2nd Parliament · 3rd Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
– Last night I referred to certain changes which have recently been made in the Post and Telegraph service in Western Australia, and asked the Postmaster-General what the Government intend to do in the matter. As he did not reply in the debate, I now ask again whether it is proposed to take any action.
– The Postmaster-General, who is not now in Melbourne, has the case in hand, and, no doubt, will be able to satisfy the honorable member within a week or two that his and the other statements which have been made in connexion with the case have not been forgotten.
asked the Minister of Home Affairs, upon notice -
– The answer to both questions is, “Yes.”
asked the PostmasterGeneral, upon notice -
– The answer to, the honorable member’s questions is as follows : -
The Deputy Postmasters-General were notified on the28th ultimo, that the Minister of Home Affairs had requested that the matter be held in abeyance for the present, and that existing arrangements as to payments be continued. Nothing further has transpired so far as the Postmaster-General is aware.
asked the PostmasterGeneral, upon notice -
– Inquiries are being made, and the answers will be furnished as soon as possible.
asked the Minister representing the Minister of Defence, upon notice -
– I saw the Minister this morning, and told him that I wished to be able to answer the honorable member’squestion as soon as possible; but, as he has not yet seen it, and must attend in the Senate all day, I hardly think that I can obtain before Tuesday next the information asked for, though, if possible, I shall let the honorable member have it to-day.
Debate resumed from 19th July (vide- page 1577), on motion by Mr. Isaacs -
That the Bill be now read a second time.
.- In connexion with the proposal of the Government to increase The High Court Bench by two additional Judges, I, as a member of the House, am entitled to review the work of the Court, with the object of determining whether it is advisable to make this increase. When, in 1903, we were -asked to establish the High Court, we were told that that institution would be the keystone to the Federal building, without which Federation would not produce the highest benefits expected from it. The Ministry of the day proposed the appointment of five Justices, but the number was reduced by Parliament to three. I was against the institution of the High Court at that time, and opposed the Bill. The then Prime Minister, Sir Edmund Barton, solemnly assured the House that he would not accept the position of a Justice of the High Court.
– No. He said that he would not accept the position of Chief Justice.
– That is my reflection. He did not say that he would not accept the position of Justice.
– My recollection is that he said that he would not accept the position of Justice, and I shall stand by. my statement until refuted by the Hansard report of his remarks. When the Bench came to be constituted, Sir Samuel Griffith, the then Chief Justice of Queensland, was appointed Chief Justice of Australia, and two members of the Government, of whom the Prime Minister of the day was one, who had never previously acted as Judges, were made puisne Justices.
– Mr. Justice O’Connor, I am sure, had at times acted as a Judge of the Supreme Court of New South Wales.
– That is practically a quibble. He had not been a permanent Judge of any Court in Australia. All three gentlemen may be able lawyers, but two of them had had no previous experience as Judges; while the Chief Justice, though probably an able man, cannot be said to possess greater ability than some of the Judges of the Supreme Courts of New South Wales, Victoria, or the other States. The stinging indictment brought against him by the right honorable member for Adelaide, indeed, raised doubts as to the wisdom of the appointment. Directly the Court commenced its work, it began to reverse the decisions of the Supreme Courts of the States. Now, in my opinion, a Judge of the High Court is not necessarily possessed of greater- ability than that of a Judge of a Supreme Court, although his position is higher, and it therefore seems to me a very curious thing that the Justices of the High Court have deliberately set aside practically every judgment coming before them on appeal. ‘But a still graver charge can be brought against them in connexion with their action in sitting upon the cases brought to decide whether the Federal public servants were liable for the payment of the income taxation of the States. They have decided that neither members of the Commonwealth Parliament nor Federal .public servants are liable for income tax; but I contend that, under no circumstances, should the case affecting the liability of Federal public servants have been tried by them, because no ohe should adjudicate in a matter -in which he has a direct pecuniary interest, such as the Justices had in, the Tasmanian case.
– To which case does the honorable member refer?
– The case of D’Emden v. Pedder:
– Was not that a stamp case?
– The case of Bowden was the stamp case. The cass to which I refer raised the point whether a Federal public servant is liable for State income tax, and the Justices of the High Court, being themselves Federal public servants, were pecuniarily interested in its decision. The Justices were as much interested in the decision as were any other public servants, and it was their bounden duty to allow an appeal to be made to the Privy Council.
– Did they not refuse leave to appeal ?
– Yes. The Premier of Victoria, and also the Premiers of other States, were very anxious that a test case should be submitted for decision by the Privy Council, but the High Court declined to grant the necessary leave to appeal. Although the Prime Minister of the day stated that he was most anxious to facilitate the wish of the States’ Premiers, so far as I know, nothing has been done in that direction.
– The question of the liability of Federal public servants to the payment of State income tax is now before the Privy Council, which has reserved its decision.
– Every obstacle was thrown in the way of an appeal being made to the Privy Council.
– There was no obstacle.
– The High Court refused leave to appeal. The Court decided in the case in which the Prime Minister was defendant that members of the Federal Parliament could not be called upon by the States to pay income tax. I presume that in view of their previous decision, the Court had no option but to decide the matter in that way, but I think that they arrived at a wrong conclusion. I do not think that the Victorian Government should have the right to ask honorable members from other States to pay income tax, but such honorable members should not be relieved from paying the taxation levied in their respective States. I would point out that there is no finality about the position which we occupy in this House.
– I would ask, the honorable member not to ‘discuss that question.
– Owing to the decision given by the High Court, certain classes of the community have been relieved from the payment of taxation to which all others are liable. The Federal public servants enjoy all the rights of citizenship and have their lives and properties protected, and yet they are not called upon to bear their share of the burdens which fall upon the general taxpayer. I think that this is a most undesirable state of affairs, and I sincerely trust that the decision of the High Court will be reversed. I am sorry to have to refer to the fact that at least one of the Justices of the High Court has appointed his son as his Associate. When Senator Symon occupied the position of AttorneyGeneral the question of these appointments cropped up, and it was argued that it was only natural for the Justices to appoint as their Associates with whom they would be brought into close contact, persons with whom they were well acquainted, and in whom they reposed the fullest confidence. I would point out, however,, that the Chief Justice is no longer a young, man, and that in all human probability he will not live for a very much longer term. When he dies, his successor, be he whom he may, will have to accept as his Associate the present occupant of that position.
– Because in all fairness, a public servant should not be turned out of a position to which he was appointed’ practically for life merely because of the death of his superior officer. Therefore, I may fairly assume that Mr. Griffith will continue to occupy his present position, even after the death of the present Chief Justice.
– Does the honorable member suppose that Mr. Griffith will be content to remain a Judge’s Associate all his life?
– I have nothing to do with what he may or may not desire. I am dealing with the argument that was used when he was appointed. To my mind, it is most improper .to make such appointments, because they may give rise to suspicions - perhaps unfounded - that the Justices are making use of their positions to confer benefits upon their relations. There is a distinct feeling of hostility against the High Court on the part of the Judges in many of the States, and although suitors who have been successful before them may be content, it is generally considered that their decisions are not in all cases satisfactory. In one instance, they swept aside one of the provisions of the Electoral Act, and absolutely refused to consider it. Two years ago I was a candidate for the representation of the Denison division in this House. I was defeated, and I appealed against the election of my opponent. The case came on for hearing before the Chief Justice, who absolutely ignored the 199th section of the Electoral Act, which reads as follows : -
The Court shall be guided by the substantial merits and good conscience of each case, without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
The plain intention of Parliament was that a decision should be given upon the substantial merits of the case, apart from legal forms and technicalities, but the Chief Justice decided the case according to the law of evidence. If my statement be correct - and1 I am prepared to prove every word of it - it affords very reasonable ground for honorable members of this House viewing other decisions given by the High Court with very grave suspicion. I now come to the Bill which is immediately under consideration. The Government propose to appoint two additional Justices, to the High Court. We are assured’ by the Attorney-General that the business with which that tribunal is called upon to deal is growing in volume so rapidly that three Justices are unable to cope with it. That statement may be perfectly true. I am not in a position to dispute it. But I hold that if the volume of business is increasing in the way that has been represented the result is entirely due to the action of this Parliament. If we had not passed the Conciliation and Arbitration Act and the Australian Industries Preservation Bill three Justices would have been ample to transact all the business coming before the Court. Consequently I feel it my duty to resist any attempt to further increase the burdens of the people. I do not think the Attorney-General will deny that if the High Court were relieved of the obligation to deal with cases which will arise under the measures to which I have referred, three Justices would be quite sufficient to cope with the business demanding its attention.
– I can assure my honorable friend that his statement is far from being accurate
– If that be so, I would relieve the Justices of the High Court of the pressure upon them by restoring the right of appeal to the Privy Council. If we did that the number of cases coming before the High Court would be many fewer. At any rate, the experiment is one which should be made before we consent to saddle the Commonwealth with the expenditure incidental to the appointment of two additional Justices. If it be true that the business of the Court is likely to increase it seems to me that the position might be met by the appointment of one of the Judges of a. State Supreme Court. Thus, by the payment of a fixed annual sum in this direction we might permanently obviate the necessity for the appointment of two additional Justices. If the Government will not agree to my suggestion, will they before this measure is passed, definitely state whom they intend to appoint? In the interests of the community as a whole it is advisable that they should take the House into their confidence in this connexion. If they intended to avail themselves of the services of an able Judge from the Supreme Court Bench either of Victoria, South Australia, Western Australia, or Tasmania, their action would not be open to so much criticism. I hold that the States Supreme Court Judges are quite as capable as are the Justices of the High Court, and certainly I would far rather trust their decisions. It is no pleasure to me to be obliged to attack the Justices of the Federal tribunal in this House. But I have a duty to perform, and I will not shirk it. I claim that if we desire to restore confidence in the High. Court, w.e should, if it is necessary to strengthen that tribunal, appoint to its Bench two State Supreme Court Judges.
.- Before proceeding to discuss the Bill I wish to refer to one statement made by the honorable member for Wilmot which, when its inaccuracy is pointed out, I am sure that he will withdraw. He told the House in the course of his remarks that the first Prime Minister of Australia had pledged himself not to accept a position upon the High Court Bench. I will read the personal explanation of Sir Edmund Barton bearing upon this point.
– Excuse me. I was not alluding to his personal explanation, but to a previous statement by Sir ‘Edmund Barton.
– I can assure my honorable friend that this is the only statement of which I am cognisant. Upon page 3264 of Hansard. Sir Edmund Barton is reported to have said, om 7th August, 1 093 - 1 find that a constant misrepresentation has been made, and is being reasserted each day, to the effect that I intend to’ appoint myself to be Chief Justice of this Commonwealth. I wish to state in the most emphatic terms that the idea of doing so has not been present in my mind, and that nobody knows better than my honor able and learned friend, the Attorney-General, that it is not, and never has been, my intention to do so.
– Hear, hear.
I think that, in view of the statement which I have read, the honorable member for Wilmot will be the first to withdraw the charge which he has made.
– I was not alluding to that explanation by Sir Edmund Barton, but to a previous occasion, upon which I understood him to say that he would not accept a position upon the High Court Bench at all.
– There is just another point upon which I differ from my honorable friend. He seems to think that the associates of the Justices of the High Court hold a statutory position, such as is occupied bv officers under the Public Service Commissioner. I am informed upon no mean authority that the associates are not so appointed - that each Justice chooses his own associate, and is at liberty to appoint anybody whom he pleases.
– As far as Tasmania is concerned, the associate of one of the Judges of the Supreme Court occupied the same position for upwards of forty years. That position carried with it a sort of recognition of the fact that if he chose to continue in it he was entitled to do so.
– I accept the honorable member’s assurance as a statement of the position in Tasmania, but I can assure him that that practice does not obtain in a majority of the States.
– The associate of a Justice of the High Court is not a member of the Public Service. He. is appointed entirely “at pleasure,” and has no claim to be retained in his office.
– As a matter of fact, are they ever superseded?
– In New South Wales they are often superseded. The associates of the two Justices of the High Court who came from New South Wales - I say this in fairness to them - are not sons of those Justices.
– Sir Edmund Barton’s son sits with his father upon every occasion.
– My honorable friend is mistaken. The associate of Mr.’ Justice Barton is Mr. Manning.
– Then what position does Mr. Justice Barton’s son occupy.
– At present he does not occupy the position of an associate. He was Mr. Justice Barton’s associate at one time.
– That fact proves conclusively that the occupant of the position can be superseded. Sir Edmund Barton’s son voluntarily gave up his position as associate in order that he might better himself at the Bar. Sir Edmund Barton has now, as his Associate, a son of Sir William Manning.
– But he formerly had one of his sons acting, as his Associate.
– - That is so. It shows that the position is a tentative one.
– Mr. Justice O’Connor’s Associate is Mr. Murray.
– I was not referring to Mr. Justice O’Connor.
– I propose to deal with’ this measure from the point of view of a layman. As such, I deplore, as we must ail do, the need for this Bill ; but all who believe, as I do, in the credibility of the High Court Bench, can hardly fail to recognise the necessity for the proposed addition to its strength. We all must deplore the increase of litigants in our Courts. I recognise that litigation is, to a large extent, begotten of legislation, and that, as legislators, we are to a certain degree responsible for this increase in the litigation nf Australia. We are called upon under this Bill to accept the logical outcome of our own actions. Statute, after statute is passed without due consideration, and each requires to be interpreted before those who have to work under it can understand its meaning. We’ legislators who have been turning out legislation by weight, and not by quality, are .thus largely responsible for the increase in litigation at present obtaining in our Courts. The curious feature of this matter is that legislation is nearly always framed by lawyers in Parliament, in order that other lawyers outside may make a living. That is the consideration which suggests itself to me, and which I think must suggest itself to other laymen.
– The honorable member does not think that the lawyers in Parliament do this consciously?
– I do not think there is any conspiracy between my honorable friends in the Chamber and their learned friends outside; but, however much we deplore the increase of litigation in Australia, and the ensuing necessity to add to the number of Justices of the High Court, we must recognise that necessity, and aslogical men act upon it. The responsibility for this required addition to the strength, of the High Court Bench lies largely, although not wholly, at our door. There are: two reasons. In the first place, the peculiar constitutions of the States in conjunction with the Constitution of the Cornmonwealth under which we labour, are responsible for litigation. We have in Australia, with a population of 4,000,000, noless than seven Parliaments busy day by day in turning out at express speed seven different sets of statutes,’ each set requiring; innumerable interpreters to make it plain to those who have to work under it. That is one reason for the enormous extent of Australian litigation. Another is. as I have indicated, the slipshod way in which our laws are turned out.
– One of the complaintsmade by the Queenslanders on the occasionof our visit to the northern State was that we were causing a decrease in litigationthere.
– I think that that was thecomplaint of a lawyer - just as it is a budding lawyer who makes that interjection.
– As a matter of fact, the complaint was made by the Daily Mail.
– The first of these causes-‘ is .one that can be removed when the people of Australia come to recognise that thenumber of Parliaments in a great continent like this should be governed not by the number of acres comprising the Commonwealth, but by the number of people tilling those acres. -When they come to recognisethat the duty of a Parliament is to legislate for flesh and blood, and not for mere in-> animate matter - when they come to recognise, as soon as this. Legislature can showthat it is worthy of the confidence of the people, that what is wanted is one legisla.tive Parliament for Australia and the; decentralization of the various administrative functions of the States Parliaments - we shall have the problemsolved. It will be some time before the,people of Australia recognise the necessity for cheapening our parliamentary methods; in this direction ; but, as regards the second of the contributory reasons, we must eagerly search ourselves and see that wedo not continue to turn out slipshod legislation. To whatever cause this increase in litigation may be due, it cannot be attributed to the unfortunate litigants who have- to approach the Courts for a correct interpretation of the rather vague laws that we pass from time to time.
– Our legislation may be light or wrong, but I do not think it is slipshod.
– It certainly needs a vast number of interpreters. Most laymen agree that in nine cases out of ten a litigant is a fool; but whether he is or is not, it will be generally conceded that he is a most unfortunate one. We have, then, to face this position. Knowing that we have not a sufficient number of Justices to deal with the litigation arising from time to time, and, recognising that it is the logical outcome of our own contributory actions, we should give these unfortunate people an opportunity to have their grievances heard and our statutes interpreted with as little delay as possible.
– And as cheaply as possible.
– That remark will, of course, be re-echoed by every member of the learned profession to which the AttorneyGeneral belongs !
– I think that it is desired.
– I am sure that the Government will, in its executive capacity, ex- ercise the greatest caution in making appointments to this extremely high office. Notwithstanding the statement of the honorable member who preceded me, I say without fear of contradiction that the High Court has already won a high position in the estimation of not only the legal fraternity of Australia, but the people of the Commonwealth as a whole, and I am sure that the Government themselves will make these appointments in a way that will be worthy of the already great traditions of this Court. Oppositions are constitutionally expected to croak ; and I dare say that honorable members opposite will accuse me of a reversion to type if I express the anticipation that before long we shall be in a. position to point to the enormously reduced’ ranks of my honorable . friends opposite, and complete the complaint in The Frogs of Aristophanes -
Oipev yapouket elouv,oio’ovtec,kakoi.
Some there are no longer, and those there are are bad 1
– I realize that it is difficult to prevent an increase in litigation, but if we inserted in this Bill a provision that solicitors and barristers should not be compe tent to accept fees in respect of a case which they lost, we might do something in that direction. One can always find barristers and solicitors who are prepared to give opposite opinions on the same set of words, but the temptation to draw persons into litigation might be removed by the adoption of the suggestion I have made.
– I think that it would reduce litigation
– If that rule prevailed, a solicitor, before advising a client to enter upon a law suit, would be very careful to consider what were the probabilities of success.
– Would not the honorable member go further, and say that a Justice whose decision was reversed ought to pay all the costs?
– That, too, might be beneficial. The adoption of my proposal would be an interference with the liberty of the individual, but all our laws have that effect. It is because we are seeking to restrain the people from doing that which is not morally wrong - because we are creating offences by Acts of Parliament - that our litigation is increasing so rapidly. We are seeking to interfere with departments of trade and business about which we know nothing, and consequently we have this increase of litigation in the Commonwealth. I am sure that if the Australian Industries Preservation Bill is passed in its ‘ present form we shall need’ two or three more Justices, so that it would be better to allow the further consideration of this Bill to stand over until that measure has been dealt with. If it becomes law, it is probable that in the first session of the next Parliament we shall have a further Judiciary Bill proposing to increase the number of Justices to six or seven. I believe that all who go to law are fools. My experience of the Courts is such that, whenever any one talks to me about going to law, I invariably say, “ Even if you have never seen the man who is making the claim against you, it is better that you should settle it rather than contest it in the law courts. You will be better off, and the lawyers will be a little worse off, if you adopt that course.” I feel disposed to vote against this Bill. I certainly should do so if I thought that its rejection would decrease the litigation in our Courts. It seems to me that some of the appeals now heard by the High Court might well be dealt with by other tribunals. The High
Court is to a large extent taking the business of all the Supreme Courts of the States. If we could do something to lessen the number of appeals, it would be well. We must make the law as cheap and as easy of access as possible. If the AttorneyGeneral would direct his undoubted ability to the preparation of a s;heme which would cheapen and expedite the processes of the law, I think it would be much better than the passing of a Bill of this kind. Litigants are often defeated by legal technicalities, but I do not think that a good cause should ever be lost ‘because it has been placed before a court in disregard of certain legal technicalities. Judges should have power to refuse to be bound bv technical points, which, if upheld, would bring about injustice.
– My experience of the High Court is that its administration is entirely free from technicalities. The members of the Court have regard to the justice and merits of the cases put before them, and will not be bothered with technicalities.
– The honorable member for Wilmot has made the contrary statement. I myself have no experience in the matter, and I hope that I never shall have. But, speaking on behalf of the general public, I say that all courts should deal with cases on their merits, apart from technicalities of every kind. It should be possible for a layman who has not money to put his case in his own humble way, and to get justice, if that case is a good one, even though forty lawyers may appear against him. At the present time a man who pleads his own case, however just it may be, is bound to lose his action. It is a blemish upon our civilization that men cannot protect their interests in the law courts without feeing lawyers to appear for them. The honorable member for Wentworth has suggested that the lawyers who are members of Parliament make work for their fellows outside, and, indeed, it seems to me that the technical mind of the lawyer is not calculated to give the best results in legislation. But most of our litigation arises from the crude way in which our legislation is drafted, so that there is room for differences of opinion as to the meaning of many legal provisions. If, in framing the Constitution’, the Senate had been made merely a revising Chamber, without power to interfere in matters of policy, our legislation would be better than it is, and I opposed the acceptance of the Constitution, because, among other reasons, some such arrangement was not contemplated. The senators should be men of the highest knowledge and education,” and the duty of the Senate should be to revise and simplify the measures passed by the Lower House. If the Senate had been so constituted, our legislation would be better than it is. Unfortunately, too, this Parliament has shown a desire to interfere in all departments of human activity,- branding as offences actions which do not infringe any moral law. But, unless men are interfering witta the freedom of, or are otherwise injuring, others, their actions should be unrestrained by legislation. I am afraid, too, that we are losing the idea that Parliament is a body whose duty it is to consider the interests of the whole people, and not of any one section. I scarcely know how to vote on this measure, but, as a protest against the legislation which has brought about the results which the appointment of additional Justices is proposed to remedy, I am inclined to vote against the second reading.
.- It is very difficult for laymen to deal with this question from the stand-point from which it is viewed by lawyers. The AttorneyGeneral, in moving the second reading of. the Bill, explained the need for it very ably, showing that, from the point of view of the legal profession, it is desirable to increase the number of Justices on the High Court Bench.
– I spoke on behalf, not of the legal profession, but of the whole community.
– I admit that the honorable and learned gentleman put the case as, in his view, it affects the public at large. Mv feeling is we must do our utmost tolimit the Commonwealth expenditure. Whilst economy should go hand in hand with efficiency, there are occasions when we can be economical without injuring the public interest, or doing injustice to those whom we employ. Seeing that we are nearing the close of the last session of the present Parliament, and that an appeal must shortly be madeto the electors, I think’ that the determination of this question might he left to the new Parliament. I do not agree with the Attorney-General that there is need for great haste, and therefore shall oppose the second reading. If the Bill gets intoCommittee, however. I shall try to pro-vide for the appointment of only one. instead of two Justices. In making appointments of this kind, we should always aim- at obtaining the best men available. I deprecate the method which has prevailed in the States, and- has been, followed by us, of appointing lawyers to the bench, because .thev are in active politics. Of course, if those who are in active politics are the best men obtainable, the fact that they are politicians should not be a bar to their appointment, but, before appointing them, we should make absolutely certain that there are not better men outside the sphere of politics.
– The honorable member would not appoint to the High Court a Judge of a State Court?
– I see no reason for not doing so, if such a man were available, and were the best man obtainable. The Judges of the Supreme Courts of the States are men. of experience, and have had an opportunity to gain the confidence of the public.
– The Chief Justice of Australia was a Judge of the Supreme Court of a State.
– Yes; but the circumstances surrounding the appointment of the first High Court Bench were exceptional. The public expected that one of the results of Federation would be to decrease the cost of administration, but, unfortunately, the reverse has happened, so that many people are now dissatisfied. I think that, as the Supreme Court Benches of the States are full, a great deal of the work now done by the High Court might be referred to them. Many of the cases that have been referred to the High Court have been appeals from single Judges of the States Courts. Whilst it may be admitted that under present conditions litigants can obtain a final decision by a short cut, there is no doubt that in nine cases out of ten an appeal from a single Judge to the Full Court of the State would be sufficient, and proceedings would not have to be carried any further.
– The experience in New South Wales shows exactly the contrary. The appeals come from the State P’ull Court to the High Court.
– The Attorney-General misapprehends my contention. I say that if appeals were first made to the Full Courts of the States, in nine cases out of ten matters would not be carried any further.
– The Constitution provides for appeals such as are now made.
– I am perfectly aware of that, but I am arguing that the present system results in increasing the work of the High Court, and that appeals’ from a single Judge of a State Court should be discouraged.
– How could that be done?
– There are plenty of means of doing so. I would even go sofar as to amend the law in that direction.
– We should have to amend’ the Constitution.
– Weil, let us do so. We should not go on increasing the cost of the administration of justice.
– As a matter of fact, under the present arrangements the cost of the administration of justice is decreased.
– Hear, hear; very much.
– If we appointed two new Justices to the High Court we should increase the cost of the administration of justice so far as the High Court is concerned. In addition to paying the salaries of the Justices, we should have to pay. their associates, and. also to provide for extra travelling expenses, and, altogether, the additional outlay would probably amount to .£7,000 or £8,000 per annum.
– The extra expenditure will not reach £7,000 we shall enable the States to economize to a mucin greater extent.
– But the trouble is that whilst we are placing in the hands of the States opportunities for exercising economy, savings are not being effected.
– That is the fault of the St q. tes
– No doubt, abut before we go on increasing our expenditure some, understanding should be arrived at between the Commonwealth and States authorities that economies will be effected’.
– We could not possibly do that.
– The present case is on all fours with that of the proposed appointment of a High Commissioner. We have the right to appoint a High Commissioner, but before we do so we should approach the States, and ascertain whether in the event of our making an appointment thev could not reduce the expenses which thev now incur in respect to their representation in London. I have read the reports placed upon the table bv the AttorneyGeneral, and it seems- to me that the statements of the Justices and the Principal Registrar are full of probabilities.
– They are full of experience, too.
– We are told that the Judges have dealt with so many cases and that they have performed a great deal of hard work, (hat there are so many cases listed, and that so many are likely to stand over as remanets We know full well that every State Supreme Court has remanets :ir the end of the term. The AttorneyGeneral may argue that it will be more difficult for the High Court than for a Stale Court to overtake remanets, but there is no doubt that it can be done. At the inception of. the High Court there was a great rush of work, particularly in the appellate jurisdiction.
– The appellate work commenced very gently, but has been increasing very much. It is still increasing.
– The work of the Court in its original jurisdiction will no doubt glow considerably, but I feel that the time is not ripe for the appointment of anyfurther Justices. I intend to oppose the second reading of the Bill, because I think that we should study economy and refrain from strengthening the Bench until a consultation has been held between the legal authorities of the States and the Commonwealth, with a view to rendering the administration of justice as a whole less costly to the people.
– Referring to the matter last alluded to bv the honorable member for Corangamite, it appears to me that if we rely upon the States and the Commonwealth Justices conferring, with a view to reducing expenses, we shall have to wait a very long time.
– I did not refer to the Justices, but to the legal authorities other than the Justices.
– I am afraid that the case would be equally hopeless in any event. At the same time I fully sympathize with the views of the honorable member. The outstanding feature of our Federal evolution is the multiplication, rather than the substitution of functions. Instead of the Commonwealth performing substitutional functions, it appears only to multiply the number of officials and to increase the outlay involved in performing a given amount of work. This is becoming a verv serious matter. We already have three Justices. who are reported to be working at full speed. Yet no one has heard a whisper of a suggestion that the States could get along with any smaller number of Judges. The work of the States Courts seems to be congested as of old, and there is no prospect of relief for the States or the Commonwealth whilst the present conditions exist. Something will have to be done, because at the rate at which we are going on under our Federal jurisdiction, we shall soon take over the hulk of the law business of the Commonwealth. I submit that that was not the original intention with which the !High Court was set up. It was intended to exercise Federal, as distinguished from State, jurisdiction. It was contemplated that ordinary mercantile cases would be dealt with bv the States Courts, except where an appeal would lie from the States Courts to the High Court.
– That is all that is being done now.
– Oh, no; very much more is being done. All the matters that are dealt with by the High Court do not come under that head. Complaints have arisen as the result of the 100* legal framework that we have set up. We shall have to delimit our functions very much more severely than we have done, unless the High Court is to scoop up the whole of the law work of the Commonwealth.
– Many persons now appeal to the High Court who would never think of taking a case to the Privy Council.
– Hear, hear.
– I am not disputing that. I contend, however, that in the degree that we set up additional Federal facilities, the States facilities should be decreased, and the expense diminished. One should be the measure of the other. Otherwise we shall multiply judgments without - and I say it with very great respect, and hope that I shall not be misunderstood - any guarantee that we are placing at the disposal of the citizens greater ability, greater research, and greater finality, so far as the quality of the judgments is concerned.
– Why should we not have an honorary magistracy in the Commonwealth ?
– I am not dealing with that point at present. I am pointing out the serious extent to which we are multiplying legal functions. The public expect, and will sooner or later demand, some savings in the States Courts which will, at least, counter-balance the great expense entailed in maintaining the High Court. I am afraid that the means suggested by the honorable member for Corangamite will not bring us any nearer to a solution of the difficulty. We shall have to commence here.
– We are piling up expenses and at the same time asking the States to cut down expenses.
– We are bound to pile up all justifiable Federal expenditure, and, so far as that is concerned, we are justified in asking the States to cut down their expenses in proportion. It is quite another question, however, whether the States Courts are likely to do so. One does not surrender one’s status and dignity without some slight struggle. That is human nature. What the final solution will be I do not know. But, perhaps, after all, it will be for the taxpayers to deal with the matter when they are electing their representatives. I am one of those who did not vote for the establishment of the High Court. I thought that it was a tribunal, the setting up of which might well have been deferred for a few years, and that the States Supreme Courts might have done all the work required by us. But the tribunal has been established, and I atn bound to say that six years’ experience of Federal legislation has shown the necessity for it. Our legislation requires that there shall be some tribunal high above party politics, which will decide the constitutionality of our actions, and which will safeguard the States from what I fear are imminent Federal encroachments upon their rights. To me that is the chief argument for the maintenance of the High Court in its fullest possible efficiency and dignity. It is a very important tribunal. One part of it has been specially constituted for the purpose of testing the validity of the actions of this Parliament. That, perhaps, is the side which will ultimately appeal with the greatest force to the taxpayers of the Commonwealth. I am: not quite sure that the High Court is not going to save the Constitution and the Federation from the friction which is looming all along the horizon.
– What friction ?
– The constant friction between the Federation and the States. Can the honorable member shut his eyes to the seriousness of the position in most of the States? To-day people are gravely talking - and not irresponsibly either - of taking extreme action to defend the rights of the States against the Commonwealth Parliament.
– There is a motion before the Western Australian Parliament in favour of secession.
– And there have been discussions upon similar motions in other States Parliaments. This fact merely indicates the growing friction which is being occasioned by the exercise of our Federal functions,, and by our Federal legislation.
– Evidently the people of Western Australia desire to see the pro mise which was made regarding the construction of the Transcontinental Railway respected.
– Does the deputy-leader of the Opposition really think that there is anything of a serious character threatened in the States?
– I certainly do, otherwise I should not say so.
– The delayed construction of the Transcontinental Railway is the cause of the irritation in Western Australia, and the questions connected, with the Federal Capital Site are responsible for the friction in New South Wales.
– The honorablemember will find that it is a good deal more than that. The one outstanding element of friction’, in my judgment, is the enormous additional cost which Federation is involving, not so much by reason of the exercise of our Federal functions as by the multiplying of functions. Our expenditure is piling up and the State expenditure is not proportionately decreasing.
– The chief cause of irritation is the desire of members of the States Parliaments to hide their own deficiencies by blaming somebody else.
– I do not say what is the cause of it. I am merely pointing out the fact. It occurs to me that the only tribunal which can guard both the Federation and the States: is the High Court itself. Therefore, whatever objections I originally entertained regarding its premature establishment have vanished. I believe that a number of things which we have done, and which we contemplate doing, are in their very nature unconstitutional. Here I should like to point out another defect in our Constitution. Before we begin to frame Federal laws we do not pause to consider whether we have jurisdiction. Take some of our current legislation as an example. Nobody has taken the trouble to inquire whether the proposed land tax which would fall upon some persons, and not upon others, and which in that way would create class distinctions throughout the length and breadth of Australia, would come within the four corners of our Constitution. Then a Commission was appointed at great cost to investigate a certain matter, and now’ we are told upon the best authority that this Parliament has not the constitutional right to legislate upon it. Then there are such measures as the Australian Industries Preservation Bill, and the Trade Marks Act - also the question of the extension of preference to unionists - about the constitutionality of all of which there appears to be grave doubt entertained in the best informed quarters. In Canada they do things very differently. There the Government test the validity of a proposition before embodying it in an Act of Parliament.
– What course do thev take ?
– The Government are at liberty to submit any proposition they choose to the High Court, and to obtain a decision upon it.
– We have not that power under the Constitution.
– But we ought to have it.
– The matter was mentioned in the Convention, but the proposition was not accepted.
– It is absurd for us to pass legislation, hoping that it will be constitutional ; but not knowing whether it is so or not. That seems to me a political and legislative speculation, in which we ought not to indulge. Our operations here are too costly for us to act in that way, and the sooner we obtain some amendment of the Constitution to permit of the practice to which I have referred being adopted, the sooner we shall know exactly what our powers are. Such a constitutional amendment would in every way minister to the dignity and status of this Parliament as a whole. Besides saving expense, time, and trouble, it would tend to remove the- increasing friction between the Slates and the Commonwealth. Reference has been made to the constitution of the High Court. I entirely subscribe to the dictum of the honorable member for Corangamite with regard to the method of appointing Justices to that tribunal. I certainly think - having regard to the functions which it is their prime object to discharge^ - that there ought to be no test applied to their selection, except that of fitness. I have already stated that in a little time there is bound to occur a clash of opinion of a very serious character between the States and the Commonwealth, and I believe that the High Court will ultimately be found to be the guardian of the Federation itself. Therefore, the quality, character, and general status of that Bench is a matter of supreme importance to all who wish to see the continuance of harmonious relations between the States and the Commonwealth. If this Bill be passed’ it seems to me that we could not do better, in connexion with the appointments which will have to be made, than to make an excursion into purely legal rather than into political circles. The whole arena should be absolutely open, and the best possible selection should be made, irrespective of whether a man is a politician, a member of the Government, or a member of the Opposition, or whether he is merely a legal, practitioner outside of Parliament. This brings me naturally to the question asked by the honorable member for Melbourne Ports as to whether we ought to appoint a Supreme Court Judge from any State to the High Court. I think that, in making a selection, we could scarcely go to a better quarter than to the States Supreme Court Benches. The present Chief Justice of the High Court himself was the Chief Justice of the Supreme Court of Queensland, and I have yet to learn that his occupancy of that high position in the State has in the slightest degree militated against the efficient discharge of his present important functions. On the contrary, there seems to be a unanimous opinion in respect of the quality of his judgments, the immense skill, and the veryhigh abilities - indeed, every other attribute befitting a. great Chief Justice - which he brings to the performance of his duties. That ‘is the best answer to the honorable member for Melbourne Ports, who suggests a doubt as to whether we ought to select, as Justices of the Federal tribunal, Judges from the Supreme Court Bench of the States.
– It is an emphatic answer to the statements of the honorable member for Wilmot.
– I did not make any observations against the Judges personally.
– I am aware of that. I should like to point out that hitherto the Justices of the High Court have been selected from the Government of the day. If the best men for the position are to be found in the Government, by all means let us appoint them ; but if they are not, we most assuredly ought not to appoint them. The qualifications of the individual ought to be the supreme and only test applied. I say that advisedly, because I have in my mind’s eye a man of commanding ability, who, I am afraid, will have a very poor chance of being selected, although 1 do not think that his qualifications would be questioned throughout the whole of Australia. I hope that we shall let the public see that in the constitution of our High Court we have regard only to the qualifications of- the men whom we appoint. What are the facts connected with the congestion of work in the High Court? That is really our only practical consideration. Looking through the papers which have been submitted to us, I confess that I do not think they quite make out the case put by the AttorneyGeneral. To begin with, no mention of any congestion in the work of the Court was made until a case occurred which should have been heard by the Arbitration Court. Then we find that an application was made for some relief by Mr. - Justice O’Connor. Looking broadly at these papers, one is driven to the conclusion that but for the creation of the Commonwealth Conciliation and Arbitration Court there probably would have been no application for further assistance for a. long time to come. In the establishment of that Court, we have the genesis of this claim for an increased number of Justices. It began with this single case in the Arbitration Court. It has been suggested - I do not know with what truth- - that Mr. Justice O’Connor was not very kindly disposed to the proposal that he should take up the work of the Arbitration Court. To out it plainly, it is said that he “ jibbed at it.:’ When asked in the first place to take up the arbitration case he raised an objection.
– He does not raise any objection to take the case - he merely asks for time and opportunity to deal with it.
– I think it is clear from the papers that Mr. Justice O’Connor did not care very much about entering upon the work of that Court. I make this statement without the slightest desire to speak in derogation pf the learned Justice. One can naturally understand a man shrinking from the peculiar duties and functions of such a tribunal, unless he feels that he has the qualifications and experience necessary for discharging them. The functions of the Arbitration Court are not those of the High Court, or, at all events, I hope that they are not. We have set up the Arbitration Court with the intention that it shall be not a Court of law, but a Court of equity and good conscience. The trouble is that such tribunals invariably become ordinary Courts of law. It remains to be seen whether the Conciliation and Arbitration Court of Australia will be an exception to the rule. Very much will depend on the character of the Justice appointed to preside over it. Whether Mr. Justice O’Connor objected, or did not object, to take the case, the fact remains that he wrote a very strong letter, setting forth that a delay amounting to a denial of justice was occurring. There seems to be no foundation in his letter for that statement, with the exception of his reference to the one case in the Arbitration Court. He states that all the other work can be overcome by the end of the year, and he suggests nothing further than that some provision should be made for dealing with the one case in the Arbitration Court.
– No; not in that letter.
– I do not say that His Honour makes that suggestion directly, but he refers only to the one cass.
– He signed the letter in question only as President of the Arbitration Court.
– That reminds me of another point. Whenever the work of our States Courts becomes congested, the practice is to appoint an Acting- Justice
I wonder whether the Attorney-General sees any great objection to the adoption of the same course in regard to the High Court?
– The Constitution does not permit of that being done. Any appointment must be as a Justice. It was pointed out when the Judiciary Bill was before the House that that was the position.
– Is the AttorneyGeneral speaking of the Judiciary Act or of the Constitution?
– Of the Constitution, which forbids the appointment of an ActingJustice.
– Does that apply to the Arbitration Court as well as to the High Court ?
– No, but if we say that -the president of the Arbitration Court shall be a Justice of the High Court we cannot appoint an acting Justice of the High Court to act in that capacity.
Air. JOSEPH COOK. - That is rather unfortunate. It means that, if the work of the Court is to be kept up-to-date, so that there shall be no delay, amounting as the Justices say, to a denial of justice, there will be no work for the members of the High Court Bench during certain periods.
– No; the appeal work alone necessitates an increase.
– I am not speaking of the proposed increase, but of> the continuity, of the work of the Court. As the honorable and learned member is aware, legal work ebbs and flows. Sometimes there is a busy and sometimes a slack season, and if we are going to maintain the Court at such a pitch of efficiency as to enable it to overtake the work allotted to it, the result will be that slack periods will occur, during which some of the Justices will, have nothing to do. The practice of the States of appointing acting Judges to clear up arrears of work is a sensible one, and is preferable to the appointment of permanent Justices. As the Attorney-General has pointed out, there is, after all, a way out of the Constitutional difficulty to which he has referred, since we may appoint am’ acting Justice of lower status to deal with the work of the Arbitration Court.
– We cannot say that the President of the Arbitration Court shall be a Justice of the High Court, and then appoint an acting Justice for that purpose.
– But we could amend the Conciliation and Arbitration Act.
– That is so. A simple amendment of that Act would overcome the difficulty.
– We could provide that the President of Arbitration Court shall not be a Justice of the High Court, but I do not think that any Parliament would agree to do so.
– I am not sr> sure of that. The best Judges in the Arbitration Courts of the old country are not lawyers.
– Even the amendment of the Conciliation and Arbitration Act which has been suggested would not obviate the necessity for this Bill.
– In that part of the old country from which I hail Sir Rupert Kettle sat for forty years as the President of Arbitration Courts, and, although not a legal man, he acquired sucha degree of efficiency and fair-mindedness, that, so far as I can recollect, not one of his judgments was questioned.
– There is no compulsory arbitration in England.
– It is voluntary, but it is none the less arbitration. It does not follow, therefore, that a High Court Justice is necessarily the best president of an arbitration Court. That is a point yet to be determined, and perhaps the process of evolution will make it plainer to Australia than it is. The outstanding fact is that when the Court of five Justices becomes busy, we may have a further requisition with the same statement that there is a delay amounting to a denial of justice. Then there will come a slack period when the Court will have nothing to do. That is the experience of the States Courts, and there is no reason to believe that it will not be the experience of the High Court.
– It is not so much the quantity as it is the extreme importance of some of the business, which, in any case, should receive the attention of five Justices .
– I am not overlooking that fact. It is the side of this question that most strongly appeals to me. The position in regard to the overworking of the Justices is not so serious as sought to be made out in the official papers, or by the Attorney-General himself. Take the letter of the Chief Justice. He pointed out that at the time of writing there were no arrears. Here is his statement: -
Since the end of the summer vacation, theFull Court has been continuously sitting in Hobart, Melbourne, Sydney, and Brisbane, and again in Sydney. The Melbourne sittings were extended for a week longer than the period first allotted, wilh the result that all the business, which included some arrears from 1905, was disposed of, with the exception of one case.
– I thought the honorable member was referring to a later letter.
– The Chief Justice went on to forecast the work of the rest of the year, saying that the Justices were likely to be very busy, but hoped to overtake the work by the end of the year.
– I do not think he says that, but at any rate the Justices have teen busier than they anticipated.
– He points out that in the present congested state of business their judgments must suffer from want of deliberation and reflection.
– Thev cannot long endure the present strain.
– I have no doubt that ‘that statement is worthy of all the consideration we can give it. Anything that detracts from the quality of the decisions of the High Court is a matter that ought not to be lightly passed over by us. These ave the aspects of the case that appeal to me more strongly than does the suggestion as to the congestion of business. The Chief Justice in the last paragraph of hi S letter writes as follows : -
Apart, therefore, from the question of the Commonwealth Court of Conciliation and Arbitration, we are of opinion thai - if suitors desiring to have recourse to the original jurisdiction of the Court are to have a fair opportunity of . doing so, and if the imminent risk of dislocation of the appellate work of the Court is to be provided for - it is absolutely necessary that some addition should be made to the number of the Bench. We think, further, that it is very improbable that Mr. Justice O’Connor will be free at any time during the present year to discharge his functions as President of the Arbitration Court.
All that he says is that those who desire to have recourse to the original jurisdiction of the Court may not otherwise have a fair opportunity to do so. Is that desirable? If litigants find that their business in the Federal Court is being delayed they still have the option of going into the Supreme Courts of the States.
– One party has the option, but not the other. The defendant has no option.
– I dare say that there is something in that; but-, speaking generally, lit cants have the option of appealing to the States Courts. The consideration that weighs with me relates to the quality of the appellate work of the Court. I do not care much about the original jurisdiction of the High Court; the OUt.standing feature is the importance of its appellate jurisdiction. That is the chief and primary function of the Court, and nothing in my judgment, ought to interfere with the efficient discharge of its functions iti that regard: A more important question is the relative status of the High Court, and the Supreme Courts of the States. At the present time, the three Justices of the High Court hear appeals from the decisions, of Supreme Courts, each constituted of three Judges of, perhaps, equal ability and more experience, and. although, as has been affirmed by the Attorney-General and the honorable member for Wentworth, the determinations of the High Court are generally received without question, now and again it is asked why the Supreme Court Judges should be always wrong and the High Court Justices always right.
– Sometimes the three Justices of the High Court have to deal with appeals from the decision of five Judges of the Supreme Court.
– That is an argument for increasing the strength of the High Court Bench.
– In my opinion, it is the strongest argument for doing so. Still, having regard to the fact that the State facilities for the administration of original jurisdiction have been kept intact, I think that we should not be too hasty in increasing the High Court Bench, and, unless I am convinced by the Attorney-General that two additional appointments are necessary, I shall not agree to the appointment of more than one more Justice. The appointment of another Justice would, according to the statements made in the papers put before us, allow the Court to overtake its work.
– If the High Court Bench consisted of four Justices, two of them might be of one opinion and two of another opinion.
– I do not think that all four Justices would sit as a Court of Appeal. Probably three would do the appellate work, and the fourth other work.
– Then the additional Justice is to be appointed solely for the transaction of the arbitration work.
– As I read the papers, that is mainly what is required and is asked for. Other considerations have been brought forward in the” course of the correspondence which at the beginning were not thought of.
– The Justices did not complain of their own accord:. The President of the Arbitration Court pointed out that the work allotted to him could not be undertaken while he had appellate work to do, and when we asked the Chief Justice to speak about the ordinary work of the Court, he gave it as his opinion that even the appellate work could not be properly done as the Court is now constituted. He did not start complaining.
– Why should he not complain if the work is too heavy, seeing that he is responsible for the proper transaction of the business of the Court?
– The Chief Justice says that the continuous pressure of work gives very little time for research and the preparation of written or even oral judgments.
– He said that only after he had been requested to make a statement in writing. Had it not been for the passing of the Arbitration Act, no application would have been made by the High Court for assistance for some time to come.
– The necessity for additional Justices would still exist.
– We know that Ministers do not ordinarily ask the Judges, “Do you want assistance?” They naturall v wait for complaints about the congestion of work, and representations as to the need for relief.
– I do not think that the Justices are in the habit of complaining.
– The Judges are quite within their rights in making representations. I desire that the High Court shall have all the effectiveness that we can provide for. But it has been my duty to make the criticism, to which I have given utterance on behalf of the Opposition. The consideration which weighs with me most is the need for doing something to increase the status of the High Court - I do not mean the dignity of its units, but the status which the Court as a body would gain by an increase in the number of Justices. Therefore I shall not oppose the Bill, but I wish to know from the Attorney-General why one. instead of two, additional Justices would not meet the requirements of the position?
– - When the institution of the High Court was first brought before Parliament, it was proposed that five Justices should be appointed, but the proposal met with such opposition that the number was reduced to three, and the first Judiciary Bill was amended in the direction of limiting the jurisdiction of the High Court, with a view to saving expense. I supported the reduction of the number of Justices from five to three, and now join with the honorable member for Parramatta in deploring the fact that the establishment o,f the Federation, and the consequent transference of the control of various public Departments to the Commonwealth authority, has not resulted in a proportionate diminution of expense to the States. We are not altogether to blame for this, because we have not gone beyond the powers conferred upon us by the Constitution, and have had some regard to economy. The greater portion of the blame undoubtedly rests with the States authorities. Many of us who urged the acceptance of the Constitution anticipated, not only greater efficiency, but also a substantial reduction in cost, through, the transference of public services from the control of the six States authorities to that of one Commonwealth authority, and it is very much to be regretted that the saving effected has been so small. It is, however, evident to all who have taken the trouble to consider the question that there is urgent need for granting assistance to the Justices of the High Court. Parliament is largely responsible for the present state of affairs, because, in addition to the work for which the Court was appointed, it has, as has been pointed out by the Chief Justice, considerably increased the work of its members bv passing, the Arbitration Act. I am very loth to believe that- the increase in the number of Justices provided for in the Bill is absolutely necessary at the present juncture, and I feel that it will be less necessary, as time goes on, because I presume that Parliament does not intend to materially increase the jurisdiction of the Court. We are, however, at present faced with the fact that the Court has rather favoured litigants, who have been disappointed by the decisions of the Supreme Courts, and has acted, not only as a Court of Appeal, but, to a large extent, as a Court of Reversal. This has made appeals extremely popular, and, therefore, in my opinion, the work of the Court has been heavier than it will be in future, when it gets into thorough working order, and when - I say this with all deference - the States Courts exercise more care in dealing with the questions submitted to them. I do not wish to reflect on the States Courts. Thev have in the past done admirable work.
– Mav it not be that the High Court should give more care to. the questions submitted to it?
– Perhaps so; but I am disposed to say that the case is the other way about. I have every confidence in the High Court, and, while not possessing the professional knowledge necessary to enable me to offer an authoritative opinion upon its decisions, yet, speaking as a layman, I may say that, in my judgment, they have in most cases been just. The saving grace of common sense appears to have been shown more frequently in the High Court than in the States Courts, so far as the cases which have come under my notice are concerned. The passing of the Arbitration Act will place an enormous amount of work on the Justices of the High Court, but that work has not yet been undertaken. The rules of the Arbitration Court, which were urgently desired by those interested in the Arbitration Act, were a remarkably long time - several months - in the framing, and I believe that it will not be until towards the end of the year that cases arising under the Act can be dealt with.
– If there had been another Justice, one very important case could have been heard some time ago. ‘
– I understand that the time of the three Justices is fully occupied with the ordinary work of the Court, and that, therefore, the special work falling to (hem under the Arbitration Act has not yet been undertaken.
– Does the honorable member argue that there is an accumulation of arrears owing to the slowness of the Justices in framing regulations?
– No. What I have said is that up till now the work of the Court has been exceptionally heavy, because it has been thought that litigants who have been unsuccessful in the Supreme Courts are likely to obtain reversals of verdicts from it.
– I was referring to the rules of Court.
– Even if the rules of Court had been available, I very much doubt whether any cases would have been dealt with, even bv this time.
– There has been no delay in issuing the rules of Court.
– There has been considerable delay in issuing the rules of Court for the Arbitration Court. I have reason to know that, because I have bean in communication with a very important trade union, which has been endeavouring to have a case brought before the Arbitration Court.
Parliament is bound to make such provision that in the highest Court of the Commonwealth undue strain shall not be imposed on the Justices who have placed upon them the very grave responsibility attaching to a final Court of Appeal. I know that the Justices have been compelled from time to time to delay proceeding with cases already opened in order to enable them to deliver reserved judgments. Thus, much valuable time has been lost, and litigants have been put to much greater expense. Therefore, I think that we should do something in the direction of strengthening the Bench. If, however, we appointed two new Justices, it would not be possible for us to reduce the strength of the Bench in the event of the volume of work decreasing to such an extent as to justify that course. It would be an unheardof thing to throw back into the ranks of the legal profession a gentleman who had occupied a position on the Judicial Bench.
– The Constitution would preclude that from being done.
– Exactly. Therefore, I urge that we should proceed slowly The States have not done all they should have done to cut down expenses, and I have always urged that we should set them a good example bv practising the greatest economy consistent with efficiency. If we increase the number of Justices to five we may be regarded asl committing an act of extravagance. If, on the other hand, we .subsequently find that we have erred in providing for too small a number of Judges, the mistake can easily be corrected before any great hardship has been inflicted upon the public. I realize that the High Court has to perform more important duties than fall to the lot of any other Court in the Commonwealth. I also appreciate the fact that the Justices should not be driven at a high rate of speed. We cannot expect efficiency in any piece of machinery, however constituted, if it is driven at an excessive rate of speed. Therefore, we should provide a sufficient number of Justices to carry on the work of the Court with the highest degree of efficiency. I think we have improperly imposed on the High Court the dutv of travelling about from State to State in order that causes mav be heard with the least possible expense to litigants. The necessity which, their Honours are under to move about from Court to Court subjects1 them to a very heavy strain, and must interfere very much with their work. When they have frequently to travel considerable distances by train and steamer, their intellectual powers must become impaired. This is an additional reason why we should afford some relief for the Court, which undoubtedly has a tremendous accumulation of business on its hands. I intend to vote for the second reading of the Bill, but when we reach the Committee stage I shall be prepared to consider an amendment in the direction of reducing the number of additional Justices provided for. If we appoint two extra Justices, we may find that we have added a fifth wheel to the Court coach, and I think that before we take any such extreme step some arrangement should be entered into with the States Governments with a view to their exercising greater economy.
– I shall oppose the Bill, because 1 submit that sufficient reasons have not been advanced for the appointment of two additional Justices. If, in the first instance, we had appointed five Justices, at least two of them would have had little or nothing to do for the greater part of their time. According to the statement of the Chief Justice, only one case, apart from the business of the Arbitration Court, is really awaiting decision. His Honour states that, under ordinary circumstances, the Court will be able to finish up its work by the end of the year. If it can, by working nine months in the vear, transact the whole of the business that is brought before it, there should be no necessity to strengthen the Bench. It would not be fair, under such circumstances, to increase the burdens of the taxpayers. It is almost ludicrous for honorable members to talk about the health of the Justices being impaired bv the excessive strain to whir they are subjected. It is desirable that we should always speak with the highest respect of the Justices of the High Court, 1because we should do nothing to in an way weaken the dignity of the tribunal or the esteem in which it is held by the gene’ ral public. When, however, we know that their Honours sit only a few hours a day, and that (heir work does not occupy them for more than nine months in the year, it is ridiculous to speak of their being overworked.
– It must be remembered that the Justices do a great deal of work outside the Court.
– I am well aware of that. They might reasonably be ex pected to do so, when we consider that they sit in Court’ for only four or five hours a day upon four or five days per week, and that their judicial duties do not occupy them for more than nine months in the year. The taxpayers are certainly not prepared to pay .£3,000 per annum and upwards to any men for work which extends over only four or five hours per day. I quite believe that one member of the Bench has been working at high pressure.
– The whole of the Justices have been doing so. I hope that the honorable member will not draw any distinction between them.
– The AttorneyGeneral forces me to say that the general impression throughout Australia is that there is a great deal of “ I concur “ about the Court.
– I do not think that is fair.
– There is a very general impression that the greater portion of the work of the Court has been done by one Justice. When the Arbitration Act was passed, it was generally considered that during the first year or two there would probably be a considerable pressure of work upon the Arbitration Court, but that afterwards, when employers and employes were induced to take a more common-sense view of the matters affecting them, the business would slacken off very materially. However that mav be, it is plainly apparent that there was very serious objection on the part of the Justices of the High Court to undertake the work of the Arbitration Court. If, as the Chief Justice says, the present Justices are able to cope with the ordinary work-
– He says the very reverse.
– According to my reading of the statement, he expected that the whole of the work of the Court would be cleared up before the end of the year.
– No; the honorable member should read paragraphs 6 and 7 of his letter.
– The AttorneyGeneral is doing what members of his profession are apt to do, namely, selecting those portions of the letter that square with his contentions. The Chief Justice states that the ordinary work of the Court will probably be cleared up bv the end of the year, but that he expects there will be a congestion of work in the Arbitration Court. The difficulty anticipated might be met by appointing an acting Judge to preside over the Arbitration Court. There are in Australia a number of men who could perform thatwork as efficiently as could a Justice of the High Court. The matters which will come before the Arbitration Court will call for the exercise of commonsense and honesty, rather than for a knowledge of abstract law, on the part of the President.
– Would the honorable member propose to make the decisions of the acting Judge subject to appeal to the High Court, or make them final ?
– I would allow the Act to stand as at present, without any provision for an appeal. The decisions of a Justice of the High Court, as President of the Arbitration ‘Court, would not fee one whit more fair or logical than those of an acting Judge.
– It is the permanence of the position of the Justice of the High Court which gives the people confidence.
-I differ entirely from the Attorney-General on that point.
Sitting suspended from 1 to 2 p.m.
– I find that for the half-year ended 30th June last the full Bench of the High Court sat for ninety days, and that the Justices in their individual capacity sat for thirty-three days, or eleven days each, making a total of 10 1 sitting days. I do not think it can be urged for a moment that to require a Justice to sit for 101 days in a half-year is likely to produce the terrible results pictured by the Attorney -General. I regret that there seems to be a disposition on the part of the Government to continue to make all sorts of fresh appointments, which involve increased expenditure, in the belief that the States will make corresponding reductions in their expenditure. So far, however, practically nothing has been done by the High Court which would have the effect of reducing the work which the States Supreme Court Judges are called upon to perform. Very few appeals have been made direct from the decision of a single Judge of any of our States Supreme Courts to the High Court.
– It is within, the power of the States to economize very much.
– I would remind the Attorney-General that it ought to be within the power of the Commonwealth to economize. Throughout the whole of Australia there is a growing feeling against the appointment of these highly-paid offi cials, who are required to do only a very limited amount of work. When we contrast the labours of the taxpayers with those of the tax-eaters - as I might term them - the balance is all in favour of the former. Believing that no case has been made out for the appointment of two additional Justices to the High Court Bench, I shall vote against the second reading of the Bill, and if it reaches Committee I shall endeavour to limit its application to the appointment of one extra Justice. There is nothing to show - even in the light of the statement of the Attorney-General - that an additional Justice would not be sufficient to enable the Court to cope with the business coming before it. There is, I repeat, a growing feeling in the States that this Parliament is enacting unnecessary laws, which can only have the effect of creating work, and that it is then appointing highly-paid Officials to perform that work. I do hope that in making any additional appointments to the High Court Bench, serious consideration will be given to the claims of those who have had practical experience as Supreme Court Judges. The mere fact of translating a man to the Judicial Bench does not add to his abilities one iota. Indeed, there have been cases in which persons appointed to the Bench have proved absolute failures. I hold that in making any additional appointments to the High Court Bench, the Commonwealth would do well to confine its selection to the States Supreme Court Judges who have proved their capacity. From one end of Australia to the other there is a unanimous opinion that the choice of the present Chief Justice of the High Court was an exceedingly wise and fortunate one. He has brought to the discharge of his duties an exceedingly well-trained and balanced mind, and the Commonwealth is undoubtedly reaping a great advantage from his presence upon the Bench. It is sometimes exceedingly unwise to take a man from the hurly-burly of party politics, and place him upon the Bench. As far as possible, he should be absolutely removed from party politics. Seeing that there are men upon the Supreme Court Benches of the various States who possess a longjudicial training. I hold that, instead of looking round the political arena with a view to placating a friend, or of getting rid of an enemy, the Government would be well advised if they limited their selection of any additional High Court Justices to the
Supreme Court Benches of the different States. 1 shall vote against the second reading of the Bill.
– I regret that I missed the opportunity of hearing the Attorney-General move the second reading of this Bill, and that up to the present time I have not had an opportunity of reading his speech in Hansard, because, if a case can be made out for the appointment of two additional Justices to the High Court. I am anxious to vote for the measure, though I must confess that upon the figures presented such a case does not seem to have been established. Apparently a case has been made out for the appointment of an additional Justice. At the same time, I think we should hesitate before we add to the number of the High Court Bench so soon after the passing of our Judiciary Act, unless there is a clear necessity for doing so - a necessity which is likely to be continued. Looking hurriedly through the figures, I cannot regard them as altogether conclusive, so far as “the appointment of two additional Justices is concerned. To some extent, the alleged pressure upon the time of their Honours is directly due to our legislation. For example, the Australian Industries Preservation Bill may require the services of their Honours in a sphere in which judicial services have been seldom used, either here or elsewhere. Of course, that may entail a diminution of the available leisure of their Honours for other purposes. Then the Conciliation and Arbitration Act is one of the Statutes which might necessitate additional appointments ‘ to the High Court Bench. In the papers which have been circulated, however, I find only one case mentioned which will clearly come within the cognisance of the Arbitration Court.
– There is another very large case which is just being formulated.
– Does the AttorneyGeneral refer to the possibility of a dispute arising upon the shearing question?
– I do not think that there is likely to be a dispute, and I may mention that I have been consulted professionally in the matter. Up till a month ago theposition was that the shearers were anxious to have a dispute within the meaning of the Act.
– - No.
– I think that the AttorneyGeneral is mistaken. The men were apparently imbued with a perfectly proper de sire to have a dispute submitted to the Arbitration Court. At the sametime a dispute within the cognisance of the Court had not arisen. It is not at all clear that it can arise, except with the consent of both parties. If they do not agree to have a dispute the Arbitration Act is actually a bar to any amicable arrangement being arrived at.
– In the letter of the Registrar, dated 2nd May, 1906, the honorable and learned member will find a great deal of information upon this point.
– I do not refer to registrations. Of course all the unions will endeavour to get registered. Before a man engages in a fight he naturally endeavours to develop his muscles, and similarly every union wishes to obtain registration, so that when a dispute arises it shall be the first in the field. I do not heed the fact that the Registrar has had his time fairly occupied.
– Will the honorable and learned member look at the fifth paragraph of his letter? That is not confined to the. question of registration - it includes disputes.
– The Registrar mentions only two cases that are pending in the Arbitration Court. He refers first to the case in which the Merchant Service Guild, an organization of ships’ officers, and the Commonwealth Steam-ship Owners’ Association are concerned. Then, according to paragraph 3 he seems to think that the Shearers’ Union and the Pastoralists are also likely to be engaged in a dispute. But in making that statement he is merely referring to newspaper rumours.
– To a great deal more than that.
– Up till now his work has chiefly been confined to receiving applications for registration and to deciding between the different organizations. I say that a case of the magnitude that is now awaiting the leisure ofthe President of the Arbitration Court is not likely to occur again for several years. That case may possibly extend over a month, but when judgment is given it will probably be conclusive for at least five years. Again, we are not likely to have another dispute in connexionwith shipping matters - which clearly come within the scope of the Conciliation and Arbitration Act - nor in other matters which do not clearly come within its purview. The fact has also been men- tioned that a good deal of work for the Court had been listed up to a certain date during the present year. But I would point out that in Queensland and Tasmania the Court apparently had very ‘little to do, and there were two cases set down for hearing in Adelaide, neither of which came before it.
– There is business in Brisbane now. As the time for the sitting of the Court approaches the business is definitely set down.
– I think that we should have much more data to go upon.
– There is business for the Court to deal with in Adelaide now. The large case of Weingarten v. Wills has yet to be decided.
– We ought not to determine upon the expediency or otherwise of appointing additional Justices to the High Court Bench merely because one large case is likely to arise. We should have regard to what is likely to be the average. I hope that we shall not have a repetition of the Weingarten case, which occupied something like fifty-five days in Adelaide. Perhaps I ought not to say “ I hope “ ; but I am speaking as a member of Parliament, in which capacity one is expected, not being at a public meeting, to tell the truth. I do not think that a case like that of Weingarten’ s is likely to fatten the lawyers for a year or two to come. I should like to have seen a comparison between the business done and disposed of by the Supreme Courts of the States in their appellate or bancojurisdiction, with that done by the High Court, in order that we might estimate the extent towhich the latter ‘tribunal is being exceptionally pressed. I should like also, to see an analysis of the cases from the point of view of the magnitude of the issues raised. Some cases that have gone before the High Court might well not have been heard by it. In the case of Smith v. Norton, heard in Western Australia, the amount involved was and I do not know that any great question of importance was at issue. Western Australia seems to be particularly fertile in petty issues.
– The case must have been of sufficient importance to go before the High Court, or leave to appeal would not have been granted.
– That reply was, of course, patent ; but appeals are allowed in cases that do not appear to be of great importance. I know that the High Court has adopted the ruling of the Privy Council in the case of Prince v. Gagnon, in which it was held that, to warrant the granting of leave to appeal, the question at issue must be of considerable magnitude or involve matters ofimportance to the public.
– And in the Western Australian case to which the honorable and learned member has referred, the High Court must have come to the conclusion that the question at issue was of sufficient importance to warrant the granting of leave to appeal.
– On the assumption that Courts, 75 per cent, of whose decisions are wrong, according to the High Court, always act rightly. According to the latest statistics I have seen, the Divisional Courts of England give erroneous decisions in about half the cases decided by them, and the Court of Appeal is also often wrong. I believe that if we could bring down from heaven some of the jury who sit upon our folly, and appoint them to preside over the House of Lords, it would be declared that that tribunal was wrong in a still greater number of cases. Every Act of Parliament speaks with the wisdom of our united endeavours to get at cross purposes, but it is supposed to be all right as long as it is on the statute-book. If I attempted to impugn one of our Statutes, Mr. Speaker would call me to account for daring to challenge the omniscience of a Parliament which common sense teaches us is often in the wrong. I am simply complaining, however, of the defective information before us. This may be partly due to my incapacity to grasp the significance of the figures put before us ; but what I do assert with some degree of confidence is that, if the regular increase of business is such as to demand the appointment of two additional Justices, this necessity has arisen from our own legislation, and from some of the bungles made by the Federal Convention. Dealing first of all with the effect of our own legislation upon the volume of litigation, I would remind the House that I have already referred to two cases. Apart from the original jurisdiction prescribed by the Constitution as being in the High Court, we have vested some additional original jurisdiction in that tribunal. When the Judiciary Bill was introduced by the Government, of which the present
Prime Minister was a member, that honorable and learned gentleman, who was then Attorney-General, attempted practically to give all the jurisdiction possible to the High Court. Had that attempt been successful five Justices would have been clearlynecessary from the beginning. But we limited the number of Justices to three, because we cut down the proposed’ original jurisdiction to a considerable extent. The House will recollect that by taking away the power of removal of causes from the States Courts, for which provision was made in the original Bill, and by narrowing down the jurisdiction of the Court to that vested in it by the Constitution, we did this’-
– And we did something more - we gave the High Court power to decide questions affecting the interpretation of the Constitution.
– That provision was inserted in the Bill after we had narrowed down the jurisdiction of the Court. With a certain degree of reluctance the House consented to embody in the Bill the then Attorney-General’s pet clause as to the power of the Court to decide cases arising under the Constitution.
– The Court would still have had the appeals even if we had not taken that step.
– I am dealing with not the appellate but the original jurisdiction of the Court. I started with the proposition that our own legislation was responsible for the pressure of work in the High Court. Had greater attention been paid to the Opposition when it urged that the power of the High Court should be limited to its true functions as a Court of Appeal,
Ave probably should not have had this demand for the appointment of two additional Justices. That contention is sustained to some extent by the figures put before us. We have, in the official papers, the statement that thirty-five cases in the original jurisdiction of the Court have arisen. That, I presume, is up to a certain period in the current year. But, apart from our action in extending the original jurisdiction of the Court, a mistake was made by the Federal Convention which led to the decision of the Privy Council in the case of Parkin v. James. Honorable members may remember that the Convention in Melbourne decided by a majority of one to retain in the Constitution the right of appeal to the Privy Council, although at the Adelaide Convention it was decided, I think, by a majority of seventeen, that it should be abolished. When that was done, it seemed to me, at all events, that the appeal clauses of the Constitution were somewhat confused, and that if we were to retain the right of appeal to the Privy Council, it should be on the basis that all appeals from the States Courts to the Privy Council should be abolished. It appeared to me that, to justify the appointment of five Justices for the future, all appeals from the Supreme Courts, of the States should be only “to the High Court, and that if the right of appeal to the Privy Council were subject to special leave being granted in each case by the Privy Council itself, appeals would occur infrequently. The rule in Canada is not to allow an appeal from the Supreme Court of the Dominion, whose decisions, according to the Canadian Act, are to be final and conclusive, except in so far as leave is granted. As a matter of fact, leave to appeal is very seldom granted by the Privy Council unless the case in which that leave is sought, comes within the ruling laid down in Prince v. Gagnon. Had we followed those lines, the High Court of Appeal would have been a genuine Court of Appeal, and we should not have had the possibility pointed out in the case of Outtrim v. The Commissioner of Taxes - the possibility of a conflict between two Courts of Appeal with respect to the same matter. We should have preserved the dignity of Australia, because we should have had one Court of Appeal, subject to the power to go, in exceptional cases, to the Privy Council. We should have thus recognised the prerogative of the Crown, and the interests of Empire, because there may be cases in which our interests are not absolutely identical with those of the United Kingdom. In such a case, an appeal would have Iain to the Privy Council, by permission, and we should thus have had a symmetrical system, and the democratic feeling of Australia would have been recognised. My amendment was that, by one act of the Federal Parliament, wel should cut off all appeals to the Privy Council, but the legal leaders of the Convention opposed me. By a narrow majority of three that solution of the difficulty was rejected on the 16th of March, the day before we adjourned. The result is that there is now an appeal to the Privy Council from all decisions of the States Courts, and there is also an appeal from all decisions of Federal Courts, according te the decision qf the Privy Council in Outtrim v. The Commissioner of Taxes, which decided that, notwithstanding the Judiciary Act, an appeal did lie. The honorable and learned member for Northern Melbourne, as well as the honorable and learned member for Werriwa, and others, joined with me in pointing out time after time that the Judiciary Bill was wrong in this respect. Before we entered upon the consideration of that measure, I heard the opinion expressed by lawyers, one of whom is now a Justice, that in investing States Courts with Federal jurisdiction we could have the condition that there should be an appeal under that jurisdiction to the High Court only. The Privy Council has said that we were wrong.
– It has not decided that.
– It gave leave to appeal.
– Only tentatively.
– That leave exists. I think that in the case of the Colonial Sugar Refining Company, which went to the Privy Council, from Queensland, the same decision was also given.
– That was before the Judiciary Bill was passed.
– The point was raised both before and after the passing of that measure. Another blunder was made by the drafting committee of the Convention. When we had decided by a majority of one to retain the appeal to the PrivyCouncil, the Constitution still provided that the High Court should have jurisdiction with such exceptions and reservations as the Federal Parliament might prescribe. The use of the words “with such exceptions and reservations “ in the Constitution of the United States enabled Congress to cut down the whole of the Federal jurisdiction of Courts created by it, but not the jurisdiction of the Supreme Court of America, which is provided for in the Constitution itself. In some cases, for political purposes, they actually abolished the whole of the Federal jurisdiction of the Circuit Courts, because the Executive knew that a decision which would not suit their political leanings was likely to be given by those tribunals. I pointed out at the time that this was a very wide power, and that when, eventually, as will be the case, the appeal to the Privy Council is abolished, and there is no appeal from the States Courts to that tribunal, it would include the power to deny the right’ of appeal from the States Courts to the High Court. I pointed out that fact at the beginning of the Convention, but without avail. Even tually the position was recognised, and Sir Edmund - then Mr. - Barton, took the drafting of the amendment in his own hands. He did it in a way which, I think, was wrong, and it led to the decision in the case of Parkin v. James. I do not wish to be too personal, but the effect was that the principle of my objection was raised! in saying that the method of dealing with it should be this : It should have been provided that wherever an appeal lay to the Privy Council before the coming into force of the Constitution, there should be an appeal to the “High Court, so as to preserve the right to appeal in the event of the appeal to the Privy Council being ultimately abolished ; but power should have been given to the Legislatures of the States to cut down the right of appeal in State matters, and to the Commonwealth Parliament to cut down the right of appeal in Commonwealth matters. As the Constitution is drafted, however, the right of appeal to the High Court was stereotyped, and is now beyond the interference of either the Commonwealth or the States Parliaments, in all cases in which an appeal lay to the Privy Council prior to the establishment of Federation. Therefore, according to the decision in the case of Parkin v. James, an appeal now lies, as of right, from the decision of the Supreme Court of a State in all cases in which there was the right of appeal to the privy Council prior to the 1st day of January, 1901 Under that decision there mav be appeals to the High Court from the decisions of a single Judge.
– Is not that a good thing?
– Not altogether, though it mav be in some cases.
– Litigants prefer to be able to take the short cut.
– In a great many cases, in which the issue is small and petty, there should be no right of appeal to the High Court : but that Court has to allow appeals because of the unalterable provision of the Constitution. Under these circumstances, the Court mav have far more business than it was originally contemplated’ that it should have.
– The cost of litigation is being enormously increased.
– It is being reduced.
– 1 am not. dealing with that aspect of the case. I am pointing out the effect of the decision in the case which
I have mentioned. Nine of the twelve appeals made to the High Court when sitting in Melbourne recently were from the decisions of a single Judge. In many cases there should be no appeal from the decision of a single Judge, and, in some cases, not even the right to appeal from the judgment of the Supreme Court of a State. The Constitution, however, allows an appeal in every case, apart from the magnitude of the question involved, in which, prior to Federation, there would have been the right to appeal to the Privy Council. It is because of this state of affairs that we are being asked to increase the High Court Bench, and I recognise that a case has been made out for the appointment of at least one additional Judge. Before voting for the appointment of two additional Judges I> shall read with great care the speech of the AttorneyGeneral, to see if he has made out a really good case in favour of the proposal. Business like the Weingarten case and the Seamen’s case is not likely to be continuous, and, that being so, it seems to me that only one additional Justice is needed. The present position has been created bv the Constitution and by the legislation of the States. It is also partly due to original jurisdiction vested in the High Court which is not altogether necessary, and parti v to the, fact that the Court is an ambulatory one, and time is lost in’ proceeding from State to State. I do not object to the Court sitting in the centres of the various States, because I think that that popularizes the institution, and brines justice to the doors of the people. Senator Sir Josiah Symon, however, who is a man of ability and experience, has expressed the opinion that it is a mistake not to confine the sittings of the Court to one centre.
– It would be a serious thing to drag litigants from Perth to Melbourne.
– I agree with the AttorneyGeneral : and the Bar generally has expressed itself as favorable to the peregrinations of the Court. x I shall vote for the second reading of the Bill, but at present feel that only one Justice is needed.
Mr. KING O’MALLEY (Darwin) [2.25L - It seems to me that this is a field d:iv for the legal members of the House. I have no desire to increase the expenses necessary to carry on the band waggon portion of the Judiciary Department of this country. But the more one looks into the matter, the more anomalous does the whole judicial circus appear.
– Who is the clown?
– The honor-‘ able member. This is what may happen. A litigant may have a case in one of the lower courts and win. His opponent may thereupon appeal to the County Court, and the respondent may be again successful there ; and there may be a second appeal to the Supreme Court of a State, before a Bench of five Judges, with the same result. By that time seven Judges will have pronounced for a particular view. Finally there may be an appeal to the High Court, where two Justices may take a view differing from that of the seven Judges who have already dealt with the case, while the remaining Justice may side with them. In that event, the hitherto successful suito would lose his case, although eight Judges in all had decided in his favour, while only two were opposed to him. The question arises, would! the two know more than the eight, or the eight know more than the two? Some of the most important decisions in the history of the United States were given by a bare majority, with a Bench of nine Judges. The United States authorities had no constitutional power to issue paper money and make it legal tender, but after they had issued millions of greenbacks, at the time of the war, they were able, by increasing the Supreme Court, to get a decision of five to four making greenbacks legal tender, a previous attempt to obtain such a judgment having failed.
– The great masses of the people paid very dearly for that decision.
– I will not deny it. Similarly a majority decision the other day upset all former notions as to the powers of the States Courts in regard to the granting of divorces. Now, before divorce can take place in many of the States, both husband and wife must have lived in that State for six months. But formerly a marriage could have been upset when the husband was living in Dakota and the wife in Texas. If the puisne Judges are to be mere echoes of the Chief Justice, it will be better to have only one Justice on the High Court Bench. We do not wish to appoint to that Bench men who will be subservient to a strong Chief Justice. We require men who will stand up for the rights of the people.
Judges taken from the Benches of the Supreme Courts of the States may be moreor less influenced by their past environment, and probably will not be ready to oppose the Chief Justice. The best training place for future Justices of the High Court is this Chamber. I am not looking for a job myself, but, in my opinion, a legal member of this House has a greater knowle’dge of the Commonwealth legislation than would be possessed by a Judge of the Supreme Court of a State, who would have to read up the subject after his appointment. Furthermore, the legal members of this House would have practical knowledge of our legislation, while that of a Judge of a Supreme Court would be only theoretical, and we know that the man possessing hundreds of methods of making money often finds himself up a tree when he enters upon a financial undertaking. The honorable member for Wilmot attacked the Chief Justice for having appointed his own son as associate, but 1 think that it is stated! somewhere in Holy Writ that the man, who does not provide for his own family is worse than an infidel. If I were Chief Justice, and had a son of the intellectual ability and training necessary for the position of my associate, no one else would get that position. One must think of his friends first and his enemies afterwards. All one’s kindness should be for one’s friends, and one should reserve for his enemies justice without any admixture of revenge. I am in a quandary as to what to do in connexion with this proposal. In my opinion, only one additional Justice is required ; but should I set my views as a lavman against those of the AttorneyGeneral, who is one of the ablest lawyers in the Commonwealth? At any rate. I shall vote for the appointment of an additional Justice, and leave myself open to conviction as to the propriety of appointing two additional Justices. lin. any case, great care should be taken in order that the most capable men may be selected. We ought not to appoint men of no strength of character.
– I should have been better pleased if the Attorney-General, instead of proposing the appointment of two additional Justices, had introduced a Bill to further limit the jurisdiction of the High Court.
– That would not have helped. The only portion of its original jurisdiction which we could take away is that relating to the- interpretation of the Constitution. Its other original jurisdiction is vested in it by the Constitution.
– I know that we cannot take from the Court jurisdiction vested in it by the Constitution. But it will be a great mistake to go on increasing the work of the Court, knowing, as we do, that the expense of its maintenance is additional to the expense of maintaining the other judicial tribunals of the Commonwealth. I believe that the High Court will become an extremely costly institution. I agree with the AttorneyGeneral that it is at present constituted of men of conspicuous ability, who have discharged their duties to the entire satisfaction of the community, and arte likely to continue to do so.
I would remind honorable members that when the Judiciary Bill was first introduced we were strongly pressed to appoint five Justices. We were told that no smaller number would meet the requirements of the case. We now know full well that if we had yielded to the solicitations of the Government at that time, two-fifths of the actual money voted for defraying the cost of the Court would have been wasted, because three Justices have succeeded in practically keepin,g the work up-to-date. The only necessity “for. the appointment of additional Justices has manifested itself in connexion with the Arbitration Court.
– Other matters quite apart from that are now hung up.
– I do not see how that can be the case, because the Justices can afford to devote three months out of the twelve to holidays
– They become very tired.
– I know that the work is trying and I admit that reasonable holidays should be provided for; but it seems absurd to speak of pressure of work, and the withholding of justice from the public, when one-fourth of the vear is devoted to holidays The vacation now enjoyed bv the Justices might be shortened by at least one-third.
– It must be remembered that during a portion of the vacation, their Honours are considering reserved judgments.
– Of course, the actual sittings of the Court occupy only a limited time upon a limited number of days in the year.
– The work done in the Court does not represent all that is done by the Justices during the days of sitting.
– I understand that ; but if their Honours sat upon the Bench for five hours daily, they would still have three hours upon sitting days to devote to their work outside the Court. However, it is not worth while to labour that point. I am prepared to support the second reading of the Bill, and I shall go as far as to approve of the appointment of one additional Justice. I think, however, thatwe should make a fatal mistake if we provided for anything more than the actual requirements of the case. I listened very carefully to the Attorney-General and to my mind he failed to make out a case for the appointment of more than one Justice. We must remember that the work of the Arbitration Court is likely to be extremely limited, because that tribunal can deal only with cases extending beyond the limits of any one State. When two or three cases are settled, the President of the Arbitration Court will have nothing to 00. If we appointed one additional Justice he would be able to attend to the work of the Arbitration Court, and would very soon be released from his duties in that tribunal, and be able to go back to the ordinary work of the High Court Bench. Therefore, I hope that the Attorney-General will see his way to limit has request to one additional Justice
– I do not wish to give a vote upon this Bill without stating my reasons. In the first place, I do not altogether agree with the views put forward by the honorable member for Franklin with regard to the uneven distribution of the work of the High Court. The honorable member apparently lost sight of the fact that the other two. Justices could hardly be expected to concur in a judgment delivered by the Chief Justice, without seriously investigating all the circumstances of the case. I take it that they merely say “ I concur,” because they consider that the Chief Justice has set forth the case in such a way as to render it unnecessary for them to. amplify his remarks.
– Those who practise before their Honours, know that the two Justices other than the Chief Justice work very bard, and frequently deliver long and careful lv-reasoned judgments.
– I believe, that to be the case. Any one who has watched the proceedings of the High Court must knowthat the Justices have their hands fairly well filled, and their minds fully occupiedGranting all that, however, it seems to me that the Attorney-General has failed tomake out a sufficiently strong case to justify additional appointments at the present time. I do not say that as time progresses - perhaps in the course of another twelve months - a further appointment, perhaps, may not be necessary. The principal difficulty seems to arise, not from the appellate work - because their Honours seem to be able to cope with that fairly well - but from the probable accumulation of other work,, principally in connexion with the Arbitration Act. It is feared that it may become necessary to reduce the strength of the High Court Bench for the time being,, inorder that one of the Justices may preside over the Arbitration Court. When the High Court was appointed, it was thought that it would be engaged principally upon work falling w”ithin its appellate jurisdiction. The work of the Arbitration Court was not then taken into account, because no Federal Arbitration Act was at the time in existence or projected’. I think that the suggestionof the honorable member for Franklin, that a Justice should be appointed temporarily to preside over the Arbitration Court is a very reasonable one.
– Members of the Opposition are always complaining, that our legislationwill tend to increase litigation.
– It will do so later on, but it has not had that result up to the present time. I contend that nothing hasbeen presented to us to justify us in making two further permanent appointments at the present time. If, after the appointment of a temporary Justice to preside over the Arbitration Court, and to transact other business outside of the appellate jurisdiction of the High Court, experience shows that the work is still accumulate ing, we can again consider the necessity for making further permanent appointments. The remarks of the honorable member for Laanecoorie are worthy of some consideration in this connexion. If it be true, as he pointed out, that considerable delay occurred before the Rules of Court necessary for the guidance of litigants were framed and issued, the accumulation of work which has been pressing upon the Justices may have been partly due to that fact. If the Rules of Court had been issued at an earlier stage, there might have been no serious congestion of business in the Court at any time. This is what I understood from the honorable member’s remarks. It appears from the report of the Chief Justice that, so far as the appellate work is concerned, the Court has been fairly able to cope with it. He says -
Since the end of the summer vacation, the Full Court has been continuously sitting in Hobart, Melbourne, Sydney, and Brisbane, and again in Sydney. The Melbourne sittings were extended for a week longer than the period first allotted, with the result that all the business, which included some arrears from 1905, was disposed of, with the exception of one case.
– The Chief Justice is there speaking of the Melbourne business. There were cases pending at that time in other places.
– The honorable and learned member for Angas has shown that two cases, which were likely to be very important, were subsequently settled.
– My remarks are made irrespective of those cases.
– In the next paragraph His Honour the Chief Justice says -
A sitting of the Full Court is appointed to be held at Adelaide on 21st instant, at which some appeal business was set down to be heard, but
Ave are informed that it has now been withdrawn. But for this accident, the Court would certainly not have been able to dispose of the business still remaining to bc heard in Sydney before leaving for Melbourne for the sittings of the Full Court, appointed for the 28th instant. In the actual state of affairs, it is possible that we may do so.
– As it turned out, they did not do so.
– There are also a number of cases which have not yet been set down for hearing.
– The honorable member refers to business outside of the appellate jurisdiction ?
– Yes ; I refer to business within the original jurisdiction of the Court.
– My impression is that there is no reason to fear that the work of the Court will accumulate to such an extent in the immediate future that the Justices cannot cope with it.
– There is enough work in hand now to fully occupy the time of the Court for the rest of the year, irrespective of a number of other cases that will probably come forward.
– As far as I can gather from the reports which have been submitted, the work in question is work which the Arbitration Court principally will have to perform.
– I am speaking of the ordinary judicial work of the Court. .There will be two suits set down for hearing in Perth in October next, and, at the rate at which cases are usually heard, they will extend over six or eight weeks.
– The AttorneyGeneral is perhaps, speaking from some later information than is in our possession.
– I have already mentioned the case of Weingarten v. Wills, which will take several weeks to determine.
– But the honorable and learned member for Angas pointed out that that was an exceptional case.
– It all goes to show that business for ‘ the Court is pouring in from all directions. Since these reports were made, there have been two cases in which I am personally concerned which will come before the Court.
-But the Court will not divide itself into two sections for the purpose of hearing those cases.
– It is impossible for the Court, as at present constituted, to do the work that is required of it. Surely the honorable member does not wish the Justices to go on until they break down?
– Certainly not. I approach this matter with a perfectly open mind. If it can be satisfactorily demonstrated that another Justice is necessary, I shall certainly not oppose the Bill, but so far the evidence supplied to honorable members has not established the necessity for the appointment of an additional permanent Justice.
– We cannot appoint a Justice to the High Court Bench temporarily. Under the Constitution, the appointment must be permanent.
– In that case, I feel inclined to support the appointment of one additional Justice. Had it been possible for us to secure the services of a temporary Justice to deal with work of an extraneous nature - that is, work which is separated from the appellate jurisdiction of the Court - I should have favoured the adoption of that course.
– Unfortunately, those who framed the Constitution provided that ‘the appointments must be for life.
– In that case I am disposed to support the second reading of the Bill ; but in Committee I shall advocate the appointment of only one additional Justice for the present. If at a later period it is found that the services of still another Justice are necessary, no doubt Parliament will do what is right. I thoroughly agree with those who hold that appointments to high judicial positions should not be the reward of political services. I do not say that members of the legal profession who move in the political arena should be ineligible for such appointments, but I do say that the qualifications of others who are outside of Parliament should be taken into consideration, and that the only test applied should be that of personal fitness.
– So many smart lawyers get into Parliament that we can hardly’ escape picking them sometimes.
– I have no objection to their being selected for the post if others are placed upon the same plane. Hitherto a very unfortunate practice has been encouraged in all our Australian Legislatures - I refer to the appointment to the judicial Bench of legal gentlemen who have been prominently associated with one or other of the political parties, as a reward for services rendered.
– The same complaint is made in England.
– I am aware of that. We should avoid! the practice as much as possible. I make this statement without any desire to reflect upon any of the legal gentlemen who are connected with politics. As I am assured by the Attorney-General that it is not possible to appoint a temporary Justice to the High Court Bench, I shall support the second reading of the Bill, reserving to myself the right to vote for its amendment in the direction of sanctioning the appointment for the present of only one extra Justice.
.- When the Judiciary Bill was under consideration, I was one of those who voted for the appointment of three Justices to the High Court Bench in opposition to the original proposal for five. I did so with a view to seeing how far the work of the Court - in the light of experience - might be found to justify its greater numerical strength. I do not admit that any error was made by myself or by others who voted similarly under the circumstances which then existed, but I must say, after the lapse of nearly a couple of years, that the work of the High Court has increased far beyond my own expectations. Consequently, I see no objection to strengthening the number of its Justices. A great deal has been said in reference to the wisdom of confining the work of the Court to its appellate jurisdiction. [ do not at all sympathize with that suggestion. Certain original jurisdiction has been conferred upon that tribunal by the Constitution, and it seems to me that to prevent suitors from going direct to the High Court with their original complaint would increase the expense to litigants unnecessarily. The more direct the path to a final decision in respect to these causes of action the better for the community as a whole. The same argument applies to the right of appeal - referred to by the honorable and learned member for Angas - from the decision of a single Judge of a State Supreme Court to the High Court. I do not pretend to criticise for a moment the legal aspect put forward bv the honorable and learned member, but, in my opinion, the interests of suitors will be better served if they are able to obtain a final determination from the High Court without appeal to the Full Court of a State. Therefore, it seems to me that we can look forward with ‘some degree of equanimity to a material increase in the business of the High Court, because it should mean a corresponding decline in the business brought before the States Supreme Courts. In the long run, I believe that the strengthening of the High Court to such a degree as will inspire universal confidence, will lead not only to an increased volume of business, but to some economy being effected in connexion with further appointments to the Supreme Court Benches of the various States. If the practice which the decision in the case of Parkin v. James permits should become general, there will’ be a disposition on the part of the various States to so alter their judiciary Acts as to allow the High Court to be approached more directly than it can be in cases which are not covered by that decision, and thus the cost of_ litigation will be materially cheapened. For these reasons, I think that we are justified in adding to the strength of the High Court. When I am asked how many new Justices we should appoint, I confess that I am not in, a position to offer any advice of value. I do know that I have received complaints from, solicitors, and other members of the legal profession in Sydney regarding the delay which has taken place in the hearing of cases - more particularly of cases in original jurisdiction. In two or three instances this delay has practically amounted to a denial of justice. I have in my mind’s eye one case which could only be determined by the High Court. It involved a matter affecting the action of the Commonwealth Government in its own sphere, and practically the High Court was the only tribunal to which the aggrieved person could have resort. Yet some three or four months ago he was informed - although he is a poor man - that there was no possibility of his case being set down for decision earlier than October. That meant a delay of nine months at least, and possibly a year. That is a condition of things which, it seems to me, we have no right to permit to continue. When I am asked whether it is proper to appoint one or two additional Justices to the High Court Bench, my reply is that I am prepared to rely upon the advice tendered by the Chief Justice, who, after a very careful consideration of the position, has recommended the strengthening of the Bench by the appointment of two extra Justices. I think it is well that we should err on the side of strength rather than that of weakness, so far as the High Court is concerned. The principal expenses of such an institution do not, as a rule, consist of the salaries of the Justices. . The mere bringing of the machinery into operation involves considerable expenditure, and the question of whether or not we ought to incur an expense of £3,000 or£6,000 in respect of the salariesof one or two Justices, is comparatively trifling compared with the magnitude of the issues involved. We have every right, I think, to rely upon the sound judgment andgood faith of the Chief Justice. His career on the Bench has been such as to commend him to all sections of the community, and we ought to be prepared as a Parliament to place the most complete reliance on his advice, as to the number of Justices necessary to enable the Court to deal adequately with the demands made upon it. In view of these facts, I am prepared to vote for the Bill as it stands, believing that it will be found in the long run that the stronger the Court the greater the economy, and, from the point of view of the taxpayers, the greater the satisfaction to those whose misfortune it is to be compelled to go to law.
Question - That the Bill be now read a second time - put. The House divided.
Majority … … 27
Question so resolved in the affirmative.
Bill read a second time.
– By way of personal explanation, Mr. Speaker, I should like to point out that the division bells did not ring upstairs, so that a number of honorable members who were there were unable to take part in the division.
-The bells are tested at least once a day, and I regret very much to hear of what has happened. I shall have the matter attended to at once.
– I can assure you, Mr. Speaker, that the statement made by the honorable and learned member for Illawarra is correct.
Mr. DEAKIN.Might not the position be remedied by honorable members who were not warned by the ringing of the bells . announcing how they would have voted, had they been present. That announcement would appear in the official records immediately below the division-list?
– If any honorable members have been misled by the failure of the bells to ring, it is open to them to make a personal explanation, so that the records of the House will indicate how they would have voted.
– I move -
That the Committee be instructed that they have power to take into consideration an amendment to allow the Judges of the High Court to prescribe conditions for the admission by examination of barristers and solicitors.
I have been induced to take this action because of my desire that the Federal Court shall occupy a position similar to that now held by the Supreme Courts of the States in relation to the admission of legal practitioners. Under section 49 of the Judiciary Act, all persons qualified to practice in the States Courts are entitled to appear before the High Court. That provision has given a certain measure of satisfaction. No difficulty has arisen so far as I am aware, but there is no reason why the High Court should not have the power to admit persons to practice before it.
– I think the motion ought to be agreed to. The proposal is to put the High Court in the same position as any of the Supreme Courts in relation to the admission of persons to practice. It would not do away with the present right of certain persons under the Judiciary Act. It would take away no right, but give the Court an additional power, if it chooses to exercise it, as to affording further facilities for persons to appear before it.
– I am rather surprised that the Attorney-General is ready without discussion to consent to such an innovation.
– Every Courthas this power.
– It is easy to make such an assertion, but I am startled by the discovery that this proposal is to be accepted without debate.
– I would remind the honorable and learned member that the motion now under consideration is only that . the Committee shall have power to take into consideration an amendment in the direction indicated.
– If that is why the AttorneyGeneral said so little, I shall make no further comment at this stage.
– That was the reason why I did not go into the question fully.
.- I fail to see why the Committee should be given power to deal with this subject. If it is within the powers of the Court-
– Owing to an oversight this power was not given in the original Bill.
– If we agree to this motion we shall practically give a direction to the Committee that it is desirable that the power indicated shall be given to the Court. I do not think it is. It would be absurd to admit barristers and solicitors to practice only before the High Court.
If the Attorney-General will say that we have jurisdiction to federalize the whole of the legal profession-
– Then it is proposed to vest in the High, Court the very limited power to admit barristers and solicitors to practice before it. In the Judiciary Act we give power to every barrister and solicitor of the States Courts to practice before the High Court.
– I might assist the honorable and learned member, as well as others, by pointing out that the only result of the passing of this motion would be to permit the Committee to discuss the question, and to come to such decision as it deemed fit. The House would by no means commit itself to the amendment by giving permission to the Committee to consider it.It would simply empower the Committee to do that which it could not otherwise do.
– It would be a strong indication of the desire of the House-
– Not necessarily.
– It would be a useless power to give; but as on Friday afternoons the catching of Inter-State trains rises superior to all other considerations, I shall say no more at this stage.
Question resolved in the affirmative.
In Committee :
Clause1 agreed to.
Clause 2 -
Sectionfour of the Judiciary Act 1903 is amended by omitting the word” two “ and inserting in lieu thereof the word “ four.”
Amendment (by Mr. Joseph Cook) proposed -
That the word “ four “ be left out, with a view to insert in lieu thereof the word “ three.”
Question - That the word proposed to be left out stand part of the clause - put. The Committee divided.
Majority … … 9
Question so resolved in the affirmative.
Clause agreed to.
.- I move -
That the following new clause be inserted : - “ 3. Section eighty-six of the Judiciary Act 1903 is amended by inserting after paragraph (g) the following paragraph : - (ga) Providing for the admission of persons to practice as barristers or solicitors in any Federal Court, and prescribing the conditions of and qualifications for admission, and continuance of the right to practice as aforesaid.”
The section of the principal Act which I wish to amend provides that the Justices of the High Court, or a majority of them, may make rules not inconsistent with it for carrying it into effect, . and proceeds to particularize several matters, to which I wish to add that embodied in the amendment which I have just moved. At the present time, only practitioners who have been admitted by the Supreme Court of a State, may appear before the High Court.
– Can the honorable member point to a precedent in the United States or in Canada for what he proposes?
– I do not think it is necessary to do so. The Supreme Court of each State admits practitioners under certain conditions.
– The conditions are laid down by Acts of Parliament.
– In many cases the regulations governing admission are framed by barristers’ boards, whose members virtually exercise sole control of the matter. It seems tome that the High Court should be placed inthe same position as the Supreme Courts of the States, and be allowed to say under what conditions persons shall be allowed to plead before it. I am surprised that some provision of this kind was not put into the principal Act, when it was being framed, and regard it as unnecessary to say anything more to commend the acceptance of my amendment to the Committee.
.- The difficulty I see about the adoption of the amendment is that in most of the States the admission of barristers and solicitors is regulated by Act of Parliament, whereas the amendment leaves the matter wholly in the hands of the High Court. It is true that there are boards of examiners, but they merely determine whether the qualifications required by Parliament are possessed by candidates for admission. In South Australia, the Act governing this matter was passed as far back as 1855. Persons admitted to practice before the High Court under this provision would have only a very limited sphere of action, and, unless of great capacity, so as to be able to command a very large share of the work of the Court, would not have much to do.
– There appears to be enough work to justify the appointment of two additional Justices.
– I understand that in Sydney there are one or two practitioners who specialize for the work of the High Court.
– I have no objection to the principle of the amendment, but I think that it would be better to pass an Act regulating this matter.
– I am inclined to agree with the honorable and learned member.
– The High Court should have the power given to the Supreme Courts of the States to say who, subject to compliance with’ the provisions of an Act of Parliament, shall be admitted to practise.
– The present position is very anomalous.
– Personally, I see nothing to object to in the anomaly. I am opposed to leaving this matter wholly to the High Court, though I have no objection to the principle of the amendment. In my opinion, whatever conditions of admission are laid down, they should not be such as will be likely to preclude those admitted from taking advantage of reciprocal treatment.
– The more I examine this proposal, the more fair it seems to be. We have a Court superior from every point of view to the States Courts, and yet without power to determine who shall appear before it. The only difficulty that I see in the way of making the proposal effective is that we shall probably create a set of practitioners in the Federal Courts who will be denied access to the States Courts. That strikes me as a somewhat anomalous position to bring about, and, perhaps, it would be better to allow the actual enactment of this provision to stand over until we ascertain’ whether some arrangement cannot be made for reciprocity between the Commonwealth and States Courts.
– It is said at present that there is no necessity for an agreement, because there are no Federal practitioners.
– I take it that if the amendment is agreed to steps will be taken to secure reciprocity, that is to say, to insure that Federal practitioners shall be eligible to plead in the States Courts. I am not so sure but that we should exhaust all our possibilities in the direction of completing our judicial equipment. It might be desirable for us to set up our own honorary magistracy, and provide ourselves with all the machinery necessary for discharging the functions of the Commonwealth. For instance. I understand that at present our naturalization papers have to be taken to States justices of the peace to be attested. I do not see why we should not fully equip ourselves in every respect so far as the administration of our laws is concerned.
-I should like to point out two matters that are deserving of attention. In the first place, in section 86 of the Rules of Court, there is a sub-clause which gives power to the Judges to pass Rules of Court generally regulating all matters of practice and procedure in the High Court, and other Federal Courts, and, as far as may be necessary, in Courts of Federal jurisdiction. It was intended that the High Court should have the power indicated by the amendment, and the provision now proposed to be inserted will make the position quite clear. We are not taking away any one’s right. We are not interfering with any State Court, nor are we requiring that any State tribunal shall be compelled to listen to practitioners who are not entitled, under ordinary circumstances, to appear before them. We desire, however, to give to the High Court powers which will remove it from its present position of absolute dependence upon the States Courts with regard to practitioners. If the Justices make a rule which is considered objectionable, it is within our power to deal with it. Section 87 of the Act requires that the Rules of Court shall be laid before Parliament, and provides that they maybe annulled within forty days. Therefore, Parliament has the whole matter within its control. Under these circumstances, I do not see how we can do any wrong by adopting the amendment.
.- I am very glad that the honorable member for Parramatta has shown the necessity for bringing about uniformity of practice in . regard to the appearance of practitioners before the Federal and States Courts. I think we should go one step further than is proposed by the honorable member for Kalgoorlie, and permit the High Court to make rules with regard to practitioners who appear in Courts exercising Federal jurisdiction.
– That would interfere with the States Courts - we have no power to do that.
– If the AttorneyGeneral will look at section 50 of the Act he will find that that power is already exercised with regard to the Crown Solicitor, who is entitled to practice in any Federal Court or Court exercising Federal jurisdiction.
Mr.Isaacs. - I still hold to my opinion.
– Does the AttorneyGeneral mean that the Crown Solicitor has no right to appear in a Court exercising Federal jurisdiction ?
– I shall not say one word about the right of the Crown Solicitor. The Commonwealth has the right to be represented in Courts exercising Federal jurisdiction, and the Crown Solicitor, who represents the Commonwealth, stands in a position entirely differentfrom that occupied by counsel’ representing private persons.
– If we can empower the Crown Solicitor to appear in Courts exercising Federal jurisdiction, we must surely be in a position to confer similar authority on others. ‘
– The Crown Solicitor represents the Commonwealth, and appears as our agent in the Courts exercising Federal jurisdiction. .
– A State Court is a Federal’ Court to the extent to which it exercises Federal jurisdiction, and there can be no question about our power to determine what practitioners should appear before such Court. The honorable member for Parramatta pointed out the desirability of bringing about reciprocity in regard to the appearance of solicitors and barristers before the States and Commonwealth Courts. It is a crying shame that, owing to local jealousies, we have not yet been able to establish reciprocal relations in this matter. I think that we might take, a step in this direction by extending the scope of the amendment, and I therefore move -
That the amendment be amended by inserting after, the word ‘‘Court,” line 7, the words “ or Court exercising Federal jurisdiction.”
Unless we go this length, I am afraid that great confusion will arise. Suppose, for instance, that the honorable member for Parramatta became a Federal solicitor. He would put up a brass plate bearing the name and description, “Joseph Cook, solicitor.” Persons acquainted with his rhetorical ability, and with a full appreciation of his fighting powers, would probably consult him in their troubles. He would then have to tell them, “I cannot advise you as a State solicitor, because if I did so, I should incur the penalty imposed by the States Courts upon those who practice without authority. If, however, you first pay me my fee of 6s. 8d., and then tell me your story, I shall be able to judge whether I can take your case into a Federal Court, and therein act as your solicitor.” If the matter were one of conveyancing, the honorable member would have to tell his wouldbe client that he could not undertake the case, because he was not a State solicitor. I venture to say that the adoption of the amendment, without the addition I suggest, would lead to endless confusion, because it would be necessary to draw a distinction between Federal solicitors and barristers and States solicitors and barristers.
– There is only one objection to be urged in regard to the ramarks of the honorable and learned member for Corio, and that is that he mentioned altogether too small a fee. I wish it to be clearly understood that my minimum fee will be £5 5s. Much as I sympathize with his objective, I do not think that the honorable and learned member is adopting the right course. I think it will be sufficient if, after the amendment has been passed, the Attorney-General will communicate with the Chief justice, and suggest that some arrangement, should be entered into with the Judges of the States with a view to arriving at a common basis of action. I agree that it would be anomalous to create Federal practitioners who could net practice in any of the States ‘Courts, but I think - that the matter could be arranged amicably.
– The States Legislatures would have to deal with the matter.
– That is not the case in New South Wales, because the practice there is governed by the Rules of Cou rt
– I think that there is a great deal in the suggestion of the honorable member for Parramatta. It is highly desirable that we should arrive at uniformity in the matter referred to. At present a practitioner admitted in Western Australia may practise in the High Court, wherever it may be sitting, even in Victoria, although he would have no locus standi in the Victorian State Courts. If the Bill becomes law, I shall undertake to ask the Chief Justice if he can see his way to communicate with the Chief Justices of the States, with a view to securing uniformity.
.- Measures such as that now before us are sometimes very puzzling to laymen. I cannot see any reason why some general rule should not be adopted that would apply to practitioners in Federal and States Courts alike. I am very pleased that the honorable and learned member for Corio mentioned the matter. He indicated that the initial charge made by a Federal solicitor, such as the honorable member for Parramatta might become, would be 6s. 8d. The sudden jump made bv the honorable member for Parramatta from 6s. 8d. to £5 5s. may afford some indication of the readiness with which Chat honorable gentleman sometimes changes his opinions. I do not think we should interfere in this matter until we can make a thorough change, and bring about uniform rules.
Amendment of the amendment declared to have passed in the affirmative. “
– As there was only one voice raised against the amendment, I take it that there has been a misunderstanding on the part of honorable members.
– There has been no misunderstanding whatever. As you, sir, have declared that the “Ayes” have it, I object to the question being again put.
– I would point out to the honorable and learned member that it is the common practice in this and in all legislative bodies, in cases where misunderstanding has arisen, to put the question again. No further debate, however, can be allowed.
Amendment of the amendment negatived.
Proposed new clause agreed to.
Motion (by Mr. Isaacs) agreed to -
That the Standing Orders be suspended so as to allow the Bill to pass through its remaining stages this day.
Bill read a third time.
– In moving -
That the House do now adjourn,
I desire to say that the debate upon the contract for the mail service to Europe will be proceeded with on Tuesday afternoon. If my honorable colleague, the Minister of Trade and Customs, is able to be present, it will be preceded by tods explanation of the provisions of the Bounties Bill. He wishes me to call public attention to a statement made by the Chairman of the Tariff Commission, and which was published in last Tuesday’s Argus, in the course of which, speaking of the Tariff Commission’s report, he said -
Unexpected debate may be raised over details, I have already received a letter from one of the leading distillers in Australia, in which he says : - “ The report is, on the whole, highly satisfactory to us, and we think also that it will give great satisfaction to Australian distillers generally.” Then he goes on to refer to certain conditions and methods of distillation, discussed in the report, which he regards as flaws, and says that, although they are quite subsidiary, they will not go unchallenged, and that the points raised will surely be debated in Parliament. This looks like an appeal from the Commission to Parliament. It was the possibility of the discussion of details, rather than of fundamental principles, that I had in my mind when I urged immediate consideration and) no further delay.
May I say that the proper course for the distillers in question to adopt - or for any persons who have any practical suggestionsto make, either in reference to reports of the Tariff Commission which have already .’teen presented, or which have yet to be presented - is to communicate immediately, and. as fully and clearly as possible with the Minister of Trade and Customs. Then, instead of their complaints being launched in the House, without having first received that expert consideration which will require to be given them, and which I presume the members of the Tariff Commission will not now undertake, the Minister will be informed of them, and his officers will be able to criticise them before their submission to Parliament.
– That is always the case.
– So I hope. But we hear of a communication forwarded to the Chairman of the Tariff Commission after it has presented its report upon a particular subject - a communication of which my colleague and his officers have no knowledge. Time will be lost, unless the course which I have suggested, is followed. Persons having any complaints to make, should at once write fully to the Minister of Trade and Customs in order that he may ‘have the matters to which they take exception inquired into before the debate takes place in this House. We all desire to save time. We already feel the pressure of the session’s work. More reports are promised by the Tariff Commission, and in order to obviate any adjournment of the discussions upon them, we wish those affected by the reports of the Commission to communicate at once with the Minister. His officers will give the representations. their best consideration.
– I think that the Prime Minister has unquestionably indicated the proper course for these individuals outside to pursue, though I do not think there is any need for them to confine their representations to the Minister of Trade and Customs. I presume that any Member of Parliament will be open to receive such representations. I also think that the Chairman of the Tariff Commission adopted the proper course in making public the communication to which the Prime Minister has referred, seeing that the Commission’s inquiry into the particular matters mentioned, had closed.
– According to a telegram which appears in the morning newspapers, Mr. V. L. Solomon, in the South Australian Parliament yesterday, advised the State Government to withdraw from the negotiations with the Commonwealth Government for the transfer of the Northern Territory, upon the ground’ that the Prime Minister had flouted the proposal to construct a railway from Oodnadntta to Pine Creek. I wish to ask the Prime Minister whether there is any justification whatever for that suggestion, whether any communications have recently passed between himself and the South Australian Government in reference to the Northern Territory, and, if so, will he lay the correspondence upon the table of the House?
.- In connexion with the matter which has been raised by the Prime Minister, I merely wish to say that the Tariff Commission has always made it perfectly clear to those who have forwarded letters to it, that their communications could not carry any weight unless the writers appeared before the Commission and gave sworn testimony. Since we have ceased taking evidence, every person who has written to the Commission has been notified that his letter can have no effect, so far as that body is concerned. Consequently it is for them to take whatever course of action they may deem necessary. I take it that, as far as the Commission is concerned, its members will heartily indorse the suggestion that such communications should be forwarded to the Minister of Trade and Customs, since he is the Minister who is primarily interested in the consideration of the Commission’s reports.
.- Following upon the remarks of the honorable member for Barker, I should like to ask the Prime Minister whether any hostile step has been taken in. this House to the proposed Oodnadatta to Pine Creek railway, with the exception of the motion submitted by the honorable member for Coolgardie, the adoption of which would have precluded the Government from taking into consideration the construction of that line?
– In reply to the honorable member for Barker. I desire to say that I have no more been guilty of flouting the proposal to construct a line from Oodnadatta to ‘Pine Creek than I have of speaking disrespectfully of the equator. I should be equally sorry to take either course. Neither have I been guided in any remarks that I have made - as Mr. Solomon indicates - by any influence brought to bear from Western Australia or any other State. The proposal which the honorable member for Coolgardie submitted, and to which the honorable member for Wentworth has referred, is in the nature of a counter proposal preliminary to the consideration of the terms upon which the transfer of the Territory should be effected.
– The two railway proposals are not necessarily hostile.
– Certainly not.
– Not in the least. One railway would go north, and the other west, so that it cannot reasonably be urged that they are in antagonism. The honorable member for Barker also inquired if any further negotiations were proceeding. Within the last day or two I have received an answer from the South Australian Government to my previous communication. My. reply to that is now on its way to Adelaide. Upon Tuesday next I shall be able to lay the correspondence on the table of the House.
Question resolved in the affirmative.
House adjourned at 4.15 p.m.
Cite as: Australia, House of Representatives, Debates, 20 July 1906, viewed 6 July 2017, <http://historichansard.net/hofreps/1906/19060720_reps_2_32/>.