3rd Parliament · 2nd Session
Mr. Speaker took the chair at 3 p.m., and read prayers.
Mr. SPENCE presented a petition signed by the president and clerk of the Bogan Shire Council, on- behalf of fiftyfour shire councils in New South . Wales, praying the House not to pass the duty on wire netting.
Petition received and read.
– I wish to know whether it is the intention of the Government to give the architects of the Commonwealth an. opportunity to submit competitive designs for the plans’ and specifications of the building which it is desired to erect in London on behalf of the Commonwealth. The matter is of great concern to our architects, who are highly competent professional men.
– It is the desire of the Government to give an opportunity to the architects of the Commonwealth to submit competitive designs, though I cannot say yet what conditions will be imposed, or what time can be allowed for their preparation. . I have today telegraphed to London for the fullest information as to the requirements of the London County Council.
– Will the ‘ Government see that after the plans prepared by Commonwealth architects for the proposed Commonwealth offices have been accepted, all the stone, sand, and other materials, and water needed for the construction of the building is sent from Australia, and will he ask the Australian Natives Association to send to London .in the torpedo boats which are to be built in the Commonwealth, Australians, the children of Australian natives, to undertake the work of erection ?
– In reference to the vote of ,£1.000 agreed to last night for the. acquisition of a site for Commonwealth offices, will the Treasurer give the Senate an opportunity to express its opinion on the subject before he proceeds to negotiate with the London County Council as with the authority of Parliament ?
– If it were not that the date up to which I have an offer is so near, I should take no step until the opinion of the Senate had been ‘ obtained ;.but as to-morrow is the last day available to me, I have been compelled to take action to obtain certain information that was requested during the debate.
– Why did the honorable gentleman wait until the last moment before submitting the matter?
– I should have liked to bring it before the Senate, but time would not permit, and a cable has already been despatched to England asking for information.
– I wish to know from the Prime Minister if he will cause inquiries to be made into the boycotting of Western Australian stock by South Australia and some of the other States. Camels were imported into Western Australia from India which were supposed to be infected with the disease known as surrah, and as the authorities of South Australia, Tasmania, and, I think, other States, seem to be under the impression that that disease is communicable to horses, the importations into those States not only of Western Australian live stock, but even of hides and skins, including ‘kangaroo skins, has been prohibited. As a result of the prohibition, Western Australian racehorses will be unable to compete .in forthcoming races in the eastern States, such as the Melbourne Cup. As Western Australia has a substantial grievance in connexion with this “treatment, and the Commonwealth will shortly have control of quarantine, I ask the Prime Minister to ascertain whether there is. any justification for the prohibition?
-^Before replying to the question, I wish to express my grateful recognition of the generous consideration which, during my disablement, has been extended to me bv all sections of the House. I hope not to trespass further than is absolutely necessary on this indulgence. The honorable member for Coolgardie is aware that at present the Commonwealth has no power in regard to quarantine, but it may he possible, without interfering with the rights of the States, to suggest a modus vivendi which will overcome the difficulties to which he has called attention. When the
Quarantine Bill, now before the Senate, becomes law, the responsibility of dealing with matters of this kind will rest with the Commonwealth.
– In view of the commercial unrest, and the loss to consumers, occasioned by the fact that there is no permanent Tariff law on the Commonwealth statute-book, will the Prime Minister give the House the assurance that he will proceed with the consideration of the Tariff schedule on Tuesday next, at latest?
– The Prime Minister has asked me to reply to the question. I have stated more than once the course which the Government intend to take, and that course will be followed. It is for honorable members to say whether the Tariff schedule shall or shall not be discussed earlier than next week. So much time has hitherto been occupied in talk that the Government are not responsible for the delay which has occurred. I assure the honorable member for Wimmera that it is not the desire of the Government to delay the consideration of the Tariff. I have on. half-a-dozen occasions informed the House as to the course which the Government intend to take, and that course will be adhered to.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are as follow -
asked the Prime Minister, upon notice -
Whether he will give the House an assurance that the present Session will not close or the
Parliament be again prorogued until the Federal Capital Site has been definitely and finally chosen ?
– I have already stated that it is the intention to submit this matter to Parliament this session ; but the question whether the site is definitely and finally chosen is one that rests with the Parliament.
asked the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are as follow -
Explanation of Certain- Items - Collection at Reduced Rates - Duties under Division VIa.
asked the Minister of Trade and Customs, upon notice -
Whether he will have prepared and distributed for the information of Members, a complete list, as in use in the Customs Departmental Guide, showing (in addition to the list in the Schedule) the articles which come under the following items and designations in the proposed Tariff : -
Item 106 - Apparel and attire.
Item 107. - Apparel and attire.
Item 108. - Articles, n.e.i.
Item 124. - Piece goods.
Item 148. - Agricultural, horticultural machinery,&c., &c.
Item 149. - Chaffcutters, &c.
Item150. - Combined corn sheller.
– The departmental officers report that it will be quite impossible to give this information - they have no “ complete “ lists themselves, nor are they aware of any in existence. It would be unwise in the extreme to attempt to furnish such lists, and to do so would seriously embarrass the Department. New articles, machines, &c., are being produced every day.
– I asked for the list now in use in the Customs Departmental Guide.
– The Guide referred to was never a complete list, and was not authoritative as such. It would be very difficult for any storekeeper to furnish a complete list of the goods which he has in stock.
– What is the Minister’s opinion in regard to the request?
– I indorse that expressed by the officers of my Department.
asked the Prime Minister, upon notice -
– In reply to the honorable member’s questions I beg to state -
The authority for the collectionof the present rates is the resolution of this House. If the resolution be rescinded or varied the original authority is automatically also rescinded or varied, and collection can only take place under the amended resolution. . As the above is the well understood and the invariable practice no announcement seems necessary, as the mercantile public are quite, aware of the fact.
asked the Prime Minister, upon notice -
– In reply to the honorable member’s questions, I beg to state -
asked the Prime Minister, upon notice -
– In reply to the honorable member’s questions, I beg to state -
This matter has received the attention of the Government, and this House was once more informed by my colleague a fortnight ago that the Government understood that no such transfer was in contemplation.
Personal inquiries of my own satisfy me that that is so. I may say that we have received during the last eighteen months several communications.
asked the Minister of
Defence, upon notice -
General Gordon perform this duty ?
– The answer to the honorable member’s questions is as follows - 1, 2, and 3. The Commandant has been communicated with by telegram. On receipt of a reply, 1 will take action and inform the honorable member.
– Before we proceed to the business of the day, I should like to say one word.
– Is it the pleasure of the House that the honorable member for Parramatta be allowed to speak?
Honorable Members. - Hear, hear.
– I only desire to say, in a word, with what gratification we see the Prime Minister in his place to-day. I express the hope that the honorable gentleman may have a speedy and complete restoration’ to vigorous and robust health, and that he may continue to do the work to which he brings such a towering and commanding ability, and so much brilliancy. I most cordially, on behalf of honorable members oh this . side - and I think I speak for the whole of the House - wish the Prime Minister a complete restoration to his full power and vigour.
– I do not know that it is necessary to add to what the deputy leader of the Opposition has uttered, except to say that I think every section of the House, and indeed every member, will join in the views put forward by the honorable member, and also in the hope that the Prime Minister will be long spared, with health and strength, to continue the work in which he is engaged.
– I should hesitate to speak again were it not to say that I. hope the press, which gives so much attention to incidents that occur in this House in the heat of debate, will also note how liberal, how handsome is the consideration extended, even by those who are absolute political opponents, to every one who has any real claim on their consideration.
Additions, New Works, and Buildings
In Committee (Consideration resumed from 24th September, vide page 3682) :
Department of Defence
Division 8 (New Special Defence Provision), £342,000, less £125,950 which may not be expended during the year.
Item 2. Small arms factory,£32,000.
.-I am very sorry that my remarks were cut short last night, because I did not intend to occupy any length of time, and, indeed, I do not wish to make any prolonged remarks to-day. I know that honorable members, are anxious to reach the Tariff, and in that anxiety I share. As to the item before us, I am sure honorable members in all parts of the House will agree with the proposal of the Government. I have never heard a word said in opposition to the establishment . of a small arms and ammunition factory within these walls when a project of the kind has been advocated during the time devoted to private members’ business. Ever since I entered the Federal Parliament I have been convinced that one of the first steps that should have been taken by the Commonwealth was . towaxds the establishment of a factory of this kind. My anxiety that we should manufacture our own small arms, including bayonets, and also our own ammunition, was caused by the fact that during the South African War, Great Britain, when it was found that she could not herself supply all the rifles required, appealed in vain to France and Germany for assistance in this connexion. Although their arsenals were in full swing no war materiel whatever could be procured fron either of the two countries I have mentione 3. Both positively refused to supply Great Britain ; in fact these countries declined to have any dealings of the kind so long as the South African War lasted. Thisjshould be sufficient to show honorable members the necessity far setting, our house in order and making arrangements for our own Jupply of small arms and ammunition. One day last week we agreed to a vote inorder to secure 25,000 bayonets ;but Ipoint out . that the officer, who was sent bythe British Government to watch events in Japan, has recommended that bayonets be dispensed with in the Imperial Army Before any expenditure isentered upon in reference to bayonets, the Government ought to fully investigate the matter; because it will be of no use our incurring liabilities for the supply of bayonetsunless the Imperial Forces arearmed with the same weapon. The Minister of Defence told us last night that this, item of£32,000, which involves an ultimate expenditure of £65,000, is only for the purppe of securing machinery. Why did thegovernment not tell honorable membersthat this item was for machinery, and not for a small arms factory? How can wi have a factory without a building?
– Is this item not for the purpose of erecting a building?
Mr.PAGE. -The Minister has told us that ittis only for the purpose of procuring machinery.
– A sum of £10,000 more will be required for the building.
– I do not think that £10,000 would be sufficient to provide a building, seeing that much of the machinery will have to be placed, on solid concrete blocks, which will mean a heavy expenditure. The Minister seems to have in his mind a cheap building of galvanized iron ; but I hope that a proper structure will be provided. I have no hesitation in expressing the opinion that the best place for a small arms and ammunition»factory is Lithgow, in New South Wales. In this matter, there ought to be no provincialism ; and I, as a Queenslander, suggest Lithgow as the proper place, because all the material necessary is at hand, and the existing railway communication will make distribution throughout the Commonwealth possible at little expense. In my opinion, the Minister ought to make a statement to the House, telling us definitely the class of building it is intended to erect, and what the estimated expenditure is. I dp not think that a galyanized-iron building would be good enough, especially if we undertake to manufacture ammunition.
– It is not proposed to have an ammunition factory under this vote, but only a small arms factory ; and I think a galvanized-iron building, with a concrete floor, would give all the deared stability. However, that is by the way.
– As the Minister says, that is by the way. But itill I am of opinion that honorable mlmbers ought to be given some information, seeing that we are embarking ona thoroughly new enterprise. We oughtto.benefit from the experience of older countries, and avoid defects that are there to be found. The Minister has told us that the plant it is proposed to procure willbe capable of turning out fifty rifles a day of eight hours, or 150 rifles in a day of three shifts ; and for a peace establishment I should think that thatwas quite sufficient. If not, however, theplant may be duplicated or extended. One of the strongest points in favour of theestablishment of a factory is that the rifts can be made cheaper here than they can be imported.
– Will the rifles made here be as effective as those imported ?
– Why import them?
– I do not see why our rifles should not be as effective if . we have proper machinery. As to the interjection by the honorable member for Melbourne Ports, some people in this city seem to have an idea that nothing imported is good. The fact . that rifles can be made more cheaply in Australia is sufficient argument to insure the acceptance of this item. Sir Edmund Barton once described Australia as a “ brand new nation.” But I found that if a rifle required any repairs, even though it were only a new sight, it had to be sent either to England or America. Fancy a “ nation “ that could not put a sight on a rifle, or re-rifle a barrel ! Notwithstanding that the . Government have stolen my thunder by placing this proposal before us, I feel as proud as any man could to think that the agitation I started when I first entered the Chamber has borne such good fruit in so short a time.
– With the idea of establishing a small arms factory, honorable members on all sides of the House are in accord. It is very desirable that we should have establishments in our midst where war materiel of the kind can be made, because it is obvious that in time of trouble we should run serious risks if we had to depend entirely on over-sea supplies. When we are told that rifles can be manufactured locally, and more cheaply than imported rifles can be purchased, I presume consideration has been given to the fact that the most approved weapons are subject to patent rights.
– There will be no difficulty in that regard.
– I was wondering whether in the event of our establishing a small arms factorv we should have to manufacture a new rifle - to set up a patent of our own - or whether we should be permitted to make rifles according to patterns already approved, or likely in the future to be approved, by the Imperial military authorities.
– Knowing that this point would arise, we communicated some, time ago with the- Imperial authorities, in regard to it. There need be no apprehension about the matter.
– I have no desire to oppose the item, because I think it is well that we should manufacture our own rifles if the necessary facilities can be established here. There is only one other point that’ I desire to bring under the notice of the Committee. I should like to know whether the destination of this, proposed expenditure may be diverted to some other purpose not specifically mentioned in the Estimates. The item reads “ Small Arms Factory, £32,000,” and I understand that the total of £65,000, of which this forms a part, will be required, not for a building, but for machinery to be used in the factory.
– I told the Committee that probably we should not require a -building until next year, when we could take the matter into consideration. This is a machinery vote.
– If it were found that this sum could not be applied to the purpose indicated by the Minister, since it is not specifically mentioned in the item; the vote might lapse. That was the only point on which I desired to obtain some authoritative information.
Item agreed to.
Item 3 - Cordite factory, ^16,000.
– I propose to withdraw this item. I have already explained, in reply to the honorable member for Corio, that the question relating to the supply of cordite, although as imperative as is that regarding the establishment of a small arms factory, is infinitely more intricate. Explosives are in a transition stage. Had any one asked a military expert a year or two ago whether cordite would keep, he would have received a reply in the affirmative ; but there are now serious doubts on the point, or, at least, the reply would be made with qualifications.
– Why confine the item to cordite?
– We have either to store our explosives or to manufacture them, and since there is grave doubt as to the keeping qualities of cordite, we must be in a position to manufacture our own supplies. The honorable member for Newcastle has referred to one of the complexities of the situation. From time to time statements have appeared in the press regarding the use of different explosives. This is a matter relating to the work of Mr. Hake, Chief Inspector of Explosives, who is one of the ablest chemists in Australia. When he goes to the old country he finds his compeers among the ablest men.
– We are lucky to have such an officer.
– We are extremely fortunate. I have had several communications from Mr. Hake, who is now in England. He will not be back for a few weeks, and since I desire to give the House the fullest information concerning this question, I think it wise to allow the item to be withdrawn until I am in a position to do so. I pledge myself to again submit the proposal as soon ,as I receive the information that I desire to place before honorable members.
– But under this item we shall tie ourselves down to the establishment of a cordite factory, and shall not be in a position to make other explosives.
– I have made a note of the point raised by the honorable member and it will receive mv consideration.
– The phraseology of the item ought to be altered.
– If it be necessary to take that step I shall do so. When the matter is again before the Committee, it will be open to the honorable member to indicate what alteration he desires, and I shall be glad to consider any request he may make.
.- I should like to draw attention to the difficulties that have recently arisen in regard to the supply of defective ammunition. Recent experiments made in one of the States have proved that Australian -made ammunition is very defective. I should like to know whether this item is to be confined merely to the manufacture of cordite, or whether it is intended to manufacture cartridges in the factory to be established.
– The Colonial Ammunition Factory is already making cartridges in Australia.
– That is a private enterprise. Has it not been proved that the ammunition supplied by it is very defective as compared with imported ammunition?
– I do not think so. We are making inquiries, and I have been informed that colonial ammunition compares most favorably with the imported article.
– I saw recently in the newspapers a report showing that experiments made with ammunition supplied by the Colonial Ammunition Factory proved that it was defective as compared with some imported . ammunition. The test in each case was made by the same men.
– That was ammunition supplied to the cadets. Inquiries are being made.
– Perhaps the Minister will inform the House of the result of the inquiries he is making on the subject.
– I shall look into the matter.
.- I trust that the Minister will not tie down the Department to the manufacture of cordite alone. If we are to have a small arms and ammunition factory we should be able to make not only cordite, but other explosives. In England there is a laboratory where the flame qualities of powder intended for use in gassy coal mines are tested, and only that which is placed on the permit list may be employed. Inspectors in Australia are now restricting mineowners to the use of powders that appear on the English permit list; but I would point out that since the legislation on the subject relates only to powder used in Great Britain, there is nothing to prevent an inferior article being supplied in the Commonwealth. I believe that the States laboratories have been undertaking some work in the direction of testing such powders, and I think that in connexion with the Commonwealth Sma.II Arms Factory we should have a laboratory where reliable tests could be made. Another point is that cordite is not the only explosive used in rifle ammunition. I believe that in the Russo-Japanese war the Japanese used an explosive known as Shimose, and no one can saw when an Australian inventor may come forward with a superior explosive. If we intend to establish, an ammunition factory, I fail to see why we should restrict this item to cordite. We should be in a position to encourage any Australian inventor of explosives.
– This item is intended merely to establish the principle.
– We should not enter upon this enterprise in a half-hearted fashion. We should have complete works for the manufacture of explosives even if a further sum of £10,000 be necessary.
– I think that we ought to make our ammunition here even if a vote of £100,000 be required to establish the necessary works.
– Quite so. I repeat that in connexion with it there should be established a laboratory at which explosives used in all classes of mining mav be tested. If this were done, many serious mining accidents might Be obviated.
– 1 think that the establishment of such a laboratory would probably follow the establishment of a cordite factory.. We are sure to have in the service men competent to make such tests.
– My desire is that the two proposals shall, so to speak, go hand in hand. This is a matter of interest not only to coal miners, but to those engaged in mining of every description. The appalling mortality in the deep mines of Victoria is, in mv opinion, largely due to the fumes given off by the explosives now used.
– Is cordite used in connexion with mining ?
– No. Dynamite and rack-a-rock are the chief explosives used in metal mining operations: This is a matter to which I have given some thought, and as the present condition of affairs is eminently unsatisfactory to those engaged in mining and quarrying, I hope that the Government will’ give serious consideration to mv proposal.
.- Does the Minister intend to withdraw this item?
– Yes, for the time being.
– I understand that he expects to receive Mr. Hake’s complete report .in about six weeks’ time ?
– Within a few. weeks - perhaps within six weeks.
– Do I understand, then, that the Minister will take no action in regard to the establishment of a cordite factory until the next Estimates are under review ?
– I have already informed the Committee that I regret having to temporarily withdraw the item. When I have had an opportunity of meeting Mr. Hake - probably ‘ in about six weeks’ time - I shall re-submit . the matter to the House. I will also keep my promise to the honorable member in regard to supplying prior information for which he has asked.
– Will the Minister interpose this Question in the middle of the Tariff discussion?
– If we should be in the middle of the Tariff discussion I may not be able to keep to the letter of my promise. But I can assure the honorable member for Corio that I will act as soon as possible after Mr. Hake’s return.
– I am glad that the Minister intends to do something in the direction of establishing a cordite factory in Australia. I have brought this matter up every year that I have been a member of this Parliament. It is more important that we should have a cordite factory than that we should have a factory for the manufacture of small arms and ammunition. I am very pleased that the Minister has promised to take action in this matter immediately upon Mr. Hake’s return to Australia. When ex-Senator Playford was Minister of Defence, he said -
Ministers may find it best to follow the example of Canada, which has no factory, but stores 100 tons of cordite as its regular reserve. They will, however, probably wait until the Military Board has considered a report which Lieutenant-Colonel Irving has written on his visit to Government factories in England.
But when we attempted to obtain Lieut. - Colonel Irving’s report, which was completed in 1906^ we were informed that we should have to await Colonel Bridge’s return from England. We were told -
It is understood, however, that Colonel Bridges, will, .while in England, obtain data from Colonel Nathan, the administrative head of the R.G.P.F. at Waltham Abbey, and this will facilitate an early Ministerial decision.
Colonel Bridges has now been back in Australia about sixteen months, but his report is not yet to hand. A year after his return we were told that Mr. Hake was to be sent to England to inquire into this matter, and now we are assured that the Minister will take action upon his report. I congratulate the honorable gentleman upon having taken at least one step forward in that he has placed a sum upon the Estimates for the purpose. Although I am rather alarmed at the withdrawal of the item, in pursuance of the Minister’s promise that as soon as Mr. Hake returns the matter will be reintroduced, I shall rest satisfied. I commend the honorable gentleman for his action.
– I am glad that these items are being pushed forward, though I do not think there is the slightest necessity for including them in a list of works such as these. Again, I have to complain that the Government have placed the cart before the horse. I agree that these useful institutions ought to be inaugurated at the earliest possible moment consistent with the exercise of that supervision and care which are always sp necessary in the initiation of new ventures. There is no doubt for several reasons about the desirableness of the Government undertaking the establishment of these factories; Amongst these may- be mentioned our distance from the countries where these materials are manufactured - our isolation in every respect from the rest of the world, with all the possibilities of menace which surround us at the present moment. Those are sufficient reasons to give any Government pause with regard to defence matters. Further I hold very strongly that these are questions which cannot Deleft to the ordinary competition of private enterprise, but that the very fullest scrutiny and the best care should be brought to bear upon them, seeing that they affect the nation’s supreme concern so vitally. I remember that a little while ago a great commotion was created in the House of Commons on account of some cordite which had been supplied to the War Office having been proved to be thoroughly defective. The moment that the War Office became aware of this fact, it struck off its list the contractors responsible for the supply of that cordite. It did so without the slightest hesitation ; it forbade them from tendering for any further supplies, and altogether it dealt in the most drastic and minatory way with all concerned in that transaction. Very properly so. I am glad to see that the Government are addressing themselves seriously to the problem of making Australia self-contained in the production of these war materiels. Having said that, may I suggest that they should proceed with this matter in the proper way ? Why, for instance, have no steps been taken to secure suitable sites where these works may be located? When the matter was mentioned last night by v/ay of interjection, the honorable member for Wide Bay immediately began to chide honorable members with their provincialism. I hold that to talk about the selection of sites in connexion with such important! undertakings does not evidence provincialism. I venture to say that the fixing of these sites may make a difference of from ^5,000 to ^10,000 in the construction of the works.
– Or it may make a difference of a few votes.
– I do not know anything about votes. I decline to have anything to do with matters of a provincial character in considering the question of the nation’s efficiency. If better sites for these undertakings can be found in any State than are available in New South Wales, by all means let us establish them there. Upon the other hand, if New South Wales is found to offer the best sites by reason of her resources, in the shape of coal and iron, the works should be located there. This is the one matter upon which we cannot afford to be provinical. Consequently, I do not propose even to indicate where the sites should be.
– Does the honorable member think that the small arms factory and the cordite factory should be combined?
– I am inclined to think that they should not. There is no connexion between them that I know of. I imagine that it would be all the better if the cordite factory were situated at a. little distance from the small arms factory, and for very obvious reasons. My point is that before now a selection of sites for the location of these works should have been made. That is the very beginning of the enterprise. But instead of that having been done, the Minister tells us that if this vote is authorized by Parliament, he hopes that a Committee of the House will be appointed to advise him-
– I suggested that that plan might be adopted.
– I admit that it would be a very excellent method of procedure, but for that very reason it should have been adopted long ago, in anticipation of this vote being authorized by Parliament.
– After the principle has been .affirmed by Parliament we can choose the sites.
– There can be no doubt that Parliament will vote the necessary money for the purpose. If it is only an affirmation of principle which is required, that might have been obtained at any time by submitting a simple motion to the House, instead of asking it to vote the sum of £10,000. Before this money is voted, I think that it ought to be allocated to specific purposes. Those purposes should include the selection of the sites, plans and specifications of the buildings, their output, and probable developments in the future. All these things ought to be known before a vote of this Committee is asked for. But, apparently, the Government desire to proceed in this matter as they have proceeded in other matters.
– The Minister says that it will ta’ke eighteen months to get the necessary machinery.
– The Imperial authorities proceed in a very different fashion. They do not consult Parliament as to whether they shall make a new departure of this kind in connexion with the defence of the Empire. If they did so, the Empire would have been lost long ago.
– They have responsible government there.
– That is precisely the point. Of course, we, who have much smaller concerns to manage may put aside such trifles as responsible government. Moreover, it is very convenient for the Government to be able to throw responsibility upon the House,” and to await its direction. But I venture to say that it is about time the Government “ plucked up” its courage a little, and particularly in connexion with defence matters. Upon that question, of all others, there should be no hesitancy in shouldering the responsibility which properly attaches to them. I would very much prefer that the Minister should not now proceed with these items, but that he should proceed at once with the projects which he has in hand, and as to which the House wishes him all the success that can possibly attend an individual occupying his position. These works ought to have been provided for long ago. There ought to be the greatest possible vigour exhibited in the prosecution of these undertakings to the point of success, so that we may be self-contained - well within ourselves and well within our resources - able to do all that is necessary to make our Army well found in every respect, so that it. may meet the foes which may descend upon us at any time. These are urgent matters, and because they are of supreme importance the Minister ought before to-day to have instituted inquiries as to the sites, their equipment, and every other detail connected with them. I should like to know whether the honorable gentleman contemplates the appointment of a Committee to assist in the speedy selection of sites? It is of the utmost importance that we shall know where this money is to be expended, and where the works are to be located. The selection of sites may make a great difference in the cost of construction. Above all things, I hope that no provincialism will be allowed to creep into this matter. It should be far above all our party warfare - far above our ideas of what is due to any particular State. I decline to discuss it from any other stand-point, and I hope that the Minister will carry out his suggestion to the Committee so that the necessary sites may be speedily chosen, and these urgent works proceeded with, with the utmost despatch.
.- I have no desire to prevent the postponement of this item, but I wish to understand exactly what we are doing. I take it for granted that if we agree to its postponement the whole of the public works contained in the schedule will be “hung up” until it is further considered. Some of these works are of an urgent character-
– I would point out to the honorable member that if this item be not dealt with now, that will not prevent other resolutions being reported to the House, or affect the Bill founded upon these resolutions.
– I understood the Minister to say that he intended to bring this matter forward again in six weeks’ time.
– The item may be allowed to drop just as the item of “ harbor and coastal defences “ - which was not put from the Chair - was allowed to drop. The Minister will then be afforded an opportunity of dealing with it at a later stage. But with respect to all other items a Bill can be introduced covering the resolutions which have been agreed to.
– I wish to ask whether there is anything before the Committee. I did not hear anything stated from the Chair, and I desire to know whether we shall be in order in discussing the proposed expenditure upon the establishment of a small arms factory, seeing that it is not before the Committee.
– I understand that the Minister of Defence intends to move item No. 4, which relates to an expenditure upon “ guns, lights, and emplacements for fixed defences.”
Item 4 - Guns, Lights, and Emplacements for Fixed Defences, £50,000.
– With reference to guns, lights, and emplacements for fixed defences, I desire to say that the fixed defences provided for are the forts which protect the principal ports of Australia, and money is also provided to put in order the lights at the approaches to these ports.
– The electric- search lights ?
– Yes. The guns to be bought are 6-inch mark 7 guns.
– Carrying out the recommendations of the Imperial Defence Committee ?
– That recommendation has been considered by Commonwealth officers, and practically we are not departing from it.
– Has the Minister adopted the recommendation to use only 6-inch mark 7 guns?
– The new guns will be 6-inch mark 7.
– That will reduce the gun power of our forts.
– No ; the gun power of our forts will be greatly increased. No gun of superior quality will be removed, and of the inferior guns the worst will be removed first. I do not think that the Committee desires information as to where each gun will be placed. Rather too much publicity has been given in the past to our defence preparations. The officers of the Department have gone into this matter thoroughly, and, in my opinion, the money will be spent wisely.
.- While the explanation of the Minister is satisfactory, so far as it goes, there is much information which ought to be supplied. We were told not long ago that the condition of our forts and equipment was of a most unsatisfactory character, and it would be interesting to know how far .£50,000 will go towards remedying defects other than those connected with the lights.
– £10,650 is to be spent on lights, and the rest of the amount on guns.
– In 1905 the Prime Minister made a statement which formed the subject of, a return subsequently presented to the Senate, in which he speaks of our defences as follows -
Quite certainly we have no vessels belonging to the’ Commonwealth which could be used, even to attempt to protect our coastal trade. The forts, for instance, about our principal cities are.’ in the first place, most of them of antiquated design, and very dangerous to the garrisons who would hold them under the fire of modern missiles. Then the guns in these forts are, many of them, old in type, and some quite obsolete. The Cerberus is merely a floating fort, without speed. The Protector and the other gunboats have all become very much out of date in respect of their armament. Provision for the manning of our forts, with necessary provision to meet inevitable losses in actual combat, is short of our requirements.
I have not heard of the carrying out of works to bring our forts up-to-date, and to render them less dangerous to those who may have to man the guns under the fire of modern missiles. I am doubtful whether £50,000 will do what is necessary in this direction.
– It will not.
– We cannot afford to spend more in one year. .
– I think that we can. It is proposed to introduce a Bill to sanction the expenditure of £250,000 on torpedo destroyers and torpedo boats for the defence of our harbors and rivers, although, in the opinion of naval and military authorities, much more effective defence could be provided by spending a smaller sum on fixed defences. I am not at liberty to mention names, but, in the opinion of gentlemen of considerable military and naval experience, well versed in these matters, our harbors and rivers could be more efficiently protected by fixed land batteries than by torpedo boats and destroyers, or even submarines. In a closed harbor torpedo boats, being able to dash suddenly from cover, against cruisers unable to manoeuvre freely in confined waters, have a much superior chance than on the high sea. Take it then that for the defence of such a harbor as that of Sydney two torpedo craft would be sufficient. At £50,000 each these two craft would entail a capital expenditure of £100,000 and a comparatively large annual outlay for crews and upkeep of ships. Yet six or eight 12-pounder Q.F. guns, mounted in proper positions, would be at least equally effective for defence of the harbor, and their capital cost inclusive of positions would be only from £20,000 to £25,000 and the annual upkeep would be insignificant compared with that of two destroyers.
– Does not the honorable member see that we could not fortify every river ?
– No doubt that is so; but, in reply to the objection that we ^cannot afford to spend more than £50,000 in one vear, I am pointing out that it is proposed to expend an additional £250,600 in constructing a flotilla of torpedo destroyers, whereas the money, in the opinion of the best authorities, could be much more economically and effectively spent upon the erection of fixed batteries. At the same time, the question of employing submarines is worth consideration. I recognise the need for spending money liberally on our defences, but we must see that it is applied in the most effective way, and not wasted upon extravagant experiments, which, in the opinion of the best informed naval authorities, will not give satisfactory results. I put the matter before the Minister, hoping that when he isconsidering how. our forts can best be improved, he will see that a sufficient sum is expended to do what is necessary to make them as up-to-date and effective as possible. I hope that in dealing with this matter he will give attention to the points which I have put before him, and will weigh the relative merits of land batteries and torpedo and submarine defences, having regard both to effectiveness and eco:nomy in initial expense and maintenance. It is better to spend a small sum to obtain good results than to spend a large sum without achieving the end desired.
– I find that last year £6,000 was voted for electric search lights. Has that money been expended ?
– Yes ; I have sent an order to England in connexion with them.
– What is now proposed is an additional expenditure of £10,000 upon lights ?
– Probably that amount will be expended before all the lights have been put in order.
– The honorable member for Lang stated that £50,000 is not enough to spend on our fortifications. But surely the honorable member knows that we cannot utilize all the revenue of the country for the purposes of defence. At the present time we are spending £819,874 on defence works alone.
M,r. Bowden. - I hope the honorable member will, remember that fact when we come to consider the proposed expenditure of £250,000.
– I shall remember all I have said ; and I declare fearlessly that I do not care how much we spend on defence so long as we secure efficiency. I do not desire to see any cheese-paring policy, in reference to defence, but we must have value for our money. If I see that we are not likely to get value, I shall oppose the expenditure as strongly as would the honorable member himself. The- honorable member for Lang has contended that the forts are by no means up-to-date in regard to either construction or armament ; but I remind him that Rome was not built in a day, and that we cannot spend millions on forts in a week or a year. But there has been a policy of drift ; and as a result these forts are inefficient. We have it on the authority of the British Government that the submarine is to revolutionize the whole of the coastal and harbor defences of the old country.
– Captain Creswell is against that idea.
– Surely the honorable member does not pit Captain Creswell against the Admiralty?
– I am simply stating a fact.
– If there were four submarines outside the heads of Port Phillip, would they not, at least, be sufficient to keep vessels, even of the Dreadnought type, far enough from the coast to render them harmless to the forts or the city? Surely we ourfit to take the advice of the experts in the old country, who are practically devoting their lives to this particular phase of naval warfare.
– Unquestionably submarines are a great improvement on destroyers.
– That is an admission. The trouble is, however, that the officers of the British submarines are highly educated, technical experts, such as we have not within the Commonwealth. If the Commonwealth were to decide to adopt submarine defence, we should either have to train our officers on British vessels, or import British officers, and if we adopted the latter course, I can assure honorable members that those officers would not be bossed by any Captain Creswell. Personally, I have no doubt that the submarine will, in the near future, play a most important part in naval warfare. At present the radius of a submarine is 100 miles; but the French Government have in course of construction a vessel with a range of 1,000 miles. Half-a-dozen submarines of the latter type in and around, the harbors of Australia would, I think, be very effective protection.
– The submarine as a weapon is a minor, and not a major consideration in warfare.
– I think the “minor” wouldvery soon reduce most of the “major” to “minor.” I am sure that if the honorable member were on board the Powerful in Sydney Harbor, and he knew that there was a submarine, of the type I have just mentioned, outside, he would not be “ game “ to proceed to sea, and tackle the submarine even though he were on a “major” vessel. Whatever we do in the way of providing land and naval forces, do not let us play with the matter ; even if our defence forces be small, let them be the best and most effective. We are now living practically in a fool’s paradise, and we all know the fact. As I said on a previous occasion, if 50,000 or 60,000 Japanese were to land in the Northern Territory to-morrow, how could we eject them? There is a simple conundrum for honorable members to solve. I have visited the South Head fort in Sydney, and, though I was quite unknown to those in charge there, I had a look round ; and I say candidly, from what I know of fortifications - and I have seen the fortifications at Dover, which were the most up-to-date in my time - that the Port Jackson fortifications are very different from those of which I have had experience. In my judgment the forts at South Head are simply death traps, which would be perfectly untenable under the fire of howitzers.
– Those fortifications were made under the direction of British officers.
– But the fortifications are out of date. As the honorable member knows, in his own profession, the medical man of to-day is very far ahead of the medical man of a hundred years ago. I must say, however, that the forts at Sydnej were, no doubt, suitable for the purpose when they were built ; but the methods of warfare have greatly altered in recent years. I can give an instance of this from personal experience. In 1880, I went through a course of gunnery training at Shoeburyness, and was passed amongst the first six ; but when I went down to the Queenscliff forts, soon after I was ejected a member of this House, I found that every detail, even the fuses, was entirely foreign to me. That gives one an idea how progressive military science is ; and, as a matter of fact, naval warfare is even more progressive. In view of the possibilities of the submarine, I suggest that the Government should “ go slow “ in spending money in this direction. I hope that there is not going to be expenditure on frills, flummery, and finery, or on racing torpedo boats and torpedo catchers for use in Port Phillip. I feel satisfied that the Minister of Defence is on the right track; and if honorable members desire information as to submarines, I can assure them that the honorable gentleman has in his possession some* of the most advanced and interesting books on the subject.. The work of rendering the forts efficient will have to be done gradually, but I have no doubt that it will be satisfactorily accomplished.
.- We are glad to hear the honorable member for Maranoa, who is always interesting even if discursive. The Minister of Defence should be grateful to the honorable member, who has largely clouded the issue raised by this vote, his remarks being more relevant to another item, which applies to the building of an Australian Navy. The Minister of Defence, in reply to an interjection, said that, in asking the Committee to pass this vote of £50,000, he was adopting a proposal of the Imperial Defence Committee. I do not think that the Minister has ever made any statement to the effect that the Government or the Department have accepted the report of the Imperial Defence Committee. It will be news to most honorable members that the adoption of these proposals will mean an absolute revolution in our big-gun practice. Hitherto we have had in Victoria 9.2 guns.
– And the same have been used in Sydney.
– The Minister’s scheme, if the Imperial proposals be adopted, means that we shall have only 6-inch guns; though, as a matter of fact, the Imperial authorities, while deeming 6-inch guns good enough for the Commonwealth, have adopted 9.2 guns as a permanent armament in England. In reply to a further interjection the Minister of Defence said that, with the change of guns, there would be no loss of power a,t the forts. Now, a 6-inch gun will carry only 9,050 yards.
– The distance given to me for a 6-inch mark 7, gun is’ 12,000 yards, or 7 miles.
– The 7.5 gun carries 31,705 yards. According to the report of the Imperial Defence Committee, the 6-inch gun of the latest pattern is accepted by that body as the weapon which best fulfils the requirements. These guns, the Committee state, have a rate of five to six rounds per minute, and a range of 9,050 yards, as compared with the 7.5 gun, the next heaviest calibre, with a rate of only three rounds per minute, and a range of 11,700 yards.
– The 9.2’ gun has a range of 13,800 yards.
– That is the gun used by the Imperial authorities, and the comparison shows a decided lack pf power in the area controlled by the forts with 6-inch guns. The members of the Imperial Defence Committee are authorities ; but the worst of it is that we have so many authorities. When the honorable member for Maranoa indorsed the view expressed by the honorable member for Wilmot, that it would be wise to go slowly, I was reminded of the numberless authorities who have recommended changes in regard to the guns used in our fortifications. In the first instance, Sir John Coode came to Australia and made certain recommendations, and he was followed by authorities from India. One expert recommended that we should build what’ is now known as the Pope’s Eye fort. A sum of £10,000 was expended in making an island of rubble at the point indicated, and ‘it was then found that this work, which had been commenced on the recommendation of Imperial officers, specially introduced to advise us on these questions, would have to be abandoned. The authorities are now at a loss to know what to do with the fort. It might at any time . be turned on our defences at Port Phillip Heads, and I am sure that the military authorities would be glad to get rid of it. We have had expert after expert sent out to advise us, and their recommendations, after all, are merely passing phases of military opinion. Within ten years the whole of our guns at Queenscliff have been changed. With a desire to secure uniformity either 7.5 or 9.2 guns have been placed in position, and the guns formerly in use there have been removed either to Frankston, Swan Island, or South Channel. This alteration was made when Colonel Bingham was in Victoria some seven or eight years ago, and now, if we accept the recommendations of the Imperial Defence Committee, we shall placein position 6-inch guns- with a limited range of fire and a reduced control area. We are for the first time faced with a possible danger, which was not previously thought of. We have now in the Pacific the navy of a nation to which our aggressiveness in connexion with the policy of a White Australia has given some offence, and the officers of that navy, I am sorry to say, in many cases, know more about our forts than we do. It is now more than ever necessary that we should have full gun power at our forts. I can only repeat the advice tendered to the Minister, that he should go slowly, and I believe that he will proceed cautiously- I should like to know whether he intends to accept the recommendation made by the Imperial Defence Committee that we should abolish submarine mines ?
– Certainly not.
– The Government accept that part of the report of the Committee in which the introduction of 6-inch guns is recommended. In the succeeding paragraph we have the statement -
Submarine mine fields at present exist at some of the Australian ports, but this form of defence is being discontinued at all ports in Imperial charge, as a result of the consideration by the Committee of Imperial defence of the general policy of submarine mining in relation to coast defence….. It is therefore recommended that this form of defence should be discontinued in Australia.
The one proposal is the corollary to the other.
– Channels which were previously protected by means of submarine mines are now, according to the Imperial Defence Committee, to be defended bv the introduction of an increased number of 6-inch guns in our forts. The Committee do not think that submarine mines are any longer necessary. The Minister has accepted the second recommendation that “electric lights will be required at most forts to aid the gun defences,” but he has not accepted what appears to be the necessary complement to the other recommendations - the proposal that submarine mines be abolished.
– Would the honorable member take up the submarine mines?
– Certainly not; but ,1 am not in a position to reply to that question, since I have not the information contained in the secret memoranda to which reference is made in the report. The Committee is not in a position to properly discuss this proposal. The Minister has full .knowledge of the facts, and I think he ought to nave told us. in submitting this item, that the Government were adopting a definite scheme of defence, which differed from the system hitherto in force. He ought to have said, in other words, that they now contemplate [T3i] 1 what means, practically, a revolution of our defence system. We ought not to be asked to agree to this vote without having before us definite proposals, which have been considered outside, and particularly by those who are experts in artillery work. We have had from the Minister only two or three casual observations as to a change of policy in regard to our garrison and fort defences. Does this proposal mean that we are to reduce the number of men in the permanent garrison a’rtillery ?
– Certainly not at present. Such a proposal will not be under consideration this year.
– I am pleased to hear that, and to notice that the Estimates provide for the retention of the existing number.
– We must have enough gunners to man our guns, but no more.
– The report of the Imperial Defence Committee was submitted to a local Committee, the members of which had not sufficient courage to make any recommendation. They were asked by the Imperial Defence Committee to suggest a reduction in the number of men at the forts and elsewhere, but not one of them would give way as to the direction in which our forces should be decreased. As we are not in possession of the facts dealt with in the secret memoranda, we are absolutely in the dark in discussing this question, and we can only advise the Minister in the words of the honorable member for Maranoa to “ go slowly.”
– I do not think that the criticism indulged in by the honorable member for Corio is altogether justified since he wholly disregarded the first of these special votes. I believe that there- is on the part of the Government an intention- to alter our system of coastal defence, and I recognise that this item is an evidence of that intention. We are to have a very much larger measure of floating defences- than we have had, and it will be seen at once that, in such circumstances, the necessity of having in our forts guns of heavy metal and large carrying capacity, is not so great as it was.
– The Imperial Defence Committee, in the report which the Minister lias adopted, severely criticised the proposal to which the first of these items relates - that of local coastal defence.
– That is where they are wrong.
– That is a point in respect of which I think we should agree to disagree with the recommendation of the Imperial Defence Committee.
– Why accept part of their proposals if we are -not prepared, to accept the whole of them?
– Surely it is not to be said that because we do not agree with the report as a whole we are debarred from adopting any part of it which we think will be of value? I hold that the Government have done well in submitting these proposals. When the honorable member for Lang described the proposed vote as inadequate - and I agree that it is - I interjected that it would take some time to carry out the new. works. In the circumstances, it would be idle for the Government to ask Parliament to vote a greater sum than is required in respect of the expenditure for the current year. Nothing has yet been done in the direction, of carrying out these works, and I doubt whether we shall be able, before the close of the present financial year, to spend the whole of the £50,000 which we are now asked to vote. When we take into account the alteration in policy which is involved in the defence scheme of the present Government, we must at once agree that they have acted wisely in providing in the Estimates now before us for only a limited expenditure. The honorable member for Maranoa described the South Head fortifications as death traps.
– They were, and I believe that thev still are death traps.
– When I inquired, by way of interjection, whether they were not constructed under the advice and supervision of Imperial experts, the honorable member replied that they were, but urged that the officers in question should not be held blameable for the present situation, since, during the last quarter of a century, methods of warfare had materially changed. That reply, to my mind, does not meet the case. 1 agree that there have been within recent years marked changes with, respect to guns and ammunition, but, so far as fortifications are concerned, there have not been such sweeping revolutions as the honorable member’s remarks would imply. In different parts of the world very many fortifications which may be described as death traps have been constructed, but surely it should be possible for those who have devoted their lives to the study of these questions to avoid such mistakes. Since we took over the defences of Australia, some six years ago, it has been found that the whole system, from top to bottom, is utterly inadequate and unsuited to our means and requirements. Surely the responsibility for that state of affairs does not rest with the Commonwealth. In making the changes which the honorable member for Corio described as amounting to a revolution of our defence sy’stem, it would be well to proceed cautiously. We ought not, at the outset, to undertake too much. There may be a division of opinion in this House as to what is the right policy of defence to adopt, but I think that honorable members whose views on this question are diametrically opposed to those expressed over and over again by the present Government would be found promulgating a very similar policy if they occupied the Treasury benches. The suggestion that fixed defences are sufficient in time of need is one that will not bear a moment’s consideration. Having regard to the enormous carrying power of modern ordnance, and to the’ fact that those whom we have most to fear will come from over sea, equipped, not so much for the acquisition of territory, as for the destruction of commerce and property, it must be recognised that we must have not only fixed land defences? but a system of defence which will at all events extend some distance from land so as to meet the enemy. In these circumstances, I hope that the Committee will approach the first of these items in the spirit in’ which I believe it has been submitted by the Government. I am sure that there is on the part of the Ministry only a desire to secure the most effective protection for Australia. The passing of this ‘ item will improve the present position, but, in the absence of item No. 1, it would be inadequate. Taking the system as a whole, it will be found that we have offered for our acceptance a policy ‘ of defence which should be sufficient for Australia for the next ten years.
– I rise with a good’ deal of diffidence to discuss so highly technical a question as is that of defence, and particularly that branch of defence with which the item deals. I understood the Honorable member for Corio to object in toto to the report of the Imperial Defence Committee. Seeing that we have appealed to the highest court in the Empire so far as military matters are concerned, I think that we ought to pay some attention to its report. Personally, I congratulate the Minister upon his intention to give effect to at least a portion of that report. The question of the calibre, weight, and general efficiency of the guns mounted at our various forts is one upon which I do not feel competent to express an opinion. But I recollect that in regard to the advisability of mounting 6-inch mark VII. guns at Sydney Heads, those who are in authority there - it is almost an impertinence to’ say so - agree with the Imperial Defence Committee. When I raised the question of whether 9. 2 -inch guns ought not to be mounted there, in order that we might be in a position to meet an attack by similar guns, it was pointed out that the 6-inch mark VII. guns had almost as great a range as the 9.2-inch guns, whilst their rapidity of fire was so much greater that it added considerably to their efficacy. When we recollect that the guns of an attacking force would be required to cover a much longer range before they could reach Sydney, the fact that the 6-inch mark VII. guns have a less range than guns of a higher calibre is considerably discounted. I do not feel capable of forming a very w;eighty opinion upon this question, which is a highly technical one, but I am satisfied that the views expressed by the Imperial Defence Committee in their report, are. views which we shall do well to follow. There is nobody in the Defence Department at the present time who is capable of successfully criticising .the report of that body. For these reasons I intend to support the proposal of the Government, and I again congratulate the Minister upon having, so far, followed the opinions expressed by that Committee. There is just, one other matter to which I desire to direct attention. I refer to the very few hands who are employed in connexion with our fixed defences, and the artillery forces generally, in Sydney. We have, I understand, about sufficient men to work the guns in time of war - I am taking into consideration not only the permanent artillery, but the militia force - without making any allowance for losses caused by disablement from wounds, and without providing reliefs and men to serve the ammunition. When this money is being expended, I think .that the Minister should bear in mind this very serious aspect of the case, with a view to seeing that this branch of’ the forces is considerably strengthened both in men and guns so far. as Sydney is concerned.
– I should not again rise to address the Committee but for the criticism which has been levelled at me by the honorable member for Maranoa, owing, I think, to a misunderstanding on his part of the position that I take up.
– I did not condemn the honorable member.
– I wish to make my position perfectly clear. From the remarks of the honorable member for Laanecoorie, I gather that this proposal forms part of a scheme connected with the general defence policy of the Government, and that the principal items of expenditure upon coastal and harbor defence will be discussed at a later stage in connexion with proposed naval developments, presumably in the direction of providing for the construction of torpedo boats and destroyers. That is just what 1 fear, and thai; is why I think it would be well for us to have a general statement by the Minister as to the defence policy of the Government before we authorize this expenditure.
– A statement in regard to the proposed expenditure of £250,000?
– A statement in regard to the whole expenditure that we shall be called upon to authorize, and of which the £50,600 that we are now discussing, presumably, forms a part. We do not know whether, in voting this- money, we shall be assisting to develop a policy which will meet with the approval, or the disapproval, of Parliament. To that ex: tent, we are placed at a very great dis-‘ advantage. If, instead of developing bar land batteries for the protection of our harbors and rivers, the Government propose, at a later stage, to expend £250,000 in the construction of torpedo craft and torpedo boat destroyers, I am afraid that they will be asking us to commit ourselves to a policy which will prove a wasteful one in the end, besides being a very ineffective one. If we are going to expend money in the direction of naval equipment for the protection of our harbors and rivers,, and if we are asked to choose as between torpedo boat destroyers and submarines,- I shall unhesitatingly support the latter as being a more effective and reliable type of vessel. If the Government intend to rely upon Captain Creswell’s scheme for their general system of harbor and river defence, I would point out that that scheme has been denounced by the Imperial Defence Committee in their report as one which is -
Based upon an imperfect conception of the requirements of naval strategy at the present day and of the proper application of naval force.
In the face of such severe condemnation, it seems strange that the Government should persist in a policy of that kind. In discussing this matter,. I may, perhaps, be permitted to quote a few remarks from a report supplied by Captain Klado, late flag captain . for Admiral Rhodjestvenskey, in his account of the battle of Tsushima. Speaking of the attacks by torpedo craft, he states -
Such attacks on ships unharmed by gun fire and having room to manoeuvre have little chance of success. This was proved in the battle.
– What has that to do with the item under consideration ?
– I understood from the remarks of -the honorable member for Laanecoorie that the vote of £50,000, which we are now considering, really forms part of a vote which we shall be asked to sanction at a later stage to give effect to the general defence scheme of the Government.
– I said that I. hoped that it formed part of such a scheme, but it is a matter upon which I have no personal knowledge.
– I thought that, perhaps, the honorable member was speaking with some knowledge of the Government policy. Under the circumstances I shall not attempt to make any further quotations because I recognise that I should not be strictly in order. Before concluding, I wish to say that if honorable members are given no alternative but to choose between torpedo boats and submarines; I shall certainly give my support to the latter type of vessel. But I do not, in the absence of fuller information than is at present available, commit myself to vote for submarines. I will first look more fully into the subject.
– In regard to the question of submarine mines, those already in existence will not be removed for the time being. Considerable misapprehension has been exhibited bv honorable members as to the Imperial view of the utility of these mines. So far as T can gather from the literature upon the subject, an alteration of opinion appears to- be already setting in with regard to the usefulness of submarine mines.
– And that within fifteen months.
– I remember that Mr. Wyndham stated some time ago that a nation might dispense with submarine mines when it had something else to take their place. Consequently, they may be dispensed with in a well-protected port, whereas it would be unwise to do away with them in a badly protected port in Australia. That is a common-sense view of the matter, and, after all, these questions must be governed by common sense. With regard- to. the 6-inch mark VII. gun, it is admittedly a good weapon. I have already instructed the officers of the Department that the worst guns are to b.e discarded first. They will not dream of discarding a 9. 2 -inch gun with a view to substituting for it a 6-inch mark VII. weapon.
– Are there any muzzleloading guns in the service?
– There are, but they are not service weapons.
– There are some upon the Cerberus.
– There are muzzleloading guns in several of the forts, for the simple reason that it is as easy to leave them there as to remove them.
– The Department might get rid of them for display in parks.
– That is all that they are fit for. I am obliged to the Committee for the consideration which has been extended to the item.
– I desire to ask the Minister whether it is intended to fortify Townsville and Albany ?
– The fortifications of Townsville and Albany do not enter into consideration under this vote. No expenditure upon guns for mounting ‘ at those ports is proposed at present. “ My own view is that for the time being they should be allowed to remain as they are. We ( should do the more important and pressing work first, but it is probable that, as those ports are situated close to a great passing traffic, and with a long distance intervening between them and the. next protected ports, Australia will find ‘ it necessary to maintain forts at these places for all time.
Item agreed to. ,
That there be granted to His Majesty to the service of the year 1907-8, for the purposes of Additions, New Works, Buildings, &c., a sum jiot exceeding£686,824.
– I beg to call attention to the state of the House. [Quorum formed.]
Motion (by Sir William Lyne) agreed to-
That the Standing Orders be suspended in order to enable all steps to be taken to pass the Appropriation (Works and Buildings) Bill, 1907-8, through all its stages without delay.
In Committee of Ways and Means:
Motion (by Sir William Lyne) proposed -
That towards making good the supply granted tu His Majesty for Additions, New Works, Buildings, &c., for the year 1907-8, a sum not exceeding£’686,824 be granted out of the Consolidated Revenue Fund.
. -It will be recollected that last night I called in question the phraseology used in the item passed to make provision for the acquisition of a site for Commonwealth offices in the Strand,. London, and the more I think over the matter, the more I am convinced that not a fraction of the money will be properly spent in acquiring the site, because it was voted “ towards construction of a building.”
-i do not suppose that it will be spent.
– Then there was no need to vote it. Under section 32 of the Audit Act, the Auditor-General must find that the money is not legally applicable to the purchase of a site, and if he is alive to his duty, as I believe him to be, must take exception to the expenditure of any part of it forjhe acquisition of a site.
– He cannot do so if we do not spend it.
– I am glad to hear that it is not to be spent.
– I did not say that it will not be spent. I made an explanation in regard to the matter last night.
– 1 am aware of all the circumstances, but I submit that the honorable gentleman has no right, except in a case of supreme urgency, which does hot now exist, to adopt an illegal courseto get himself out of a difficulty.
Question resolved in the affirmative.
Resolution reported and adopted.
That Sir William Lyne and Mr. Groom do prepare and bring in a Bill to carry out the foregoing resolution.
Bill presented by Sir William Lyne, and passed through all its stages.
– I move -
That this Bill be now read a second time.
The object of the measure is twofold; it is designed to remove the anomaly of having two final co-ordinate Courts of Appeal for the interpretation of the Constitution in- ‘certain specific matters, and to establish the High Court as the interpreter of the Constitution in the position in which Australians believed it to be placed when they voted for the acceptance of that instrument. I desire, in the first place, to briefly outline the circumstances under which the anomaly to which I have referred became apparent. Early in the history of the High Court the interpretation of the Constitution in connexion with a Tasmanian Act, imposing taxation, came before it, and it then laid down, in the case of D’Emden v. Pedder, 1 C.L.R., page 91, the fundamental rule that -
If . a State attempts to give its legislative or executive authority an operation which, if valid, would fetter, control, or interfere to any, the smallest extent with the free exercise of the legislative or executive power of the Commonwealth the attempt, unless expressly authorised by the Constitution, is invalid and inoperative.
The Court held that the Commonwealth and the States are independent and sovereign within the ambit of their, respective legislative and executive authorities ; that the Commonwealth cannot interfere with a State in the exercise of its governmental functions, and that a State cannot interfere with, impede, hinder, or control the Commonwealth in the exercise of its sovereign jurisdiction. The question then arose as to whether the salaries of certain, officers of the Commonwealth were liable under the Income Tax Act of Victoria, and in Deakin v. Webb, 1 C.L.R., page 585, the Court applied the rule laid down in D’Emden v. Pedder, holding that such salaries were exempt from taxation by a State.
– That decision may have been good law, but it was very unfair to the States.
– The’ principle of interpretation is sound and proper. The Court re-affirmed its previous decision, and, applying it, held that -
An Income Tax Act” of a State, in so far as it attempts to tax the salaries of officers of the Commonwealth, is within the above principle.
Subsequently, Mr. Justice Hodges, of the Supreme Court of Victoria, gave leave to appeal to the Privy Council from a decision in which the rule of interpretation laid down by the High Court had been followed. That case was not fully argued before him, certain sections only being mentioned. The matter then went to the Privy Council.
– Was there no collusion. .in that case?
– In the petition for leave to intervene it was mentioned. The case certainly was- not argued before the State Court. ‘
– The right to go to the Privy Council was argued.
– It was referred to. Professor Harrison Moore referred to the sections of the Judiciary Act; and the Judge himself, in his judgment, practically says his attention was drawn to them.
– But the matter was argued.
– If the honorable member desires I shall give the quotation; but it really does not matter whether the question was fully argued or not.
– Mr. Justice Hodges said he got very little assistance from the counsel for the appellant.
– I think Mr. Justice Hodges referred to the fact that the case was not thoroughly argued. However, his Honour gave leave to appeal, and the case went to the Privy Council. The case was argued before the Privy Council, and the result was a judgment which conflicted with the decision of the High Court of Australia on a question of the interpretation of the Constitution.
– Does the AttorneyGeneral understand the reasoning of the Privy Council?
– The reasoning of the Privy Council has been criticised adversely by several authorities. However, I do not desire to go fully into that matter at this stage, but merely to trace the history of the case for the information of the House.
The question came up again in New South Wales in the case of The Commissioners of Taxation, N.S.W., v. Baxter, 4 C.L.R.,. p. 1087. The New South Wales Commissioner of Taxes brought an action against the Collector of Customs in Sydney; and the District Court Judge followed the decision of the Privy Council as against thedecision of the High Court. The case then came on appeal before the High Court, which held that this was one of the particular questions, which, under section 74 of the Constitution, are intrusted to the HighCourt of the Commonwealth for decision. The High Court held that they were bound to give an independent interpretation on the question submitted to them ; and they re-affirmed their previous’ decision in Deakin v. Webb. The High Court affirmed their rule of interpretation;, and I think that any one who carefully studies the principles of the Constitution,, will find that the rule of interpretation laid down by the High Court is clear and intelligible, and, in the words of Chief Justice Marshall, a rule which is both safe for the Union and safe for the States. It was a decision which recognised that, in interpreting the Constitution the grant of powers respectively to the Commonwealthand the State, necessarily implied, as a consequence, the complete sovereignty of each, within its own respective jurisdiction. That rule of interpretation was adopted in the United States case of McCulloch v. Maryland, 4 Wheat., 316. The rule was applied later on- in the case of Dobbins ;v. Commissioners of Erie County, 16 Peters, 435, in which it was held, as in our ownCourt, that Federal officers were not liable to State taxation. In the case of The Collector v. Day, 11 Wallace, 113, and in a! still later case it has been held that Congress had no power, by its legislation, tr> interfere with the sovereignty of a State.
– That decision is not quitein accordance with Mr. Justice Marshall’sprimary judgment’.
– At any rate, that wasthe decision of the Court, and in the cases the Judges give very cogent reasons. I do not wish to take’ up the time of the House with prolonged quotations, but the Justices pointed out the necessity for the rule, as applied to the Commonwealth, and, on the other hand, they held that, inasmuch as it is necessary for the Commonwealth to possess such protection, so it is absolutely essential that the
States shall have corresponding protection. The same principle has been followed in the United States in a very much later decision in the case of Ambrosine v. United States, 187, U.S.R., 1. That decision was given in 1902 by Chief Justice Fuller, as follows -
The general principle is that as the means and instrumentalities employed by the general Government to carry into operation the power granted to it are exempt from taxation by the States, so are those of the States exempt from taxation by the general. Government. It rests in the law of self-preservation, for any Government, whose means employed in conducting its strictly governmental operations are subject to the control of another and distinct Government, exists only at the mercy of the latter. lt is there pointed out distinctly that the rule which applies to the Commonwealth for the preservation of its powers and jurisdiction, is absolutely necessary also in the case of the States. The High Court of Australia realized that this rule was one of mutual application.
– Did they do so unanimously? Did not M.r. justice Isaacs lay down a different doctrine?
– No, not in the case to which I am going to refer. In Baxter’s case, three of the Justices re-affirmed the decision which had been previously given in ‘ Deakin v. Webb; but Mr. Justice Isaacs, while re-affirming the rule of interpretation as laid down in D’Emden v. Pedder, and the necessity for such a rule as was laid down in the case of McCulloch v. Maryland, said that it did not apply in the particular case before the Court. Mr. Justice Isaacs agreed on the interpretation of the Constitution, but disagreed on several points with the reasons given by the Privy Council, and held that Commonwealth servants were not exempt from taxation by the States. Mr.’ Justice Higgins disagreed entirely with the decision, of the Court.
– Did not Mr. Justice Isaacs hold that a State is entitled to tax Commonwealth servants like the rest of the State’s citizens?
– Yes, Mr. Justice Isaacs held that.
– That was not reaffirming the decision of the High Court.
– Mr. Justice Isaacs reaffirmed the necessity for such a rule of interpretation as was recognised in all the cases by the High- Court, because, as he pointed out in his judgment, it would be impossible to have two Governments carrying on administration over one territorial area unless there were some rule under which the sovereign powers of each body were respected.
– Mr. Justice Isaacs agreed with the constitutional view, but not with its application to the facts..
– Exactly ; he agreed with the rule of interpretation, but not with its application in this particular case. Mr. Justice Higgins held a different view altogether. I was pointing out that the High Court recognised the necessity for such a rule of interpretation to safeguard the interests of the States. The point arose in the case of the Federated AmalgamatedGovernment Railway and Tramway Service Association v. The New South Wales Railway Traffic Employes Association, 4 C.L.R., 488. There was a dispute between two unions in respect to registration, and the point was referred to the High Court as to whether the Commonwealth Parliament, under its power to legislate with reference to conciliation and arbitration- had power to include in that legislation railway servants employed by the States authorities. The Court held that the Commonwealth had no such power - that any such legislation would be an interference with the powers of the States. The Court applied the converse of the rule in D’Emden v. Pedder, and held that what applied to the Commonwealth and its jurisdiction applied also to the State in its jurisdiction. The State Government in this particular instance called to. their aid the rule of interpretation, which in Baxter’s case they were disputing.
– In all these matters, was the Court not depending more on American than on English precedent?
– There is no English precedent to- guide the Court. The British Constitution is not a written Constitution, though there are certain portions which have been embodied in statutory enactments and charters. In. Australia, however, we have a written Constitution.
– And the Federal Constitution.
– And the Federal Constitution. In England, there is really no decision exactly in point.
– Still the question remains how a British dependency can be governed by decisions in a foreign country.
– A British dependency is not dominated or ruled by a foreign Government in this particular matter.
– But the Court is following foreign decisions.
– Not at all.
– The Court” said it was not bound by those decisions, but simply took them for guidance.
– Exactly ; just as”, in England the Courts pay attention to the decisions of the United States Courts in the matter of insurance. In the United States, the law of insurance has been more fully developed than in any other country, and the English Courts, while not necessarily following American decisions, pay that respect which is due to a great tribunal that has had years of experience, in the interpretation of a particular branch of law, and, if the reasoning commends itself, the decisions are adopted.
– Some of the English common law has been embodied in United States Statutes.
– And when, for instance, the United States embodied in its law the Statute of Limitations or the Statute of Frauds, it so held that of necessity all rules of interpretation which have grown up around the particular Statute should also be adopted. That is the principle which the High Court, has ap- plied in the interpretation of the Commonwealth Constitution. The position now is that there are two co-ordinate Courts capable of giving different decisions, and each is an ultimate and final Court. In a matter in which we require above all things certainty, we have uncertainty.
– Are the Courts coordinate on every question?
– Not on every question, but they are in regard to these particular questions.
– I always understood that the Privy Council was still the superior body.
– The Privy Council in many respects is superior, but, as has been pointed out by an accepted authority, under the Commonwealth Constitution there has been created, for the first time in the history of an Empire, a Court with the peculiar power to give decisions of its own which are not subject to appeal to the Privy Council unless the High Court sees fit to allow an appeal. That being so, it is highly desirable that the anomaly should be removed - that a suitor should not be able to bring an action in one Court and get one decision, go to a second Court in another action and get another decision. The question is how can this anomaly’ be removed. Fortunately, the Constitution has been so enacted that within its terms we have power to remove the anomaly, by excluding from the State Supreme Courts, from the judgments of which an appeal lies to the Privy Council, matters of Federal jurisdiction. It was pointed out bv some of the Justices of the High Court that Ave have this power. I shall read one passage from the judgment of the majority read by Chief Justice Griffith, as it appears on page 1114 of the report in volume. 4 of the Commonwealth Law Reports -
It is clear that by the exercise of the power conferred by section 77 the Parliament of the Commonwealth could have withdrawn the cognizance of matters arising under the Constitution, or involving its interpretation, altogether from the Courts of the State, and so have drawn them’ within the sole cognizance of Federal1 Courts, with a consequential appeal to the High Court, and prohibition of appeal to the Queen in Council, except in the specified cases.
The Chief Justice, on refusing the certificate, later on said, when this question of conflict was pointed out to him -
There are two ways of escape, quite easy and both open. One is the exercise by the Federal Parliament of its powers under section 77 (a) of the Constitution, which can be done in variousways. One way would be by making the appellate jurisdiction of this Court exclusive of the appellate jurisdiction of the State Supreme Courts in some or all of the matters which together are called Federal jurisdiction. They may exercise that power in full or limit it to any class of those matters.
This was indorsed by Mr. Justice O’Connor. It is clear that under the Constitution, we have the power to take from the States Courts this particular class of cases.
– Although the Chief Justice expressed the opinion quoted by the honorable member the question has not been. decided.
– It is not questioned.
– Mr. Justice Higgins said that he preferred to withhold a definite opinion on the question.
– His Honour has “not expressed a doubt that we have “power to exclude this particular class of cases from the jurisdiction of the State Courts:
– Probably that is so, but the question has not been decided.
– I think it is clear that, under sub-section 2 of section 77, we have power to exclude these particular cases from t the Jurisdiction of the States .Courts.
– We are not certain that we have that power.
– Section 74 of the Constitution deals with the classes of cases which we are excluding from the State’ Supreme Courts under this Bill. It provides that no appeal shall be permitted to the Queen in Council from a decision of the High Court upon -
Any question, ‘howsoever arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States.
These are the only classes of cases which, under this measure, we propose to exclude from the State Supreme Courts. I ask honorable members to remember that we are really under a Federal system of Government, and that there are three things which are essential under any Federal system. In the first place, we must have “ a written supreme Constitution in order to prevent disputes between the jurisdictions- of the Federal and State authorities.” In the second place, there must be “ a distribution of powers between the Central or Federal Government arid the Governments of the several States which comprise the union, and probably, also, among the various parts of the Federal Government.” Thirdly, there must be *’ a Supreme Court charged with the duty of interpreting the Constitution, and enforcing obedience to it by the organs both of the Federal and State Governments, and absolutely free from the influence of both.” Since we are living under a Federal Constitution, by which we have powers distributed among the Commonwealth and the States, and shall have conflicts arising as to whether the Commonwealth or the States have. a particular power, it becomes absolutely essential that we should have one Court, which shall be the interpreter of the Constitution. It is absolutely necessary that there should be only one Court, because questions arising as to the respective powers of the Commonwealth and the States are not trivial or unimportant. They are fundamental questions, striking at the very foundation of our constitutional government. The position is the same in the United States of America.
– How long would it take to undermine our system of govern ment?
– At present we are building up. a system of government. I am concerned .not so much with a Question of destruction as ith one of construction.
– We are more immediately concerned with the construction of a Tariff.
– I am afraid that that remark is irrelevant. Living, as we are, under a Federal Constitution, by which these powers are distributed, it is absolutely essential that there should be a Court to interpret them. The question! is what Court shall be the interpreter? Shall it be an Australian Court, or the Privy Council across the sea? At the Convention the ideal held by the delegates was that there should be in Australia an Australian Court for the interpretation of Australian questions. It was realized that questions as to the distribution of powers of government between two different sovereign bodies created by the people were of purely Australian interest, affecting no other part of the Empire. It was realized also that Australian Judges who were accustomed to our own political system, who were familiar with the history of Australian conditions, who understood the aims and aspirations and ideals of Australian people, and who had lived through the stress and strain of our own political life, would best interpret such questions. That was the idea we believed we had carried out. It was recognised and realized that the High Court was to fulfil, under the Australian Constitution, the same functions which the Supreme Court of the United States fulfilled under the Constitution of that country, and would become, in a sense, the guardian and the interpreter of the Australian Constitution. Dicey, in the 6th edition of his .work on The Law of the Constitution, page 431, refers to the position of the Australian High Court as the interpreter and protector of the Constitution -
Lastly the Law Courts, and especially the Federal Supreme Court are, as in the United States, the guardians of the Constitution for the Courts are called upon in any case which comes before them for decision to pass judgment, should the point be raised, upon the constitutionality, or, in other words, upon the validity, under the Constitution, of any Act passed either by the Parliament of the Commonwealth or by the Parliament of, e.g., Victoria. That this duty is laid upon the Courts is not indeed expressly stated in the Constitution of the Commonwealth any more than in the Constitution of the United States, but no English lawyer can doubt that the Courts,, and ultimately the Federal Supreme Court, are intended to be the interpreters, and, in this sense, the protectors of the Constitution.
– In 1900, he endeavoured to get things put on a proper basis.
M!r. GROOM.- But the paragraph I have quoted was written at a later date. Dicey was then looking at the instrument of government, at the whole scheme of our Constitution, and comparing it with the Constitution of the United States. He then came to the conclusion that the High Court would be the guardian and the .interpreter of our Constitution.
– Harrison Moore, in his work on the Constitution, expresses the same opinion.
– It is obvious, when we remember that Australia, in framing a Federal Constitution, followed, not the Canadian system, under which there is an attempt to make an exclusive distribution of powers between the Dominion Government and the Provinces, leaving the rersiduary power to the central Government, but the United States system, by which enumerated powers are delegated to the central authority, and the residuary powers are left to the States. We followed the American Constitution in establishing a High Court of Justice, and I think that every one connected with the framing df the Australian Constitution believed that the High Court was to be a truly Australian Court, destined to be the interpreter of our Constitution.
– - I expressed the hope that it would be, but thought that we were making a blunder in our drafting of the Constitution Bill.
– I shall refer later on to the attitude which the honorable member took up.
– That was before its provisions as to appeals were altered in England.
– Quite so. Here we have a constitutional writer criticising our system, referring to the High Court of Australia as being ultimately the interpreter, and in this sense the protector of the Australian Constitution. When the draft Bill had passed through the Convention, and Sir Edmund Barton was moving, that it be distributed among the whole of the people of Australia, he referred specially to the position in which the High Court would be placed, saying -
Another guarantee of the preservation of the Constitution until the electors themselves choose to change it is contained in the’ provision that trie interpretation of the Constitution by the High Court is .fo be final. Qf course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of thisConstitution, the principles which it “embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians. I think it is right and’ fit that the highest Court of Australia should be left as the guardian of the expressions of the people and the- sole body to determine final 1 y what the people meant when they used thoseexpressions.
He then proceeded to refer to the casesin which there would be an appeal. Sir Edmund Barton was then speaking practically on behalf of the Australian people in reference to the terms of the Union which had been adopted by the Convention. We know, of course, that the clauses dealing with appeals to the Privy Council were subjected to several modifications, but if we look at the history of those modifications, we shall see that in each instance the ideal was still entertained that there should be an Australian Court of Appear upon constitutional questions. It was ad.mitted, even by the Home authorities,that the aspirations of the Australian people that they should have their Constitutioninterpreted by an Australian Court was a legitimate one.
– But aspirations do not make law.
– They lead to law. The aspirations of the Australian people for democratic progressive legislation will, I hope, lead to such legislation.
– I wish to know how this Parliament can pass a law which the Privy Council will think sufficient to justify .a change of opinion on its part?
– I hold that this Bill does not seek to bring about an alteration of any opinions that have been given by the Privy Council. Its aim is to take awa.v one of the channels of appeal now leading to that tribunal.
– The question is whether or not we can touch -the matter?
– I contend that under our Constitution we have power so to legislate.
– I am familiar with the argument, but I doubt whether the Privy Council will consider that any law we may pass will curtail its power to entertain an appeal from the decision of a Court of one of the Dependencies.
– We are taking away jurisdiction from the State Supreme Courts to determine an action.
– That very question will come before the Privy Council.
– Some oi the eminent Justices who constitute the High Court are of opinion that we have power to exclude this jurisdiction from the States Courts. I wish now briefly to refer to the history of section 74, and to make one or two references with a view to showing that the desire of Australians to have an Australian Constitution interpreted by an Australian Court was admitted to be a legitimate desire upon their part. When this particular provision came before the Convention, in the first instance, it was adopted in the following form: -
No appeal shall be allowed to the Queen in Council from any Court of any State or from the High Court or any other Federal Court, except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of her dominions, are concerned, grant leave to appeal to the Queen in Council from the High Court.
The effect of that clause would have been to absolutely prohibit all appeals from the States Courts to the Privy Council, and to impose an absolute prohibition upon all appeals from the High Court to the Privy Council, except in certain cases in which public interests were involved. At the Melbourne session of the Federal Convention, that clause was altered to read -
No appeal shall be allowed to the Queen in Council from any Court of any State or from the High Court or any other Federal Court, except that the Queen may, in any matter not involving the interpretation of the Constitution of the Commonwealth or of a State, or in any matter involving the interests of any other part of Her Majesty’s Dominions, grant leave to “ appeal to the Queen in Council from the High Court.
That is to say, it was decided to allow an appeal to the Privy Council from the High Court, but not in cases involving the interpretation of the Constitution. In other words, an appeal lay to the Privy Council in all other cases, and also in cases involving the interests of any part of the British Dominions outside of Australia. The clause was finally redrafted by the Drafting Committee to read -
No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests. or some part of Her Majesty’s Dominions, other than the Commonwealth or a State, are involved.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of
Her Royal prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. But the Parliament may make laws limiting the matters in which such leave may be asked.
Unfortunately, in this final draft - as was pointed out by the honorable member for Angas - certain vital words were unintentionally omitted. I think that the honorable member moved an amendment to reinsert them, but unfortunately it was not carried. The words omitted were -
From any Court of any State or from the High Court or any other Federal Court.
By the unintentional omission of these words an appeal was left open from the decision of a State Court to the Privy Council. The undoubted intention of th-3 framers of the Constitution was that appeals from States Courts to the Privy Council should not be permitted, but although the prohibition of appeals was thus removed, this Parliament was still clothed with the power to exclude States Courts from exercising jurisdiction in certain matters’.
– Will this Bill have the effect of rectifying that omission?
– It will take away’ from the State Supreme Courts any jurisdiction in these matters, so that an appeal shall not lie from them to the Privy Council.
– But will it have that effect?
– It will have the effect of making the High Court the final interpreter in questions inter se, and of preventing any appeal being made from its decisions, unless it issues its certificate.
– Then its effect will be the same as if the words omitted had been inserted in the Constitution?
– No. If the words, which were unfortunately omitted, were inserted in the Constitution, the State Supreme Courts would exercise jurisdiction, but an appeal would not lie from their decision to the Privy Council. We are desirous of passing this Bill to prevent appeals to the Privy Council from the decisions of States Courts. We wish to close that door. At present, there are two doors open, ‘and litigants mav be subjected to conflicting decisions. We desire to provide for only one decision - that of. the Australian High Court in this particular class of cases. When the Commonwealth Constitution Bill reached England, the Imperial
Crown Law officers suggested an amendment in its covering clauses, which was designed to preserve the prerogative of the Crown to grant special leave to appeal to the Queen hi Council in all cases. The Australian delegates in their first memorandum objected to this as in effect nullifying clause 74, and proceeded -
The contention for the finality of the judgments of their High Court is based by Australians on the argument that if they are fit, as is conceded, to make a Constitution for themselves, they are fit also to say what that Constitution means, and for that purpose they should be allowed to rely on the decisions of their High Court. Judicial knowledge of local conditions, invaluable always, is indispensable in the interpretation of Constitutions.
That was the view put forward by the Australian delegates to ‘the British Government concerning Australian intentions in regard to the High Court. The matter was referred to the Crown Law officers, and a controversy took place between those officers and our own delegates. Finally, after considerable negotiation, the following clause was inserted in the Bill by Mr. Joseph Chamberlain -
No question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the Constitutional powers of any two or more States, shall be capable of final decision except by the High Court, and no appeal shall be permitted to .the Queen in Council from any decision of the High Court on any such question unless by the consent of the Executive Government or Governments concerned, to be signified in writing by the Governor-General in the case of the Commonwealth, and by the Governor in the case of any State.
That clause was objected to by the States Governments. They objected to the Executive being permitted to give its consent to an appeal being made to the Privy Council in matters of this description. But in moving the second reading cif the Bill, Mr. Chamberlain made use of these words -
This agreement follows exactly the principles I have laid down. That is to say, it leaves Australia absolutely free to take its own course where Australian interests are solely and exclusively concerned, and it makes provision in all other cases, in which other than Australian interests are concerned, that the right of appeal shall be fully maintained. The delegates pointed out to us that their desire, and- what they believed to be the desire of the people of Australia, was that where difference arose as to the interpretation of the Constitution between two States or between any one State and the Federal Parliament, and where, therefore, Australian interests were exclusively concerned, they should have the right of dealing with such questions finally in Australia, and I at once admitted, on behalf of Her Majesty’s Government, that that was entirely in accordance with the principle which we had constantly laid down - that if it could be shown- that in questions of that sort Australian interests were exclusively concerned, we claimed no right whatever to interfere with their decision. Accordingly, we have agreed to exclude that particular case from the clause in which an appeal lies to the Privy Council. But we asked that, inasmuch as experience had shown, in the case of Canada,, that an appeal in such cases was valued by both parties, and that experience might show in Australia that it will’ be in the future “a desirable thing to have a Court free from all prepossession, to which both parties could appeal, words should be inserted giving this right of appeal in every case in which both parties consent. The effect ‘ of this understanding will be that clause 74 will be exactly reversed ; that whereas, in the original clause, appeal was to cease in all cases except where the public interests of some portion of Her Majesty’s Dominions outside Australia were concerned, in the clause as we now propose to insert it an appeal will lie in every case, except in the cases where Australian, interests alone are concerned.
– Does the Attorney-General consider that this Bill gives effect to that scheme ?
– I do. Sir Robert Finlay, the Attorney-General, in speaking to the motion, said -
The principle which has guided the conclusion that has been happily so far arrived at is this : All that concerns Australia alone, if the Australians desire it, will be decided by their ownHigh Court. What concerns other parts of the. Queen’s Dominions, or the British Empire as a whole, will be subject to an appeal to an Imperial Court.
– He took up a different position subsequently. He said that there was no doubt an appeal always lay fromthe High Court to the Privy Council.
– that statement was. made upon another point. I am merely pointing out that at this stage of the proceedings Australians desired an Australian Court to interpret the Constitution, and’ that the British Government .agreed with that desire.
– In respect of Australian affairs exclusively.
– Yes. Sir Robert Finlay continued -
It will be obvious to the House that the question of the delegation of powers may be a. matter of Imperial concern. It may be of the utmost moment to the Empire to know whether or not a- certain power has been delegated to a Colonial Legislature. On the other hand, the question as to how such powers are to be distributed as between the general Legislature of the central Government of the Australian Dominion of the Queen and the legislative- Governments of the States is a matter which concerns Australia. The extent of the delegation may be an Imperial interest, but the question of distribution must necessarily be an Australian interest only.
That is the position which we take up in regard to this matter.
– Most of the legal members of the present Ministry were in favour of the same view.
– After these speeches had been delivered, clause 74 was finally amended to read -
No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State ‘or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.
The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of Her Royal Prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.
When that provision came up for consideration in the House of Lords - seeing that the clause had been amended so that no appeal lay from the High Court to the Privy Council unless the former issued its certificate - the question was raised as to whether the High Court would be bound to follow any decision given by the Privy Council.
– That question was raised in the House of Commons.
– But I am referring to what took place -in the House of Lords, because I wish to make certain Quotations. I repeat that the question was raised as to whether the High Court would be bound by the decisions of the Privy Council. In the debate which took place the Earl of Selborne, Lord Halsbury, Lord James of Hereford, and Lord Alverstone expressed the opinion that there could be no ultimate conflict, because it was impossible to suppose that the High Court would not follow the Privy Council as the higher authority. But other eminent legal authorities held a different opinion. For instance, Mr. Haldane said - and from his remarks honorable members will observe that the very trouble which has arisen was predicted-
– Is the Attorney-General referring to what took place subsequent to the debate in the House of Lords if
– I will refer to statements ma’de both in the House of Commons and in the House of Lords. I am not quite sure whether the statement was made subsequently or not. Mr. Haldane said -
Supposing a litigant takes his case first to the Privy Council, and succeeds, his opponent may, in another case, raising the same point, take him to the High Court to get round the difficulty, which he can do, because the proposal of the right honorable gentleman gives him a right of appeal. But that is a totally different appeal to the one in Canada, because there the Supreme Court is not a Court of final jurisdiction. As the clause makes the High Court of Australia a Court of final jurisdiction, there may well be conflicting decisions between the High Court and the Privy Council. I do not think that is an academic matter.
Mr. Bryce protested against Sir Robert Finlay’s view, and suggested that -
Under the amendment the Committee is now discussing, the High Court of the Commonwealth of Australia will not be a Court of co-ordinate jurisdiction with the Privy Council, and it will be bound to follow the decision of the Privy Council. I cannot feel by any means so clear as my right honorable and learned friend on that point, because we are here makin” a settled provision for a special case. From the general rght of appeal to the Privy Council to be granted, we are excepting by statute one particular class of cases, questions involving the construction of the Constitution of the Commonwealth. Surely it will not only be within the power of, but also the duty and the right of the High Court, to give full effect to that provision of the Australian Constitution, and to say, “ We are in this particular matter made a final” Court of Appeal. In all other matters we’ are undoubtedly a subordinate Court, unless in a particular matter we are made a Court of coordinate jurisdiction.” They would say, “ The only appeal is to lie from us where we are satisfied there is some special reason ; we are bound to carry out the intention of the people of Australia and of the Imperial Parliament in not going beyond the express provision ; they have given no appeal unless special reasons, in our opinion, exist.” I think, therefore, that it will be open to the High Court in future to hold that in this matter they arc a Court not of subordinate jurisdiction, but of co-ordinate jurisdiction. I cannot assent to the argument that, because they are subject to appeal in other cases, they are subject to appeal in this case also.
Then Lord Davey said -
Clause 74 as it stands is a perfect solecism in jurisprudence, and for this reason that it creates two final co-ordinate Courts of Appeal neither of which is bound by the decision of the other. . . The Judicial Committee, of course, is not bound by the decision of the High Court, nor, as I understand, is the High Court bound to follow the decisions of the Judicial Committee in matters of this kind. Th’ev may, therefore, each maintain ‘their own opinion.
Lord Russell, of Killowen, said -
I fail to see anything in this Bill asserting directly or indirectly that where the decision of the Privy Council conflicts with the decision of the High Court the decision of the Privy Council is to prevail. I see nothing to that effect expressed certainly, and nothing I think to be implied. When I remind your Lordships that the clause expressly says that the. High Court shall be the final judge in the matter unless it chooses to give leave, surely that does lay a solid and reasonable foundation for the contention that it is thereby, as regards matters so dealt with in the clause, created the final Court, and therefore co-ordinate with the other final Court - namely, the Privy Council.
What was predicted has arisen, and as Ft is now seen that we have two final coordinate Courts of Appeal, the question to decide is, are we going to allow the High Court to exercise the powers undoubtedly conferred on it by the Constitution, and thus enable the ideals and aspirations of the people of Australia to be fulfilled, or are we going to permit a conflict of jurisdiction to continue, which will result in indescribable confusion, and the shattering of the hopes of the Australian people? I think that Parliament should endeavour to give effect to what was undoubtedly the intention of the Convention and the wish of Australia. The Bill does not destroy the general right of appeal to the Privy Council ; that is not disturbed in the slightest degree. But it is provided that matters of purely Australian concern, and exclusively of Australian interest, insomuch as they affect the distribution of powers, shall be left to the Australian Court. Those who read the decisions of the High Court and of the Privy Council must come to the conclusion that ‘it would be unsatisfactory to leave questions affecting the distribution of power to any other than an Australian court. It is therefore provided in the Bill that- in matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States.
We have not interfered with the jurisdiction of the inferior Courts of the States, because there is no direct appeal from them under the Order in Council. There may still be appeals under prerogative leave, but it is thought that the urgency of the case does not require us to disturb that jurisdiction. All we provide for is the taking from the Supreme Courts of the
States of so much of their jurisdiction as would .permit an anomaly like that which arose through the appeal to the Privy Council, allowed by Mr. Justice Hodges.
– Would not the decision of Mr. Justice Hodges be against the Bill as unconstitutional ?
– I do, not think so. At the end of his judgment, he suggests the possibility of Parliament exercising this very power. We provide also for the omission of the words “ on appeal “ from section 40 of the principal Act.’
– Those . words were deliberately inserted.
– Yes ; in this Chamber; though their effect has been unfortunate in the interests of litigants. Their omission is provided for to enable any case in which a question arises under the Constitution, or involving its interpretation, to be taken from any State Court straight to the High Court. ‘ This will .be a simple, expeditious way of getting to the final Court without preliminary hearings and appeals, with all their attendant expense. In this respect, we propose to make the law conform with the provisions of the original Judiciary Bill as introduced into this House, whereby power was conferred on the High Court to order the removal of all cases of this kind from the State Courts.
– What was then proposed was to apply to all cases involving the interpretation of the Constitution.
– Yes.; and the Bill applies to those cases.
– I do not think so. It applies only to cases in which questions arise as to the limits inter se of constitutional powers.
– The omission of the words “ on appeal “ will not oust the jurisdiction of the States Courts.
– I am not dealing with that point now. I admit that the exclusion of the jurisdiction of the Supreme Courts of the States is confined to questions as to the limits inter se of the constitutional powers of the Commonwealth and a State or States, or pf two or more States. ‘
– Then the general power of interpretation will still remain with the States Courts?
– Quite so; though the High Court will have the- power of removal. ‘
– We objected before to giving to the High Court the power of removal, because it was proposed to’;give it power to remove any case.
– What we provide for in the Bill is that the High Court shall have the right to order the removal from the Courts of the States of all such cases involving the interpretation of the Constitution. Clause 5 provides tor the removal to the High Court of any cause pending in the Supreme Court of a State in which arises any question .as to the limits inter se of the constitutional powers of the Commonwealth and of any State or States, or as to the limits inter se of the constitutional powers of any two or more States. Then clause 6 amends section 41 of the principal Act by providing that when the trial of an indictable offence is removed into the High Court, it shall be as nearly as possible according to the course and practice of the Court from which it was- removed.
– In the Victorian case, no question arose as to the limits inter se of the constitutional powers of the Commonwealth and the State, and therefore, in future, appeals to the Privy Council may be allowed in similar cases.
– Should such a case occur again, application could be made at once for’ its removal to the High Court.
– It might be a friendly action.
– The Attorney-General of the Commonwealth’ or of the State would have the right to move for an order for its removal.
– Could there not be an appeal from the Supreme Court to the Privy Council on the question whether the order for removal was valid, on the ground that no question affecting the limits inter se of the constitutional powers of the Commonwealth and the State had arisen?
– That would raise the question whether we have power to exclude the Supreme Courts of the States from jurisdiction in this matter, and I think.it would be held that under the Constitution we clearly hive that power. Having the power to exclude, we must have the power to remove, and no appeal could lie against its proper exercise. The Bill has not been introduced out of any feeling of disrespect for the Privy Council, a tribunal which has undoubtedly rendered splendid service to the Empire. Its object .is to terminate the conflict of opinion which now exists, in a manner harmonizing with the ideals of the Australian people.
– The honorable member has not said a word about the urgency of the measure.
– It is an urgent measure.
– Not so urgent as the Tariff.’
– Both are urgent.
– What is the ur- gency for this measure ?
– So long as two appeal Courts exist, with the possibility of differing principles of interpretation being applied to the Constitution, its underlying meaning must remain uncertain. We trust that ‘the consideration of the Tariff will occupy only a few. weeks, though it may take longer : but. as the Bill has already been passed by the Senate, it ought to be’ dealt with expeditiously by this House. The measure is urgently needed to give effect to the intentions of the people of Australia.
Motion (by Mr. Joseph Cook) put -
That the debate be now adjourned.
The House divided.
Majority … … 2
Question so resolved in the affirmative.
Motion agreed to; debate adjourned.
– I move -
That the resumption of the debate be made an Order of the Day for this day at a later hour.
It has been stated on many occasions to be unfortunate that at this particular hour of the day many members depart for their homes in order to get their evening meal. That is the reason for the small attendance of honorable members in the Chamber at this moment. If it had not been for a trick, Mr. Speaker, which I venture to think is most reprehensible - a contemptible trick which any honorable member opposite with any self-respect will regret - honorable members sitting in the Opposition corner-
– Is the Acting Prime Minister in order in charging honorable members on this side of the House with having played a contemptible trick? Personally I know of no trick.
– I ask the Acting Prime Minister to withdraw the remark.
– In compliance with your ruling, sir, I withdraw the remark.
– I ask for a ruling whether the Acting Prime Minister may discuss a vote which has been given by the House, or whether he ought not to confine himself to reasons why the resumption of the debate should be fixed for a later hour this evening.
– The only question which can be discussed is the hour or day to which the debate shall be adjourned. The Acting Prime Minister is entitled to give reasons why he desires the debate to be resumed at a given time.
– I was attempting to give those reasons. One of my principal reasons is that if there had been an ordinary straight-out, understandable vote, with the full number of honorable members present-
– May the Acting Prime Minister, by implication, reflect on a vote which has been taken in the House? I submit that the honorable gentleman is not in order in doing so.
– I was following the Acting Prime Minister, and I did not observe that he was transgressing the rules of the House. I ask the Acting Prime Minister to be careful to discuss only the question before us.
– That is what I am trying to do, and I believe I am keeping within the rules of the House. I should not have submitted this motion if the circumstances had not been peculiar, or if I had thought for a moment that a majority of honorable members were against the Government on the particular question. It is because I do not believe that the majority of honorable members, who are in the city and in the vicinity of the House, are against the Government that I submit the motion, so that there may be another opportunity of taking a vote on practically the same question. Under ordinary circumstances, in view of the vote given.I should at once have moved the adjournment of the House; but, under the peculiar circumstances, I feel justified in taking mv present course. , If honorable members resort to a trick they must expect to have a rough time. I do not wish to display any heat in this matter. I happened to be out of the Chamber at the time, but I understand that the deputy leader of the Opposition passed a paper across the table 10 the Attorney-General while the latter was speaking, and asked him a question.
– What question?
– The AttorneyGeneral accepted in good faith what the deputy leader of the Opposition said.
– What was it ?
– Or otherwise the Attorney-General would . not have resumed his seat.
– The deputy leader of the Opposition asked me whether I would conclude, my speech by dinner time.
– And the AttorneyGeneral said “Yes.”
– I said I thought I would Conclude by dinner time.
– Had it not been for the deputy leader of the Opposition acting in the way he did, and, whether he intended it or not. deceiving the Minister in charge of the Bill-
– Mr. Speaker, has this anything to do with the resumption of the debate at a later hour?
– The Acting Prime Minister is giving reasons why he did not move the adjournment of the House, as is often done in cases like this. The honorable gentleman is giving reasons why, instead of moving the adjournment of the House, he is moving that the debate be resumed at a later hour, and I think he is entitled to do that.
– I had not quite finished what I had to say when I was interrupted -by the deputy leader of the Opposition. Let that honorable member deny, if he can, that there was an arrangement made to submit the motion for the adjournment of the debate at this hour of the evening.
– To do what?
– An arrangement was made to do what has been done. The question was put by the deputy leader of the Opposition to the AttorneyGeneral, evidently with a view to lull the latter into a sense of security, and to cause him to resume his seat. Thereupon the deputy leader of the Opposition jumped up and moved the adjournment of the debate.
Sitting suspended from 6.30 to 7.45 -t>.m.
– When the House adjourned for dinner I was explaining my reasons for submitting this motion. It will be remembered that we decided, in the first session of the present Parliament, that the sittings of the House should be suspended for an hour and a quarter instead of an hour for dinner, in order to suit the convenience of honorable members who wished to go home, and might not otherwise be able to be in their places if a division were taken immediately before or after the adjournment. It seems to me that the alteration has not had the effect that we anticipated, and that we shall have to consider whether it is not desirable to revert to the old practice of adjourning from 6.30 until 7.30, or to adjourn from 6 to 7 p.m. In any event, the incident which happened shortly before the sitting was suspended, and which was intended to delay business, will have the effect of delaying the consideration of the Tariff.
– Is the honorable gentleman in order, Mr. Speaker, in imputing motives - in suggesting that the action of certain honorable members was intended to delay the business of the House?
– The Minister is entitled to make such a statement if he thinks fit, but if it be offensive to any honorable member, then I shall ask him to withdraw it.
– -It is offensive to me.
– Then I shall withdraw the remark. I think that I am justified in drawing the deduction I have mentioned, especially when it is remembered that a certain communication passed between the’ Attorney-General, who was moving the second reading of the Bill, and the deputy leader of the Opposition. If the honorable member had any object in passing that note to the Attorney-General, surely it was ‘ to lead him to believe that there’ was no intention on the part of the Opposition to depart from what has been the usual course of refraining from taking a division when the dinner hour is at hand.
– That has never been the understanding.
– It has been the understanding for the last two or three years. I have submitted this motion because it is the only course open to me in my desire to expedite the business that the Government are determined to deal with in order that the consideration of the Tariff may be resumed at the earliest possible moment. I wish the House to deal with this measure, since it is of the greatest importance from the stand-point of the Commonwealth. Honorable members were aware that the Government were going to” proceed with it to-day, but, unfortunately, we did not know what move the Opposition had in contemplation. If the Opposition think that the tactics to which they have resorted are right, then we shall simply have to sit still and insist upon the business being conducted in the way that the Government desire.
– What about the strangled industries ?
-The honorable member ought to have thought of them before he took a step that has delayed their consideration. After what took place this evening, let us hear no more from the honorable member, or any of the Opposition, as to their desire to expedite the consideration of the Tariff.
– Why was the Judiciary Bill interposed at this stage?
– I said two or three weeks ago that I intended to ask the House to deal with it at the close of the Budget debate, and before proceeding with the consideration of the Tariff. It was my intention that it should be dealt with before the Works and Buildings Estimates were disposed of.
– What is the pressing necessity for the passing of this measure?
– If the honorable member recognises that he is a Commonwealth representative, he ought to know.
Mr.Fuller. - I have some idea that I am.
– From the remarks made by the honorable member, I. thought that he had not. At present, he is working against the Commonwealth.
– That may be the honorable member’s opinion, but I am prepared to take the. opinion of the Commonwealth upon the question of whether the JudiciaryBill or the Tariff is. the more important business.
– I undertake to say that the Commonwealth would reply, “ Let the Commonwealth Government stand to its position.” There are one or two honorable members in the Opposition corner who know what this means, and they want to burke it. They wish to place the Commonwealth in a secondary position.
– I am not sure whether or not the Acting Prime Minister is charging any honorable member of this House with a desire to burke legislation ; but if he is, I must ask him to withdraw the statement.
– I did not wish to make such an insinuation against any honorable member in particular. Mv desire was to emphasize the fact that the passage of the Judiciary Bill is of vital importance to the stability of the Commonwealth.
– In what way?
– Had the” honorable member followed the litigation between certain persons and the Commonwealth, he would not have asked that question.
– I assure the honorable member that I know of no urgent reason for the passing of the Bill.
– I have said before that I have never been an advocate of the States as against the Commonwealth. I am not here for that purpose, although others may be.
– The honorable gentleman is doing his utmost to put off the consideration of the Tariff.
– The interjections made toy the honorable member are not worth replying to. Any one can see that he is anxious to become the leader of the Opposition. He has been at work for some little time, but I do not think that his efforts in this respect are likely to succeed. I should like to see the honorable member always opposed “to me, because I should feel, in such circumstances, that I was on the safe side.
– The honorable gentleman is not discussing the question.
– I apologize sir. I was led away by the honorable member’s interjection. I submit this motion, with a view to our dealing with the Judiciary Bill without delay, and proceeding, as soon as possible, with the consideration of the Tariff. This is anurgent measure, and when it, and one or two small Bills which I have previously mentioned have been disposed of, I shall not, so far as I. am personally concerned, allow any other business, unless it be something which suddenly crops up and needs immediate settlement, to interfere with our consideration of the Tariff.
.- I move-
That all the words after the word “for” be left out, with a view to insert in lieu thereof the words “ the day after the Tariff has been disposed of in this House.”
I hope there will be no unnecessary delay in dealing with this matter, since it is desirable that at the earliest possible moment we- shall proceed with the consideration, of a question which is of supreme importance to the great trading community of Australia. Before proceeding to offer reasons for submitting this amendment, I should like to make an explanation regarding a trifling incident which took place before the sitting was suspended, and for which every reason but the right one has been given. It is true that whilst the- AttorneyGeneral was speaking, about 6 p.m., I passed a note to him.
– It was at 5.50.
– The note ran, “ Will you take until tea-hour,” or something like that, and the honorable member replied, “ Yes, in all probability.”
– I said, “ I think so.”
– Very well. Why did I pass that. note across the table? It is well known that the- honorable member for Kooyong is very unwell. He desired to go home, but was willing to remain if the honorable member was likely to conclude within a short time. It was for that reason that I passed the note t’o the Attorney-General. My desire was to send the honorable member for Kooyong home, as soon as he had secured a pair, if the Minister would not shortly conclude. The moment the AttorneyGeneral told me that he would not conclude until the dinner-hour, a pair was arranged with the honorable member for Melbourne, and the honorable member for Kooyong left. So much for the mysterious, missive. I am asked why I should have desired any information concerning the time likely to be occupied by the AttorneyGeneral.
– Why did the honorable member refuse to transfer the pair to Mr. Deakin, who is also ill?
– I hope the honorable member will accept my assurance that this is the first I have heard of that matter.
– I consulted the Opposition Whip, and he would not agree to the proposal.
– It has been known to the Acting Prime Minister for some days that I intended to resist this interpolated legislation by every means in my power. Whilst he was sitting upon the Treasury bench last Friday I told him of my intention, as I did upon several other occasions.
– That is not correct. The honorable member told me that he would resist this Bill.
– I am glad that the Acting Prime Minister confirms my statement. I advised him not to initiate discussion upon this legislation, but to proceed at once with the consideration of ‘the Tariff. I informed him that if he did not agree to my suggestion I should take the earliest opportunity of resisting the course which he proposed to pursue. Therefore no charge that honorable members are doing something to-night which they ought not to do can lie at the door of the Opposition. I heard the expression “ trickery “ hurled across the Chamber. Where does the trickery “ come in?
– Did not the honorable member advise another honorable member not to speak?
– Certainly not.
– Was not the honorable member for Angas willing to speak?
– The honorable member for Parramatta told me this morning that he intended to move the adjournment of the debate.
– For some days past there has been an. understanding that the honorable member for Angas should initiate the debate upon the Judiciary Bill from the Opposition side of the House. I told the honorable member what I, proposed to do in connexion with that measure.
– There was no reason why the honorable member for Angas should not have spoken this evening.
– Spoken to whom ?
– Spoken upon the second reading of the Bill.
– I do not know that I could have gone about this matter in any better way with a view to saving the time of the country. May I offer my congratulations to the Government for an opportunity, such as seldom occurs, of furnishing an explanation after the event. Thanks to the brilliant strategy of the Government I am permitted to make such an explanation. But I now wish to give my reasons for taking the course which I ‘ pursued this afternoon. Whilst the AttorneyGeneral was moving the second reading of the Judiciary Bill I asked him upon three occasions to explain the supreme urgency of that measure. He declined to answer my question beyond saying that it was an irrelevant interjection. During the whole of his long speech he did not utter a single sentence which was calculated . to show that any urgency whatever attaches to that Bill. The only suggestion of urgency is the mysterious one which is now made by the Acting Prime Minister as to certain pending litigation. If that be the only reason for its urgency it is the reason of all others why the measure should not be passed at present.
– I did not say a word about pending litigation.
– What does the Acting Prime Minister say if he does not propose to intercept some proceedings which are now pending, in the Courts of Law ? Pausing for a moment, may I ask if the leader of the- Labour Party has again taken possession of the House?
– I suppose that one has a right to consult an honorable member upon the Opposition benches who is breaking a pair ?
– The honorable member has a perfect right to take possession of the House it seems to me. I wish to give the reasons which induced me to take the course which I have adopted upon the present occasion. I observe tonight that the Acting Prime Minister intends to proceed not only with the Judiciary Bill, but with one or two other “ minor “ measures before he invites us to resume the consideration of the Tariff. It is clear, therefore, that he has in view the passing of a programme of general legislation before proceeding with the Tariff discussion. I wish to enter my strong protest against the interpolation of this legislation while the Tariff remains unsettled.It seems to me that the Tariff is of the very first .importance. It is first in its farreaching and profound effect upon the trading community of Australia, and it is easily entitled to first consideration when, compared with any measures that may be brought before this Chamber.. Honorable members know that from day to day we are being deluged with the plaintive appeals of men who are being injured by the present duties.
– Let us get to their consideration.
– Let us get to them- at once, and let us deal in their proper order with these measures which have no particular urgency. Will it be contended for a moment that the question of whether or not we shall take away from the Supreme Courts of the States powers which have already been conferred upon them either by ‘the Constitution or by prior legislation, transcends in importance the Tariff proposals of the Government? Is the question of whether our Commonwealth officers shall pay income tax in the various States more urgent than consideration of the Tariff? Then there is the Parliamentary Witnesses Bill. I imagine that the Commonwealth will not go to pieces if that measure is never passed.
– As a matter of law, I do not believe that it is necessary.
– I have yet to learn that it is required for any purpose. The only thing contemplated by that Bill is that a- witness who does not say what he ought to say in giving evidence before a Committee of this Parliament, may be sent to gaol for two years. Certainly the measure is not of sufficient importance to warrant it being proceeded with before the Tariff. I have no desire to labour this question. I do not know that I can do better than recite some of the reasons why the consideration of the Tariff should be immediately resumed, which appeared in the Age of Monday last. I shall be glad if honorable members, will listen to this simple recital of reasons why the Tariff should take precedence- over all other legislation.
– Where is that newspaper published ?
– The honorable member does not know where the “ Age in which we live “ is published.
– Laugh, now, laugh.
– In the course of a very interesting leading article in itsissue of Monday last, the Age says -
People are very naturally becoming impatient about the dawdling over the Tariff. No pro,gress has been made in it for weeks, and yet of all things -before Parliament it is just the very measure about which most expedition was necessary. All business men are agreed that in theinterval between the submission and enactment, of a Customs Tariff commerce is embarrassed.. Sellers cannot fix prices ; buyers do not knowhow to make contracts; building operations are often suspended pending the settlement of certain doubtful duties ; tenderers have to cover their risks by the charging of maximum prices: importers hold their orders in abeyance, and the holders of stocks charge extreme rates upon merchandise which has never paid duty. All’ these things are within the common knowledge of everybody as the concomitants of Tariffchanges. And each one of them forms a separate and distinct reason why there should not be one day’s unnecessary delay between the submission of a Tariff schedule and its inscription on the statute book.
Returning to the same subject yesterday, that journal states -
A feeling akin to exasperation is being manifested in commerical circles over the protracted delay of Parliament in dealing with the Tariff schedule. Since the promulgation of the new duties on 9th August there has been an amount of unrest that will not be allayeduntil the various items have been passed bv Parliament. Rightly or wrongly, there is a. belief that alterations will take place - such trades as those of leather making, timber cut-‘ ting and dressing, boot making and metal machine making are particularly unsettled - and in: the meantime wholesale and retail merchants, are completing only those purchases that are absolutely necessary. As for the public at. large, it is ‘still very much in the dark. The prevailing uncertainty means, in some instances,, a virtual paralysis of business. And every day of inaction makes matters worse. It was hoped that “the Tariff in Committee” would be the first item on the bill of fare for the meetingof the House of Representatives this afternoon, and there was, to put it mildly, a feeling the reverse of pleasurable among the mercantile community at the announcement made yesterday that the Public Works Bill, the Judiciary Bill” and the Income Tax Bill were all to be discussed before the Tariff was considered.
Those are precisely the reasons which actuated me in submitting the motion that I have submitted. I subscribe to them in their entirety. Therefore, I offer my strongest protest against the evident desire- of the Government to toy with the supreme interests of the trading community of
– And of the working classes
– I protest against the Government delaying the Tariff for one moment longer than is absolutely necessary. I declare .it to be a crime against the best interests of the community.
– The candour exhibited by the honorable member for Parramatta! is certainly to be appreciated. I do not suppose that there are any persons in Australia who, prior to. the establishment of the Commonwealth, did not imagine that they were about to create a Parliament whose members would be above descending to party tactics-; -
– This from the bridge builder.
– What is the spectacle presented to us tb-night, according to the statement of the deputy leader of the Opposition himself? It is well that the people should know exactly what has been happening in this Chamber during the last three or four days. They have been under the impression that honorable members hae been studying and trying to grapple with Federal questions. But what has really been going on ?
– Is the honorable member now dealing with the motion before the Chair?
– I was about to point out to the Attorney-General that the events of the last four days have nothing to do with the question before the Chair.
– I desired to connect what I was saying with the motion. The deputy leader of the Opposition says that he is determined to resist the passing of the Judiciary Bill -
– And of any other measure introduced before the Tariff is dealt with.
– The members of the Opposition endeavoured Ito find out by what device or means they could defeat the measure.
– The words of the deputy leader of” the Opposition showed that that is so.
– The honorable member must be mad.
– Does the honorable member Tor Parramatta deny that he spoke to the honorable _ member for Angas this morning, and that he had not then in contemplation what happened this afternoon?
– Certainly, I do.
– These gentlemen, who profess to be so deeply interested in the solution of Federal problems, were this morning chiefly concerned as to how, at a. particular hour, when it is known that as a rule many members are absent, they could bring about a division.
– This is the first I haveheard of any such arrangement.
– Is the Attorney-General in order in reflecting on a vote of the House?
– I have not heard him reflect on a vote of the House.
– We know that it was contemplated this morning that the measure should be blocked.
– The matter was never mentioned.
– It was secretly arranged by a number of honorable members, who have a serious responsibility placed upon’ them. Probably a caucus was held this afternoon to deal with the subject.
Honorable Members. - Nonsense !
– The remarks of the Attorney-General are too thin, and emanate from a small brain.
– I. cannot see whatthe statements which the honorable member is now making have to do with the question before the Chair.
– We have been-
– I shall have to name honorable members if I am interrupted while addressing the House. The AttorneyGeneral is not in order in referring to the matters with which he is now dealing, because they have nothing to do with the question whether the consideration of the Judiciary Bill shall be resumed tonight, or at some other time.
– Members opposite were discussing whether the consideration of the Bill should be allowed to proceed this afternoon, and a. meeting was secretly arranged, whereat it was decided that its consideration to-night should not ‘be permitted.
– There was no such meeting.
– It was agreed amongst honorable members.
– That is absolutely incorrect.
– -The Attorney-General is now disregarding my ruling.
– He is repeating a slander.
– While I was speaking this afternoon, and my mind was concentrated on a. very important problem, the honorable member for Parramatta asked me if I would finish my remarks before the dinner adjournment. I told him that I could not say, but I thought I should. What was the reason for that question?
– I told the honorable member the reason for it.
– The reason was made manifest when,- as soon as I sat down, every member of the Opposition was seen to be in his place.
– That is absolutely wrong.
– With one or two exceptions, the members of the Opposition were all present.
– Am I not always here?
– No; you are not. I wish you were.
– Will you admit that I am?
– When you have hot a chance to be more profitably occupied elsewhere.
– I a!sk the AttorneyGeneral to address the Chair.
– I apologize if I have transgressed.
– The honorable member anight to be apologizing all the time.
– There is no need to apologize to the members’ of the Opposition. They know whether what’ occurred, was or was not pre-arranged. If it was - not, I withdraw what I have said.. Why’ do honorable members wish to postpone the consideration of the Judiciary Bill ? The deputy leader of the Opposition took action very suddenly in regard to the matter. As a rule, when the leader of the Opposition desires that a debate shall not be proceeded with immediately the mover of a motion for the second reading of a Bill has concluded his speech, he asks if there will be any objection to the moving of the adjournment.
– I did not see that the honorable member could object to his own “ gag” being used.
– The honorable member admits that he has made a breach of what is the regular understanding in this Chamber.
– No; not at all.
– When the honorable member put his question to me this afternoon, I believed that he was acting in good faith.
– So I was.
– That was not shown by what transpired.
– In moving the adjournment of the debate, I had- no other motive than consideration for the honorable member for Kooyong, who was ill, and wished to leave.
– I accept the honorable member’s statement, but I certainly was under the belief that the debate on the second reading of the Judiciary Bill would be continued to-night, upon the conclusion of my speech. No request was made to me for its adjournment. I believe every honorable member thought that it would be continued. But, for reasons best known to the Opposition, action was taken to prevent us from proceeding with it. The measure is a most important one, and should he proceeded with immediately.
– Is it more important than tire Tariff ?
– The Tariff is a must important measure, and I hope that honorable members, when they come to if, will despatch it quickly, dealing with it in a business-like method’, instead of making speeches of live or six hours’’ duration, and quoting long extracts from books, newspapers, and periodicals. By insinuation-, the members on the Ministerial side of the House have been charged with not being eager to proceed, with the Tarin*. But where have the speeches which we have heard recently come from?
– Is the Attorney-General in order in referring to what may happen in connexion with the Tariff?
– The question before the. House is whether the Judiciary Bill or the Tariff is the more important measure. I think that he is in order.
– Where have the long speeches which we have heard recently come from? Nearly every member of the Opposition addressed himself at length to the preliminary debate on- the Tariff. These honorable gentlemen, who profess a consuming zeal to deal with the Tariff, have for three weeks been trying to prevent us from proceeding with it.
– Is the AttorneyGeneral in order in referring to what has taken place during the last three weeks?
– I am watching him pretty carefully, and, in my opinion, heis quite in order.
– If I had not put an end to the Tariff debate, it would have gone on for another week.
– When the Tariff consideration is resumed, shall we find the members of the Opposition assisting in passing the schedule?
– No; we shall try to cut it down.
– Exactly. Australia . has decided that it is essential tor the development of the resources of this great continent
– The honorable member must not discuss that question.
– I was about to show that the Tariff is an important measure.
– - As -important as the Judiciary Bill ? 1
– The Judiciary Bill is both urgent and important.
– As important as the Tariff?
– The Judiciary Bill affects serious national interests. Is it because they are opposed to the national interests underlying this measure that honorable members attack it in this way ? The Australian people believed that in accepting the Constitution they were creating an Australian tribunal for its interpretation. It is because it has been found that their intention has not been carried out, and that we have power to give effect to it, that we are pressing forward the Judiciary Bill at the present time.
– Could not the consideration of the Judiciary Bill be deferred for a little time without prejudice to Australian interests?
– No; this is an urgent matter.
– What is the urgency ?
– There are now two final Courts of Appeal, and there is the possibility of conflicting decisions.
– What urgency does that create?
– It is urgent that we should put an end to the present state of affairs, and place the High Court in its proper position.
– The Bill has been introduced to end pending litigation.
– It was introduced before particular cases were even contem plated. Suitors who have brought forward cases since have done so with their eyes open.
– Then it is evident that there is no urgency.
– There is urgency.
– Which is the more urgent - the Tariff or the Judiciary Bill? Has the Minister courage to answer that question ? “Mr. GROOM. - The honorable member for Parkes has not an atom of national sentiment in his composition, and, therefore, I can understand his opposition to the Judiciary Bill. He is so cosmopolitan that I believe that fie has ceased to revere the land in which he lives. His antagonism can be relied upon in connexion with any proposition breathing a national Australian spirit.
– The honorable member is not now addressing himself to thequestion before the Chair.
– The members- of the Opposition hope that when the Tariff has been dealt with, the Government will be defeated, and they will come into power.
-“ Hope deferred maketh the heart sick.” The Judiciary Bill was subjected to the fullest criticism by the Senate, and if honorable members aire willing to deal with it, and give it only fair and proper criticism, the consideration of the measure in this Chamber need not take more than a day.
– Which “is the more urgent, the Judiciary Bill or the Tariff?
– It is an exceedingly urgent matter that the Bill should be passed. Honorable members opposite prate about the necessity of passing the Tariff, but- they are raising all sorts of objections to the consideration of this measure, which must be dealt with before the Tariff can be proceeded with. They are trying to create all kinds of difficulties to postpone the consideration of the Tariff.. If they think that the Judiciary Bill is not an important measure, why do they not help us to get rid of it, and to proceed with the Tariff? The deputy leader of the Opposition supported his action by quotations from the Age. T am glad that he is beginning to read the articles which are published in that newspaper. If he continues to do so, we may hope for his fiscal conversion. We know that several Victorian free-traders were converted to protection by articles published in the Age. We believe that if the honorable member for Parramatta will continue to read the Age, we shall see also his conversion. If the honorable member will only interpret in the spirit in which it was written the article from which he has quoted, he will see that it is really an attack on himself and his colleagues for delaying the Tariff.
– The article has acted like a boomerang, and rebounded on the Government.
– I should rather say* it has rebounded on the Opposition. Surely the measure dealing with the income tax question is an important one, seeing that the delay in its passage has been a cause of complaint in each of the States. The Prime Minister, at the Premiers’ Conference, ‘ promised that this measure would be introduced at the earliest possible date ; and, in fulfilment of that promise, it has received the sanction of the Senate, and now awaits the decision of honorable members of this House.
– Did not the Prime Minister promise that the Tariff should be the first business?
– And has the honorable member not done everything he could to block the Tariff?
– On the contrary, I have done everything to assist in furthering its consideration.
– The honorable member is one of those Victorian free-trade protectionists to whom. I have already referred. I am sure that honorable members will decide that the Judiciary Bill is an urgent measure, and will assist the Government in carrying it into law, and in proceeding with ihe despatch of business in a way to reflect credit on the Australian Parliament.
.- I see no necessity for long speeches or for the display of any heat in regard to this matter. There is a difference of opinion between honorable members on this side and the Government and their supporters, :is to which measures are the most important. We on this side of the House regard the Tariff as the most urgent matter, seeing that it is the main business in the Government programme, and has times out of number been described as the great work of the session. It- is now nearly three months since we met, but we have not yet really reached the consideration of the Tariff, although, from one end of Australia to the other, the people are adversely criticising the character of the fiscal proposals.
– It was settled before the right honorable member left the Cabinet that this should be the order of business.
– I am not prepared to subscribe to that statement. The real question before us; as I have said, is, which is the more urgent business - the Tariff or the Judiciary Bill, and the other measures which have been mentioned. We on this side, who regard the Tariff as the more urgent, feel quite justified in taking the first opportunity to express that opinion to the country at large. I do not think the Government have any right to complain because the deputy leader of the Opposition took the means he thought best to indicate that, in the opinion of honorable members on this side, the Government are not acting in the best interests of the country in postponing the consideration of the Tariff in order to deal with the Judiciary and other Bills. The Judiciary and the other Bills, important though they may be, are not, in our opinion, nearly so pressing as the Tariff, which we ‘urge should be disposed of as soon as possible. As for the statements that caucuses have taken place and tricks resorted to, all I can say is that I know nothing of them. I know the views of honorable members who sit in the Opposition corner, and I hope that the day is far distant when we shall resort to any tricks. If we cannot act straightforwardly and honorably, I hope we shall not act at all. Of course, it is not necessary that we should go about telling every one what we propose to do at all times ; but any underhand business, or any subterfuge or trickery will not be tolerated by any of us. How the Government can make themselves believe that the course they are taking is in the best interests of the country, I cannot understand. It would almost appear that the Government are indifferent as to the Tariff - that they are satisfied now that they are collecting the higher duties, and do not seem eager to give the House an opportunity to deal with the matter. If the Government are in earnest, how can they stand in their places and contend that the Judiciary Bill and the other measures are so urgent that the Tariff, which vitally affects the people throughout the length and breadth of Australia, must be postponed to a more convenient season until they are dealt with?
– I must say that the honorable member for Swan appears to occupy rather a peculiar position. The honorable gentleman resigned office but a few days ago-
– Same old story !
– The right honorable gentleman gave a number of reasons for taking that step, but he did not say that he had decided to turn on those of whom he had been a friendly colleague the day before, and rend them at the first opportunity.
– I am merely asking the Government to proceed with the consideration of the Tariff.
– The right honorable member talks about asking the Government to proceed with the Tariff ; but he has been sitting quiet, and, to use his own words, refusing to disclose what honorable members in the Opposition corner intend to do; and at the first opportunity he attempts to take the business out of the hands of the Government. That does not appear to me to be a friendly act.
– It is absolutely justified.
– That is probably the opinion held by those who sit in opposition, and who were elected as the opponents of the Government. But I do not think that it is a view which should be taken by a gentleman who was elected as a member of the Government, and who has not even yet formally shaken off his allegiance.
– The right honorable member has done so by taking his present position in the House.
– If the right honorable member has gone into direct opposition- - if he is opposed to the Government root and branch, it would be just as well for him to say so, so that the House and the country may know where he is. But it is not by any means’ a friendly act on the part of the right honorable gentleman to lie in wait until an opportunity, occurs to stab those who were formerly his friends and colleagues. That does not seem to be a decent thing to do.
– The honorable member seems to be very venomous for some reason, I know not what.
– The right honorable member for Swan has simply done what the honorable member for South Sydney has done many times in his political career.
– That does not happen to be true.
– I must ask the honorable member for South Sydney to withdraw that remark.
– I shall express my meaning in another way, and say that the statement is absolutely incorrect, and that the honorable member for Parramatta ought to know that it is incorrect. The honorable member knows that -my political career has been consistent all through. I mistakenly supported for five vears the Government of New South Wales of which the honorable member was a member.
– That is an instance of what I say.
-But after five years of loyal support, during which I sat up all night many a time, and, at his instigation, applied the gag to the Government’s opponents whenever necessary, all the thanks I get is an accusation of continued inconsistency. Perhaps I deserve some such treatment - I should have discerned earlier that the honorable member did not deserve support.
– The honorable member ought not to attack a man who is simply following his example.
– The right honorable member for Swan is not following my example. When I discontinued supporting the Government of which the honorable member for Parramatta was a member, I went into direct opposition, and stated, in so many words, what I intended to do. On the other hand, the right honorable member for Swan, as I understood him some time ago, said he would continue to be a supporter of the Government. Perhaps the right honorable member meant th’at he would be a discriminating supporter of the Government.
– I support the Government oftener than I vote against them.
– That is a matter of opinion; but, at any rate, the right honorable member is not justified in suddenly attempting to take the business out of the hands of the Government of which he was a member.
– I think the’ Government aire doing wrong to Australia, and I. must think of Australia first.
– If the right honorable gentleman thinks the Government are doing wrong, it would have been only a friendly act to warn them. It is, however, hardly friendly to wait until some one else projects a weapon, and then to drive it home at the earliest opportunity.
– Is it not al fact that the honorable member for -South Sydney, at the time to which he has referred, voted against the New South Wales Government one day in caucus, .and voted for it the next in the House?
– It is not a fact.
– Then the honorable member voted for the Government in caucus, and against it next day in the House.
– That is not a fact. The honorable member for Parramatta has spoken about the Government’s strategy on this occasion ; but it appears to me that any strategy there may be is on the part of the Opposition. The care with which honorable members opposite kept the knowledge from other members of the House that they were going to take action this evening, and the evident success with which they retained members who are usually conspicuous by their absence, certainly points to strategy, successful as far as it goes. But, to my way of thinking, such strategy is scarcely worth the effort.
– Is the honorable member discussing the question before the Chair ?
– I think my remarks have a great deal to do with the question whether we shall resume the debate on the Judiciary Bill at a later hour this evening.
– Perhaps the honorable member will connect his remarks with’ the question.
-l’ shall do so. I desire to show that the vote arrived at before the dinner hour was distinctly a snap vote; and tactics of the sort do not reflect credit on those who resort to them, even if thev are temporarily successful. Even when I was in opposition I never lent myself to any attempt to procure a snap vote. I have never believed in such tactics, and do not think they are proper. I do not doubt that honorable members are within their rights in resorting to such a procedure,- hut, to my mind, although at the time it mav appear to be eminently successful, it is of no real advantage to an Opposition.
– Which is more important, the Judiciary Bill or the Tariff?
– I was about to deal with that question. This pretended anxiety to deal with the Tariff comes with exceeding ill grace from, those who have talked at such inordinate length during the last week or two on . the Works and Buildings Estimates. The deputy leader of the Opposition yesterday made four speeches on one. item.
– I did not.
– Perhaps 1 am mistaken. Although the honorable member may have no recollection of his having done so, we have a painful recollection of the fact.
– I say that I did not speak four times.
– The honorable member is quite capable of saying anything. 1 submit that the records of Hansard will prove that he spoke yesterday four times on the question relating to the establishment of Commonwealth offices in London.
– At all events, he voted as he spoke.’
– He occasionally does : although I do not know that that- matter has anything to do with the point under consideration.
– It is quite irrelevant.
– As the honorable member’s remarks in this “rarer atmosphere” usually are. If the Opposition were really anxious to get the Tariff out of the way, it seems to me that they would assist in clearing the decks of necessary legislation of this kind, in order that we might reach it. But they have for days in this Chamber, exhibited an anxiety merely to delay business - an anxiety to fill up the time at any cost.
– Even by asking questions
– Quite so. We have had three-quarters of an hour occupied in dealing with questions to Ministers. ‘ I think that the Government are unwise in replying to so many questions without notice.
– Thev will not do so in future since the honorable member has expressed the opinion that they should not.
– Probably, .as my opinion has been indorsed by the honorable member, thev will accept it. I admit the urgency of the Tariff, but so far as Australia is concerned, the settlement of the constitutional question dealt with in the Judiciary Bill is of greater urgency. The delay in dealing with the Tariff creates, at the worst, but a temporary dislocation, but the future liberties of Australia may depend on our having our own tribunal to decide questions- arising under the Constitution. There is no comparison, so far as the future of this continent is concerned, between the urgency of an ephemeral mea-; sure like the Tariff and a Bill affecting the Constitution and its interpretation. If the honorable member for Parkes were on this side of the House he would raise his ponderous bulk and equally ponderous voice, and tell us how highly important it was that these great constitutional questions should be settled before anything else. But as he happens to be in opposition the position is different.
– Is it not rude to speak of the honorable member’s “ ponderous bulk ‘ ‘ ?
– Like a Bulletin cartoon, it is a good advertisement.
– Having regard to the interjection made by the honorable member for Parramatta. one would think that the Opposition were never guilty of rudeness. I was under the impression that a good deal of rudeness had emanated from that side of the House, and some from the honorable member, and that therefore I might be excused for imitating them to some extent. The honorable member for Parramatta concluded his remarks a few moments ago by quoting with great gusto and approval from leading articles published in the Age, in which the House was urged not to dawdle over the Tariff. The honorable member did not tell us that the leading article which he quoted, admirable as it was, was directed mainly at the Opposition for their delaying tactics.
– It fitsthe Government very well.
– There . is nothing in the article to show that it was directed mainly at the Opposition.
– That is the way in which it appealed to me, but everything may depend upon the point of view from which it is regarded. I am going to read a short extract from another leading article in the Age, to which I am sure the honorable member for Parramatta will give his adhesion.
– And it is more up-to-date.
– Yes. This is the latest view. Referring to the long debate on the item relating to the. establishment of the Commonwealth offices in London, in connexion with which the honorable member for Parramatta made so many speeches, the Age of to-day says of the Acting Prime Minister -
Having given to the House in a printed memorandum all the details of the land and its probable price, he was assailed by the leader of the Opposition in a long tirade because ‘he had not also stated whether the land would be subject to a future land. tax.
– I am afraid that has nothing to do with the question.
– I was hopeful, sir, that its veracity would have atoned for its being slightly out of order. It does not seem to me that it should take long to deal with this Bill, if we approach its consideration with an honest desire to make it as workable as possible. It was before the Senate for some time; and received there very careful consideration, particularly from the legal members. There is, after all, not a wealth of detail in it. It is mainly an assertion of a principle regarding the interpretation of our Consti- . tution. I should be sorry to hear that any proportion of honorable members of this House was out of sympathy - with the object at which this measure aims, and I do not think much time should be consumed in its discussion. There can be no doubt as to the desirableness of having only one Court to interpret the Consitutionunder which we have our political being, and there should be no doubt as to the necessity of having the matter determined af the earliest possible moment.
– Litigation may be dependent on the settlement of the question.
– Litigation isnow proceeding.
– We could not have a stronger reason than that for not proceed: ing at present with the Bill.
– Does the honorable member mean to suggest that we should take no action until doomsday? Litigation will always be proceeding.
– I did not say that. The honorable member urged that pending litigation was a reason for passing the Bill, and I say that, so far as it is a reason for anything, it is a reason for delay.
– With all respect, I hold that that position is not tenable. If we are to wait until there is no litigationpending, we shall have to delav the passing of this Bill for ail time. We can never be assured that, at any particular time, a case will not be before the Court.
– Does the honorable member mean that this Bill should apply to cases that are sub judice?
– I would have it apply even to such cases. It is most unfortunate that we should have two different Courts interpreting the Constitution of Australia. I do not care at what stage we intervene, but I hold that we ought certainly to intervene, in order to do away with such a position. What harm can result from the passing of this Bill ? Has not an1 individual, a State, or a corporation as great a chance of obtaining justice from our own Court as from the Privy Council ? If any other contention can be put forward in opposition to the Bill, I shall be glad to hear it; but, personally, I would take actioni at the earliest possible moment to insure that our own Court should be the interpreter of the Constitution, and that no tribunal which may be out of harmony with us, or ignorant of our laws or the atmosphere surrounding them, shall be allowed to deal with constitutional questions. I hope that the House will retrace its steps. The snap vote taken before dinner is no criterion of the feeling of honorable members. A great many wee absent at the time, believing that the debate would proceed until the usual hour for the adjournment, and, in view of these facts, I think that we ought to reverse the vote, and to pass this Bill as soon as possible.
. -In the few words I propose to utter. I do not intend to add to the heatwhich has been already generated . by continuing or replying to personal recriminations, although the temptation to do so is very great. Nor do I intend to quote articles from leading newspapers. The one question now before the Chair, on the amendment moved by the deputy leader of the Opposition, is whether the Judiciary Bill is so urgent that we should deal with it before proceeding with the Tariff, for the settlement of which the whole country is waiting. The Acting Prime Minister, some weeks ago, surprised the House, and, I think, his friends outside, by intimating that, notwithstanding the urgency which had been claimed bv his leader and by his party for dealing with the Tariff, he proposed to interpose at this stage, for some reason which was not definitely stated, the consideration of this Bill, as well as of one or two others. At that time he was told most distinctly, on behalf of the direct Opposition aind of all honorable members in the Opposition corner, that that course was not onlyobjected to, but would be strenuously resisted. Honorable members, like the honorable member for South Sydney, may talk about partytactics and snap votes, but is it not the hypocrisy of party tactics to accuse us of taking anything but a perfectly legitimate step in availing ourselves, as we did, of the first opportunity to resist what we consider an utterly gross mismanagement of parliamentary business? A warning was absolutely given that the step -proposed to be taiken by the Government was, in our opinion, entirely inconsistent with the view they had expressed, not only during the present session, but before, that the -main business to be dealt with during the present session was the Tariff. And now, when the whole of the commercial interests of Australia are in a state of absolute embarrassment, owing to the delay in dealing tVJth the Tariff, this measure has been introduced. We have sought, over and ever again, prior to and during this debate, for any palpable reason, or for the slightest shadow of foundation for the statement that there is any urgency in regard to the passing of this Bill. I have listened to the speech made by the Attorney-General, and must say that he rather amused me, and I think several others. There is not a more good-natured, kindly gentleman in theHouse than is the honorable member, and the spectacle of his trying to lash himself into a fury was one of the most amusing I have witnessed since I have been in this House. There is a French expression, which I may be pardoned for using in this connexion - un mouton enrage - an angry sheep. A sheep is one of the mildest and most useful of animals, and when it tries to lash itself into a fury it becomes one of the most ridiculous. I . ventured to ask my kindly friend the Attorney-General, whilst he was indulging in one of his flights of indignant oratory, to define the particular urgency of this measure. His reply was that there are two Courts at present dealing with appeals under the Constitution. But I would point out that there have been two Courts dealing with those appeals ever since our Constitution was inaugurated. There were two Courts dealing with them at the time the Prime Minister declared that the Tariff would be the first measure brought forward this session.
– The honorable member knows that the decision in the income tax case was given after the general election.
– What decision?
– The decision of the Privy Council.
– Does the AttorneyGeneral mean the Privy Council decision in the case of Webb v. Outtrim ? If so, may I point out to him that this Bill does not affect that decision in the slightest degree ? It allows it to have exactly the full force that it has now. Is it not paltering with the whole question and with the interests of the people of the country, who look to us to do their business for them, to pretend that ‘there is any urgency about this measure? I say that it. is the merest pretence. After the warning which the Government received, not merely upon the occasion mentioned by the Acting Prime Minister, when they were told on behalf of both sections of the Opposition that the interpolation of this business would be strenuously resisted, but also upon Friday last, it is simply the hypocrisy of party tactics to pretend for a moment that there is any justification for the attacks which have been made to-night upon member’s on this side of the House. Great as the tempta- ‘ tion may be, I am not going to hurl back such epithets as were applied to us by the Acting Prime Minister. When such a speech is made as that which he delivered prior to the adjournment for dinner, the ordinary feelings of human beings are subjected to a very great strain. It is humiliating to- us all to have to listen to such language, but it would be more humiliating still if we replied to it in the same strain.
.-Iquite sympathize with the desire of the Opposition to proceed with the consideration of the Tariff. Had they manifested that desire during the past five or six weeks I certainly should have supported the proposal oif the deputy leader of the Opposition this evening. Even if that proposal had been put forward as a business proposition instead of as a party move, I should have voted for it, but knowing that there has been a movement upon foot to’ defeat the Government, I shall oppose it. The Ministry, we must recollect, are the administrative and therefore responsible body, and I will not be a party to anything which is not fair, open, and above-board in dealing with them.
.I think that an intense anxiety to serve one’s country is being manifested at the present moment. I can only recall one measure in regard to which such a lively interest has been exhibited during the current session, that was the Bill in which we agreed to increase our own salaries. That measure appealed to me very strongly. I. was present, as we all were, in the Chamber during the whole period that it was under consideration, and I can onlyassume that a question not less important is under review just now. But, as I do not happen to be in it, I am naturally a little anxious and also a little suspicious. When I see the very lively and intelligent interest exhibited in this question by honorable members opposite - an interest which is perhaps more lively than intelligent - and when I find that for the first time in the history of this Parliament, they are all travelling in the same direction - a consummation “ devoutly to be wished,” but which hitherto has been unattainable - I am bound to think that there must be something more in the wind than is conveyed by the simple statement that “ the honorable member for Parramatta rose at a convenient stage and moved that the debate upon the Judiciary Bill should be resumed after the Tariff has been disposed of.” No doubt it is not the adjournment of the debate upon that measure which is desired, so much as the removal from office of the present Government.
– Perish the thought.
– I am very anxious to proceed with the consideration of the Tariff - indeed we are all anxious to do so. But the adoption of this motion will not bring us any nearer the attainment of that object, and I make the sporting offer to honorable members opposite that if they are prepared to make a. definite statement as to the kind of Tariff they will introduce if they should attain Ministerial office, I will consider it. Further, if it be a reasonable and workable Tariff, I will vote for it in preference to that which has been submitted by the Government, because I am perfectlyfree upon this matter. As is well known, I am in favour of something which I fear will scarcely commend itself to members of the Opposition corner, who at this particular moment have assumed an importance which heretofore thev have not possessed in the eyes of anybodv but themselves. I lielieve that it would be a good thing for the country if we had in operation a system, of land values taxation. I am very sure that no honorable member of the Opposition corner believes that. I see, sir, that vou are about to call me to order. But I think that some latitude should be extended to a man who has been mdelv snatched from his home and plunged into the middle of a discussion of the merits of which he knows nothing, and cares less. Therefore, I have a right to point out the reasons which actuate me in this matter - reasons which are common to every honorable member. I agree with those who say that we ought to proceed with the consideration of the Tariff at the earliest possible moment. But one of the reasons why we have not proceeded with it is that during the past three weeks honorable members opposite have done nothing but talk endlessly and generally irrelevantly upon every subject under the sun. I have just taken up Hansard - a thing whichI rarely do, and which I would not dream of doing except under the doctor’s orders - and the first name which catches my eve is that of the honorable member for Hunter, who has spread himself over quite a number of columns without any provocation whatever. He spoke at almost interminable length about something which was quite unimportant, or at any rate not urgent, and that fact so irritated the honorable member for Lang, that he immediately rose and said almost the same thing in the same words.
– Order ! Will the Honorable member discuss the question?
– I am entirely in accord with those who are in favour of proceeding with the Tariff. I am, however, entirely in favour-
Honorable Members. - Oh. oh !
– I intend to get this little qualification in, if I have to stay here all night to do so. I am also in entire agreement with those who urge that it is very necessary that we should dispose of the Judiciary Bill, especially under circumstances, which are very well known to us all.
– What arethey?
– The honorable member wishes to know whether I know anything at all about the matter. I maypoint out that that is a rude question to ask any man. The honorable member for Parkes knows that when a man is a lawyer it is a libellous thing to question his knowledge of law.
– Or to ask for a legal opinion without paying a fee.
– I propose to vote for the proposal of the Acting Prime Minister, because I think it is very necessary that we should proceed with the Judiciary Bill, and particularly because I think it is essential that the business of the country should just now rest in the hands of the Ministry.
Question - That the words proposed to be left out stand part of the question - put. The House divided.
Majority … … 6
Question so resolved in the affirmative.
Original question resolved in the affirmative.
Debate resumed (vide page 3760), on motion by Mr. Groom -
That this Bill be now read a second time.
– I must bear my testimony to the clearness with whichthe Attorney-General introduced the measure, and the evident care which he has devoted to the subject with which it deals, which is, of course, of paramount importance. While I agree with him that the Australian High Court ought to be the final Court of appeal, I regret thatthat is not to be provided for by an amendment of the Constitution, instead of by a method which it is somewhat below the level of the relations to a very great subject. Honorable members who were in the last Parliament will recollect that when, by the Judiciary Bill of 1 903, an attempt was made to cut down appeals to the Privy Council by declaring that the Federal jurisdiction vested by us in the Courts of the States was to be conditioned by the provision that all appeals were to be taken to the High Court, some of us described it as an attempt to cure, by a somewhat sinister procedure, a blunder made by the members of the Convention in their final division. The Attorney-General then said that the Government were trying to get back to theposition in which the matter, but for that would have been left at the Melbourne session of the Convention. “ Yes,” I replied, “ but by a sinister method.” There is no doubt that this is an attempt to cancel the bungling of the Convention in its last division. It was alleged then with equal certainty to that now affecting the Ministerial mind, that the method of cutting down appeals to the Privy Council, adopted in clause 39 of the Judiciary Bill, was certain of success; but we now find that it has failed. The then member for Northern Melbourne, now Mr. Justice Higgins, and myself, strongly held the view that the provision would not prove a success; but the present Prime Minister, who was then Attorney-General, and the present Attorney-General, with others, declared that it would effect what was intended. I mention these facts now because the present allegation, that this method will be a success, is to be discounted by remembering that it was asserted with equal certainty in 1903 that the procedure then proposed would be efficacious. On page 1203 of volume XIII. of our Hansard reports, the Prime Minister is made to say -
If, then, we have the power to make this appellate jurisdiction exclusive and to shut out the Supreme Courts of the States, or to define the extent to which they shall exercise jurisdiction, that implies that we have the right to invest them with power to hear appeals subject to certain conditions. That is what is sought to be done in this clause. First of all, we absorb in the High Court the whole of the Federal jurisdiction, and then invest the States Court with it, subject to certain conditions.
That method of cutting down appeals to the Privy Council has failed. Speaking on the matter, I pointed out - page 1205 -that-
Some of the lay members of the Committee may imagine that the power of construing the constitutionality of statutes is absolutely vested in the High Court, subject to any permissive appeal given to the Privy Council by the High Court, but, as a matter of fact, it is possible that if a point involving the constitutionality of statutes - an inter se point - arose in the Supreme Court of a State, under the Federal jurisdiction to be conferred, an appeal would lie direct to the Privy Council.
– Unless we make that provision.
– I donot know that the clause does that.
– I do not say this clause. There is a later clause.
– No doubt an attempt is made by the Bill to stop that, but I do not know that it is efficacious.
The Privy Council has now decided that it is not. Amongst other points then taken by honorable members was this : that while we could abolish by the method adopted, or by any other, the right of appeal given by Statute to a particular Court, we could not take away the appeal as of grace to the Privy Council, and that the particular appeal in question was not given by the Parliament of the ‘ Commonwealth. It was decided in a Canadian case - Cushing v. Dupuy - 5 app. cases, page 409, thatthe Parliament which gives a right of appeal by Statute can take it away, but that it cannot take away appeals to the King in Council not given by it, or existing as a matter of grace. It has been pointed out in the case of the Commissioners of Taxation v. Baxter, 4 C.L.R., which has led to the introduction of the measure, that it was never contemplated by the Parliament which passed the Judiciary Act of 1903 to take away all leave to appeal to the Privy Council, that all that was attempted, and that all that could be accomplished, was to take away appeals as of right. During the debates in connexion with that measure, no word was uttered by any legal member or any one else, as far as I remember, as to it being intended that the scope of section 39 should be limited to the abolition or cutting down of appeals as of right. It may be a little tedious, but I should like, in order that the facts may be put on record once for all, to draw attention to the genesis of the appeal clauses. As I said on a previous occasion, during a debate on judicial matters, the trouble which has existed during the last three or fouryears, through the clashing of jurisdiction, and the adoption of sinister methods to take away an appeal to the Privy Council given by the Constitution, is the result of a mistake made by the Convention in its last division during the Melbourne session of 1898. The appeal clauses were dealt with only in Adelaide and in Melbourne, and at the end of the Adelaide sitting the draft Bill contained an express provision abolishing direct appeals to the Privy Council from the Courts of the States, and, in fact, all appeals, with one exception. All appeals in State matters, and all appeals in Federal matters, to the Privy Council were abolished!/ except in such questions as involved the public interests of the Commonwealth, or of any State, or of any other part of Her Majesty’s dominions. The clause read -
No apnea 1 shall be allowed to the Queen in Council from any Court of any State or from the High Court or any Federal Court, except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State or of any other part of Her Majesty’s Dominions are concerned, grant leave to appeal to the Queen in Council from the High Court.
So that, .as settled in Adelaide, we had really attained the Australian idea of judicial independence, except in matters in which the public’ interests of other’ parts of His Majesty’s Dominions, of the Commonwealth, or of any State, were concerned, in regard to which an appeal was left by permission to the Privy Council. But that permission, except in important cases, would not Be granted. Practically we had affirmed the principle of complete Australian control of Australian litigation. The matter cropped up again in the Convention on the nth March, 1898. After a long debate, the Convention decided to retain the appeal to the Privy Council. The original provision for the purpose was that all appeals in constitutional matters to the Privy Council, except those touching the public interests mentioned, were abolished j the clause which accomplished that was1 taken in hand by the Drafting Committee, and as it emerged from their deliberation it was changed, not only in expression, but in substance. The clause, as it passed the Convention - that is, clause 75A - provided that, notwithstanding anything in the last section, an appeal to the Queen in Council from, any Court of ? State”, or from the High Court, or from any other Federal Court, should not be allowed in a matter in which the interpretation of the Constitution, or of the Constitution of a State, was involved, unless in matters in which the public interests of any part of Her Majesty’s ‘ dominions, other than the Commonwealth, or of a State, were involved. That clause expressly negatived the direct appeal, both of right and by permission, from a State Court on matters involving the interpretation of the Constitution. I may mention that many important clauses were re-drafted by the Drafting Committee, and were formally passed just before the Convention finally met. As that clause was re-drafted by the Drafting Committee, and formally passed it appeared in this shape -
No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State unless the public interests of some part of Her Majesty’s Dominions other than the Commonwealth or of a State are involved.
And then there was a provision that an appeal might be granted by leave in other cases from the High Court. But the clause as re-drafted, unfortunately, did not expressly negative the direct appeal in constitutional matters from the Courts of the States ; and the result was that the direct appeal was left open, in the opinion of leading lawyers, as the Convention finally settled the Constitution. I made a futile attempt to cure the drafting of clause 7 5 a, for which that was substituted, and whose imperfections as to the direct appeal in State matters it retained. Honorable members will find the debate on this point reporte’d on page 2516 of the Reports of the Melbourne Convention ; and at pages 2439 and 2453 I drew attention to the effect of the final draft itself. Mr. Higgins, the present Justice of the High Court, who was a representative of Victoria, I think afterwards pointed out in this House that the direct appeal was left open, not only in ordinary general matters, but also in constitutional matters. I tabled an . amendment in the Convention, which, had it been carried, would have abolished all direct appeals from the Courts of the States, whether in State, or Federal matters. Asthe Convention had decided to retain some appeals to the Privy Council beyond those in which the public interests of any part of Her Majesty’s Dominions other than the Commonwealth, or a State, were concerned, the clause would have retained appeals in general matters, and in constitutional matters, from the judgment of the High Court to the Privy Council. But the effect would. have been that all appeals must have gone from the Courts of the States and the Federal Courts to the High Court, and then from the High Court only by permission to the Privy Council. The result, judging by Canadian experience, would have been that all appeals, whether in State . or Federal constitutional matters, would have been finally determined by the High Court. We should have had an appeal as of grace to the Privy Council, but, judging by the practice of the Privy Council as applied to appeals from the Supreme Court of Canada, an appeal would have been allowed only in very exceptional cases, so that, although, as a recognition of the Empire, there would have been an appeal, in 99 per cent, of the cases the judgment of the High Court would have been final, only exceptional cases being taken to the Privy Council. But there could have been no clashing of* jurisdiction, because there would not have been, as at present, ‘ practically two co-ordinate Courts of final appeal. Unfortunately, the position was not realized, and the amendment was lost by the small majority of three. Since then, various attempts have been made to get out of the unfortunate position in which we were landed by the double appeal being left open. The Premiers’ Conference of 1899 had its attention drawn to the fact that the double, appeal was open, and was asked that it should be abolished. The Parliament of New South Wales, T think, sent a request to that Premiers’ Conference, that appeals from the Supreme Courts of the States should be made uniform, namely, that appeals should be either to the Privy Council or to the High Court, and not, as at present, indiscriminately to either. However, the matter was ignored; in fact, the Premiers did not realize the fact that the double appeal still existed. Therefore, as the Constitution Bill was adopted at the referendum, it contains the provision for an appeal direct from a. State Court in all State matters not of Federal jurisdiction. There was an appeal also from the High Court to the Privy Council, except in certain constitutional matters ; but the direct appeal in constitutional matters was still open, from the Courts of the States. The amendments made by the Imperial Parliament in the Constitution directly declared the retention of appeals from the Courts of the States, not only in general matters, which need not have been, and were not, touched, as they were beyond all dispute, but in constitutional matters, and also granted an appeal in constitutional matters from the High Court, which appeal, except where the public interest of other parts of the Empire were concerned, had been abolished by the Constitution up to that time. When the delegates went Home, there really was not a very fundamental matter involved in the amendments suggested by the Imperial Government. The public of Australia thought it was a question of the absolute independence of the Australian Judiciary, or the retention of appeal to the Privy Council. But that was not so ; and, in a letter in the South Australian Register, on the 19th June, 1900, after the final form had been settled, I pointed out that in all matters of constitutional interpretation, even in -cases in which the constitutionality of any State or Federal Act in relation to Imperial law was in question, the consent of the High Court was not required - that questions of mere construction, which were by far the more frequent, were open to unconditional appeal, and that all the judgments of the States Courts might be challenged bv direct appeal . Just before the clauses were finally settled at Home, there was an attempt made to come to a compromise, which, had it been accepted, would really have abolished direct constitutional appeals from the Courts of the States.
– Was that made public?
– I shall read the clause, which was known as new clause 74. It provided for an appeal from the High Court in inter se matters, but with the consent of the Executive of the State or of the Commonwealth, and - here is the point - it abolished appeals in constitutional matters from the Courts of the States, a fact which did not at the time seem to be realized by- some who entered strenuous opposition to its adoption. In inter se matters, there could be no appeal from the High Court, except by the consent of the Executive. The clause did abolish direct appeal in constitutional matters from the Courts of the States ; and this was a very important provision. I am afraid that the significance of the omission made in the clause was not fully realized even by some of our representatives at Home, and, certainly, was not realized by the Premiers of the
Colonies, as the States then were, who were strongly opposed to the adoption of the principle of the clause, and are partly responsible for what has occurred. The clause was as follows -
No question howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of a State or States or as to the limits inter se of the constitutional powers of any two or more States,, shall be capable of final decision, except by the High Court ; and no appeal shall be permitted to the Queen in Council from any decision of the High Court on any such question, unless by the consent of the Executive Government or Governments concerned, to be signified in writing by the GovernorGeneral in the case of the Commonwealth, and by the Governor in the case of any State. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of. Her Royal Prerogative to grant special leave to appeal to the Queen in Council. The Parliament may make laws limiting the matters in which such leave may be asked,” provided that the proposed laws containing any such limitation shall be reserved by the Governor-General for the signification of Her Majesty’s pleasure.
That clause, as I say, abolished direct appeals in constitutional matters. It left an appeal from the High Court open in inter se matters, but only with the consent of the Executive, and also an appeal in general constitutional matters with the permission of the Privy Council - which would very seldom be granted - and it gave Parliament the power to cut down appeals by leave from the High Court, and, practically, to eventually abolish them. The strongest objection urged against the clause was the somewhat unfortunate provision that it placed the appeal in inter se matters in the hands of the Executive rather than in the hands of the High Court itself. The effect of the clause was pointed out by Sir Samuel Griffith in an interview which was published in the Australian press. He pointed out that in the most important class of cases, the clause took away the right of appeal from the Courts of .the States - a right which was reserved by the draft Bill. Just about that time the’ people of the Commonwealth began to realize that the Convention had not done what -it was generally assumed it had done in the settlement of the Judiciary clauses. The South Australian Advertiser, on the 4th June, 1900, pointed out that the direct appeal in general matters and constitutional matters had not been abolished, arid went on to say -
There is evidence in black and white that even the members of the Convention itself do not clearly understand what has been done.
It is unfortunate that the position was hot realized, because if one is to judge by letters appearing in the press, and the debates which have been referred to to-night by the Attorney-General, I think public opinion in England was rather, sympathetic with the Australian ideal. Mr. Dicey, writing to the Times on nth May, 1900, summarized the effect of the advice that he gave upon this point in these words -
The right of appeal will be retained, but the Imperial Parliament will, have formally announced the intention of yielding to the wish of the Australian people whenever through the mouth of their own Parliament they should have deliberately decided that the right of appeal should be curtailed.
In other words, his advice was that the right of appeal, through the High Court, should be retained, but that we should be invested with absolute power to cut it off whenever Australian opinion was ripe in thai direction.
– Was that his interpretation of the Constitution?
– No; his interpretation was that the right of direct appeal had not been abolished, and that view was shared by leading lawyers.
– Did he express the opinion in the letter in question that we had power to take away the right of direct appeal?
– No; his advice was that the Colonies, should consent to the retention of some right of appeal, and that we should be given power to abolish ‘it. Similar views were held ‘by some of the leading statesmen, including Sir Henry CampbellBannerman, Mr. Asquith,- and other lawyers now associated with the Imperial Cabinet. It is to cure the unfortunate mistakes that were made in this regard that attempts have been1 made under the Judiciary Act of 1903 and the present Bill to prevent appeals reaching the Privy Council. In the final sitting of the Convention I tabled an amendment to send all appeals from the High Court to the Privy Council ‘ by leave. There was also a provision in my amendment that the Federal Parliament should at any time have power to cut off these appeals to the Home tribunal. Look-, ing through the report of the proceedings of the Imperial Conference, I find that it adopted, on the motion of General Botha, a provision- as regards South African appeals which is practically identical with the amendment moved by me and lost in the Convention.
– Is not the suggestion of the Conference that the prerogative right to allow an appeal from the South African National Court to the Privy Council shall remain ?
– The provision proposed by General Botha was that where, under any Federal system or group of Colonies or communities, a Common Court of Appeal had been arranged, the right to cut off direct appeals to the Privy Council should be granted, and that the decision of the Court should be final except by leave of the Court in prescribed matters, power being reserved to grant an appeal as of grace to the Privy Council.
– Was it not to be in the power of the Privy Council to grant it?
– Yes. The provision was that the appeal by permission of the Court, or as of grace, was to be preserved . through the Court of Appeal - that all direct appeals were to be abolished. But there was implied a provision, I think, that even the right of appeal from the Supreme Court to the Privy Council could be cut down by the local Parliament. As a matter of fact, the general principle of autonomy in judicial matters was recognised in the resolution carried at the instance of General Botha. That shows what is reallypossible. The object of this Bill is to abolish in inter se matters appeals to the Privy Council. My opinion is that such an important change -in the relations of the Empire ought to be effected by an express amendment of the Constitution. Although we may have the- technical power to take this step - and I think it is probable we can accomplish it by the method adopted - I do not consider we ought to use a technical power existing under the Constitution to practically destroy an arrangement deliberately arrived at when the compromise was effected at Home. The Secretary of State for the Colonies cabled to the Governors of the Australian Colonies, in June, 1900, the effect of that arrangement, and honorable members will find from a perusal of the cablegram that it was understood by the Home authorities and by the delegates from Australia that the direct appeal was retained. If we had deliberately agreed to an amendment of the Constitution under which the right of direct appeal to the Privy Council in constitutional matters was retained, it would be scarcely honest to use a technical power to destroy the arrangement to which I have referred - the technical power to, by making the original jurisdiction of the High Court exclusive, cut off an approach to the Privy Council.
– Does not the honorable member think that the Secretary of State for the Colonies was trying to get support against the delegates?
– I do not, because, as I have already shown by quoting clause 74, which the Secretary of State for the Colonies was willing to adopt, the principle of abolishing the right of direct appeal in constitutional matters was agreed to. Unfortunately, the Premiers in Conference did not realize the effect of that clause, and remonstrances were made on behalf of various States against the abolition of the right of direct appeal. Whether rightly or wrongly, the Home Government considered it to be the deliberate opinion of the people of these States that for some time the right of direct appeal on constitutional matters should be retained. The despatch reads as follows -
In deference to the strong objections in the Australian Colonies to the arrangement made with the four delegates as regards abolition of the right of appeal to the Privy Council from the State Courts in constitutional matters, and to the interference of the Executive in Judicial decisions said to be involved in the provision by which their assent was made necessary to the appeal from the High Court .in such cases, I have prepared amendments to meet both objections in the Bill before the House of Commons.
That alleges that the Australian Colonies objected to the abolition of the direct appeal in constitutional matters, and that in deference to those objections, the right of appeal was retained.
– What objections were they? Objections by chambers of commerce, banking institutions, and so forth.
– I do not say they were right j all I can say is that the final arrangement, whether right or wrong, was deliberately arrived at, and that we ought not - by taking advantage of a technical power - to cut off approach to the Privy Council. It was never thought that we could destroy that solution by utilizing a technical power.
– Does the honorable member think we ought to have an amendment of the Constitution?
– That would be a more honorable way of making this change.
– The only effectual way.
– And the only effectual way, as I hope later on to show. The cablegram from the Secretary of State for the Colonies also set forth that the delegates unanimously adopted the resolution. If they did, they, to some extent, spoke on behalf of Australia. Unfortunately, like many others, they did not altogether apprehend the full significance of what was done. Whether we adopt the method of removal incorporated in this Bill or the other method of vesting in the High Court exclusive jurisdiction in all these matters, the objections I have offered are equally applicable. I do not wish to be technical in dealing with this question, but I should like to mention that it may be somewhat doubtful whether we can accomplish the object in view. When the Constitution was passed, the Courts of the States had power to decide questions arising under any laws that we passed. It they arose in the course of litigation, they were bound to give their opinions upon them. At page 42 of the report of the Baxter case, Mr. Justice Isaacs points out. in a very able, if not almost too subtle argument, that -
The Courts of the State are, by the terms of section 5 of the Constitution Act, bound by. and in every case cognizable by them must enforce the provisions of the Constitution and the Federal laws under it. But that is by reason of their ordinary State jurisdiction to interpret and decide the laws applicable to the case before them.
That the Courts of the States, whether we expressly confer upon them Federal jurisdiction or not, have jurisdiction to decide all matters that may arise under Federal Jaws, is shown in the case of Claflin v. Hauscman (1876).. 93, U.S.R., page 136. The learned Judge said-
Every citizen of a State is subject to two distinct sovereignties, having concurrent’ jurisdiction in the State - concurrent as to place and persons, though distinct as to subject matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any Court of either sovereignty competent to hear and determine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction. Thus, a legal or equitable right, acquired under State laws, may be prosecuted in the State Courts, and also if the parties reside in different States, in the Federal Courts. So rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States Courts, or in the State Courts, competent to decide rights of the like character and class, subject, however, to this qualification, that where the .right arises under a law of the United States, Congress may, if it see fit, give to the Federal Courts exclusive jurisdiction.
I think that this quotation has an educational bearing on the Bill before us. It clearly points out that, apart altogether from any grant by Congress - or in the case of Australia bv the Commonwealth Parliament - States Courts have jurisdic- tion to decide matters involving the interpretation of the Federal Constitution arising under laws passed by Congress. .But the judgment lays down that, in these matters, Congress may declare the jurisdiction to be exclusive, and so far, I think, we have a recognition of, at all events, the technical power to accomplish what is aimed at in this Bill, by taking away from the States Courts all jurisdiction, in order to cut off an approach to the Privy Council. We have a recognition of the power, although it is not absolutely certain that such a step may be successfully taken. If we turn to the Commonwealth Constitution, we find that it is bv no means clear that the power exists to declare the jurisdiction of the High Court exclusive in relation to inter se matters under sections 76 and 77.
– It is almost impossible to define what are inter se matters.
– It is a rather subtle question to have to consider, but it is by no means clear that we can exercise this power to make the .jurisdiction of the High Court, or other Federal Courts, exclusive in connexion with the very inter se matters mentioned in the Bill. I merely wish to throw out that suggestion. If honorable members turn to clause 76 of the Constitution, they will find that it provides -
The Parliament may make laws conferring original jurisdiction on the High Court in any matter - 1. Arising under this Constitution, or involving its interpretation.
I very much doubt that an inter se matter does arise under the Constitution, or involve its interpretation.
– It may or mav not.
– It is not necessarily a matter arising under the Constitution. Under clause 74, these matters do not necessarily arise under the Commonwealth Constitution. They may ‘ arise, as the Privy Council, in deciding the case of Webb v. Outtrim, directly laid down, under the Constitutions of the States. If I am not mistaken, Lord Halsbury, in his decision, said that what we cannot do directly we cannot accomplish by a round-about or sinister method, namely, take away a right that is expressly granted by the Constitutions of the States. It is quite open to argument that the inter se matters referred to, do not necessarily arise under the Commonwealth Constitution, but mav arise under the Constitutions conferred upon the States. Under our Constitution, these matters would be capable of being brought before the Privy Council only with the consent of the High Court. I do not know that it is clear that an inter se matter is one necessarily arising under laws enacted by the Parliament. Nor is it absolutely clear that the power to make jurisdiction exclusive, applies to anything more than the jurisdiction conferred under section 76 of our Constitution. That section says that the Parliament may make laws conferring original jurisdiction upon the High Court in certain matters, and section 77 provides -
With respect toany of the matters mentioned in the last two sections, the Parliament may make laws -
Court other than the High Court.
If I were asked to express an opinion upon the point, I should say that I think this Parliament can do what this Bill purports to do. But I know that opinions may be held with fair reason that the only, jurisdiction which we can touch under section 77 is the Federal jurisdiction conferred by Parliament in the exercise of the constitutional powers granted to it. That is a jurisdiction which, having been conferred by the Parliament, may equally be taken away by it. Upon thispoint, I wish to refer to the American case of Claflin v. Housemen, and to quote a passage, which is somewhat significant -
It was, indeed, intimated by Mr. Justice Story obiter dictum in delivering the opinion of the Court in Martin v. Hunter’s Lessee (1 Wheat. 334-337) that the State Courts could not take direct cognizance of cases arising under the Constitution,laws, and treaties of the United States, as no such jurisdiction existed before the Constitution was adopted. This is true as to jurisdiction depending on United States authority : but the same jurisdiction existed (at least to a certain extent) under the authority of the States.
The judgment then goes on to expound the position. I merely quote this extract with a view to showing that in that judgment a distinction was drawn between jurisdiction which is inherent and jurisdiction which is conferred, though practically both have the same result. These are merely suggestions upon my part, but upon the whole I do not think that they interfere with the probability that we can, by the exercise of a technical power, cut off from litigants in some cases the approach to the Privy Council as a Court of appeal.
– Without an amendment of the Constitution?
– Without anamendment of the Constitution. But my chief ob jection to this Bill is that this is not the more honorable way of achieving our purpose. It is a doubtful way of achieving it, and as there is no urgency in connexion with the matter, it will be far better for us to reconsider the question of appeals to the Privy Council by a direct amendment of the Constitution upon the lines foreshadowed in an amendment which I submitted to the Federal Convention, and which, according to the treatment meted out to a motion submitted by General Botha to the Imperial Conference, would now be accepted by the Imperial Government.
– Does not the honorable member think that the electors believed that the High Court would determine these matters ?
– I think that a majority of the electors of Australia - owing to the way in which the matter was presented to them - believed that the fight between our delegates and the Imperial authorities was one between judicial independence and its opposite. The point upon which I have been dwelling is that we never did get that recognition as the result of the drafting of the Convention, though probably the people assumed that we did. Another objection which I entertain to this measure is that it really involves our going back upon the views expressed by honorable members in 1903, when the Judiciary Bill was under consideration. We then thought that the High Court ought to be a tribunal of appellate and original jurisdiction. An attempt to give it a very large measure of original jurisdiction was defeated by a substantial majority, and, as a matter of fact, original jurisdiction in constitutional mattersis still vested in the Courts of the States. This Bill does not take away original jurisdiction from those Courts in matters involving the interpretation of the Constitution so long as they are not matters inter se within the meaning of section 74. The policy of vesting the High Court with a large measure of original jurisdiction was strongly condemned during the debate which took place upon the Judiciary Bill in 1903.
– There was a good deal of doubt then as to the future of the High Court.
– But the feeling was not that we should make the High Court a Court of original jurisdiction. The AttorneyGeneral, in a speech which he made at the opening of the session in1903, laid very great stress upon the necessity for erecting the High- Court as an Australian Court of Appeal. Very little was said of it as a Court of original jurisdiction.
– But, under the Patents Act and the Statutes that we have since passed, we have increased its original jurisdiction.
– There is no doubt about that. Nevertheless, it is bue that very strong objection was urged in 1903 to the large original jurisdiction proposed to be conferred upon the High Court by the Judiciary Bill in its original form. The general current of opinion was then in favour of making that tribunal a Court of Appeal, instead of one with large powers of original jurisdiction. Strong speeches in that direction were made by Sir Josiah Symon, who ought to speak with authority, seeing that he acted as Chairman of the Judicial Committee of the Federal Convention. This consideration, however, is quite apart from the question of the merits of the decision of the Privy Council in the case of Webb v. Outtrim, or of that of the High Court. It would perhaps be presumption upon my part to question the decision given by either of these tribunals. If I may venture an opinion, I think that the Privy Council was right in the conclusion at which it arrived, although, so far as the reasons advanced by Lord Halsbury for arriving at that conclusion were concerned, it was, in some respects, very much wrong. Indeed, I think that the Law Quarterly Review of last April expressed a very strong opinion in the same direction. ‘ To the editor “of that review it seemed incomprehensible that Lord Halsbury could have come to tha. conclusion which he did: - and which the Review accepted as correct - upon premises which, so far as their significance ‘ could be realized did not sustain that conclusion. So far as the Privy Council sought to introduce a fundamental distinction between the American and the Australian Constitutions, as to the power to declare laws unconstitutional, I think that its position was untenable. The reasoning of the High Court upon the whole seems correct,, but some of us think with Mr. Justice Isaacs and, Mr. Justice Higgins that the application to ,the facts of the principle laid down in Mcculloch v. Maryland was wrong, In the exceedingly able judgment which he delivered, in the case of The New. South Wales Commissioners of Taxes v. Baxter, Mr. Justice -Isaacs, referring to, such cases as Kielley v.
Carson, said that there was no doubt that there are fairly wide implied powers in our Constitution. It has been stated in the Senate that the doctrine of implied powers doesnot apply to the Australian Constitution. But I would point out that that doctrine applies even in England, which has not a Federal Constitution. Upon this point Mr. Justice Isaacs says -
How can it be denied that the central Government of Australia is by necessary implication, to be free from any impediment to the full and perfect performance of the national functionsassigned to it?
He then quotes authorities upon the point which seem to be fairly conclusive, at thesame time insisting in the words of the Earl of Selborne, that “ the principle must be confined within the limits of what is recognised as its assumed necessity.” That is really the whole point upon which thequestion hangs. I very much ‘question whether the High Court is not pushing the application of the principle laid down by Chief Justice Marshall in his decision in 1 81 9 under conditions which were somewhat different from our own, far beyond reasonable limits. In a very lucid article contributed to one of the American Reviews byMr. Justice Higgins when he was a member of this House - and I think that a similar, article appeared in the Commonwealth Law Review - he points out that the principle laid down in that case is not applicable to our own circumstances. He expresses the opinion not only that the application of the principle embodied in that decision was unnecessary to our conditions, but also that it ought not to have been the decision of the Court in America. It seems, to me that we are pushing that principle to absurd lengths. There is a good deal of. force in the statement that we have the political check power of disallowance which is vested in the Crownwhen Bills are reserved upon the advice of the Executive of the Privy Council. It mav be that mistakes have been made by the Privy Council in relation to our Constitution. At the same time, I think that similar mistakes were made by the High Court in dealing with a point pressed in the case of D’ Emden v. Pedder. In making an analysis of the decision at the time, I noticed” that the Chief Justice referred to the point, that, when the’ question of necessity is considered, there is a difference between the American and Australian Constitutions, arising out of the fact that there are some checks behind the Australian States anc? the Commonwealth which do not exist in connexion with the relations of the. American States and the Federation, one of them being the power of disallowance. He said that - ‘
It is, however, the duty of the Court, not of the Executive Government, to determine the validity of an attempted exercise of the legislative power.
The validity of the exercise of legislative power need not be considered bv the body which advises the King in regard to the disallowance of Bills. It is one of the things to be considered, but no judicial decision was ever given by the Privy Council in the matter, or by the advisers of His Majesty. All they have to consider is whether a Bill ought, as a matter of policy, to be passed. When, according to the advice given to the Crown, there is an Interference with the rights of a State - and the principle applied to the Colonies before Federation - when one State, by passing laws of .extra territorial application, interferes with the rights of another, the question of disallowance may be considered from that point of view, although no legal decision is given in regard to it. As a matter of fact, under the instructions that were given, and I think are still given, to the Governors of the States, if not to the Governor-General, if a Bill seems to be extra-territorial in its operation it must be reserved for the Royal assent. The general question considered in connexion with disallowance is policy, from the point of view not always of local, but of extra-territorial effect. It seems to me, therefore, that there was a misapprehension when it was stated that the Executive Government is not the body that ought to determine the validity of an attempted exercise of the legislative power, as that is the necessary way of insisting that the right of disallowance is a check. The Chief Justice continued -
The assent of the Crown cannot,’ nor can the exercise of the power of veto, give effect to an invalid law.
I never heard it asserted that the assent of the Crown can give effect to an invalid law. Disallowance is a check on the abuse of power by the Commonwealth, which does not exist in America, although it exists under our Constitution. The Chief Justice went on to say -
It would seem to impose an entirely novel -duty upon the Crown’s advisers if they were to be required before advising whether the power of veto should be exercised to consider the validity under the Constitution of the provisions of each act presented for the Royal Assent.
– I do not think that such an argument was ever put forward.
– No. It is only one of the matters which may be considered, but it is not the chief ground for disallowing or assenting to a Bill. On Sunday night I looked again through the celebrated American decision in the case of Mcculloch v. Maryland. It seems to me that the class of instrumentalities has been extended by that decision beyond the necessities of the case. Mr. Justice Higgins, in an article to which I have referred, has expressed the opinion that those instrumentalities which are not: to be touched by the State and the Commonwealth respectively are such as are necessary to the existence of the power affected. But the decision in the case of McCulloch v. Maryland is that even instrumentalities that are necessary, in the sense of being convenient, but not indispensable, are protected. At the end of that decision there is a somewhat significant mention of the fact that, if a uniform law had been applied, say, to the taxation of land held by one of the Federal instrumentalities, or a State instrumentality, touching the land of the Commonwealth or the State, and others, it would not at all follow that it would not be legal. -What the scope of that qualification was I cannot clearly see, but it has been relied upon in subsequent cases in which the application of the principles of McCulloch v. Maryland were called in question. I do not presume to make more than a few suggestions on this point, in connexion with the trend of Australian decisions. It may seem that we occasionally err in too pedantically following the decisions of American Courts, or adopting principles which may be vital in the case of . a Constitution like that of America, but are not absolutely necessary for the maintenance of the relations of the Australian States with’ the Commonwealth. I have suggested that’ the true method of dealing with this .matter is. by an amendment of the Constitution. ‘ That may involve delay; but there is no great hurry, and there is a second method available. Most of our appeals take place under Orders of Council passed under the Privy Council Acts, 3 and 4, William IV., chapter 41, and the amending Act, 7 and 8 Victoria, chapter 69. The first provided for appeals to the Privy Council from Courts of Error, or practically from what were Courts of final jurisdiction, and the amending Act extended them to any Courts. . The power of the Crown, might grant an appeal direct from a subordinate Court as of grace. In many cases we could cut down appeals by changing the Orders in Council under which they take place. That might not be a nice thing to ask the Imperial Government to do, but I believe that we could limit appeals from the States Courts merely in that way.
– It is the last thing we should ask.
– I do not know that it is the proper tiling to ask for it, but that would be better than to use the technical power which in .1.900 it was not contemplated would be used for this purpose, to defeat what was evidently the policy of the Convention and of the Imperial Parliament.
– Does not the honorable member think that our Judges know as much as the old gentlemen in England ?
– I do not deny that, nor does it arise from anything I am saying. I am with the honorable member in his aspiration to have these matters settled by the High Court; and I am endeavouring to suggest a symmetrical principle whereby that may be arranged. But we ought npt, by doing something which completely - ignores our relations with the Home Government, to cut off the appeal which was agreed to by the delegates who were sent Home. If we wish to have something done before the Constitution can be amended - and only the question of expense need be considered, because I believe that the Parliament would pass the measure necessary to sanction a referendum -we could ask the Imperial Government to alter the Orders in Council, and thus cut off all direct appeals on matters affecting the Constitution. That that would be agreed to is, I think, made pretty evident by afew considerations. I have already mentioned the opinions of “such, jurists as Mr. ‘ Dicey. I have given the resolutions of the Imperial Conference, which practically declare for the principle of judicial autonomy. The scope of the proposed new clause 74, which was rejected just before the final arrangement was come to at Home in 1900, is in the same direction. Besides that, if honorable members will read the speech made by the present Prime Minister of England during a debate on the Bill in the House of Commons, they will see that the aspirations of Australia in this matter have been explicitly recognised
– Sir Henry CampbellBannerman was in opposition then.
– No doubt. But I think that he is prepared to stand by the words which he then uttered. He is not a man in regard to whom it is generally alleged that he assumes opinions on big questions of this sort merely for party purposes.
– He is in a very responsible position now.
– No doubt official positions sometimes qualify political beliefs, but I think that Sir Henry CampbellBannerman was sincere when he said -
We have heard of opinions, in favour of retaining the appeal to the Privy Council, but the question at issue is - are we prepared to allow the people of Australia to interpret the instrument which they themselves have framed ? (Hear, hear.) . . . Why should it be so dangerous to leave the interpretation of the Commonwealth Act to those best acquainted with the circumstances and the state- of feeling out of which it has arisen? (Cheers.) Surely those who have framed it, who have seen the growth of the whole question, know what was intended when the Act was passed by the Australian people, and are better able to judge of the spirit and intention than persons who, though, perhaps, more learned, have no such acquaintance with local feeling? (Hear, hear.) It is enough for me to say- in the meantime that, even if all that legal ingenuity can urge in favour of the step taken by the Government were true, there still would remain the formidable objection that even if it were a desirable thing to accomplish, and even if there were some little prospective danger to be warded off, it is not worth the consequences that may follow from the step the Government are taking. For the sake of asmall technical point - in order to overcome a difficulty that might be otherwise met - we are to break in upon a solemn instrument which represents not only the will of the Australian people, but a covenant and contract entered into by the Colonies among themselves. We are to deprive our action of the grace attaching to a hearty reception ; we sow the seeds of complaint and dissatisfaction little favorable to lasting unity. (Hear, hear.) Therefore, as far as we on this side of the House are concerned, we will not be parties to taking the line the Government propose.
Mr. Asquith voiced similar opinions, not only in the House, but throughout the country. I made notes in regard to these utterances at the time, as I thought them of considerable importance in connexionwith future possibilities. In May, 1900, at the annual Conference of the Home Counties Liberal Association, he said, referring to the appeal clauses, that - if Australia was united in demanding them it was a demand which the people of this country ought to concede.
Then the present Lord Chancellor is. reported at page 221 of the Proceedings of the last Imperial Conference, to have said -
I, for my part, greatly hope that, however the functions of the Privy Council may be restricted, the connexion will not be severed between the Privy Council and the Courts either in South Africa or elsewhere. But every selfgoverning portion of His Majesty’s dominions has its own right to regulate its own affairs, “and do as it thinks fit in regard to that.
I think those pronouncements are absolutely in favour of an amendment of the Constitution, with which the Home Government could not technically interfere, or of any request we may make for help in this matter. The Australian’ press, so far as it represents public opinion, did voice the present aspiration of most honorable members in favour of making our Court of Appeal final. The Melbourne Argus, on the 13th June, 1900, objecting on some ground to the suggested new clause 75, said -
If the disputed new clause is omitted with a view of allowing the electors to decide the appeal question as a separate issue in the Australian legislature, the Colonies will not object - for this is what really they want as public meetings and public men and the press have everywhere declared. »
I said also that the present adjustment was not a misapprehension; at all events, that we relied on the terms of the cablegram to the Governors of the States from the Secretary of State for the Colonies, on the 17th June, 1900. Again, it was pointed out by Mr. Chamberlain, Mr. Haldane, and others in 1900, that we should not abolish altogether appeals to the Privy Council, because it was then in contemplation to establish a new appellate tribunal. But. so far as I can gather from the reports of the Imperial Conference, and from what has taken place during the last five or six years, that idea has been given up; and I do not think that there is the remotest likelihood of such a Court being established. The present Lord Chancellor of England is not in favour of such a tribunal ; and his speech” on the Question ought to be quite conclusive. That proposed appellate Court was one of the great reasons given for the retention of appeals to the Privy Council ; but, as I say, the proposal has been practically shelved. Again, in 1874, when the question of abolishing appeals from the Irish Courts to the House of Lords arose, the objection came, not from the Home Government, but from the Bar of Ireland. The Home Government were prepared, in a matter of almost quite as much importance to the Empire as our relations to the Privy Council, to abolish Irish appeals to the House of Lords, but objection was taken by a strong representative meeting of the Bar. Mr. Hempbell, Q.C., one of the principal speakers, did not wish to abolish appeals, but rather that the House of Lords should contain more members representative of Irish jurisprudence, so that there might be some knowledge of local laws when appeals relating to purely Irish matters were heard. That gentleman said that the English Judges were altogether ignorant of many of the Irish questions, which, from time to time, came up for adjudication.. Mr. Justice Hodges, in referring to Marshall v. The Colonial Bank, I think drew attention to the necessity for having one final Court of Appeal. His Honour seemed certain that the decision of the High Court was wrong, though the Privy Council had confirmed it; but he considered that it was better that the law should be certain, even if it should be wrong.
– Than that the law should be right, the honorable member means. “Mr. GLYNN. - No; I think there was irony in the remark. The particular appeal came from a single Judge through the Supreme Court of Victoria; at all events, whether the High Court was wrong or not, what Mr. Justice Hodges desired was that the alternative appeal should be abolished, and that there should be only one Court of Appeal for Australian matters. I do not think, that the method now proposed will really settle the clashing of jurisdiction between the High Court and the Privy Council. All that we shall do will be to declare that whenever a decision is given by the High Court it is to be obligatory on the litigants. But the Privy Council may be called upon, in some cases, to give its opinion; and it will not be likely to alter its opinion in order to follow the decision of the High Court. A question may arise whether the case is one of inter se or not, and, further, a question may be raised in the English Courts. In the course of English litigation an Australian Act ma.y come up for consideration, and Australian rights mav be affected; but the English Courts will be guided by the decision of the Privy Council, and not bv the decision of the Australian High Court. Under the circumstances, we shall not accomplish, by the method proposed, what cannot be accomplished by either of the two methods I have suggested. I should like to say a
Word as to the decision in Parkin v. James. It was decided by the High Court that there is a direct appeal, practically stereotyped by the Constitution, from the decisions of the Supreme Court’ -of the’ States in State matters, even though the jurisdiction may be exercised by a “single Judge in chambers, so long as his decision is final. I think that that decision was the result of the drafting in the Convention. Under section 73 of the Constitution, and as it stood then, it was competent for the Federal Parliament to abolish appeals, not only in Federal matters, but in State matters, from the Supreme Courts of the States. So that when eventually appeals to the Privy Council are cut off the Federal Parliament might cut off appeals- in State matters from the States Courts, and thus leave the Courts of the States without any appellate tribunal. In other words, the appeal to the Privy Council will have gone, and the Federal Parliament could have abolished the appeals from the States Courts ; and ‘ I said that that was not a provision that ought to remain in the Constitution in view of ‘ the American authorities as to how it will oper-ate. What I asked should be done was that a provision should be made that wherever appeal lay to the Privy Council on the establishment of the Commonwealth , an appeal ought to lie to the High Court until, in State matters,’ the States Parliaments abolished it, and, in Federal matters the Federal Parliament, abolished it’.- Honorable members will see that the question whether there should be an appeal beyond the Supreme Courts of the States in purely State matters ought’ to be decided by the Parliaments of the States, and that the question whether there should be an appeal in Federal matters from the States Courts to the High Court, or to what extent that appeal should be preserved, ought to be decided by the Federal Parliament After several efforts I succeeded in getting the Drafting Committee to take up the question, but, unfortunately, the amendment which I suggested, when it was redrafted by the’ Drafting Committee, emerged in another form, and with another effect. . As the provision now stands in the Constitution, it stereotypes every appeal then existing from the Supreme Court of a State to the Privy Council as an appeal to the High Court. No power is vested even iri the Federal Parliament or in any of the States Parliaments to abolish any of these appeals. That power should not be given to the Federal Parliament in State matters, but should have been given in State matters to the States Parliaments. The unfortunate position also in which we are landed - if it is unfortunate, and some think it is - under which a good deal of the jurisdiction of the States Courts may be taken away by the operation of thedecision in Parkin v. James, is a consequence, not of deliberate intentionon the part of members of the Convention, but of an unfortunate error in drafting.! That ought to be borne in view in any attempt that may be made to alter the effect of the decision in Parkin v. James. I have spoken somewhat hurriedly on a technical subject, and I will say nomore, as the hour is late, and I do not wish to leave anything I have to say to another day. At present, at all events, I cannot say that I intend to oppose the Bill. . My chief object was to impress upon the Government the greater desirableness of adopting another course, which would be more consistent with our position or. our relations to the Home Government, and quite as efficacious, in connexion with a fundamental alteration of the Constitution, and. greater in its scope. It would clearly establish the final jurisdiction of the High Court in all matters, which, of course, will not be done by simply taking away the original jurisdiction of the States Courts. But if we. do not wait, or do not wish at once to incur the expense of an amendment of the Constitution, there is another way open, which I have suggested- by asking the Imperial Government, which in this matter could then co-operate with us - and it would be a much smoother way of accomplishing what we intend - under the provisions of the Privy Council Act, to vary the Orders in Council and cut off these appeals.
.- After the able speech of the honorable member for Angas, the ‘ Government might well take a little time to consider this question, and the suggestions made by him. I ask them to consent to the adjournment of the debate until to-morrow. It is all very well to try to treat the Bill as a party question. I am sorry that there were .not more’ members in the Chamber to listen ‘to the last speaker. I am sure he would have made such an impression upon them that they would not have treated this as a party measure, and dealt with it on party lines.
– Move the adjournment of the debate.
– I am not going to do so if the Government object. I do not want it to be said that I ain delaying the Bill in any way, but I wish to mention one or two points to show what a great mistake the Government are about to make in passing this Bill, from the point of vie-w of the interests of the public. To start with, there is not the slightest doubt that the honorable and proper course in a question of appeals, such as this, is to amend the Constitution.’ I do not think that we shall take any pride afterwards, or can take any pride now, in attempting to do by a side wind what can be legally done. That is really what this Bill is doing.
– Move the adjournment.
– The Government propose to carry the Bill through to-hight, and have the numbers. If they choose to take the responsibility ‘ on their shoulders, I am going to allow them to do so. I shall merely give a few reasons why they should not do as they propose. The idea is that this Bill is going to simplify litigation. It will do nothing of the kind. It will increase the expense of the public, and create great difficulties. Questions .such, for instance, as the rating of a civil servant for his house property may arise. Such a case may come before the ‘States Courts, and the question will be raised by some lawyer that it is a matter of Federal jurisdiction with which the States Courts have no power to deal. That will probably mean that all the litigation that has been carried on in connexion with that case for some time will be invalid. Some question may arise as to the stamping of documents as between New South Wales and Victoria, or between Western Australia and South Australia.
– Bills of lading, for instance.
– That is quite true,, as my honorable friend suggests. It may be held that the State Court has no jurisdiction whatever after litigation has been pending for, perhaps, twelve months. The expenses of litigation in the High Court are much greater, and the fees and charges are much higher, than in the States Courts.
It is proposed to confer certain forms of jurisdiction on the Federal Court alone. Counsel’s fees are higher in the Federal Court, and the delays are greater. I do not think that if the number of judges were doubled, they would be sufficient to carry out the work which the Government propose to put on their shoulders. In view’ of all these points, it would be wise for the Government to take a little more time to consider the question, and to give honorable members also an opportunity of considering it.
– The Bill has been circulated for weeks past.
– Does the AttorneyGeneral mean to tell me that any man without judicial or legal training can understand the meaning of this Bill ? I have had to obtain copies of the original Act, and of the Bill, compare them, and write out the amendments. What opportunity has a lay member of dealing with a question of this kind?
– Does the honorable member think that a lay member will, after a discussion here, understand the question ?
– I think if he had listened to the honorable member for Angas, he would have understood it, and changed his mind as to voting for the Bill, had he intended to vote for it. He would have said that the proper way of dealing with the question is to amend the Constitution. The Bill will not do away with appeals to the Privy Council. Questions will be sure to’ go to that body. I doubt very much if we can take away from the States Courts, or from the States themselves, powers that are granted to them under their own Constitutions. They have their own separate powers, with which I doubt whether the Bill will successfully interfere. But it will raise any number of difficult points that will go either to the High Court, or to the Privy Council. It will increase the work of the lawyers and the expenses of litigants, and create difficulties without improving the position at all. It is of no use to speak against the Bill, because the Government have made up their minds to force it through to-night. If they do, “they must take the responsibility on their own shoulders, but I am satisfied that, “ before twelve or eighteen months are over their’ heads, curses loud and’ long will be uttered against them by the public, who will be the sufferers, for having introduced the Bill.
– It is a striking commentary upon parliamentary procedure in dealing with technical Bills, and also upon the peculiar attitude, taken up by the Government on this occasion, that such a speech as we have heard from the honorable member for Angas - a most carefully thought-out speech, full of erudition, that might well be carefully studied and thought over - has been delivered practically to empty benches. It is very unfortunate, and not encouraging to any of us who desire to aid the Government in arriving at a solution of the. very serious difficulty which faces us all in the working -out of the Constitution, that that should be so.
– Honorable members may prefer to read the speech. They may feel that they will be able, in that way, to do more justice to it.
– In that case, the position may be very similar to that created bv shutting the stable door after the horse has gone. I do not propose to. occupy much time, seeing that the Government has determined to force through the House, at this late hour, this extremely important measure, involving fundamental considerations in connexion with the whole constitutional fabric under which we live. In the circumstances, it would be perfectly useless for me, or any one else, to attempt to interest honorable members in a very technical discussion. I say at once that I deplore the fact that, under the Constitution, we have two Courts, whose decisions may, and do, come into conflict. Section 74 - the compromise which was ultimately effected in London - was, perhaps, the most unfortunate solution of the difficulty that could possibly have been arrived at. The fact that there is a conflict between the Privy Council and the High Court as to some of what we may call the primary principles underlying the Constitution, is a matter which ought to engage the most serious and earnest attention of the House. But are we likely now to have that attention, or to be able to deal with the question at all under this Bill ? The object of the Attorney-General in introducing the Bill is, I think, to meet the situation, but I believe that under it the difficulty will remain as great as it is at present. It will leave us with two tribunals each claiming to be the final arbiter in regard to a large portion of our constitutional law. It will leave our position absolutely uncertain.
– I propose to show that it will. I have no doubt that the Attorney-General has devoted careful attention to the matter, but I would venture to remind him, without any breach of modesty, that it has been my fortune, or misfortune, to have been engaged recently in several cases to which the honorable member for Angas has referred, and that in connexion with those cases I, and others, had to go into this question quite as fully as he has done. Assuming that the Bill passes as it stands, it will still leave the conflict between the Privy Council and the High Court, as to what is the final law regarding these various constitutional points, in exactly the same position as at present.
– In what way ?
– this Bill does not in any way affect the authority or the standing of the Privy Council as the final and highest arbiter of our constitutional law.- It partially cuts off one channel through which certain classes of litigation may go to the Privy Council, but it does not do that in such definite or clear language that an ordinary lawyer is capable of determining to what extent it goes. Of all the difficult constitutional questions which can possibly be raised, the very meaning of this section 74 as to powers inter se is, perhaps, the most difficult. Let me give one or two. simple illustrations. As the honorable member for Angas has pointed out, a question as to the constitutional powers inter se of the States might or might not involve the construction or the interpretation to be put upon the Federal! Constitution. Such a question might arise in many cases which would not involve an interpretation of the Federal Constitution. Let us take a case of trespass on land within the disputed territory lying between Victoria and South Australia, and, by the way, I may say that the dispute in regard to that territory is now largely settled. Let us ass’ume that a man commits a trespass, and that the person; aggrieved sues him for trespass in the Supreme Court. The defendant at once raises the reply, “ I only walked over your land.” The rejoinder of the plaintiff is, “ But you did some damage.” The issue is a very simple one. The defendant, however, says, “ This is a case which gives rise to a question as to the constitutional powers inter se of the States of South Australia and Victoria.” The moment that defence is raised the Supreme Court has no jurisdiction. The plaintiff might have brought his action in a County Court. That Court could deal effectively with the simple case, but the Supreme Court under this Bill would be effectually prevented from dealing with it.
– In such a case, would the question of inter se arise bond fide?
– Certainly. Let me show how it would arise. The man who trespassed would say to the plaintiff, “ You have no title to the land, and therefore you cannot complain that I have trespassed on it. Your title purports to have been granted by Victoria, whereas South Australia holds that she is the only State that can give a title to it.”
– That would be a serious constitutional question as to the powers of two States.
– It could not be decided in a County Court.
– Is it not one of the class of cases that the High Court was intendedto deal with - a dispute as between two States ? .
– Certainly not; it is a case to be decided like all others on appeal. Let me cite another illustration. We will assume that a Commonwealth Custom’s officer in the performance of his duty proceds to enter a house in order to seize goods which he says have been wrongfully removed from bond.
– Wire netting, for in.stance
– Wire netting, tobacco, or any goods which the officer says have been improperly removed from bond. He proceeds to enter the house in the performance of his duty, but for some reason or other he is stopped by a State police officer. Let us suppose “ that in doing this he commits what is an offence against the police law of the State, and that the policeman says, “J. shall take you to the lockup.” The Customs officer at once replies, “ I am a- Federal officer and you have no right to stopme.” In that event a question at once arises as to the limits inter se of the constitutional powers of the Commonwealth and of the State concerned, and the Supreme Court is absolutely incapable of dealing with such a matter. It is true that the man could be prosecuted in a police court, and could be convicted by that court, but if he applied, by the ordinary form of an order to review to the Supreme Court, the presiding Justice would say, “ Although the police court could deal with the case, I cannot.”
– Will the honorable member explain exactly how the conflict of powers between the Commonwealth and the State would arise?
– It would be very difficult to go into all the arguments which recently occupied the attention of the High Court for four or five days, but the examples I have’ cited were on that occasion brought before the Court and were admitted to be questions inter se.
– And cases in which there was really a conflict of power between the Commonwealth and the States ?
– I do not intend to occupy the attention of the House at length, because I recognise that it would be perfectly useless at this hour to attempt to seriously debate these extremely difficult questions, or to ask the attention of honorable members to them. We are really asked by the Government to do a little bit of not very effective tinkering with a ‘very difficult subject. There is one way, and one way alone, in which we can properly tackle this great question. First of all, we have to look to the objects which we desire tq achieve. As far as I am concerned, I am entirely in accord with those who think that our High Court ought to have intrusted to it the final interpretation and construction of our Constitution. Not only am I entirely in accord with that view, but I am prepared to assist the Government in carrying it into effect. I believe that if a Federal Constitution like ours is to be worked out and developed so as to carry out the ideas in accordance with which it was instituted, that end can only be properly attained under a Court which is located in this country and familiar with our ways and with our laws. Starting from that ground, let us see whether this Bill carries us one step towards the ideal. First of all, what is the proper way in which we can attain what we desire? I will go further, and say this: I look forward to the time - it has not come yet, and may not come for a very long period- - when we may be able to trust the final determination of all legal questions to our own local Court. But I repeat that that time has not come vet. and it may not come for a long time, because of our relations in respect to commercial and other interests with the mother country. It may not be possible, for a long time, to deprive those persons who are interested in our affairs - prejudiced as they may be, but to whose good-will toward us and to whose capital we owe, and shall for a long time owe, a great deal of our commercial prosperity - of the right of appeal to the Privy Council. It might result in very serious loss to all classes of the community to do that. Therefore, I think that we must retain for a considerable time the right of appeal in ordinary matters of commercial and business law, arid of general law, to the one Court of Appeal for the whole of the British Dominions. But that is quite consistent with arranging that our own Court in Australia shall have the final say and the ultimate word, and shall be the final Court of Appeal, in regard to all questions involving the interpretation of our own Constitution. Those two principles being admitted - and I do not think that there- is any doubt about them - we come to inquire how are they to be carried into effect. Here we meet with serious difficulties. I say that there is one way of achieving our purpose, and one way only ; and that is the way that has been pointed out bv the honorable member’ for Angas and the honorable member for Balaclava, namely, by an amendment of the Constitution. That is the only possible way.
– How does that relieve us of our difficulty with Mr. Carruthers?
– I am very sorry to hear the name of Mr. Carruthers mentioned in connexion with this matter. Are we passing a Bill instituting a change in the judicial system, not only of the States but of the Commonwealth, for the purpose of hitting at Mr. Carruthers? If not, what is the -meaning of the honorable member’s interjection? I think that we ought to leave such a consideration entirely out pf the matter. What I believe can be done, if the Government desires to attain the object which we all desire, and which I have endeavoured to explain, is - and I believe firmly that if the Government has the courage to go forward in the direction I have indicated, there will foe no substantial difficulty, though there will undoubtedly be a little -delay - to obtain an amendment of the Constitution that will, once and for all, place us in a proper position - the position which we ought to occupy with regard to the final determination of all constitutional matters.
– Cannot that be done even if this Bill is passed?
– This Bill does not help us a bit in that direction. The effect it will have is this : First of all, it will say with regard to one of our Courts - namely, the Supreme Court - that when a certain class of questions of a character highly difficult to define, arise in that Court, its jurisdiction has been ousted. Those questions are as to the rights inter se of the Commonwealth and of the States. Now, suppose the defendant in any case in the Supreme Court desires to raise an issue simply for the purpose of causing delay - a kind of thing that is frequently done. It is not always the lawyers who are to blame for that. It is frequently their clients who desire that difficulties shall be raised, and the lawyers cannot be blamed for giving effect to their wishes if the law allows it.
– Even if it is not right?
– The lawyer is not set up as a judge of morals.- He is there to do what his duty requires him to do, namely, his best for his client under the existing law. No one can blame him for doing it. What I say is that if this Bill passes, there are hundreds of such instances which might be cited. I myself could give numberless instances in which in all kinds of actions the validity of any State Act,” no matter what it may be, may be called in question, because it can be said that it is in conflict with some provision of the Constitution. And that may apply to almost every action in which the question of the power of a State Parliament to pass a particular Act can be raised. It may very well be said, “ Oh, but the objection is not bond fide.” Who is to determine under this measure whether it is bond fide or not? As soon as the issue is raised - no matter for what purpose it is raised - the Court cannot inquire what the purpose is. The Court cannot inquire whether it is honestly raised or not. As soon as the issue is raised, ihe Supreme Court is deprived of all jurisdiction. Now, I saywithout the slightest hesitation that that will lead to two things. In the first place, it will lead to placing in the hands of unscrupulous lawyers and unscrupulous clients, a weapon which they will use to the very widest extent, and to the fullest purpose, in order to delay the ends of justice. It will do that undoubtedly. Another thing it will do is to throw upon the original jurisdiction of the High Court such a volume of litigation as will inevitably necessitate a large number of new appointments to the Bench. Those are the two consequences which will arise from this Bill. And while it will do these two things; it will not achieve the purpose which the Attorney-General has in his mind.
– Does the honorable member anticipate that a number of cases of that kind will occur?
– Any number of them. A very large percentage of the cases that at present come before the Supreme Courts will be dealt with in that way. This measure will be used as an instrument, and a very efficient instrument, for creating delay and causing confusion. I know that it is the fashion to sneer at lawyers and their ways, but I can say, without the slightest hesitation, that as far as lawyers are concerned, this is just the sort of Bill that they want.
– Has not the honorable member said that about other Bills?
– I have not said that about any other Bill.
– I have heard it said a hundred times.
– There is no Bill that can be conceived which would be more likely to lead to just that kind of confusion of issues which will require the utmost legal skill to disentangle them.
– The honorable member said that about the Quarantine Bill.
– We are not now discussing the Quarantine Bill. Does not the honorable member think that I, as a lawyer who has had some little experience of these matters, should make that statement, if I believe it to be true? .
– I .do not object to the honorable member making that statement. I merely say that the same thing is said df many Bills.
– I feel that it is quite impossible for honorable members to discuss a highly technical question of this kind in all its bearings when they have been suddenly wrenched from the atmosphere of finance and Tariff proposals in which they have been steeped. .
– And honorable members are already very tired.
– Yes. For my own part, I feel that it would be quite useless for me to attempt to give ,to the House any fair idea of my own views upon this Bill, except in the barest outline Which I have already given. Since the Government are determined to push this measure through, I think that, perhaps, we shall be best serving the interests of the country by allowing them to take the whole of the responsibility attaching to it. I can only voice very briefly the warning which I, as a lawyer, feel should be uttered regarding the difficulties of the situation. But I think that, perhaps, the best thing we can do under the circumstances, is to abstain from attempting to discuss the Bill. The Government have introduced it, and they must take full responsibility for it. Perhaps we shall best consult not only our own interests, but those of our constituents, by getting, not only this Bill, but the other measure’s which the Government are determined to interpose in the Tariff discussion out of the way as soon as possible.
– Ministers will then have some other excuse for not proceeding with the Tariff.
– I feel that, “ under the circumstances, any real discussion of the Bill will be quite useless and ineffectual. I therefore urge upon honor-‘ able members who entertain the same view as myself that we shall be best serving the interests of the country by allowing the Government to accept the full responsibility attaching to the passing of this measure, and by resuming, as speedily as possible, the discussion of the Tariff proposals which has been so needlessly interrupted.
– I wish to ask the Acting Prime Minister what is the intention of the Government in regard to this Bill?
– We propose to pass it to-night.
– In view of the statement of the Acting Prime Minister, 1 wish to say that, although three speeches upon the Bill have been delivered by honorable members upon this side of the House, no honorable member upon the opposite side has deemed it necessary to say a word. The speeches which have been ‘ made have merely touched the fringe of the subject, but they have been sufficient to show the grave and far-reaching character of the measure now under consideration. I think it is most unreasonable to begin to apply methods of brute force to a Judiciary Bill. I shall not be a party to the application of such methods to measures of far-reaching importance and of a nonparty character. We should address ourselves to their consideration when our faculties are most alert - not when members are in the tired and jaded condition in which they are now. For these reasons I shall decline to discuss the Bill at all. T shall do - as the honorable member for Flinders has suggested - throw the entire responsibility upon the Government, and allow them to take their own course.
.- I regret exceedingly the tone of extreme petulance exhibited by the last two speakers. It seems to me particularly childish that they should complain that “the numbers are up,” seeing that the action of the Government is the result of an attempt by the Opposition to use their numbers in an extremely improper manner. To my mind, this Bill represents an attempt to restore to the Australian people certain rights of which they were deprived by the action of the Imperial Parliament in inserting certain amendments in the Commonwealth Constitution Bill. There is no doubt that the people were under the impression that that measure limited very largely the right of appeal to the Privy Council. I am very glad that it is proposed to confirm the High Court in its position as the final arbiter upon questions involving the interpretation of our Constitution. The honorable member for Flinders quoted two cases in this connexion. He cited the case of a man who brought an action for trespass in the “ no man’s land “ lying between Victoria and South Australia. He instanced that as a case in which the individual might no longer have his remedy in the Supreme Court, but in the County Court. Personally, I do not think he would have any remedy in the County Court. The honorable member further cited the case of a man who had certain Customs rights which had been infringed. These very cases, it seems to me, should be decided, not by a State Court, but by the High Court. I want to know what provision is made in this -Bill for a poor man who Kas rights similar to those which may arise in the case of the disputed territory between Victoria and South Australia. The Supreme Court of the State could not act. Unfortunately, the County Court could not act, because the jurisdiction of the County Court of Victoria is limited to the State, and the Police Court could not act. The consequence would be that in a small dispute a man would have to avail himself of the original jurisdiction of the High Court. I wish to know if the AttorneyGeneral proposes that in a small case there should be only the High Court open to a litigant?
– Whatever jurisdiction the inferior Courts at present possess is left to them. .
– The defendant in a certain case might raise the question that the authority relied on was outside the jurisdiction of the County Court of Victoria, and consequently a man who previously had a right to take a small case to the Supreme Court would have only the High Court to go to, and might have to wait for months before his case could be dealt with. These are practical difficulties in the way. In the splendid and exhaustive’ speech of the honorable and learned member for Angas, for which I feel the ‘ House must be grateful, we had the admission that even the honorable member, looking at the Bill from a strictly critical stand-point, be,lieves that we can proceed in this way . under the Constitution, although he would , prefer that we should adopt the procedure of an amendment of the Constitution or an Order in Council by the Privy Council. I am very glad to be able to say that if the Prime Minister at the Imperial Conference took one stand ‘ - more firmly, than another it was that we want no outside interference with our Australian Constitution. If possible, we wish to work out our own constitutional reform by ourselves. I would far rather adopt the cumbrous method provided for amending the Constitution to making an appeal to the Imperial Parliament or any outside authority to define our powers in any way. I should not approve of the procedure of an appeal for an Order of the Privy Council ; to amend the Constitution would be to adopt a cumbrous procedure, to which effect could not be given for three years, and consequently I feel that we should adopt the course now proposed, and which the honorable and learned member for Angas admits is a constitutional procedure. It is, at all event’s, in accord with the views of the Australian people, and I am therefore glad that the matter can be settled in the way proposed, and that this measure has been brought forward promptly.
Bill read a second time.
In Committee :
Clause 1 agreed to.
Clause 2 (Matter in which jurisdiction of High Court is exclusive of jurisdiction of State Supreme Courts).
– I should like to ask the Attorney-General what his explanation is of the fact that States Courts which are not Supreme Courts are not touched by the Bill. The
Judiciary Act, if I am not mistaken, deals with all. the Courts of the States, including the subordinate Courts. Why is it, then, that when a matter originates in the subordinate Courts it is not to be shifted? Is it because the power of removal does not exist in tha lower Court?
– Under the Bill, the jurisdiction, both original and appellate, is taken away only from the Supreme Courts and not from the inferior Courts. The reason is that the right of . appeal lies by virtue of Orders in Council in connexion with the Supreme Courts, and so enables an- appeal to be taken direct.
– That was my object in pointing out that the Act 7 and 8 Victoria, ch. 69, gives the right to the smaller Courts.
– Only by leave.
– Still, the right exists.
– We acknowledge that it exists by leave, but it would be an extreme exercise of that power to allow the appeal from an inferior Court.
Mr.- Crouch. - Mr. Justice Isaacs, when at the Bar, advised that if the Police Court were the final Court a,n appeal would lie as of right.
– As regards the inferior Courts, there would be only an application for special leave.
– Those applications might be granted.
– I am absolutely certain that the Privy Council would give leave to appeal.
– I do not think so, and if the Privy Council would do so it is a question whether we should not go further than we propose in this Bill.
– Would it not be wise to close up all the avenues at one time?
– We do not desire to have thrown upon the High Court the necessity of adjudicating upon some minor matters that may arise in remote parts of Australia. We wish to leave the States Courts as far as possible to continue the exercise of their jurisdiction. We do not desire to put the country to the expense of creating Federal tribunals to decide cases which the States Courts can now decide. We do not believe that an appeal would ever be allowed from these inferior Courts, and it 5s for that reason we have taken the power away only from the Supreme Courts.
.- All I can sa,y is that what we now hear knocks all the worth out of the Bill. I thought that this really was a Bill intended to affirm some ‘ important principle ; but it appears that it is proposed to” leave all these inter se matters as matters of original jurisdiction to the County Courts, District Courts, and Police Courts.
– Quite so.
– Well, I hope that the Committee apprehends what is being done. It only shows what this piecemeal legislation amounts to. Under this Bill, while we have absolutely emasculated the original jurisdiction of the Supreme Courts of Victoria, South Australia, and New South Wales, the District Courts, in important inter se matters, the County Courts, and the Police Courts, can still entertain these questions; and an appeal may go from them to the Privy Council by leave. I may tell honorable members that this was one of my reasons for quoting the Act 7 and 8 Victoria, ch. 69, which was deliberately passed to give the right of appeal from these subordinate Courts over the Supreme Court of the State direct to the Privy Council. Such appeals are frequently entertained.
– Are there many cases quoted in which they have been entertained ?
– I looked the matter up, and could not find many.
– It will be found that such appeals have been entertained from all the Colonies, but I cannot remember particular instances.
– They are very rare.
– I have seen it stated that they have been frequently entertained.
– I do not know of one from Australia.
– That is because we have made use pf our own- Supreme Courts a.s first Courts of Appeal. But new conditions have now arisen. The Supreme Courts have, been denuded of jurisdiction. The result under this Bill will be that, if in a case before any of these inferiorCourts, the litigant wishes to go to the Privy Council, the Privy Council will entertain his appeal. The rule in Canada and the rule laid down in Australia in Prince v. Gagnon, is that where the litigant does not go in the first instance to the Court of Appeal, which is our High Court, or in the case of the States to the State Supreme ‘Courts, the Pa-ivy Council will ‘ entertain- an appeal, not merely in important matters, but in ordinary matters.
I am protesting against a Bill which pretends to enact a great principle, leaving matters in that state. It will be found hereafter that these large inter se questions will be settled by the Privy Council directly on appeal from the subordinate tribunals of the States.
.- I desire to refer to the recent case of Robinson . v. Webb, in which Mr. Arthur Robinson applied to the Privy Council for leave to appeal thereto. It was a reserved case to the case of Outtrim v. Webb. He was appealing against the taxation of his parliamentary allowance under the Income Tax Act of Victoria. Mr. Isaacs, who was then at the bar, advised him that he had an absolute right to appeal from the Court of Petty Sessions to the Privy Council, because, at that time, that Court was-, by Victorian legislation, made the final Court of Appeal in income tax cases. The Privy Council always takes up the position that if a person cannot get redress from the courts of his country he has the right to apply to it for leave to appeal. Seeing that under Victorian law he could get no further redress in Victoria, Mr. Arthur Robinson had the right to ask the Privy Council, as a matter of grace, to allow him to appeal thereto. I think that the honorable member for Angas is quite right. In closing one avenue to the Privy Council, we do not wish to leave the way open to a person to appeal, not from the Supreme Court of a State, but from its most inferior Court.
Clause agreed to.
Clauses 3 to 7 agreed to.
. -I move -
That the following new clause be inserted - “8. This Act shall not apply to causes or matters pending in a Court of a State at the date of its coming into force.”
The point I had in view in circulating the amendment was whether we ought to deny the right which now exists to cases such as that initiated by the Government of New South Wales within the last few weeks or so. I do not think that any legislation ought to be made practically retrospective. This Bill is not quite retrospective in the ordinary sense. If is not applied to cancel rights which have been granted prior to its introduction, but it certainly does take away from a litigant the right of going to the Privy Council which he had when heinstituted proceedings. New South Wales had, I think, begun proceedings, and the” Commonwealth had taken proceedings against that State before the Bill was introduced. I think the State authorities are under the impression that as the proceedings had been begun an appeal may go to the Privy Council. I am not prepared to say at the present time that they can get to the Privy Council, because I do not know exactly what has been done. If they have gone to the State Court I do not think it is likely that Mr. Carruthers will get to the Privy Council, because he would obtain a decision in his favour, and it would then be for the other party to say whether he should go. At the same time, if there is a case pending - and I am informed that there is - in any Court from which an appeal may be taken to the Privy Council, it seems to me like taking away a right which existed when the proceedings were instituted if we pass the Bill without this new
– I acknowledge that the honorable member for Angas has directed only the fairest criticisms against the Bill. As regards some of his criticisms, I was inclined to agree with him. Had it not been for the pressure which is put upon us by the necessity to deal with the Tariff, I would have assisted him in closing some of the loopholes which the Bill appears to me to allow to remain open. But, as regards his amendment, I regret that I cannot see eye to eye with him. In the first place, as he admits, it is rather improbable that one large case that is pending is likely to reach the Privy Council. It is the right of the loser to select the tribunal to which he will appeal, as a Court of final jurisdiction from a judgment of the Supreme Court. Therefore, it does not seem to me that there is much probability of an appeal to the Privy Council taking place. Leaving aside such cases, I do not see what real injury can be done to any litigant by the action which we are taking. I am inclined to believe that the interests of litigants will be better served by limiting the number of Courts to which an appeal can be made. Early finality is desirable in their interests, even in cases where abstract justice is not always administered. If we can reduce the number of Courts to which litigants can go, it would be a gain. But I do not think that there can be any two opinions as to the desirability of having only one interpreter of the Constitution. What injury can result to any State or party interested in a constitutional case by our limiting the right of appeal to the High Court? Surely we have confidence in the constitutional knowledge of the Court which we have created, and its desire to interpret the Constitution in a fair spirit, as between litigants I .Although I do not agree with some of its decisions, still, I recognise that it has been actuated by the highest motives, and by an earnest anxiety to hold the balance evenly between the Commonwealth and the States, and to’ interpret the Constitution in the spirit of legal maxims and understandings. That, coupled with the high ability of the . Judges, should, I think, inspire -us with confidence that the Court will see that no harm shall accrue to any litigant. While I agree with the honorable member that in ordinary cases retrospective legislation is undesirable, I do not think that we can do any harm in this particular instance, even though the measure may involve actions already pending.
– I -would point out to the Committee that the Bill was not in- .troduced because the Government had in view any particular case, and, as for cases instituted since its introduction, thev were commenced with the knowledge that it was before Parliament, and that the Government intended .to pass it. Whether it will affect any case will depend upon the defences and pleadings which are raised, and I am not prepared to express a dogmatic opinion on the point. The Bill has been introduced to put an end to conflicts of interpretation in regard to the fundamental principles of the Constitution. One such conflict of a serious nature has already arisen, and we do not wish for others, because they are most disturbing factors, and the Constitution deals, not with trivial but with important matters, affecting the welfare of the Commonwealth and the States, and their harmonious relations. What is desired is to have one final Court of Appeal.
.- I regard the proposal of the honorable member for Angas as- fair and reasonable, and 1 should like to see it passed in the interests of fair play. Last vear. I had to give advice in an income-tax case, and if the Premier of Victoria had had the power to force me to the Privy Council, and had exercised it, T should have considered that I was being very unfairly treated. I am sorry that the case of the Premier of New South Wales has been brought into the dis cussion; but Mr. Carruthers, and any other man who has already commenced ah action, will have a real grievance if we do anything to interfere with or prejudice any right which he had at the time of its commencement. It may be true that in-‘ tending litigants knew that the Bill had been introduced, but no one can say in advance that a Bill will pass. Those who have already commenced actions should be allowed to retain the privileges which the existing law gives to them, among which is the right to appeal to either the High Court or the Privy Council. We shall .do an injustice to litigants and to ourselves if we took away that right.
– Do the cases to which the honorable member refers arise in connexion with the conflict of powers?
– This conflict existed at the. time when litigants were advised to commence their actions. We can say that in regard to future’ proceedings there shall not be a conflict of powers, but litigants who have commenced actions, knowing that they could appeal to either of two Courts, should be protected.
Bill reported without amendment; report adopted.
Mr. CHAPMAN laid upon the table the following paper -
Commerce (Trade Descriptions) Act - Provisional Regulation -
Substituted Regulation No. 28 - Statutory Rules 1007, No. 9,4.
House adjourned at xi.46 p.m.
Cite as: Australia, House of Representatives, Debates, 25 September 1907, viewed 22 October 2017, <http://historichansard.net/hofreps/1907/19070925_reps_3_39/>.