1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Report (No. 4) presented by Sir John Quick, read by the Clerk, and adopted.
– I wish to know from the Minister for Home Affairs when he expects to receive the further report of Mr. Houston upon the New South Wales electoral divisions 1
– I know unofficially that Mr. Houston is at the present time considering the objections which have been raised to the proposed divisions as submitted to the public, and I presume that, as soon as those objections have been dealt with, he will forward the divisions which he proposes to recommend to this House.
– Has the Minister any idea when they will be ready?
– I have not.
– I desire to ask the Prime Minister a question without notice, in reference to a cablegram which appeared in the press on Monday last. The cablegram to which I refer reads as follows : -
The War-office, replying to representations by the Australasian Chamber of Commerce in London, states that the distance between Australaand Great Britain precludes Australia from being regarded as a source of supply of horses for the army. It adds that the Government has been invited to form remount-breeding establishmentsin Australia.?
Can the Prime Minister furnish the House with any information upon the subject?
– I am not quite sure that I saw the telegram referred to, but I know that the distance of Australia from England makes it difficult to obtain remounts here for the use of the British Army in the United Kingdom. The British Government was invited by me, on behalf of this Government, to establish remount stations in Australia, but the representations which I made on the subject have not been favorably considered. That is the only information of which I am at present in possession.
Sir WILLIAM LYNE laid on the table
Public Service Act - Amended regulations (146 and 155).
– I wish to know from the Minister for Trade and Customs if the Government have arrived at any decision us to the policy to be pursued in connexion with the case of a man named Tingey, who was convicted of an offence against the Customs law, in regard to which the Prime
Minister stated that the fine imposed would be remitted, while the Minister representing the Minister for Trade and Customs said that it would not be remitted?
– The course pursued was that which it was indicated by the Prime Minister would be pursued.
– Is the Minister representing the Postmaster-General aware that, whereas the officials in the Brisbane Post-office have been paid overtime for the sorting of the English mails, no overtime has been paid during the year to officials similarly employed in the Sydney office ? Will he inquire why such discrimination has been made?
– I shall be glad to make due inquiry.
asked the Minister repre senting the Postmaster-General, upon notice -
– The answers to the honorable member’s questions are as follow : -
Bill read a third time.
Mr. DEAKIN (Ballarat - Attorney-
General). - I move -
That the Bill be now read a third time.
In view of the importance of this Bill, and of the amendments made in it, and because of the misconceptions which apparently still exist in regard to its provisions, I ask the attention of honorable members for a few minutes, while I endeavour to put plainly before .them the effect of the present measure. As honorable members are aware, it was materially altered in Committee, and consequently much of what was said in regard to it by the Prime Minister and myself, both last year and during the second-reading debate, is now inapplicable, and likely to mislead those who depend upon the statements then made. The measure, as amended, complies with the mandate of the Constitution, and will, I think, prove of great value, but in my judgment it would have possessed much greater value if honorable members had seen fit to agree to it as originally introduced. It was, however, caught in the rush for retrenchment, which, to my thinking, though reasonable in many of its objects, was in this case misdirected. I do not find much ground for surprise at the misconceptions which have clustered round the measure. The feature which has presented itself to all its critics is the proposition for the establishment of a High Court. To the average man a court is a place to which he resorts unwillingly, with no anticipation of profit, and, at the best, with only a hope of securing what he deems to be his rights, by a process sometimes prolonged and generally costly. The proposal to create another cou rt, therefore, was one which those who regarded the matter only in the light of their private interests and personal experiences might well hesitate to agree to. So far as I can judge, the measure has been criticised only in that light. The proposal which has been kept under the public gaze is its effect in regard to private suits.
– The opinion that there is no need for a High Court has arisen wholly outside, and almost wholly inside, this Chamber, from the fact that public attention has been confined to what I may term the private side of the measure - its operation in private suits. Therefore all I could do was to endeavour to recommend it by now making a last effort to inform the public that this Bill will not be fully understood if its provisions are regarded only from the stand-point of the casual litigant. The Government did not desire to interfere with him. We wished neither to throw further obstacles in his path, nor to multiply the occasions upon which hewould have to appear before any courts. But apparently the proposal to create a new court has appeared to the people merely as an additional burden to be borne by those seeking to enforce their legal, rights.
– Not one person in ten of those who objected to the Bill is a possible litigant.
– The number of possible litigants may be small, but the prospect of additional litigation was so uninviting that, from the first, the Bill had to encounter strong opposition. What I wish to point out is that althoughone of the chief purposes of the courts is to,, as far as possible, secure justice between citizens, and determine disputes, their functions by no means stop there. Although, under our system, suits are conducted practically at the cost of those engaged in them, except so far as the public contribute tothe expense by maintaining the courts, and although the attention of the courts is chiefly directed to the decision of private suits, many questions directly affecting important public interests arise out of such litigation. It is partly because of this that the country maintains the courts, although it might be compelled to do so even if the)”only settled private contentions. Therefore,, the courts have to be considered, not only in their relation to private suits, but in connexion with their public functions. These have a far-reaching effect upon the public well-being. It is because of the publicfunctions which the High Court would be called upon to discharge that the Bill was introduced at the present time. It was not brought in simply to provide another court of appeal, to establish a final, or if not final, an Australian court of appeal which has long been desired in the States, but because the litigation which takes place under and about our Constitution must lead to its authoritative determination, and to either the development or to the curtailment of its purposes. The public functions of the High Court have been left out of consideration in the debates which have taken place in this House and outside.
– What does the AttorneyGeneral mean by the curtailment of the Constitution 1
– What I mean is, that the particular powers given to the Commonwealth have to be applied to the exact circumstances of each case as it arises, and the Application may - judging from the standpoint of the man in the street - be either of 41 restrictive or an expansive character. Of course, an interpretation, when given, is neither expansive nor restrictive, it is simply Authoritative; but it may so appear to those who have read the Constitution in a cursory fashion, or in the way that a newspaper reader reads a leading article It is in the incidental decisions of the court, particularly in regard to the interpretation of the Constitution, that the importance of this Bill lies. For that, if for no other -reason - putting aside the Constitution for the moment - the Government would have been justified in pressing this Bill upon Parliament this session. But for this consideration we should not have been justified in incurring the expense. When, therefore, the public functions of the court have been wholly disregarded and set aside, it becomes necessary to remind the public once more that the High Court has high duties to the whole community.
– Could not the AttorneyGeneral make his statement a little more concrete 1 At present it is so vague.
– I shall try to do so. I would direct the attention of the honorable member to the fact, with which’ he is no doubt familiar, although some of our constituents may not be equally well acquainted with it, that the development of English political liberties was largely assured, especially during the time of the Stuarts, by the law courts. The action in which John Hampden was engaged for the 20s. of ship money was, in the eyes of most people at the time, only an ordinary action at law, but it marked one of the crises in English history. The judgment then given formed one of the foundations of our liberties.
– But they did not appoint a new court in. order to try the issue.
– No ; because there was no federal necessity. It would be easily possible to call to mind a series of cases in the history of the old country which have marked turning points in the development of the British Constitution. That is, an unwritten Constitution which has been determined from time to time largely by the judgments of the courts. Professor Dicey, in his Law of the Constitution, 5th edition, page 32, calls attention to this commonplace of constitutional law, but it is a commonplace which may be not inappropriately quoted to-day. He points out a series of cases associated with the names of John Wilkes and Charles Bradlaugh, in the course of which many of the most important definitions relating to political liberties we possess were given. He goes on to point out a number of questions such as those relating to the right of public meeting, the true definition of unlawful assembly, the question as to how far citizens lawfully assembled may assert their right of meeting by the use of force, and the limits within which the Constitution recognises the right of self-defence. He says -
These are questions, some of which have been raised, and all of which may any day be raised, before the courts. They are inquiries which touch the very root of our public law. To find the true reply to them is a matter of importance to every citizen .
There are a few sentences following that which I wish particularly to read. He proceeds -
The fact, however, that the provisions of this law are often embodied in cases which have gained notoriety, and excite keen feelings of political partisanship, may foster a serious misconception. Unintelligent students may infer that the law of the Constitution is to be gathered only From famous judgments which embalm the results of grand constitutional or political conflicts. This is not so. Scores of unnoticed cases, such as the Parlement Beige, or Thomas v. The Queen, touch upon or decide principles of constitutional law. Indeed, every action against a constable or collector of revenue enforces the greatest of all such principles, namely, that obedience to administrative orders is no defence to an action or prosecution for acts done in excess of legal authority.
He admits that there are scores of unnoticed cases which have played an important part in the definition of the unwritten Constitution of England.
– Have we any problems pressing for decision now t
– I think that we have a cloud of them, and that the honorable member knows of them. The British Constitution differs from our own in character and essence, so far as an unwritten Constitution differs from a written Constitution ; but honorable members have only to glance for an instant at the law reports of the United States of America to see that, in the definition of the written Constitution of that country, the law courts have played so important a part that it would be possible to write a complete history of the United States, and to record every one of its developments from such reports alone.
– The law courts had to give a series of decisions upon the American Constitution, in order to prevent it from breaking down.
– That does not affect the particular argument, that what holds true of the unwritten Constitution of Great Britain holds true equally with regard to a written Constitution such as our own, and that the decisions of the courts with regard to the interpretation of our Constitution may become part of it in essence, and may be practically embraced within it. Every separate stage of the history of the United States is marked by some case which has been taken to the Supreme Court : such cases, for instance, as that of Chisholm against the Slate of Georgia, the celebrated Marbury v. Madison, the actions relating to the Dartmouth College, McCulloch v. Maryland, Gibbons v. Ogden, the Dred Scott case, which was the herald of civil war, or the Porto. Rica cases, which the other da)’ decided the immensely important question of the colonial expansion of the United States. A number of other cases might be mentioned. All of them mark historical stages in the growth and development of the Constitution of the United States. Haying regard to such achievements of the Courts, both in the mother country and in the United States, we are justified in pointing to the duties which the High Court will be called upon to discharge in the interpretation of the Commonwealth Constitution, and in the interpretation of Federal legislation. Particularly in our early years, problems as grave as those which were settled by the decisions of the United States Supreme Court will require to be solved, and in order that these problems may be dealt with by a Federal tribunal, we have felt justified in urging upon the consideration of the House the necessity for the establishment of the High Court. In the United States the Supreme Court has become what lias been termed an organ of its national life. It has been recognised as one of the three great powers under its Constitution. The part it has played has been only second to that of the Congress from which it derived its endowment of power, and which has during the last century obeyed the monitor .which was created to safeguard the rights of the States and to determine the just distribution of the powers under its Federal Constitution. It was with these aims - still ignoring the Constitution - that this particular measure was introduced. A High Court was proposed which would be adequate to the fulfilment of the great State obligations devolving upon it. It is perfectly true that these great duties would have been exercised in connexion with private litigation. But we are at the commencement of the life of this Constitution, in its application to practical affairs. We are at a period parallel to what has been termed the critical period of American history. The term of the first Parliament and the next few years will be the critical period of the Commonwealth Constitution. The question as to how the Constitution is to be precisely interpreted when applied to the facts and events around us, is the great problem which Parliament itself will be unable to solve. That can only be done by a judicial tribunal constituting the highest judicial authority in the community. In such circumstances everything which makes for the reputation of that body, everything which enhances the dignity and force of its judgments, is of high value to the community. If we are fortunate enough to obtain under this Bill - as I certainly think we should have obtained under the measure as it was drafted - a court to which the whole of Australia can look with confidence for the discharge of its public functions, and for the interpretation of this Constitution, we shall have attained something, the monetary value of which cannot be estimated. Such a tribunal may easily prove of inestimable worth to the Commonwealth or the States, or to both, by reason simply of the interpretations which it will put upon our Constitution during the first few years of our national history.
– Will not the public look to it with confidence now 1
– I hope that they will. The numerical strength of the High Court Bench is one of the elements which properly impresses public opinion, and in my opinion it was our duty to have surrounded the court with every accessory which could have lent weight to its decisions. The truest economy lay in creating the best possible tribunal. On the ground of pure expediency, in order that we might constitute an Australian Court of Appeal- long desired, even for the settlement of ordinary State litigation, so that our appeals could be settled, so to speak, “ within ourselves “ - I submit that the Bill, as introduced, provided for the creation of a tribunal no whit in excess of the reasonable requirements of the times. But we had another obligation to which T. propose to allude, because it has been brushed aside by our outside critics as if it were a mere matter of fancy or preference, and not one of obedience and loyalty to the Constitution. I again submit to’ the House with brevity, but with renewed confidence, that every independent and impartial critic of this Constitution must admit the mandate that exists for the creation of the High Court.
– Why say every independent and impartial critic ?
– “Because I mean it. What else should I say ? Of course, members of the legal profession are accustomed to take either side, as they are instructed. That is their everyday practice in the courts. Therefore, it is only to be expected that the partizan feeling which is manifested upon all measures, whether they be legal or otherwise, and by all honorable members irrespective of whether or not they are professional men, will often supply the place of legal instructions. A further examination of section 71 of the Constitution, to which the honorable and learned member for Indi called particular attention, makes the case for the immediate carrying out of the mandate contained therein much stronger. Under that section it was clearly intended that whatever might be done in the way of vesting States Courts with Federal jurisdiction, or of creating other Federal Courts, the High Court should be ‘established forth. ‘ with, and that there should be no vesting of Federal jurisdiction in any other tribunal, unless it was simultaneously associated with a High Court.
– Does not the Constitution create the High Court?
– Iri a measure it does ; but I would point out to the honorable and learned member that effect has tobe given to the mandate of the Constitution, otherwise we shall have to remain content with a shadowy sketch of the ground-plan of a High Court which could never hear a single suit or pronounce a single judgment.
– While the ‘Constitution provides for the establishment of a High Court it does not organize it.
– Exactly. Section 71,1 submit, when read in conjunction with section 73, alfords an additional argument for the immediacy of the mandate contained in this chapter.
– Then all the decisions which have been given in Customs cases by the Supreme Courts of the States may be wrong.
– It is open for that contention to be urged, but I agree with the honorable and learned member for Indi that the courts would adopt with extreme reluctance any view which would require the cancellation of any of those decisions. Reading the Constitution here, with a view to discovering whether or not the mandate for the creation of a High Court is instant, I am forced to the conclusion that the emphasis which the honorable* and learned member for Indi laid upon section 71 is justified, and that similar emphasis might property be laid upon the language of section 73.
– The ‘ honorable and learned member for Bendigo in his own book declares that it is mandatory.
– Yes, but of course every one is at liberty to alter or amend his opinion. Section 73 of the Constitution deals with the appellate jurisdiction of the High Court. It says-“ The High Court shall have jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of any Justice or Justices exercising the original jurisdiction of the High Court, or of any other Federal Court or Court exercising Federal jurisdiction.”
– The Attorney-General has omitted the very vital words - “ With such exceptions, and subject to such regulations as the Parliament prescribes,” showing that the whole jurisdiction may be taken out.
– But it must be taken out by Act of Parliament. Under the Constitution it is mandatory that we shall create a High Court, whether we impose exceptions and regulations or not.
– Yet we have done without that tribunal for two and a half years.
– We have deferred its establishment too long. At the same time the Government did not permit two and a half years to pass, without taking any action. The Judiciary Bill was submitted last year, but was not dealt with, partly because of certain action for which the leader of the Opposition and his friends have taken credit, and chiefly because we were confronted with another mandate in the Constitution, namely, that we should within two years pass a uniform Customs Tariff Act.
– More than a hundred years were occupied in determining the meaning of the American Constitution.
– I have no wish to detain honorable members at undue length.
– The Attorney-General has opened up a very fine field for discussion.
– I had no desire to do so, but it is necessary that the public should be given to understand, by means of Hansard, what is the precise meaning of this measure, and what the changes in it imply.
– The public will not be assisted to such an understanding by the manner in which the section was read by the Attorney-General.
– That is a very improper remark.
– The words omitted have nothing to do with the argument.
– Since the suggestion has been made that I improperly omitted certain words from the section, I will read it in its entirety. Section 7 3 provides -
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determineappeals from all judgments, decrees, orders, and sentences :
Of any Justice or Justices exercising the original jurisdiction of the High Court ;
Of any other Federal Court or Court exercising Federal jurisdiction ; or of the Supreme Court of any State, or of any other Court of any State from which, at the establishment of the Commonwealth, an appeal lies to the Queen in Council;
Of the Inter-State Commission, but as to questions of law only;
And the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.
Here again is an absolute mandate that an appeal shall lie to the High Court from the
States Courts, from every court exercising Federal jurisdiction and from other Federal Courts. The language of the section plainly shows - as dues the language or section 71 - that the clear meaning of the chapter relating to the Judicature is that the High Court shall be established simultaneously with the creation of any other Federal Court. This section supports that reading of section 71 of the Constitution, and the two provisions, when read together appear to me to constitute a distinct mandate, not only for the creation of the High Court but for its immediate creation, in order that it may render absolutely valid the proceedings of any court which may be endowed with Federal jurisdiction. Under these circumstances we require to ask ourselves what kind of a court should be instituted. If such a tribunal be intended to focus Australian law as a Court of Appeal from the decisions of all the Supreme Courts of the States, and to expedite remedies byprovidingfor a satisfactory settlement of suits, without the necessity for appeals oversea, then it should be strong enough to command confidence. In order to encourage appellants who, under the Constitution, are allowed an option regarding the authority to which they shall appeal, it, was also desirable, if not absolutely necessary, that the High Court should compare favorably with the courts from which appeals were to be made. Under these circumstances, it required to be a court of some numerical strength, because, in the larger States of the Union, wealready have Benches of highly competent men, numerically stronger even than the Bench of the High Court, as originally proposed. In the same way, it was a matter of importance that those who were invited to accept seats upon its Bench should be men of equal repute and standing with those upon the States Courts Benches, from whose judgments appeals were to be heard. Finally, as the High Court was to be established as an essential part of the Federal system, in order that it might act as an independent umpire between the Commonwealth and the States, or between the different organized powers of the Commonwealth, and as it was intended that jts members should become skilled arbiters in the settlement of Federal issues, it became necessary that it should be sufficiently strong in numbers, and consist of men of sufficient repute, to give it a standing which would practically make it - at any rate, in the great majority of cases - autonomous in the legal sense.
– Does its strength depend upon numbers ?
– Partly. Other things being equal, it does.
– Then we should require about ten Justices to constitute the High Court Bench.
– I think that- five would be ample for the business which they will be called ‘ upon to transact. It was clear from the first that it would not be possible to fulfil the mandate of the Constitution, nor to comply with the needs of the situation, if it were a composite court, constituted either by choice or chance out of the States Benches, and allowed to assemble at State convenience, for dealing with Federal causes. I am happy to say that the destructive criticism of this proposal was so effective in this House that no similar proposal was even submitted in Committee. Even the cursory consideration given to this project before the Bill was read a second time was of so effective a character that it has been absolutely abandoned as unconstitutional, and as utterly unsuitable. Yet, a proposition which was scouted in the House, and never even formally submitted, is still revived by outside critics, as if it were an alternative open to us. But the House has realized that no such expedient could properly be introduced, having in view the special tasks which a court of this character is called on to perform. Accordingly, the Committee has shaped the Bill into its present state, which, needless to say, differs very largely from the form in which the Bill was introduced. The court first proposed was enlarged beyond the minimum requirements of the Constitution for reasons I have already indicated. We set out to make it as effective as the Constitution permitted - to invest it with the amplest jurisdiction which the Constitution allowed. In order to render it accessible in all the States, we sought to make the number of Judges enough to entertain with authority appeals from the Benches of all the States, and enough to interpret the Constitution so authoritatively that there would be little chance of appeals oversea from an)’ of its matured decisions unless the court itself were divided. Of course, I have to admit that the chapter of the Constitution dealing with the Judiciary left us trammelled, and with by no means a free hand in shaping the powers of the’ court. But we had to take the defective authority which this chapter gave, and make the best of it. At all events, we claim to have made the best of the authority by seeking to create a court which not having a single Judge too many would have had sufficient standing to attract, by its own character, appeals which otherwise would go to London and to obtain the confidence of the people of Australia, so that even many of the cases now taken to the States Courts would have been taken from a single J udge direct to the High Court. The States Courts would thus become, so to speak, divisional courts, and the High Court would have become the Court of Appeal for all Australia. By that means a Bench of five Justices, under the jurisdiction with which they were endowed, would, have sufficed, and just sufficed, for the work to be clone. With the jurisdiction proposed, the High Court would have obtained ample litigation to have occupied practically the whole of its time, or, at all events, the whole of its time with such additions of duty as were proposed to be made by other measures.
– I understood the AttorneyGeneral to say that there would be additional Judges for the purposes of those other measures.
– The honorable member is referring to measures to which 1 am not at this moment alluding. The honorable member is speaking of future Bills under which we may take over bankruptcy and insolvency jurisdiction. This jurisdiction now alfords heavy work in the States, and would certainly be heavy in Federal Courts.
– The jurisdiction may never be taken over.
– Never is a long time. The measure, as it has been passed through Committee, is, if anything, made slightly longer by the interposition of clauses from the High Court Procedure Bill. lt still makes provision for the exercise of the judicial power of the Commonwealth, and is well within our title; but it makes provision only for the minimum standard required by the Constitution. And in the same way throughout, it consistently adopts what may be termed the minimum jurisdiction which can be allotted under the Constitution. It gives us, therefore, the minimum court as to numbers, and practically the minimum court in point of authority and jurisdiction which the Constitution requires. It fulfils the mandate of the Constitution, but does nothing more. As a High Court it will perform valuable services to this community, and, although the area of its jurisdiction will necessarily limit its business, the great importance of, at all events, some of the causes submitted to it, will not only justify its creation, but will, I ‘ trust and believe, in a short time, more than justify its existence to the people of this country. Only by the test of practical experience - which may come early, or may be postponed - Of the work this court has to do, and of the manner in which that business will be transacted, can the country become thoroughly seized of what a High Court in a Federal Constitution means, and be able to assess its power to help the development - the political, and, possibly, the social and material development - of the people of Australia. This High Court, however, is not the High Court that was sketched in the original measure. And, therefore, I dismiss this part of the subject with a reference to the remarks made by me a month ago when moving the second reading. After referring to my responsibility for the opinions there expressed, I said, as reported on page 615 of Hansard-^
What I have said in regard to the need for the High Court and its potencies applies to the High Court which I have described. Nothing I have said attaches, or can be attached, to any other. I must not be held responsible if a court of another complexion is created. Those who create it will take the responsibility for its character, cost, and consequences.
I ask the House for a moment to look at amendments which have been made in the measure. First, they will notice that under clause 4. the number of Justices has been reduced to three, although five Justices, with the jurisdiction given, would certainly have been well occupied. Whether the three Justices, with the narrower jurisdiction allotted, will be equally busy, only experience - and in this I arn alluding solely to the legal work - can absolutely determine.
– The AttorneyGeneral still works hard for five Judges.
– I am still arguing for the appointment of five Judges.
– With the altered scope of the Bill, might it not be possible to reduce the three Judges by one ? The AttorneyGeneral seems to have a doubt whether the three Judges will be fully occupied.
– It is not possible to reduce the number, because three Judges are the minimum under the Constitution. It was estimated by the Finance Committee of the Convention that the expenditure upon five Judges with their officers - that is to say, State officers who must be paid - would be about £24,000 a year.
– That estimate was for three Judges.
– That does not appear in the estimate.
– All the estimates had reference to three Judges.
-But this estimate does not refer to three Judges, and no estimate I ever saw referred distinctly to any number. They simply estimated the cost of the . High Court.
– If the AttorneyGeneral asks any member of the Finance Committee he will be told that the estimate was for three Judges.
– But the members of the Finance Committee have not told me so ; and if the case be as now stated, there is so much more praise due to the Government, because under the system which was proposed in the Bill as introduced it would have been possible to obtain the services of five Judges for the amount which was estimated in Adelaide to be necessary for three Judges. The whole cost proposed here for the five Judges was £24,000 a year, with additions hereafter for any claims that may be made for pensions under the Bill - claims which for some years at all events would be very small, though requiring to be taken into account. Under present circumstances the cost of the High Court will be reduced to £18,000 or something less per annum ; and in this particular I adopt the figure of £18,000 as against myself.
– For three judges 1
– I am taking this figure against myself, as honorable members will see.
– It ought to be £9,000 per annum.
– The saving effected in Committee will amount to £6,000 per annum on the salaries of the Judges, with an additional saving in consequence of the reduced travelling expenses.
– Does the AttorneyGeneral say that the cost will be only £18,000 per annum?
– I hope so.
– I should like to have all that the court costs above that sum.
– The honorable member would not thrive on it. The saving made will be £6,000 a year on the salaries, with an uncertain saving on the pensions some years hence, and on the travelling expenses, which would have been required for the two extra Judges.
– The Convention estimate did not include pensions.
—.! have said that pensions would be an addition. The Convention did not say whether or not the £24,000 included pensions.
– As a member, I can say that the estimate did not include pensions.
– Was the honorable and learned member a member of the Finance Committee ?
– No ; I was a member of the Judiciary Committee, and I know there was no estimate as to pensions.
– I was not speaking of the Judiciary Committee, who were not consulted and who made no estimate ; and what they intended I do not know. There will be the saving on the salaries and the pensions, and also on the travelling expenses, the latter of which would operate almost at once. For this expenditure we get a Bench of three Judges to act as a Court of Appeal from seven Judges in New South Wales, five Judges in Queensland, and four Judges in Western Australia. In numerical strength the High Court will be the same as the Supreme Courts of Tasmania and South Australia. The High Court will, of course hear appeals from all the States Courts, irrespective of the number of Judges sitting, three being the usual number, although occasionally the States Courts consist of four, five, or six Judges. In securing Judges . for the High Court, we shall have to remember that in New South Wales, Victoria and Queensland, the Judges, taking into account the pensions allowed, receive higher salaries than those the Commonwealth will offer. The salaries offered for the High Court will be about the same as those paid in Western Australia.
– Does the AttorneyGeneral really want to pass this Bill ?
– I do.
– The Attorney-General has a funny way of endeavouring to pass, it.
– The High Court will cost considerably less than a quarter of the cost of the New South Wales Supreme Court, and less than half the cost of the Victorian Supreme Court. The High Court will cost £9,000 per annum less than the Queensland Supreme Court, and about £1,000 a year less than the Western Australian Supreme Court. Taking the estimate at £18,000 per annum, the Federal High Court will cost less than one-tenth of the cost of the Supreme Courts of the States. I therefore fail to see that any charge, either of extravagance or of undue liberality, can’ be brought against this court in view of the scale on which it is proposed to be instituted, and in view of the fact that when compared either in numbers or in cost with the courts of the States it adopts the standard of the smallest States of the Union. There are only two States which spend less on their Supreme Courts than it is intended to spend on the High Court for the whole of Australia.
– Do the States Judges have to travel over the whole of the Commonwealth ?
– No ; but they have to travel, over the whole of their respectiveStates, and with great frequency. It is proposed that the Judges of the High Court shall travel only to the various capitals, and considering the frequency with which the States Judges travel, and the distances to be covered in States like Queensland, we can see that the expenses in the case of the States must be considerably higher than will be the case in the Commonwealth.
– Will the AttorneyGeneral give us the details which make up the £18,000 ?
– I have given them in a previous debate. ‘ I come now to speak of the jurisdiction which is allotted to the High Court, and the alterations which have been made in that respect in the original Bill. In the Bill presented to the House, the exclusive jurisdiction of the High Court was provided for in clause 40 ; it is now contained in clause 39. From the exclusive jurisdiction originally proposed, matters affecting consuls, which would very rarely reach the court : suits against the Commonwealth, which would be frequent ; and cases in which an order or writ is sought against a Commonwealth officer, which would not be infrequent, have been omitted. All such cases must have gone to the High Court under the Bill as drafted ; none of them need go to it under the Bill as it now stands. Then the original clause 41 required litigants to appeal to the High Court in matters of Federal jurisdiction from the decision of a single Judge, or from the Full Court of a State. That provision would have created a very considerable number of appeals. It was, however, amended, and sub-clause (/>) of clause 40 of the Bill as it exists provides only for an optional appeal, so that the number of appeals is now uncertain. Clause 42 of the original Bill provided that, with the exception of the matters mentioned in sub-clauses (a) and (6), any question of Federal jurisdiction could be removed as of right from the Courts of the States to the High Court. The power of removal as of right has disappeared.
– Does the Attorney-General regret that ‘!
– Of course, I do.
– The honorable and learned gentleman abandoned it without a word of protest.
– I abandoned neither that nor any other part of the proposed jurisdiction until I saw that it was hopeless to expect to carry it; and that to persist would involve waste of public time. The results of the divisions in Committee amply justified my action. Original clause 45 has been struck out. Under it cases could be removed from any court of a State to the High Court by order of the High Court on the application of the Attorney-General. That jurisdiction was not compulsory, but the power would probably have been often exercised. All that now remains is the power of removal to the High Court as an appellate tribunal in matters arising under the Constitution, or involving its interpretation. All other matters of Federal jurisdiction are now outside that power. So much for the exclusive or in part compulsory jurisdiction of the court. With regard to its appellate jurisdiction, clause 31 of the Bill, as drafted, vested in the High Court the whole of the original jurisdiction permitted by section 76 of the Constitution. That jurisdiction includes cases arising under the Constitution, or under the laws made by the Parliament, Admiralty and maritime 5 y jurisdiction, and. cases relating to the same subject-matter claimed under the laws of different States. That jurisdiction of the High Court has disappeared, except in regard to matters arising under the Constitution, involving the special class of questions provided for by section 74, in regard to which the decision of the High Court is final, except by its own consent. Finally clauses 05 and 66 of the draft Bill, providing for the original criminal jurisdiction of the High Court, have been negatived. Honorable members will, therefore, see the definite curtailment which has taken place in regard to the exclusive jurisdiction of the court, and the indefinite curtailment in regard to the remainder of its original jurisdiction. The court now proposed is smaller, and has a narrower jurisdiction than that originally provided for, the Committee having thought fit to agree to a minimum court, with practically the minimum jurisdiction. I must bow to that decision. The Bill, as amended, however, still fulfils the mandate of the Constitution for the creation of a High Court. That court will possess jurisdiction of an optional nature, which the Committee did not see fit to reduce. This leaves it a court of appeal to which suits may be brought either from the High Court in its reduced original jurisdiction, or from the Supreme Courts of the States, or from the decision of a single J udge of a State Court, and from any court from which an appeal now lies to the King in Council. As an appellate body, it is almost the High Court contemplated by the Constitution, but its appellate jurisdiction has not been made compulsory to the extent originally proposed. As an optional court of appellate jurisdiction, it can exercise the remaining powers given by the Constitution. Altogether, the part which it will play in the legal systems - or legal system, as I hope it will become - of the Commonwealth, will be great and steadily increasing. I could have wished that the court had been numerically stronger for the hearing of appeals, but at all events it possesses powers which are not possessed by any other court except the Judicial Committee of the Privy Council, and these, in regard to matters of Federal jurisdiction, at all events, are to some extent safe-guarded by the Bill. Its appellate control in matters of Federal jurisdiction heard in the States Courts will be invaluable. If the court had been created for nothing else, if it had been possible for the Committee to sweep away, not only its optional, but the whole of its original jurisdiction, I should still have contended that we should act wisely in agreeing to its establishment as a court of appeal hearing not only appeals from the States Courts in ordinary matters, but especially appeals in the exercise of their Federal jurisdiction. In this regard it will have in some respects a partially compulsory power. The work of the High Court may be reduced at the choice of suitors, but its interpretation of the Constitution and of the laws of this Parliament, when suitors resort to it, as they must in certain cases, will be invaluable in the development of the Commonwealth. If the High Court will not be the fully equipped and fully manned body originally proposed, it will still be a court of high jurisdiction, of great powers, and of great authority. More than that, it will be a Federal Court, and by its acts and judgments will gradually acquire that place in the estimation of the people to which it will be entitled. When it is realized that the court will be open, not merely for the settlement of matters of private concern, but that incidentally it will necessarily deal with national questions of magnitude in, I trust, a national fashion, no one who has been associated with its establishment will have reason to regret that the mandate of the Constitution has been fulfilled. No doubt some little time .will elapse before litigants come to realize its advantage, or it is discovered how far it is available to suitors. lc cannot be expected to enter upon its full functions all at once. That must be so with any new body.
– We shall have to radically amend the measure within the next twelve months in order to make it workable.
– To what part of the measure does the honorable- and learned member allude ?
– I believe that it is largely unworkable in regard to the provisions for the appointment of only three Judges.
– Does the honorable and learned member suggest an amendment involving the alteration of the judiciary chapter of the Constitution, or the full powers exercised under it 1
– Not necessarily.
– Among the questions which will be submitted to the court within a comparatively short time are such problems as the power of this Parliament to levy duties upon the imports of the States Governments, as to the interpretation of the law of waters applied to Australian streams, as to whether the Customs Act is valid, as to whether other judgments which have been given in the States Courts in the absence of a High Court can be sustained, as to the exact interpretation of the provision in the Constitution which authorizes Parliament to legislate in regard to industrial disputes extending beyond any one State, and as to the precise meanings to be given to the. phrases of section 125 of the Constitution, inserted by the Premiers’ Conference, and concerning important questions connected with the choice of a Federal capital site. These are a few of the matters which will come before the court. I think the public will discover that it has not been created a day too soon, and that the functions it will be called upon to fulfil will prove the necessity for its existence. In some of them, or in all of them, the High Court may be compelled to take an intermediary position - that is to say, even after the decision of a High Court has been given, the question at issue may be taken further. It will, however, be of immense advantage to have all these issues regarded, from a broad Australian aspect, by a tribunal equally independent of the Government of the Commonwealth and of the Governments of the States, or of any other embarrassing associations, and enjoying the absolute liberty and independence granted to all courts in the British Empire. When matters of this kind are found to be at issue, their determination by the High Court of Australia will be the best answer which those responsible for its creation can give to those who are now questioning the wisdom of our action. Personally, I would rather have had the complete measure, because that would have launched the High Court fully equipped for the performance of its great task ; we must’ now rely, as we have relied before, upon a smaller Bench - providing, of course, that we are able to obtain under the terms of this measure the best men eligible for the positions of Judges. Although the Judges will be only three in number, we may trust to their ability and reputation to establish an authoritative court - even without the support of numbers with which I should gladly have seen them buttressed - in such cases as are likely to come before them. We can point to courts no stronger than that now provided which have done excellent service in the States. This is, at all events, the germ of an adequate High Court. It will grow. If a Bench offive Judges had been approved of we should have been able to relieve the courts of the States of a considerable amount of work, and by indirect economies might have largely recouped the expenditure involved in the establishment of the High Court. But that is an old story which I do not desire to repeat, except to say that, whilst believing that the larger court would have been more economical and more efficient, there is no question but that a court such as Australia has not yet seen can be established under this measure. As an appellate body it will lack few of the powers conferred by the Constitution, though as a court of original jurisdiction it will lack very much indeed. It may, however, be trusted that hereafter its conduct and experience of its labours will lead to necessary enlargements of its functions. Ultimately, no doubt, the court will become the foundation of a High Court, which will, I trust, fulfil the expectations, not only of members of the Government’, but of every commentator who has yet written upon the subject. If honorable members are disposed to think that we have taken too lofty a view of its functions and position, they have only to turn to the writings of Messrs. Quick and Garran, Mr. Justice Clarke, of Tasmania, Professor Harrison Moore, of Melbourne, and Professor Dicey, who in his sixth edition refers to it. There are also criticisms in the English and American law magazines. Every legal critic of this measure in the new or the old world has referred to the great functions, the high position, and the dignity of the High Court of Australia ; has compared it with the Supreme Courts of the United States and of Canada, and with the greatest tribunals in England ; and has expressed by anticipation his large expectations regarding the achievements to be expected of a body enthroned, as this body is, in the Australian Constitution.
– Professor Harrison Moore does not approve of its creation at present.
– He spoke of the High Court in the first year of the Common wealth, when it was clearly impossible to undertake its creation.
– No ; I do not refer to that. In an article published in March last he said that it was not necessary to create the High Court at present.
– I read the article referred to, but do not remember the passage to which the honorable and learned member has no doubt correctly referred. That, however, is a side issue. I was alluding to the importance, the dignity, and the power of the High Court. Its urgency is implied, although, perhaps, not expressly stated, by every other authority. I have felt it necessary to compare the measure as it leaves the Committee with its condition as it was introduced, in order that honorable members may be thoroughly seised of the effects of the changes made, and so that there shall be no possibility of mistaking the court as constituted for the court originally proposed by me. I have briefly alluded to the reasons why the court was created, and have also insisted that, curtailed as it is, clipped as its wings have been, it is still a court invaluable to Australia in its appellate jurisdiction, and capable of being easily expanded. It is a necessity, in my opinion, under our Constitution, and at least a fulfilment, although only to a minimum extent, of the mandate contained in it.
– I suppose the admirers of the Attorney-General will feel almost sad at the prospect of the disappearance of this particular item from the Parliamentary business-paper. He was able, during our long and bitter struggles over the Tariff to maintain a stolid silence, but there was always one theme upon which he was able to rise to the highest flights of oratory, to sound the most profound depths of earnestness, and to stretch to the utmost the limits of human persuasion. That was the Bill with which we are dealing today. I can imagine now the ardour with which his colleague will follow in his footsteps. The desperate attempt which the Attorney-General has made to establish a court of five Judges will be emulated by the Minister for Trade and Customs, who, in his impassioned earnestness, will endeavour to secure the appointment of an Arbitration Court of five Judges, and by the Minister for Home Affairs in connexion with the appointment of the Inter-State Commission. The marvellous ability and devotion which this Government lavish upon the creation of lucrative positions in the Commonwealth has become notorious. I only wish they would show as much earnestness in regard to, well, I do not say more important, but less expensive, forms of public usefulness. The Attorney-General has, it seems to me, taken upon himself a very grave responsibility. Is he pronouncing the funeral oration upon those parts of the Bill which he considered good, and which have been abandoned, cr is he making a deliberate and studied appeal to the other Chamber to undo the work of this House ?
– I did not think of the other House.
– Then why waste the public time? If the Attorney-General wished us to reconsider our decision, the address delivered by him would have been most weighty, and perhaps most useful ; but inasmuch as he, although drawing a most discouraging picture of the future which awaits this measure, will not even take the trouble to ask the House to change its decision, why should he make such an elaborate reply .to outside criticisms ? We know that Ministers do not deliberately waste the public time; but the speech of the Attorney-General sounds very much like an appeal to members of another place to undo the work of this House. I cannot understand a Minister, when speaking upon a matter of great public importance, saying that he cannot take the responsibility of the Bill of which he has moved the third reading. I could understand a Minister saying, as the Minister for Trade and Customs said, that his confidence had been broken, but that he still took the responsibility of his act. He stood out in a manly way, and said that it was through him that something unfortunate had happened. Contrast his attitude with that now taken up by the Minister upon this most important Bill. The measure, instead of being launched as the legitimate offspring of the deliberations of this House, is branded by the Attorney-General as an infant of doubtful origin - whose paternity he will not acknowledge. This is an extraordinary position for a Government to assume in regard to one of its principal measures. Is there no point at which the sense of responsibility of the Government will make it clear to them that they must choose between occupying a position of guiding the House and of merely following it as a recorder of its decisions 1 What is the office of responsible government but, in such cases, to make the full weight of the views and opinions of the Government of the day felt by this House 1 This Bill has never been in any sense a party matter. As honorable members know, I have not made the path of the Government more difficult in connexion with this Bill.
– Does the honorable and learned member suggest that it should be treated as a party matter ?
– My honorable friend surely ought to know that quite distinct from ail party questions is that of the attitude which a self-respecting Government should take when it ceases to lead the House. The honorable member knows that this is not a question of party politics, but one which affects the soundness and integrity of our system of government. I know very well that there are some honorable members who wish to make the Government the puppet of a certain caucus. No doubt they are wise in their day and generation, holding certain views, in honorably and most successfully impressing them upon a number of persons who are willing to carry out their purpose ; but that does not affect the question with which I am dealing. There are points at which a Government has to consider its position - to consider the extent to which it will allow itself to be driven. As far as this Bill is concerned, I wish to point out that the Government in their manifesto said that it was the one measure which should be brought into operation at once. The AttorneyGeneral to-day says that this is something more than a Ministerial proposal - that the thing itself has been in the Constitution from the moment when that instrument was brought into force. Who is responsible for allowing the Constitution to remain dumb in reference to this High Court for the past two years 1 In spite of the differences of opinion in this House, the Bill was passed through practically in a few sittings. Therefore, what excuse had the Government for not bringing the Bill down and getting it passed as one of the very first measures of the first session 1 Had they done so, in the glamour of enthusiasm which pervaded this Chamber at that time, they might have secured legislative sanction for the appointment of five J Judges. But since then, events have caused the outside public to view with a very critical eye the burdens which are being piled upon the people both by the States Legislatures and by this Parliament. Irrespective of whether they are right or wrong, I think that every man who understands the real dangers of Australian democracy will be glad to see the public waking up to take a vigilant interest in the accumulation of national burdens. It may be that some of the imputations of extravagance on the part of the Commonwealth Government are entirely undeserved. I do not wish to champion every complaint that has been made against the Ministry in financial matters. I am very far from wishing to ‘ do that ; but I do applaud the growing disposition on the part of the taxpayers to watch financial matters with a very critical eye. It seems to me that the Government occupy a very strange position in regard to this Bill. The Attorney-General has just declared that the limitations imposed by this House upon the scope of the measure are such that there may not be sufficient work to occupy three Judges. Yet, after those limitations were imposed, the Government fought hard for the appointment of five Judges. The questions of jurisdiction, of the salary of the Justices, and of their number, were postponed until the true character of the measure had been determined. That matter was determined, and a majority of honorable members thought it prudent to very largely limit the amount of work which the High Court is to be called upon to perform. Yet we now find the Attorney-General asserting that, under these limitations, it is questionable whether the three Justices will be fully employed, despite the fact that, after they were imposed, the Government fought hard for the appointment of five Justices, and at a later stage, with the aid of the honorable and learned member for Indi, for the appointment of four. I say that the accusations made outside this House, more fully and clearly than those which have been made inside it, are absolutely justified, when we find the Government fighting for the appointment of five Judges to administer a Bill which they now admit can easily be administered by three. These are admissions of which the public will take some notice. I rather agree with the views expressed by the Attorney-General and the honorable and learned member for Indi that the High Court is part of the Constitution. If I could agree with those who think that we can absolutely dispense with that tribunal, I would most heartily adopt that course. But I confess that I am unable to see how we can properly fulfil the obligations of our Constitution without immediately establishing the High Court. But, admitting that, I .am heart and soul with those honorable members who have endeavoured to give that tribunal as economical and unpretentious a start as possible. Nothing in the world is more easy than to enlarge the number of lucrative positions. Nothing in the world is more easy than to pile up your expenditure with or without warrant. Nothing could be easier, if experience in the working of the High Court showed that three Judges were insufficient, than to appoint an additional number to meet the pressure of public business. I take the full responsibility - although I was absent from the Chamber - of everything that has been done in the way of cutting, down the provisions of this Bill in the manner described by the AttorneyGeneral. I think that the House did well in cutting them down, and in limiting the number of Judges, because it is very easy to alter mistakes which we make in the direction of economy. On the other hand, it is not so easy to alter mistakes which we make in the direction of extravagance. Therefore, I think the House has faithfully reflected the sentiments and the wisdom of the community in the course which it has taken. But I am profoundly disappointed with the attitude of the Government upon one matter. They were not always so ready to accept the voice of a majority in this House as they have been upon the subject of the granting of judicial pensions. Honorable members will recollect the decision of the House in respect of the* Bonuses for Manufactures Bill. They will remember the bull-dog pertinacity with which the Ministry clung to that measure - how they ‘allowed it to be turned inside out two or three times, how they permitted it to be torn from the Chamber down to the parliamentary cellars, and how afterwards a Royal Commission was appointed in connexion with it. Still they clung to that Bill. Why could they not have shown a little of that pertinacity upon some of the vital provisions connected with the measure under consideration? No one will deny that the trend of opinion in this part of the world is absolutely against the continuance of the pension system. Whether rightly or wrongly, the experience of the public in connexion with the enormous amounts which have been paid under the name of pensions has been so bitter that the tendency is to discontinue that form of remuneration. But I submit most earnestly to the House that there is one class of positions which ought always to be exempted from that wholesome rule. I believe that, as regards the Bench, the prospect of securing a pension is one of the chief inducements to first-rate men to accept comparatively small salaries. Why should men who have been deriving an income of £5,000 or £6,000 a year in their private practice, accept even a dignified office to which £3,000 is attached, if no provision is made for the possibility of their being overtaken by calamity or loss ? It is the pensions which have enabled the States of the Commonwealth to procure the services of the best men as Justices of the Supreme Courts, and which have tempted those men to accept half the amount of their former remuneration to fill these judicial offices. I think that a serious mistake has been made in removing that inducement from the Bill. Personally, I should much rather have reduced the salaries of the Justices than have excised all provision for the payment of pensions. When I speak of judicial pensions I wish it to be distinctly understood that I have no sympathy with the extravagant scale upon which the proposals of the Government were based.
– Does the right honorable and learned gentleman believe in the payment of pensions all round 1
– -I have just been explaining that, in my opinion, the trend of conviction in this part of the world is that the pension system should be destroyed, and I am taking leave to put our Judges upon a different footing. I take them out of the ordinary category. We can get thousands of clerks ; the public service is only too tempting to the mass of the people of Australia. But when we come to fill judicial seats, especially in the highest tribunal in the Commonwealth, we ought to obtain the best possible men. When we are dealing with instruments upon which exquisite issues depend, it is the falsest economy to apply ordinary rules. Of course, I do not suggest the payment of a pension representing seven-tenths of a Justice’s salary. I look upon such a* proposal as absolutely wrong. I refer’ to such a pension as would afford to a Judge the prospect of a decent subsistence should his energies suddenly fail. 1 am very sorry that the Government, who feel as strongly as I do upon this matter, havenot made another effort to induce the House - even at the cost of reducing the salariesof the Justices - to attach some pension provision to their offices. If that course is tobe adopted it can only be done here. Theother branch of the Legislature cannot increase the burdens on the people. In considering this measure it is absolutely debarred from proposing any alteration of thedecision of this House in that respect. It isbeyond its constitutional powers to do so. I desire to see this House transact its financial business here and not have a sort of court of appeal in another Chamber upon matters involving expenditure. The only opportunity we shall have of inviting reconsideration of the matter to which I havereferred is the present one.
– That question was settled long ago.
– We settled the salt duty several times, but nevertheless we had a. number of subsequent re-settlements of it and mysterious appearances and disappearances. We also remember the extraordinary history of the Bonuses for Manufactures Bill. Surely when the Government,, in the interests of a duty upon salt or in connexion with that Bill, could exhaust their” powers of persuasiveness in an attempt toreverse the decision of the Committee, they ought - seeing that they entertain the viewthat it is impossible to secure the services of the best men as Justices of the High Court.” without conferring upon them pension rights - to have made some similar effort upon this occasion.
– All but six honorable’ members voted, and several of them were against the payment of any pension.
– Then the Attorney-General is helpless. That is all right. We have a helpless Government. The force of arithmetic is sufficient to paralyze their energies. They are appalled at the prospect of reopening a question when they have not the necessary number behind them. Thatsort of courage can be obtained anywhere, at any price. I hold that the Government should have re-opened this question. That is the only point upon which I differ from, those honorable members who have amended this Bill. Upon every other point I take the responsibility of all the alterations that have been made. The cost of the courts throughout Australia is in itself a sufficient justification for a solid attempt on the part of this House to begin this system of administering justice upon a different basis. If the Attorney-General will not take the responsibility of this Bill-
– I do take it.
– The Attorney-General takes it in a way which is scarcely creditable, either to the object of his charity or to himself. He does not accept responsibility for this Bill in any proper sense. He has occupied an hour in explaining to the House how utterly wrong its decisions are, and how utterly wrong the Bill is. If the AttorneyGeneral will not accept proper responsibility for the measure, I suppose the House will have to do so. But it is a bad initiation of this High Court that the Government should not have taken a firmer stand in connexion with, at any rate, this one question, because I regard it as one on which the efficiency pf the Bench absolutely depends. I admit it may be rash to make such a statement. It is possible that there may be some gentlemen with the power and ability to sacrifice everything for such a position. If there are such gentlemen, we may obtain their services. If they have no responsibilities or anxieties in life they may undertake the duties ; but if they do so, I feel sure it will be on the ground that the Government will take the earliest opportunity of Attaching pensions to the office.
– That would be very wrong.
– It would be an absolutely wrong proceeding. I would never consider the position of a Judge of the High Court one which could be aspired to by the ablest men «,t the Bar only at the sacrifice of an enormous amount Of income. It is no secret, I am sure, that to the men at the head of the legal profession, whoso position is to some extent, at any rate, the test of their ability and legal knowledge, the salary offered is no glittering inducement. 1 consider that the pension proposal of seven-tenths of the salary was altogether too high, and I am thoroughly in favour of a more moderate proposal ; but I shall feel very anxious as to the fate of the High Court, unless some such inducement is offered. Moreover, I feel sure that some such inducement will eventually be offered, if not by this House, by some subsequent House.
– The honorable and learned gentleman ought to have made this speech ten days ago.
– How could I, a plain member, influence a House which had decided in a contrary direction by 60 votes to 6, the minority even not being quite sound on the matter?
– That was because the Government did not reduce the pensions.
– Surely the combined energies of His Majesty’s Ministers were quit6 equal to placing before honorable members a. matter like this with sufficient force and earnestness. The present position is most discouraging, after the brilliant introduction which the Attorney-General gave this measure. “We were told that the Bill had been put through the crucible over and over again - that it had been beaten out again and again until it was pure, refined gold. We were told that all the greatest legal intellects in the Commonwealth had been concentrated in framing an ideal measure, and it certainly was introduced in a speech creditable to any Bill of the kind, as we have all admitted repeatedly.
– If the existing States Judges were appointed, would they not retain their pension rights ?
– I question very much whether their pension rights would continue in such a case.
– I think they might continue under section 84 of the Constitution.
– It is very doubtful.
– I do not think it could safely be said that the pension rights would continue. The word “officers “is not intended to mean Judges.
– I was not here when the Bill was discussed, but I most heartily concur in all the amendments, except the one to which I have referred.
Mr. A. McLEAN (Gippsland).- I hoped that we had heard the last of this discussion : but, seeing that the Attorney-General has thought it necessary to go over the whole ground again, I cannot let the third reading pass without again emphasizing my protest against what I conceive to be an unnecessary additional burden on the taxpayers of the Commonwealth. All the eloquence of the Attorney-General has entirely failed to shake the conviction in my mind. The speech of the honorable gentleman may be divided into two leading portions. In the first place he sought to impress upon us the necessity of complying with what he conceives to be the intention of the Federal Convention in regard to the time when this court should be established. The AttorneyGeneral fully concurred with all that the honorable and learned member for Indi said in this respect, namely, that it is a matter of conscience resting on every member of the House to vote for the establishment of this court at the earliest possible opportunity. The other portion of the Attorney-General’s speech, so far as I could interpret it, was devoted to ridiculing the idea of attaching any importance to the tribunal for which the Convention provided ; in fact, he sought to cover with contempt the manner of court provided by the Bill at present, although he admitted that it complied with all the conditions of the Constitution.
– I do not admit that that is a fair rendering of my remarks or anything in them. I have no contempt for this proposed court at all.
– All the remarks went to belittle the court.
– It was pity, not contempt.
– Well, it was pity or whatever term honorable members choose to apply.
– It was neither.
– The AttorneyGeneral contrasted the miserable remnant of a Bill with the magnificent measure which he introduced, and then he admitted that the Bill at present complies with all the conditions of the Constitution. If the Constitution is infallible in one respect, why should we not credit it with the same infallibility in other respects? If the Attorney-General attaches such supreme importance to what he conceives was in the mind of the Convention as to the time when the High Court should be established, why should we utterly disregard the views of the Convention when we come to deal with the jurisdiction of the court and the number of Judges ? Again, the AttorneyGeneral, when referring to the estimate of the Finance Committee of the Convention as to the cost of the court, spoke of that estimate as applying to five Judges. Surely the Attorney-General does not mean to imply that the Convention secretly intended that there should be five Judges, and did not desire the people of the Commonwealth/ to suppose that there could be more than three 1
– No ; but I do not remember whether the Finance Committee’s report was or was not prepared while the Constitution provided for five Judges, or after the Constitution had been so altered as to provide for three. My recollection, though it may be wrong, is that it was while the provision for five Judges was in the Bill.
– I may tell the AttorneyGeneral that, having taken a prominent part in criticising some of the provisions of the Bill before us, I have made some inquiries, and have been informed that the Convention estimate of the cost, was based on the assumption that the number of Judges would be the number mentioned in the Constitution, namely, three.. If this court ought to have been established at the earliest possible moment, howis it that we have got on so well without it. for the last two and a half years ? If the court is necessary now it was necessary two and a half years ago, but the public havehad experience of doing without the court,, and they know very well that the necessity for its creation has not yet arisen. That is the reason that the Attorney-General., finds so much opposition to the measure out of doors. The honorable gentleman mustadmit that it is the people outside who have to pay for the court and they naturally look at it from a practical, business point of. view. The public do not look at this matterfrom the narrow, restricted point of view, from which persons who spend the whole of their lives within the atmosphere of the law courts must regard it.
– I was right in my interjection a moment ago. The change made in the provision of the Constitution Bill from five. Judges to three was not made until tha sittings of the Melbourne Convention, whilst the estimate was arrived at during the. sittings of the Adelaide Convention, while the number remained at five.
– We shall discover in two or three years how far the Finance Committee of the Convention was or was not correct. The Attorney-General has told usthat the history of the United States ispractically the history of its law courts.
– The Attorney-General has told us that six times.
– I have read histories of the United States and I have no recollection of any particular mention of the law courts. Doubtless the law courts were referred to ; but so little space did the references occupy that I have no recollection of seeing them. I remember that I was very forcibly impressed with the magnificent work that the Government and . Parliament of the United States were doing in developing the resources of their magnificent nation - in attracting population
And in stimulating production in every conceivable direction. I was impressed with those facts, and I am very sorry to find that we are not following in their footsteps.
– In the United States the Federal Government possessed all the unalienated land, whereas the land in the Commonwealth is possessed by the States.
– Surely the AttorneyGeneral does not mean to contend that there is not sufficient scope for enterprise on the continent of Australia ? Why, there is room here for 20,000,000 or 30,000,000 of people to live in comfort. Does the Attorney-General not know that although the land is not owned by the Commonwealth, there is plenty of scope for enterprise, and for stimulating production and industries in every direction t
– Hear, hear !
– It is not necessary to own the land to do that. I am sure nobody has greater respect than I have for the Attorney-General ; indeed it is superfluous for me to say so. If his Government will only work in the same direction as the Government of the United States, and ask Parliament to assist them, they will not have a stronger supporter than myself. But we are giving the whole of our time to the miserable work of multiplying and duplicating the machinery of Government, and of existing institutions in every direction - in creating new departments and filling positions with highly-paid people whose services will not be required for years to come, and who, in the meantime, can only be regarded as parasites on the industry of the people. That is a work in which I cannot follow my honorable friend, and I regret to observe the persistency with which the Government adhere to this measure. I shall certainly vote against the third reading because I believe the legislation is premature, and will not be necessary for years to come. It is not altogether on the ground of the expenditure that I oppose the measure, although the amount is considerable for a people who are already overtaxed. If the court were really necessary, I am sure no one would grudge even a larger expenditure than is proposed ; but, as the experience of the last two and a half years has proved, the necessity for the court has not yet arisen. Contrasted with the veneration with which the Attorney-General would have us regard the Constitution as to the time at which the court should be created, his contention, if I understand the tenor of his remarks aright, is that the Judges will be at liberty to practically exercise the power of amending the Constitution. We were led to understand that the Judges will be at liberty to read into the Constitution meanings which its authors never intended, and which could not be foreseen by any one who supported and voted for it - that practically behind the backs of the people, the Judges will be able to amend the Constitution if the)’ believe it to be desirable to do so. Surely that does not exhibit any great necessity for adhering to what the Attorney-General believes to be the intention of the Constitution in the other direction - I refer to the time for the appointment of this court. The people of the Commonwealth have a right to expect that their representatives in Parliament will endeavour to brins into operation those provisions of the Constitution which are necessary for the promotion of their best interests, and will try to procure the amendment of such provisions as appear not to have been conceived for the public welfare. The people should not be the slaves of the Constitution, but the Constitution should be moulded to suit the conditions of the people. I am not aware that the members of the Convention were working under the influence of divine inspiration, and that their work is, therefore, infallible. They did not pronounce it to be infallible, inasmuch as, like sensible men, they embodied in the Constitution a provision for its amendment. In spite of what the Attorney-General has said, the Constitution does not specify any time for the establishment of a High Court, and it is a business-like and sensible view to take that the court should not be created until the need for it arises.
Mr. HIGGINS (Northern Melbourne).I think the House recognises that the Attorney-General was entitled to explain the differences between the Bill as introduced and as it stands at present, but his lamentations over the clauses which have been lost, reminded me of the Russian woman who threw from her sledge child after child to appease the wolves which were following it. According to Browning, she was in turn put to death by Ivan Ivanovitch. I do not wish to put the Attorney-General to death, but, as so many of its vital provisions have been re-shaped in a manner which defeats the intentions of its framers, I think the Bill should be murdered. I am glad that an opportunity has been afforded us of again voting upon the fate of the measure, though I am aware that it is not usual to negative the motion for a third reading. I am sorry that the criticism of the Bill has been left so much to members who have no great party responsibility, and that there has not come from the front Opposition bench an expression of the deep and widespread sentiment of the people in regard to it. I am sure that the personal popularity, and the suaviter in modo of the AttorneyGeneral, coupled with the fact that the measure has not received strong criticism from the front Opposition bench, will be responsible for its being passed.
– We have been treating the honorable and learned gentleman as our Attorney-General throughout the discussion of the measure.
– He has forgotten the opposition of the honorable and learned member for South Australia, Mr. Glynn.
– The honorable and learned member for South Australia, Mr. Glynn, has been, from the first, a most able critic of the measure. In speaking in generalities I wished to avoid personalities, but I am afraid that my sweeping statement has led me into a deeper pit. The leader of the Opposition will admit that the widespread sentiment of the country in regard to this measure should be voiced by some responsible person. I shall pass very quickly from what I regard as an utterly insufficient argument for the Bill - that it is mandatory in the Constitution to create a High Court in this year of grace 1903. The weakness of the case for the measure is made more apparent by that argument than by anything else I can conceive of. It is not mandatory upon this Parliament to create a High Court this year, any more than it was mandatory to create it in 1901 or 1902, or to create it next year, or in the year 1905. No one disputes that the Constitution contemplates and makes mandatory the establishment of a High Court, but the advocates of the Bill have failed to show that its establish^ ment during the year 1903 is mandatory. The hint has been thrown out that without a High Court there can be no Federal jurisdiction, and the judicial powers of the Constitution cannot be exercised. If that be so, the decisions of the States Courts in the numerous Customs and other Federal cases which have been heard of late are absolutely void, and the penalties which have been imposed are illegal, and should be refunded. But no one has fathered that opinion, and the best evidence that there is nothing in the point is that, notwithstanding the fact that those cases were fought on the most technical grounds from first to last, it ha3 never been sought to impeach the constitutionality of what has been done. I have watched the progress of Bills through other Chambers of Legislature as well as in this House, but I have never “before seen a Bill so much based upon misty phrases and illusory hopes. It is also based upon misapplied allegories pedantically drawn from the position of the United States. It is a measure born of misunderstanding, and nurtured upon flimsy hallucinations and illusions. The idea of its promoters is that the High Court will be the guardian of the Constitution. That it will not be, nor will it have the final word as to the meaning of the Constitution. It is argued that a High Court is essential to Federation, but there is no country in the world, with the exception of the United States of America, where a distinctive court for Federal questions exists ; and it has been explained that the Federal Court of the United States was created because of tha peculiar circumstances of that country, the framers of the Constitution having no confidence in the States Courts, because their Judges were removable at pleasure or appointed annually, and there being no appeal to the Privy Council. The proposed court will neither be the guardian of the Constitution nor the appeal court for Australia. la the Convention I voted for a High Court which would be the appeal court for Australia, but the attempt to provide for such a court was unsuccessful. It is absurd, however, to speak of the necessity for a High Court to safeguard the Constitution when we have strong States Courts to determine all matters of law arising under either States or Commonwealth legislation. Canada is a federation, and there the courts have to decide as to the relative rights of the Federal and the Provincial Parliaments. Questions involving such matters arise there as often as they would arise here, but no inconvenience appears to have been felt from the want of a High Court such as it is proposed to establish here. There is in Canada a Supreme Court, which is a court of appeal, but every court, from the police or magistrates’ courts to the district and county courts, deals, within its limits, with the most important questions of Federal and State law, and the conflict between them. If you appoint proper men you may safely trust the States Courts to deal with such cases. Their Judges must obey both classes of law, and uniformity can be arrived at by the ordinary processes of appeal. The Attorney-General has made some very proper observations about the importance of the matters which he hopes will come before the High Court. He pointed out that their public aspect has not been sufficiently considered, and he referred to the great public interests involved in the decisions which must be given. He quoted from Professor Dicey to show how in such private cases as the ship money case, -in the recent Taff Vale case, and in * host of others, important public interests were involved. No one will dispute the importance of the decisions in all those cases, but the Attorney-General himself must admit that they were given by the ordinary legal machinery of England. The John Hampden case was decided, not by some special tribunal, but by the ordinary courts of the land, and so were the others to which he referred. The liberties of Englishmen have continually been tested in the first instance in her police courts. “Why should we not trust the other courts as well as the Federal Courts’!
– Why did the honorable and learned member support the establishment of a High Court at all 1
– I have explained all that before, and I do not wish to burden the House with any further remarks on the subject, beyond saying that I voted for the High Court in the first instance, because at the time there was no optional appeal to the Privy Council. Under the present circumstances, however, the optional appeal to the
Privy Council makes it possible to flout and degrade our Australian Court. I regard it as un-Australian, and. as most derogatory to the dignity of Australia to create a High Court, and allow litigation to pass it by and go to the Privy Council. Owing to the blunder in the final draft of the Constitution, and to the interference with the Constitution when the Bill was being passed through the Imperial Parliament, it has been made quite distinct from its original form. I have always regarded the appellate jurisdiction of the High Court as of ten times more importance than its original- jurisdiction.
– In constitutional questions only ?
– In all questions. I have always regarded it as a court of appeal, which would enable us to take the responsibility of the interpretation of our own laws within our own boundaries.
– Has there been any alteration whatever in regard to the powers of appeal to the Privy Council, except upon constitutional questions 1
– As the Bill was finally settled at the Convention in Melbourne, it retained the optional appeal to the Privy Council. If there was the least doubt about that it was removed by the amendment made in England when the Bill was before the Imperial Government.
– That relates to only constitutional questions.
– I explained my views on that point when the honorable and learned member was absent. It will not be disputed that there is an optional right of appeal to the .Privy Council, or to the High Court. That was brought about by a mistake in the final revision of the Constitution at the Convention which was afterwards confirmed by the amendment made by the Imperial Parliament. I wish to refer to one or two of the amendments which have been made in the Bill. I thoroughly agreed with the Attorney-General with regard to the number of J Judges provided for in clause 3. I believe that if we are to have a High Court, it will be utterly absurd to assume that it can be worked by three Judges. There is no power to appoint a temporary Judge, because a Judge once elevated to the Bench must remain there, so that if one of the three Judges constituting the High Court happens to be taken ill, almost the whole of the appellate work of the tribunal must be suspended. I have come to the conclusion that the Attorney-General is determined to obtain a Bill of any kind that the House will give him. I suppose that he feels that if we appoint three Judges who cannot be removed, and it is found that these are not sufficient, he can afterwards come to the House and say - “ We cannot leave the machinery incomplete, and the J Judges without work to do ; we must appoint two more Judges and extend the powers of the court.” In clause 17a, and elsewhere in the Bill, we have evidence that Ministers consider that the Judges of the States Supreme Courts are competent to deal with almost all Federal matters, and yet they are persisting in their determination to create a High Court. If honorable members will look at clauses 19 and 20, and view them in conjunction with clauses 31 and 35, they will see that owing to the restrictions which have been imposed, the High Court sitting as a Court of Appeal may be constituted of two Judges only. A litigant who is not satisfied with the decision of a Judge of a State Supreme Court at present, has the right of appeal to three Judges of the Supreme Court, which, is the ordinary number. Under the provisions of the Bill he can appeal to two Judges of the High Court. Suppose a Judge of the Supreme Court has given a certain decision, a litigant has now the power to appeal to five, six, or seven J Judges sitting as the Judicial Committee of the Privy Council, and I would ask honorable members which a litigant would prefer ? Would he elect to take his appeal to the Privy Council where he would have the benefit of the services of perhaps the Lord Chancellor and some of the most distinguished lawyers in England, or would he go to the High Court constituted of two Judges?
– But would . the Privy Council hear him unless he went through the High Court ?
– Yes, because I am speaking of ordinary cases. I admit that owing to the provisions which have been made with regard to original, appellate, and exclusive jurisdiction, it is very hard even for lawyers to understand the Bill. The measure is meant to be a piece of machinery to settle litigation, bub I venture to say that, of itself, it will create litigation. I never knew of a Bill in connexion with which more difficulties can be raised. Under the Bill we should compel a man who desires to appeal from the decision of a single Judge of a State Supreme Court to go before two Judges of the High Court, whereas at present he could go straight to the Privy Council. I can speak upon this point from personal experience as a litigant some time ago. I was one of the parties to an action which was tried in the Supreme Court of New South Wales. A wicked liquidator wished to put me on the list of contributories to a certain company, but he was beaten before a single Judge of the New South Wales Supreme Court. Then there was an appeal- not to the Full Court of New South Wales, but direct to the Privy Council.
– The liquidator had the option of going direct to the Privy Council or through the Full Court of New South W£l1gs
– Yes; but lam showing that- if this Bill had been passed the liquidator would have been compelled to go to the High Court. It was a case which would have come under Federal jurisdiction, because it was an action between residents of different States. I was a resident of Victoria, and the liquidator was a resident of New South Wales, and such a case would come within the scope of the original jurisdiction of the High Court. The point involved in the case referred to was one of company law common to the whole Empire. The English Courts are continually called upon to deal with such cases, whereas our own courts are sometimes required to do so. The New South Wales Act was a copy of the English Act, and yet the liquidator would have been compelled, under the Bill, to go to the High Court, where there might be only two Judges, instead of carryinghis case direct to the Privy Council. It is far better even where the parties are residents in different States to have a case decided by direct appeal rather than in the manner proposed under the Bill. Of course, this Bill is a mere pedantic copy of the United States Constitution in this respect. I never felt that, simply because I was a Victorian, there was any danger in appearing before a New South Wales Judge,, and I am sure that no one in New South Wales would fear the consequences of having his case tried before a Victorian Judge. There is no danger to either party because he may happen to reside in a State other than that in which the case is being- tried ; nevertheless, cases between parties living in different States are brought within the original jurisdiction of the High Court. There was some occasion for a provision of this kind in America, but it is utterly absurd to apply it to our circumstances. I desire to put another case. Suppose an action were brought against trustees for some breaches of trust involving perhaps £30,000. Suppose, further, that amongst a huge mass of items there was one of £50 turning upon a bill of exchange, or some point of company law, or something that would bring the case within the sphere of Federal jurisdiction. Not only that matter of £50, but the whole action would have to be taken before the High Court. Moreover, when a Judge of the Supreme Court of a State has given his decision upon a suit involving, perhaps, £29,950, because £50 of that sum appertains to a Federal law, the litigant must appeal to the High Court, and not to the Privy Council. Surely, that is extraordinary and unnecessary. I would further point out that under clause 21, if an appeal be made from the Full Court of a State, it is necessary that it should be heard by three Justices of the High Court, whilst if an appeal be made from one Judge of a State Supreme Court two Justices only are required to determine it. In this connexion I would point out that in Victoria decisions are very frequently given by five or six J Judges. Let honorable members imagine what a litigant would think if he were told that he ought to appeal from the decision of six Judges of the Supreme Court of Victoria, who were unanimous, to three Justices of the High Court. Moreover in the latter tribunal two Justices out of three can overrule the third. It may, therefore, happen that the decision of seven Judges in a State Court - six Justices constituting the -Full Court, and one being the J udge who originally tried the suit - may be reversed by two Justices against one of the High Court. The absurdity of this arrangement will make litigants strain every point to carry their appeals to the Privy Council. They will not go to a tribunal where their rights may be thrust aside by an inferior number of Judges. In order to secure business to the High Court, clause 36 provides that its appellate jurisdiction shall extend to judgments in regard to any claim involve £300, whereas before an appeal can be made to the Privy Council the amount involved must be £500. That provision will, no doubt, increase litigation in respect of cases in which between £300 and £500 is involved, so that lawyers are thus given an extra chance of making fees. Clause 40, which confers Federal jurisdiction upon States Courts in certain matters, is bristling with as many points as a porcupine with quills. I have tried again and again to understand its application. I do not blame the Attorney-General or the draftsman. The difficulty of the clause arises from an attempt which has been made to evade the provisions of the Constitution. I am sure that this clause will give rise to considerable litigation unless it is amended. It says -
The jurisdiction of Federal Courts in matters not mentioned in the last preceding section shall be exclusive of the jurisdiction of the several courts of the States, except as provided in this section.
It then proceeds to confer jurisdiction upon the different States Courts. I do not understand the meaning of that provision. If the jurisdiction of the High Court is to be exclusive of that of the States Courts in these matters, then the High Court has jurisdiction.
– The provision is contradictory upon the face of it.
– Exactly. If the High Court has exclusive jurisdiction it has jurisdiction, and the very powers of original jurisdiction which the Committee refused to give to the High Court have been restored to it.
– Does it not mean that whatever jurisdiction is given to the High Court, either by the Constitution or by this Bill, shall be exclusive, except so far as this clause expressly provides ?
– It does not say so. No original jurisdiction is given to the High Court, except in those matters which are mentioned in clause 31a of this Bill, and in section 75 of the Constitution. In clause 40 the Attorney-General wishes to restrict paragraphs («), (6), (e), and (/) to cases involving Federal jurisdiction. I only hope that they will have that effect, but I doubt it very much. If they carry out his intention, paragraph (a) seems to be void. When the matter is tested it will be seen that the effort to draw these cases involving Federal jurisdiction’ from the Privy Council will be fruitless. The Imperial Act of 7 and 8 Victoria, says in effect that an appeal may be made from any decision by the Supreme Court of a State, no matter what Parliament has enacted the law, to the Privy Council. The Privy Council has the right to entertain any such appeal, and the. litigant has the power to institute an appeal to that tribunal, no matter what law may be involved. But this Bill declares that no appeal from the Full Court of a State to the Privy Council shall be entertained. I say that we cannot, by our Federal Acts, alter Imperial law. The Imperial law declares that a litigant has a right to appeal from a Supreme Court or from a Full Court direct to the Privy Council. Under the clause to which I have directed attention it is laid down that no appeal shall lie from a Supreme Court to the Privy Council. What right have we, in legislating under an Imperial Act, to alter an Imperial statute which declares that a litigant may appeal 1
– The litigant can appeal to the Privy Council after he has taken his case to the High Court.
– What possible answer can there be to my question 1
– A suitor must first go to the High Court.
– But has this Parliament any power to alter an Imperial Act 1 Sub-clause (b) provides that a litigant may appeal from the decision of a County Court to two Justices of the High Court. Under the present Victorian law a suitor may appeal to a Full Court consisting of three Judges. Is it likely that a litigant will take his case to the High Court, where it will be determined by two Justices, when he can have it heard by three Judges of the Supreme Court 1 The next paragraph provides that if the law of a State declares a decision to be final, the High Court may give special leave to appeal. I doubt very much - I do not speak so positively on this point - whether the Federal Parliament has power to enable the High Court to interfere in this way with a State law. If a State law provides that a penalty of a certain sum of money may be imposed for a certain offence without appeal, I doubt very much whether there is any right on the part of the High Court to interfere by granting special leave to appeal. With regard to clause 41, I still think it is liable to the greatest abuse. It means that if there is a case arising under the Constitution, or involving the interpretation of the Constitution, the High Court may, at’ any stage of the proceedings, for special ‘ cause shown, have it removed. That provision, in my opinion, will lead to the most flagrant abuses. It means that if, during the course of a case, a man finds that the Judge’s mind is inclined against him, he will move heaven and earth to find reasons for an application for removal to the High Court. A litigant, in this way, will be able to get “ two runs for his money,” and thus add to his chance of winning.
– Not for the same money.
– But a man will be able to put his opponent to expense, and the clause may be used as a whip by rich litigants to injure poor litigants.
– Rich litigants always do so use wealth.
– I think it is going too far to say that. As the appellate jurisdiction only applies to causes which involve £300 and over, the effect of clause 40 will be that in a case involving only £250, the decision of one Judge of a Supreme Court will be final. If a man has £300 or more at stake he will be able to appeal to the High Court, or to the Full Court, as he likes, but if the sum be only £250, and the Judge makes a mistake, there is no power of appeal.
– Is it not the same under State laws at present ?
– I am a member of the Bar in only two of the States, but I believe that in cases involving £250 an appeal may be “made from a single J udge to the Full Court. The Attorney-General very properly said that the decisions of the High Court will involve questions of public interest, as such decisions always do in England, America, and everywhere else, and that private litigants can raise these questions. The Attorney-General said also that these matters will be settled by the High Court at a critical period of our history. That is quite true ; but the question is whether they will be decided better by the High Court Judges than by the States Supreme Court Judges. That is a point with which the Attorney-General has failed to deal. Although I do not, as a rule, indulge in prophecy, I venture to say that if this Bill passes, the Government, or whatever Government may be in power, will, before two years are over, come down with proposals for a complete remodelling of the measure. I apprehend that that is really what is in the minds of the Government.
– I cannot understand the Attorney-General pressing this Bill with all these vital changes unless the meaning is - “ Get a High Court by any means - hook or crook,” so that when the Judges have been appointed with a life tenure there maybe appeals made to Parliament to give them more power and more officers. This Bill is irrevocable - we cannot get rid of the High Court when once it is established. But if we only delay the creation of the High Court until we find what exact need there is for it we shall be able to adopt the necessary machinery. The Attorney - General himself admits that the Judiciary chapter of the Constitution is defective - a circumstance which he regrets. What a commentary that is on the Constitution as it stands ! I felt sure this sort of difficulty would arise. The AttorneyGeneral says that the High Court is mandatory - that the Constitution is defective, and that, though the High Court will not work so well as he would like it to work, we must obey the mandate to create it. The position, therefore, is that even if we should think the High Court to be inexpedient, we are, because the Constitution says so, to be compelled to create one. During the course of the discussions on the Constitution I emphasized as strongly as I could the need for leaving as much power as possible to the future - to Parliament, and to amendment of the Constitution. The more I have watched the working of the Constitution, the more I am convinced that that was the only course which should have been taken. It is simply abominable to think that where the country as a whole feels that a certain course directed by the Constitution is inexpedient, it must nevertheless follow that course. The inflexibility, the rigidity, of the Constitution will, in this as in other cases, be found to be our great bane. In America this inflexibility . has been found to be a great evil ; and I do not hesitate to say that in that country the Judges have made a Constitution as a sort of addition to the old instrument. But those Judges spoke as statesmen, and not as lawyers ; no lawyer in these days would speak as did those Judges from- time to time. It is a lamentable thing that we should be forced to create machinery because the Constitution so provides, instead of endeavouring to -have the Constitution amended if we deem an amendment expedient. I sincerely hope that we shall follow a course which is honorable to Australia, and that we shall not allow a court to be launched inopportunely - like a ship without sufficient timber or gear. But that will be, metaphorically, the position of the High Court if it is launched under present circumstances. We ought to wait for a few years until we have more experience of our wants, and until perhaps - although I would not make this an essential condition - there is an amendment of the Constitution which will enable us to create a court as a court of final appeal. We have the present Supreme Courts as ordinary work-a-day courts answering their purpose very fairly, and we have for extraordinary occasions the Privy Council, which may be called on to make the decisions of the local Courts uniform. This proposal reminds me of a man who, having a good serviceable buddy, and the free use of a drag for holidays and race days, insisted on also having a horse and carriage. And more than that, it is as if such a man, before he had finished making the carriage, was suddenly attacked by a fit of economy, and left out two of the wheels on one side. Too late, to my mind, there is throughout the country a kind of movement for economy. Two years ago I was one of those who called attention to the utter absence of any need for creating a High Court. I have done my best to emphasize the stupidity of creating that court under present circumstances. The subject was not discussed in the newspapers until it was too late, and honorable members had committed themselves, and had become used to the idea of having the court. The subject was not discussed until those cant phrases - “ the guardian of the Constitution “ ,’ “ an Australian court to defend the Constitution from innovation and from State attacks” - had become the current parlance of the day. The only time apparently at which we can attack or encourage a proposal is before it reaches its second reading or even its first reading stage. There needs to be a good preliminary education of public opinion. Apparently just at the last moment various institutions began to howl in regard to the expense of a
High Court. But it was then too late, honorable members having, as I say, committed themselves or registered their votes. Indeed, interference at that stage has had the effect of making the Bill worse than it was. The interference came at the last moment, when its effect was to induce honorable members, in a fit of economy, to cut and cut at machinery which might have been of some use, but which has thus been rendered almost useless. I am sorry for the Attorney-General, because I think his original scheme was better than that which now appears in the Bill. The AttorneyGeneral saw, as a lawyer would see, that if there is a High Court there must be five judges. At the same time, it was a mistake to introduce the measure when it was introduced. I never saw one more unlucky. If the cry for retrenchment had only been started before the Bill was introduced, .the position would” have been all right. But the Bill had been introduced, and honorable members, some of them in anxiety and trouble, began to cut and whittle at the machinery.
– If the Bill had been introduced last session it would have gone through flying.
– I think the honorable member is wrong. As I have said already, I was one of several who, on the debate on the address in reply in the first session, called attention to the absence of any need for a High Court. There is a good deal of sound sense in the cry for retrenchment, and any party in the State who ignores the cry is simply foolish. Outside this House there is a strong feeling that we must not appoint public servants who are not absolutely required, and there is an equally strong feeling that if we have public servants we must treat them well.
– - If we have a machine, why not have it as perfect as possible 1
– Quite so; but that is not what we have got. I do not know whether the honorable member for Herbert voted for three Judges as against five Judges.
– - I voted for five Judges.
– Then the - honorable member has been consistent in this matter. I do not think we require a machine, but, if we have one, let us have all the wheels necessary to make it work.
– If the machine is not required, why leave it to rust on a lot of wheels ?
– It is really a luxury.
– A rusty luxury ?
– Some honorable members are fighting for this High Court, with the idea that it will guard the Constitution, and be the usual Court of Appeal. I say deliberately that litigants will in nearly every case, after the first curiosity has subsided, go direct from the States Courts to the Privy Council. The proposed High Court will not guard the Constitution. Its jurisdiction is cut down upon one side and restricted upon another, so that the States Courts will be quite as effective in that respect. In my opinion there is no need for the establishment of such a tribunal at the present time.
– I recognise that upon the motion for the third reading of a Bill it is inadvisable to enter upon a careful analysis of its provisions. I shall avoid doing so because, contrary to the opinion of the honorable and learned member for Northern Melbourne, I hold that the work of the Committee has considerably improved this measure, though I still consider it objectionable, inasmuch as it provides for the premature establishment of the High Court. I did not quite understand the honorable and learned member’s reference to the action of the Opposition in regard to the measure. Throughout its discussion it has happily been regarded as a non-party measure, and up to the present stage no special credit has been claimed by either the Government or the Opposition for its merits.’ Those of us who have taken an active interest in it have endeavoured to do our duty in regard to it.
– :But an attempt has been made by some to destroy it.
– Only at best under either a misapprehension as to the need for it, or from a correct appreciation of the duties of a representative. Honorable members have not allowed their opinions to be coloured by their party views. As the honorable and learned member for Northern Melbourne has challenged the position of the Opposition, however, I would remind him that, with the exception of the labour party, only six members of the Opposition voted for the Bill, while seventeen members of the Opposition and eight Ministerialists voted against it. Therefore, if five more Ministerialists had crossed to this side of the chamber, the measure which he has so strongly condemned would have been defeated.
I would also remind him that his amendment for the substitution of the word “ may “ for the word “ shall,” in clause 40, under which all appeals from a court of subordinate jurisdiction must be brought to the High Court, was lost by only one vote, and of the 24 members who comprised the majority against the amendment, only one was a member of the Opposition. If he had received a little more support from honorable members who sit on the Government side of the chamber, he would have accomplished his end, though the Government have since yielded to some extent in regard to the matter. Honorable members on both sides of the chamber have endeavoured to keep the discussion of the measure in a pure non-party atmosphere. The Attorney-General told us that it has been considerably altered because it was introduced during a rush for retrenchment. I do not think that the intense anxiety for retrenchment which is now being displayed was very marked when, nearly two years ago, the measure was first introduced. But there was then, a very strong opposition to it, as was evidenced by the interjections of honorable members during the honorable and learned gentleman’s speech, and by the opinions published in the press. The opposition to the measure has been shown on the public platform. Before a single word ivaa spoken about retrenchment, I opposed it as premature, because I considered that a High Court is not yet required to reconcile possible divergences in the judgments of the States Courts.
– The honorable and learned member did not find that the electors took much interest in the question until he introduced it.
– The electors never manifest a strong interest in Bills of this kind, even if they feel such an interest. The idea of asking them to “ enthuse “ upon such a question as the meaning of clause 40 is ridiculous. They listen to the cloudy explanations of those of us who are lawyers, but we cannot lash their emotion into white heat on such subjects. But as to the High Court not being required at present, and as to the consequent extravagance of expending £30,000 a year upon it, public opinion has been fairly, pronounced. The Attorney-General gave us to understand that the effective cause of opposition to the Bill was the objection of private suitors to the creation of a new tribunal - the objection of probable litigants to the interposition of a new Court of Appeal between the States Courts and the Privy Council. No doubt such an objection is felt, because litigants wish to secure finality as early as possible, and doubtless regard the interposition of a new Court of Appeal as unnecessary. But that is not an objection which was strongly urged on the platform. It is a strictly legal objection which is not present in the minds of many people outside. I have, however, within the last fortnight, presented several petitions against the Bill. Some of them have originated from meetings of electors in the country districts of South Australia, and some of them from associations which are not legal associations, but which include commercial men and bankers, as well as private individuals. I venture to say that not one in fifty of those who signed the petitions was affected by the possibility of having his case decided by the proposed court.
– Or knows anything about the Bill.
– They know that the court is not required, because there is a Privy Council to reconcile the conflicting decisions of the States Courts.
– The question of cost and the probable personnel of the court are more to the electors than the national question. They are influenced by such references to the Bill as “the Pat Billets Bill.”
– I am not dealing now with those objections ; I am simply trying to show that it is a mistaken opinion of the Attorney-General that the opposition to the Bill has arisen from the objection of probable suitors to the expense and inconvenience of a new and additional Appellate Tribunal. The statement of such an opinion shows the unfortunate position to which he has been driven in having to apologize for his action in faintly moving the third reading, instead of openly advocating it. He told us that the High Court is required for the discharge of certain public functions created by the Constitution. What are those functions? What is required is a court to reconcile possible differences in the judgments of the Supreme Courts of the States - a court for the final determination of moot questions. As has been pointed out from time to time, the appeals to the Privy Council are very few. During the last twenty years, they have averaged from all the States only twelve per annum.
– Will there not be more appeals to the High Court 1
– Litigation will not increase because of the establishment of a High Court. Such a court is not necessary to give finality to the judgments of the States Courts, because, unless there is an appeal to the Privy Council, the decision of the Supreme Court of a State in nonFederal matters is final. It is necessary only for Federal matters, and what expectation can be reasonably entertained as to the frequency of appeals in regard to them % I have already mentioned that during the first year of its existence not a single appellate case was brought before the Supreme Court of- America.
– The honorable and learned member for Northern Melbourne answered that statement.
– The statement embodies the fact, whatever explanation may be given in regard to it. Eleven years afterwards the number of such cases was only five, while during all those years only six were down for hearing. Therefore, when the Attorney-General asks us to agree to a heavy expenditure for the creation of a new tribunal, it is proper to ask him what are the public functions which it is necessary for it to perform. The number of appeal cases is exceedingly few, and we have the Privy Council as a final Court of Appeal. I do not think that it is necessary to deal with his statement that the liberties of Englishmen were secured by the decisions of the English Courts. The honorable and learned member for Northern Melbourne has suggested the answer by pointing out that we have our States Courts to refer to. There was no special tribunal created to try the case of John Hampden, and’ to decide that ship money could not be levied except with the authority of Parliament.
– The honorable and learned member has forgotten the Court of Whitehall.
– If the honorable and learned member refers to the Star Chamber, I do not know what that has to do with the point. Although matters of great importance have, without doubt, been decided, in the Law Courts, the instances in which the liberties of the English people have been defined by the courts are very few indeed. Our liberties rest upon such charters as the Magna Charta and upon the Declaration of Rights, neither of which was a judicial decision. It sounds very nice to say that the courts are the protectors of the liberties of the people, but, as a matter of fact, they very seldom are required to act that part. The AttorneyGeneral has again laid stress on the fact that there is a mandate in the Constitution for the creation of the High Court. I do not wish to cover ground that has already been traversed several times, but I would point out that section 73 of the Constitution, to which he referred, provides that the very jurisdiction which we must - if the Constitution is mandatory - give to this court can be immediately afterwards taken ‘away. Under the provision contained in the United States Constitution, that the Federal Courts should have jurisdiction, with such exceptions and subject to such regulations as the Legislature prescribed, the whole of the Federal jurisdiction given to the Federal Courts other than the Supreme Court was absolutely taken away in 1803. In several cases also the jurisdiction of the Supreme Court of America has been cut down. On occasions when the judgment of the Supreme Court was likely to upset the intentions of the Federal Executive, Bills have, been introduced to emasculate the powers of the Supreme Court. If it is mandatory upon us to create the High Court, how is it that one of the provisions of the Constitution enables Parliament to deprive the Court of the whole of its appellate jurisdiction? The answer is that the Constitution is not mandatory, but that the High Court is to be simply the creature of the Parliament. It is intended that when a High Court is constituted the judicial powers of the Commonwealth shall be vested in it, and not in any -court outside the limits of the Commonwealth or in England. Of course we know that the Privy Council has certain jurisdiction as a matter of right, but we could not confer Federal jurisdiction upon any other court outside of A ustralia. All that is done under section 71 is to nominate the courts in which certain powers shall be vested when such courts are created. As regards the High Court, we may completely control its appellate jurisdiction, and we may limit to a great extent its original jurisdiction. 1 would ask honorable members, therefore, not to be influenced by the argument that there is a’ mandate in the Constitution. If honorable members believe that it would be an act of extravagance to create the High Court at this stage, they may regard themselves as perfectly free to vote against the third reading, apart from any consideration as to the provisions of the Constitution. The Attorney-General has appealed to the prejudices and strong feelings of honorable members by stating that there are many important problems that will require to be solved by the High Court. He has said, for instance, that the question of the validity of the Customs Act awaits determination. I am not aware that any appeal has been made from the judgment of the Supreme Court of “Victoria. I believe that that is acquiesced in as the only reasonable interpretation of the provisions which were challenged before Chief Justice Madden. -The Attorney-General mentioned, too, that the High Court may also be called upon to decide what industrial disputes may be regarded as extending beyond the limits of one State. Surely the Minister intended that as an appeal to those honorable members who strongly favour the settlement of industrial questions by arbitration. It seemed as if he were driven to appeal to the prejudices of those honorable members whose loyalty to the Government in respect to this measure is doubtful. He appeals to some members of the Opposition and to others with reference to the interpretation of section 125 of the Constitution, relating to the selection of the Federal Capital site. That is one of the matters that has been discussed politically out of doors, but I do not think it is likely to come before the courts, because the contention set up by New South Wales will not stay the hands of this Parliament. t
– I was not referring particularly to that point.
– Then I do not know why the honorable and learned gentleman should have mentioned any matter connected with the selection of the Federal Capital site as awaiting the decision of the High Court. There is no doubt the Minister was driven to refer to these, as cases which would have tobe settled, in order to justify the creation of the court. The Attorney-General stated further that the proposal to make temporary use of the Judges of the States Supreme Courts as an appellate tribunal had been regarded, even by some of those who suggested it, as unconstitutional and unworkable.
– The States would not allow it.
– It is utterly impossible for us to test the question, because it would rest entirely with the Government to apply to the Executives of the States for their consent, and also for the consent of3 the J Judges, without which we could do nothing. Unless negotiations were opened by . the Commonwealth Government, it would be useless for us to attempt to test the question by submitting it to a vote of this House. I believe that a temporary court, constituted of Judges of the States Supreme Courts, would answer all our present requirements. I would ask honorable members to consider whether the authoritative lead of the Ministry ought to be regarded as binding. The Bill, as introduced this session, was. entirely different in structure, though not in principle, from the measure introduced eighteen months ago. The clauses have been shifted all over the Bill, and some which were regarded as unconstitutional have been dropped. Therefore those who were inclined two years ago to accept the opinion of the AttorneyGeneral as to the perfect character of the measure which had been submitted to the States Judges must have found their confidence rudely shaken by the fact that the measure, as introduced this year, was reconstructed from beginning to end. Then again, when the Bill went through Committee, it was changed in principle to a large extent, and a good deal of the drafting was completely altered. What is more, provisions which were in the High Court Procedure Bill have been transferred to the Judiciary Bill. This is not a matter of detail, but one of substantial arrangement. The whole of the original jurisdiction first proposed, except such as is conferred by the Constitution and a very slight extension that we have granted, has been struck out. I would therefore ask honorable members who are inclined to rely upon the recommendation of the Government to recognise that, owing to the changes which have been forced upon them, the measure is no longer deserving of the encomiums passed upon it when it was first introduced. My strong objection to the proposed tribunal is that it is not required now, and that it does not satisfy Australian aspirations. Until we have abolished appeals to the Privy Council, we shall not have the final word as to the interpretation of the Constitution. All questions affecting the Constitutions of the States can be referred to the Privy Council, in spite of us, and decisions in Federal matters may possibly go home, also in spite of us, because a doubt exists as to the constitutionality of one of the clauses in the Bill’ which declares that the decision of a State Supreme Court in Federal matters is to be final, except so far as an appeal is granted to the High Court. I admit that this is open to dispute, but in my opinion the clause is ultra vires. If that view is correct, we may have the High Court passed over in every case, not at the will of the AttorneyGeneral, but at the caprice of any litigant against whom a decision has been entered in a State Court. We were told by the delegates who returned from the Convention in London that they had practically secured the final decision by the High Court of all matters affecting the Constitution, because the certificate of the High Court would be necessary before such questions could be taken on appeal to the Privy Council. But if it is correct that a litigant can appeal from a decision of a State Supreme Court direct to the Privy Council upon Federal matters, an appeal will lie upon every other matter that arises, whether it affects the Constitutional rights of the Commonwealth or the States. As I have pointed out, the decision of the High Court will not be final, and wherever there is a matter involving some point of considerable public interest, appeals are almost as a right allowed to the Privy Council. Therefore, considering that this Appellate Court will not have the final determination of our Constitution, and considering furthermore, that we have eliminated from its jurisdiction all matters of practical interest, it would be extravagant to add another to our existing tribunals. We shall soon be about the most judicially overmanned race upon the face of the globe. Apparently, we are to have, in addition to the Supreme Courts of the States, an Appellate Court, and a Commonwealth Industrial Arbitration Court, in addition to similar State tribunals. I ask honorable members to pause until .the necessity is shown for the creation of still another tribunal. Had the amendment which I submitted at the second session of the Convention been carried, and had the direct appeals to the Privy Council been abolished, I should have been one of the strongest advocates for the establishment of a High Court to-day. The idea underlying my proposal was that all appeals . should be dealt with by the High Court, from which an appeal as a matter of grace might in extreme cases be made to the Privy Council. Thus, the interpretation of the Constitution, and the determination of all Federal cases, would practically have rested .with the High Court. I think that a division ought to be taken upon the third reading of this measure, and that public opposition to the growing tendency on the part of the Government towards extravagance ought to receive some recognition at the hands of honorable members.
-‘ I rise chiefly to refer to the speech of the honorable and learned member for Northern Melbourne, who has charged the Opposition with being animated by no desire to effect economies. In view of the very strong feeling which exists in Victoria against the measure under consideration, doubtless some honorable members wish to effect reductions in the incidental expenditure, and the honorable and learned member for Northern Melbourne sought to show that those who occupy the Ministerial cross benches, and not the members of the direct Opposition, were instrumental in effecting the important alterations which have been made in this Bill. But I would point out that in the division upon the motion for the second reading of this measure, only six direct Oppositionists voted in its favour, whilst eight direct Government supporters, with seventeen Oppositionists, voted against it. If my honorable friend had successfully used his . eloquence to induce five honorable members representing Victorian constituencies to vote with us, the Bill would have been defeated.
M,r. Joseph Cook. - Why waste time over him t He always fires blank cartridge.
– But it is just as well to inform the public of the other side of this question. The honorable and learned member has spoken at considerable length from’ a desire to misrepresent the members of the Opposition. I repeat that if upon the second reading division five other Ministerial supporters had joined the Opposition, the Bill would have been rejected. A good many of its clauses, I would further point out, have received very close consideration. Time after time we heard honorable members speaking strongly in favour of certain alterations. One amendment, of which I have a keen recollection, was moved by the honorable and learned member for Northern Melbourne himself. His proposal to allow the right of appeal to the Privy Council was supported by only eight Government supporters, whilst 23 direct Oppositionists voted with the honorable and learned member. By that amalgamation of forces, we were able to carry the proposal submitted by him, although, it is true, by only one vote. Again, I find that ten Government supporters and fifteen Oppositionists voted against the pension proposals contained in the measure. I could refer to several other divisions which clearly show that the Opposition was chiefly responsible for effecting many of the most important alterations in this Bill. Of course, I recognise the signal service in this direction which has been rendered by some honorable members upon the opposite side of the chamber, including the honorable member for Gippsland. At the same time it ill becomes the honorable and learned member for Northern Melbourne to criticise members of the Opposition who have done a great deal more to effect economy than he has. Throughout the discussion of this measure, the Opposition have felt that the Government were not sincere. I hold that the Ministry should have realized - if they believed in the necessity for such a measure - the importance of dealing with it during the early part of the first session, but they have shown no desire to enable those who have actions against the Government to proceed in a legitimate way. Time after time they have employed the strongest counsel obtainable in the different States, and, by raising the objection that the States Supreme Courts were not vested with Federal jurisdiction, have prevented persons from procuring justice. It seems to me that the Government could have effected all that was necessary in an inexpensive way by so amending tho Claims against the Commonwealth Act, which was passed last year, as to vest the courts of the States with a wider jurisdiction than they at present enjoy. I would point out that this Parliament has already been in existence for more than two years. A great amount of time was practically wasted night after night in fruitless discussions on such measures as the Defence Bill and the Inter-State Commission Bill, with which the Government never had any serious intention of proceeding. Yet it is stated tonight, as it has been stated before, that the High Court is essential,. and that this measure ought to be proceeded with at once, if great wrong is not to be done to a number of people. If this measures is necessary now, it was necessary months ago, and we ought to know why it was not proceeded with, instead of the time of Parliament being wasted over measures in regard to which the Government apparently had no serious intentions. It was understood that the Federal Government was intended, in the matter of legislation and administration, to afford an example to the States, but expectations on that score have not been realized.
– Is the honorable member discussing the Judiciary Bill ?
– I am showing that the Government have failed to proceed with this measure, one of the reasons for that failure being that they have wasted the time of Parliament in regard to other Bills.
– The question just now is whether this Bill shall be read a third time.
– I am replying to the Attorney-General, who endeavoured to show that this measure is urgent. I doubt the urgency of the Bill, and I am of opinion that if it were passed the expense would be found to be very great. According to the Attorney-General, there would be little work for the court ; in fact, the honorable and learned gentleman hesitates to say whether there would be sufficient to employ even three Judges. The proposal to extend the jurisdiction of the court was struck out on, I believe, the 10th June; but notwithstanding this the Attorney-General, some days later, strongly urged the Committee to fix the number of Judges at five. Then the honorable and learned member for Indi, who very often renders valuable assistance to the Government in the way of covering their defeat, came forward with the brilliant suggestion that we should “ split the difference,” and have four Judges. The Government, of course, readily embraced the proposal. Yet, the Attorney-General, as I have said, now doubts whether there will be sufficient work for three Judges.
– I do not think the honorable member rightly understood the AttorneyGeneral.
– If not, I apologize; but that is what I understood the Attorney-General to say. At any rate, the honorable gentleman did not contradict the leader of the Opposition, who made a serious attack upon him in connexion with this Bill.
– I thought the leader of the Opposition was humorous rather than serious.
– The BiU has been so amended that the Government’ scarcely know it, and now we have the Attorney-General saying that Ministers disclaim any responsibility in regard to the measure. When the honorable and learned member for Indi proposed that there should be four Judges, I could not help observing the smiles which came over the faces of the Government and many of their supporters. It is true that some of the usual Government supporters - very rightly, in my opinion- deserted the Government in this matter.
– This is not regarded us a party measure.
– That is quite true, as is shown by the fact that some members of the Opposition, including the leader, are supporting the third reading. There is no doubt that ‘ some members of the Opposition supported the Government on the -second reading with a desire to see important’ alterations made in Committee. I know that some honorable members had a strain put upon their conscience when they voted for the second reading, and only did so with the object I have indicated. The Attorney-General is very eloquent, and presented a good case from his own point of view ; and I dare say he let it be known that very important amendments would be made in Committee. There are some honorable members who, not having previously had Parliamentary experience, thought it quite possible to so amend the Bill in Committee as to make it acceptable even to themselves ; and no doubt many important alterations have been made, such as the reduction of the number of Judges from five to three, and the amendment of the honorable and learned member for Northern Melbourne, which was carried by only one vote after & great struggle. The Government would have been better employed if they had -brought in a short Bill to amend the Claims against the Commonwealth Act, so as to enable causes to be tried by the various States Courts, and thus avoid the large expense which will be rendered necessary under this Bill. I have heard many rumours as to the constitution of the proposed High Court. I am not going into that question, however, because I hope those rumours are not true. I do not want to see a political High Court, but a Court, if we are to have one, consisting of the best men available.
– Does the honorable member think that this measure ought to have been introduced before now ?
– If the AttorneyGeneral is right, on the point of urgency, the Bill should have been dealt with long ago, instead of our wasting the time of last session in discussing measures which led to nothing.
– What measures does the honorable member suggest should not have been dealt with last session ?
– -The Defence Bill, the discussion of which occupied some days, and with which there was no intention of proceeding, might have been dispensed with.
– Surely the honorable member ought not to impute motives.
– I am only speaking of matters as they present themselves to my mind. Then there was the InterState Commission Bill, which was discussed night after night, the debate filling many columns of Hansard, and was no proceeded with. There has been published a useful and valuable document showing the cost of the administration of justice in the various States, and in view of the statements therein contained I think that the Government, instead of creating fresh machinery, and thus adding to this expense, should make arrangements for using the States Courts for the settlement of Federal disputes. Another way of dealing with the matter would be by appointing States Judges of known experience and ability to form, an appellate court. That arrangement would not cost nearly so much as would be necessary to carry out the provisions of the original Bill, or even the provisions of the Bill which has been amended in Committee. The States Courts have alreadydealt with many Federal matters, and more especially with matters arising out of the administration of the Customs Act. I am sorry, however, that in some cases injustice has been done through the delay of the Government in giving opportunity to persons who think they have been wronged to assert their claims before the existing tribunals. As a matter of fact, they did nothing whatever in that direction until what was really a public scandal occurred, and then they passed the measure known as the Claims Against the Commonwealth Act. I believe that a Bill slightly amending and extending the provisions of that Act would do a great deal to get over the present difficulty. But if, as the AttorneyGeneral alleges, the Government regard the establishment of a High Court as a matter of extreme urgency and importance, why did they not push on with the J Judiciary Bill last session, instead of wasting the time of honorable members upon the consideration of measures which they knew could not be passed 1
– The delay saved the Commonwealth one year’s expenditure upon the High Court.
– Yes, but if the establishment of a High Court is as urgent as. the Government allege, the expense involved should not be taken into consideration. I abstained from speaking upon the Bill in Committee, except on one or two occasions, because I recognised that its clauses involve many technical matters which are more within the province of a lawyer than of a layman. But, so far as its broad principles are concerned, I feel convinced that the measure is unnecessary, because what it is intended to bring about could be done much more cheaply in the manner I have suggested, and I shall therefore vote against the third reading.
– No one could have listened to the jeremiad of the Attorney-General without feeling that sort of sympathy with him which one might experience in regard to a fond mother who saw her first-born suddenly fall and lose one or more of his limbs. The tone and tenor of the honorable and learned gentleman’s speech appealed to me, although I did not care for his infant as it was originally introduced to us. But he exceeded the bounds of a fair expression of regret when he told the House, in the plainest words, that he would not be responsible for the Bill in its present condition.
– I did not say that.
– The AttorneyGeneral used words to that effect, and the leader of the Opposition drew attention to them. What he said was that the Bill had been so emasculated that he could not be answerable for its future success. But, as the leader of the Opposition pointed out, a Government must take the responsibility for its measures. No Minister is entitled to say, because he is disappointed with the form which a measure has taken, that it is so much unlike the Bill which he brought into the world that he will not own it,’ and the House must take the responsibility of placing it upon the Statute-book.
– The remark quoted by the leader of the Opposition was taken from a speech made by me before the Bill went into Committee.
– What the honorable and learned gentleman said was -
I must not be held responsible if a court of another complexion is created.
– I meant responsible for what I said in that speech and in a speech delivered last session, not responsible for the measure.
– It is quite clear that the court created under the Bill as it now stands is not the court which the Attorney-General proposed. He wished to create a court of five Judges, who would receive emoluments as great as, if not greater than, those received by the Judges of the Supreme Courts of the States. The Committee, however, has provided for a court of three Judges, whose emoluments will be less than those of the Judges of the Supreme Courts of the States.
– Not less.
– Yes, less. The Chief Justice of Victoria receives £3,500 a year, and the puisne Judges £3,000 a year, and they are entitled at the end of fifteen years to a pension which is a very substantial proportion of their salary. But the J Justices of the High Court will not be entitled to a pension, and it cannot be denied that their salaries constitute a smaller emolument than the salaries and pensions of the Judges of the States. The anomaly which such an arrangement will produce is this : Where men occupy a sufficiently eminent position at the Bar to have their choice between a seat upon a State Bench and a seat upon the Federal Bench, they will, so long as human nature is what it is, choose a seat upon the State Bench. Therefore, the most competent men will find their way on to the States Benches, while other men less in demand will find seats upon the Federal Bench.
– In Victoria, future Judges will receive £500 a- year less than the present Judges are getting.
– I am dealing with .things as they are. Therefore, we shall have appeals from men receiving high salaries to men receiving lower salaries, -which may mean appeals from superior to inferior men.
– Does the rate of salary constitute superiority or inferiority?
– No. But men to whom both the States and Federal “Benches are open will gravitate to the States Benches because of the higher emolument paid to States Judges, and the men who cannot obtain positions on the States Benches will find seats upon the Federal Bench. That is an anomaly that was never contemplated. I sympathize with the Attorney-General in the position in which he finds himself, but I wish to record my protest against the attitude which has been taken up, not only by that Minister, but, impliedly, by the Government of which he is a member. The Bill has come out of the discussion in a condition of which the Attorney-General is not proud. He has in so many words told us that it is not anything like the Bill he expected. The High Court has been denuded of its jurisdiction, and the Judges have been deprived of a large part of their emoluments, whilst their number has also been -reduced. The honorable gentleman, therefore, cannot very strongly approve of the Bill in its present shape. At the same time, I submit that the Minister who is in charge of a measure must be prepared to take the whole responsibility of the Bill which he commends to the House, and if the speech of the Attorney-General is not intended to serve any ulterior purpose such as was suggested by the leader of the Opposition, we must take it as being in advocacy of the measure at its third reading, and, at the same time, as a sort of jeremiad on the incursions made upon the principles of the measure. - Mr. Deakin. - Yes ; and, in addition tothat, as intended to mark the distinction’ between the Bill as introduced and as shaped by the Committee.
– The AttorneyGeneral may surely credit us with a sufficient amount of intelligence to understand the difference between the Bill as it was introduced and as it now stands.
– I credit the honorable and learned member with the necessary intelligence, but perhaps the general public may not understand.
– We all know that the original Bill provided for larger salaries for the J Judges and for pensions, and the people out-of-doors who have taken any interest in the matter must also know that it was intended to have five Judges instead of the three now provided for. As to the altered jurisdiction, I do not suppose that the public will know anything about the difference between the jurisdiction contemplated by the Constitution and provided for in the original Bill, and that left in the Bill after passing through Committee. At all events, the responsibility for the Bill must rest with the Government, and if they are not prepared to take it they ought not to commend it to the country and to us as a measure worthy of being placed upon the statute-book. The value of any individual opinion expressed in this House should not be over-estimated, but when one sees an honorable and learned member who exercises considerable influence condemning the measure root and branch, one cannot help looking critically at his position to see how far his present attitude, which may influence honorable members, coincides with that taken by him upon former occasions. The honorable and learned member for Northern Melbourne has delivered a speech extending over fully an hour, in which he has practically torn the Bill to tatters, and endeavoured to persuade honorable members that there is really no necessity for it. He has pointed out that the whole of the jurisdiction which is required to be exercised by any court dealing with Federal interests might be delegated to the States Courts, which already had a limited power to adjudicate upon Federal laws, and that if they were invested with full Federal jurisdiction, there would be no necessity for a High Court. I had not the honour of being a member of the Convention, but I took a great interest in its proceedings, and I cannot forget that the honorable and learned member was a member of the Judiciary Committee of that body, and that he took part in framing the clauses which form onetwelfth part of tha Constitution, and relate to the Judicature. The clauses are numbered 71 to 80, and they begin with these words - “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court.” . . . No layman or lawyer could read that and subsequent clauses without feeling convinced that the framers of the Constitution, and presumably the people of the Commonwealth who adopted it, intended that there should be brought into existence a Federal Supreme Court, whose powers are so carefully, deliberately, and studiously defined in these nine or ten clauses. Yet the honorable and learned member has to-day spent an hour in trying to convince us that after all this court is not wanted. Why should this provision have been inserted in the Constitution, and why should the words I have quoted be placed at the head of this series of clauses 1 How can the judicial power be vested in a Federal Supreme Court if, as the honorable and learned member suggests, the whole Federal jurisdiction is vested in the States Courts ? The ‘ honorable and learned member is at least open to the suspicion of inconsistency.
– The honorable and learned member for Northern Melbourne explained that if appeals to the Privy Council had been abolished he would have supported the establishment of the High Court.
– I heard the explanation made by the honorable and learned member, but it did not seem to me to alter the position in anyway. It may be satisfactory to his own mind, as an answer to my contention, but it does not affect the comment upon his inconsistency in taking up his present position. I now pass from that to the consideration of another aspect of the question We are told that the whole of the jurisdiction proposed to be conferred upon the High Court might very well be vested in the States Courts. No one can have followed what has occurred in the State of Victoria without noticing that what is known as the Kyabram movement has been a most potent factor in much of the adverse criticism directed against this Bill. I am bound to say that those who have watched the effect of this movement upon this Parliament could pay no very high tribute to the independence of some of its members. That movement, which has developed into a sort of mania in Victoria, has so much affected this, one of the institutions of the Commonwealth, as to deprive certain honorable members of that independence and courage which we should expect from them as the representatives of the people. Can any one doubt that if the Kyabram movement had not sprung up in Victoria during the last twelve or eighteen months, the attitude of this House, whether in its capacity as a House or as a Committee, would, have been very different i Ever since the Kyabram movement was started, it has been obvious to me, and to many others who have watched its effects, that the spirit of parsimony has over-shadowed every expenditure proposal that has beenbrought forward in this Chamber. Whenever it has been found necessary to secure an officer of any class, the aim has been to get somebody cheap. Yet in the face of this we have a most notable admission by the leader of the Labour party, an admission for which I applaud him. The honorable mem-, ber stated that, when a gentleman who was. imported from England to manage the railways of New South Wales first came to Australia some years ago, he could not for the life of him understand how any man could be worth £3,500 per annum. But he has said, and courageously, considering the position which he occupies, that he now saw that if New South Wales could get another man, the counterpart of the previous one, he would be cheap at £10,000 a year. What is that but a tribute to the classification of brain power and a recognition of the importance of securing men of the very highest calibre for the highest positions. And I would ask honorable memberswhether they could possibly imagine any office in the Commonwealth that would require a man of higher intellectual calibre in one of the learned professions than that of aJudge of the High Court, who will have to interpret the Constitution as between State and State, as between the States and the Commonwealth, and as between the citizens of the one State and of another, and so form a sort of safety-valve for the legal differences of 4,000,000 people. Yet the Kyabram influence has come in here and practically spawned over the whole of this Bill. The measure has been emasculated, because, instead of having the larger number of Judges with appropriately high emoluments, we have a minimum number, to whom salaries all too low are proposed to be given.
– What salaries would the honorable and learned member fix?
– Those provided for in the original Bill, or even higher ones. I should have bee.n perfectly prepared to proceed on the principle so courageously expressed by the leader of- the Labour party, and recognise the positions of the Judges as the highest in the land. The honorable member for Parramatta has apparently not altogether cut himself off from his old associations, or quite left behind him the feeling that was prevalent at one time among his associates, that £300 a year was quite enough to give to any one man.
– That is a gratituous insult.
– I do not wish to say anything offensive to the honorable member. I only desired to point out that he at one time belonged to a party which most openly espoused the principle that £300 a year was enough to give to any man, whether he had command of the Channel Fleet, or performed other comparatively unimportant duties.
– The honorable and learned member ought to know that that statement is absolutely incorrect.
– When I was a member of the New South Wales Parliament I heard that sentiment expressed by members of the Labour party over and over again.
– That was the old and unregenerate party.
– I am bound to say that it was very refreshing to hear the honorable member express the new view, and to find that the light of experience had had its effect upon him. I shall remember his expression, and I shall take the liberty of referring to it in connexion with other measures which will probably come before us very soon. There is, I say, no other position that we could create in the Commonwealth that would entitle a man to higher emoluments than those which should be given to the Judges of the High Court. Honorable members know that some men have received as much as £7,000 per annum for the management of big commercial companies in this country. I could mention one case of that kind, and I could instance numbers in which general managers of large banking institutions have received £3,500 a year. I repeat that the Kyabram movement has been a potent factor in this discussion, and that it will in the future be recollected that the parsimony exercised under its influence resulted in the reduction of the emoluments of the Judges of the Federal High Court to a level below those enjoyed by the Judges of the States of which the Commonwealth is constituted. We have heard a great many suggestions in reference to delegating Federal jurisdiction to the States Courts, and it seems to me that that suggestion is only another illustration of the effect of this movement. Even the honorable member for Macquarie appeared to think that by delegating Federal powers to the States Courts we could save expense. Quite recently I had occasion to speak to a Crown Law officer in one of the States upon this very subject, and he remarked that if he had anything to do with the matter, he would refuse to allow the Supreme Court Judges of the States to have these additional Federal duties imposed on them in order to avoid expenditure by the Commonwealth.
– Ninety-nine per cent, of the business already belongs to the States Courts.
– That may be so, but the honorable and learned member must know that practically the effect of any such action as that suggested would be to saddle the States Supreme Courts with a great deal of the work which, under the operation of this Bill, will devolve upon the
– Its effect would be to leave the work there.
– How do we propose to compensate the States if the effect of delegating Commonwealth adjudication to the Judges of -their Supreme Courts is to render necessary the appointment of additional Judges ?
– Most of it is old work.
– Very likely. But under this Bill has not work been laid upon the shoulders of the Justices of the High Court, which many honorable members suggest should be borne by the Judges of the States Supreme Courts ? Would not their ideas, if carried into effect, increase the work of the States Judges ? Have not the Supreme Courts of several States complained that they have now more work than they can perform ? What would be the result of the adoption of the policy in question ? It would necessarily be a very humiliating one to the Commonwealth.
In effect we should be asking the States to supplement their Judicial Benches - to increase their expenditure upon their Judiciaries in order to save the Commonwealth - under the influence of the Kyabram movement - the expenditure that would be involved in the establishment of its own court. Surely that is not one of the reasons for which this Parliament was called into existence. I would further point out that the expenditure connected with the establishment and maintenance of a High Court was included in the Convention estimate of £300,000, which it was anticipated- would cover the cost of Federation. Why__ should we in a spasm of economy, resulting from this political movement in Victoria, suddenly declare that we will delegate our Federal powers to the States Courts ?
– That argument does not apply’ to 5 per cent, of the business.
M”r. BRUCE SMITH. - I do not want to discuss percentages, because neither the honorable and learned member nor myself could say what class of work would be thrown on the Supreme Court Judges of the States. He admits himself that a percentage would be cast upon them, and to that extent I say the position would be a humiliating one for the Commonwealth. The Constitution not only contemplated, but to some extent ordered, the creation of a High Court, because we are told that “ the judicial power of the Commonwealth shall be vested in a Federal Supreme Court.” Of course there is no judicial power in existence which can command this Parliament to discharge that function by constituting a High Court. But if we were a State Parliament, it is questionable whether the position would not be different. If the word “ shall ‘’ has the meaning which is commonly attached to it in courts of law, I hold that there is a constitutional obligation on the part of this Parliament to bring into existence a Federal Court such as will be constituted by the Bill under consideration. I have never been in favour of the appointment of five Justices, and I should like to give my reasons, seeing that I had not the advantage of addressing the House upon the second reading debate of this measure. I have always held that the appointment of five Justices, together with the filling of the many other high and necessary offices upon the inauguration of the Commonwealth, constituted too much patronage to place in the hands of any one Government.
But quite apart from that aspect of the case, it is well that the High Court should be established upon a small scale. As was pointed out by the leader of the Opposition, it would be the easiest thing in the world to pass a short measure at a subsequent date providing for the appointment of two additional Judges should the work of the High Court warrant it. We have adopted a similar principle in regard to the Constitution itself. There are people in some of the States - and especially in New South Wales - who offered the most deadly opposition to the movement in favour of Federal union, upon the ground that the Constitution did not provide for the federation of the States in regard- to a sufficient number of functions. Tn New South Wales it was contended that we ought to bring about a unification, or at. all events, to go much further than the federation of the Customs, Defence, and Postal departments. The more thoughtful advocates of the movement, however, took up the position that it would be time enough foi” the States to delegate additional powers to the Commonwealth when we had had an opportunity of seeing how the experiment of federating these three great Departments worked. In the same way it will be easy for us by-and-by to add to the number of Judges - if it is found desirable to adopt that course - by the passage of a short Bill. But whilst the lawyers differ so much as they appear to do upon the probable effect of this measure, I think that laymen would do well to stay their hands, and to limit the number of Justices to three. In like manner the people of the Commonwealth will be acting wisely in limiting the functions of the High Court until they have an opportunity of seeing how it. performs its work, reserving to themselves the power at a later stage to increase not only the number of Judges, but the jurisdiction of that tribunal.
– That has been done. Where does the influence of the Kyabram movement come in 1
– It has operated in regard to the pension provisions of the Bill.
– The honorable member for Melbourne Ports may shake his head, but that is not argument.
– Nor is the honorable and learned member’s statement.
– I put forward my argument for what it is worth, the honorable member for Melbourne Ports shakes his head for what it is worth, and the honorable member for Parramatta loses his temper for what it is worth. We have heard a good deal this evening about the ease with which all our powers could be delegated to the States Courts. In this connexion, I wish honorable members to consider for a moment three or four classes of. litigation which have arisen and will arise in the future, and to ask themselves whether the decision of such Federal disputes could fitly or decently be delegated to a State Court. Let us take, for instance, the question of the interpretation of our Constitution. We know very well that in determining the meaning of our Constitution a great deal of thought, study, and research will have to be entered upon concerning the construction that has been placed upon certain portions of the United States Constitution, which, though not exactly similar to our own, contains somewhat analogous terras to those used in our Constitution. We all know that in interpreting our Constitution, constant reference will be made to the United States law reports. As the AttorneyGeneral pointed out to-night, the interpretation put upon the United States Constitution led in many cases to the introduction of meanings which possibly were never contemplated by its framers. In some instances it led to the curtailment of rights which possibly its framers had thought were safe and sound under the language employed in the Constitution. That same difficult work will have to be undertaken here, and yet it is actually proposed that as questions arise concerning the powers of the Commonwealth under our Constitution, six Supreme Courts of Australia shall simultaneously be engaged in interpreting that instrument.
– That is done under this Bill.
– But it is done subject to appeal to .the High Court. Instead of every State Supreme Court having the power to determine these questions, is it not infinitely better that they should be decided by one Court, so that we may obtain uniformity of decision, without any of the circumlocution which would be produced by vesting six different courts with Federal jurisdiction? .The adoption of such a proposal would be productive of much confusion and expense to suitors. I would further remind honorable members that there is a very large class of cases concerning which endless dissatisfaction exists in the States at the present time. I refer to actions in which a citizen of one State has attempted to obtain legal redress against a citizen of another. In this connexion we know that although Acts of Parliament have been in existence under which it was believed that the judgments obtained in one State could be registered in another, endless confusion h’as arisen. In different States the J Judges have repeatedly refused to register the judgments of another State, simply because the same reciprocal arrangement did not operate in the State from which that judgment came.
– There is a diversity now.
– Yes ; and the creation of the High Court will overcome that difficulty. A citizen of Victoria may supply merchandise to a citizen of Western Australia, and a dispute may arise over the contract. Under such circumstances, if the citizen of Victoria wishes to sue and obtain a complete remedy, it will be very easy for him to do so under the Bill. Hitherto in such a case an action has had to be brought in Victoria, and then an attempt made to have the judgment registered in Western Australia. Under the Bill the citizen of Western Australia may be sued as if he were a citizen of Victoria, and a judgment obtained from the Federal Court, with the result that execution is issued and a remedy obtained without its being necessary to ask any favour from a State J udge. Then how are questions between State and State to be dealt with? Suppose that the suggestion had been adopted of conferring Federal jurisdiction on all the States Courts, how could we ask the Judges of New South Wales to adjudicate between their own State and another State on an occasion, perhaps, when there was a good deal of feeling between the two States ? How could we ask the States Courts to adjudicate in the case of a great difference of opinion as to whether the waters of the Murray really come within the boundaries of New South Wales - whether they are limited to one side, or are in the middle of, the river? We may imagine the difficulty and complexity likely to arise in asking a J udge or a State Court in New South Wales to adjudicate on a question of the water rights as between New South
Wales and Victoria, where a judgment in favour of Victoria would involve the taking away of what the New South Wales people believe to be part of their rights under their Constitution. No one can dwell on questions of this sort without feeling that it would be ridiculous, merely on the ground of economy, to attempt to get from a State Court a thoroughly satisfying opinion on a question in which the rights of another State were concerned. Then questions will arise between the Commonwealth and the States. By-and-by a question may very easily arise with regard to the acquirement of property from the different States by the Commonwealth. Claims will arise in connexion with the value of the property, and the way in which the States shall be paid. We know of the somewhat bungling provision that was made by the Government in a Bill during last session, when it was provided that, as the Constitution had laid it down that the Commonwealth should pay the States for the property transferred, Parliament should determine how they should be paid. That Bill provided for an extraordinary process. The Commonwealth had to take a State property - a-post-office, a custom-house, or a defence work - and it was provided that the State should contribute to the Commonwealth a sufficient sum to enable the Commonwealth to pay the State back for its own property. Such a measure was seriously introduced, not only in this House, but also in the Senate, If that legislation were persisted in it would lead to law suits between the States and the Commonwealth, in order to ascertain whether, under the Constitution, the States should not be fairly compensated for property taken over with the transferred services. How would such a question be settled 1 Could we ask a State from which property had been taken to adjudicate between itself and the Commonwealth as to whether it should be paid for that property ? If we did ask a State Court to so adjudicate, could we reasonably expect the State to deal equitably, fairly, and Openly between itself and the Commonwealth ? All these questions will arise in the future. It is all very well for honorable members, and honorable and learned members, to say that we have done without this High Court for two and a half years. But have we done without it ? We have done without a High Court in one way, but there has been a great outcry in some of the
States. Something like eighteen months ago an officer of the Post-office in New South Wales stole a public document, and when an attempt was made to prosecute him in the State Court, that Court held that there was no jurisdiction. It may be said, of course, that it was proposed to confer Commonwealth jurisdiction on the States Courts, but at the same time we proposed to throw on the States the expense of trying men for offences against the Commonwealth. If that course were proceeded with we should have not only one law officer of the Crown, but a number of law officers protesting against the attempt to throw on the States the cost of carrying out work of a judicial character which should really form part of the expense and obligation of the Commonwealth. I have other notes, but I do not wish to prolong the debate. I . voted by pairing for the second reading of the measure, reserving to myself the right to vote against, the five Judges as proposed. The number has now been reduced to three Judges, which certainly meets with my personal approval, and the pension clauses have been cut out - a step which meets with my disapproval. But still this Bill creates a Federal Court, and gives emoluments enough to obtain a type of Judges who, notwithstanding the absence of pensions, will enable the Commonwealth judicial work to be, I think, satisfactorily performed. I shall, therefore, have much pleasure in voting for the third reading of the Bill.
– The Attorney-General must have come to the conclusion by this time that his experiment of having what is practically an inquest on this mutilated infant is not a wise one. However, the experiment has afforded comparative strangers in this House an opportunity of telling other honorable members who are regular in attendance, what they ought not to have done. The honorable members to whom I have referred as comparative strangers can stay from the House as much as they like so far as I am concerned ; that is a matter between themselves and their constituents -) but when every two or three weeks we have them coming here and criticising the work which has been done during their absence, I think we have a right to direct attention to the circumstance. The honorable and learned member for Parkes took it upon himself to say that the amendments in the Bill are the result of the Kyabram scare. .
– The divisions show the true position.
– But the honorable and learned member had an equal opportunity with other honorable .members of being in his place and voting for the provisions of the Bill in their entirety. Then the leader of the Opposition took up a similar position to that assumed by the honorable and learned member for Parkes, and complained bitterly about the pension provisions being struck out of the measure. The honorable and learned member for Parkes, in his closing sentences, admitted that the salaries provided in the Bill are quite sufficient to attract a good class of men to the Federal High Court Bench. When the leader of the Opposition was speaking, I reminded him that the question of pensions had been settled long ago, and that afforded him an opportunity to practically sit on me with all his weight, and endeavour to completely extinguish me. The leader of the Opposition also referred, by way of innuendo, to something that occurred in the House some months ago. I am sorry the honorable and learned member is not in his place, because I should like to tell him that he lives in a glass house, and that no one is more open than he is to accusations in respect of conduct that may be criticised very severely. I should like to know, for instance, where the honorable and learned member was on the second reading of the Bill ? Up to the present moment we do not know what his opinions are on the measure.
– The leader of the Opposition criticised the principles of the Bill.
– The leader of the Opposition was criticising the pensions provisions.
– Why should he not do so?
– The leader of the Opposition had an opportunity of being here to discuss the Bill. On several occasions we have had honorable members, after an absence of weeks, coming to the House and making second and third reading speeches on Bills of this character.
– It shows their constituents that they are here occasionally.
– 1 grant that it affords them an opportunity to do that, but it is not right that they should occupy the time of the House in such a way, and subject other honorable members to severe criticism in regard to what has been done in their absence.
– The leader of the Opposition did not allude to other honorable members, but only to the principles of the Bill.
– If the leader of the Opposition had a worthy object in criticising the pensions provisions, let him advocate pensions for other officials than those who have a salary of £3,500 a year provided for them. As I have been opposed to this mea..sure from first to]ast and certainly long before the Kyabram party came into existence, I shall vote against the third reading.
Mr. JOSEPH COOK (Parramatta).As the evening appears to be devoted to the third reading of this measure, it is not out of place for me to say a few words. In the first instance, I should like to say how surprised I was to observe the character of the speech delivered by the Attorney-General in support of the third reading. I havebeen in Parliament a good many years, but I have never heard a gentleman who wasanxious to get a Bill through make a. speech of such a character.
– I do not want to get the Bill through under false pretences, but wish the House to understand what it is.
– There was quite a tragic note running through the whole of the Attorney-General’s speech, and no doubt he looks with supreme pity on proceedings which have left him with a Bill of the character now before us. His original intentions were so large, and grand, and were so much on the American scale, that now the measure has shrunk to the actual requirements of the moment and has been put on a more modest basis, he practically says to the House - “There it is ; it is worth almost nothing, but we will take it.” I never before heard an honorable member, who wanted to get a Bill through, argue in such a way. I can only interpret the utterances of the AttorneyGeneral, as the leader of the Opposition has already done, as a sort of appeal to another Chamber to insert some of the provisions which have been struck out by this Chamber.
– I have no better hope there, I am sorry to say.
– I am very glad to hear that, and the reply only makes the speech more remarkable. However, we. must give the Attorney-General credit for his outburst of candour, and also for the analytical skill with which he proceeded to show how different this Bill is from the measure as originally introduced. That, again, only makes his speech more remarkable. The Attorney-General still wants five Judges if he can get them, notwithstanding that nearly all the work provided for them has been taken out of the Bill. If the Attorney-General still thinks five Judges are necessary, it is quite clear that, under the original Bill, fifteen Judges would have been necessary. Here the question of cost undoubtedly comes in. It ‘ is not for honorable members to sweep aside the question of cost, as the honorable and learned member for Parkes did, and taunt honorable members with being under the influence of the Kyabram movement in Victoria, when they show that they have some regard for the public purse and the requirements of the moment. In this connexion I should like to say that I do not at all appreciate the references of the honorable and learned member to myself. I regard those references as quite gratuitous, and uncalled for, because they have not a scintilla of basis. Search the New South Wales Hansard reports as industrially as he may, I defy him to show that any member of that Parliament, labour member or any other, has made the statement he attributed to them tonight. 1 advise him not to repeat a parrot cry with such persistency and iteration. One might with a great deal more justice say that the honorable and learned gentleman is consistent in the attitude which he has taken up in regard to the probable cost of the High Court. He has all his life been prepared to defend an institution merely because it was costly.
– Can the honorable member prove that by reference to Hansard?
– The honorable and learned member, with his large political pretensions, is consistent in arguing that very high salaries should be paid to the Justices of the High Court. He has been called the most extravagant Minister in the public life of New South Wales, and whenever the present Secretary for Works wants an argument to support a course which he advocates, he instances the actions of the honorable andlearned member. I have never believed that all salaries should be levelled down to the lowest amount, and I hope that in future the honorable and learned member will not make such taunts whenever any one dares to differ from him in the slightest degree. No one questions his courage. Indeed, he rather courts the unpopular view, and will go out of his way to discover an unpopular cause in order that he may be singular, and display this great virtue. The Attorney-General told us that among the matters to be decided by the High Court is the question of the water rights of the States. That has been admitted over and over again; but the reply to his argument is that there is no immediate prospect of the difficulty arising. Similarly, no difficulty can arise for some time to come in connexion with the transfer of State properties to the Commonwealth. It is quite clear that such a difficulty cannot arise during the continuance of this Parliament, and it will be some years before it arises, if it ever arises at all. Are we then to create a costly court, whose Judges will sit waiting for this business to come along ? No one has ever questioned the mandatory character of the provisions of the Constitution which relate to the establishment of the High Court. Every one admits that ultimately we must have a High Court. But we contend that until the functional powers of the Constitution are much more developed, we shall not need such a body. The establishment of a High Court will be imperative in the future, and we may then have to appoint more Judges than are now proposed ; but until the Federation has felt its feet, and its financial arrangements are in a better condition, it will be imprudent to establish an expensive court. The Attorney-General spoke of the need for a High Court because of the public functions which will attach to it. He spoke in a most delightful way, hiding himself as usual in a cloud of beautiful words ; but when asked to give concrete cases he went back hundreds of years to the case of John Hampden. It was interjected by the honorable and learned member for Indi that it has taken the Americans 1 00 years to find out the meaning of their Constitution, and the AttorneyGeneral told us that it took England 600 or 700 years to determine Some of its most cherished political liberties. That being so, it will probably take us hundreds of years to completely understand our Constitution. But is that a reason why we should immediately set up this proposed court 1 The honorable and learned gentleman must be in difficult straits when he has to buttress up the case for the Bill by an appeal to ancient history. We sympathize with him, because he seems like a lost sheep seeking the fold which was in his imagination when he first introduced the Bill. I think, however, that the Committee did good work in amending the Bill, and that the House will do better work in postponing the creation of the High Court for at least another three years. In spite of all the taunts about Kyabram, and about favouring small salaries, I am of opinion that we shall do a service to Australia if we at present refuse to create costly machinery to do what may be done with less expense by the existing legal machinery of the States.
– The honorable and learned member for Parkes seems to think that the opposition to this measure is mainly, if not entirely, due to the spirit of “Kyabramism” now prevalent in the States, and particularly inVictoria. Very few will credit me with much sympathy with Kyabram politics, or think that I am affected by any exposition of political reform emanating from that highly respectable association. But I recognise that we are responsible to the Commonwealth for the proper expenditure of its money, and, Kyabram or no Kyabram, if we think an expenditure unjustifiable, we are within our rights in refusing to consent to it. There is a very wide difference between unnecessary expenditure and expenditure upon necessary services. I shall always oppose anything in the nature of extravagance, and indeed any expenditure for which the Commonwealth is not to obtain a quid pro quo. I agree with the honorable member for Bland, however, that New South Wales, in paying a very large salary to her first Chief Commissioner for Railways, gotgood value for the money expended ; and so, if the Commonwealth determines to establish a High Court, it will probably be necessary to pay high salaries in order to obtain the best talent available upon its Bench. If the best talent is secured, there is not likely to be any complaint about the salaries paid. But I question the wisdom of establishing the Court at all at the present time. The Attorney-General, in the course of a very extraordinary address this afternoon, contended that Parliament is under an obligation laid down in the Constitution to establish a High Court; but that obligation is no greater now than when we first assembled.If the need for a High Court was so pressing, the Government should have endeavoured to establish it last session, instead of allowing the matter to stand over until the concluding months of our existence as a Parliament. The Commonwealth has got along very well up to the present time without a High Court, and I do not see that there is any pressing need for its establishment. I feel sure that it will be in the best interests of Federation, and of the High Court itself, if the consideration of this question is allowed to stand over until the next Parliament assembles. If, in the meantime, any cases arise which show the urgent need of a High Court, it can be established without further delay. If there had been any necessity for the court, we should have had a demand for it from the lay members of the community instead of from the members of the legal fraternity only. No doubt the High Court has been clothed with very high powers - powers greater than those conferred upon any judicial tribunal in the Empire. The Bill has been framed very largely upon American precedents, and we find that whereas in most British communities Parliament has hitherto been the sole custodian of the Constitution and of the rights of the people under it, it is proposed now to delegate these functions to the High Court. I am not sure that that would be a wise course to pursue even in view of the provisions of the Constitution, and, in any case, we need not be in too great a hurry to confer large powers upon an irresponsible body. I do not regard the measure as urgent, and for this, and the other reasons I have stated, I shall record my vote against the third reading.
Question - that the Bill be now read a third time - put. The House divided.
Majority … … 12
Question so resolved in the affirmative.
Bill read a third time.
Bill read a third time.
Debate resumed from 7th July (vide page 1816), on motion by Sir Edmund Barton -
That the Bill be now read a second time.
– I do not know whether honorable members feel in a fitting humour for the resumption of the debate upon this important question at an advanced hour of the evening, after so much time has been absorbed in considering another subject. It is to be regretted that we could not resume the consideration of this question without having our minds disturbed by other matters, because it is almost impossible to over-estimate the transcendent importance of the question of naval defence. I should like to pay what I consider to be a deserved tribute to the Prime Minister for the exhaustive, comprehensive, and able manner in which he launched the Bill, although I must say that his statement has not removed the very serious doubts which I have entertained from the beginning as to the propriety and wisdom of ratifying the proposed naval agreement. The keynote of this agreement is to be found in the preamble, which states that the Admiralty, as representing the Imperial authorities, and the Governments of the Commonwealth and New Zealand, having recognised the importance of sea power, have resolved to conclude the agreement which is set out. The second affirmation is that it is desirable that steps should be taken to develop the sea power in Australia and in New Zealand. There will be few honorable members who are prepared to disagree either with the first affirmation as to the general importance of sea power, or with the second as to the advantage and necessity of developing that power in Australia and the Southern Seas generally. At the same time I believe that the proposed scheme, however well thought out by its. framers, will not achieve the purpose contemplated by the second affirmation, namely, the development of sea power in Australia, and I propose to advance reasons in support of that contention. In the first place, I should like to direct attention to some prominent features of this agreement, and to remind honorable members of the very far-reaching results which will flow from its adoption. Although the financial aspect of the matter is an important one, I consider that it is of subordinate importance compared with the indirect consequences that will result from the adoption of this agreement. Regarding the £200,000 per annum, which it is proposed to appropriate for the development of the sea power, either of the Empire, or of Australia generally, I, for one, should be very sorry indeed to oppose any scheme which involved that amount, or even a much larger sum, assuming that I was satisfied it would achieve the purposes in view - purposes which are concurred in by every patriotic Australian, as well as by every patriotic citizen of the Empire. At the same time, it is just as well to remember that by the adoption of the agreement which forms the subject of the Bill, this Parliament not only commits itself to an annual expenditure of £200,000 for a period of ten years, but absolutely parts with all control over that vote during the period mentioned. We shall have nothing more to say about it, because, as the Prime
Minister admitted last night, the interpretation of the agreement will practically rest with the Admiralty. Of course, if Parliament is satisfied as to the wisdom, practicability, and desirableness, of entering into this agreement, the fact that it will operate for ten years is not an insuperable obstacle to its adoption, although I think we ought to recognise that these permanent appropriations are unusual, and should be limited to a very small class of subjects. The second point in regard to this agreement is that it abolishes the old Auxiliary Squadron - which was established for- the special purpose of providing naval defence in Australian waters - and creates a new force as a part of the universal nav)’ of the Empire. It is of no use disguising the fact that the new naval force which is to be created under this Bill will not be one of a purely Australasian character - that it will practically be a part of the navy of the Empire, and will, subject to the commands of the Admiralty, be required to render service in any part of the three stations which were referred to by the Prime Minister last evening. In fact, the men and the ships, in cases of emergency, would probably be available for service in any part of the world. That, of course, introduces quite a new element into the consideration of a scheme such as this. It affords a very striking contrast to the policy embodied in the agreement made with the Admiralty in 1SS7-9. The third feature of this agreement is that it proposes to create a new Naval Reserve in Australia under the control of the Admiralty, and that it deprives the Commonwealth Government of the right to organize a naval reserve. At the present time, of course, the Commonwealth Government can organize an Australian Naval Reserve.
– So it can in the future.
– [ do not suppose for a moment that we are likely to have two rival Naval Reserves. To that extent the agreement will deprive the Government of a power which it at present enjoys. The fourth feature which impresses me is that it obliterates and destroys the Australian Naval Forces, which have been established in Australian waters by the States Governments. Finally, it makes no provision whatever for the naval defence of Australia in what are regarded by naval experts as special risks - those of raids and attacks by roving cruisers in time of war. These are some of the features of the agreement which I think ought to be very carefully considered before we finally part with the power of control of our naval force for a period of ten years, and before we vote away £2,000,000 of Australian money. I cannot but regard a scheme possessing the features which I have outlined as failing to carry out the intentions of its framers, and I venture to say that it will fail ignominiously in developing the sea power of Australia, which, I am sure, is the desire of. every honorable member, and, indeed, of the people generally. I can only describe it as a make-shift or a stop-gap scheme, which has probably been adopted without a sufficient amount of preparatory consideration of the consequences that may flow from it in years, and perhaps, ages to come. I desire to remind the House of the fact that for the agreement in its present form this Parliament is in no way responsible, except to the extent that it was adopted conditionally by the Prime Minister as its representative in London during the Coronation celebrations. But I might further point out that the right ‘honorable gentleman distinctly promised, on the eve of his departure for Europe, that he would do nothing to commit this Parliament to any grave question of policy, and that everything which he did would be subject to its approval. Doubtless that condition was well understood in London at the time he became a party to, and signed, the agreement. At the same time we cannot but feel embarrassed by the consideration that he has pledged his word, and thus impliedly committed the Parliament of which he is the leader.
– No. My letter of acceptance of the agreement was expressly made subject to the approval of this Parliament.
– I am very glad to have that assurance.
– I stated that the agreement was subject to the approval of Parliament at the very opening of my speech last night.
– I am aware that the Prime Minister did avow that condition. At the same time I felt that the impression might have become current amongst Imperial statesmen that this Parliament had been pledged. If, however, the facts are as stated, we shall be able to discuss the matter in a freer manner than would have been possible had we been embarrassed by the consideration that any modification of the agreement, or delay in its adoption, would amount to a failure to sustain the honour of the Prime Minister. Upon the face of it, this Bill involves the abdication of a political right, and the abandonment of a duty, which stand in the very forefront of our newly-acquired Federal Constitution. I take this as a fundamental objection to the measure. By our Constitution, the Imperial Parliamentrelying upon our judgment, discretion and patriotism- has intrusted to the people of Australia, as represented in this Parliament, the important power of naval defence. That was the first time the words “ naval defence “ appeared in any Colonial Constitution, although there was power to organize defences given in another Imperial Act. But the fact that a similar power has been given in our Constitution should be an assurance to us that the Imperial Government and the Imperial Parliament have every confidence in the manner in which it will be exercised by the Australian Parliament. In addition, I would remind honorable members that when our Federal Constitution was on the eve of adoption, the great organ of public opinion in London, the Times, proclaimed to the world that a new power had appeared in the Pacific. What has become of that new power? What has become of the power given to us in the Constitution? At the very first opportunity presented for the exercise of the power contemplated by the Constitution, and commented upon by our critics in other parts of the world, we propose to abdicate and abandon it, handing it over to a department of the Imperial Government situated 16,000 miles away. In support of my contention that the present proposals involve an abandonment of our power, I remind honorable members that the proposals also involve the complete reversal of the policy of the Imperial Government, extending over a period of 40 years, towards the colonies in the matter of naval defence. For over 40 years the Imperial Government has done its best to encourage the colonies in all parts of the world to develop their sea power on their own account, at their own expense, and with their own resources, subject only to advice, from time to time, of Imperial officers and the Imperial Government. As far back as 1865 the Imperial Parliament passed the Colonial Naval Defence Act, containing special provisions, which may be found explained in Todd’s Parliamentary Government in the Colonies, second edition, page 401. Through the whole of that Act two prominent purposes run harmoniously together. One purpose is the development of colonial naval resources and the instinct of seamanship in the colonies, enabling them to make better provision for their naval defences, authorizing them to provide ships of war, weapons, seamen, and volunteers.
– Wehave not done very much in that line.
– I shall come to that presently. What has been done, the Minister for Defence proposes to obliterate; and he oughtnot to anticipate my remarks.
– The present ships are not of much use, anyway.
– The second purpose running through the Imperial Act is that the colonies by their naval organization might be enabled to add to the Imperial sea power. The Act authorized the colonies to raise volunteer forces to form part of the Royal Naval Reserve which was organized by the Act of 1859. The Act also authorized the colonies to provide that their own ships and seamen should be made available for general service in the Royal Navy in time of emergency. These were the views of Imperial statesmen confirmed by theImperialParliamentin 1865. They trusted the colonies so far back as that date to deal with the question of naval defence, and thought it consistent with Imperial supremacy, as well as with colonial autonomy, that the colonies should be advised and encouraged to develop their own naval resources, to provide ships of war, and to actually organize branches of the Royal Naval Reserve. In support of my proposition that the proposed scheme is a reversal of the policy of over 40 years, I remind honorable members that under the Colonial Naval Defence Act of 1865, the Australian colonies took action to give effect to and exercise the powers then conferred. Many of the colonies have spent thousands of pounds in establishing whatmay be described as local navies. Those forces may be small, but they contain the elements of locally-owned ships and trained men. Some of these navies have proved, I venture to say, notwithstanding the sneers of the Minister for Defence, very creditable and respectable forces. They have shown their ability to give a good account of themselves whenever called upon to do so by their respective Governments. In support of what I have said, I should like to refer to the visit of the South Australian gun-boat Protector and the Australian naval contingent to China a couple of years ago. They took part in the manoeuvres and operations there, and won plaudits from Imperial officers, including the CommanderinChief. Even in the Blue Book before us, the Admiralty say that the Australian contingent did excellent service in China.
– They did not fire a shot.
– I would remind the Minister for Defence of what was said recently by the Governor of Victoria, Sir George Clarke, at the Town Hall, Melbourne, when distributing prizes to the naval contingents. His Excellency said -
Inhis despatches, Major -General Campbell said that a finer, more intelligent, or better disciplined body of men he had never come across. Their aid and the hard work they underwent in maintaining order at Tien Tsin was beyond all praise, The Commander-in-Chief of the British Contingent, Sir Alfred Gazeley, said he could not speak too highly of the usefulness of the Colonial contingents. They had been, he said, an objectlesson, not only to their fellow Britishers, but to our Indian subjects, of the patriotism which inspiredall parts of the British Empire. No body of men ever deserved the description of being “handy men” more than the men of the contingent. They might well say that the State and Commonwealth had every reason to be proud of its sailor men.
That extract is my reply to the interjection of the Minister for Defence.
– There is nothing in that. What did I interject?
– The right honorable gentleman interjected that the colonial naval forces which had been organized under Imperial authority were comparatively worthless and valueless.
– Not at all; what I desired to convey was that the ships were of very little use - the forces are all right.
– I should like to show, still further, what has been done in accordance with the power conferred by the Imperial Parliament. As early as 1866 the Victorian Government, upon the recommendation of Colonel Scratchley, acquired the Cerberus and organized a permanent naval force of 217 men, with a naval brigade of 227. in reserve. The Cerberus was afterwards reinforced by a number of small gun-boats, which may be found described in detail in the NavalManual. The number of men was afterwards increased to 301, at a cost of £27,000 per annum. Under the recent retrenchment by the Commonwealth Parliament, the number of men in the Victorian naval forces has been reduced to 267, at the lessened cost of £19,700 per annum. I should here like to invite attention to a most peculiar circumstance. On the eve of the departure of the Prime Minister for England, this House reduced the Naval Estimates very considerably.
– The Military Estimates.
– The Defence Estimates generally ; and the result was that the number of men employed in the Australian naval forces was reduced from 1,933 to 1,463, making a difference of 400. The amount formerly expended on their maintenance was reduced from £67,410 to £46,524, showing a difference of £20,000 as the consequence of the vote of this House. There was a reduction in the number of men and a reduction in the amount annually expended ; and yet a few months afterwards the Prime Minister went to England, and, knowing of those reductions, he became a party to an agreement, by which our naval vote is to be increased by £94,000, involving the creation of a new Imperial force, but, at the same time, involving the utter effacement of the Australian forces. The question for the House to consider is whether the policy proposed is a wise policy. I remind honorable members for South Australia of the fact that in 1877 Sir William Jervois recommended that a powerful ship of war should be obtained by the Government of that colony, to be supplemented with heavy guns on shore. Sir William Jervois pointed out that South Australia, with a sea-board of 1,500 miles, presented a very wide stretch of country open to attack, and that the main defence of Adelaide must be’ a vessel of war. Acting On that recommendation, the Government of South Australia procured the Protector, and employed nearly 200 men at an expenditure, at the time of the establishment of the Commonwealth, of £8,598 per annum, which amount has since been reduced by this House to £5,848. Honorable members may thus see what was done by the colonies, and what has been done by the Federal Parliament in the way of retrenchment. We can contrast what was done in the past with the proposal now before us to increase the naval vote by £94,000, after it has been reduced by £20,000. In New South Wales, the principle of local naval defence was also (recognised by the Government of that colony. In 1S79, Sir William Jervois recommended the purchase of an ironclad to protect local commerce and the minor harbors, but particularly to secure Sydney from bombardment by a vessel lying outside the Heads. He pointed out the danger of leaving the city protected merely by land batteries, and the importance of sea defence. The Government of New South W:des took some action upon that report, though it was action of a limited character. They obtained and commissioned the Wolverene, and created a naval brigade which, at the time of its transfer to the Commonwealth, consisted of <563 men. It has since been reduced to 443 men, and costs now £5,583 per annum to maintain, as compared with its former cost of £9,904. In Queensland, in 1881, the Government was advised to procure for coast defence swift gun-boats and torpedo boats
And, as the result of the recommendation of the same distinguished naval officer, they procured the Gayundah, the Palimah, and another small gun-boat, and created a naval brigade, consisting of 785 men, which has since been reduced to an establishment of 581 men. Queensland formerly expended £23,000 per annum upon her naval defence, but the Federal expenditure is only £15,000 per annum. In 1881 Sir Peter Scratchley urged that provision be may for the naval defence of Western Australia. He recommended that a sea-going vessel be provided to repel hostile ships on” the coast, such vessel to be armed with modern guns, capable of piercing armour-plated iron-clads. I have drawn the attention of honorable members to those instances to show that the policy of local naval defence has been part of the continuous and permanent policy of the Imperial Government, and has been supported by some of the most distinguished officers sent out to report on the subject. It is not, as it has been described, the policy of naval faddists, and is not a ?new thing. Neither is it a policy which has been suggested by interested persons for the purpose of retaining existing organizations. It has been recognised as part of the naval strategy of the Empire to encourage the creation of local naval forces.
– Until recently, no expert had any other advice to offer.
– That is so. The reason why the Australian . Governments were invited and encouraged to establish local naval defences was that Australia, being far removed from the possible theatre of naval warfare, would be liable to attacks, not by massive squadrons, but by stray cruisers. In support of that statement, I invite the attention of honorable members to the utterances of one or two authorities upon the subject. The liability of Australia to attacks by stray cruisers is the basic principle of the idea of an Australian Navy. One of the first authorities to draw atten-tion to the subject in a very marked way was Sir William Jervois, who in 1877 wrote that he considered that the enemy might, no. doubt, despatch one or more cruisers to operate against our maritime commerce, or make a descent upon any of our colonial possessions. … A squadron intended for such an operation might consist of some three or four vessels. Eluding our cruisers, and appearing suddenly before Sydney, Melbourne, Adelaide, or in .Moreton Bay, it might capture the merchant vessels lying in the harbors, intercept any of the numerous vessels conveying valuable shipments of gold, or, under threat of bombardment, or, after actually firing into one of the lange towns, demand and obtain a payment of many millions of money
Another authority is Sir Peter Scratchley, who, in 1876, reported that he considered that the Australian colonies were exposed to attacks from one or more cruisers - as a maximum, a squadron of four - which, eluding the British cruisers, might capture merchant ships in harbor, demand from Our capitals payment of many millions of money under threat of bombardment.
Admiral Wilson, who was once on the Australian station, whilst not apprehensive of a squadron of frigates, was of Opinion that the class of vessels to be expected out here in time of war, and which we should be prepared to meet, are armed merchantmen. In 18S9 Major-General Sir Bevan Edwards reported officially to the Australian colonies on the organization of their forces, and in April 1891, in addressing a meeting of the “Royal Colonial Institute in London, he said -
If we are found without ‘ a decided naval Superiority, we shall again see attacks made upon our stations and bases in all parts of the world. If we had this undoubted superiority the Australian colonies need only be prepared to resist the attacks of stray cruisers which would make a raid upon stations where coal is to be had, or to extract a ransom from some of the towns on the coast by threat of bombardment.
My next authority is the present esteemed and respected G overnor of Victoria, who, in addressing an audience at the Royal Colonial Institute in 1896, said -
Small expeditions directed, not to effect territorial conquests, but to destroy national resources, may, nevertheless, as in the past, evade a superior navy. Such expeditions are of the nature of raids. Wherever national resources necessary for purpose of war are accumulated, local means of resistance against a raid are needed.
I would next quote, a passage in a report submitted by the Colonial Defence Committee of Great Britain in March, 1901, in which it is stated that, although the Admiralty have accepted responsibility for protecting all British territory against foreign aggression, they may not always be in a position to prevent raids by hostile cruisers, their object being to destroy shipping or other accessible property of value in the British possessions in different parts of the globe. Then, on 7th April, 1902, MajorGeneral Sir Edward Hutton, expressed a similar view in regard to the liability of Australia to attack by stray sea-wolves, It was in consequence of the reports and recommendations of these various Imperial experts that the Australian Governments were induced to launch into large expense to make good their local naval defences. Not only were harbor works constructed, but naval forces were organized- on a large and expensive scale. The principle of an Australian Navy, which has been advocated by many members of this House, and by many public writers, in both Australia and the old country, is not a new one. It is not, as was suggested the other night by the. Minister for Defence, a fad. It has been worked into the system of Australian defence for upwards of 40 years past, and cannot lightly be disposed of by terming it a fad It was particularly in the development of the policy of Australian naval defence that the agreement of 1887 was adopted. It is well known that the author of the scheme was the late Admiral Tryon. It is not generally known, though it is nevertheless a fact, that the idea originated with the Imperial Government, and first assumed the suggestion that the Australian Governments should, under Imperial advice and direction, purchase a fleet which, under certain circumstances, would . be under Imperial control and command. That does not look as though the Admiralty had in any way departed from the principle laid down in the Act of 1S65. But, probably, it was in 1887 differently constituted as a body from that which it was in 1902. It is, however, an historical f actthat in 1887 the Admiralty proposed, that there should be in Australian waters a special localized squadron, owned by the Australian colonies, and subject to thesupervision and direction of the Admiral. That statement will be found to be borneout by the records. Admiral Tryon discovered that the scheme would not work,, because the colonies could not act jointly in the matter.
– And they did not wish to be left with old iron on their hands.
– We are in the sameposition now.
– No, we are not. The federated States are now capable of joint action. Any expenditure which they undertake will be a Federal expenditure,, and their liability will be joint, not several. We are now in a better position than in 1887 to agree to a joint scheme of naval defence. The Australian colonies agreed,, rather than subject themselves to the liability to purchase a squadron outright, topay towards interest and sinking fund an amount equivalent “to 5 per cent, upon the capital outlay, the understanding being that at the end of the period covered by the agreement the vessels of the squadron should revert to the Admiralty. I should like toremind honorable members that what isreally one of the fundamental features of of the agreement is to be found in its forefront. I desire to direct special attention to its recital, and to contrast it with that in the agreement entered into in 1889. Wherein it was stated that the Com.sioners for the Admiralty and the Governments of the various Australian colonies -
Having recognised the necessity of increasing; the naval force for the protection of the floatingtrade in Australasian waters at their joint chargehave resolved, &c.
There is a recognition of the necessity for an Australian naval force to protect the floating tra’de in Australian waters. Provision was made” for a specialized naval force for the distinct purpose set out in the preamble to the agreement, and this wasfollowed up by a specific covenant by the
Imperial Government that they would not remove that Australian force without the consent of the Australian Governments. Here we have the recognition of the principle of a localized Australian squadron embodied in an agreement adopted and ratified by the Imperial Government, and yet we find the Prime Minister to-day supporting an agreement which removes the restriction and limitation as to the operations of the squadron, and asking us to contribute towards the maintenance of a fleet which will be free to go to almost any part of the Southern Hemisphere. What has become of the principle of a localized squadron, as provided for in the agreement of 1S89? If it were a sound principle of naval strategy to have a localized squadron in 1889, what change has taken place in naval strategy to render that principle unsound to-day ? What change has taken place to justify the Prime Minister in giving prominence to the doctrine that it would be absolute madness to create a purely Australian squadron ?
– It would involve too much expense.
– It was not put forward as a question of expense, but as one of naval strategy, pure and simple. Were we not warned that if we had a squadron of our own we might be left in the lurch, because we could not count upon the co-operation and support of the squadrons on the China and East Indian stations? The question is just as one of pure strategy, ahc! not as one of finance, because we are told that strategic reasons of the most important character stand in the way of our having a squadron specially designed to protect Australian commerce.
– I do not think the British Admiralty were in favour of the conditions embodied in the 1889 agreement ; they only yielded to our wishes.
– Yes, they were. The late Admiral Tryon was distinctly in favour of the restriction of the operations of the Auxiliary Squadron to Australian waters, on the ground that it would pro”bably lead to the establishment of an Australian navy at the termination of the agreement ; that, in other words, the Australian Auxiliary Squadron would be the germ out of which a purely Australian Squadron would be developed. He thought that this would afford a splendid means -of encouraging the colonies to have a combined naval force, and he laid great stress on the personal participation of our people in the naval defences of Australia. He said -
It is not a mere subsidized force that will do what is wanted. It is not only money that is required to produce effective forces, but it is the personal service of our countrymen all over the world. It is blood rather than gold that is the basis of every true force ; and to awaken the true spirit, the Government of each colony, the people of each colony, should manage, as far as possible, their local forces during time of peace. Unless they do so, the burden of cost will be irksome, and the interest of the people in their maintenance - which is a first factor for success - will not be evoked.
Therefore, the Admiral’s idea was that Australian men and boys should have an opportunity of being introduced to naval work by serving on the ships of the Auxiliary Squadron, and of thereby becoming acquainted with sea life and acquiring a taste for naval pursuits. He laid stress on that fact, and this was held out as a great inducement to the colonics to agree to the subsidy of £126,000 per annum, extending over a period of ten years, and involving a total expenditure of £1,260,000. We were told that the Australian Auxiliary Squadron would be practically an instalment of a navy of our
Own - that it would form the nucleus of an Australian naval force of which our people might well be proud. In Admiral Penrose Fitzgerald’s Life of Admiral Tryon, the following passage occurs -
Whatever the future may have in store for them (Australians) - federation, monarchy, republic, or some new, and us yet unheard of, form of government - it is certain that their extensive maritime interests will eventually require a powerful navy for their protection ; and it will be on record in the archives Of the various Australian Governments that Admiral Tryon had more to do with the initiation of that navy than any other man.
It is to be regretted that Admiral Tryon was not spared to work on the Australian station long enough in order to give effect to the primary and fundamental ideas which were at the basis of that agreement, namely, to endeavour to get the Australians to participate actively in their own naval defence. After his recall the command of the station passed into the hands of Admirals with other views, and it is to be mentioned as a most regrettable circumstance that they did not give effect to the idea that opportunities should be given to Australians to obtain some degree of train ing and drilling on board the subsidized ships. Probably honorable members from New South Wales will remember that an application was made to an Admiral to allow the naval brigade to go on board some of the vessels in Sydney harbor for the purpose of obtaining practical drill or of getting a little sea experience, and that it was refused. I am also told that later on in Brisbane an application was made to the Admiral by some officers to allow the men of the Queensland naval brigade to go on board some of the ships there, and that it was refused. These extraordinary refusals by the Admirals to co-operate with the growing naval forces of the Australian colonies did not show any anxiety on the part of the Admiralty authorities to encourage and develop thelocal naval spirit. At any rate, at this stage a certain amount of jealousy, if I may use the word in a guarded way, began to grow up on the part of those who had the control of the Admiralty as to the desirability of allowing the Australians to proceed with the development of their naval forces. Because if that was viewed with a friendly eye, what reasonable objection could there have been on the part of the Admiralty to allow the naval brigades of Australia, that had been established by Imperial authority, the opportunity of getting a little training on board the ships which had been partly paid for by the Australian people? We hear the naval authorities now saying - “Oh we wish to develop the maritime spirit,” but why did they neglect to develop the maritime spirit of Australia when they had such golden opportunities during the twelve years’ term of the naval agreement of 1889? I should like to receive an answer to that question.
– Is not the honorable and learned member satisfied that England has given in the past a great deal for very little?
– I am prepared to recognise with loyalty and affection all that we have received from the mother country, and I deny that the honorable member appreciates more strongly than I do what we have received from her. I am merely pointing out other directions in which the dear mother country, as represented by the Admiralty, might have co-operated with Australia in doing what she now says she regards as a fundamental principle.
– The honorable and learned member does not know the circumstances.
– I am pointing out what ought to have been done to develop the sea power of Australia during the continuance of the agreement which we are asked to supersede, and drawing attention to refusals to co-operate in the past in order that we may take warning that similar treatment may not be meted out to us, it may be by irresponsible officers, in the future.
– Has the honorable and learned member a good foundation for that statement, and does he know what were the circumstances ?
– I have a good foundation in the shape of the authority of Australian naval officers, whose names I am prepared to give the Minister privately, but not publicly.
– I should take that cum grano salis, I think.
– I do not see why the right honorable gentleman should dispute the accuracy of the statement.
– The honorable and learned member does not know what the facts and circumstances were.
– They have all been mentioned in public documents and papers which have been circulated among honorable members as well as in English magazines. I should like to mention another important feature in the history of this question, to show that the development of an Australian naval force is not a new-fangled idea on the part of irresponsible persons. In 1899 a conference of Australian naval officers was held in Melbourne, I believe at the suggestion of the Governor of Victoria, Lord Brassey, who took a very great interest indeed in the naval question, and who was most anxious thatsteps should be taken for the organization of a Royal Naval Reserve force in Australia. In a paper which he read and published, he said that he thought that if the Australians could not have a fleet of ships, at any rate they might have a branch of the Royal Naval Reserve, to be organized, sustained, and trained by the States Governments, and to be allowed to have practice and drill on some of the subsidized ships. Suppose, he said, that the Australian colonies did organize a branch of the Royal Naval Reserve, if the men were afterwards available for service in the Imperial fleet, they would do a good work, and the service and the expenditure involved might be accepted as a quid j/ro quo for the trifling contribution towards the cost of the Auxiliary Squadron. It was in order to consider that proposal that the conference of naval experts was called in Melbourne in 1899, and as the result of their deliberations they suggested a scheme «to this effect : Ships of war of effective type for service in time of war to be provided by the Admiralty at the expense of Australia, and in peace to be stationed at principal ports for drilling and training local naval forces ; to be commanded by the ‘ Admiral on the station in time of war, and to be subject to his inspection and supervision in time of peace, and to be maintained, manned, and officered by the Federal. Government. It was further suggested by the conference that the naval forces belonging to Australia should be amalgamated into one Federal force under one Australian commanding naval officer in peace, and that there should be an instructional staff and permanent men in conjunction with partially-paid naval reserves to be the nucleus for the maintenance and working of the vessels. This plan was in fact an elaboration of the system under which Victoria had taken over and manned the Cerberus, and drilled and organized the Victorian naval forces. The report of the conference will be found by honorable members in the Parliamentary papers of Victoria. The scheme was practically a further development of Admiral Tryon’s scheme.
– They did not make any provision for the payment of interest on the cost of the vessels.
– It was understood that the vessels were to be taken over, and the interest and other expenses paid by the Australian Governments.
– I think that the weakness of their estimate was that it did not include interest.
– I do not desire to go into the details of the scheme, but merely to give the general outlines of it. From a letter which was published in Hie Times on the 4th January, 1900, I wish .to quote a passage in which Captain Collins, who was Secretary to the Victorian navy, before he became Secretary to the Federal Defence Department, referred to this naval scheme. He said -
It is not proposed to set up a separate navy, as distinct from the defence of the whole Empire. The proposal was a scheme by which colonies could assist in manning, not only vessels on this station, allotted, perhaps, to particular and special duties, but also provide a reserve of men available for Her Majesty’s naval service generally. A cash nexus will prove a poor means of welding the Empire, lt is when the sons of the Empire stand shoulder to shoulder, fight together, endure together, then we have a real and effective force behind the. Imperial idea, and a bie so truly uniting us, not when we pay over a certain amount of cash for others to render the service.
In the London Speaker of September, 1895, the following significant passage occurs from the pen of a disinterested public writer : -
We desire to see local supplementary navies owned by the colonies, manned and officered by the colonies. Such a squadron would be a help in war time, and in peace would train the colonists in the duties of self-defence. We do not desire to see the colonists hiring British ships at so much per ton per annum to guard their shores.
The Spectator, writing in the year 1902, says -
We cannot agree that it (naval strategy) necessitates the colonies having their defence from us (England) for a mere money contribution. On the contrary, we hold that the best way of getting the colonies to realize the true nature of seapower is for them to build and man sea-going vessels of their own. Naval power rests in the naval spirit in the empire that seeks naval power. Canada, Australia, and. New Zealand will never attain to that naval spirit which is the life-breath of a maritime empire if they hire their naval protection in Britain and pay in money. Mere money subsidies to the Admiralty will never create the spirit in which naval power rests.
– “What newspaper is that 1
– The Spectator; in the course of a most remarkable and powerful argument, showing that if we desire to do what the” First Lord of the Admiralty wants us to do we must set about it in a different way from paying cash to other people. We must engage in the work ourselves.
– Where is the money to come from 1
– The money is not so difficult a question as has been represented. I am now contending that to do what the First Lord of the Admiralty is asking us to do, we must proceed on different lines. I would draw attention to his words because, to a large extent, I think they are memorable and historical words. Let honorable members listen to this passage, which occurs in the memorandum by the First Lord of the i Admiralty. It is to be found on page 15 of the Imperial Blue-book. Referring to the Australian agreement at present in force, he says -
Like every other document that commences a policy it has faults, and to my mind there is no fault greater in it than this, that the relations of the Australasian Governments to the Imperial are simply that of the man who pays to the man who supplies. The Australasian Governments pay us a certain contribution. For this contribution we supply them with a certain article. Now this is good so far as it goes, but it does not to my mind go far enough. It does not give our New Zealand and Australian fellow-countrymen the sense of personal interest, of personal possession, in the British navy which I most of all desiderate for the future. ,
What is the true application of that 1 It is that if we wish to develop the sea power of Australia we must-personally participate not merely by paying cash subsidies to the Imperial Government or any other authority, but by organizing on our own initiative and at our own expense. It is true that under this agreement some Australians are to be employed, but they are not to be employed by the Australian Government. They are to be employed by the Admiralty. They are to be under the control of the Admiralty, and not of the Australian Government. I consider, sir, that the art of governing is equally as important as the art of serving ; and if, instead of taking the responsibility of organizing these forces ourselves, and keeping them under our control in time of peace - subject, of course, to Imperial control in time of war - we hand over the whole control and the whole organization both in time of peace and in time of war, then I say we shall never develop that maritime spirit to which the First Lord of the Admiralty refers, but shall always maintain the relationship which exists between the man who pays for services and the man who receives that payment. That is the fundamental vice of this agreement. It fails to give effect to the very principle which the First Lord of the Admiralty was most anxious to impress upon the Imperial Conference. In the Spectator of the 2 1st March, 1903, further prominence is given to this idea of an Australian navy. Referring to a statement made by Mr. Arnold Foster, as to the persistent objection of the colonists in the matter that we are now discussing, the Spectator says -
We entirely object to this way of looking at the question, and believe that far more serious results are likely to ensue from attempts to shame or cajole the colonies into Admiralty contribution.
Again, later on, the Spectator says -
Our statesmen grumble because the colonies &r& apathetic, and yet will not allow them, or, at any rate, will not help them to make the form of contribution towards naval preparation which they make and are willing to make. If we left off dinning into the ears of the colonies that only contributions in cash were worth having, and. that contributions in kind were worthless, we Should find the colonies raising naval reserves from their sea-faring population, and also equipping small local squadrons. The latter might not be powerful at first, but they would be a beginning, and they would be immensely useful in creating and maintaining a naval spirit in the colonies.
That is the fundamental idea to which I desire to give prominence in my remarks, namely, that by encouraging the colonies to defend themselves by contributing in kind, by supplying men and ships, they would be stimulated not only by self interest, but by patriotic and Imperial pride, and would do more in the direction of contributing towards naval defence than they are ever likely to do as the result of this constant dinning into their ears of the request for a money subsidy. I should like to quote, not only these authorities, but the opinions of three British Admirals ‘ in support of the contention to which I now give prominence. The first I quote is Admiral Hopkins, whose opinion is to be found recorded in the Spectator of the 28th March last. I invite the attention of honorable members to this, because in some quarters it seems to be accepted as an almost axiomatic principle that the idea of an Australian navy is beyond the realm of reasonable possibility and discussion. According to Admiral Hopkins and other Admirals, whose names I shall give, it is not so. Admiral Hopkins says -
In m3’ judgment, the reiteration of our demand, for money, and more of it, is undignified, and. more likely to estrange and weaken their regard for the mother country than to strengthen their desire for Imperialism, and it is Imperialism we want, and not a miserable contribution in money which would hardly provide a third-class cruiser, and only tends to wound the pride of a young and rising nation, whose susceptibilities should be soothed rather than ruffled. In fact, as you suggest, let them contribute in their own way and be encouraged to provide reserves, &c, which would be as their military volunteers have been, of the greatest use when men are wanted in war time, and of real value on the side where we are navally weakest.
That idea of providing naval reserves was Lord Brassey’s idea. Admiral Hopkins goes on to say -
On the North American continent, Canada, whose Imperialism none can doubt, refuses to
Si ve a money contribution, whilst Newfoundland, a comparatively poor country, supplies ‘her quota of hardy fishermen as naval volunteers - a far better gift than any money concession. I nm Aware, sir, that you and I are advocating an unpalatable doctrine to many who apparently cannot see that for England (in -the plentitude of her wealth) to extract a valueless sum of hard cash -from those who in their pride of race, consanguinity, and country, would cheerfully pour out their blood for us, is rather to retard than advance the Imperialism we desire.
That is the testimony of a British Admiral, not of a faddist. Another Admiral, to whose -opinions I should like to direct the attention of honorable members, is Admiral Bowden Smith. He says in the Spectator of the 28th of March last - -
It appears to me that the practical way of starting a local navy, as suggested by Senator Matheson and others, would be to officer and man one of the present cruisers on the Australian station with Australians, the ship so manned working with the present squadron under the Admiral, and taking her turn of duty in all parts of the station.
– That is the very thing we are going to do.
– The Government proposal is not that this should/ be done under the control of the Australian Government.
– Does Admiral Bo wden Smith advocate that 1
– I think so. He is dealing with the idea of starting a local navy. He further says -
Should there be any difficulty at first in providing officers, we have on the list some who are Australians, and these might be selected for this service. The complete cost for maintenance might be borne by the Commonwealth, the necessary stores and ammunition being supplied at cost price by the Imperial Government. I quite understand the aspirations evinced by some of the Australians to have a navy of their own, but, in my opinion, they are not yet in a position to maintain an efficient squadron, either as regards means or population. At the same time I am not in accord with certain Members of Parliament, and certain writers in our periodicals, who are dictating as to the amount of the contribution due from the colonies. That is their affair ; but I feel sure that when then are able to do so they will be ready to undertake a larger share of the hurdon of the Empire.
There can be no doubt about that. That has been shown already.
– That quotation is rather against the honorable and learned member. “ Sir JOHN QUICK. - No, I think it is not. An editorial note to this contribution from Admiral Bowden Smith is to this effect -
Admiral Bowden Smith’s suggestion for giving ‘ facilities for naval training to a certain number of Australians in a British cruiser is an excellent one, and entirely consistent with the spirit of our . remarks last week.
– I think that Admiral Bowden Smith is very much in favour of this agreement.
– Well, he does not say so.
– Is the honorable and learned member reading from the pamphlet published on the subject ? A pamphlet was published by the association to which Senator Matheson read his paper, containing all the comments of the gentlemen who spoke on the occasion, and it is indubitable that Admiral Bowden Smith expressed himself in favour of the policy of this agreement.
– I have read word for word a passage in a contribution to the Spectator, by Admiral Bowden Smith, and not from any pamphlet. It does not appear to me that he is in favour of this agreement because what he specially suggests in . his contribution is the beginning of an Australian Navy, and that is what is approved of as an excellent idea.
– Under the Admiral - on the station, I suppose.
– I think I may now suggest an adjournment of the debate as I began my speech rather late, and I may yet occupy some time in concluding my remarks.
House adjourned at 10.25 p.m.
Cite as: Australia, House of Representatives, Debates, 8 July 1903, viewed 6 July 2017, <http://historichansard.net/hofreps/1903/19030708_reps_1_14/>.