4th Parliament · 1st Session
Mr. Speaker took the chair at 3 p.m., and read prayers.
Mr. W. ELLIOT JOHNSON presented a petition from the members of the Evangelical Council of New South Wales, praying the House to insert in the Defence Bill a clause exempting from compulsory service children whose parents have conscientious scruples against their being trained in the art of war.
Petition received and read.
– I wish to know from the Acting Treasurer what arrangements have been made for the distribution of application forms for invalid pensions? Will the honorable gentleman arrange that forms shall be obtainable at the various post-offices, or in other convenient places ?
– Half-a-dozen forms have been sent to each member of the Parliament, and there are to-day employed at the Treasury twenty additional hands, who are engaged in the distribution of the forms throughout Australia, so that payment of invalid pensions may, if possible, be made on the date originally fixed for it.. The Government wish to grant every facility to applicants. Forms will be sent to all the registrars, and to all places where oldage pension forms are now obtainable.
– Is it a fact that two systems are to be observed in the payment of old-age pensions, one of payment in advance, and the other of payment at the end of the term?’ I may say that there is a great deal of dissatisfaction amongst some of the pensioners at this proposed arrangement.
– It is intended to keep a promise, made by the Prime Minister when he delivered his Budget speech, to pay in advance those pensioners who are placed on the list on and after the 15th December next, and also those invalids and women who will then become eligible for pensions, and to retain the present system in relation to pensioners at present on the list. The new pensioners will be paid on the 1 5th December for the period up to the 3 1st of the month. There has been a difficulty in determining the obligation of the Commonwealth in those cases where pensioners have died between payments. If apensioner dies within a week of the payment, there seems to be a moral obligation on the Commonwealth to pay for that week ; but, owing to the difficulty of determining who is the rightful recipient of the money, that obligation has not been recognised. The Prime Minister takes the view - and I agree with him - that that is an unsatisfactory state of affairs, and that it would be better to pay fortnightly in advance, when, in case of death, the money can be used to pay the expenses of interment. At present it is not possible to bring the whole of the pensioners under the new conditions without making a double payment, which does not seem to be justified under the circumstances, and which would involve the Commonwealth in an expenditure of something like , £50,000 or £60,000.
asked the Acting Treasurer, upon notice -
– The answers to the honorable member’s questions are as follow : -
July, 1910. Previously he was paid at the rate of£400 per annum. The total amount received by him to date is£46810s. 6d.
– I wish to know from the Minister of Home Affairs whether, in view of the facts complained of by the most important deputation of the medical profession that ever waited on a Minister, representing the lady doctors of Victoria, which I, as the member for Melbourne, had the privilege to introduce to him, he will state what he intends to do in the matter, and whether he will, promise that all future departmental appointments shall be made after the vacancies have been duly advertised, and there has been fair competition for them ?
– I a I am having ;the matter thoroughly examined into, and hope to be able to . deal with it finally after the prorogation. The honorable member can rest assured that no other appointments will be made until vacancies have been advertised, so far as my Department is concerned.
– In the Commonwealth Gazette, dated 19th November, appears the list of the census enumerators appointed for ‘ Western Australia, twentysix in number, all but two of, whom are Government officials. I ask tlie Minister of Home Affairs why the Inspector of Police at Kalgoorlie has been appointed to act at Coolgardie, when he lives at Kalgoorlie, and why the Secretary’ of the Trades Hall at Kalgoorlie has been appointed to act at Kalgooorlie and Boulder mines? Is he prepared to lay the papers on ‘the table of -the House ?
– The The Commonwealth Statistician is the head of our Census Department, and the Statisticians of the States were asked to assist him in the taking of the census. They recommended those suitable for the work of enumerating, and had T attempted to make any change, the cry would have been raised that political influence was being used.
– Does the Acting Prime Minister intend to submit to Parliament a list pf the subjects to be discussed by the delegates to the Imperial Conference?
– To-morrow , or the following day, I shall make a general statement respecting the Conference, and’ give the list of the subjects which we havesuggested for discussion.
– Has the attention of the Minister of External Affairs, been called to an article in to-day’s Age advocating immigration, in which the .statement is made that there is a dearth of agricultural labour in Victoria, and to a statement in the Argus, that in the Riverina district there is -considerable dissatisfaction at the scale of wages by the Wagga branch of the Farmers and* Settlers Association, and that a number of the settlers indicate that they are not going to adhere to the scale of wages, which they consider to be too high. The telegram goes on to. state -
According to one prominent farmer residing in. the Tooyal district, there is more labour available than can be utilized, even during the busy weeks of the harvest. He states that the district is full of men on tlie tramp
Has the Minister of External Affairs hadthis matter brought under his notice, and will he, in view of the statements as tothe dearth of labour in one district, and the overplus of labour in another, consult with the State Premiers as to the possibility of bringing about a better distribution of labour, in addition to the introduction of labour from outside?
– I saw the statement in the- Age, but not the statement in the Argus. It is quite possible that some means could be adopted in order to determine with some degree of accuracy the state of the labour market in various parts of Australia. It is somewhat difficult, when conflicting statements are made :by reputable persons, to arrive at a just conclusion. Something also may be done in the direction of assisting in the distribution of labour, ‘- so as ‘to enable the greatest possible use to be made cif governmental functions in providing people with wor-k.
– I should liketo know whether -the Acting Prime’ Minister intends to -make a statement as to the .business to-be transacted, and when the. sessionis likely to close. Statements have been made in the newspapers that -the session isto close this week, and it would be advisable to .have some authentic information- from the head of the Government, in view of the fact that members desire to make arrangements to leave Melbourne.
– On Friday last, I went so far as to express a hope that we -should close on Friday night of this week before train time, but that, if necessary, we should have to ask Parliament to meet on Friday evening, and possibly on Saturday. As far as it is humanly possible, it is the intention of the Government to close the session this week, and I hope, with the assistance of honorable members, that we shall do so by train time on Friday. If not, of course, we shall have to sit later.
– I wish to ask the Minister of External Affairs if it is correct that the South Australian Government are meditating- the passing of a Bill with reference to the control of the aborigines in the Northern Territory? If so, does he propose to accept, in his management of the natives, the policy and machinery laid down by the State Government?
– I have not seen -the Bill to which the honorable member refers, and therefore can say nothing as to what the Commonwealth attitude towards it will be. I understand that it was prepared by Mr. Crush, one of the members for the Northern Territory, and was ready for introduction twelve months ago. The South Australian Government have, I believe, taken it up so that it may have a better chance of being passed before its author is compelled to retire from the South Australian Parliament.
– Does not the honorable member think that the Federal Government can be trusted to treat the aborigines properly, without that gentleman’s interference ?
– I do not think the honorable member need suggest interference in the matter. The gentleman referred to represents the Northern Territory at present, and he should rightly have whatever credit may attach to the bringing forward of the measure. The attitude of the Commonwealth Government towards it will, of course, be determined when we see it. So much of its provisions as suit the policy of the Government will be adopted, but any of them which we regard as in compatible with the best interests of the aborigines we shall certainly decline to accept.
– Is the Minister of External Affairs aware that 35,000 Indians, both free and indentured, are now resident in Fiji, engaged on sugar plantations and in other occupations? Is there an arrangement between the Government of Fiji and the Commonwealth Government that due care will be taken that none of these Indians reach the Commonwealth? Is the Minister aware that the trade, customs, and religion of the Indians are becoming dominant factors in Fiji ?
– I am not aware of the allegations which the honorable member makes, but shall have inquiries made.
Ironstone Quarrymen’s Wages
– Complaints have been made to me by men working at the ironstone quarries at Carcoar, New South Wales, that they are not receiving the average wage for that class of work. I understand that, under the Manufactures Encouragement (Iron Bounties) Act, it is necessary that these men should receive union rates of pay. If that is so, will the Minister of Trade and Customs see that the conditions laid down in the Act are observed, because the ironstone quarry is worked strictly in connexion with the manufacture of pig iron?
– This matter was before the Department on a previous occasion. I understood that instead of paying 8s. a day, which is considered to be the ruling rate of wage for that class of work, Hoskins Brothers pay only about 7s. or 7s. 2d. per day for. the quarrying of the ironstone. The Act referred to does not provide that the men engaged in the production of the material for manufacture into iron shall be considered. That was apparently one of the mistakes made in passing the measure. It provides only that standard rates of pay shall be paid to the men engaged in the manufacture of the iron. I had the question submitted to the Law Department some time ago to ascertain if if were possible that the men producing the iron ore should receive standard rates of pay. Speaking from memory, I think the decision of the Law Department was that we had no control over the conditions of production of the ironstone. This shows that we should be very careful when passing measures of that kind, to see that the whole of the workers receive a fair deal.
– Does not the Minister think that those engaged in the production of tlie ore, without which no iron could be manufactured, are essentially employed in connexion with the manufacture of iron, for which the Act stipulates for the payment of certain rates of wage?
– That is a matter of interpretation for the Law Department. My recollection is that the Act distinctly refers to those engaged in the manufacture of iron. The work to which the honorable member refers is, I believe, considered to be the production of the article prior to manufacture. If there is any way to insure that the workmen get their share of the bounty, I shall do my best to see that they do get it.
– Has the attention of the Minister of Defence been called to a statement made in the Sydney press last week to the effect that the parts of the destroyer to be put together in Australia have been condemned as utterly unsuitable and as of faulty material? If so, will the Minister have inquiries made with a view to seeing that no faulty material is used in the construction of the vessel ?
– I shall be glad to have this matter investigated. It has not been brought under my notice until the present moment ; but, so far as my knowledge goes, the parts sent out are similar in material to those used in the construction of the destroyers now on the way to this country.
If the material is unsatisfactory in one case, I think it must be unsatisfactory in regard to the whole of the ships.
– Has the Honorary Minister himself made inquiries as to the truth or otherwise of the allegations concerning the construction of the destroyers, or does he intend to satisfy himself on the question ?
– As I have already informed the honorable member for Riverina, I had not seen the statement. If allegations have been made concerning the faulty construction of important vessels of that character, I have not the slightest doubt that the Department will speedily cause them to be investigated.
Wireless Telegraphy - Uniform Stamps - Telephone Rates - Sustenance Allowance, Queensland - Promotions - Temporary Staff - Wireless Telegraph Station, Cape Borda - Meal Allowances - Supervising Mail Officers, Sydney
– Is there any truth in the rumour that the Marconi Company has offered to the Postmaster-General its stations at Queenscliff and Devonport, Tasmania ? If so, under what conditions was the offer made?
– I cannot say that the Marconi Company has made an offer to the Department, but a Mr. Hamilton, who said that he represented the Marconi Company, saw me, and offered to the Department the station at Queenscliff, and one in Tasmania. I referred the matter to the Chief Electrical Engineer, who informs me that the plant is not big enough for our purposes, and, therefore, I intend to call for tenders and to have proper installations erected.
– Has the attention of the Postmaster-General been called to the fact that a contract has been let for the erection of a 3,000-mile wireless telegraph station at Washington, in the United States, the station to consist of a reinforced concrete tower 600 feet high, 50 feet to 60 feet in diameter at the base, and 8 feet to 10 feet in diameter at the top ? Will the PostmasterGeneral see that one of the main telegraph stations of Australia is erected in the vicinity of the new Capital?
– Th This is the first I have heard of the erection of a new wireless telegraph station at Washington. As to the second question, relating to the erection of a new station at the new Capital, I ask the honorable member to be good enough to give notice of it.
– Will the PostmasterGeneral be good enough to give honorable members some information as to the arrangements made in regard to the issue of the new uniform stamps? Is it the intention of the Government to invite competitive designs?
– It is the intention of the Government to invite competitive designs, and that will be done within a week, or, at any rate, within two weeks.
– Is the PostmasterGeneral prepared to give an answer to the following questions, which I placed on the notice-paper on the 16th instant: -
Whether he will furnish a return showing -
The actual revenue received from subscribers to telephone networks for the years ended 30th June, 1909, and 30th June, 1910, respectively ?
The estimated revenue which will be received for the year ending 30th June,1911, which includes two months (July and August) at the flat rate? [The particulars relating to each State to be shown separately.]
– The answer is being prepared, but has not yet arrived. I shall obtain it as soon as possible.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Postmaster-General, upon notice -
– The answers to the honorable member’s questions are -
The provisions of section 40 of the Public Service Act, which stipulate that temporary employes shall not be employed for any period exceeding six months unless the Public Service Commissioner authorizes their employment for not more than three additional months, are being observed.
See answer to No. 2. Appointments to the permanent staff can only be made in accordance with the provisions of the Public Service Act, which provide for entrance to the service by examination. Examinations are held periodically, at which temporary employes are afforded an opportunity of competing.
Permanent officers who have completed their terms of probationary service of six months are allowed pay during absence on sick leave in accordance with the regulations.
This is a matter governed by the Public Service Act and regulations.
asked the PostmasterGeneral, upon notice -
Whether it is the intention of the Government to erect a wireless telegraph station at Cape Borda; if so, when?
– The question of the extension of wireless telegraphy to places in the Commonwealth other than those already decided upon is under consideration. I am very anxious in connexion with this matter to have the advice of Admiral Henderson and Lieutenant Slee, who accompanies him, and the Admiral has been good enough to say, through the Minister of Defence, that he will be pleased to meet the
Chief Electrical Engineer in this Department and go into the matter with him. It is hoped, therefore, that in a few days the Chief. Electrical Engineer will meet Admiral Henderson and Lieutenant Slee to discuss the’ whole question, and the advisableness of erecting a station at Cape Borda will be considered at that meeting.
asked the PostmasterGeneral, upon notice -
– The Deputy PostmasterGeneral, Sydney, has furnished the followinginformation in regard to questions (1) and (2) : -
W. ELLIOT JOHNSON asked the Minister of External Affairs, upon notice -
Service.” If so, what amount has been so far paid?
– The answers to the honorable member’s questions are as follow : -
asked the Minister of Home Affairs, upon notice-. -
– The The answers to the honorable member’s questions are as follow : -
asked the Minister of Home Affairs, upon notice -
– The The answers to the honorable member’s questions are as follow : -
asked the Minister of Home Affairs, upon notice -
House grounds, Melbourne?
– T - The areas of the grounds of Government Houses, Melbourne and Sydney, are as follow: -
Details of the rooms at each House are furnished in a return which I now lay upon the table, of which the summary is as follows : -
MINISTERS laid upon the table the following papers -
Fisheries. - Second Report by the Director on Fishing Experiments carried out by the F.I.S. Endeavour for period September, 1909, to October, 1910.
Ordered to be printed.
Papua - Ordinance of1910- Amending Land.
Superannuation.- Report by the Commonwealth Statistician, October, 1910.
Federal Government Houses. - Return showing area of grounds, size and description of rooms.
Mr. HUGHES (West Sydney- Acting
Prime Minister and Attorney-General) [3.35].- In moving-
That this Bill be now read a second time,
I very much regret that the stage of the session at which this measure is introduced precludes that comprehensive and exhaustive discussion which a Bill of this kind so obviously deserves. This session has been distinguished for measures of first importance, both in their’ effect upon the community and the future of the Commonwealth ; but I know of no measure which has received the attention of the Parliament which is more important than is this. It would deserve special attention under any circumstances, and in any country, but particularly does it call for notice in a country under a form of dual government. Ten years have now elapsed since we adopted what is known as a Federal form of government, and we have already found out many of its defects as other countries have done. One of these is that it sets up to an extent a domination of the law which even we, the most law-abiding people in the world, find most repugnant to our ideas. I speak not in criticism of the rule of the law as generally exercised, but of its dominance in a new sphere which hitherto, under our unified form of government, has been reserved to and occupied entirely by the Legislature. Under a Federal form of government this has been regarded as inevitable. Under Federation, the Judiciary occupies, as it were, a position of lofty and superior censorship of our legislation. And, of course, obviously, it must also exercise those functions which belong properly to the highest judicial Court in the country. It is, on matters of law - and to this no possible exception can be taken - the last Court of Appeal. But in another direction it exercises functions of quite a different nature. Although nominally inferior to this Legislature, in reality it has shown, over and over again, not merely in this country, but more particularly in the United States of America, that it is above and superior to, not only the Parliament, but, what is yet more important, the constitutionally expressed will of the people. I admit at once that it is inevitable that there must be such a body to determine the respective limitations of the States and the Commonwealth, and that it will never do for us to contemplate for a moment a condition of things in which the States and the Commonwealth may make what laws they please irrespective of the extent to which either may trespass upon the other’s sphere. We must have clearly a Court clothed with sufficient authority, and charged with the exercise of these grave and responsible duties. But it by no means follows that we must “endure” - and I use that word advisedly - a condition of things such as has been endured for over a century in the United States of America, and is in existence here to-day.
Consider how absurd and unnecessary is the position that has arisen whereby a Court created principally - and I speak now not of its functions as a Court of Appeal for private litigants - to determine the constitutional authority of State or Federal Statutes is unable to move until some private individual who considers that he has suffered an injustice, or a State authority which is interested, brings an action under which the validity of a State is incidentally determined. As a fact, the Court never directly determines the validity of any Statute; it merely deals with it in connexion with the facts of the case brought before it. A litigant thinks that he has suffered a wrong, and appeals to the Court for a remedy. If the wrong be one for which there is a legal remedy, and one it is in the power of the Court to apply, and the plaintiff deserves relief, he will succeed, and incidentally the Court may declare that a particular Statute is or is not ultra vires. That is to say, that the Court especially created to determine the validity of Commonwealth and State laws, does in fact never directly decide the constitutionality of any such laws. This is not a proper and sensible procedure for a great and growing nation like ours to continue, and it is the purpose of the measure to substitute for this cumbrous, antiquated method of determining the validity of any Statutes one which, on the face of it, will more speedily and effectively inform us as to the constitutionality of a measure, enabling the Court to give a calm, dispassionate, and impartial decision upon this one point, without the complication of personal relations and personal wrongs. The Bill proposes that when the Attorney-General refers to the High Court any question as to the validity of an Act, it shall give a decision thereon. A Statute may, as the result of a recent appeal to the people, have an overwhelming majority in its favour, but doubts may be entertained as to its constitutionality. Under existing circumstances it must remain for some time only the shadow of an Act, something without substance, because whether it can be enforced at all or to what extent cannot be known until some person chooses to approach the Court in regard to action taken under it. That may not happen for years, during which moneymay have been invested in the belief that the Act is constitutional, and machinery created for its administration. Should the Court determine that it is unconstitutional, all that expenditure and effort goes for nothing. We propose to substitute a straightforward and direct for the indirect and ineffective method which we have now for ascertaining the constitutionality of a measure. The Attorney-General will be able to ask the Court the plain question, “ Is this measure .one which it is within the power of the Parliament to pass? “ and we shall get from the Court a straightforward answer.
I ask honorable members to consider the net result of ten years’ experience of the present system, and the amount of money spent and time wasted on sporadic efforts to determine what the law really is. It is easy to say that justice must be delayed for none, and to recite the provisions of Magna Charta; but justice is necessarily delayed and rights withheld unless those who feel themselves aggrieved have sufficient money to bring their cases before the Court. In regard to the Harvester industry, for example, Parliament passed a Statute declaring that certain wages should be paid, and for some months those wages were paid. An improved condition of things was established, not before time and the industry were moving briskly along a new road when, like a bolt from a clear sky, came the action of Barger v. The Commonwealth, as the result of which the Act was declared to be unconstitutional. I dare say the workmen who received additions to their wages in consequence of the passing of the Act could set up a good defence if an attempt were made to -recover the money from them. But in most cases the old rates paid to them under mistake were immediately reverted to, although 75 per cent, of the legislators and of the people were in favour of the new rates of wages. Our new Protection proposals have been set at nought, and justice has been denied to many deserving citizens. The Act was invalid, yet it was not known that we had not power to pass the legislation which was declared invalid until, eight or ten months after its passing, a private manufacturer thought fit to bring a case before the Court. In this case, the employes concerned were put to great expense in being represented, and lost in other ways. The same thing happened in regard to the claim of the railway employes, in the brewery employes’ case, and in others. Unions, after spending a great deal of money, discovered that the Statutes on which they relied were unconstitutional. Only the other day, for instance, in the boot trade case, it was declared that the section of the Conciliation and Arbitration Act making provision for a common rule was unconstitutional, and, so far as legal sanction was concerned, the boot trade employes spent their money for nothing, though, as the result of an agreement, effect has been given to the award of the Court. The disabilities and expenditure caused by this state of affairs have not fallen wholly on unions or associations of either workmen or employers ; but have affected every individual in the community. During the last four years the Commonwealth alone has spent a great deal of money in connexion with cases in which the validity of Statutes has been questioned. In the railway servants’ case, our costs were £53 ns. 5d. j in the Jumbunna case, £323 14s. 7d. ; in the Harvester cases, £548 1 6s. ; in the Workers’ Trade Mark case, ^739 ; in Moorehead v. Appleton £639 18s. 9d. ; in the Broken Hill case, ^365 os. 3d. ; in the woodworkers’ case, £247 6s. ; in the Surplus Revenue cases, £225 12s. 3d. ; in Merchant and Ah Way’s cases, £373 1 is. 2d. ; and in the boot trade cases, ,£1,351 2s. 7d. In the Coal Combine and Seamen’s Compensation cases, now pending, the costs, which will be very heavy, have not yet been fixed.
In these cases the costs have been incurred, not by direct appeals as to the validity of Statutes, but by actions in which the question of validity was merely incidental. In Moorehead v. Appleton it was determined that two sections of an Act were in valid. In that case, our costs came to £638 1 8s. 9d., and we had to wait for months until the ship-owners decided to take action.
If there has always been need for a simpler method of testing the validity of Statutes, the present need is twice as great. We have a crop of new legislation as important at least as any that preceded it, and in many cases inviting questions as to validity. Yet we are asked to idly wait until the opponents of this legislation move to ascertain whether or not the law is good. In the meantime we must create machinery for giving effect to the legislation, and proceed in an orderly and regular manner, just as if there was no danger of a judicial thunderbolt. As I say, we have to wait until somebody pleases to approach the Court, and the Court perhaps declares, in deciding the merits of his case, that the Act is ultra- vires. .Obviously, the plain, sensible, business-like course, where a Court has been created and charged specially with the duty of deciding what are the limitations which the Constitution imposes, is to empower the Commonwealth to go straight to the Court, and ask whether a Statute is or is not valid. This Bill has for its object the giving of the necessary authority to enable that course to be taken.
– No; but the States may be represented. This legislation is not without precedent ; but, if it were, I hope that honorable members would not reject it for that reason. In these days, when we have to deal with complications, both legislative and economic, far beyond those which assailed our forefathers, we may fairly strike out in new directions - confronted with new difficulties, we must’ evolve new methods to deal with them. But, as a matter of fact, in Canada there is power to submit the question of validity of Statutes to the High Court ; and the law there is on the lines on which this Bill is drafted. Section 4 of the Canadian Supreme and Exchequer Courts Act. is as follows : -
Section thirty-seven of the said Act is hereby, repealed, and the following substituted therefor : -
Important questions of law or fact tourfling provincial legislation, or the appellate jurisdiction as to educational matters vested in the Governor in Council by The British North America Act 1867, or by any other Act or law, or touching the constitutionality of any legislation of the Parliament of Canada, or touching any other matter with reference to which he sees fit to exercise this power, may be referred, by the Governor in Council, to the Supreme Court for hearing or consideration ; and the Court shall thereupon hear and consider the same :
The Court shall certify to the Governor in Council, for his information, its opinion on questions so referred, with the reasons therefor, which shall be given in like manner as in the case of a judgment upon an appeal to the said Court; and any Judge who differs from the opinion of the majority shall, in like manner, certify his opinion and his reasons :
In case any such question relates to the constitutional validity of any Act which has heretofore been- or shall hereafter be passed by the Legislature of any Province, or of any provision in any such Act, or in case, for any reason, the Government of any Province has any special interest in any such question, the AttorneyGeneral of such Province, or in the case of the North-West Territories, the LieutenantGovernor thereof, shall be notified of the hearing, in order that he may be heard if he thinks fit :
The Court shall have power to direct that any person interested, or, where there is a class of persons interested, any one or more persons as representatives of such class, shall be notified of the heating upon any reference under this section, and such persons shall be entitled to be heard thereon :
The Court may, iri its discretion, request any counsel to argue the case as to any interest which is affected and as to which counsel does not appear, and the reasonable expenses thereby occasioned may be paid by the Minister of Finance and Receiver-General out of any moneys appropriated by Parliament for expenses of litigation :
The opinion of the Court upon any such reference, although advisory only, shall, for all purposes of appeal to Her Majesty in Council, be treated as a final judgment of the said Courts between parties.
I understand that the decisions of the Canadian Court are advisory only ; but as I shall show, they are, in practice, always acted upon. There is very good reason for this. The Court is practically the final Court of Appeal, and litigants may well hesitate before they question its decision, seeing that any appeal from a decision of a lower Court, involving the validity of any Statute, would have to be heard by the same Court.
I pointed out that the Canadian Act is very wide, and that any matter may be submitted to it. We do not propose to go so far, but merely to ask the High Court to decide the constitutionality of Statutes. We desire to know exactly where we are constitutionally, and to have the question of the validity of an Act decided as a matter of law, entirely apart from the merits or demerits of a particular litigant who may happen to move the Court. We propose to give the Court, not merely ad- visory powers, but to make its decisions binding in exactly the same way as ordinary judgments. Provision is made for counsel to argue the points submitted on their merits, and for parties affected, including the Attorney-General of each State, to be notified of the hearing. The decisions of the Court are to be absolutely final and conclusive - not subject to any appeal.
Every citizen has a right to know where he stands in regard to the law. It is an axiom that all men are supposed to know the law, although very few do; but if that be so in a country like England, or in a single State of the Commonwealth, it is doubly so under the Federal form of government, as we know it here, where even the most grave and reverend seigneurs of the law ure at a loss to say what the law is. This uncertainty is at once absurd and dangerous. There are people who, from time to time, rise up and declare that suchandsuch a Statute is a violation of the Constitution, and that they intend to do something. Under the threat of the lash of these puny persons, the whole Commonwealth has to sit impotently ; and while they wield their sixpenny toy whips the community is put to the trouble of defending the Statute, and is involved in large expenditure, and many important matters are held in suspense. We are not going to ask the Court to take on itself the function of the Roman jurist and deal with hypothetical matters, but with the most concrete matters on earth, namely, Statutes. We do not ask the Court to deal with the law in fosse, but with laws that have received the assent of the Legislature. It is proposed to entirely alter the present procedure. Under this measure we shall go to the Court with the Statute in one hand and the Constitution in the other, and ask the Court to say whether or not the Statute is within the four corners of the Constitution. That is the method which can be resorted to by State, Commonwealth, and individuals with great advantage, and should be introduced at the earliest possible moment.
I am not going to defend the policy of asking the Judiciary to determine those questions. It is, I submit, a policy 30 obviously sensible and necessary as not to need the addition ; in regard to that I shall not add one word beyond what I have already said. It is for those who are opposed to the measure to show good reasons why we should not. adopt so obvious and sensible a course. It may be that my friends opposite can do this, and can uncover reasons long hidden from the eye of man why we should continue to plough along the present hopeless rut. We shall, of course, be very glad to hear what they say, and pay every attention to their arguments. But, in my opinion, the present system is so unsatisfactory as to call for immediate amendment. It is not the best way to settle what the law really is, but the worst. “Even from the stand-point of justice to individuals in private litigation, it clearly is more important to counsel that the merits of their client’s case should be urged rather than that the validity of a Statute should have to be established. And it is notorious that counsel always dodge the question of the validity of a Statute when the interests of their clients may be imperilled thereby. It has frequently happened that the High Court, when a question, for instance, such as that of the common rule, has cropped up, has declined to -express an opinion, and no opinion has been pressed. Had the High Court expressed itself on that point, men would not have lived for years in an industrial fool’s paradise.. And we should not have been led to tell them that the Commonwealth afforded an ample industrial shield. If, therefore, we desire the validity of a Statute to be determined on its merits, it should be dissociated from all other questions - the validity of the law, and nothing but that, should be the question before the Court.
Coming to another phase of the matter, I contend that these functions with which we desire now to clothe the High Court are strictly judicial in their nature. It has been hinted in the press and elsewhere, and I suppose we shall be told by my honorable friends opposite, that those functions are foreign to those exercised by a Judicial Court - that the Judiciary of England have always declined to deal with such matters or to give an opinion unconnected with the questions arising out of an action introduced by private appellants or litigants, and that consequently this measure itself is unconstitutional. With that opinion I do not for one moment agree. Nothing could be more clearly a judicial function than that a Court, created for deciding the constitutionality of Commonwealth or State laws, should be charged with the duty of deciding whether, as a fact, those laws are or are not strictly constitutional. I can indeed conceive of no more monstrous perversion of the function of the Judiciary than to think otherwise. Here is a Court, speaking of it in its character as the- arbiter of the constitutionality of our laws, created for one purpose only. Surely it cannot be declared that to call upon it to exercise those functions which it is thus created to exercise is to clothe it with extra-judicial duties? What can be more clearly a judicial duty than to ask this Court, after hearing argument by counsel and ‘ allowing those whose interests may lie in establishing its invalidity to be heard, whether, as a fact, a Statute is constitutional ?
But even if we admit for a moment that these duties are extra-judicial duties - not usually thrown upon the Judges of a Court - I submit that we have a perfect right to ask the Judges to perform them. For clearly they are functions that cannot be exercised by any one else. And assuredly they ought to be exercised by somebody. In Canada, and, as I shall show, in England also, they. are exercised by the Judiciary. We have a perfect right to ask the High Court to discharge these functions. Nothing that I can conceive of is at once more conformable to the idea of what is connoted by judicial functions and compatible with the best interests of the Commonwealth.
As to the validity of this measure itself, I venture to say that only on two grounds can this or any other measure be declared to be unconstitutional. One is that it shall trespass upon State rights. Clearly, whatever else this Bill does, it does not do that. The other is that it shall contravene some express provision or necessary implication of the Constitution. The Bill does not do that. As in no other circumstances can any measure be declared to be unconstitutional, clearly we have the power to make such a law as this. It is a valid exercise of our constitutional power. It trespasses upon no State rights, it contravenes no express or implied provision of the Constitution. If it be said that it is an implied provision of the Constitution that nothing but judicial functions shall be assigned to the High Court, the onus will be upon those who put forward that contention to show some implication from the Constitution to that effect. For it does hot follow, merely because the judicial power is vested in the High Court, that, therefore, no other power can be vested in it. There is nothing to prevent this Parliament clothing the High Court with any power. There is, perhaps, nothing to prevent us making them, if we like, the InterState Commission. If we like, and- they accept them, there is nothing to prevent us clothing them with many other powers. Therefore, while it is perfectly true that nobody but the High Court can exercise the judicial functions of the Constitution, it does not follow that they cannot exercise any other power. So, unless my honorable friends can show an implied or express prohibition in the Constitution, this Bill is perfectly good. They must first show that these powers are not judicial, and, secondly, that Ave cannot clothe the High Court with them.
We are to assume that, whatever the word “ judicial “ in the Constitution meant in 1900, when the Constitution was passed, is included in its meaning now. On the 9th July, 1900, the Constitution received the assent of the British Parliament. Under that Statute the judicature was created. By section 71, it is provided that
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia.” That is the beginning and the end of what the Constitution has to say in regard to the Judiciary, so far as this point is concerned. Whatever “ judicial “ meant then, it means now. I am arguing now to establish the point that the functions which we propose to ask the Judiciary- to exercise are judicial functions. Suppose that point to be held not good. It then becomes necessary to show that we can clothe the High Court with extra-judicial functions. We have already seen that, under the Canadian Constitution, which was in existence many years before the establishment of the Australian Commonwealth, the Supreme Court of Canada has been clothed with these very powers and can and does test the validity of Statutes in the way proposed in this measure. This, therefore, was a function exercised by the Judiciary of Canada at the time of the passing of the Australian Commonwealth Constitution Act, and there is not the slightest doubt that everything that was connoted by the term “ judicial “ at that time is covered by the term in our own Constitution.
I turn now to another and stronger precedent for what we seek to do. It is by no means uncommon for the British Judges to give answers to questions submitted to them in the form of abstract propositions not connected with actions introduced by private litigants. One of the most common and effective ways of testing the validity of an Act is by what is known as a friendly suit. Divested of all verbiage, a friendly suit is simply a means of approaching die Court in order to ask it to give a decision on a point of law, and so evade the difficulty created by the disinclination of Courts to give decisions on points of law except those arising out of actions. During the history of the Commonwealth there have been two constitutional points decided in that way. I am nor quite sure whether the wire netting case was a friendly suit.
– It was not a hypothetical issue, because the Court distinctly refused to entertain a question of that sort in the brewery case.
– 1 am talking about a friendly suit to test a point, such, for instance, as the point whether State imports should be taxed.
– There was a tort committed for the purpose.
– Precisely. Again take the case of the Municipality of Sydney against the Commonwealth. That was clearly a friendly suit, brought for the purpose of determining the liability or otherwise of the Commonwealth to be taxed. A friendly suit is one of the commonest ways of determining rights under or the validity of a Statute. .
– Neither was a hypothetical issue.
– I am not talking about hypothetical cases. I expressly disclaim intention to refer hypothetical cases to the Court. I propose to refer to the Court the most concrete things in existence - namely Statutes themselves. Is not a Statute the concrete expression of the opinion of the whole body politic of the nation? If anything be concrete, a Statute is. After all, “ concrete “ in a Court of law does not mean only so much matter in the form of wood, stone, iron, or even gold or silver, although I have no doubt those things have their useful places in Courts of law.
Leaving the “ friendly suit,” let us now come to the consideration of a more direct method of testing what the law is. It has long been the practice to refer abstract questions to the highest Court in England, and Judges in England have often given answers to them. In 1840 the question of the validity of the Clergy Reserves Act, an Ontario Statute, was put before the Judges of England, all but one of whom were present. Some six or eight questions were submitted to them. The matter did not come before them by way of an appeal from a decision upon an action begun by any litigant, but was submitted directly, to ascertain the opinions of the Judges upon the validity of the Statute. The case is reported in Vol. 72 of the Journals of the House of Lords, 1840. The matter was referred to the House of Lords, who, in turn, submitted it to the Judges of England for their opinion. There was thus a direct reference by the British Legislature to the Judges of England as to the validity of a Statute of a province of Canada. The matter was put by way of resolution -
The Learned Judges being present, it was moved - “ That they do now deliver their opinions upon the questions of law propounded to them on Monday, the 13th of April last, respecting the Clergy Reserves (Canada) Act.” The question was put thereupon. lt was resolved in the affirmative.
Then the Lord Chief Justice of the Court of Common Pleas delivered the ..unanimous opinion of the Judges upon the said question.
They went right through the Statute, declaring certain sections prospective, certain sections ultra vires, and generally giving answers to all the questions submitted. I shall show that this is not an isolated case, but that the same course has been followed on other occasions. And not only have points of law been determined in this fashion, but the points of law so determined have determined the law of England for very many years. In one case the law so determined has not been called in question for over half a century. In other words, the opinions of the Judges of England, given on abstract questions of this sort, have settled the law for over fifty years.
Let us take another case : this time before the Privy Council. In Wheeler’s Confederation Law of Canada, page 411, the case of the Orphan Board v. Van Reenen is quoted, and we have the statement -
There is a precedent for the House of Lords -
I think that this was in 1843 - considering the constitutionality of an Act of a Colonial Legislature. In 1840 the question of the validity of an Act of the Province of Upper Canada was ordered to be propounded in questions to the Judges of England, and Lord Mansfield, 4 May, 1840, delivered the unanimous decision of all the Judges, except Lords Denman and Abinger, that the Act was ultra vires. . . The Act in question was in respect to the sale of Ihe clergy lands, and caused great excitement in
Canada at the time. Should an occasion of such popular excitement occur again either from a Provincial Legislature passing a law and refusing to alter it, which the Dominion Parliament and Privy Council hold unreasonable, why should not the same course be followed and the constitutionality of the obnoxious Act argued before all the Judges of England. A decision of such a tribunal would have great weight. Certainly, if one or two of the eminent Judges of Canada were asked to take part also in the decision, it would be gratifying to the Canadian people.
Here there was a condition of tilings involving riots and great excitement in Canada, and it was resolved to ask the Judges of England to say whether or not the law in question was good. The Judges having this duty thrown upon them, answered the questions submitted and settled the law, and, incidentally, settled the disturbance and excitement. In that case also the decision has never been called in question. We have also the case of Valin v. Langlois, Appeal Cases 1879-80, volume V., page 117, in which there was a reference to the Privy Council regarding the validity of an Act casting upon certain judicial courts the duty of dealing with election petitions. The question was whether there was power to cast upon the Judiciary the function of dealing with election petitions which clearly come within the category of the exercise of doubtfully judicial power. We know that various Parliaments frequently and usually exercise the power of deciding themselves whether an election petition is good or bad, and of inquiring into the whole merits of the question of the validity of an election. It was held in this case that it was ultra vires to throw upon a particular Court - that Court being a judicial body - the function of dealing with an election petition. The case came before the Privy Council by way of a direct reference, and, in the course of his judgment. Lord Selborne said, as reported at pages 116-7 -
Their lordships have carefully considered the able argument which they have heard from Mr. Benjamin, and they feel glad that so full an argument has been offered to them, because there can be no doubt that the matter is one of great importance. The petition is to obtain leave to appeal from two concurrent judgments of the Court of first instance and of the Court of Appeal affirming the competency and validity of an Act of the Dominion Legislature of Canada. Nothing can be of more importance, certainly, than a question of that nature, and the subjectmatter also, being the mode of determining election petitions in cases of controverted elections to seats in the Parliament of Canada, is beyond all doubt of the greatest general importance. It therefore would have been very unsatisfactory to their Lordships to be obliged to dispose of such an application without at least having had the grounds of it very fully presented to them. That has been done, and I think I may venture to say for their Lordships generally that they very much doubt whether, if there had been an appeal and counsel present on both sides, the grounds on which an appeal would have been supported, or might have been supported, could have been better presented to their Lordships than they have been up to the present occasion by Mr. Benjamin.
The question in this case was, whether the conferring upon the Judiciary of certain duties, which are doubtfully judicial, was or was not a valid exercise of judicial power within the constitutional limits of provincial legislation, and the matter was referred directly to the Privy Council, who decided the abstract question without litigants on either side. The decision was that the Act was valid.
There is one other matter to which I should have previously referred. I spoke of a decision which had stood as British law for over fifty years. This was the celebrated M’Naghten’s case, which is reported in vol. 8, page 718 of the English Reports, House of Lords. . It was there laid down that the House of Lords has a right to require the Judges to answer abstract questions of existing law. That judgment did not limit the kind of questions that might be so referred. Any question on any point of law might be referred to the Judges, and this case covered a number of points in relation to the liability for any act of any person who was more or less mentally unsound. The law in relation to that important matter was determined in this way, and was not disturbed for over sixty years, nor is it disturbed now, except in so far as modern medical science has more accurately determined the point at which, as it were, conscious liability for acts may he set. This important matter was decided by Judges on abstract questions remitted to them by the House of Lords. I lay very great stress on that case, and point out that it establishes in the clearest possible way the fact that the law of England has long recognised, and from time to time has exercised, the duty of answering questions upon abstract points of law with very great benefit.
At page 1 12 7 of the English Reports, Vol. 6. it is pointed out that the only reservation or limitation made by the Judges of England is the very proper one that -
The Judges will decline answering a question put by the House of Lords if that question is not confined to the strict legal construction of existing laws.
But when it is so confined they will answer the question, and that is all for which .weare now asking. What this Bill provides for is, then, the settled practice of. thehighest -Court in the British Empire. It has been followed with the greatest possible benefit in cases where it has been resorted to, . and the advantages to all classes of the community are soobvious that it would appear . hardly necessary to emphasize them. I wish now to come a little nearer, home, and I must, apologize to the House for detaining it. so long. I should not have done so but for the fact that probably no other honorable member on this fide of the Housewill speak to the motion - or, at all events, speak at any length upon it - arid I thought it right that the measure shouldnot ‘go out without a more or less comprehensive statement regarding the reason for its introduction! That I am now making, to the best of my ability.
I wish now to refer very briefly, by way of meeting the objections of those who may contend that the duty cast upon die Judges by this Bill are extra judicial, tothe exercise of extra judicial functions by judicial Courts. First, it has to be noted that tlie High Court itself does now exercise functions that are not strictly judicial within the narrow interpretation of the term. It exercises, for instance, jurisdiction as a Court of Disputed Returns.. There, clearly, the duties are not directly, judicial. In the case of Holmes v. Angwin, Commonwealth Law Reports, vol. 4, P- 303. the Chief Justice, in delivering, judgment, said - .-
The Supreme Court of this State . (Western- Australia) therefore was a Court originally created to administer justice between suitors iri respect to all kinds of civil- rights, that is, all rights that could be enforced by legal procedure in any of the Courts of England, and also to administer the criminal law. The Constitution ofthe Supreme Courts of all the other States was practically the same.
This was an attempt to appeal to the High Court against the decision of the Supreme Court of Western Australia in a matter connected with an election return -
These were the Courts which the framers of the Constitution had iri view when the right of .appeal was given from every decision of the Supreme Court of a State to the High, Court; and I think that, prima facie, section 73 should be construed as referring to Supreme Courts exercising jurisdiction of that kind. No doubt, if by the Statute some new right was created, which would be enforceable in the Supreme Court if no other provision were made, an appeal from a decisionwith respect to it would lie to this Court.
The appeal was disallowed. The High Court would not deal with the decision of the Supreme Court of Western Australia because in making it the latter was not a Supreme Court in the sense contemplated by sections 71 and 73 of the Constitution. It was held by the High Court that the Supreme Court of Western Australia was exercising extra judicial functions, but functions in regard to which, had they been conferred on it by Statute, an appeal would have lain.
Mr. Justice Isaacs, in delivering his judgment in the case of the AttorneyGeneral for New South Wales v. The Brewery Employes’ Union of New South Wales - the passage is to be found in volume 6 of the Commonwealth Law Reports - said -
I next consider the position of the AttorneyGeneral for New South Wales. The fact that he acts on the relation of another is not material. If a public right is infringed, and the whole community is thereby affected, the AttorneyGeneral may protect the public interests by appropriate action. If the public interests involved are State interests the State Attorney-General may sue.
He contemplated a condition of things exactly analogous to this under discussion. The Chief Justice did not agree with him, holding that matters ought not to come before the Court except by way of an action.
In conclusion, I contend there is ample justification for what I propose, and that the precedents of the highest Courts in the nation more than amply warrant us in passing this Bill. The Electoral Act of 1902 makes the High Court a Court of Disputed Returns, clothing it with functions which the Court itself has declared to be extra judicial. If it be contended that the duties now sought to be thrown on the Court are extra judicial, it cannot be held that it is not already performing such duties. And as I have already contended, if there is a function which should clearly be performed by a Court such as the High Court, it is the determination of the constitutional validity of Statutes. Section 27 of the Referendum Act provides that - the validity of any referendum or of any return or statement showing the voting on any referendum mav be disputed by the Commonwealth or bv any State by petition addressed to the High Court.
If a referendum is taken, and a question arises as to its validity, the Government, or any person in the community, mav at once ask the Court. “ Is this valid ? “ The Court will not stop to inquire whether the questioner has suffered a wrong or is interested in any way except as a citizen, but, having been clothed with the necessary powers, will deal with the question at once.
Lastly, it must be observed that the Bill does not take away existing rights. If the public desires litigation, it can have it. I might have a feeling of remorse did I propose a measure for decreasing the bounteous harvest of the legal profession, though as a set off I might plead that the interests of the citizens are perhaps worthy of consideration. But the Bill supplements existing rights, and does not take any away. It removes uncertainty, obviates delay, and prevents injustice being, done to the Commonwealth, to the States, or to individuals, whereasthe present- system denies justice to the poor litigant, and is so absurd and indefensible that it is a matter for wonder that it should have so long endured.
Mr. GLYNN (Angas) [4. jil,.- The AttorneyGeneral has delivered a very interesting speech on this important measure, and I am glad that, towards the end of it, he referred in terms pf implied eulogy tothe Judiciary, thus “discounting the perhaps rather hasty observations- made at the beginning as to the position of the High Court and of the Supreme Court of America. I should be astounded to hear an Attorney-General reflect on the temper in which the Judiciary here or in America has approached the great problems created1 by a Federal Constitution. But when he commenced to talk of the dominance of the law in a new sphere being repugnant to the nation, and of the Courts being above Parliament, and the constitutionally expressed will of the people, I thought for a moment that the observations, if made deliberately, would be more useful on a platform than in the calmer arena in which we are now discussing a legislative proposal. It is dangerous to assume that the Judges- ignore the law, because it is their province to interpret it, and to declare the meaning of our legislation. The function of the High Court is to say, with that perfect judicial balance which, on the whole, characterizes its judgments, and with its cold temper of impartiality, what is enacted in the Constitution. Some one must determine that, and we have trusted the matter to a disinterested tribunal, whose members are removed from all possibility of personal interest, and whose businessit is to determine questions as they arisebetween litigants. It is impossible for us- “to assume that the Court does not in all cases arrive at the healthiest judgment possible to limited human faculties, having regard to the ambiguous phraseology with which members of Parliament sometimes clothe their ideas. In this connexion it would be well to remember the opening lines of Lord Bacon’s celebrated essay on the Judicature -
Judges ought to remember that their office is jus dice,e, and not jus dare - to interpret law, and not lo make law, or give law …. and to pronounce that which they do not find, and by show of antiquity to introduce novelty.
He goes on to say -
Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.
The province of the Judiciary is to declare what the law is.
– The Judges also make the law.
– I am at issue with the honorable member on that point. The Judges may create new notions as to what the law is, by declaring that it is something different from what .the laity assume it to be.
– Take the law of equity.
– I do not wish to be led into a dissertation on equity, which until the English Judicature Act was passed was not regarded as law in the sense that the honorable member wishes to apply the term. The Crown was the fountain of justice in all cases at one time; and when, owing to difficulty in upholding certain claims acknowledged to be just, some suitors were deprived of natural justice, the Crown asked its Chancellor to find some new form in which a claim might be made and the remedy applied. This afterwards developed into the Court of Equity, and equity became part of the common law ; and since the mergence of Courts of law and equity in 1873 every Judiciary Act, which deals with such matters, declares or implies that, “law” includes “equity.” If the honorable member looks up the Local Court Procedure Act of South Australia, of 1886, he will see that there the definition of “law” includes “equity.” However, vh an important matter like this, I do not wish to be led into dealing with matters which are of no great substance or relevancy in the issue before us. The main point in regard to the law is that it should be certain ; and if the Judges do not ad here pretty closely to what they believe to be the law, but endeavour to find a way out of all difficulties by giving new notions of law, then certainly, in the long run, we shall not have that peaceful community we desire. In regard to the expenditure in these cases, the costs do not seem to be so heavy; and no matter what the system may be, whether Federal or otherwise, the Crown must sometimes have to take a part in the interpretation of the Statutes. Even in England, where there is a unitary system, the Crown has to intervene. At any rate, under a Federal Constitution, it will not be found that the costs are disproportionate, or that the number of cases is very much greater, making some allowance for the fact that there is an apparent, opposition between the sphere of the State and the sphere of the Commonwealth. As a matter of fact, for the first thirty-four or thirty-five years, there were not more than thirty or thirty-live constitutional cases before the United States Court, and only five or six of any great importance ; and I do not think that the cases in which the Commonwealth has been interested, or has intervened as a party to watch the proceedings, amount to a dozen. But we cannot by passing this Bill get rid of the difficulty of questions arising and the Commonwealth intervening sometimes ; and the only difference will be that we shall ask the High Court at once to find on every question that may arise on a Statute or enactment, and this may pass the bounds of human or judicial power. If we desire a complete construction at. once, we must ask the Court to do that ; and the Commonwealth, and other parties, will be represented. Any association of persons who have sufficient proximate interest to be represented must be permitted to appear; and so with the States and the Commonwealth ; the only difference, so far as expense is concerned, will be that the Commonwealth will always have to pay the piper. I scarcely think, therefore, that this phase touches the question of the desirableness of passing the Bill.
– -It does not matter where a lawyer gets his pay from when he is defending a case !
– What I mean is that that phase does not touch the expediency of passing the Bill, because, under any circumstances, there must be expense. I can scarcely see that the Attorney-General’s arguments on this point are a recommenda- tion of the measure, and they appear to me to be more political than legal. The honorable gentleman went on to deal with what is judicial power; and he mentioned that there is nothing to prevent our vesting in the Judiciary powers that are not judicial - that if the powers are judicial they undoubtedly come within the terms of section 73 of the Constitution, and that if they are not judicial, we can vest the High Court with functions that are extra judicial. That position I question. The only instance the Attorney-General gave was that of investing, not the High Court, but designated persons with extra judicial power; and it only happened that those persons were Judges. In the Harvester case, for example, when the tribunal had to decide as to trie fairness of the wages paid under the Act which was declared to be ultra vires, Mr. Justice Higgins was invested with certain powers that were not judic ial, but more in the way of arbitration powers, and these could have been conferred on any one but a Judge. On the other hand, judicial powers can be conferred on no one but a Judge; and I have never heard of extra judicial powers being vested in the Supreme Court of America or in the High Court of Australia, though, of course, we are rather young as yet in that respect. In the American case - I forget the title, but I think it is reported in 143 United States reports - certain powers were questioned, and the point was whether they were judicial or parliamentary. Let us now, however, look at some of the cases quoted by the Attorney-General. He spoke of the case Holmes v. An gunn in Western Aus- tralia; but there was nothing in that case affecting the issue that is before us now. There was no vesting of extra judicial functions in the Supreme Court of Western Australia in the ordinary sense; the whole point was whether there was the right- of appeal to the High Court under section 73 of the Constitution from the judgment or order of a Judge, who, under a local Act, was trying an election petition. A right of appeal would have existed under the Constitution anr] the Western Australian Act, if this Judge were the Supreme Court within the meaning of the Constitution; but it washeld that the Judge was not the Supreme Court, and that, therefore, the right of appeal did not exist. Then we had a long reference from the Attorney-General to another case which related to the question of what this power is in Canada, and what it is in the United States. In England for centuries, and until, I might say, recently - because the power seems to have fallen into disuse - the House of Lords claimed, as a judicial tribunal, rights of advice from the Judges, and had powers or privileges which the House of Commons has never really claimed in this connexion. The House of Lords has the power to ask the opinion of the Judges, not on Bills that are before it, but on existing Acts, in order to guide its policy. In the McNaghten case, mentioned by the Attorney-General, the question was as to the standard of legAl insanity. Tt is a curious fact that that decision has been questioned by Judges on the ground that it was only a loose advisory opinion outside the usual course of judicial power, and it has been challenged for its soundness by leading writers on criminal jurisprudence.
– It has not been departed from.
– I know that, but I shall presently read a great authority on the law in reference to that very case. There has been grave question as to the soundness of the answers of the Judges during the last twenty-five years, and I remember reading, in this connexion, Maudsley on Responsibility in Mental Diseases.
– It is a dispute between the lawyers and the doctors as to when a person is insane.
– Maudsley said the test ought to be different from that laid down in the McNaghten case. In that case, however, the Judges were, to some extent, at sea as to what really was the judicial test of insanity; and they had to offer opinions which were regarded as more or less obligatory on the Court. Subsequently Stephen, in his History of the Criminal Law of England, said -
I cannot help feeling, however, and I know that some of the most distinguished Judges on the Bench have been of the same opinion, that the authority of the answers is questionable, and it appears to me that when carefully considered they leave untouched the most difficult questions connected with the subject, and lay down propositions liable to be misunderstood, though they might, and I think ought to, be construed in a way which would dispose satisfactorily of all cases whatever.
The interest of the question as to the authority of the answers is speculative rather than practical, as there can be no doubt that the answers do express the opinion of fourteen out of the fifteen Judges, and they have in fact been accepted and acted upon ever since they were given. Two things, however, must be noticed with respect to them.
In the first place, they do not form a judgment upon definite facts proved by evidence. They are mere answers to questions which the Judges were probably under no obligation to answer, and to which the House of Lords had probably no right to require an answer, as they did not arise out of any matter judicially before the House.
Then he goes on to question the propriety of the whole business. I am showing that any weakness of obligation in the answers given by the Judges is due largely to the fact that the opinions were asked outside tlie ordinary practice of judicial procedure, arid I only desire to show that some of the authorities quoted by the Attorney-General were unfortunate from the point of view of his position. The Attorney-General quoted other ‘cases, including the Brewery or Union Label cases, on the question of the submission of abstract cases to the High Court. The Court in the Brewery case did not decide that hypothetical issues could be submitted. It is a curious fact that this Brewery case was first presented before the High Court in Melbourne, and it fell through - why? Because it was too hypothetical.
– Because one of the parties withdrew.
– I beg the honorable member’s pardon; at the first trial in Melbourne, the Judges at once said that the case as then presented was a hypothetical issue, and they declined to go on. After that the Attorney-General for Victoria and the Attorney-General for New South Wales, or, at all events, the latter,, came in, and the whole question at issue, when Chief Justice Griffith gave the judgment referred to by the Attorney-General, was whether the parties had a sufficient interest, or the State of New South Wales had a sufficient interest in the question, to be entitled to appear. That seems to be the very reverse of what the Attorney-General suggested. The whole point was : Was the State, as a :State, sufficiently interested in this legislation to appear in the relation of a party directly affected by it - that is, the employers of tlie brewery employes? The Court held that, on the whole, the union of the Attorney-General with some of the parties interested gave, in the circumstances, a sufficient jurisdiction to entertain the special case then presented. I was in the case, and remember several of the authorities cited. They were all judicial authorities. If the AttorneyGeneral wants to know the opinion of the High Court as to the sending on of abstract or hypothetical issues, I can refer him to the Federated Saw Millers’ case, reported in. 8 Commonwealth Law Reports, 1909. The Chief Justice, alluding to the opinion of the English Judges upon the advisory functions cast upon them by the House of Lords, said -
I was reminded during the course- of the argument of M’Naghten’s case, in which- the Judges, much against their will, were asked to express an opinion upon questions of law not necessary for the decision of an actual case. I will read the introductory words of the opinion of Tindal, L.C.J, (speaking for all the Judges except Maule, J.): - “My Lords, Her Majesty’s Judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordships’ House, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case ; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and, at the same time, dangerous to the administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers, given by them to your Lordships’ questions.”
The Chief Justice himself then said -
The precedent has never been followed. It appears necessary, however, if only to show why I feel bound to refuse to give a categorical answer to some of the questions submitted, to express my opinion on some of the points argued, even though it may be only obiter, and to state some propositions which appear to me to be elementary, and, indeed, little more than truisms, although nearly all of them have been explicitly or implicitly controverted in the arguments for the claimants.
In other words, he said that most of the questions in the Federated Saw Millers’ case seemed to be hypothetical, but that . the Court were prepared, nevertheless, to do what they cannot do under this Bill, but what is a very helpful thing to the President of the Arbitration Court - that is, to express a few general ideas as to the power of the President under the laws we have passed under tlie arbitration power of the Constitution. A series of propositions are set forth, not as binding, but as what I might call advisory suggestions.
– Is that when the Chief Justise wrote a “ treatise,” as he called it?
– I think so. We are denying the Court that right under this Bill, because the decision must be final, if it can be made fina!, and binding, whatever that means.
– Does the honorable member think that the Justices of the .High -Court will be bound by this measure if they do not wish to ‘act under it ?
– I doubt it. I propose to make a few suggestions upon the validity of the whole proposal. I am not strongly against the principle of sending clean issues to the Court. I asked in the Adelaide Convention that power in that direction should be given in the ‘Constitution, in order to put the matter -beyond all doubt. It may be too late now, but if I had had my way then, there would have been no doubt about our power. In the case to which I have referred the -Chief Justice deals in succession with, I think, fourteen different questions. What did the AttorneyGeneral say is to be done under this measure? We are to obtain an Act, and a copy of the Constitution, and say ‘to the Judges, “ Here you are; tell us the rest.” In that one case alone, fourteen different questions were put to the Judge by .the counsel ‘Connected with it, after .anxious preparation -and deliberation, so that, -although advisory, they were on issues presented !by way of a special case to the Court, and tie Court w.as not left to look through .the Aat of Parliament from beginning to ‘end and find in what and in ‘how many respects, if at all, it seemed to be unconstitutional. That is not the class of issue sent on to the Privy Council under the Privy Council Act., or to the Supreme Court of Canada under the Supreme Court of Canada Act. -I think I have now fairly -travelled over the authorities in support of -the Bill, upon which the Attorney-General placed reliance. He referred to the Journals of the House of Lords in connexion with an opinion given to that House by the Judges an ;some Canadian Clergy Act in -1840. What I .said as regards .fee M’Naghten -case touches that also, but there is no doubt that the Judges of England were -always less disinclined, in. -the beginning, to answer questions affecting the judicial power of the Colonies
Gtr Dominions than they were when -questions were presented in connexion with English Acts -of Parliament of purely local application. Under the Act 4 and 5, William IV., Gap. 96, the first Act establishing proper government in Australia, putting an end to martial law, .and setting up in New South Wales a proper system -of trial by Judiciary and government “by Orders in Council, it .will .be found that the legisla tive enactments or ‘Ordinances had to besubmitted by the Legislature for the certificate of the Chief Justice as to their validity, before they became Acts. There were, therefore, precedents in the -early days, before we got our proper system of con.stitutional and representative .government, for asking the opinion of the Judiciary, but that was done very largely for the guidance of the Executive as to whetherthey should exercise the power of disallowance. These were, of course, non-elective nominee bodies, appointed on behalf of the Crown, because they were officers of the Crown, and not at all representatives of the people - a very vital distinction. It was therefore customary, for their guidance,, that the opinion of the Chief Justice should be obtained, and, following up that temper, the British judicial tribunals, at all events, were less inclined to kick at giving an opinion in connexion with such’ matters than they would be in regard to matters of purely local jurisdiction. In the Convention at Adelaide, I tabled an amendment by way of suggestion, because it was not to be -final either in its place or wording, that we ought to vest our High Court with jurisdiction in any matters that Parliament might prescribe. We :had at that stage passed the legislative provisions, and had come to the judiciary provisions, and I wanted to apply .a test which, if the principle were .adopted, the drafting committee could afterwards throw into the best language, and put in the proper part of the Bill. What I suggested then was that jurisdiction similar to that vested in the Privy Council ought to be given to the High Court, because eventually the Privy Council might be .abolished ;as one of our Courts of appeal, and -whatever power the Privy Council ‘had ought to be vested in the -High Court as against that ‘contingency. Under 3 and 4 Vic, Cap. 41, the Act regulating the Privy Council, the Crown has power to submit any matters whatever for the .decision of the Privy Council. That jurisdiction is intended for the submission of such questions as the disputed boundary betweenSouth Australia and Victoria. Some years ago an arrangement was come to between the ‘Governments of South Australia and Victoria to submit that -question to the Privy Council. Unfortunately, the VictorianParliament refused to ratify the action of its Executive, and Ae .question was not submitted. I believe that -a case as ito what is the true .boundary between the two States- is actually pending before the Federal tribunal, now that it has been established; but the whole matter could have been settled years ago had the States acted reasonably by drawing up a special case and sending it on to the Privy Council under the Privy Council Act. Similarly, in 1892, a big case from the Bahamas, as to the power of the Sovereign to release persons under committal for contempt of Court, was decided. It seems that some newspaper, in which had appeared a letter reflecting upon the Chief Justice, had refused to give up the name of the writer at the command of the Chief Justice, and he” thereupon imprisoned the proprietor or editor for contempt of Court. The question arose whether the action of the Executive in releasing him, because they thought the merits did not justify imprisonment, was valid. That case went to the Privy Council and an article appeared in the Times upon the jurisdiction involved. Eleven Judges sat. It was one of the biggest and most important Courts that had ever sat, such Courts meeting only for a matter of very great importance, which only occasionally turns up. Similarly, in 1886 and 1893, Mr. Gladstone brought in his Government of Ireland Bills, and proposed to adopt the same principle, by which the question of the validity of Irish Acts was lo be submitted to the Privy Council, strengthened by some of the Irish Judges or ex-Judges. The Attorney-General might have found a precedent for this measure in either of those Acts. I suggested at the Convention that that power ought to be vested in the High Court, putting the matter in this way -
We propose abolishing the right of appeal to the Privy Council -
Tn Adelaide we did do that - and if we succeed in that, another amendment will be necessary. We will have to invest our High Court with the power which is vested in the Privy Council to decide certain matters which are not matters of contentious litigation. T then went on to show what had been done in Canada and in the State Constitutions in America, and the divided opinion that existed amongst writers on the practice in America as to the propriety of the power of submitting abstract issues. In seven of the American States the power has been given, not by Act of Parliament, but by the Constitution. Only in Vermont, I believe, is it the subject of an Act. There, according to Bryce, the opinions given are not binding ; they are merely advisory opinions which the Courts may, or may not, disregard. Bryce, who puts the matter very fairly, doubts the expediency of that course being followed. It does not exist in connexion with the Federal Judiciary, and there is no power for Congress to pass such an Act as this. Bryce asks -
How is a man to know whether he has really acquired a right under a Statute? How is he to learn whether to conform his conduct to it or not? How is an investor to judge if he may safely lend money which a Statute has empowered a community to borrow, when the Statute may be itself subsequently overthrown?
He puts the considerations that might be urged in favour of the existence of such a power, but he goes on to doubt the wisdom of the whole thing.
By leaving constitutional questions 10 be settled by the Courts of Law another advantage was incidentally secured. The Court does not go to meet the question ; it waits for the question to come to it. When the Court acts it acts at the instance of a party. Sometimes the plaintiff or the defendant may be the National Government or a State Government, but far more frequently both are private persons seeking to enforce or defeat their private rights. For instance, in the famous case which established the doctrine that a Statute passed by a State repealing a grant of land to an individual made on certain terms by a previous Statute is a law “ impairing the obligation of a contract,” and therefore invalid, under article 1, section 10, of the Federal Constitution : the question came before the Court on an action by one Fletcher against one Peck on a covenant contained in a deed made by the latter, and to do justice between plaintiff and defendant it was necessary to examine the validity of a Statute passed by the Legislature of Georgia.
He goes on to point out that this is a dangerous practice, because there is an absence of that substantial interest which enables litigants to have a matter thoroughly threshed out. If honorable members refer to Quick and Garran they will find that the wisdom of this Bill is questioned. Sir John Quick - the honorable and learned member for Bendigo - was a member of the Federal Convention, and Mr. Garran is an authority on these points who is undoubtedly entitled to the very greatest respect. Two points are referred to at pages 766 and 767 of their Annotated Constitution. As to the expediency of this power being given, they write -
The argument from policy is very strong in support of this view. Ex parte interpretations of the law, without the thorough examination of interested parties and their counsel, are apt to be unsatisfactory and unauthoritative. It might indeed happen that the persons interested might be represented and heard upon a reference ; but the practice would be, at least, open to serious abuse. The one advantage it would have - that of obtaining a prompt decision upon questions which are in doubt, but which no one is ready to litigate - is more than balanced by other considerations. The Judges would be liable to be hindered in the discharge of their appropriate duties by being employed, in a manner, as the law advisers of the Crown- a position which might lead to the undesirable entanglement of the Bench in political matters. Seeing that the Supreme Court is not solely the servant of the Federal Government, but is also the final arbiter between the Commonwealth and the States, it is of the highest constitutional importance that it should interpret the scope of its judicial duties in the strictest possible way.
Then the question of our power is raised, and the effect of their statement is that the question is a. rather difficult one. The answer seems to depend upon the scope and meaning of the word “ judiciary.” Would such things be judicial or extra judicial? They cite upon that point American writers, whose opinion is that the power would be extra judicial, and as such could not be vested in the High Court. In the circumstances which presented themselves to me, I asked that that power should be given, and the question now arises as to whether or not we have it. I very much doubt that we have the power.I mentioned that in America, in seven out of eight cases, this is done by an amendment of the Constitution or by an original provision where the Constitution was recast. In Canada the power to create the Supreme Court as a Court of Appeal is contained in one short section of the Constitution; but under our Constitution we practically defined what the High Court was to be. I have not the Canadian section at hand, but it was a very short one -section 101 - simply enabling the Parliament of Canada to set up a Supreme Court of Appeal. It was under that section that the power was exercised, and in the Canadian election case of Valin v. Langlois, referred to by the AttorneyGeneral, the validity of its power, I think, was questioned. As the question, however, came before the Privy Council judicially they did not determine it. In other words, the question they had to determine arose on an appeal from two judgments of the Canadian Courts, and, therefore, it properly came before the Privy Council ; but the point as to the power of the Canadian Parliament to give such a very wide jurisdiction as they did under the Act 54 and 55 Victoria, c. 25, referred to by the Attorney-General, was raised, at all events, and questioned. The question arises as to whether this jurisdiction is appellate or original. In England the power of reference to the Privy
Council is regarded as an original jurisdiction. The Privy Council is an appellate tribunal, and I have always seen this referred to as an original jurisdiction of the Privy Council. Under section 75 of the Constitution, the High Court is given original jurisdiction in five matters, and under section 76 Parliament is entitled to invest the High Court with original jurisdiction in four other matters. It may confer original jurisdiction on the High Court in any matter - (i.) Arising under this Constitution or involving its interpretation : (ii.) Arising under any laws made by the Parliament : (iii.) Of admiralty and maritime jurisdiction : (iv.) Relating to the same subject-matter claimed under the laws of different States.
But there is nothing in section 76 enabling us to confer original jurisdiction in hypothetical cases. The power to confer original jurisdiction relates to a “matter,” and the word “matter” was inserted in the Constitution as being almost synonymous with, but a little wider than, the words “causes” and “controversies” which occur in the Constitution of the United States of America. Those causes or controversies must be judicial, and Congress has never attempted to give such a power to the Supreme Court of the United States of America.
– Why does the honorable member suggest that” matter ‘ ‘ would not necessarily cover this proposal?
– We know that the word “matter” is used time after time as a legal term. The words originally proposed at the Adelaide sittings of the Convention were, I think, ‘ ‘ causes and controversies,” as used in the American Constitution. The Judicial Committee of the Convention, however, as shown at page 767 of Quick and Garran’s Annotated Constitution, recommended that that term should be widened, but in doing so they were careful to point out that there was no intention to take in extra judicial powers.
– Might not an Act of this Parliament be a matter involving the interpretation of the Constitution?
– Not references under the Act; if the word “matter” means “a judicial matter.” That is the point. I say that the Convention, in making that amendment of the Constitution Bill, never regarded “matter” as covering other than cases arising as between party and party, or matters in which the parties would not be present, the Court having jurisdiction under some particular Act of Parliament, as in England it may have. So much for the question of original jurisdiction. As to the question of appellate jurisdiction, clearly this cannot be appellate, because there is no Court from which an appeal could take place. Even under the Bill the decision of this Court is to be final, so that there may be no appeal for reconsideration on facts, to the High Court. Thus the question of its being an appellate jurisdiction is excluded. I doubt that we can confer this power. If it were expedient to give it I should not hesitate to give it, but I am merely suggesting that the High Court itself may have to determine whether this power exists, or that the matter may go on to the Privy Council. The chances are that the Privy Council will have to determine it ultimately, because under this Bill there is no Court in which the issue could arise. It will have to arise in some reference to the High Court that may be decided in the ordinary way of appeal from that Court to the Privy Council. We cannot abolish the appeal which will lie in the matter, because it is not an inter se matter within the meaning of the Judiciary part of the Constitution. I do not question the expediency of giving such a power where the issue is a clean one. I have already mentioned a case that was sent from the Bahamas; and I have referred to the disputed boundaries ease. The question of our jurisdictionin regard to. navigation, which is doubtful, might also be referred. It is extremely doubtful whether the big Bill before another place is valid so far as it gives jurisdiction in Intrastate matters - whether that is a power that exists under the Admiralty provisions of the Constitution or under the navigation power. That is a matter on which the issue would be clean cut, and might, of course, be referred to the Judiciary without very great danger of its not being exhausted and thoroughly threshed out. The question of our power to enable the GovernorGenenal to make Ordinances in connexion with the Northern Territory, which is by no means absolutely settled, is also an issue that mightbe referred. But we cannot give carte blanche to the Court, by handing over to it an Act of Parliament, to ascertain and forestall every issue that might arise under it. If we referred a Bill to the Court, and asked it to find out what portion of it was valid and what portion was not valid, we should be asking it to do something that was absolutely beyond its competence. It would be impossible to exhaust the issues. There is no good purpose to be served by getting an imperfect construction of an Act ; and a perfect construction can be obtained only when a litigant raises a particular question in issue. For that reason, I doubt that this Bill is one which, at this stage of the session at all events, should be passed. It is too wide. It does not follow advisory lines-, which are the lines applicable to a large extent in America and Canada, and also as regards the Privy Council, because, to a large extent, it simply settles important points referred by the parties or States concerned. By saying that the judgment of the Judiciary is to be final, we are really taking away from the High Court the power to reconsider its own decision given before a question that would be relevant to it had been presented to the Court. For these reasons, without saying that I am not to some extent in sympathy with the principle of this legislation, I doubt the expediency of passing the Bill at this stage in the history of our judicial development.
.- The House is under an obligation to the AttorneyGeneral for the very complete statement he has given of the legal position in regard to the. measure submitted to us. I have no doubt that there is a very general desire to do everything possible to lessen litigation and to cheapen it, if that can be done, in connexion with the High Court and’ the interpretation of our Constitution. I am afraid, however, that we shall find that, as long as we continue to live under a Federal system, which is in reality a legal system.-
– Hear, hear.
– And which is, in my opinion, very much better than the unified system advocated by the honorable member who has just cheered the sentiment expressed by me-
– Better for lawyers.
– Not only for lawyers but also for the public. Try as we may to lessen litigation, one of the penalties which we shall have to pay for our Federal system, under which the interests of the States may conflict with those of the Commonwealth, is continuous litigation, and, necessarily, litigation of a very costly character. So far as the Bill aims at lessening that litigation, and getting rid of delays in connexion with the settlement of constitutional questions, it should receive the support of jail sections. Despite what has been said ,bv the honorable member for Angas, I submit that the Bill, if it be found to be constitutional, will in practice cheapen litigation, and hasten the decision of legal questions. In this connexion, let me refer to the proceedings in the boot trade case. There the constitutionality of the common rule was argued before the High Court on two occasions. In the first instance, the “barristers in the case argued whether there was a dispute ; if so, what was its nature, and whether this Parliament was empowered to provide for the establishment of a common rule provision. It being found that the decision of the constitutional question was not necessary for the settlement of the issue, it was passed over, but a few months later the same eminent counsel were called upon to again argue it, and whereas in the “first case, when the question was argued with the facts, it cost the Commonwealth £1,094 6s. 7d., in the second case the cost was only £14° 10s. 6d.
– But in the second case -advantage could be taken of what was said in the first case.
– I think that the proceedings in the first case would rather tend to increase than to shorten the discussions in the second case. In the first case, eminent counsel had to sit and listen, day after day, to the history of tlie dealings of the boot trade employes with their employers, and to argument as to whether a real dispute existed, and that, of course, swelled the costs. But in the second case only the constitutional question was at issue, and the proceedings were therefore much shorter, the speeches occupying only a little over two days. I cite that instance in support of my contention that the measure should save the Commonwealth and the States considerable expense.
– What would be the position if the High Court said that a measure was constitutional and an appeal was lodged under it?
– The barrister who had in his favour a decision pf the High Court would be on velvet. In addition to saving expense, we can, by passing the Bill, prevent the building up of a system which may ultimately be found to have a false foundation. We thought that we had power to provide for a common rule, but when the question was tested it was found that we had not, and the machinery constructed to give effect to our legislation became useless. Had an appeal been made to the High Court in the first instance, much expense would have been saved. For those who desire precedent for the proposal, there is that of Canada and of Great Britain, where the highest Court in the land has been called upon to exercise just such a power as we wish to ask the High Court to exercise. Let me quote from the judgment of Lord Wynford in McNaghten’s case, 8 H.L.R., 724-
My Lords, I never doubted that your Lordships possess the power to call on the Judges te* give their opinions upon questions of existing law, proposed to them as these questions have been. I myself recollect, that when I had the honour to hold the office of Lord Chief Justice of the Court of Common Fleas, I communicated to the House the opinions of the Judges on questions of this sort, framed with reference to the usury laws. Upon the opinion of the Judges thus delivered to the House by me, a Bill was founded, and afterwards passed into a law.
Apparently, the Judicial Committee of the House of Lords goes much further than it is proposed to ask the High Court to go, stating opinions regarding the law which are made the basis of legislation. That practice had the approval of the Lord Chancellor.
– Surely it is a better course to get advice first, and frame the law upon it, than to pass an Act, and ask for advice regarding it.
– The honorable member’s’ interjection reminds me of the oft-quoted -
Timeo Danaos et dona ferentes.
His suggestion is that of an enemy, rather than a friend. Were we to propose that the High Court should guide our legislation, there would be a howl of indignant protest. But we are surely treading safely if we propose to go only a short way on the path on which, in Great Britain, they have gone a very long way. The honorable member for Angas has pointed out that eminent writers are not in entire agreement with the decision in M’Naghten’s case. I acknowledge that. It has been followed by the Judiciary, but Stephen and others have commented adversely upon it. The question for us is, not whether the decision in that case was right, but whether the practice of referring questions to the Judges for their opinion is a proper one. No doubt, had the question been submitted in the ordinary way, in an action between parties, the same decision would have been given, and I contend that, it is a good practice for us to follow to get the opinion of the most eminent Judges of the land, when it is possible for us to do so, on difficult, constitutional questions. The honorable member for Angas suggests that it may not be possible for clear issues to be submitted to the High Court; but in the constitutional cases which have been tried here, it would have been a very simple thing. In the Brewery case, the question was whether the workers’ trade mark provision was constitutional, regarding which a clear issue could easily have been submitted.
– Undoubtedly a clear issue could be submitted in some cases, and it would be an advantage.
– The cases which have cost the Commonwealth so much have turned on questions regarding which clear issues could have been submitted to the High Court by the Attorney-General. The constitutionality of including the railway servants in the Conciliation and Arbitration Act, the constitutionality of the common rule and of the new Protection proposals, could easily have been referred to the High Court, and could have been settled more speedily and cheaply than has been the case.
– We have been to the High Court a great number of times under the Arbitration Act, when, had this measure been in force, we might have gone only once.
– An Attorney-General will know what is a clear issue, and will be prepared to submit such issues. If a clear issue were not submitted, the High Court would have the power to refuse to reply to the question, if, indeed, it will not have that power in all cases. I submit, as a suggestion, that the operation of this Bill might be so extended as to allow other parties interested in our legislation to have similar .power to that exercised by the AttorneyGeneral. If it is fair that the Attorney-General of the Commonwealth should have the right to take the opinion of the High Court about our legislation, it might be desirable to allow the AttorneyGeneral of any State which was affected by our legislation to also take the opinion of the High Court. ‘ For example, we passed an Act which protected workers’” trade marks, and there was some doubt as to whether the legislation is constitutional. It might very well happen that a State Parliament might desire to give similar protection, and find it necessary to settle the doubt as to whether the Commonwealth legislation was valid. In cases where the powers of the States are affected by the exercise of what are alleged to be our powers, it might be advisable to allow the States, with the permission of the High Court, to get the opinion of the Court. Of course, the suggestion may be open to some objections that do not at present present themselves to me.
– Does the honorable member suggest that a State Attorney-General should have exactly the same power in relation to Commonwealth Statutes as the Commonwealth Attorney-General ?
– Not exactly the same power; but I suggest that, by permission, the State Attorney-General ought to be able to obtain the opinion of the High Court.
– In Canada there is a provision whereby such questions can be submitted to Court with the consent of both the State and the Dominion.’
– At any rate, some such provision might strengthen the Bill, and make it still more effective. Personally, I do not hope for any very great reform from this measure, as I think it is impossible to live in the Federal atmosphere without a good deal of law ; but if we can lessen the consequent delays we shall be doing our part of what should be done. It is because I believe that the .legislation will have a tendency in this direction that I support the second reading of this Bill.
.- I do not suppose that any one would gather the real significance of this measure from the manner of its reception in this House, when speeches, carefully thought out and prepared, like those of the Attorney-General and the honorable member for Angas, are not very eagerly followed by honorable members, whose number could be counted on one hand. No visitor to the gallery, at all events, would infer from the present character of the proceedings that we were dealing with anything more notable than a Dog Act in a State Parliament.
– There must be a contempt for the law !
– Whether we feel contemptuous or otherwise towards the law, our first business is to know something about it. and that is not so easy as it seems. Like the honorable member for Angas, I approach the really practical object of this measure with as much friendliness as possible. If a means could be devised by which questions possessing a real unity, when they form the subject of an Act of Parliament, might be immediately remitted to a high tribunal for the purpose of being dealt with at once, and as a whole, in accordance either with what we roughly term first principles, or with the Federal Constitution, I should be cordially in its favour. When the honorable member for Angas, in the Federal Convention of 1897, first broached a proposition of this general character, though differing considerably from that now before us, I was one who gave it a most sympathetic hearing. That is thirteen years ago. My difficulty then was to see how the proposition could be applied, and that is my difficulty now, reinforced by experience, most of it gained outside direct legal practice.
– The honorable member must not forget the cases in Canada, where a similar law has been applied.
– It seems to me that any benefits to be obtained from this legislation depend wholly on our power Ixd confine it within a definite area; and measures permitting this definiteness are very rare. This Bill, which is to lay the foundation of an almost entirely new practice, the object of which is to test measures after they are passed, contains not a single limitation upon its use. We might put all the measures of a session into one single Act and then send it to the High Court with an invitation for its judgment ; though, of course, such a preposterous attempt would necessarily be condemned to utter futility. Even a short clause, when it” is carefully and thoroughly examined in all ite relations, may be found to be packed with different conflicting issues. There is not the slightest guarantee, or any endeavour to guarantee, that only a single issue, or, at most, a few issues, shall be embodied in any measure it is proposed to submit to the High Court.
I admit, again, that it would not be easy, in most cases, to limit the issues in that way - that it would not be easy to draft a Bill so that one, or, at all events, only few questions might be involved, and those of a precise character. But in the very nature of the case, unless the questions are limited in number, and those plain and clear, the Bill before us will not be worth the paper on which it is printed. Here, without the slightest limitation, we have a measure which will allow the remission to the High Court of anything or everything that Parliament may choose to remit.
The hastening and cheapening of litigation, referred to by the honorable member for Werriwa, are most desirable ; and it is from that stand-point that I share that honorable member’s anxious desire that a Bill of this kind should be employed wherever it can. I approach this proposal, therefore, with feelings of entire friendliness; and am not in the least affected by the jocose arguments as to its effect on the legal profession. First of all, the legal profession can look very well after itself, and if it could not, members of Parliament, particularly members of this kind of Parliament, with this kind of legislation, are always feeding tlie lawyers - chasing them with business, in point of fact. One patent characteristic of every developing civilization is the multiplication of causes of personal differences, of recognised human rights, and of the classes of property; it is these that, year by year, are furnishing an ever-widening field for legal processes. We need not have the faintest alarm lest we deprive lawyers of their occupation by such Statutes as this. From another point of view. it is to the interest of the legal profession that on great general issues there should be a clear road for all; the minor issues are quite enough to keep them well employed. However,. I am discussing this measure as one who has not been in active practice for ten years, and who has had to consider legal questions only in so far as they came before Parliament.
It appears to me, first, that the case made out by the Attorney-General was the best that could be made out for a very undesirable form of this proposal, and it was a bad case at that. Very few of the honorable gentleman’s precedents take us far on the road. Some of them include what may be called “ pointers,” and some indicate possibilities and tendencies; but they are all in the raw or in the rough. A great deal more will be needed on which to base a sound proposition of this kind, which, to be successful, must be made specific where this is left vague and general. It ought to clearly indicate or provide machinery for defining the necessarily abstract issues in question, so that they may be submitted free from the entanglements of abstract principles. The honorable member for Angas has contributed off-hand, out of his great personal experiences of recent litigation, a number of precedents and illustrations which undermined, or, in some cases, overwhelmed the Attorney-General’s several positions. The honorable member has made it clear that this Bill, instead of providing for the submission of a plain and simple proposition, capable, under certain conditions, of being handled by the High Court–
– Similar legislation has been in force in Canada for twenty or thirty years.
– Very little use has been made of it.
– “ Very little use ! “
– Yes, and then in particular classes of questions - two or three classes at the outside, but mainly in one; whereas this Bill leaves it open to Parliament to remit an Act of any character whatever, no matter what its length or complexity of character.
– I expressly disclaimed that. I said that, whereas under the Canadian law, any kind of measure could be remitted, under this Bill only one kind could.
– The only limitation is to some question of law affecting the validity of an Act or enactment.
– Quite so - the validity of an Act.
– But an Act may include a dozen different constitutional questions.
– Of course; it may include a hundred !
– The High Court is to be called upon to decide abstract legal issues, some to be declared constitutional, some unconstitutional, some partly constitutional, and so on, distinguishing and refining, continually in the vague. The AttorneyGeneral does not deny that?
– I do not; but it has been done in Canada, and answers have been given to various sections submitted, not once, but dozens of times.
– Under this Bill we could send the Land Tax Assessment Act to the High Court.
– Certainly we could.
– And how many issues, constitutional or legal, are there in that measure ?
– Certainly not more than two.
– More like twenty.
– Will the honorable member name more than two?
– Speaking from memory, there are the principle of graduation, the principle of exemption, and the principle of appropriating land, three fruitful illustrations, to go no further. Again these branch out. How far is the Court to pursue its divisions and subdivisions ? They are numerous. How much guidance is to be required of it?
– The Privy Council hasdecided questions quite as intricate by answering a number of questions seriatim.
– As a rule, the answers to those questions give only general guidance. As I have said, in most instances, to get general guidance beforehand, and draft your Bill on it, would be much safer than to draft the Bill first and then remit it to the Court.
– Does the honorable member suggestthat we should submit hypothetical questions to the Court ?
– No; because I know it would be futile. Abstract questions are nearly as bad in most instances. I have already pointed out that I am in sympathy with the object in view ; but it can be achieved only by specific delimitations of the clearest character., the impossibility of such a delimitation in practice is the reason why the plan was not embodied in the Constitution thirteen years ago, at the Adelaide Convention. The “ honorable and learned member is not aware thatI was then as sympathetic withtheobjectaimedatas I am now ; but this measure simply throws the door wide open, enabling any kind of Act to be sent up to have its validity tested. I put aside the ordinary legal difficulty of disentangling the exact effect of an Act - how far it goes in a particular direction, or whether any restriction or limitation is implied, bringing it within the scope of the proper jurisdiction. The fact is that, when you decide one issue, you probably decide a number of other issues, which may not be included in the Act at all. Decisions as to the validity or invalidity of an Act as judicial or semi-judicial determinations have to be taken into account in other circumstances outside the scope of the Act, in every-day life.
– They declare the law.
– The honorable and learned member sees, then, that in so declaring it, they must be applying it to an infinity of other cases which are not before the Court.
– Potentially an infinite number of cases.
– In some cases the decisions would be fruitful, in others not. We cannot determine.
– Put it the other way. If we do not do this, then potentially there will be an infinite number of cases to determine the law. .
– The honorable member can take whichever branch of the argument he likes. He must, to a certain extent, take both. If he recognises that, in deciding a case, probably an abstract case, on abstract grounds, the Judges authoritatively affect the whole law in that regard, he admits the difficult task imposed upon them even when they are asked to sanction an apparently simple measure, since it may involve a principle capable of being applied, to numberless other transactions.
– We have decided that the Act to which the honorable member refers shall apply to those whose circumstances are suitable.
– That disposes of the honorable and learned member’s assertion of the simplicity of this dangerous procedure. He said the reference would be readily disposed of - that it would mean merely a proposal of Parliament laid aside if illegal, adopted if legal. Any one listening to him would have gained an impression of extreme simplicity–
– A law to close all shops at six o’clock applies to all shops built, or to be built. Arewe to be frightened of shadows ?
– Not of the shadow of six o’clock, that has no relevancy. Contrast the vast field of considerations through which the High Court Judges must move before they give, on an abstract question, a decision which may be fruitful beyond the possibilities of their assessment. They tire asked to do so in the most vague and general fashion. Does not the honorable and learned member now see the perils which surround this proposal? It gives pause to those of us who are most anxious to provide a short cut, and most eager, as members of the Legislature, to obtain the great advantage of having decisions given on questions of this kind without delay. Courts deal with concrete cases and concrete applications of principles. The issues under this Bill are all and always abstract. We must take those perils into serious consideration, not wave them away as the honorable and learned member does.
I feel that on this question it would be hopeless to endeavour to address oneself satisfactorily to the House. I speak practically on the spur of the moment from points suggested by the debate as it has proceeded. No doubt in this, as in every other case, the measure will be voted in any event, and therefore it is not incumbent upon us to put out the last ounce of power we possess in order to demonstrate, as we would, to members who were open-, minded, reasons why they should take a view adverse to that of the Government.
– Why not put out the last ounce of strength, if it is so necessary?
– Because it will, and can, have no effect. We cannot hope to convince honorable members opposite.
– We did not think that when over there.
– No; because there was always a chance of convincing us, and honorable members opposite took advantage of it. Many embarrassments that we suffered periodically were due to that course.
If any honorable member regards this measure as being made necessary by some inherent blindness or perverseness of the legal species, let him recall, first, the difficulty of expressing in terms, without any possibility of misconstruction, what the law actually is when you know what it is. Next, let him devise some scheme by which, when he has once expressed it, you shall be able to stop the clock of the universe, so that human life, its circumstances, and relations, shall no longer continually change as they always have done and will do, making the law of yesterday always one day older with every day that passes. It is the new and unforeseen conditions thus created that force us into more or less strained interpretations of the old law, in order to keep up to date, and in pace with the march of human progress.
– Could not the Court decide whether the Land Tax Act was legal ?
– They could; but that is not the aspect with which I am now dealing. Honorable members approve this measure, as I approve its aim, as an attempt at a short cut. They see in it the possibility of fruitful legislation, so to speak, for the preservation of legislation. I see that, and would support it, too, if I could, but what is required is a most carefully framed and adjusted general measure shaped to that precise and particular end. Then the particular kind of questions can be effectively and properly answered. No doubt such cases will come under this Bill, but with them will come a harvest of other cases unsuitable in their nature or circumstances, related or unrelated, but all alike remitted to the Court for similar treatment, however dissimilar they may be.
The honorable member who preceded me put his finger on what seems to be a safety valve, not provided in the measure, but, for all that, existing. We cannot compel the Judges to decide more than they feel justified in deciding in any given case. We cannot oblige the Judges to pronounce upon every word or every sentence in an Act, so as to give them unquestionable authority.
– That is why, time and again, we have to go to the Court to decide practically the same thing.
– What may look like, but is not necessarily, the same thing, especially when one man’s interest induces him to say it is, and another man’s to show that a distinction exists.
The first question for the Court, in each case, will be whether the distinction is of such a practical and clear character as to cause them to take a new path, or so shadowy as to allow them, as they always prefer, to fall in behind the line of precedents already established. Recognising all that can be, and ought to be, accomplished by some such provision as this, I assert that the Court cannot be compelled to attempt impossibilities, and that the great safety valve of the measure will be found in the Court itself. When it is clear that every measure has to be viewed in relation to the precedents it will set up, and the law it will determine, we can understand the check capable of being applied, and certain to be applied.
It will be possible to frame a measure which, if remitted to the Court for its consideration, the Court being bound to take into account every principle of law involved in it, and every departure from accepted principles made by it, would take the Judges the rest of their natural lives to determine its constitutionality. The only hope of usefulness for this procedure will be found when the Acts submitted areof the briefest possible character, aimed as directly as possible at some central and important point needing to be determined, and, as far as possible, concrete in character.In those circumstances this may prove to be the short cut we are seeking. The misfortune is that we are throwing the door wide open for the submission to the Court of all sorts of abstract measures which can never be effectively dealt with in this way. In the words of Chief Justice Tindal, quoted by the honorable and learned member for Angas, similar facts brought before a Court assume myriads of different forms, shapes, and colours, in different lights and in different surroundings. It is only those who have had occasion either in the profession or as students outside it, to realize the enormous intricacies, and the perpetually increasing complexity of human affairs, who are slow to realize that the law attempts to confine all human actions, rights, and obligations within the artificial limits of the formal words of Statutes, or to link them together by principles slowly evolved out of human experience. We are slow to discover that the law is not a mere network for the harassing of citizens ; it is, in fact, the very breath of social relation that our citizens breathe from day to day, and without which they cannot conduct the simplest transactions of everyday life.
– It is marvellous that we are able to obtain any decisions.
– It is, and for good reasons. When you start defining philosophically and metaphysically, you can keepon refining like Burke, who -
You can go on refining ad infinitum.
– Just as they used to discuss in the Middle Ages how many souls could dance upon the point of a needle.
– I think it was how many imps could dance on the point, though perhaps my honorable friend doesnot like to refer to his relations in that way.Reference has been made to a decision givenby the Commonwealth Conciliation andArbitration Court. My honorable and learned friend, the member for Angas, happened to be engaged in that case, and when I asked him, “ How many important points of the first class were involved in that case?” he said, “The Judge found fourteen.” There may be any number of” such propositions embodied in the sameBill.
Do we not all realize the almost herculean’ task that the determination of such a tangleof points must cast upon the wisest bench of Justices that ever sat. Still they canprotect themselves. They will be able tocondition their judgments. They have always shown themselves capable of doing that, and future generations of Judges will not fall away in that regard. They canalso give partial judgments. They are nob compelled to consider every possible principle involved in every measure. Who are we to find fault with them, since we ourselves are now asked to determine the validity of this very Bill itself? Honorable members opposite, iri t’.ie most cheerful manner possible, are going to vote for its validity. How simple it seems to them ; how comparatively indifferent the matter that honorable members opposite are seeking to transfer to the shoulders of the Justices. Those learned lawyers will not be able to take it in this light-hearted fashion. They will have to view it very seriously and deal with it elaborately. Among all the tasks cast upon them, probably the most difficult that has ever confronted them or any other Court will be found wrapped up in some of the Bills likely to be referred to the Justices by this Legislature in order that they may try to find out either what we really meant, what we intended to mean, or what, if we had understood the law, we should have meant. Having made allowance for our manifold shortcomings, and for the unpropitious atmosphere in which we work, as compared with the calmness of their judicial chamber, they will proceed to make the best of the task. We shall, at all events, have made one more experiment. I hope it will be useful. Within limits, I can understand that it might be useful and profitable. As it is we have to take our chance. It is a case of hit or miss.
More than that, we must wait for the judgment of the High Court before we know whether or not this measure itself is constitutional - whether, framed as it is, it comes within our constitutional powers. That in itself is a nice question on which it is unnecessary to dwell. It is much more than doubtful. If the Court get past it there is a perfect flower garden of litigation in view.
– Does this Bill extend the limits of the flower garden?
– It opens the gate into that flower garden, since, instead of having to decide concrete cases between party and party, based on certain definitely-proved facts and upon fixed principles, the High Court will be called upon, free from the contest of parties, to consider more or less abstract questions arising out of constitutional interpretations. For one thing, they will not be required, as you require us, Mr. Speaker, to “ connect their argu- ments “ under any parliamentary censorship.
Sitting suspended from 6.30 to 8 p.m.
.- The substance of this Rill may be gathered from three clauses, providing, firstly, that the Governor-General may refer to the High Court for hearing or determination any question of law as to the validity of an Act of the Federal Parliament, and that it may hear and determine the same ; secondly, that the High Court may direct any person or class of persons claiming to be interested to be notified of the hearing of such matters, and that they may be heard thereon ; and, thirdly, that the determinations of the High Court upon such questions shall be final and conclusive. It would seem upon the face of this Bill that it affords a ready means of expediting, facilitating, and cheapening the settlement of constitutional questions, and I, for one, would be quite prepared to admit that any practical legislation having such an object in view ought to be welcomed by Parliament. In support of this measure, the Attorney-General said that he did not think it was unconstitutional, firstly, because no question of State Rights was involved ; and, secondly, because it was not prohibited by the Constitution. I should like, with great respect, to remind him that there is involved another question which he apparently omitted to consider, namely, as to whether the Federal Parliament has the power to pass such a measure. That is the third question with which the honorable gentleman has not adequately dealt. This Parliament has only limited, specified, and enumerated powers.
– I dealt with that.
– I did not hear the honorable member refer to any part of the Constitution giving authority to pass such legislation as this. Although the Bill, upon its face, purports to give the High Court jurisdiction to hear and determine these questions, I fail to find in the Constitution any section which authorizes the Federal Parliament to pass it. If we had the authority there would be no reason for opposing it upon constitutional grounds, but it would appear to me that the argument of abstract questions as to the validity of an Act could hardly be carried on as proposed under conditions calculated to secure efficiency and clearness, and to secure as satisfactory a determination as can be obtained in specific cases, controversies, ot conflicts. As to our power to pass this Bill, I need not go over the ground that has been adequately covered by the honorable member for Angas and the Leader of the Opposition. Reference has been made in support of the principle of the determination of abstract questions of abstract law to an old practice by which questions of law were referred for determination to the Judges of the House of Lords. I would point out that although that practice did exist, no one ever suggested that a question should be referred to the House of Lords to determine the validity of an Act of the Imperial Parliament. A reference to the House of Lords to get an answer to specific questions as to the common law of England, or f-n interpretation of the Statute law of longland, is an entirely different matter from referring to a Court of law the determination of the validity of an Act of Parliament. Then, again, reference has been made to the Canadian precedent. No doubt under the Canadian Constitution there is a power to refer to the Supreme Court of Canada important questions of law or fact touching provincial legislation, or the appellate jurisdiction as to educational matters vested in the Governor-General by the British-North America Act, or any other Act or law touching the constitutionality of any legislation of the Parliament of Canada. That power was conferred by section 3 of 54 and 55 Vic, ch. 25.
– It is an additional constitutional power.
– It is an addition to the Constitution, because the Canadian Constitution was directly passed by the Imperial Parliament. This was evidently an amendment of the Canadian Constitution.
– Is there not such a provision in the original Act?
– No, it appears in an amending Act, and honorable members will observe how comprehensive it is. It enables the determination of questions arising as to the validity of both Dominion and Provincial legislation. This Bill, however, merely proposes to refer to the High Court the determination of Commonwealth, and not State legislation. The Canadian Act is to some extent different from this Bill. It declares that the opinions of the Supreme Court passed under the authority of the Act shall not be regarded as judicial determinations, but that they shall be regarded as advisory only. The second feature is that although those determinations are advisory or consultative, and not judicial, an appeal lies from them to the Privy Council. Therefore, these references to the Supreme Court of Canada for the determination of constitutional questions are expressly specified as advisory only, and are subject to the safeguard of an appeal to the Privy Council for review. That is a very different proposition from that now before us. This measure is brought forward evidently on the assumption that it is an exercise of part of the judicial power of the Commonwealth, and that the Parliament has the authority to refer these questions for the determination of the High Court as part of that judicial power. It goes on further to provide that the determinations of the High Court in these matters are to be final and conclusive. All prospect or possibility of a revision by the Privy Council is, therefore, shut out by this Bill, assuming it to be valid and constitutional. It would seem to me that whatever may be the argument in favour of the convenience of such a method of settling constitutional questions, we are brought up against another constitutional question as a condition precedent to the passing of this Bill.
– Does not sub-section 1 of section 76 give that power?
– I shall come to that. According to all the decisions and authorities which I have read, the judicial power means the power to decide cases between contesting parties. The Constitution in section 76. contemplates that, because it says -
Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under this Constitution - or involving its interpretation, or arising under any law made by the Parliament. The word “matter” is undoubtedly equivalent to, and a mere substitution for, the expression in the American Constitution “ controversy “ or “ case.” The provision does not say that the High Court may deal with the validity of an Act, apart from cases. The use of the word “matter” shows that an issue must be raised by responsible or interested parties. I do not f.p. how a matter can arise unless raised by a party. A case generally arises through some person or persons wishing to assert a right or to enforce a duty, and implies a plaintiff and a defendant.
– -Why give the word “ matter “ such a limited meaning?
– I am stating the view of the framers of the Constitution. Sir Edmund Barton, speaking at the Convention, said - page 768 of Quick and Garran:s Annotated Constitution -
The word “matters” merely indicates the scope within which the judicial power is to be exercised, but no mutter can be dealt with until it comes before the authorities in the form of a case or some judicial process which will be regulated by the Judiciary Act.
The meaning of “judicial power” is discussed by Miller at page 314 of his work on the Constitution of the United States, where he says -
It is the power of a Court to decide and pronounce a judgment and carry it into effect between persons and parlies who bring a case before it for decision.
On page 315 he makes the following quotation from a statement by Chief Justice Marshall : -
A case arises within the meaning of the Constitution when any question respecting the Constitution, treaties, or laws of the United States has assumed such a form that the judicial power is capable of acting on it.
On page 316 he says -
But it has been over and again held by the Court that all it can do in that regard is to decide such questions as involve a construction of its provisions, and only those when” they are brought before it in a suit between proper parties.
That is the view of authorities dealing with the United States Constitution. Story, on page 423 of his work on the Constitution, says -
We have seen that by law the President possesses the right to require the written advice and opinions of his Cabinet Ministers, upon all questions connected with their respective Departments. But he does not possess a like authority in regard to the Judicial Department. That, branch of the government can be called upon only 10 decide controversies, brought before them in a legal form ; and, therefore, are bound to abstain from any extra-judicial opinions upon points of law, even though solemnly requested by the Executive.
Kemp is given as the authority. That seems conclusive. Under the Constitution of the United States, the Executive cannot put abstract questions of law to the Supreme Court; and, on the same line of reasoning, under our Constitution the Executive cannot put to the High Court questions as to the constitutional validity of our Acts. But the Bill is framed on the assumption that the Executive can put such questions to the High Court, and call upon the Court to answer them. I wish now to refer to the possible inefficiency of this proposed method of settling constitutional difficulties, assuming the power to exist, and admitting the convenience and economy said to be associated with this method. Such a question as “ Is this Land Tax Act valid?’’ could hardly be argued in the same direct and satisfactory manner if it were put to the Court by the Executive, as if raised in an action by the Commissioner c-f Land Tax against a taxpayer. In an action to recover taxes, the defendant would know what the real issue was, he would know what his defence was, and would have an open field, with the result that the question would be argued with greater intensity, keenness, and ability than if submitted in the abstract by some one representing the Commonwealth, or a State, or a possible taxpayer. The Bill contemplates that the Governor-General may refer to die Court any question as to the validity of an Act. It appears to be proposed to put the Act and the Constitution before the Court, and to say, “ Is this measure valid?”’ There might be some unobserved portion of such a measure, regarding which there had been no controversy up to the time of its submission to the High Court, which might escape argument, but controversy regarding it might afterwards be raised. Yet the Court would have been called to pronounce on the validity of the Act as a whole, and might have pronounced it valid, whereupon its determination would, under the Bill, be final and conclusive, and not open to subsequent review. I believe that the Court has not yet admitted that its decisions are final and conclusive upon itself. It is generally understood that the decisions of the House of Lords are so, but the Supreme Court of the United States does not recognise that principle, and in the Legal Tender cases it reversed its decision upon reconsideration and review, because it thought that a mistake had been made. Yet under the Bill, once the High Court has pronounced an Act or a provision to be valid, there will be no opportunity for reconsideration to deal with points which may have escaped observation, or to take advantage of knowledge which may have been gained by subsequent experience.
– Is there any likelihood of the common rule decision being reconsidered ?
– That is a possibility. Justices Isaacs and Higgins expressly reserved the right, when sitting in the Full Court, to review a previous decision of that body.
– They were severely censured hy iiic Conservative journal of this city for doing so.
– I do not say that their attitude is a right or that it is a wrong one; it would be improper to express such an opinion now. I am merely stating what has been the practice of the House of Lords, and of the Supreme Court of the United States, and giving the dicta of two of our Justices. It has been said that it is better to have certain law, even though it may be wrong law, than to have uncertain law, and there may be reason in that. It is for the Parliament to say whether the High Court, which has not hitherto been so bound, shall in future be bound by previous decisions in the general bulk of its jurisdiction. This would introduce a new feature into its jurisdiction, and one which should not be created without consideration of its wisdom and propriety.
– Is not every judgment final and conclusive in the sense in which the words are used in the Bill?
– Only in so far as the case to which it applies is concerned, not as a precedent.
-H. Irvine. - A decision would not bind the Court in future cases. That is why the provision is useless.
– The provision is open to the construction that the decision of the High Court shall be final and conclusive. lt continues, “and not subject to appeal.” Let me point out the futility of these words. Under the Constitution there may be an appeal to the Privy Council on leave being granted in certain cases. The only absolute bar to an appeal to the Privy Council is that the decision has been given in a question as to the limits inter se of the constitutional powers of the Commonwealth and the States. Section 74 of the Constitution provides -
No appeal shall be permitted to the Queen in Council from a decision of the High Court upon which 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.
That section limits the right of appeal ; and now it is proposed to include in this Bill a limitation or qualification of that right as supplementary to the limitation in the Constitution and. as such, of course, it will be null and void. I occupy much the same attitude as that of the honorable member for Angas. I should like to see some method provided, if a practical method can be devised, to expedite and cheapen the method of settling these constitutional questions so as to prevent delay and uncertainty. Still we are surrounded and faced by constitutional difficulties and restraints which cannot be ignored, but which, however, to my mind, are not so serious as to make me assume an attitude of strong opposition to the Bill. We have the knowledge that the decision of these matters will first and last lie with the High Court, and if the Court feel that there are legal and constitutional difficulties in the exercise of the jurisdiction, no doubt it will say so. There appears, however, to be a reserve power in the Constitution, as well as in the Judiciary Act, which up to the present has hardly been used to the extent to which it might. In order to determine these constitutional questions promptly and economically, the patties, with the acquiescence of the Government, might join in friendly action without the necessity of resorting to expensive preliminary proceedings, or going into evidence. Such actions might be launched, with a plaintiff and a defendant, and the whole question involved referred in the form of a special case to the High Court for immediate determination. That method might have been utilized more effectually and more often than it has been, and as it was in the case in which the invalidity of the common rule was decided. That question was settled on a case stated by Mr. Justice Higgins, and similar cases might be determined in the same way without the necessity of the proposed amendment of the principal Act, the validity and efficiency of which course may well be questioned.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 and 2 agreed to.
Clause 3 (Jurisdiction of High Court as to constitutional questions referred by the Governor-General, &c).
.- This clause seems to cover the rest of the Bill. It is very hard to know what to do with a Bill of this class, because it opens up such a new field, and there is a desire to make the legislation efficacious if it is to be tried. Could the Attorney-General find some means of confining the measure to such questions as have been sent to the High
Court of Canada? I remember that the Fisheries question there was almost an abstract question, but it involved some matter between the Provinces, and there were no subordinate questions that could be raised. The Bahamas case was the only one I remember as having been sent on to the Privy Council by the Executive. The Privy Council will not interfere in other cases, except at the instance of both Colonies affected, say, South Australia and New South Wales, on an Act of Parliament passed for the purpose by both States. In fact, the Privy Council takes rather a high stand against the reference of abstract questions unless they come with the authority of an Act. The point in that case was the right of the Crown in regard to a person committed for contempt, and the question was submitted by the AttorneyGeneral. Such cases, however, are so exceptional that the Times referred to the Bahamas case as calling into operation an extraordinary power vested in the Privy Council. I do not know that this clause should not be confined to matters inter se, which would make it consistent with the rest of the Bill. This raises, perhaps, the biggest question under the Constitution, and, by consequence, one on which no appeal lies from the High Court, except by permission of the Court itself ; and, besides, there would not be the doubts as to the proposed new section 93 which provides that the determination of the Court upon the matter shall be final and conclusive, and not subject to any appeal. The honorable member for Bendigo has properly pointed out that it is only in inter se matters that the decision of the High Court is final.
– The honorable member said that the decision is not final even then.
– That may be; hut, so far as we know, the intent appears to be to deny the right of appeal in those cases, except on the certificate of the High Court. No one could throw light on this question better than the honorable member for Flinders, who was concerned in the memorable argument as to the meaning of “ inter se.” In regard to other matters, appeals as of grace cannot be taken away ; we may limit the number of appeals as of right under section 74, but the right of appeal as of grace cannot be taken away by the words of proposed section 93. In Canada it has been decided that similar words did not prevent appeal in the Admiralty cases.
– This does not take away the petition of rights?
– No; but that question does not arise here ; the petition of rights is merely the method where there is judicial power. I am glad the honorable member made that observation, because it throws a light on the meaning of “ judicial power.” Section 78 of the Constitution provides -
The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.
I suggested that that section should be inserted, because otherwise proceedings would have to be by petitinof which the Crown need not grantedandas a matter of fact, never does on the authority of an Act of Parliament in connexion with torts. When that section was under discussion in the Federal Convention, and [ tabled an amendment, Sir Edmund Barton said that if we confined it to the limits of the judicial power, which are clearly known, no objection would be raised. Therefore the words “ judicial power “were put in, and they, I believe, run by implication through the whole of the section, and any extra judicial power conferred by this Bill may be held to be invalid. But the decision of the High Court under this new section 93 will not be final, because there will lie an appeal to the Privy Council. Are we at this stage, which I think is rather premature, to hand over to the Privy Council, finally and deliberately, the appellate jurisdiction ? Do what we may, we shall not be able to accomplish the object of having a final decision on a somewhat hypothetical question by the High Court, because, after the High Court has laid down the rule, it may be sent on to the Privy Council on an issue between parties. The Judiciary Act of 1908 attempts to prevent these issues going to the Privy Council by denying original jurisdiction to the other Courts ; but that does not deny original jurisdiction to the High Court, and it is not an inter se matter. I am not prepared to say at the moment to what extent the Judiciary Act will block this issue being raised in any subordinate Court; but the High Court will be disinclined, I think, if it has the power, to deny the right of appeal to the Privy Council in a matter which has not been settled on an issue between parties. There were two cases settled in
Canada, one on the question of the Admiralty jurisdiction; and it was declared that the decision of the Supreme Court in the matter was to be final and conclusive, but the Privy Council afterwards held that the words of the section did not take away the right of appeal as of grace, though it took away the appeal as of right. I do not desire to say any more on the matter, but, with the Attorney-General, I regret that we have not had more, time to consider a Bill of such far-reaching importance, and one we should like to see as perfect as possible, if the experiment is to be tried.
Clause agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
Standing Orders suspended.
Bill read a third time.
Mr. SPEAKER announced the receipt of a message from the Senate intimating that it had agreed to the amendment made by the House of Representatives in this Bill.
In Committee (Consideration resumed from 16th November, vide page 6235.) Clause 19, as amended - 147 - (1). There shall be established a Military College. . ‘ . . . Provided further that persons who have served three years in the Forces may, at any time before they attain the age of twenty-seven years and after passing the prescribed examination for entry, enter the Military College for the purpose of becoming graduates’ thereof.
– When progress was reported on this measure, the Committee had adopted an amendment which modified the effect of section 147 of the principal Act by making provision that in certain cases persons up to the age of twenty-seven years, might, after passing the prescribed examination, be admitted as students of the Military College. That amendment was not acceptable to the Minister of Defence, or myself, and progress was reported. It is now the intention of the Government to substitute in another place, for the amendment carried here, an amendment to the effect that the regulations shall provide for admission to the Military College of any member of the Forces over the age of nineteen, who shall pass the prescribed examination, and be recommended by the Governor-
General in Council. In the circumstances, 1 shall offer no further remark on the clause.
.- I am very glad that this matter is to be put right. The amendment inserted by the Committee in this measure was the greatest disappointment that any student of Defence matters could have, but a readier way might have been found out of the difficulty than that adopted by the AttorneyGeneral. The anxiety of the Committee was to insure that any ranker should have the opportunity of rising to commissioned rank.
– That was not what was behind the amendment.
– Under the amendment, the ranker would have had no better chance of gaining a commission than if it had not been carried, because no ranker would have a chance of going up and passing as a graduate from the College. His very occupation would have made him unfitted to direct his mind into the particular channels of learning likely to occupy the students of the College. Some meansought to be provided whereby rankers. maybe promoted without having to pass asgraduates from the College, and I should have liked to see the Ministry stick to their point about the age below which applicants must pass into the College. What is needed is an additional proviso enabling the Governor- General in Council, on the recommendation of the Director-General of the Forces, to appoint any member of the Forces to a commission without his passing through the College. While we have the present organization, we expect to have, in the Director-General of the Forces, the keenest and best soldier in our employ, and he would not recommend for a commissionany ranker or non-commissioned officer whowas unworthy of promotion. If he found that a warrant-officer or colour-sergeant - and a man in either rank would certainly be over the age of twenty-seven - deserved promotion, and considered that such promotion would be in the interests of the Forces, he would recommend it to the GovernorGeneral in Council, who would give the man a commission and suitable employment. As the Ministry prefers, however, to amend the Bill in another place, and we shall have an opportunity of dealing with the amendment when it comes back to us for our approval, I shall, at this stage, content myself with placing on record my conviction that the best way to serve the interests of the rank and file of the Permanent Forces in this regard is by some such direct method as I have suggested.
– Our only contention is that there should be some way across from the Citizen Forces to the Permanent Forces wherever and whenever an officer feels his ambitions lie that way, and can prove incontestibly that he has the requisite qualifications for transfer. That, I understand, is the principle underlying the vote carried in Committee last week. So long as it is provided for in the completed Bill, no matter what phraseology may be used, I do not think there will be very much difficulty so far as I know the minds of honorable members on this side. We have contended all through that there should be an opportunity for the ranker to get a commission in the Permanent Forces if he has the requisite soldierly qualifications and the necessary education.
Clause, as amended, agreed to.
Clause 20 agreed to.
– I move -
That the following new clause be inserted : - “ i6a. Section One hundred andthirty-eight of the Principal Act is amended by adding thereto the following sub-section : - “ (3). Persons who are students at a Theological College as defined by the regulations may, while they remain such students, on application be exempted by any prescribed authority from the prescribed training, but shall on ceasing to be such students undergo such equivalent training as prescribed, unless exempted by some provision of this Act.’ “
The net effect is that persons who are students at a theological college will, while they remain so, be exempt from training, but, on ceasing to be theological students, will be subject to the full effects of the Act unless exempted by some other provision. If, for example, they become clergymen they will continue to be exempt; otherwise not.
– The new clause does not quite compass all that I think is in the AttorneyGeneral’s mind. It covers only those who may actually be students in a theological college. There are in certain churches many theological students who are outside theological colleges, but who have to pass their examinations just the same. This clause would not exempt them. The diffi culty would be met if we added after the word “students” the words “orfor a religious profession or calling.” That would include all students connected with the churches who have not the privilege of going to theological institutions, and among them hundreds of worthy ministers who, while on probation for four years, and having to pass four annual examinations, go out to preach. In effect, they have to go through the whole course as though they were students in a college.
– If the word “theological “ would embrace all the students to whom the honorable member refers, could he not accomplish his object in fewer words ?
– I do not see why my amendment should not meet the whole case.
Mr.F enton. - It would include students in or out of a college.
– The honorable member knows the difficulty for which I desire to provide.
– Would not the substitution of the word “training” for the word “ College “ meet the honorable member’s object ?
-I do not. wish to make the provision too wide, but, at the same time. I am sure that we do not desire to exclude those who should be included. I move -
That after the word “ College,” line 6, the words “ or for a religious profession or calling,” be inserted.
.- I think that if the Minister would exempt children of parents who have conscientious objections to their being trained in the use of arms he would meet the trouble to which the honorable member for Parramatta has referred. I am aware that a good many people might possibly say that they had conscientious objections to their ‘children being trained in the use of arms, and that some people who claim to have conscientious objections very often prove to have no conscience. But, as 1 pointed out last week, there are in Australia a number of people who have very serious conscientious objections to their children being so trained. In looking through my correspondence the other day I found a letter which I regret I had not with me on a previous occasion when I was endeavouring to impress upon the Minister the necessity for exempting children whose parents had conscientious objections to their being trained in the use of arms. The letter is as follows -
Friends’ Meeting House,
Devonshire-street, Sydney, 23rd August, 1910.
The Hon. W. G. Higgs, M.P.
Hon. Sir, In view of the fact that this Parliament is now reconsidering the Act passed by its predecessor providing for the Military and Naval Services of the Commonwealth, may we, of the Religious Society of Friends, once more press upon you our conviction that International Peace and Goodwill are not impracticable ideals, and that the nation which keeps steadily in view the rights of neighbouring peoples equally with its own, honestly endeavouring to conduct its affairs in the spirit which takes away all occasion of strife, is more secure than that which relies solely on armaments and on so-called preparedness for war. History’s records prove how easily a reliance on military pre-eminence overrides the sense of abstract right, and has led nation after nation to its downfall.
What practical advances have already been made in the cause of Peace between the nations ? Fifty years ago arbitration was an unknown and untried resource; now who will question its practicability? Month by month new treaties of arbitration between nations are being signed, and the Hague Convention, created to formulate the principle in a World’s Court of Appeal, marks a practical triumph tor which mankind may well thank God and take courage.
The steady transference of political power to the workers also is making war less and less “ a game for kings,” be they wise or unwise, “ to play at,” while commercial interests ever increasing are becoming a more potent factor for the maintenance of peace. Nor can we forget the power of tact and kindly consideration in overcoming difficulties as exemplified in the life and work of our late King; the manifest desire for right, and just dealing calling forth like feelings in others. We are concerned that our young Commonwealth may in all its dealings seek to emulate these noble qualities, and not throw back the moral sense of our children upon conceptions of life which have been discredited, and ideals which transgress in every way the spirit of universal brotherhood.
From our reading of the Defence Act, above referred to, it would appear subject to the Minister’s discretion, to exempt from military service all persons having conscientious convictions against such service, but to make no mention of any exemption from training for the children of these persons.
We are glad to know that the Government now propose to exempt from the compulsory provisions of the Act, both as to service and training, all who, like ourselves, feel that they cannot conscientiously serve their country in this way. May we now ask that the exemption from military service be so expressed as to cover all classes of service under military and naval control, and not merely the obligation to actually bear arms. The principle underlying our position will not be met if we remain liable to serve at the call of the authorities on those duties which are really as much a part of the military system as is the actual fighting in the ranks ! And with special reference to our children, we would pressingly urge that they may be exempted from cadet and military drill training in pur schools and elsewhere.’ Both these points should, we respectfully urge, be explicitly expressed in the words of the Act itself, and not left subject to the decision of a Minister acting in a time of apprehension of war, when minds are excited and the voice of reason may be silent.
In speaking thus we feel we are spokesmen for a section of the community other than our members, who, on grounds of conscientious conviction, like ourselves, cannot, even under the guise of defence, allow their children to be trained to warlike ends, and for the children’s sake more than for their elders we ask for freedom.
Respectfully commending these considerations to your attention, we remain, on behalf of the Standing Committee of the General Meeting of Australian Friends, yours faithfully -
William Cooper, Clerk.
I would remind the Minister that the Society of Friends was founded by George Fox away back in 1648-66. Notwithstanding the most severe persecution the Society of Friends formed a strong organization. They were so persecuted by the authorities that at one time there were no less than 1,000 of them in gaol. It is not possible for any honorable member to ridicule the conscientious objections of the members of the Society of Friends, or, as they are better known, the Quakers. They proved that they had conscientious objections because they were prepared to go to gaol rather than submit to the desires of the authorities in regard to compulsion. We know what good the Quakers have done in the community. They have been from the very first opposed to war in all its forms, and have devoted their attention more than has any other section of the community to cultivating, on the part of the British people, a public conscience in favour of the abolition of slavery They did the same thing in America, and it is surely due to the members of the Society of Friends, who have really been the salt of the earth, that they should be allowed, since they have conscientious objections, to have their children exempted from the use of arms. I sincerely hope that the Acting Prime Minister will reconsider his decision, and so amend the proposed new clause that parents with conscientious objections may have their children exempted in the manner I have suggested.
– I am inclined to think that the object which the honorable member for Parramatta has in view may be secured by inserting after the word “regulations” the words “or theological students as prescribed.” That would meet the case of students who were reading outside a College. I understand that it is the custom of students for the ministry in some denominations to read outside a College, and I think the amendment I have suggested would meet their case.
– Very well ; I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment (by Mr. Hughes) proposed -
That after the word “ regulations “ the words “ or theological students as prescribed “ be inserted.
.-I think that the amendment proposed by the honorable member for Parramatta would have met what was desired. That now before us may do so, but there may be a doubt about it. However, the Attorney-General could, to some extent, bind the Adminis-. tration by declaring the sense in which the Committee are passing this amendment. The definition will come from the regulations, and all I would now ask the AttorneyGeneral to do is to say - and such a statement would have some force with any subsequent Administration - that a sufficiently wide interpretation will be given to this clause under the regulations to cover what is really the intention of the Committee.
– The use of the word “ theological “ might involve a limitation, and the amendment now proposed might have a narrower meaning than would that proposed first of all by the honorable member for Parramatta. A professional calling might be religious, but not theological, in the ordinary sense, because a Theological College is one in which the teaching is theology, for the purpose of the religious profession.
Mr. HUGHES (West Sydney- Acting Prime Minister and Attorney-General) (9.9]. - The request made by the honorable member is quite proper, but I can give only my own definition of the amendment. In the previous clause an amendment was made by me exempting ministers of religion. In my opinion “ ministers of religion “ must be interpreted broadly, so as to cover all persons who, although not technically ministers of religion, are, in fact, members of a religious order. And in the same way, “ theological students “ must be interpreted widely. I take it that the words are to include every person who is bona fide studying for the ministry in any Theological College, or in any bona fide way. I do not think that anything further is necessary. I hope this statement will satisfy my honorable friends. I shall call the attention of the Minister ofDefence to what I have said.
.- As the word “ theological “ is being retained, I suggest that the object of the honorable member for Parramatta could be met by inserting the word “ theological “ before the word “students,” in the first line, and striking out the words “ at a theological college. “ That amendment would enable the desire of the Committee to be expressed in fewer words.
– Every young man who does not wish to serve will become a theological student.
– No doubt the study of theology is admirable, and we may be doing good in compelling it in the cases which the honorable member suggests.
– - Undoubtedly the drafting might be improved, but the intention of the provision is obvious. There may be students at a theological college who are not theological students, and theological students who are not at a college; but the provision exempts all who are in any way studying for the ministry.
– Or the members of an order engaged in teaching such students.
Amendment agreed to.
Proposed new clause, as amended, agreed to.
.- If this Bill is compared with the Naval Defence Bill, an omission will be found which I propose to remedy by moving -
That the following new clause be inserted : - “ 21. When any member of the Military Forces -
is killed on active service, or on duty, 01
dies or becomes incapacitated from earning his living from wounds or disease contracted on active service, provision shall be made for his widow and family or for himself, as the case requires, out of the Consolidated Revenue Fund, at the prescribed rates.”
That clause embodies the wording of a similar provision in the Naval Bill, substituting the word “ military “ for the word “ naval,” and should, in fairness to the permanent members of our Military Forces, be passed, so that there may be no differentiation between our Permanent
Naval Forces and our Permanent Military Forces.
– If a man caught fever while attending an ordinary training camp, and died, would that clause apply?
– The words “ active service “ govern the clause.
Proposed new clause agreed to.
.- 1 move -
That the following new clause be inserted : - ” 22. Funds may be established in such manner, and subject to such provisions as are prescribed for providing for the payment of annuities or gratuities to members of the Permanent Military Forces permanently injured in the performance of their duties, and for the payment of annuities or gratuities to members of the Permanent Military Forces who are retired on account of age or infirmity.”
That is also a copy of a provision in the . Naval Bil), and will prevent an invidious distinction being drawn between the permanent members of the Naval Forces and the permanent members of the Military Forces.
– I wish to call the attention of the Attorney-General to a matter to which my attention was directed yesterday by an informal deputation, from which I learnt that men coming from England who have served seven or eight years in the Imperial Forces, and enter our Forces, would like to get credit for their Imperial service in connexion with the conferring of orders and distinctions. I ask the honorable gentleman to consider whether it would be possible to provide, by communication with the Imperial Government, for reciprocity in this matter.
– The honorable member may not discuss that question now.
Proposed new clause agreed to.
Title agreed to.
Bill reported with amendments.
Standing Orders suspended.
Motion (by Mr. Hughes) proposed -
That the report be now adopted.
– I wish the House to recommit clause 9, for the reconsideration of paragraph b, which was passed the other evening in my absence, and takes out of the Act a provision inserted chiefly at the instance of the honorable member for Maranoa, who strongly desired that certain privileges conferred by it should be given to the men of the Permanent Forces. In my opinion, it is only fair that soldiers who are still qualified to serve the country should have opportunities for promotion within the Department, since they are shut out from other branches of the Public Service. The view of the honorable member for Maranoa was that all matters connected) with the pay and ordnance branches should be wholly under the control of theDefence Department, and not as heretofore under the control of the Public ServiceCommissioner. A great deal of the work is technical, and should be done by soldiers, many of whom are highly trained. In theImperial Army, the Canadian Army, theAmerican Army, and the Indian Army, provision is made for soldiers in this way j but here the control is to be placed in the hands’ of the Public Service Commissioner, whilenontechnical work is to remain under the control of the Department The idea was to provide legitimate openings for theadvancement of men who have only too few opportunities at present. They cannot cross the boundary to any otherbranch of the Public Service, and, therefore, when they have served their country well at small pay, they ought to be given* a chance for advancement, without competition from the civil side. Why thechange has been made I do not know ; and’ I should like to hear some reason why theprivilege has been taken away, seeing theduties to be performed cannot be construed as civil in any sense of the word. I move -
That the Bill be now recommitted to a Committee of the whole House for the reconsideration, of clause 9.
– I am sorry that the AttorneyGeneral cannot see his way to consent to a recommittal of the clause. While we claim’ the right to depart from the practice of other countries in many matters, still, inmilitary affairs, it is prudent that the dutiesshould be performed under the immediatesupervision and control of the Defence Department by those employed under theDiscipline Act. In the British Army capable men are taken from the ranks to dowork of this kind, and they are of muchmore service to the country, with their practical and technical experience, than arecivil clerks without that advantage. I haveapproached the Minister on the question, but he, apparently, is determined to adhereto his decision. I point out that it is only twelve months since the practice was altered, and I think no good reason has been> shown why another change should be made. I recognise the difficulty of the AttorneyGeneral in being in charge of a Bill in- troduced to Parliament by another Minister ; but it is clear to my mind that a recommittal of the clause would be the wise course to take. There is no doubt that a hardship has been imposed on men who have all the necessary training to do this work, and who are certainly entitled to the attendant promotions and advantages. Further, an incentive would be given to men in the performance of their duties ; and, as this clause in the Bill was passed rather hurriedly, I hope the Minister will reconsider his decision.
.- I support the request of the honorable member for Melbourne Ports. We have passed certain clauses which practically prevent senior officers of the Permanent Forces from obtaining promotion, and these offices should be open to those who have the necessary technical training. The men we have in our mind have been in the service a great number of years, and the Minister should certainly take into consideration their high qualifications. Civilians will have to learn the duties, whereas those men are perfectly familiar with them. As the honorable member for Melbourne Ports said, this clause went through rather quickly ; and I ask the Minister to reconsider the matter with a view to giving deserving men their tights.
Question - That clause 9 be recommitted - put. The House divided.
Majority … … 13
Question so resolved in the negative.
Motion (by Mr. Hughes) proposed -
That this Bill be now read a third time.
.- I was not present when the second reading of this measure was debated, and the Bill was a long way through Committee before my return to the House. I do not know that I should have spoken at all, except that I thought that the Minister in charge of the Bill did not deal with the matter in that non-party spirit by which . he claimed to be animated when dealing with both the defence measures. Running all through his second-reading speech was seme such sentiment as this: “See what a paltry thing the last Government’s Bill was, and how excellent a thing this is ; this proposal is one of which we have always been in favour, and to which -the exMinister of Defence has always been opposed.” That was the spirit, if not the exact language, of his argument all through. I have no great opposition to offer to the Bill. In its broad outline and principle it has deviated very materially in one essential and vital particular from the lines laid down by Lord Kitchener. I refer to the period of training, but. in other ways, it proceeds along the lines laid down in that Bill of mine which the AttorneyGeneral has denounced so vigorously. This Bill is not altering anything done in that Bill except in one or two of its details, and Lord Kitchener proposed no deviation from it, except in one particular, relating to the duration of training. All the proposals regarding the Military College he took as he J found them, simply shaped them, and set them on an up-to-date course. He altered nothing in the previous Act, except the duration of the training. As the AttorneyGeneral claims that all he did was to follow what the honorable member and his party had previously done, let me show that I am not the only one who has made some changes in opinion regarding this matter. It is worth while spending two or three minutes lu show that other people on the opposite side of the chamber have also made some accommodations in this respect.
– I have heard ‘that defence put forward in Equity cases.
– The honorable member will hear it again here. As the honorable member would not give “me an opportunity of saying what I had to say before, I hope he will bear with me while I say it now.
The Bill which he so much despises has been made the basis of all that has been done since. Indeed, this Bill is actually not necessary at all at present. It could have been done without, .and the scheme sketched by Lord Kitchener could have proceeded for the next three years without any alteration whatever. Lord Kitchener’s proposals will not relate themselves to any Bill until the expiration of at least that period, and all that is taking place now in connexion with this Bill would have taken place in precisely the same way in connexion with my Bill. In fact this seems to be a Bill made up for the purpose of calling it a Bill. It consists entirely of padding and immaterial things, taking this out of one part of the old Act, and putting that in another. I am not complaining. I should probably have taken the same course myself had I been in charge of this measure. This is, perhaps, the time to crystallize in a Bill what-‘ ever was suggested by Lord Kitchener when here. I am not sure that this is not the most opportune moment to do what is needed to be done, but even so it will not operate until three years from now. Although the honorable member is extending the training up to twenty-five years, he does not propose to subject to compulsory training any young man who has passed the age of seventeen and a half years at the time this Bill comes into operation. If we extend compulsory training to twenty-five years, does it not seem a pity that a man who is eighteen years of age at the passing of this measure, and has already done his preliminary training, should be allowed to escape it altogether, while a man who happens to be seventeen will have to train for eight years? The honorable member is anxious to train the young manhood of Australia, and with the extension of the age to twenty-five it seems to me that some of those who are over eighteen might very well be pressed into the compulsory part of the law. It was a very different proposition when the compulsory training stopped at twenty, or at twentyone, as suggested by the Government previous to ours. As I say, I have no captious criticism to offer concerning the measure. All that has been done now is on the basis of the former Bill. In fact, thu Kitchener scheme is expressly stated by its author to be based on that Bill. The policy was settled before he came here, so tar as the principle of compulsory training was concerned. He recognised that re,peatedly throughout his report.
Why did we send for Lord Kitchener at all? I and the then Government were blamed even for that. Honorable members opposite gave us any amount of criticism for sending for him at all. They said, “ What do we want Kitchener for? We knew all about what we wanted Without any such soldier being sent for.”
– The honorable member wanted to show that he was such a great Imperialist !
– The honorable member is quite wrong. I sent for him for the one reason that I felt it to be my duty, when I had the responsibility of shaping the defence of Australia, to get -advice from (he best man in the Empire.
– And badly needed it. too.
– I freely admit it. I have never been fool enough to believe that I knew all about these things, like many another man who has made a mess of it by so believing. My first thought was to get the best available advice in the Empire on so important a question as the adequate defence of Australia. We have sent for Imperial officers before, and when they have arrived they have been found not to be the very best men in the British Army, I mean the men with the most authority. We have found, as a rule, that in rank they were much the same as our own soldiers ; some of them, perhaps, a little above, but not sufficiently so to exercise the authority necessary in the framing and promulgation of an adequate defence scheme for the Commonwealth. Moreover, each State had imported Imperial officers on its own account. The result is to be seen in Australia to-day. For instance, every conceivable kind of gun is mounted- in the fixed defences of Victoria. Some of them are good, and some are bad, and many are where it is not necessary to place a gun at all. About 50 per cent, more guns are mounted than are needed. That is the result of importing first one Imperial officer, and then another. Each has had his own notions as to how our defences should be arranged, and the result in this State is a conglomeration of guns set up for the defence of the ports and strategic points which are neither necessary nor adequate for the purpose. That comes of importing officers who are here for a year or two, who carry out some temporary idea of their own, and then go away again. We thought it necessary to go to the fountain head - to have sketched for us by an Imperial officer of the highest standing, a scheme upon which we could work steadily for the next ten or fifteen years. That is why we asked Lord Kitchener to come here. 1 made my own position perfectly clear at the time in the last speech I made on the subject in the House. When I am taunted, as I was the other day, about this very matter, I desire to quote, in reply, the following passage from my speech, as reported in Hansard of 21st September, 1909, at page 3629 : -
We have invited one of the best soldiers of the Empire - perhaps the Empire’s most celebrated organizer - I allude to Lord Kitchener - to visit us and advise us as to the lines upon which we ought to proceed in reference to all matters making for the organization and efficiency of our Army. He will come here, and we shall ask him frankly to look at us as we are, to tell us freely what are our defects, to suggest remedies, and to do everything that is necessary to put us upon the right track to thorough army efficiency.
Some interjections were made that the visit would be very bad for a lot of people here. Those predictions have not proved correct, because Lord Kitchener did not recommend the wholesale dismissal of any of our officers.
– Perhaps he was not allowed to.
– He was given an absolutely free hand to do what he pleased in the way of recommendations. I said, further -
Lord Kitchener’s advice, I repeat, will be most valuable to us, and I hope that it may be followed.
In other words, we sent for Lord Kitchener, in order that we might act upon his advice. In so doing we surrendered any preconceived notions that we might have held concerning the defence of Australia. Therefore I, of all others, who insisted upon this officer coming out, and expressed my intention of abiding by the result of his recommendations, have nothing to go back upon. When we felt ourselves charged with the responsibility for inaugurating a new era altogether with regard to defence, we went to the best man in the Empire from whom we thought we could get advice, and here we are to-day acting mainly upon that advice. I hope that as the result of it there will be laid down in Australia a settled policy, for continuity of defence policy is most necessary. We cannot keep plucking up the flower of defence to see what its roots are like - to see how it is growing. There must be continuity in a given direction, following a precise and detailed plan, making, as we hope it will, in ten or twelve years’ time, an efficient army in Australia for the defence of our shores. Why, therefore, should the Acting Prime Minister, in his secondreading speech, have made all the allusions that he did to what my attitude had been on a former occasion, and as to what I decided and did with regard to the question of compulsory defence?
He claimed that in the matter of defence he was the only immaculate man in Australia. He pointed with pride to his history, and I do not begrudge it to him. But remember that the honorable member throughout his- whole career hashad the crudest of notions upon this matter. He has made changes that were even more diverse than are any of the changes that have been made by any honorable member of the Opposition. Let us look at his attitude. In the first place - in 1903, I think it was - he says he submitted a motion in this House, providing that there should be a levy en masse upon all the male population in Australia between the ages of seventeen and forty-five years. He insisted that every male of the age of seventeen years and over should train a fortnight in each year until he reached the age of forty-five years. They should be compelled, he said, to train as soldiers, and, moreover, he proposed that they should receive no recompense for training. Indeed, he scouted the idea that they should receive one penny while they were so training. Between the ages of seventeen and forty-five years men were to be compelled to train at least fourteen days per annum in camp without the payment of a penny for their services. Subsequently hewas at the head of an organization which insisted upon a sixty-five days camp of continuous training. He modified his- views so much, however, as to provide for the payment of the officers and men, the payment to consist in the case of the men of a weekly wage of 10S. 6d., and advancing, I think, to ,I2S. fid. after they had reached the age of twenty-one years.
Then we find the honorable member changing his attitude again, and proposing that until the men had reached the age of twenty-one years they should undergo sixteen days’ camp training per annum, and no more. Whatever objections the honorable member urged the other night to my Bill on the score that it provided, only for the training of boys who were then to be lost sight of will apply much more, as I shall show, to his own scheme. I am doing this with the idea- -
– Is the honorable member doing it to belittle the present Minister of Defence?
– I am doing it to answer some criticisms that have been made concerning myself, and I hope the honorable member is fair-minded enough to permit me to do that. He has heard me abused time and again, in connexion with this very question, as if I were the only man in the House who had altered his opinion regarding this matter of defence, and the duration of training. I am trying to show that there are others who have changed their views, and that the Acting Prime Minister has done so to about as great an extent as has any other honorable member.
– It is a case of “ you’re another.”
– There are occasions when one has to get at the facts of the situation, and that is all I am trying to do. I was told recently that I had remained silent too long on this question ; that I had had nothing to say upon the question since Lord Kitchener had been here. I have kept silent, and for one reason–
– When? When the honorable member was asleep?
– I suppose I must submit to these interjections, but they will only make my task the longer. I am going to get out these statements if it takes me until midnight to do so. and they may be emphasized in a way that honorable members will not like if they interject too freely. The Acting Prime Minister could not make his second-reading speech without calling attention to a change of front on my part: yet he has changed his opinion time and again in this House with regard to the question of compulsory training. He began with a proposal for a levy en masse of all males between seventeen and fortyfive years of age, and there was to be no pay. That proposal was reduced later on to one for the training of all such persons for sixty-five days per annum with a payment of 10S. 6d. per week while so engaged. That, again, was reduced to a proposal of sixteen days per annum with a payment of 10S. fid. per week, and was modified ultimately to something even less than that.
– Were the men to receive the money all at once?
– The Acting Prime Minister did not believe in paying soldiers ; he believed that they should work for nothing. I remember his quoting with great gusto in this Chamber the fact that in Switzerland the soldiers received only 7d. per5 day, and he expressed the opinion that it would be a fair thing to pay our soldiers the equivalent in value, which would amount here to about is. 3d. per day, or 16s. 6d. per week, with a rise to 12s. 6d. per week in the case of those who had readied the age of twenty-one years, and, I suppose, had wives and homes to support.
Then the proposal of the first Fisher Government went even beyond that, and when I heard the honorable member criticising mv little Bill of last year and declaring that it provided only for the training of boys who were then to be turned adrift with nowhere to go, I felt that he must be thinking of his own scheme and not of mine. I did provide somewhere for them to go. I proposed to extend the militia to 30,000 strong, and to equip them and make them efficient for war, as they had not been in the history of Australia. I proposed to find the mature and the steadying force for this army from the militia recruited upon a voluntary basis, and to pay them adequately for the services which they performed.
– I think that is a part of the honorable member’s proposal which Lord Kitchener practically ridiculed.
– I am afraid that I have not much time for a man like the honorable member. It is impossible to argue with him, for he cannot state a case correctly. Lord Kitchener did not in the slightest degree ridicule my proposals. He adopted the proposals in regard to pay, and expressly stated time and again that he took ray measure as the basis of all his recommendations. However, I desire to come now to the Bill proposed by the first Fisher Government. After all, we had better deal with the responsible proposals of a previous Government and see how widely they contrasted with the proposals I put through this Chamber. The point of criticism has always been that my scheme did not provide for a matured force - that it provided only for the training of schoolboys. What was the proposal of the first Fisher Government? They proposed to train these men as I did for two years until they readied ‘ the age of twenty years, on the basis of sixteen days’ continuous training in each of those two years. There was to be practically no difference up to the time that they began their compulsory training. Then they proposed, as I did in my Bill, a continuous training extending over sixteen days per annum. They proposed also to take that training one year further until the men had reached the age of twenty years, but in the twenty-first year they were to submit to only seven, and not to sixteen, days’ continuous training. That was the proposal of the first Fisher Government as outlined by Senator Pearce in a lengthy interview’ in Sydney with the editor of the Call. I call attention to the army that that Administration was going to bring into existence. It is set forth elaborately in the Call of May, 1909. It provided for the training of 18,000 youths in the first year - that was the year 1912-13 - and during the two years’ period the men were to undergo sixteen days’ continuous training. In their twenty-first year they .were to train in camp for only seven days, and after that they were to be turned adrift. They were to go where they pleased. There was no place in the defence scheme in which they could fit. Indeed, there was no organization or anything else. The first Fisher Government did not even provide as I did for a militia. Its scheme would have provided for an army of boys, and nothing but boys with no stiffening or provision for maturity of any kind. In the year 191 2 the militia, under Senator Pearce’s scheme, was to absolutely cease. There was no provision for the militia at all after that period. Here we have the statement in a footnote -
Expenditure special to militia and volunteers is now included in that of New adult force. The expenditure in subsequent years is expected to rise gradually to a maximum of ^,400,000 in 1917-18.
Clearly, then, the militia was to cease absolutely in that year, and Australia was to rely upon those who had been trained up to their twenty-first year. The Government expected that after reaching that age these men would train for nothing upon a voluntary basis for seven days per annum, but there was to be no compulsion. No inducement was held out, because the amount in respect of the militia was deleted from the Estimates. That, then, was their scheme which, unlike mine0 was not an interim proposal. It was not a scheme which was subject to the criticism and advice of the most expert adviser in the Empire. Nothing of the kind was contemplated, because the years were run out up to the year 1917-18.
Then, again, to learn what was the army they were going to create we have only to consider the Estimates. For the year 1909-10 the expenditure, under their scheme, would have been £1,039,000, whereas the actual expenditure for which provision is made on the Estimates is, I believe, about £1,600,000 or £1,700,000, and the expenditure last year was £1,575,000, as against a proposed expenditure of £1,039,000 under Senator Pearce’s scheme. In 1910-11 the expenditure was to be the same as in 1909-10. Nothing was provided over and above what had been provided for before. I emphasize that, because the scheme which we set aside, which was claimed to possess- all the virtues, would have given precisely the equipment that our forces have had for many years past, but has been declared inadequate in every sense of the term. For 1911-12 the estimate goes up to ,£1,182,000; for the following year to £1,200,000; for 1913-14 to £1,248,000 ; and for 1914-15 t0 £1,300,000. Does any one believe that an army could, be fully equipped on the lines sketched by these compulsory training provisions for any such preposterous sums as those? The Estimates are an answer to all that has gone before, including the proposals of the Fisher Government. Surely it does not lie in the mouths of those who are responsible for the present scheme, who are going to train men until they are twenty-one years of age, and then turn them adrift without making provision for their further pay, or for anything that will attract them into the volunteer service, to criticise others who made schemes for the adequate defence of Australia. We have all altered our opinions on defence matters, and it will be a sorry day for the country when public men are not prepared to change their views on questions of this kind. A. similar change of opinion is proceeding apace at this moment in the Old Country in all ranks of the service, and among the best experts. Lord Esher, who believed that the Territorial Forces of the Old Country would be adequate for Home defence, has changed his mind, and now says frankly that he thinks that they will not do all that is expected, and that there is nothing for the country but to resort to the compulsory training of its citizens. When an expert is at liberty to change his opinions so rapidly, can others of lesser repute be blamed because they have given up their views in deference to those expressed by the greatest expert we have, the man whom we sent for to advise us, and in regard to whom we said that we should abide by his report? I did what I undertook to do. I said, “ We will obtain the best adviser, and will do whatever he says should be done.” In that my colleagues agreed with me. We defend the present scheme as being in reality ours, except for such alterations as the present Ministers have made. One of the virtues claimed for the Bill before us is that it requires for the first time eight days’ continuous training in camp. But already in three or four of the States such a period of training has been provided for. Although I have been so much abused, it was I who first insisted that there should be periods of eight days’ continuous training in Victoria in connexion with the Kitchener camps. Every one knows what trouble it was to bring that about. I am glad that the Government is making this period of continuous training part of its scheme. If we are to have a defence force worthy of the name, it will be the minimum. But here again, when the proposal was before the Senate in the first instance, Senator Pearce ridiculed it. He said that eight days’ continuous training was not enough; that it should be sixteen days. That was less than twelve months ago. He went on to say that if men were compulsorily trained for two years, and the training during that period was adequate, they should not be required to attend for more than four days continuously in subsequent years. When our Bill came before the Senate, he proposed a seven days’ camp. Whatever changes of opinion may have taken place among the members of the Opposition, they can be matched by those among the Ministerialists, and the AttorneyGeneral in drawing attention to my change of attitude was severely criticising his own colleagues and supporters. His speech furnished evidence that the change of opinion was general.
He told us that when he introduced his proposal for compulsory training, in 1903, only two honorable members supported him, and at least one of those was a member of the Opposition, so that he congratulated himself at the expense of his own party as well as of his opponents. He stated that I, who had long been an opponent of his scheme, had at last become an enthusiastic advocate of compulsory training, but he followed that by a somewhat contradictory statement, pointing out that the compulsory training which I had provided for had certain grave and almost fatal defects. My position is clear. I like compulsion as little now as ever I did, but I believe a certain amount to be necessary for the adequate defence of Australia. Whatever my personal opinions and predilections, I shall never let them stand in the way of the interests of the country. The honorable gentleman said that in our scheme no provision was made for continuous camps of training, but that the defect was pointed out at the time, as well as another defect, that, after two years, the trained man was turned adrift, which he described as creating an impossible and also ludicrous condition of affairs. That criticism applies to the Fisher scheme infinitely more than to ours, because we provided a force which the trained man could enter, and offered 8s. a day to its members. That force would have been as well equipped, trained, and drilled as the trained forces under this scheme. We provided, too, for a college for the training of officers, a proposal which was not found fault with by Lord Kitchener, although he shaped it to the best purposes and ends. In all essentials what he proposed was what we wished to provide for. We provided for adequate training and a force which trained men could enter, offering the necessary incentives for them to do so. The Fisher Government scheme did no such thing. The men were to be trained until they reached the age of twenty-one, and if they remained longer, they were not to- be paid. There was no inducement for them to continue their training, and no compulsion. The figures show that an effective and adequatelyequipped force in the modern sense of the words was not contemplated, and could not have eventuated. I think that I am justified in making this reply to the criticisms which I have received. The facts speak for themselves, and show that in supporting this scheme which Lord Kitchener has sketched for us, we must all adjust our former views somewhat.
I have only one or two words of criticism to offer. I pointed out the other night that the scheme of training was not the Kitchener scheme. Lord Kitchener laid it down very clearly that after the age of twenty had been reached, and between the ages of twenty and twenty-five, six days’ compulsory training in camp annually would be sufficient. He recommended sixteen days’ continuous training between the ages of eighteen and nineteen, and nineteen and twenty, and after that six days. He said that his opinion was that if those periods were fully utilized under thoroughly competent officers, they would meet the requirements of the men until they reached the age of twenty-five years. The Bill adds ten days to the period which Lord Kitchener said was sufficient, and that part of the scheme is not what he recommended. He was emphatic that if soldiers were’ given good training -within their areas, they would take advantage of it without compulsion. The six days of continuous training was not to be for their military instruction so much as for the utilizing and testing of that instruction. This brings me to the area officer question, which is the crux of the Bill.
The area officer is the unit of the educational training. Lord Kitchener laid more stress on that than on anything else. The requirements of an area officer are very severe indeed, and his idea was that this officer should live amongst the men, and be one of them - that he should know every family within the area, and develop that spirit of camaraderie and that social side of soldiering which count for so much, even in camp. This officer, in Lord Kitchener’s opinion, should be able to select the best men for officers, and dispose of the Force in such a way as to lead to the best results. He relied on the competition between these officers, as promotion was to depend on the condition of the several commands, seniority not counting. Military efficiency was to be the test; and friendly rivalry was to be encouraged, as tending to the greatest degree of efficiency in the army as a whole. There was a transition period, during which the areas were to be controlled by officers of the present Forces. Lord Kitchener did not recommend that any of the present Permanent officers should be appointed permanently to any of the area commands, because he wanted a special staff corps consisting of men who began young, and were trained in rigid discipline. The model was to be the West Point College, and our institution was to be equipped in a manner and the officers trained to a standard equal to any in the world. In the meantime, appointments were to be made from the best of the instructional forces, as well as from the Permanent Forces. With regard, however, to these positions the rates of pay offered by the Government will not, in my opinion, attract the best officers in the present Forces. It is proposed to pay only £150 a year ; and I do not see how we can expect the best results from men who are engaged every day in their own businesses. In my opinion £400 or £500 would not have been a penny too much, and the men could then have given their whole time, making other arrangements for the conduct of their own private affairs. Under the present system, however, an area officer can only give scraps of his time; and, therefore, the best results are not likely to be obtained. As a matter of fact, some of the best men are not offering, and a selection has to be made from those who do offer.
– Some of them are a very poor selection !
– I have not had time to inquire into the kind of selections made; and I desire rather to discuss the principle.
– The poor selection is due, unfortunately, to regrettable recommendations of senior officers.
– I know nothing of that, because, as I say, I have not inquired into the quality of the men selected - the rates of pay were enough for me. The result will be that young lieutenants of the Citizen Forces will be. placed in command of men who, until now, have been their colonels, majors, or other superior officers. That would not be so bad if there were a guarantee that in every case the young men were better qualified than the older men ; but that can only be made clear when some test has been applied, and. provision is made for men so inclined, to take command, knowing that their private affairs will not suffer. The area of selection should have been very much wider; and I am not sure that we do not run the risk of breaking down the scheme in five years, owing to that simple cause alone. Lord Kitchener contemplated the selection of the best officers we have, both Citizen and Permanent; but even for the temporary appointments, I am afraid that selection has not been made. I am speaking without intimate knowledge of the appointees ; I only know that a great number of young lieutenants, without much military experience, are being selected, while some of the best officers cannot afford to apply owing to the paltry salary. The scheme is not having a fair jump off owing ‘to this mistake on the part of the military authorities. As soon as I had discussed the College with Lord Kitchener, and the lines of the policy had been settled, I cabled to Colonel Bridges, asking him to return at once and take control. My reason was that Colonel Bridges is an Australian officer, and Lord Kitchener agreed with me that if we had a competent Australian soldier, he should have preference. This is to be an Australia Force, and the officers should be Australian, always provided they are capable; and I felt that here was a chance for an Australian who has not heretofore prospered as he might have done in the Forces, but who has shown himself on every occasion to be a thoroughly up-to-date scientific soldier. I told Colonel Bridges that if he came he would be absolutely independent in his control, subject only to the Minister; and that is the condition of affairs to-day. I also arranged the appointment of the InspectorGeneral, and but for a little oversight, the Gazette notice would have appeared before we left office. I was under the impression that we could complete those appointments after our resignation had been formally sent in, but the lawyers of the Cabinet were against me, and I yielded the point. However, if we erred at all, we erred in a safe and cautious way. We left everything ready for the Gazette notices, and these were issued; and the responsibility for the appointments really is ours to-day. I should have liked to see another appointment I had in train, but, to my regret, it has not been completed for some reason I do not know. All those matters as they are in train to-day have received the imprimatur of that great organizer, who, experienced in the great art of warfare, has served in almost every part of the Empire, and is not debited with a single failure. The late Government thought they could not do better than take the advice of a general such as he; and if the scheme is carried out in its integrity it will not be long before we shall have an army fit to fight alongside any troops, no matter whence those troops may be gathered. That is the opinion of Lord Kitchener, and it is mine, too. He was very highly impressed with the material we had in Australia for the making of an army. He repeatedly expressed his admiration for the bearing of the men and their military aptitude. He had nothing but praise for them wherever he went. In every camp he was loud in his approval of the efforts made by the men to acquit themselves creditably.
The whole scheme of Australian defence centres itself in the Military College. There is the beginning and end of efficiency. If the men are trained properly they are there to be trained ; they will take to the training ; they like soldiering, and have an aptitude for it, and the responsibility will rest upon those who are set over them to train them in all the arts of modern warfare. This is why I feel that we are running a very great risk in doing what we have already done in the appointment of these men to the command of the area controls. I do not know whether the Government intend to go on with that scheme. If they are going to get the best and most efficient officers under it, well and good. But I am afraid they will not do so. They might at least have left the area of selection fully open, and have provided an adequate salary, in other words, an adequate attraction, to induce the most competent officers of the Defence Force to apply for these temporary commands. I should have been very strongly tempted, if I had remained in office, at all risks, to see that only efficient officers, in the modern meaning of the term, were appointed to these commands. If they were offered a five years’ tenure at an adequate salary, it would have been comparatively easy to get them, in my opinion, and we should have started the scheme in a way in which I am afraid we shall not be able to do now.
– Where did the honorable gentleman expect to get the money from for this expenditure?
– All I need say in reply is that it would have required very little more than what the Government have-, proposed.
– We spend a very large amount now on militarism.
– Exactly ; and if our officers who will be charged with the expenditure of the money are not of the best, it will be more or less wasted. lt would be infinitely cheaper to get the best men, and give them an adequate salary. Anything less than the best in matters of defence is a mistake.
– I am afraid that we are spending too much on it now
– All I need say is that we should have to spend no more if care is taken to insure efficient control. Efficient control is always economical control in the military as well as in every other business. Any sum required to make the control efficient and adequate would be money well and economically spent, and it would not have amounted to very much more than the amount which the Government are asking us to spend.
All I have to say, further, is prompted by the interjection made just now, viz., that when I see honorable members opposite prepared to spend £2,500,000 a year in the defence of this country, there is nothing left for me to do but to get behind them and say, ‘ ‘ Go ahead ; and so long as the money is spent wisely T shall support you.”
– The amount will be more than £2,500,000; it will be more nearly- £3,000,000 this year.
– T There will be an abnormal expenditure for the next year or two on the Navy, which will make the amount more nearly £3,000,000 ; but I am speaking now of the expenditure which will be involved under normal conditions. We hope that the money will be spent to the best advantage, and that what honorable members on both sides desire will be realized, namely, that we shall receive the best value for the money we spend. Irrespective of the monetary side, we hope that we shall have a Force which will be able to defend our social ideals in Australia, and make us fit when the shock of war comes ito give an account of ourselves as a worthy branch of a worthy race.
– I was not present when this Bill was called on this evening, and, therefore, I am not exactly aware of what it is proposed to do in connexion with the amendment carried some days ago on the motion of the honorable member for Adelaide. He succeeded in introducing a proviso en abling persons who have served three years in the Forces, after passing a prescribed examination, to enter the Military College for the purpose of graduating, at any age up to twenty-seven years. I understand that some alteration of the proviso is to be made in another place, and as I shall probably not be here when the alteration is considered in this House, I should like to say a word or two in regard to the proposed change. I have thought the matter over since it was last under consideration, and have not in any way changed the opinion I gave utterance to then, but which I had formed many years ago. We should not forget that our Defence Force will be a Citizen Force, and that its members are to be compelled tn serve. In the circumstances, they should not be excluded from any consideration or advantage it is possible to offer. them by way of encouragement. The Bill proposed that young men of from fifteen to nineteen years of age should be at liberty to enter the Military College, but that if they failed to pass the prescribed examination between the ages of fifteen and nineteen years, they should not be able to enter the College later on. I understand that it is proposed to introduce some regulation to enable members of the Defence Force to enter the College at a later age. In my opinion, it would be very hard, and unfair, to a young man who intends to follow a military career if, at the age of nineteen years, on failing to pass the prescribed examination, he is absolutely prevented from following the career he has laid out for himself. I can see no reason why he should be prevented from doing so under certain conditions. What are the conditions proposed in the amendment that has been carried? It provides that if a young man has failed at nineteen years of age to pass the prescribed examination, he must undergo three years’ training in the Citizen Forces before he can come up again for entry examination. I think that is too severe a test, although when it was proposed by the honorable member for Adelaide, I supported it. I see rio reason why he should be asked to undergo that long probation before he can apply to come up again for examination. But, be that as it may, a young man who failed at nineteen years of age would, under the amendment, be able, after he had served for three years in the Forces, to apply to come up again for examination, and if he passed the examination, to enter the College, and graduate should he be able to do so. If he graduates, what then? There is no promise that he will get employment, but there is the advantage that he will be a well qualified officer, and that whatever occupation he follows he will be ready, as a trained man, to do good service for his country in the time of difficulty. That is a desideratum devoutly to be wished, and instead Of putting difficulties in the way ‘of persons entering this College we should impose no age limit whatever. The Bill provides that a person must pass the examination and enter the College before reaching the age of twenty-seven years. Every encouragement and opportunity should be given to men anxious .to qualify themselves in the highest degree. We have in the military service of this country men who have attained high positions and served well on the field of battle, but how many of them would have been able to enter the Forces if a provision had been in operation that only those under nineteen years of age could enter and qualify for staff appointments ? They could not have secured a Commission unless they . commenced their military career before reaching the age of nineteen years. I venture to say that very few men of the highest rank now in the Defence Force would have been eligible for commissions in such circumstances. Citizen soldiers do not make up their minds in a moment as to the extent to which they will devote themselves to a military career. In this Bill we say to them, “ Unless you enter this Military College before reaching the age of nineteen years you will never be able to graduate from it, and so will never have an opportunity to occupy a high position in the defence forces of Australia.” I am opposed to that narrow view of the Citizen soldiery. If we had a paid soldiery, as they have in the Old Country, there might be some argument in favour of it ; but we are dependent upon our Citizen soldiery for our defence, and, therefore, we should give them every possible encouragement. I can only confess surprise ‘ that such a proposal should have emanated from the present Government. I do not know what influence was brought to bear upon them, but I believe that had we proposed such a conservative, illiberal, ungenerous measure as is this, not one member of the present Government party would have supported it. I am afraid that it will not. work. In fact, I am certain that the Citizen soldiers will not approve of it, and that it will have to be repealed. They will not be satisfied to do all the hard work and the fighting without any of the rewards of the service being open to them. We have all heard of how, when Pandora’s box was opened, all the good things of life flew out of it, hope only remaining at the bottom. Under this Bill there is not even hope for the citizen soldiers whom we expect to do our fighting. All the good things are to be reserved for boys who enter the College at nineteen years of age, and those who fail on the first occa-sion will have no legal right to enter the College and to qualify. It is all very well to talk of regulations, but we know what they mean. They can be readily passed and just as readily set aside. These rights should be preserved in the Bill it”self to the people whom we expect to do all the fighting and hard work. Let us give them a chance. Do not let us take away from them all hope. This is a most ungenerous proposal, and I am surprised that a party which professes so much make-believe liberality, generosity, and reasonableness should be found voting for it. I cannot understand how any honorable member will be able, before his constituents, to defend the course of action which it is now proposed to take to reverse the reasonable proposal moved by the honorable member for Adelaide, and carried almost unanimously by the Committee.
Question resolved in the affirmative.
Bill read a third time.
Close of the Session - Press Cable Service : Answers to Questions.
– In moving -
That the House do now adjourn,
I desire to say that with the assistance of honorable members we hope to-morrow 10 dispose of a great deal of the business that remains. That business consists chiefly of the Estimates and, if honorable members insist upon discussing it, of the Budget. I understand that the right honorable member for Swan desires to do that, and, in the morning he will have, I hope, a fair field. I trust that I may venture to ask honorable members to assist us to get through the remaining business as quickly as possible, so that we may adjourn by the end of the week.
Mr. W. ELLIOT JOHNSON (Lang) 10.53]. -With reference to some questions which I put to the Minister of External Affairs this afternoon, relating to the payment of a subsidy to the Independent Press Cable Service, I wish to ask the honorable gentleman whether he thinks the reply thereto, “The particulars to enable this question to be answered are not available to the Department,” is a proper one for his officers to give to a question relating to a subject in respect of which a large sum is being paid out of the taxpayers’ pockets. It is about time that we raised a protest against this flippant method of dealing with questions submitted by the Opposition. It is about time that these officers understood that they are not to be partisans, and that every honorable member is, no matter where he sits, entitled to have his questions properly considered and answered. It is a lamentable confession of ineptitude for the Minister or his officersto furnish to a question such a reply as that which I have just quoted, in respect of which the fullest inquiry should have been made, I do not propose to leave this matter in its present position. I shall proceed further with it, and, if I cannot get my questions answered by the departmental officers in a proper, civil, and business-like way, I shall have to take another course. The information that I have asked for is such as ought to be furnished to the House. Every honorable member is entitled to get it. If the resources of the Department are not equal to obtaining the information which ought to be in the possession of the Minister before one penny of this money is paid, steps ought to be taken to increase the resources of the Department. I, therefore, ask the Minister of External Affairs to remind bis officers of what is due to Parliament.
– The reply was mine; not that of my officers.
Mr.W. ELLIOT JOHNSON. - Then the Minister had no right to make such a reply. He induced this House to vote a certain sum of money for the purpose of obtaining an improved cable service. This House has a right to know whether the Commonwealth is being fairly treated in the matter. It is no part of the business of a Minister to fling a reply before the House in this unceremonious and insulting fashion - for a reply of such a nature is insulting to the whole House, as well as a confession of ineptitude on the part of the Minister and a failure to realize his responsibilities. An honorable member of this House ought not to be subjected to such treatment simply because the Minister happens to have a majority behind him, and thinks he is in a position to fight those who are sitting in Opposition to him. I resent this kind of thing, and shall move the adjournment of the House if a similar course is taken again with regard to questions which I think it right in the public interest, and having regard to purity of administration, to submit to Ministers.
– There was nothing in the reply made by me to the honorable member for Lang which was in any degree insulting or flippant, nor was there anything in it to which the honorable member ought to take exception, except it be that we could not supply the information which he asked for.
– Why not?
– Why could not Question 7 be answered ?
– I do not know.
– Are there no means of finding out what I wanted to know ?
– That is another matter.
– The Department is paying away public money, and does not know where it is going.
– I know that the money is going to the company which is engaged in obtaining cable messages.
– For what?
– The money is paid on condition that the company complies with certain conditions laid down in the resolution passed by this House. That is all that we have to insist upon. We have nothing to do with the shareholders of the company, or with ascertaining who its bankers are. We have had it certified that the company has absolutely complied with the conditions, and that is all that we are concerned with. Why does the honorable member want to know who the company’s subscribers are?
– I want to know what we are getting for our money. The Minister must not imagine that the matter is going to stop here.
– The Sydney Daily Telegraph will boom the honorable member tomorrow.
– The position of the Government in the matter is absolutely straightforward. We asked this House to grant a subsidy to any person who would comply with certain conditions, which were definitely laid down. We required certain things to be done in the interests of Australia. All that we are now concerned with ] is whether or not those conditions are being complied with.
– The public are concerned with the matters mentioned in my questions.
– It is no concern of ours as to the additional number of words which the company are supplying to their clients. We have to see to it that the conditions laid down are complied with before the subsidy is granted. As I have stated, we have a certificate to the effect that the conditions have been complied with. We have information from the Pacific Cable Board as to the number of words cabled.
– Has the Government control over the Pacific Cable Board ?
– No ; we have no control over it. nor have we the slightest control over the company.
– What good is coming out of this, business?
– I am not going to argue the whole question again. This House carried a certain resolution, knowing what it was doing. I may, however, tell the right honorable member that a great deal of good is being done. Already there has been a considerable improvement in the news cabled to Australia.
– Has there been any increase in the number of messages cabled over the Pacific line?
– Oh yes. I think that 6,000 words per week are being cabled.
– Can the Minister ascertain by to-morrow whether there has been an increase in the number of messages sent by this syndicate since they obtained the . subsidy ?
– That is a question which I shall endeavour to answer.
– That is the information that I asked for in questions 8 and 9.
– We have not the information in the possession of the Department, but I will endeavour to obtain it.
– We should all like to know.
– The honorable member for Lang, however, had no right to complain that the answer was flippant and insulting.
– I say «?o still.
– I tell the honorable member again that we have no means within the Department of knowing what the honorable member wants to know, unless we apply to the company, in the same way as the honorable member himself can do. But if, without making a complaint about insulting behaviour and flippancy on the part of a member of the Government, the honorable member tells me that he wishes this information to be obtained, T am prepared to ask for it.
– Has the Minister any objection to my moving for a return ?
– For what?
– For this information to be supplied.
– I should not be prepared to take such a motion as unopposed. I have no objection, however, to obtaining a reply to question No. 9.
– I acquit the’ Minister of any desire to insult anybody in his reply. To my mind it is not so much a matter of personal behaviour, but what has happened does suggest, if the Minister will forgive my_ saying so, very gross Ministerial ineptitude. This House is paying thousands of pounds per annum - for what? To get a better cable service. There is no other justification. It is to be a cable service open to all Australia. If we are not going to get a better service, both from the stand-point of the quantity and quality of the matter transmitted over this cable, what justification can exist for. the expenditure of this money? None whatever. Yet when the Minister of External Affairs is questioned upon the matter, he says that he has no information in regard to it. All he knows is that he is shovelling the money out on the certificate of a company over which he has not the slightest control. That is a sorry position. It discloses a fine sense of Ministerial responsibility.
– Does the honorable member recollect the terms upon which we agreed to pay this money r
– I do not care what terms we agreed to. I am merely stating the facts of the case. The Minister has not proved that he is not throwing money into the sea, except that he has the certificate of the Pacific Cable Company.
– Does the honorable member suggest that that company would give a certificate that a certain number of words had been sent over the cable if they had not been sent?
– I am not discussing that aspect of the matter. What we wish to know is the quality of the messages transmitted, and whether they are worth the money, and how the service differs from the service of the great dailies. We require to know what is being done with the money which is being expended by the Minister.
– That information has been given. The money is being spent in accordance with the resolution arrived at by this House.
– The Minister cannot say whether the service is better or worse than it was before the subsidy was granted to the Pacific Cable Company. Hecannot say what newspapers are being benefited by that company, and whether the cable ring is being broken down. He merely says, “ I know nothing about it, except that an outside Cable Board has given me a certificate that it is all right.”
– I said nothing of the kind.
– The Minister said that he had not the information in the Department.
– The information which is sought, which has nothing whatever to do with the question.
– The Minister stated that he could not answer seven of these questions, because he had not the information to enable him to do it. The questions relate to’ the quality of the service.
– They do not.
– I beg the Minister’s pardon. They relate to nothing else.
– They have nothing whatever to do with this House.
– They have everything to do with it, if this House has a right to know what newspapers are being subsidized by the Commonwealth, and the kind of cable service that we are getting for our’ expenditure. I hope that the Minister will set the desired information as speedily as possible, for the sake of his own reputation and of that of his Department.
– The Minister has stated that this subsidy was granted in the expectation that a better cable service would be secured for the benefit of the public. I think that the House is entitled to any information which may be available to the Minister, and to any information which by a reasonable effort he can obtain. If he is able to answer questions 8 and 9 we shall know whether this syndicate, as the result of the subsidy, has secured the transmission of an additional number of words across the Pacific Cable If it has not done so, the only conclusion at which we can arrive is that more information is not available to the public. I am sure that the syndicate will be able to answer those questions. No difficulty ought to be experienced in ascertaining whether an additional number of newspapers are being accommodated by the distribution of the information which is transmitted by this cable. If the Minister will endeavour to secure answers to those questions, he will relieve the situation.
– I will get that information with pleasure.
Question resolved in the affirmative.
House adjourned at11. 12 p.m.
Cite as: Australia, House of Representatives, Debates, 22 November 1910, viewed 22 October 2017, <http://historichansard.net/hofreps/1910/19101122_reps_4_59/>.