmitted or posted on behalf of the King, the Commonwealth Government, or any State Government, shall unless exempted by some Act be subject to the postal and telegraphic rates for the time being in force. Subject to such regulations as the Governor-General may prescribe, telegrams may be transmitted without charge on behalf of the Meteorological Department of or subsidized by a State until the establishment of a Commonwealth Meteorological Department.

The Government has faithfully fulfilled its obligation undertaken in that section, and telegrams for this bureau have been franked.

We could have done no more, because the Act is rigid in demanding that everything shall be paid for except in those cases where there’ is an exemption. I think honorable members will see that what has occurred is independent of anything that the Commonwealth could have done. At the same time I do not pretend to apportion any criticism to the Queensland Government or any one else in this matter, because until we legislate on this subject any Meteorological Bureau- that is, any official bureau constituted with the consent of the Government - is a State and not a Federal matter. I admit that it has been found necessary by the Postal Department in some cases to close minor offices, and that that has occasionally caused some friction. There is a difficulty in this matter, because honorable members are all very well aware that the Government is continually told, at any rate in quarters not within the House, that it must spend nothing, but that everything must go on in just the same way. How that kind of thing is to be carried out mustbe left, to the very sapient people who give . the advice. It is the duty of the Government to carry out economies so far as it can legitimately be done, and done without the infliction of unnecessary hardship. The complaints which have been made tonight about mail services, together with those relating to telephone matters, will be’ laid before the Postmaster-General, whose attention will be drawn to the report of this debate. As regards .the question of the contract for Federal works and the minimum wage, I heard nothing about it until I returned from Sydney, but I corroborate what the Minister for Home Affairs has said. We shall endeavour to take such steps as’ shall insure that when State Governments are carrying out public works on behalf of the Commonwealth, any obligation which is imposed upon the Commonwealth, even by resolution of the House, shall be faithfully adhered to. I may inform the honorable member for Eden - Monaro that I lament the occurrence which he says has happened at Milton.

I am able to assure him that it is owing to no fault of this Government, and here, again, I do not wish unnecessarily to criticise any State action. I content myself with saying that any delay which has occurred is in no sense due to the fault of the Commonwealth Government, and that we shall do our best to see that such delays do not occur in the future. Question resolved in the affirmative.

House adjourned at 10.45 p.m.

Cite as: Australia, House of Representatives, Debates, 30 June 1903, viewed 7 November 2016, <http://historichansard.net/hofreps/1903/19030630_reps_1_14/>.