1st Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
– Iam not in a position at the present time to make a statement on the subject.
– The whole matter came before the Printing Committee, and I understand that it reported against the printing of the evidence to which the honorable senator refers.
-Col. Neild.-No. The printing of the general evidence was objected to. I am only asking for the important evidence to be printed.
SenatorO’CONNOR.-I shall inquire into, the matter, and see what can be done.
– I received no notice of a meeting of the Printing Committee.
-Col. Neild. - It was a printing committee of the other House which dealt with the question.
Senator DRAKE laid upon the table
A return relating to the granting of gratuities to representatives of deceased officers in Tas mania.
Ordered to be printed.
asked the VicePresident of the Executive Council, upon notice- -
Is it the intention of the Government during the present session of Parliament, to issue a proclamation in accordance with the Constitution Act transferring to the Commonwealth the control of quarantine?
-The Government has no such intention at present, but will keep the matter in mind.
– I move -
That so much of the Sessional Order of 27th May last as gives precedence to private business on Friday be suspended, and that on Friday next Government business take precedence of all other business, except questions and formal business, unless otherwise ordered.
During yesterday’s sitting Senator. McGregor asked me whether it was the intention of the Government to ask for Tuesday for the consideration of their business. I told him that I would answer the question to-day. I am sure that he has only voiced the general feeling in the Senate that, in view of the woi’k to be done, and the limited time at our disposal, it is necessary to call upon honorable senators to undergo the inconvenience which, no doubt, will be entailed upon’some of them by having to attend on Tuesdays. I do not intend to ask for that day at once, because some honorable senators may have made their arrangements for next Tuesday. But I propose to ask the Senate to sit on Tuesdays, beginning on the 11th August, and to give precedence to Government business on that day. I also propose to ask for Fridays, beginning on the 1 4th August, until the end of the session. The necessary motions will be made in time to enable the suggestion I now make to be carried out. In moving the motion which stands in my name, I do not know that it is necessary to say much beyond what I have said. I would remind the Senate that the duration of this session will be limited by the necessity of holding the Senate elections, which according to the Constitution must be concluded before the end of the year. In the electioneering campaign honorable senators will have to ‘traverse the whole area of their States, and therefore it is necessary to afford a reasonable time for that purpose before the election comes off. It must be borne in mind that, as we hope that the elections for the other House will take place on the same day, ample provision has to be made for the issue of writs, and dealing with various electoral matters. Certainly in the Senate, and probably in the other House, the necessity for bringing the session to a close as early as possible before Christmas must be quite evident.” If we continued each week to devotetwp days to Government business and oneday to private business, it would be impossible to get through all the work, by that time. We have on the business-paper many important measures which we hope to see carried into law this . session. The Judiciary Bill, the Patents Bill, the Standing Orders - which ought, to be completed before there is any change in the constitution of the Senate - the High Court Procedure Bill, the Eastern Extension Telegraph Company’s agreement, and the Naval Agreement Bill must be dealt with as early as possible this session. There are some measures to come from the other House which the Government desire should be passed this session, namely, the Defence Bill, two Bills relating to British New Guinea, and the Conciliation and Arbitra-. tion Bill. The selection of a site for the Federal capital must also be dealt with this session. Under these circumstances, I think it is not necessary for me to appeal to honorable senators to give up such time as may be required for dealing with these proposals. What I am asking now is that next Friday shall be placed at the disposal of the Government. I do not think it is too much to request those honorable senators who have private business on the paper for that day to afford the Government an opportunity to deal with their Bills.
-Col. Neild. - What business is it proposed to go on with to-morrow 1
– I propose to go on with the Judiciary Bill until it is finished.
– I rise to offer a few words of protest against the proposition of Senator O’Connor, because I have on the business-paper -a motion dealing with the question of the appointment of the Governor-General and his establishments, and a* motion dealing with a lecture by the Governor of Victoria, and also referring to a member of the Cabinet. Does Senator O’Connor desire that a motion which, if carried, would censure the members of the Government, particularly the Minister for Defence, shall be hung up until the end of the session, when it will be impossible to discuss or take a vote on it ? He knows that under the standing orders, if the Senate does not get a chance to deal with the motion tomorrow I shall not be able to set it down for consideration on any other day. Business is set down for private members’ day for some weeks to come,. and if the precedent of last session is followed it will be taken from us in a very short time. It is only fair to the Governor of Victoria that my motion should be voted on this session one way or the other.
– A sword of Damocles hanging over a State Governor’s head is a terrible thing !
– The honorable and learned senator does not think that there is anything serious about my proposal, I suppose because it comes from one who occupies a seat in this corner.
– Not for that reason.
– Prior to the entrance of the labour party into Parliament, the various parties which sat in the Legislative Assemblies were very careful to criticise adversely any interference by a Governor. Therefore, the honorable and learned senator should not take up the attitude that there is nothing serious about my proposition. I have every sympathy with those honorable senators who belong to the legal profession. They cannot, as the merchants and importers do, allow managers to transact their business for them. Members of the legal profession who have lucrative practices must attend to their business themselves. Therefore, I have every sympathy with the lawyers when they say that the business of the Senate makes great demands on their time. But when the Vice-President of .the Executive Council, who has lately appeared amongst us after an absence of seven weeks, during which he has accumulated a great store of energy, desires to upset things that were going on very well under the leadership of the Postmaster-General, we have a .right to object. We were getting along famously under Senator Drake’s leadership, but the moment Senator O’Connor appears on the scene there is trouble. Senator O’Connor tells us that the Senate elections must take place before the end of December, and that it is necessary for us to get through the business as early as possible. What is the nature of some of the business before us ? Is there any urgent necessity for the two New Guinea Bills 1 One of them is a very important measure which ought to contain a number of provisions which are absent from it, and the other, the Papua Preference Bill, is simply a cowardly, method of raising a discussion on the question of preferential trade. Senator 0’Connnor has mentioned those measures as a reason why we should give up private members’ day and meet on Tuesdays. But that course is not fair to the members of the Senate who do not occupy positions in the Cabinet. Private members ought not to be deprived of the opportunity of bringing forward business in which they feel interested. How will it be possible for me, for instance, to bring forward questions which concern the public if private members’ day is abolished ?
– Be content with asking questions.
– The honorable and learned senator is not generally favorable to the questions I ask, and when he puts a question to me he is not satisfied with my answers. It is time that the Government reconsidered its position. Apparently the ship of State is drifting. We are abandoning the time-honored practice of Parliament and are passing Acts and administering the laws of the Commonwealth by a system of government by regulation. The Ministry is willing to conduct the business of the country by what I may call a star chamber system - over a glass of wine, I suppose, and within hearing of a most excellent orchestra - with the result that we find an agreement signed by the Prime Minister, the substance of which -ought to have been brought before this Parliament in the shape of Bills. If Senator O’Connor could only influence his colleagues so that Parliament might be called together at a proper time, and so that the Senate might sit four days a week, letting private members have their day, I venture to say that such questions as I have referred to would be brought forward in the form of Bills, and not as agreements already signed by the Prime Minister, which we have to refuse to ratify or to assent to as they stand. I will protest on every occasion against the few hours which are now given to private members being taken away from them. What is the present practice? . We meet at half -past ten on Friday mornings, and at half-past twelve a sonorous voice rings through the Chamber with the command “ Orders of the Day ! “ whereupon our mouths, so far as private members’ business is concerned, are closed. Two hours per week is all the time that is given to the 34 senators who are not members of the Government in which to discuss their business. Take the question brought forward by Senator Smith in reference to the metric system of weights and measures. That subject could not have been brought before the Chamber except for the few hours alloted to private members. It -is utterly wrong for the Government to avail themselves of their great power, first of all by not calling Parliament together until the 26th of May, then only asking the Senate to sit three days a week - sometimes only two days - and then, as we get near the end of the session, proposing that private members’ time shall be taken away altogether. It is unfortunate for those of us who may be considered to be youthful senators - though wemay be in the forties - that this time is taken from us. There are a number of honorable senators who have a long political career behind them. They have made namesfor themselves, and do not think it is necessary for private senators to air their eloquence. They have made their mark in the country. They have a long record of useful service, and if they did nothing else whatever while they are in the Senate they would not lose the confidenceor respect of their constituents. Such honorable senators will probably vote for Senator O’Connor’s motion. They say - “Why do we want to bother to come here on Friday mornings to hear private senators bringforward matters for discussion?” - matters which they would describe as purely academic. If they were like those of us who wish to show the public that we are in earnest, and desirous of serving them, they would not be so eager to abolish private members’ time. It is unfortunate for us, as it happensj that there should be in this Chamber so many of those honorable senators whom I havedescribed. Having said so. much, I hope that the Senate will vote against the motion.
– I was very glad to hear the Vice-President of the Executive Council announce that it was the intention of the Government to ask the Senate to sit on Tuesdays. There is no doubt as to the necessity for this course. I was glad to hear him ask that Fridays also should be devoted to Government business. Some of us have protested ever since the session started that we should have been asked to sit on Tuesday, in each week, and I have also mentioned that, in my opinion, Parliament should have been called together earlier in. the year than it was. We did not meet until the 26th May, though we must have an election at the end of the year. This does not give us much time to deal with the many and important questions which are before us for consideration. Our notice-paper is now clogged with Bills of the utmost importance, requiring considerable consideration, and there is only a short balance of the session left. Are we “to go in for constructive legislation, or for the discussion of what I may call abstract motions? I admit that many of the motions are of great importance. I fully sympathize with Senator Higgs. He has placed important motions ‘ upon the notice-paper, and no doubt has prepared a good deal of information with regard to them. But, under the circumstances, I say to him, as I should say to others, that inasmuch as his proposals will not lead to legislation, and as we have before us many important Bills, we should -agree to devote Fridays to the consideration of these measures. I do not believe in panic legislation, ‘ nor in rushing Bills through the Senate at the end of the session. It is only fair to those honorableSenators who are standing for election that they should be able to go before their constituents and point to the good work that has been done. It would redound much more to their credit to have assisted in passing some of the measures that are mentioned on the notice-paper, and to have voted against others, than it would be to have carried abstract motions, however important they may be. It is true that during the present session a motion in favour of the metric system of weights and measures has been carried at my instance. But I would point out that I merely brought forward that question at the request of a member of the House of Representatives, and that it was rather more than an abstract motion, because it has been sent on to the Imperial authorities, and may bear fruit in legislation. With that exception, I have not submitted any motion on private members’ day. I would urge those honorable senators who have notices on the paper to consider the importance of measures like the Judiciary Bill, the Naval Subsidy Bill, the Defence Bill, and the Federal Capital Sites Bill. It is better that we should legislate on those measures than take up Fridays in discussing motions which, however valuable from many points of view, would not lead to definite results. ‘
– I beg to differ from the honorable senator who has just resumed his seat in his conclusions regarding the motion submitted by the Vice-President of the Executive Council. Had the motion been submitted a week earlier, I think that he would have taken a different view of it. It is hardly fair to those honorable senators who have been here during .the whole of the session, and have been willing to sit four days a week, to be deprived of the opportunity of bringing forward motions of which they have given notice. The notices upon the business-paper would not have been placed there unless those responsible for them had intended that they should be discussed, and that the opinion of the Senate should be taken. It would only have been bare justice to those honorable senators if Senator O’Connor had made his motion apply after the 21st August. That would not have interfered with the notices of motion of private senators.
– I am only asking for next Friday.
– But the honorable and learned senator has indicated that he intends to ask for 14th August, and the other Fridays onwards. On several occasions the Senate has been willing to sit on Fridays, but the Postmaster-General did not see fit to do so. If we had sat on every Friday there would not have been so much business crowding the notice-paper now. There are only half the number of members in the Senate that there are in the House of Representatives, .and surely if four days a week are sufficient for the other House for Government purposes, two days a week should be sufficient in the Senate. We have a similar number of Bills to deal with as have the House of Representatives, and ought to be able to do our business in a little more than half the time. Last session we had to adjourn over a fortnight in order to enable the other House to catch up .with us. The Government might be satisfied with asking for Tuesdays, and allowing private members to have Fridays for a week or two. If it is found towards the ,end of the session that business is blocked, the Senate will be willing to meet the Government. I am quite willing that after the last of the private members’ motions, now on the paper, has been disposed of - that is, after 28th August - Government business shall be taken four days a week. Members who have given notice of motions would then be able to get them dealt with. I have on the paper a notice of motion, which I believed the Senate would deal with, and I placed that notice there, not merely for the purpose of advertising myself, nor, as Senator Higgs seemed to indicate, for the purpose of endeavouring to persuade the public that I am in earnest. I believe in the principle which underlies that- notice of motion, and I wish to get the opinion of the Senate,- even though that opinion may be against me. There has been a debate on my motion already, and a representative of the Government has expressed opinion in regard to it, but now it appears that the matter will have to be postponed until next session, although the motion has already been on the notice-paper for two sessions. That is not a fair way in which to treat business brought for-ward by private members. Notwithstanding the remarks of Senator Smith, I say that a private member ought to have an opportunity of submitting motions.
– I said that under the peculiar circumstances, the Government ought to have Friday. The present motion would not have been submitted if honorable senators had insisted on Tuesday being a sitting day.
– I urge on Senator - O’Connor that there ought to be no interference with private members business until 28th August ; and, in order to facilitate legislation, I am willing to sit any hours that may be fixed on both’ Monday and Tuesday
– Like Senator Pearce, I feel myself compelled to oppose the motion submitted by Senator O’Connor. I am sorry to say that the motion represents a “ game “ which has been played by almost every Government of which I have had experience. The usual method is to dawdle through the first two or three months of parliamentary life, and sit as few days as possible.
– And speak as long as possible.
– Senator Zeal, like myself, has subsided into a comparatively silent member, and the less he says here the more he will be liked. There ought to be some understanding on the question under discussion. A large proportion of honorable senators who represent Queensland, Western Australia, and Tasmania are compelled to live in Melbourne during the whole session, and yet no sympathy is shown them by representatives from South Australia and New South Wales, who leave for Sydney or Adelaide every week end, and do not return until the Wednesday. Then we find Senator O’Connor sauntering in, after Parliament has been in session for about two months. That honorable and learned senator did not put in an appearance, at the opening of Parliament.
– Dreadful !
– It may be dreadful or anything else the honorable senator ‘ likes ; but Senator O’Connor now comesalong and tries to sweep every item of private business off the paper. Senator Higgsreferred to some honorable senators whohave large legal businesses ‘which necessitate their constant personal supervision. That is quite true ; but when a man accepts, a public position, he ought to be prepared to either devote himself to its duties or toabandon it. Unfortunately, we have toomany lawyers in the Chamber. Senator Zeal has referred to long speeches, but if hewill ransack the caverns of his memory hewill find that the longest speeches are delivered by members of the legal profession,, who swoop down occasionally in the intervals between cases and keep themselves in practice on long-suffering senators. Someof those legal representatives are absent now, though one put in an appearanceyesterday, and I suppose we shall soon hear his musical voice again. It is asserted by Senator Smith and others that the privatebusiness on the paper deals with merely academical questions. 1 venture to say, however, that the notices of motion referred to areamongst the most important business on the paper. Senator Neild has a . motion dealing with old-age pensions, and surely that must be regarded as important - at any rate, asimportant as the Judiciary Bill - and Senator Pearce has a motion with regard to thenational monopoly of the tobacco industry. . We have seen the Melbourne Age tauntingthe Treasurer with being a mere bookkeeper, with no financial capacity ; but here’ is Senator Pearce submitting a motion which, if adopted, would result in largerevenues for the Commonwealth. Yet we-, hear honorable senators say that such motions are of no earthly consequence,, and that more regard must be paid to the important Bills which the Government are introducing. The Judiciary Bill could be settled very easily and’ quickly if honorable members would only follow ray example and restrain themselves. I have on the notice-paper a little motion on which I am extremely anxious to obtain> the opinion of the Senate.
– That accounts for “ the milk in the cocoanut.”
– I should have protested against the motion of Senator O’Connor, even if I had had no business on the notice-paper, though the fact that I have, may have sharpened my weapon a little. I am not so much complaining of the present action of Senator O’Connor, as of the general practice of Parliament. Why do we not get to work rightaway at the beginning of the session! When a man goes to a day’s work at eight o’clock in the morning, he does not take matters easily in the forenoon, when he is strong and hale and refreshed after a night’s sleep, but he works with a will. We reverse that process, however, in Parliament, and dawdle through the early months of the session, only to come with a rush at the end.
– We are reserving ourselves for the rush.
– It is a “ goasyouplease “ until the last month of the session, when there is a tremendous rush, and a “ slaughter of the innocents,” resulting in bad legislation which has to be reviewed when Parliament again meets. If Senator O’Connor will promise me an opportunity of dealing with my motion, and will add Tuesday to the sitting days, I may possibly vote for the motion before the Senate. Indeed, in my opinion, Senator O’Connor, before submitting the present motion, ought to have proposed that Tuesday be one of the sitting days.
– Has the honorable senator no mercy on Hansardl
– I do not know that Hansa/rd has much to do with the present discussion, though I do know that Senator Zeal would like to see Hansard abolished.
– I should not.
– Senator Zeal would like to see us exposed to the tender mercies of the wicked newspapers, who never report honorable senators in this corner, except to distort our utterances. On’ the other hand, the newspapers hang on the words of wisdom which fall from the prophet who has just interjected, and every word of his is duly noted, and spread on wings all over the continent. We have Hansard as our witness.
SenatorBarrett. - And we will keep Hmisard.
– Many groundless charges are brought against us, but when we present the Hansard reports to the people, a different complexion is placed on matters.
I am as anxious as is any honorable senator that the business should be expeditiously transacted, and I think I have proved that by remaining silent very often when I felt strong temptation to speak. Unless Senator O’Connor will agree to add Tuesday to the sitting days I shall be compelled to vote against the motion.
– I think the simplest course would be for Senator O’Connor to say to honorable members who have private business that he will devote one special day to them. We have to recognise . that it is getting late in the session. Whether Parliament was called together too late or not is just now beside the question. The whole matter we have to consider is whether the Government are making a reasonable request ; and I think they are. I know that when honorable senators put motions on the noticepaper, . they do so because they consider them of such importance that they ought to be debated. But we must recognise the fact that the Government are responsible for the legislation of the country, and ample opportunity should be afforded them for the transaction of their business. The motions in the names of private members are,, to a great extent, of an abstract character,, and, after all, can have no effect until they are in the concrete shape of Bills, which probably would have to be introduced by the Government. On private members’ days, the attendance of honorable senators is very much less than on ordinary sitting days.
– That is because somany honorable senators have gone home.
– A great many honorable senators leave for their homes because they have important business of their own, and they do not’ regard the motions of private members as likely ‘ to have any great effect on the policy of the country.
– But Government business is taken after the luncheon hour on Fridays.
.- I believe that is so ; but if there are private orders of the day the latter are proceeded with. I do not believe that there will ever be a. full attendance of honorable senators on private members’ day unless another course isadopted. That course would be to sandwich in certain hours for private business during the ordinary sitting days of the week. For instance, Government business might be- taken on Wednesdays, Thursdays, and Fridays, but the afternoon of Thursday, from half-past two o’clock until half-past six o’clock, could be devoted to private members’ business. If that course were adopted, I believe we should find that there would be a much larger number of senators present to deal with private members’ business, and honorable senators would have much better opportunity of making their ideas known and having their motions considered. That, of course, is by the way, and I am now suggesting that the request on the part of the Government is only reasonable, and that it would be just as well to set apart one day for the consideration of the private business on the notice-paper. Honorable senators who have private business would keep a House, though, as I have said, the adoption of their motions must have very little effect until they are embodied in the form of Bills. One honorable senator has complained that Senator O’Connor has not been in attendance from the very commencement of the session, while another honorable senator has expressed the opinion that business proceeded very well while Senator Drake was in charge, but that immediately Senator O’Connor arrived, the gauntlet was throw ti down and war commenced. But honorable senators must have some sympathy with those who have other work besides that of attending to their parliamentary duties. We ought not to adopt such a course in conducting the business of Parliament as would drive out many men who are regarded as amongst the best of our legislators. I express that opinion -without casting any imputation on honorable senators who are able to give the whole of their time to their parliamentary duties.
– Does the honorable and learned senator think that only those honorable senators who are members of the legal profession have private work 1
– I certainly do not think so.
– The honorable and learned senator speaks as if that were his opinion.
– A large number of honorable senators have other work, but as has been pointed out already many professional men must devote personal attention to their business or lose it altogether. We should, therefore, so arrange -our days of sitting as to convenience as far as is reasonable honorable senators who have other occupations. I sympathize with honorable senators from Queensland and Western Australia who are kept in Melbourne during the whole time Parliament is sitting ; but that is inevitable. It would be quite impossible to have Parliament sitting for months on every day of the week, the avocations of our people being such that business could not be carried on under such a system. I hope, therefore, that honorable senators realize that it will be better to give up Fridays to the Government. The Government are responsible for the business, and the measures they desire to bring forward are regarded as of importance by the public. We may or may not agree with the legislation submitted by the Government, but all the time possible should be devoted to its consideration.
– I must protest against one remark which I heard drop from Senator O’Connor. If I understood the honorable and learned senator aright, he Said he knew it would inconvenience honorable senators to sit on Tuesday, and on that ground he justified his desire to deprive private members of their day. I .wish to assure the honorable and learned senator that it would be no inconvenience whatever to sit On a Tuesday.
– It would be a great inconvenience to many honorable senators.
– It is not inconvenient to honorable senators who come here prepared to do their duty.
– Twaddle !
– It is not “twaddle” or “bosh,” or whatever word the honorable senator used.
– The honorable senator ought not to imagine words he does not hear.
– Whatever term the honorable senator used, the same denial will apply. Honorable senators are returned in order that they may do the work of the country. They were not returned under the impression that the whole work of the Senate was to be upset in order that certain honorable senators might leave for home early at the week end-, and come back late at the beginning of the week.
– Honorable senators sometimes go to England.
– I went home to England during the session, when, owing to a petition against ray return, it was not possible for me to take my seat. “What would have been the use of my remaining here under the circumstances?
-Col. Neild. - Hear, hear !
– Nobody knows better than the honorable senator that my remaining here would have been of no use.
– Hear, hear!
– I should have been an idiot had I attended the Senate under the circumstances.
– Hear, hear !
– The honorable senator appears to have been taking singing lessons from a frog. The justice of my remarks is perfectly apparent from the volley of execration that immediately proceeds from one prominent senator for New South Wales. I refer to Senator Neild, who has conspicuously gone home at the end of every week, and has been conspicuously absent on those days when other senators have been sitting here perfectly prepared to carry on the work of the session.
– He puts notices on the paper for Friday, though he does not intend to discuss them.
– Senator Neild has put notices on the paper for certain days, which he has never followed up, and has thereby prevented honorable senators from putting business on the paper for those days, when he has been luxuriating in Sydney. That is the class of man who trades on the fact that the senators for New South Wales and South Australia receive the support of the” senators for “Victoria, and are, therefore, able to prevent the Senate from sitting on those days when it ought to sit. We come here at very great personal inconvenience. Senator Gould seems to think that we have no business of our own to carry on.
– I never said so.
– The honorable and. learned senator said we ought to show some sympathy with those honorable senators who have private business to attend to, and, therefore, it is only fair to assume that he thought we had no private business to attend to. Nearly every one of us has private business to attend to, but we have to sacrifice our business in order to do our duty in the Senate.’ Other honorable senators stop away, and protest that it is inconvenient to meet on Tuesday. It is their duty to attend on Tuesday, and if it is inconvenient for them to come, they ought to resign their position, and let other men take their place who would be prepared to work. We are asked to take Friday away from private senators when we are quite willing to sit on Monday and Tuesday to oblige the Government when they have any business to submit. If they have no business to submit on Monday and Tuesday am quite agreeable that the Senate should not sit on those days, but while they have any business to consider we ought to sit on those days. The representatives of the Government have no justification for endeavouring to take away the four or five hours allotted for the consideration of private business in order to meet the convenience of the senators for New South Wales and South Australia, who desire that we should not sit on Monday and Tuesday. If Senator O’Connor will ask the Senate to sit on Monday, Tuesday, Wednesday, Thursday, and Friday, and say that he must have Friday for the consideration of Government business, I shall be prepared to support him, because I recognise that it is my duty to the country to deal with Government measures first. But when he says it is inconvenient to sit on Monday and Tuesday, and that, therefore, the time allotted for private business should be taken away, I have to oppose him.
– While I am prepared to assist the Government in every reasonable way to dispose of their business, I must protest against this proposal to take away from private senators the few hours which are placed at their disposal on Fridays. I have been a regular attendant since the beginning of the session. I have gone to considerable trouble to prepare a speech on a motion which Senator Pearce has placed on the business-paper, and now I find the Government asking for Fridays for the consideration of their business. The proposal is so unfair that I think Senator O’Connor will see the reasonableness of acting on the suggestion of Senator Pearce, not to take Fridays until all the private business now on the paper has been disposed of. I am prepared to sit on Monday and Tuesday to assist the Government, but I must rebel against any effort tocurtail the few privileges which private senators have. Seeing that Senator Smith was able to get a motion dealt with on a
Friday, he ought to have been silent on this occasion, and to have allowed other senators to get the same consideration as he has received.
– It was not my motion.
– It is said that the motions in the name of private senators involve abstract questions. The question which Senator Pearce has submitted in his motion is a very practical one ; it has been so regarded in other countries for over 100 years. Seeing that there is a demand for more taxation, and that we are in a position to indicate to the Government a new source of taxation which we think will injure no one, it is only right and proper that we should be allowed an opportunity to place the merits of our proposal before the Senate.
– This motion should be discussed in a spirit of give and take. So far, this session, honorable senators have had very reasonable time in which to deal with private business. I think that is the reason why some speakers have been so well satisfied with the progress of business. I have noticed that there has always been a poor attendance on Fridays. There have not been so many senators present as I think the importance of the subjects under discussion deserved. That fact has been a matter of regret to me, but still honorable senators have got through with their business, and I believe that they have been very well satisfied. Now that we have several first-class Bills and an important motion on the papen, I think it is time that we should devote ourselves, at all events for a while, to disposing of Government measures, because, unless they are soon returned to the other House, there is a great probability that later in the session the Senate will have no business to go on with. If, as happened last session, we should have a week or two to spare, it will be possible to get rid of all the arrears of private business. That is the proper way in which the business on the paper should be treated. I suppose that every one desires that the business of the session shall be disposed of as expeditiously as possible. It would be a mistake, when we have plenty of measures which the other House may be waiting for directly, to devote any time to private business. Those honorable senators who have done so well with private business should gracefully make way now for the transaction of Government business on Fridays for a few weeks, and if there should then be’ any time to spare I am quite sure that my honorable and learned colleague will not throw any obstacle in the way of the discussion of private business.
– There was no private business at all transacted last session.
– I think that the honorable senator is mistaken.
– Senator Neild got a couple of days for his business.
– My recollection is that at the end of the session there was very little private business on the paper except that which honorable senators were not desirous of going on with.
– What chance did the Government give to the motion of Senator Stewart about the suppression- of public meetings in Ireland ?
– It came on again and again, and Senator Stewart always fled from it.
– No ; I never had an opportunity to move the motion.
– Senator Gould has thrown out a very practical suggestion, which I think will meet many of the objections which have been raised to this motion. It is that we should take a portion of a Government day for the consideration of private business. I am strongly of opinion that the few hours which have been allotted to honorable senators for private business should not be taken away while there is any business on the paper. While I recognise the necessity of the Government getting on with their business, I think Senator O’Connor might well adopt the suggestion of Senator Gould.
– The honorable senator would not wish to keep Friday and to get Thursday ?
– Certainly not.. I think it would be a very wise step for the Senate to give up Friday to the Government, provided that they would allow private business to be discussed on Thursdays, either from the beginning of the sitting until the dinner hour, or from the dinner hour to the end of the sitting ; and also to sit on Tuesdays until such .time as we have cleared off arrears of work. A good deal has been said about the inconvenience caused to senators from other States by having to attend on that day. There ought to be a little give and take. There has been too much take, and not quite enough give, on the part of a few senators from some States. I wouldremind those honorable senators that the representatives of three States have to live away from their homes - at great expense and inconvenience- for the whole period of the session. They are also called upon to pay income tax to Victoria as well . as to their own State. The extra expense to which they have been put would have been avoided if the Government had decided to ask the Senate to sit on four days a week from the beginning of the session. I feel satisfied that last session would have been concluded much earlier than it was if we had sat on Tuesdays as the other House did. Certain honorable senators complain that it is inconvenient to them to attend on Tuesdays. Is it not inconvenient to the members of the other House to sit on that day 1 Do they get a larger allowance than we do ? Have they not to study exactly the same interests as we do, and have they not also private business to attend to? We do not hear the members of that House grumbling about the inconvenience of sitting on Tuesdays. If Senator O’Connor would give me an assurance that he would “adopt the suggestions of Senators Gould and Stewart, I should be prepared to vote for his motion. Otherwise, I do not feel inclined to take away the few hours which have been allowed for the transaction of private business on Friday.
– I think that the convenience of the Government ought to be considered. I admit that honorable senators should have greater facilities for the discussion of private business than they have had. It would meet the case if the Government would ask the Senate to deal with private business on Fridays, and after a certain date to deal with Government business on Tuesdays. If honorable senators would curtail their speeches, especially in Committee, and not have debates on every conceivable question, there would be ample time in which to carry on business. No legislative assembly in the world is carried on as the Senate is. It is perfectly intolerable that honorable senators should be called upon to listen for two or three hours at a stretch to a speaker.
SenatorMcGREGOR. - The honorable senator would not allow that in the Legislative Council.
– No. I have great sympathy with the Government, because any amount of time is wasted in that way. . I also sympathize with the Chairman of Committees, who has to listen hour after hour to what I think is very little better than drivel. If honorable senators are prepared to make a sacrifice, and to speak at moderate length, we ought to meet the view of the Government, because it is only fair that they should have whatever time is required for the transaction of their business. It is all very well for some honorable senators to say that we have wasted the greater portion of the session. Do they not know that business has had to be initiated in another place ? Until it was received in the Senate, how could the PostmasterGeneral do anything?
– It could have been initiated, here.
– There is much business which cannot be initiated in the Senate. We must pay more deference to the popular House than to the Senate. We must be prepared to make some sacrifice. It is well known that in every country the second Chamber does not get that time for dealing with business which the stronger and more popular House gets.
– The Senate is not a Legislative Council.
– The Legislative Council of Victoria would have done as much in a day as the Senate has done in six months, and the business would have been discussed in a reasonable spirit. I was here once when an honorable senator talked for nearly four hours at a stretch. Does any honorable senator think that any human being would be so . foolish as to read the reports of such speeches ? I sympathize with Senators O’Connor and Drake in the attacks which’ have been made upon them. I recognise that the former is making a great sacrifice in coming here. Every one must know that his time is extremely valuable.
– He is being ruined.
– I do not see any sign of ruin here. It is all very well for an honorable senator to say that a Minister should be prepared to sacrifice everything, but we are all human, and we are not prepared to ruin ourselves. I see a number of persons getting £400 a year who would not earn it out of doors. I say that we ought to give up this time to the Government, and I would advise the Govern ment to give notice of their intention to ask the Senate to sit on Tuesdays for the future. I will support the motion in that shape.
– After the words of wisdom to which we have just listened, I should not have risen had it not been that an attempt has been made to make the country believe that the representatives of South Australia and New South Wales are continually running away instead of attending to their business.
– Some of the New South Wales senators do go away!
SenatorMcGREGOR. - Iamnotconcerned about the New South Wales senators, but I do wish to defend the representatives of South Australia. General remarks of this kind are unjust, because there are four senators from South Australia whose attendance here compares favorably with that of the representatives of any other State. It is very wrong indeed to lead the public to believe that the representatives of Australia are guilty of inattention to their duty. I am sure that you, Mr. President, Senator Playford, Senator Charleston, and myself, are as regular in our attendance as any one could be. If there are other representatives of South Australia whose business keeps them away we are not responsible. We, who do attend, ought not to be characterized as among those who run away from their work. When Senator Matheson was referring to the representatives of the two States I have mentioned, I could not help feeling a little aggrieved, although I was pleased at his remarks concerning the interjections of Senator Neild, who, I think, is the greatest transgressor in the Senate. He is not only a transgressor in the direction of running away, but, like a featherbed soldier, is always performing that kind of operation. I hope that Senator Neild will be found voting on the side of those who wish to maintain the rights of private members, because he has placed upon the noticepaper more motions than any other senator. If he votes in favour of depriving honorable senators who have private business of their rights he will be showing a want of sincerity, and proving to the public that in putting these motions on the paper he was doing so either for the purpose of advertising himself or of preventing those whose honest intention it was to bring forward these questions from having them discussed. It -is better for Senator Neild to attend here on the days on which private business is taken than to decorate with his moustache the footpaths of Paddington and the streets of Woolloomooloo, or to parade on some of the military promenades of Sydney in search of postage stamps or bootless soldiers, about which he had an opportunity of wasting the time of the Senate yesterday. I trust that the rights of honorable senators will be protected. If the Government require more time we shall be quite willing to give it to them. We are prepared to sit on Tuesdays, and as soon as the private business already on the paper is disposed of, the Government can take Fridays as well. Indeed, I believe that some of the representatives of South Australia would be quite prepared to give the Government Mondays also.
– I am not surprised to hear the leader of the labour party indulging in a kind of vindictive vomit, because I have recently had occasion several times to castigate him for his ill manners and his misconduct. Further than saying that I shall take no notice of him. I wish to express the deep sympathy which I feel for my honorable friend Senator Matheson in relation to the suffering which he has experienced in coming all the way from Western Australia to accomplish nothing.
– Who said I had accomplished nothing ? I did not.
.- The honorable senator informed us that he had come all the way from Western Australia and found that he could do nothing. I desire not only to sympathise but to coincide with the honorable senator ; and in that respect I do not think thatI could show my benevolence of spirit more appropriately. As regards the proposal to take next Friday for Government business, I do not know why there should be such anxiety as to my vote. I have not yet indicated how I shall vote. I have not promised to vote one way or the other. I suppose that because I was seen talking to one of the Ministers about a matter in his Department which had no relation to the question before the Senate, it was supposed that I was going to be hand in glove with the Government in, this matter. If 75 gentlemen in another place can get through their work in three days a week, I scarcely see the necessity for 36 gentlemen in the Senate to sit for as many hours.
– But Senator Neild is here and not in the other House - that makes the difference.
– That has something to do with it; but on the other hand the honorable senator ought to be very grateful that he is here at all. I have, no doubt that he is more grateful for his presence than Western Australia is. If 75 members of the House of Representatives can transact their business in three, days a week - and it is as large, if not larger than ours,’ the House of Representatives being the place in which most Government measures are initiated - I do not see why the Government in the Senate should require more time. If necessary we might sit a little later at night. As to sitting four days a week, I may point out that a great deal of time was wasted in the early part of the session. I have been in Melbourne four days a week when the Senate has only sat two. There is important business upon the paper, and I am not in favour of interfering with private business more than is necessary. The Government might very well, for instance, allow private business to be taken to-morrow. I would suggest that the motion should be altered so as to take in next Tuesday instead of Friday. I make that suggestion in all good faith. The senators from Western Australia, Queensland, and Tasmania have not the same facilities foi1 returning home, at- the week end as have senators representing the other three States.
– That is why they want to get the session over as soon as possible.
– It is not a question of shortening the session, but of getting through the business which the Government desire to transact. I, for one, respectfully raise my voice against the suggestion that senators from one State will not consider the comfort and convenience of senators from other States. I hope that there is a sufficient feeling of good fellowship and comradeship among the members of the Senate to induce them to meet the convenience of each other as much as possible. I am quite willing to give the Government four sitting days a week if necessary, but, on the other hand, it is to be regretted that honorable senators who have business on the paper for next Friday should be deprived of the opportunity of dealing with it, when the Government can achieve all they seek by taking next Tuesday instead. If it is in order, I should like to move to substitute Tuesday for Friday.
– I do not think that is relevant to the motion. The object of the motion is to rescind so much of the sessional order as gives precedence to private business on Friday. That is an entirely different thing from sitting .another day per week. I do not think that what the honorable senator suggests would be a relevant amendment.
.- Then the Government will only secure about two hours extra, and we have spent an hour and a half in discussing the advisability of giving them that time. Therefore, I shall not debate the question any further. But, supposing this motion is defeated, I would respectfully suggest that leave be given at once, without notice, to SenatorO’Connor to move that the Senate sit next Tuesday ; or he might give notice to-morrow. If that is not done I shall vote against the motion now before the Chair.
Senator O’CONNOR (New South WalesVicePresident of the Executive Council). - As to the suggestion of Senator Neild, I think he will recognise that, as the responsibility of arranging the business so that it may be done within the time allotted rests with the Government, the Government might be allowed some discretion as to the days upon which Government business should be done. I stated, in answer to a question put to me by Senator McGregor yesterday, that I propose to ask the Senate to sit on Tuesdays, beginning on Tuesday week. I mentioned Tuesday week for the very obvious reason that many honorable senators whose business takes them away from Melbourne ought to have some notice of the change of date. That is only reasonable. So far as the Government are concerned, we are quite willing that next Tuesday should be taken, but we think it only right and fair that the convenience of those honorable senators who may have made other arrangements should be considered. I altogether disagree with those who say that the convenience of honorable senators ought not to be considered at all. Our first duty is to do the business placed before us
That depends upon the work which is done in the other House, as well as on the work done here. So long as that work is done within the time allotted, it is right and reasonable in the case of a Parliament sitting under the circumstances affecting this Parliament, to consider as far as possible the convenience of those who have to attend here. We have two classes of senators - a class who can go home at the weeks’ end, and a class who unfortunately can not. We ought to consider all as far as possible. We should not deprive those honorable senators who can get home of the privilege and convenience of doing so. Honorable senators ask why in the early part of the session time was apparently wasted. The reason is obvious. What would have been the use of bringing honorable senators here on four days of the week when there was no more than two days’ work to do? In the early part of a session, there necessarily cannot be a great deal of work in this Chamber, for the reason that much of the business must, under the Constitution, be initiated in the other House- It is not that the Senate is of less importance or less capable, but owing to the limitation imposed by the Constitution the great bulk of the measures, which involve appropriations of money, must, be initiated elsewhere. Therefore, in the early part of the session, it is impossible that work can be provided to keep this Chamber occupied the same number of days as are subsequently found to be necessary. But immediately the occasion arises the Senate is asked to give more time for Government business. In that way only can we do the work which the country demands in the time allotted, and also study, as far as is consistent with the public interest, the convenience of honorable senators. This debate has lasted for considerably over an hour, and what has it all been about ? The motion asks honorable senators to devote next Friday to Government business, and I do not think that that is an unreasonable request. I quite admit that there may be one good result of this discussion. There have been suggestions made as to the way in which private business may be dealt with, and those suggestions are worthy of every consideration. I speak also for my colleague when I say that the suggestion to devote some hours of one day in the middle of the week - and possibly Wednesday would be better than Thursday - is one to which some attention ought to be given. The Government recognise that private motions are placed on the notice-paper because honorable senators honestly deem them to be of importance, and many of them are important. But it is a question of relative degrees of importance, and I say that those private motions are not so important as are the large measures of policy and practical legislation which must be passed before the session comes to a close. If we had unlimited time at our disposal, and could prolong thesession as much as we liked, the urgency of taking Friday for Government business would not arise. But honorable senators must bear in mind that the sooner we get through the business, the sooner will they be able to get away to their electorates. It would be grossly unfair, considering the immense area which many honorable senators have to traverse in their electorates, to keep them sitting one moment longer than is absolutely necessary. For that reason, it is essential that the Government should ask the Senate for an extra sittingday as soon as it becomes apparent that more time must be devoted to Government business. A suggestion has been made that this motion should be withdrawn, and Tuesday made a sitting day. I have already pointed out that, as to Tuesday sittings, I intend to give notice of the intention to commence them on Tuesday week. With regard to private business, I shall consider the suggestion to devote to it a portion of Wednesday, and, so far as my honorable colleague and myself can see at present, we regard that as the best way’ out of the difficulty, because it would insure a proper attendance of honorable senators. Under the circumstances, I hope- the Senate will pass the motion. I realize that the motion affects two honorable senators. Senator Dobson has given notice of a motion dealing with the amendment of the Post and Telegraph Act, but he is willing to give the time to the.Government. The motion also affects Senator Higgs, with whom I sympathizein the protest which he was bound to make. Nevertheless, I must present the motion in its present form, and ask the Senate to vote on it. Honorable senators have had considerable latitude in regard to private business since Parliament met, and only last week the whole of Friday was devoted to its consideration. I should also like to add a word to what has been said by several honorable senators as to expediting business by spending less time in discussion. I would rather do anything than attempt to lecture honorable senators as to the time they ought to occupy in their speeches, but I do think that if the Senate devoted itself to business with less discussion, and sat a little later each evening, we should get through a great deal more business.
– The hours of sitting are entirely in the hands of the Government.
– That is not so. Very often I should prefer to sit until eleven o’clock, but about ten o’clock many honorable senators show considerable anxiety to get away, and frequently, if we sit much after half-past ten o’clock, there is scarcely a quorum present. Under the circumstances, I ask the Senate to vote for the motion, in the belief that the arrangement which the Government will ask honorable senators to assent to for the conduct of both public and private business in the future, will be found to be satisfactory.
Question put. The Senate divided -
Ayes … … … 20
Noes … … … 9
Majority … … 11
Question so resolved in the affirmative.
Debate resumed from 29th July (vide page 2725), on motion by Senator O’Connor -
That the Bill be now read a second time.
– I have listened very attentively to the debate on this measure, and I think the speech made by Senator O’Connor, in submitting the motion, was not - as one honorable senator seemed to think - without very great weight, but was of a kind calculated to enlighten and influence the Senate in determining whether the. present is the proper time at which to pass this Bill. Honorable senators, so far, have viewed the Bill from one stand-point only. All have recognised that under the Constitution a High Court must be established, but they contend that the Constitution is not mandatory as to when action shall be taken, and that the present isan inopportune time to incur the necessary expense. Honorable senators have also contended that there has been no mandate from the people to establish a Federal High Courtduring the life-time of the present Parliament. But while there may not have been a mandate in the same terms as there was with regard to the establishment of a uniform Tariff within a period of two years, there, nevertheless, was a distinct direction that a High Court was to be established. The people who voted for the Constitution voted for it as a whole, and for every provision of it. It is quite impossible to imagine a Commonwealth, here or in any part of the world, without a court to, at any rate, interpret the Constitution and deal with matters of difference between State ‘ and State, and State and Commonwealth. While we all recognise the high character of the Supreme Courts throughout the States - while we recognise that the J udges in those Courts have proved themselves to be men of ability, integrity, and fearlessness - we cannot lose sight of the fact that they owe their allegiance to the States, and not to the Commonwealth. We desire to see every part of the Commonwealth complete, as early as possible, and I take it that the establishment of the High Courtis essential under the Constitution. It has been suggested that the Chief Justices of the various States might constitute the High Court ; but, as I have already pointed out, those gentlemen owe their allegiance, in the first place, to the States by which they were originallyappointed. The Commonwealth does not want to place itself in the position of having to depend on the States for Judges, when those Judges, although paid by the States, would have to determine questions affecting both the States and the Commonwealth. In the United States, the Judiciary has been regarded as one of the most important features of the Constitution. In a book entitled The Federation Manual, written by our President, I find the following statement - “ The judicial power must be co-extensive with the Legislature.” The Philadelphia Convention fully realized and gave effect to the principle that no Government should stand in need of any power to enable it to curry out its own resolutions ; that the majesty of the Federal authority must be manifested through the action of the Federal Courts ; and that a Federation must have all the means, and have the right of resorting to all the methods, of exercising all the powers of ordinary government.
That plainly points to the course which we ought to follow. The Commonwealth Parliament is intrusted with the power of making laws, and it is necessary to enforce those laws, and that enforcement should come from the Legislature of the Commonwealth itself. That end can only be attained by the Legislature appointing their own Judges, and making those Judges responsible to the Commonwealth alone. The High Court in the United States has had a most important influence on the American Constitution. Honorable senators seem inclined to regard our Constitution as the be-all and end-all - as comprising everything necessary for us to know and follow in order to administer the Commonwealth of Australia. But no matter how plain or distinct the Constitution may be, it nevertheless entails the necessity of interpretation from time to time, and probably at times the necessity of considerably extending the powers given therein. When the United States were founded, the Constitution was regarded by many men. as pointing out all the ways and all the means required for carrying on the Government: but as the circumstances and power of the United States changed and. grew, it became necessary to show that it was an elastic, and not a rigid Constitution which could not be expanded except by an amendment passed under most complicated and difficult circumstances. From a recently published book, entitled The New America, by Beckles Willson, I have taken the following -
For the people of America have, for nearly a century, agreed to consider themselves ruled by an inflexible Constitution, not to be amended or modified except by the method set forth in the instrument itself. That, of course, is a dein- sion.
And so it will be found to be a delusion in regard to the Commonwealth Constitution as years go by. Mr. Willson furthersays -
The unwritten and flexible American Constitution promises in time to be the greater power of the two ; the other destined, perhaps, to bear a similar relation to the whole as the unwritten portions of the British Constitution, such as Magna Charta, the Petition of Bights, the Habeas Corpus Act, the Bill of Rights, and the Act of Settlement.
In this book it is pointed out how the circumstances of the United States have changed since the Constitution was passed ; that it became absolutely necessary, in order to provide for the expansion of that great nation, that there should be some power to regard the Constitution not as laying down an inflexible rule to be f followed in all times and in all circumstances ; but rather as a Constitution which might from time to time, as the circumstances of the nation demanded and times changed, be so interpreted as to adapt it to existing conditions. -Our Constitution, as times roll by, will be dealt with in much the same way, and there will be only one tribunal to which we can resort for its interpretation, unless we go to the power of amendment, which honorable members know is a most difficult power to exercise, because it requires a majority in both Houses, a majority of electors, and a majority of States.
– How would thehonorable and learned senator like the Federal capital provision interpreted in thatway.
– The honorable senator thinks, perhaps, that I am going further than I really intend, because I am pointing out that as the occasion arises sowe shall have to adapt our Constitution to circumstances ; but this adaptation must be kept within certain limits and .certain bounds, and our Constitution will, as pointed out in the work to which I have referred, occupy the position, of Magna Charta, the Petition of Rights, the Habeas. Corpus Act, and the Bill of Rights, with regard to the future of our great Commonwealth. It is because I hold that view, and because I believe that it is necessary that we should have men who will be able to construe and interpret our Constitution from time to time, that I am a strong advocate for the establishment of a High Court. Some honorable senators contend that its establishment should be postponed- for the present and that we might take up the matter next session. It is possible that by that time there will not be .such an outcry for economy, and the States may not then be in so difficult a pecuniary position as they are in to-day. But I remind honorable senators that there is always danger in delay. The Federal Parliament has now been in existence for over two years, and it is about time that we set our house in order. While honorable senators deprecate the appointment of a High Commissioner and an Inter-State Commission, and one or two other institutions of government to which Senator Dobson referred, there is not one of these which equals iti importance the appointment of the High Court. Matters are now ripe, and waiting for attention and decision by the High Court, and I say by all means let us have our High Court to deal with them. I do not desire that we should delay this matter from year to year, so that legislation may have been passed by men in this Parliament who will have formed certain views in dealing with certain matters, and who, may afterwards be called to positions on the High Court Bench. If that course is followed these mun may be placed in the awkward position -of having to interpret a law in a way directly opposed to the principles they previously advocated. I do not say that it is impossible for men to do -that, but we should not desire to surround their work by any such difficulties. In my opinion, the time is now ripe for the establishment of our High Court. While I take this view I do not agree with the proposal originally made by the Government that there should be a High Court, having powers co-extensive with those of the States Courts, and that all Federal matters now dealt with by the States Courts should be brought under all circumstances before the High Court if the individuals interested saw fit. I recognised that by legislation of that kind we should be constituting a new court to do work which is already being well done by the Courts established by the States themselves. I was therefore very glad to find that a great deal of the jurisdiction originally proposed for the High Court was taken away from it, and it thereby became possible to reduce the number of Judges.
– I suppose the original proposal was made with a view of reducing the cost to the States?
– I question very much whether in effect it would have reduced the cost to the . States. In my opinion, it is better to give the States the opportunity of reducing the cost themselves. I may be told that in some of the States there is an excessive number of Judges.
– Certainly that is so.
.- That is amatter for the States to deal with. Honorable senators must bear in mind that in the States in which it is contended that there is an excessive number of Judges, the Judges have been appointed for life unless they see fit to resign, and there would be no saving of expense in taking away a portion of the work which they are called upon to perform, in order to thrust it upon another Court which would have to be supported partly by those States. So far as New South Wales is concerned, it is a fact that another Judge may have to be appointed before long. The Judges in that State have to work constantly, and they have very little time for recess or leisure.
– Where is the Chief Justice of New South Wales at the present time 1
– I am aware that he is away at the present time, but another Judge has had to be appointed to fill the position previously occupied by Mr. Justice Stephen, who is now acting as Chief Justice in the place of Chief Justice Darley.
– There is another Judge on the Conciliation Board.
.- That is so. Mr. Justice Cohen’s time is taken up entirely with the work of the Conciliation Board. At all events, in New South Wales the Judges are fully worked. While I hold that we should, as soon as possible, appoint the Judges of the High Court, I desire to see a Court appointed which, whether it be numerically small or large, will command the respect of the whole Commonwealth by virtue of its ability. Senator Dobson asked how we could expect a Court constituted of three Judges only, to carry weight in reviewing the decisions of a Court consisting of six Judges? I may remind the honorable and learned senator, in the first place, that six Judges seldom, if ever, sit in appeal. In the majority of cases three or four Judges sit in appeal and they do not always agree. We may have three Judges sitting in appeal, and two of them laking one view, while the third taking the opposite view concurs with the Judge whose decision is being appealed against. In such a case honorable senators will see that opposing views are held by an equal number of Judges. It must not be forgotten that in a majority of instances litigants may at their own option appeal either to ‘ the High Court or the Privy Council. While only three Judges are provided for under this Bill, if they are men of commanding ability their judgments will be regarded with very great respect. It is not the number of the Judges, but their ability and quality which must be considered. I say this without suggesting a single word in derogation . of the Judges of the States Supreme Courts, who are all, I believe, able, honest, upright and intelligent men. But honorable senators will know that when three or four men sit together to talk a matter over, though a majority may have come to a sevtain conclusion, it is very possible that the same men, after hearing further arguments brought before them as a Court of Appeal, may see fit to take a different view. So when a case is brought to a Court of Appeal the Judges have the advantage of hearing the arguments which have been heard by the Judges of the Court from which the appeal was taken, and they have also the advantage of hearing additional arguments and reasons which may nut have been submitted in the first instance. We shall have a High Court of three Judges, and while it is probable that they will sit in appeal in cases heard by States Courts consisting of three Judges, if. they are men of ability, integrity, and honesty of purpose, their decisions will be received with the same amount of respect as would be the decisions of a Court of Appeal consisting of five Judges.
– It may be a judgment of two to one.
– That may be so, but if the Court consists of five Judges the judgment may be a judgment of three to two. It does not matter what number of J udges we have, in many controversial and doubtful matters there will always be differences of opinion. I am not one of those who advocate the taking away of the right of the people to appeal to the Privy Council. Notwithstanding all that may be said of the position of the Privy Council, and their want of knowledge of local circumstances, I say that when we send to that Court questions of law and of interpretation, we send them to a Court which is constituted of some of the ablest men in the Empire, and there is very great advantage in being ableto appeal to those men. Some people may prefer to appeal to the High _ Court. I would let them do so, but I do not believe in taking away the right of appeal to the Privy Council except in matters of constitutional interpretation, which I allow should be dealt with by our own Judges.
– The Constitution provides for that.
– That is so. We are confronted with another difficulty in dealing with this measure in the question of the salaries to be paid to the Judges. We have been told that we are proposing to pay very high salaries, . and that the States are paying very high salaries. Wemay admit that, but the question is : Are we going to have the very best men obtainable on our High Court Bench ?
– Why pay more than is paid in New South Wales ?
.- New South Wales pays her Chief Justice £3,500, and gives him a retiring allowance of seventenths of that salary after fifteen years service, and if he should break down twelve months after his appointment he is permitted to retire upon seven-tenths of that salary.. The Puisne Judges get £2,600 a year, with retiring allowances of seven-tenths of that salary in the event of their being so unfortunate as to be unable to continue their -work.
– After a. certain time.
– No. I have at present in my mind the case of one J udge who was on the New South Wales Supreme Court Bench for not more than three or fouryears at the outside, and whose state of health then rendered it necessary that he should retire, and that gentleman is now living inthe receipt of the very liberal pension, allowed him.
– Does the honorable and learned senator think that is. desirable? .
.- I do think it desirable in order that we may secure the best men. I think that the Government should be careful in selecting the men to be appointed to the High Court Bench to see. that they are men’ who are not worn out, but men who have health, vigour, and a long life before them, and who may reasonably be expected to remain on the Bench for the full period. It is a notorious fact that the Chief Justice of New South Wales made a very great pecuniary sacrifice in accepting the position which he occupies today. He at first declined the appointment, but when it was suggested that it would be patriotic of him to take the position, the circumstance which enabled him to surmount thedifficulty of the smaller income -was the fact that he would be entitled to a pension, and that he would have some provision for himself and his family when he retired from the Bench. I do not suppose that his case is singular. We know that many of our barristers are able to earn from £6,000 to £7,000 a year. Of course when their health breaks down, their earning power is gone, and they may be induced to work too hard and so break downearly. But if we offer a man an assured position in which he will get a good salary with a provision for the payment of a pension should he break down, there is a great incentive to him to accept the appointment which, though it will carry with it a lower remuneration than he has been accustomed to earn, will give him dignity, and secure for him the respect of the whole community in which he lives. If the applicants for positions on the High Court Bench are, as they always have been in the case of our States Benches, men of honour and integrity, they will thus be given every inducement to serve the community loyally and well. I therefore contend that we shall make no mistake by paying high salaries, and making these positions as attractive as we can.
SenatorFraser. - If we commence with high salaries to the Judges, we shall have to pay high salaries throughout the civil service.
-Not necessarily, because wo are looking here for men of exceptional ability and attainments. We get down to bedrock in the question - Do we desire to secure the best men available ? If we do we must pay them well, and the money will be well spent. In the State of New South Wales a gentleman was appointed as Railway Commissioner at a salary of £3,500 a year. That was thought at the time to be a very high salary to pay for the position, but some of ‘ the principal advocates of economy and comparatively low salaries have since made the admission that that man was worth £10,000 a year to the State of New South Wales.
– He was a world’s expert.
– So I say with respect to our Judges. I hope we shall not leave the matter in such a position that, should a vacancy occur in the Chief Justiceship of Victoria, New South Wales, or the Commonwealth High Court, a qualified man, on looking round him, will be able to decide that it will be better for him to take the Chief Justiceship of the Supreme Court of New South Wales or of Victoria rather than that of the Commonwealth High Court, because he will feel that by so doing his future will be better assured. I hope, also, that the matter will not be left in such a position that a Chief Justice of the Commonwealth High Court may be induced to leave the service of. the Commonwealth to take up a more remunerative and, in some respects, a more dignified position as the Chief Justice of a State. When I speak of a more dignified position in this connexion, I refer to the fact that the Chief Justice of a State holds the position of Lieutenant-Governor, the highest position to which a man can attain in a State, in the absence of the State Governor. I therefore urge upon honorable senators that they should do what they can to make the High Court Bench as attractive as possible. The occupants of the High Court Bench will fill the most prominent positions in the legal world that
Can be occupied by any men in the States of Australia. They can make no choice, but will have to deal with all the business brought before them, and we must have men of ability, energy, integrity, and fearlessness. We require all these qualifications in our High Court Judges, and to secure them we must have the best men. We should have the best men because upon our Judges will devolve the interpretation of the Constitution. One honorable senator has suggested that the Murray River question may give rise to a dispute between two States. At the present time there is no court in which such a question could be dealt with unless the Imperial Parliament chose to legislate upon it.
– The States Premiers must deal with it.
.- The States Premiers may agree to what they like, but their respective Parliaments must also agree, and that is where the difficulty comes in. Each Parliament will look not so much to abstract principles of justice as to the interests of its own State.
– We can appeal to the Privy Council.
– In what court would the honorable senator commence proceedings ? I am not aware of any court existing at the present time which could deal with such disputes except the Imperial Parliament, which might legislate, but which, I think, would be very loath to legislate in any matter interfering with the rights of States.
– How could a South Australian court deal with the Murray bej’ond the borders of South Australia ?
.- There may be a dispute in connexion with this matter betweenNew South Wales and South Australia. New South Wales may claim a right to the waters of the River Murray, as it forms her southern boundary, and Victoria may tap the river, holding that she has a right to the waters «’hich run by her boundary. Who is to determine such a question, and what State Court could deal with it ? If it were possible for a State Court to deal with it, I ask honorable senators to think of the imputations which might be suggested.
– Suppose the question were referred to the Supreme Court of Victoria, people would say that that court was naturally biased in favour of its own State?
– But the Judges of the High Court will be appointed from one State or another in any case.
– We desire to prevent the possibility of any such imputation being made. When we have a court with the right of appeal, and a power for the enforcement of law and order, we shall have a means of settling these matters, which, if the States were independent, might have to be referred to by the arbitrament of the sword. Therefore, we need to make our Judges independent.
– The Government should select the best of the States J udges for the positions, and in that way reduce the number of States Judges.
– The Government cannot do that.
– It could be done by Bill, of course.
.- The Government cannot take a Judge from a State unless it is willing to part with him and he is willing to go.
– The States are willing enough.
– Suppose that there are some States in which there is not enough work for the Judges to do, and that there are other States in which there is more work than the Judges can do. If we take the Judges only from the former States we shall do so not because they were recognised as the most able in the Commonwealth, but because they had the least work to do. Would not that be absurd t
– At all events, we should get trained men, not novices.
.- Yes ; and I hope that trained men will be obtained for the High Court.
– They will go direct from the Bar.
– In nine cases out of ten a barrister goes straight into the position of Chief Justice without the preliminary training which my honorable friend talks about.
– But he may have been an advocate all his life.
– I presume that the J udges of the High Court will have been advocates all their lives. Who may be appointed I do not know. I hope that honorable senators will realize the fact that the time has arrived when the High Court should be created ; that the Judges should be remunerated liberally, and that a Judgeship in that court ought not to be less valued or less desired than a Judgeship in a State Court. The dignity and the honour of the position will be regarded, because all men do not look entirely at emolument. Unfortunately, some men have to earn bread and butter for their families, and prudent men will consider all these things before they accept a position of the kind. I notice that the head-quarters of the High Court are to be at the seat of government when the Federal capital is established, and in the meantime in such place as the Executive Government may see fit to appoint. Since New South Wales is the mother State, in which the seat of government is to be located, and the probability is that the greater portion of the work of the High Court will arise in that State, the Executive Government should, I think, select Sydney as the head-quarters of the court. We know that there is a feeling abroad that everything is going to one centre, and not to the centre iu which the seat of government is to be finally established.
– -What does the Constitution say?
-Col. GOULD. - It says that the seat of government shall be in New South Wales, and that the Parliament shall sit in Melbourne until it can be removed to the Federal capital. I do not wish the honorable and learned senator to imagine that I make this suggestion because I wish to deprive Victoria of ‘anything to which it is entitled. I should prefer to see a fair distribution of the offices amongst the States, in order, as far as possible, to get rid of that wretched feeling of jealousy which still exists between the States.
– Give Melbourne the temporary seat of government anyhow.
.- I shall not go into that question, but I may mention that the suggestion that the head-quarters of the High Court should be in Sydney has been discussed in New South Wales.
– I do not propose to speak at any length, because I recognise that this is a Bill for lawyers, rather than laymen, to discuss. I wish to state the reasons why I intend to vote for its second reading.
– I am astonished.
– I know that it is called a Bill to create fat billets. Surprise is sometimes expressed that a member of the labour party should vote for a Bill which creates fat billets. In every State, except Western Australia, the labour party opposed the acceptance of the Constitution Bill. Therefore, it cannot be said that it was a means of imposing the Constitution upon the people of the States. We recognise that the people voted for the acceptance of the Constitution, and thereby said that they accepted all, and not some, of its conditions. In Western Australia ,the labour party supported the Bill.
– The Constitution does not say that the High Court must be established in 1903. 7 h 2
– The people of Australia voted for the acceptance of the Constitution Bill with all its provisions, and one provision was that a High Court should be established. If they did not know what a High Court meant- and I do not know that any honorable senator is prepared to say that - they must have been very dense, because for many years legal men had been explaining to audiences the power and the scope of the Court, and every section of the Constitution Bill had been discussed on the platform and through the press. I venture to say that every elector knew that when he voted for its acceptance he was committing himself to certain expenditure. What a peculiar position those persons take up who, now that the Constitution has been accepted, say that a separate referendum must be taken on every one of its principles - on the question whether the High Court should be established, and also on the question where the Federal capital should be located - simply because a sudden spasm of so-called economy has seized certain people. The time to object to the creation of the High Court or to say that Australia could not afford the expense of another court, was when the electors were asked to accept the Constitution. In the Eastern States the labour party pointed out that it meant the creation of another court. The people did not listen to that argument. In Victoria the people repudiated the argument by a tremendous majority ; although it gave the biggest majority in favour of the establishment of the Commonwealth. Yet some of its representatives are turning round and saying that, although they accepted the whole Bill, they did so with mental reservations ; and now they are asking us practically to strike out a certain portion of the Constitution. I do not suggest that the people of Victoria accepted the Constitution with mental reservations. I was very much surprised that when two senators invaded a Victorian constituency to denounce the High Court Bill they met with anything but a flattering reception ; in fact, although their friends were present in large numbers on the platform, the meeting carried a resolution in favour of the establishment of a High Court. In what Ia,in saying I refer not to the people of Victoria, but to ite press and to some of its representatives. I am very glad that Senator O’Connor did not push too far the analogy between the High
Court of Australia and the Supreme Court of the United States, because in my opinion it has been pushed too far in certain quarters. The difference lies in the fact that the people of the United States have a Constitution which practically cannot be altered.
– It has been altered very often.
– It has been altered on only seventeen occasions by direct amendmentand some of them have been very minor amendments - but it has been developed by the Supreme Court. A vast number of constitutional alterations have been blocked by the various States Legislatures. It is admitted that it is almost impossible for the people of the United States toalter their Constitution. That is not the case with our Constitution, and that is why I think some persons in advocating the establishment of the High Court have pushed the analogy of the Supreme Court of the United States a little too far. I do not look upon the High Court as being absolutely essential to develop our Constitution.
– The only difference is that it is easier to amend our Constitution than the American Constitution, but still it is very difficult.
– It may very well be urged that it is just as necessary for Australia to have a High Court to interpret its Constitution as it is for the United States to have a Supreme Court to interpret its Constitution. I do not think we should accept the view that the High Court is going to develop the Constitution.
SenatorFraser. - That would not be allowed.
– I trust that the people will develop the Constitution themselves. I also support the second reading of the Bill, because I represent one of the smaller States. I can quite conceive that occasions may arise when the smaller States will have to depend as much on the High Court as on the States House. For instance, the Murray River question will have to be dealt with by the Parliament. Undoubtedly litigation must arise out of its legislation, andthe question will have to be dealt with by the High Court. Take the case of the railway to Western Australia, which is isolated from the rest of the Commonwealth. The right of freedom of commerce is safeguarded to us by the Constitution, but here is South Australia saying - “ Although the rest of Australia may be prepared to give you railway communication, we shall refuse it to you.”
– Has Western Australia paid for any part of our railways ?
– That is not the question. Assuming for the purpose of argument that Victoria, New South Wales, Queensland, Tasmania, and Western Australia favour the construction of a Federal railway to Western Australia, South Australia can say - “We refuse to consent to its construction.”
SenatorFraser. - The honorable senator knows that South Australia would not do anything of the kind.
– It has been done.
– That is under the Constitution.
– It is doubtful whether under the Constitution South Australia has that power. This question has been argued and decided by the Federal Courts in the United States. Although, perhaps, the provision in the American Constitution is not similar to that in our Constitution, still it can be very well argued that the denial’of the construction of the railway would be an interference with the freedom of trade between the States.
– The trade is conducted by sea and not by railway.
– If the honorable senator will refer to the Constitution he will find that railway transport is included.
– For defence purposes?
– No. The Inter-State Commission will have power under the Constitution to interfere with freights on State railways, because it was recognised that State railways may be used as a bar to freedom of trade with other States. There is a case which might arise, and which would need to be determined by the Federal High Court. I should not like to- see a case of that kind dealt with by any court outside Australia. Neither should I like to see the Murray River question settled by a court outside Australia. We require a constitutional interpretation upon those two cases, or any cases like them, by a court having knowledge of the local conditions, and affected by the local colour. I can quite understand another kind of case which might very well give rise to a legal question. It was mentioned by Senator Playford some weeks ago, when we were dealing with the Sugar Bounty Act. He commented in strong terms on the action of the Government in keeping back from the States certain moneys which should have been paid on account of rebates on sugar, but which were withheld with a view to substituting a population basis for a consumption basis of payment. ‘ Parliament has since passed a retrospective law to make legal that action of the Government. Suppose Parliament did something of that character and that the larger States were in favour of what was done. In the Senate the larger States might secure a majority of the votes. Indeed, only one State might be aggrieved. That would be a matter in which the smaller State, although unable to secure justice in Parliament - even in this States’ House - would be able to go to the High Court. A case of that kind certainly ought not to be dealt with by any such conglomerate court as has been suggested by Senator Styles. It is certainly a purely Australian matter, and should not be remitted to a court outside Australia having no knowledge of the local conditions. How would Senator Styles’ imaginary court work ? Senator O’Keefe mentioned a fisheries case which might have to be settled by the High Court. Senator Styles said that a court for the purpose could be constituted by Judges from Queensland, New South Wales, arid South Australia. But we do not know that Judges from those States would be available. Here would be a case involving an important dispute, and the Commonwealth Government would have to go tour- ing round Australia in order to find Judges to settle the question.
– The case would involve about two tons of fish.
– It does not matter what the amount in dispute is. The real question is the principle involved. The amount in dispute may only be 6d. or Is.
– Some of the greatest principles have been laid down in cases involving £5 or £10.
– The question of the right of Australia to pass such legislation as that which has been enacted in reference to a white Australian policy, was settled in reference to the case of a single Chinaman - the case Ah Toy versus Musgrove. Suppose that some of the States had a few available Judges, and were willing to lend them to the Commonwealth. Then, the Judge selected would have to be brought, say, all the way from Queensland, and the Commonwealth would have to pay his salary and his expenses for the journey. Perhaps he would have to go to Tasmania or to Perth, and would have to take functionaries with him from the State Court.
– Once a year.
– That depends upon the number of cases arising. But even if the Judge had to travel only once a year, one can see that the travelling expenses would amount to a considerable sum - almost as much as would be required to pay the salaries of the Judges of the High Court.
– And then we should only get a scratch team.
– That is so. It is extremely unlikely that we shall be able to get the Judges whose services the Commonwealth wishes to secure. TheWestern Aus* tralian Bench is working at high pressure. More than that, is it likely that Western Australia would pick out its best J udge and send him to. decide a Commonwealth case, leaving second-rate Judges to deal with State cases?
– In Victoria all our Judges are good.
– Necessarily some Judges are better than others.
– The Judges must be personally appointed by the Commonwealth Government under the Constitution.
– Of course, it is possible that some States Judges might be appointed, provided that the consent of the States was obtained. They could be appointed temporarily.
– Look at the dissatisfaction that would be caused if the Commonwealth appointed a Judge whom the State wished to keep.
– The Pederal Government would have, first of all, to inquire where there was a J udge to spare, and then it would have to appty for his services, after which the State Government would have to determine whether it would lend him.
– There is no power under the Constitution to appoint a Judge for a particular purpose. He must be appointed to hold office during good behaviour.
– That depends upon the Act of Parliament.
– It depends upon the Constitution - we cannot go outside that.
– Senator Zeal has issued some figures with regard to this question, but I do not know that they are reliable.
– I took them’ from the States’ Estimates.
– I have seen a Western Australian criticism which rather shakes my faith in those figures.
– Is the total right?
– That is right ; but Senator Zeal lumps together sums in a very misleading manner. He puts down £5,900 for Judges in Western Australia. That is correct as far as it goes. Then he puts down a sum for expenses and associates’ salaries. Any one reading “the return would naturally say that the sum there put down was for Judges’ expenses and associates’ salaries only.
– Supposing that that is all wrong - how does it interfere with the argument ?
– It gives the impression that the Judges’ expenses and associates’ salaries come to a greater amount than the salaries of the Judges. Any one reading Senator Zeal’s return, and then looking at this Bill, would say - “ Here is a sum put down for the salaries of Judges, but I do not know whether the salaries of their associates and their expenses will not come to more than the amounts to be paid to the Judges themselves.” Consequently the return is unreliable. As a matter of fact, under Judges’ expenses, Senator Zeal includes all the salaries of the officers of the court, contingencies, and so on. He puts down a further sum of £1,890 for miscellaneous expenses, under which he brings in all the officers connected with the Bankruptcy Court of Western Australia.
– Is not that part of the jurisdiction ?
– If a return of this kind is to be of any value as showing what the High Court will probably cost, it should be most carefully prepared, and should give more details. There is a party which has attained to some power in Victoria - not, I am glad to say, in the other States- and which is known as the Kyabramite party.
Its members oppose this Bill. They meetin various parts of the State, and pass stereotyped resolutions with regard to what’ they allege to be Federal extravagance. They were invited by the Prime Minister to point out items of extravagance. They attempted to do so, but only exposed themselves to a very severe criticism.
– There was the transcontinental railway, to which they objected.
– The newspaper which supports Senator Fraser included the transcontinental railway in the Federal capital expenses. To show what extravagant people we are, it actually said that we contemplated spending within ten years about £17,000,000. In that was £9,000,000 for a railway from PortAugusta to Port Darwin. That shows the nature of the criticisms which have beendirected against the Federal Parliament. I am anxious to see what attitude will betaken by those honorable senators whosupport the Kyabramite movement when the Naval Subsidy Bill comes up for consideration.
– That is a very good bargain. It is not extravagance.
– The High Court Bill is no more extravagant than is th& Naval Subsidy Bill. The one is an insurance of peace in the same way as a Bill providing for the administration of justice, is an insurance of peace. I take itthat the idea of our judicial system is the keeping of the peace between litigants, and between States and Commonwealth. I donot intend to occupy more time except to say that I shall support the second reading of the Bill, because I believe that the people of Australia are desirous of seeing aHigh Court established. I do not see that, in establishing a court to settle InterStatedisputes which may arise from time to time, we are doing anything in the nature of extravagance. The High Court is, indeed,, a necessary concomitant of a federated country.
– It is recognised that this measure will be carried in the Senate by an overwhelming majority.. At the same time, I deem it desirable,, in view of the fact that I propose tovote against the second reading, to makeone or two comments for the purpose of defining the position which I take up.. I desire it to be distinctly understood that I do not join with those who. have attempted to depreciate the important character of the High Court. I recognise it at once as one of the three potential factors of the Constitution. I recognise that it is practically co-ordinate with the other two factors - the Executive -and the legislature. I recognise, moreover, that it is necessary that we should in due time constitute a High Court. The feature which the High Court introduces in our Constitution is an innovation - indeed a novelty - so far as British Constitutions are concerned, lt is a feature which we have borrowed from the American Constitution. We have been accustomed, according to our notion of British ideas in the working of responsible government, to almost complete omnipotence being conceded, so far as the British Parliament is concerned. There is practically no curtailment of the power -of Parliament. Following out the same principles in the working of our colonial Constitutions, we have practically none or but few limits. But now, according to the terms of our Federal Constitution, we -are constituting a sort of arbiter, or, if honorable senators will so put it, an authorized interpreter ; an arbiter practically to settle matters of difference between States and Commonwealth, and to ascertain exactly what are their respective constitutional powers and rights, and generally an authorized interpreter of the Constitution for the purpose of preserving its power and assisting in its due working. This Constitution contains, therefore, a feature which enables that great factor of the High Court to which I have referred to declare void Acts of the Commonwealth or of States Legislatures, so far as one may attempt to infringe upon the other. As has been very properly said - and I emphasize this in view of the remarks of Senator Pearce - the terms of the Constitution are such that it must not be regarded as a cast-iron structure.
– It is pretty rigid.
– It is very rigid in some respects, but if we examine it we discover there are other provisions of great elasticity, and it is in regard to those that the high and important functions that are delegated to the High Court operate. In my opinion, it will be the duty of the High Court, as in the case of America, to interpret and develop the Constitution. If honorable senators refer to section 51 - and that is what I had in my mind when I made the interjection in’ the course of Senator Pearce’s remarks - they will see it there provided .that this Parliament has power to make laws “for the peace, order, and the good government “ of the Commonwealth, with respect to, amongst other matters, trade and commerce with other countries, taxation, bounties, quarantine, bankruptcy, marriage and divorce, service and execution .of processes throughout the Commonwealth, the recognition throughout the Commonwealth of the laws, the public acts and records and the judicial proceedings of the States, and conciliation and arbitration. Some 39 articles are set out under section 51 in the tersest of language, each covering a wide range, and each, as in the case of America, involving enormous work in order to ascertain what they mean, an ito develop them in such a way that they will be completely consistent with the Constitution. On many of these subjects which have been adopted from the American Constitution, volumes of precedents have already been created ; and consequently the functions of the Commonwealth High Court will be to follow largely what has been done in the great Republic.
– Is that not a strong argument for the necessity of the High Court?
– I am conceding the great and important functions which are delegated to the High Court ; and I want to indicate that I am not with those who are endeavouring to depreciate those functions. I am contending that this Constitution, as in the case of America, is not the mere Constitution prepared by the people or by the Convention, but that that great document practically laysthe foundation, and the duty of the High Court is to develope the superstructure. I do not suppose that in constitutional matters anything could be more interesting than to observe the development of the United States Constitution by those great and eminent Jurists, Chief Justices Jay, Marshall, and Taney, particularly the two latter, who, between them, occupied the position for something like 60 years. I feel that the High Court, by the appointment of able and eminent men, such as I hope we shall get, will become a great national authority, whose chief and important duty will be the preservation of State rights and the development of the Constitution. I have made these preliminary remarks because I wish it to be realized that I am fully seized with the importance of the High Court in this connexion.
– Is the honorable senator in favour of the Bill ?
– No ; I am going to vote against this Bill.
– The honorable senator is making a “Yes - No” speech.
– I am doing nothing of the kind. I am simply, in fairness, admitting the important functions of the High Court. What I realize, and what is felt, in the State I represent - and I have a right to represent that opinion here - is that we have been crushed by adversities of a serious character, and that as a High Court is not a matter of urgency, the time is inopportune for the introduction of this measure. At this early stage in the history of the Commonwealth, it is. not essential to create a High Court when we have in the States the necessary machinery for efficiently carrying out its functions. The present or immediate necessity for a High Court has never been demonstrated. We have had experience of the working of the Commonwealth for something like two years and a half; and during that time there has been too great a disposition on the part of Parliament to hurry legislation. “During that time measures have been passed, which might, with every legitimate reason, have been extended over a greater period ; and the impression seems to obtain that it is essential for everything contemplated by the Constitution to be brought into existence at once.
– How often has the honorable senator read that in the Aye and Argus 1 Nearly every day ?
– - I do not care what I read in the ‘Age or the Argus. This is. a matter in which the public are entitled to some consideration ; and honorable senators are not justified in ‘ despising public opinion, when it is definitely, firmly, and legitimately expressed. Senator McGregor is at perfect liberty to represent any view he likes. I am not one who is prepared to despise public opinion ; and the financial distress,. which has brought that public opinion into existence, is entitled to some consideration in this Chamber. If Senator McGregor will demonstrate the immediate necessity for the establishment of a High Court - if he can prove conclusively that the State machinery now at work under a measure passed by this Parliament cannot effectively carry out the functions. of a High Court for the next five years - he will convince me that the Bill should now be passed.
– If a High Court bepart and parcel of the Constitution, why not create it t
– I admit that a High. Court is part and parcel of the Constitution. Senator Pearce and others have pointed out, and nobody will deny, that when we accepted the Constitution we accepted a High Court ; but I do not agree with the view that we have a’ mandate from the country to immediately create such a tribunal. Ora this point I read the Constitution to mean that as soon as we, as a Parliament, feel that it is necessary to create a High Court, then it must be created with dueregard to all our circumstances and conditions. This .is a matter essentially for the discretion of Parliament, governed entirely by necessity when it arises. In thecase of the Customs Act, the Constitution imposed a time limit, specifically providing that within two years there must be a. uniform Tariff. But there is no time limit in the regard to the High Court ; and I feel certain, from the experience of the last two years and a-half, and from my knowledge of the legal machinery of the States, that the necessity does not now exist for the introduction of this measure. Of course it may be argued that in the United States ife was felt necessary to introduce their SupremeCourt.measure very early - some two years, after the final Constitution was settled.
– I think it was in the first session.
– If I remember rightly, the. final Constitution of America wassettled in 1787, and the Supreme Court wasestablished in 1789.
– It was established in the same year that Washington was installed as President.
– I do not regard- that as a precedent which we are bound to follow,, for the reason that the circumstances of thetwo countries are entirely different, having; regard to the War, the independence of America as a nation, and the immediatenecessity for the settlement of treaties. In addition to which there was no Privy Council available as a Court of Appeals as is the case in Australia. In Canada, though I speak subject to correction, I believe that to this day there are no special Federal Courts established for the purpose of dealing exclusively with Federal matters. The Constitution of Canada is in many essentials almost on a complete parallel with our own, and yet in that country the principle is adopted of utilizing the States Courts, with,perhaps,oneortwo additional courts to deal with Federal and other matters. That principle has already been laid down by this Parliament by the passing of the Act Number 21 of 1902, which temporarily provides for enforcing claims against the Commonwealth, and under which the Supreme Court of each State is invested with Federal jurisdiction for the purpose of hearing and determining actions and suits. We have availed ourselves of the State legal machinery, and with great success. It is true that that Act terminates on the 31st December, 1903, but while it has been in operation it has justified itself in every way. It has been urged that it is unsatisfactory that it should be necessary to take appeals to the Privy Council ; but in the only case in which that course has been found necessary - the case of * -Gadd* v. Kingston - the Commonwealth has nothing to complain of. The Privy Council showed itself eminently and intimately acquainted with our conditions, and gave a judgment which, I venture to say, -those breathing the atmosphere of Australia could not have given more satisfactorily as having regard to our exigencies -and conditions.
– Notwithstanding all that has been said about the Unfitness of the Privy Council.
– Senator Pearce expressed a preference for a court with some local colour ; but I am not at all satisfied that that is -necessary. The facts and alrcumstances of a case having once been ^stated, and the law having been properly brought before the tribunal, the eminent members of the Privy Council, with their varied experience, are specially qualified to deal with questions of the kind likely to come before them. It is desirable that, as soon as our circumstances permit, we should establish a High Court in pursuance of the terms of the . Constitution ; but what I am urging at present is that we should hasten slowly. The operation of the temporary Act already referred to might be continued for five years, and it would be time enough in 1908 to introduce such a measure as that now before us. It has been urged that some temporary or makeshift courts might be created. I do not lay too much stress upon that view, because I admit the grave and important difficulties in. the way. At the same time, if the same ingenuity were exercised in arranging with the States for a High Court that has been exercised in meeting the arguments against this Bill, it is probable that something satisfactory might have been established and settled before now. What is more in this connexion, I do not suppose there is any man ‘more highly qualified to speak upon State and Commonwealth matters than is Sir Samuel Griffith, the Chief J ustice of Queensland, and, if I remember rightly, it was his suggestion that we should have courts created and supplied by our own local States Courts. While I admit there are difficulties in the way, I do not suppose for a moment that they could not be easily surmounted by mutual arrangement, but in such a matter, of course, there must be a mutual arrangement between the States. Our State Judges should, I feel, be vested with Federal powers and authorities for some few years to come. Speaking for Victoria, of which I can speak with some, experience, the State Judges are men of eminence, erudition and legal ability, men who are highly qualified, and whose integrity and honour has never been doubted. My honorable and learned friend, Senator O’Connor, while prepared to admit so much, yet felt that if they were permitted to exercise Federal authority they might probably in some way be swayed by State influence.
– Unconscious bias.
– I think that argument is not either a valid or a fair one. . As a matter of fact, these Judges appointed by the States are daily engaged in dealing with matters between the Government and the subject, and no one suggests for a moment that they show any partiality to the Government by reason of the fact that they draw their salaries from the Government.
– They are independent of the Government.
– They are quite independent.
– Their oath prevents them also.
– Apart altogether from that, if it can be argued with any degree of reason that they would show State partiality, surely it may be urged against the Commonwealth Judges with equal force that in matters of difference between the Commonwealth and the State the State might never expect any fair judgment, because the Commonwealth Judges will be prejudiced in favour of the Com monwealth Government by whom they are appointed, and from whom they. draw their salaries. In addition to. that, if my honorable and learned friend tests the ability of the Judges about to be appointed under this Bill as compared with those already holding office in the States from the point of view of the salaries they receive, which is one of the arguments which has been used all along, then the State Judges drawing larger salaries, and enjoying pensions in addition, may be held to be of greater ability than those about to be appointed under this Bill. This is an argumentof which I do not approve for a moment, but I am seeking to show that the State Judges are men who are eminently qualified to discharge, at least for some four or five years to come, the duties about to be discharged by the Judges of the High Court. In these circumstances, I take the opportunity of saying that I do not at all approve of the amendment moved by my honorable friend,. Senator Zeal. If judges are to be appointed to a High Court under the terms of this Bill, we can from the Federal Parliament secure some of the most eminent and qualified men for the positions.
– The honorable and learned senator is familiar with the Officials in Parliament Act of Victoria.
– The honorable senator is referring to the provision preventing the appointment of a man who has been within six months a Member of Parliament. What I am urging is that we should not attempt to do ourselves the injustice of depriving ourselves of the eminent and highly-qualified services of some of the best men within the limits of the Commonwealth.
– Because they happen to be in Parliament.
– Because they happen to be in Parliament, and because they happen to have done great service for the Federation. I think in that connexion, whether we rely upon our own J udges for the per- . formance of these highly-important constitutional and legal duties, or whether we secure the appointment under the terms of. of this Bill of other persons, we shall, in either case, have reason to feel that justice will be done as between the Commonwealth and the States, and as between the States, themselves and their subjects. The Bill is. not so complete as I should like to have seen it, and I should much prefer to have waited for a further period of years in order that we might have secured a more complete measure, and- a more completecourt. There is one feature which I will mention before resuming my seat. It has been stated, amongst otherarguments, that this Court will constitute an Appellate Court, and one which will probably be’ freely resorted to. Much as I admire the ability and attainments of those who I feel will be appointed under the terms of this Bill to the High Court Bench, I am not prepared to believe that there is any great likelihood of their being more eminent than those who at present occupy the Supreme Court Benches of the States. Taking the State of Victoria merely for the sake of illustration, we may have five or six Judges dealing with grave and important issues, and an appeal may take place fromsuch a Full Court as that to the proposed High Court.
– How many District Court Judges are there in Victoria?
– We have no District Court Judges; they are called County Court Judges in Victoria. But I am referring now to our Supreme Court Judges,and I say that it appears to me anomalousthat there should be a power provided in this measure to enable one party to a suit to appeal from the considered judgment of five or six learned and experienced State Judges to three Judges, who may happen, for the time being, to constitute the High Court of Australia.
– Why not constitute a High Court of five Judges ? That is the answer to that.
– I am dealing with theBill as I find it, and I say that the effect of such a provision will be unjust to litigants, and that it is an unreasonable thing to propose. I do not, in saying this, desire to’ cast the slightest, reflection on those who are likely to- constitute the High Court;: but during the speech, delivered by Senator
O’Connor I interjected that, to my mind, this provision constitutes an anomaly, and it is one which I think should not be allowed to remain in the measure. I have nothing further to say, but I again express my regret that this measure should have been submitted at this juncture, as I feel that the time is essentially inopportune for its introduction.
– I do not propose to say very much. Although I understand that there is a majority in favour of the Bill, the measure is one upon which honorable senators should speak their minds, and it is for that purpose I rise to say a few words. I probably addressed the electors during the election for the Senate more often than any other honorable senator in this State. I spoke at about 40 different places, and referred to the appointment of the High Court at each. I stated that in my opinion the Court should be composed of the ablest men in the States. I went even further, and suggested that the Chief Justices of the Supreme Courts of the various States would form a very good High Court. I did not find the slightest opposition expressed _ to that view at any place. A similar view has been put forward by others as well as by myself, and Sir Samuel Griffith, who has had a great deal ito do with Federal matters, and is also an eminent Supreme Court Chief Justice, has advocated something on similar lines. It is, therefore, perfectly idle to say that no such course could be adopted. I do not contend that the establishment of the High Court should be indefinitely postponed. I have never said so. agree that it is one of the constitutional obligations which, like the provision for a Federal capital, will have to be dealt with at some reasonable time. But I do say that there is no reason for the least haste in the matter. I am glad to find that eminent legal gentlemen in the House of Representatives have taken the same view. I read their speeches with a great deal of pleasure, and I think they proved conclusively that there is no necessity whatever to rush this matter. It is better that it should be delayed until another Parliament. After the general elections the members of both Houses may be induced to take a different view of this question. As one who occupied a seat in a State Parliament, I would rather that Federal members should be debarred from appointment to positions on the High Court Bench. I do not, in saying that, desire to cast any reflection upon those who may be appointed. In the State of Victoria we have had in existence an Officials in Parliament Act, which debars any Government from appointing any member of Parliament to high positions of this kind.
– Does it provide for a twelve months’ embargo 1
– No ; six months.
– They have to be six months clear of Parliament before they can secure such an appointment. No such appointment has been made in Victoria, and we have never suffered from that disability. But I think Parliament has a right to protect itself against itself sometimes. I am not reflecting in any way upon any Federal member who may be likely to secure the honour of an appointment to the High Court Bench.
– Is the honorable senator aware of ‘any flagrant case of political corruption arising in States in which that embargo does not exist ?
– I do not know if such an Act is in force in other States.
– I ask whether the honorable senator is aware of any case of political corruption having occurred in a State in which such an Act is not in force ?
– There must have been cases to cause such a law to be placed on the statute-book.
– Is the Victorian Bench so illuminating 3
– Like the Bench of any other State, it is above suspicion in every respect; it is composed of highly honorable and able men.
– And ifc makes as many mistakes. .
– Every Judge is liable to error,. I am not depreciating the Judges in the other States. I believe that all the States are blessed with high-class Judges. I am speaking of the Victorian Judges, whom I know very well by repute and otherwise. We are- blessed with very able and eminent men here, and no one dare say a word against their characters. I said from the platform on forty occasions, that I should like the Federal Judges to be selected from the States Courts, and so relieve the States of an expenditure which is really crushing the people.
– New South Wales says she cannot spare any Judge.
SenatorFRASER. - I cannot understand that.
– They have a Judge at home, on leave of absence.
SenatorFRASER. - I cannot speak of the Judges of New South Wales.
– The honorable senator wishes to restrict the choice?
– No. I should like the Commonwealth Government to select the ablest men on the States Benches. I should like them to choose Sir Samuel Griffith, whom I have known for the last 40 years. I hope that he will be a Federal Judge, even under this Bill. No doubt the duties devolving upon the Court will be very onerous and important, and its decisions will be far-reaching. Unless it is composed of the ablest and most honorable men to be found in this young Commonwealth, it may bring sad trouble upon us, because, once a Judge is’ appointed, he cannot be removed except for misconduct or incapacity. I do not anticipate such dire results, but still we do not know what may happen. Some honorable senators on my right are always having a fling at the Kyabram movement. The people who are producing, in the State are determined, as far as they can, to put down extravagance.
– The producers in Collins-street.
– My honorable friend is a very level-headed man, whom I greatly respect, although I do not agree with his opinions. He will find - and I think I have been long enough in politics to be able to gauge public feeling - that the producers and the non-producers will compel economy to be practised.
– It is the nonproducers who make the most noise.
– The noise will be effective when it is made. I believe that forecast will come true. If the men with the largest practice at the Bar are to be selected as Judges of the High Court, naturally we must expect to pay somewhat high salaries. It does not always follow that the men with the largest practice will make the best Judges. It is an extraordinary thing that in Canada the Judges - who bear the same high reputation as Australian Judges - are not paid half the salaries which we are to pay. It is just the same in the United States.
During the last 40 years - especially during the gold-fever, the land boom, and other fevers - we have got on to such a high plane of expenditure that it cannot be maintained, because, after all, the producers have to pay the piper, and not the men idling in the towns. If a farmer is working his eyeballs out from morning to night, naturally he will complain when he hears of the Federal and State Parliaments throwing money away wholesale. The duty devolves on both the Federal and StatesLegislatures to see that every shilling is honestly and wisely spent ; that a shilling which can be saved is not wasted. Can any honorable senator say that a Kyabram, a Collins-street, a Bourke-street, or, if he likes, a slum movement, iswrong when it is confined to economic questions, without respect to party or anything else? TheKyabram movement is a righteous and good one, and may it prosper.
– It will save the honorable senator from a land tax anyhow.
– Our land tax is the heaviest in Australia. It is a very iniquitous and unfair tax.
– I ask the honorable senator not to allow himself to be led away by interjections.
– I am obliged to you, sir, because all interjections are very disorderly. There is no necessity to rush thismeasure through the Parliament. Let its passage be delayed for a year or two. Like the Federal capital, it involves considerableexpenditure. It is impossible to obtain a High Court with all its attributes without spending a vast sum. I admit at once that when it- is shorn of many clauses, objectionable to me, but perhaps not to others, it will stand in a different position. It will be very invidious if, while the StateJudges receive pensions, the Federal Judges do not. But I do not intend to increase the expenditure under the Bill. I am opposedto the Bill, and, therefore, I shall not give a vote to remedy that omission. The interpretation of Federal laws by the StatesJudges has given great satisfaction.
– Not that given by the Chief J ustice of Victoria.
– The Full Court unanimously overruled his judgment. Does not that fact clearly prove that there is no necessity to be alarmed about the interpretation of Federal laws by States Courts ?
– Like the Scotchman and the whisky, there is awfu’ risk.
– There will be greater risk if the High Court were composed of men who have not sat on a Bench, and whose record has to be learned. The States Courts, on the other hand, are composed of men whose record for a quarter of a century is known, who have been trained on the judgment seat, and whose decisions have given great satisfaction.
– To show how the States Courts accommodate themselves to the requirements of the Commonwealth Government, in Victoria a Full Court was constituted at once to hear an appeal from the decision of the Chief Justice.
– In every case, the States have been most anxious to facilitate the transaction of legal business. It is the duty of the Federal Parliament to assist the States Parliaments, and vice versâ Are the States and the Commonwealth to start the Federation by destroying each other? My complaint against the Government is that on many occasions they have gone out of their way to override the States. In Canada the powers of the Provinces are prescribed in the Constitution, which vests the residuum in the Dominion. In Australia, however, the position is reversed : the Constitution prescribes the powers of the Commonwealth, arid vests the residuum in the States. We have no right to exceed our powers, or to override the States in any way. It lias been done.
– Where ?
– It would take too long to mention the many cases in which it has been done.
– In this Bill, though, it is not proposed to do that.
– To a certain extent, the Bill in its original form went in that direction ; it sought to impose upon the High Court many duties which the States Courts could discharge equally as well, or perhaps better. Why not allow the States Courts to do what they have done for so many years, and with great satisfaction to the public at large ?
– Why were the people in Victoria in such a hurry for .federation ?
– Because we thought that we should get better men from the other States. Let the honorable senator remember that a general election is close at hand. . My honorable friends in the corner are not so aggressive as they were two and a-half years ago. I see a change going on.
– The honorable senator wishes to -repudiate the work of the Convention.
– No. We ought to be one people, and although there are hitches and troubles now, still, they will pass over. The people will assert their power when they come to their senses. Where are the Judges of the High Court to sit ? Are we to spend £30,000 or £40,000 on the erection of Supreme Court buildings ? No provision is made in the Bill for that expenditure. No doubt the States Governments will be very willing to allow the High Court to use their buildings for the purpose.
– And charge the Commonwealth.
– Why should they not make a charge ? Does Victoria make a charge for the building in which we sit ?
– What is the use of making this nasty insinuation ? There are any number of different and contradictory laws existing in the various States of the Commonwealth. The land laws of the Australian States are as dissimilar as are the laws of any countries in the world. The land laws of New South Wales, for instance, are such as it would be impossible even for a lawyer to understand, let alone a layman. There are only a few lawyers in New South Wales who can pretend to understand the land laws of that State. Laymen have no show whatever. The mining laws of Victoria, Western Australia, and South Australia are entirely different. It would be better to send difficult cases, arising under these laws, to the Privy Council, where the points could be thrashed out thoroughly.
– There is nothing to prevent those cases going to the Privy Council now.
– I know that, but it is no fault of the Federal Government that recourse to the Privy Council is still open.
– The Government have not endeavoured in any way to touch the power of appeal to the Privy Council.
– This Bill has been debated very fully iu another place. I have read most of what was said there. Consequently there is not much necessity for us to go very fully into the matter, especially after the exhaustive address we have had from Senator O’Connor. But I’ wish to say a few words in explaining my own view. Although at the elections I did not attend quite as many meetings as did Senator Fraser, still I think I went pretty close up to the 40 which he addressed; and I can assure him that on nearly every occasion I alluded to the High Court. I said that it was a matter that should be taken into consideration by the Government at the earliest possible moment; that we should have to pass a Bill for the creation of the Court ; that it was a necessary complement of the Constitution ; that without it we were an imperfect Commonwealth ; that it would be a mistake to have J udges acting as Commonwealth and State Judges at the same time; and that we wanted our own properly constituted Commonwealth High Court, principally to decide those questions as to which, after a big fight, it had been determined in England that they should not be remitted to the Privy Council. There are certain questions which can be remitted to the Privy Council. It was desired by some persons that all appeals from Australia should be so remitted. We know how the delegates in England, Sir Edmund Barton* Mr. Kingston, and Mr. Deakin fought and eventually secured to us the right of having a High Court to decide finally all constitutional matters. I therefore urged that we required a Federal High Court for that special purpose. My honorable and learned friend, Senator Best, goes to the extent of saying that it will be absolutely necessary,, by-and-by, to have the Court, but it is not necessary now. If there is any truth in the assertion that we can get on very well for the next five or ten years without the creation of a Court, we might as well have no Court at all. Why was it necessary to impress upon the Convention that it was essential to have the Court to decide constitutional questions if we can get on for a number of years without it? Cases will arise and will have to be decided affecting the interests of the Commonwealth to an extent which we can. hardly contemplate. Precedents will be created, and we want- to commence with good precedents, laid down by a Court in which we can have confidence. I do not mean to “say that we cannot have confidence in a Court constituted from the Chief Justices of the States, but I do say that no matter how fair those J udges might be - and I am quite sure that they would be fair according to their knowledge - nor how just their decisions might be according to their lights, there would be some public feeling if they gave their decision against the Commonwealth that they had decided against us as a Federal Parliament. The feeling would be that they were actuated by the fact that they were partly State Judges and partly Federal Judges. We want to have our own Federal Judges. It must be remembered that they will not be our Judges in the sense that we can influence them in any way. The Judges of the High Court are placed above Parliament. They will be put in their position for the purpose of deciding whether we in Parliament have acted within our powers, and whether the States in their legislation have acted within their powers. It is extremely important that we should have upon the Bench of the High Court, Judges in whom we and the people can place complete confidence. It is said that there will be nothing for the Court to do. Honorable senators will soon find that there is something for them to do. I know of a case that is pending in New South Wales in which the Courts have decided that the Commonwealth has no right to charge Customs duties upon articles imported by the State. That is an exceedingly important question. If we do not establish the court quickly, by whom will that question have to be finally decided ? By the Privy Council? .
– There has only been a decision in one State, and the case has not been sent to the Privy Council.
– That is a question that ought not to be decided by a State Court, and certainly not by the Privy Council, which has no local knowledge.
– We were compelled to pass a short temporary Act last year to enable suits to be brought against the Commonwealth.
– As the honorable senator points out we passed an Act giving power to bring actions against the Commonwealth Government. That was a little make-shift Act passed to prevent the subjects of a State from being damnified, as the lawyers call it. Otherwise, citizens would have had no means of bringing actions against the Commonwealth. And the Act terminates at the end of this year.I have spoken about the extreme importance of the creation of the Court at the earliest possible moment, and have given some arguments in favour of it. The great cry against it is the Kyabram cry - Economy ! Economy ! Economy ! I think I have been as economical in my time as anj’ man. In my political relations in my own State I was looked upon as a little bit “near.” I fancy I have been thoroughly in favour of economy. But you can carry that policy too far. I lately presented a petition to which 5,000 signatures were attached praying the Senate to constitute a Court composed of the Chief Justices of the States. . I very much question whether there would be any economy in adopting that suggestion. We should have to pay the State Judges for the work they did for us, and I fancy that the States Governments would takepreciousgoodcareto wring out of us as much as they possibly could of the salaries of the Judges who did Federal work. It would be a piece of false economy. Under a Constitution framed as ours is, with legislative powers on the one hand, and executive powers on the other, a Federal High Court is necessary, and it is false economy not to provide a properlyconstituted Court. There would certainly be no economy in establishing a wretched make-shift. I would not argue this question on the score of economy at all, because it is really a question of whether it is not absolutely necessary under the Constitution that we should have the Court. The subject was considered in the Conventions. The first Convention, of which I was a. member, considered that it was absolutely necessary to have the Court. I suppose it was also considered at the Convention from which our present Constitution emanated, although I was not a member of it, being in London at the time. There is an express provision in the Constitution, and it appears to me that it is our duty to carry that provision into effect. As far as concerns the Judges’ salaries, I think they are fixed low enough. I have always opposed the payment of pensions. You never know where your indebtedness will end when pensions have to be paid. I recollect that we in South Australia had a Judge - Chief Justice Cooper - who retired from the Bench a.t the age of something like 75 years. He had presided over the Court for many years, and when he retired on a pension of £1,000 per annum he took a trip home and went to live at Bath. I think that South Australia must have paid something like £20,000 in pensions to that Judge after he had retired from the Bench. It was really rather distressing to us to find the old gentleman living so long ! I should not have cared so much if this Judge had lived in the colony and spent his pension there ; my objection was to the money going out of the countiy. A Judge of the Supreme Court of Victoria retired not long ago, and I find that he also contemplates living in England and there spending his pension. I do not believe in pensions on principle, and I did all I could when in Parliament in South Australia, to prevent their being granted. But I think that the salaries provided for the Judges of the High Court are, if anything, rather too low. I should have liked to see the remuneration a little more generous, seeing that no pensions are to be allowed.
– Suggest £5,000.
– I am not going to make any suggestion, but merely express the opinion that in this respect we do not err on the score of extravagance. I am with those who contend that we ought to get the best talent possible, and I do not care whether to that end the Judges be selected from the present Chief Justices of the States or from members of Parliament. I strongly object to the idea that no member of Parliament should be eligible for the position until he has been out of Parliament for twelve months. I regard such a suggestion as a reflection on Parliament and on members of Parliament, and I opposed a similar proposal made in South Australia many years ago. We want the best Judges we can get, no matter whether or not they may be ‘members of Parliament. The fact that a man is a member of Parliament only shows that the people have some confidence in him ; and nothing should be allowed to stand in the way of our obtaining the services of the most suitable men. I support the second reading of the Bill.
– Since the debate on the motion for the second reading of this Bill commenced it would seem that there are two classes of opposition to the establishment of a Federal Judiciary on the lines laid down in this measure.
– There is Kyabram and jealousy.
– I do not choose to designate them by those names, but just to speak of the qualities of the opposition. One class of opposition comes from some who seem to consider that there is no necessity for anything to be done in the immediate present in the way of establishing a Federal J udiciary. The other class of opposition comes from those who think that something might be done in the immediate present, but that instead of establishing a Federal Judiciary on the lines contemplated by the Constitution and by this Bill, we can establish for some uncertain period of years, at all events, something in the nature of a make-shift.
– That is the opposition of jealousy.
– No matter how strenuous may be the opposition of those who think that there is no necessity for the establishment of any Federal Judiciary, there is, I think, a pretty general consensus of opinion that it is very undesirable that we should have perpetuated the present state of affairs. Because it is abundantly evident that with six different Supreme Courts in the States of the Commonwealth, each independent and final within its own territory, administering so far as in its powers lie, at present, the laws framed by the Commonwealth Parliament, we are open at least to the possibility of getting diverse interpretations. “We cannot say that we shall have with absolute certainty that uniformity of interpretation from these final Supreme Courts in six different States which it is so necessary that we should have in connexion with theGovernment of the Commonwealth. The present condition of affairs is somewhat similar to what Hamilton, I think, referred to as the “ hydra-headed system” then in force in the United States of America, when he addressed the people of New York and put before them the necessity, the desirableness, and the advantage of establishing in connexion with the Union Constitution a strong Federal Judiciary for maintaining the checks and balances that were to be established in that Constitution with respect to the powers of the central Legislature and the Legislatures of the several States. With regard to the opposition which has come from those who think that a make-shift might be adopted for a certain period, I should like to point out that under section 72 of the Constitution it is provided -
The J ustices of the High Court and of the other Courts created by the Parliament -
Shall be appointed by the Governor-
General in Council;
Governor-General in Council on an address from both Houses of Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity :
Now, if we were to adopt the suggestion to create a make-shift kind of court, constituted of the Chief Justices of the several States, or of Judges drawn from the States Benches, who would still continue the exercise of judicial functions in their States, and in the service of their States, we should place ourselves in this position : - that at the end of a certain period, which would come sooner or later - a period which even Senator Best contemplated when he said that a time might come when we could frame a measure which would be more comprehensive and satisfactory than this - we should be unable, under the Constitution, to dispense with the services of these particular Judges.
– And they would not die,either.
– Because, under the second sub-section of section 72, those Justices could not be removed - except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity.
It will be observed that this sub-section applies to -
The Justices of the High Courts and the other Courts created by the Parliament.
– Suppose the time at which they should cease to hold office were/set out in the Act of Parliament?
– We should be acting unconstitutionally in attempting to provide for that, because this does not apply merely to the High Court, but to all other Courts created by the Parliament. If we created a make-shift court, we could only do so within the limits of the powers conferred upon us by the Constitution.
– Mr. Higgins does not think so.
– With all due deference to the opinion of Mr. Higgins, I point out that the provisions of the Constitution, from which we derive our powers, and which we must respect in exercising those powers, make it clear that the make-shift Federal Judges, if I may use the term without any disrespect to them at all, could not be removed except by the Governor-General in Council, on an address from both Houses, under the circumstances laid down.
– Unless on appointment we required them to hand in a sealed resignation.
– There would have to be some arrangement made, no doubt.
– Undoubtedly there would have to be some arrangement, but the arrangement would be in violation of the provisions of that particular section of “the Constitution, under which the Justices of the Courts created by the Federal Parliament would derive their status.
– The idea is that they should only get a nominal salary, if any at all.
– It is not a question of salary merely ; it is a question of the status of the Justice who would be appointed to a Court created by this Parliament, in carrying out the Constitution as laid down in this particular section. I point out” that whether they were receiving a nominal or . a substantial salary, they would still be in receipt of salary from the “States Governments, who had respectively first appointed them to the States Benches. “They would, therefore, be in the position of serving, or endeavouring to’ serve two masters, and two masters whose interests might at various times, and would, perhaps, in the majority of cases that would come “before them for consideration, be in conflict. The whole scope of jurisdiction proposed to be conferred upon the Judiciary under this Bill is thoroughly federal in its character. It arises from “the fact that we are living at present under a system of government to which we “have been until lately unaccustomed. It is a compound complex system of government, very complex indeed, but not to be condemned for that reason, because its very complexity arises from the necessity of safeguarding the proper administration and exercise of all the powers that are reposed in the various repositories of power. We have our Federal Parliament charged with the power and responsibility of legislating in respect of certain matters ; we have in the case of the several States powers still reposed in the Legislatures of those States similar to those which they had before, except for the subtraction which has taken place in order to give to this particular Australian Parliament the powers which are given to it by the Constitution. As a necessary consequence of that, we know that under express provisions in the Constitution there is a number of subjects in respect to which this Parliament is incompetent to legislate. There is also a number of subjects of great variety with which, by implication, the States Parliaments have no power to deal, and States Executives have no right to administer. And it is in order to preserve the proper relations of these several sets of powers, which must continue so long as we are living under this composite Federal system of Government, that an independent tribunal, an independent power and force, must be established, so that, if there is a tendency there will be no successful tendency in the direction of the overlapping of the powers of any of the different repositories of power. This tendency has been found to be a fruitful source of cases in connexion with the Courts of other federations. With regard to the arguments of those who have said that States Justices - if not the Chief Justices of the States, some of the Puisne Judges - might be utilized for this purpose, I should like to point out that, although those Justices might apply themselves to the consideration of cases with a due sense of their importance, and with the utmost feelings of justice and fairness, that is not the only consideration that we have to regard in connexion with this matter. It has been well said, and often repeated, and it is accepted almost as an axiom in connexion with legal administration, that justice must not only be right and fair and impartial, but that it must also seem to be so. It is by this seeming to be so, in addition to actually being so, that the courts secure the confidence of the community. Unless we can secure for our courts the absolute confidence of the community their power and efficacy will be considerably diminished. If one has read the history of the United States in connexion with legal conflicts which have taken place before the Supreme Court of that country it is very easy to foresee that, as years go by, and questions of interest arise in Australia, there will be numbers of cases in which the parties will be the Commonwealth on one side and a State on the other. If in dealing with such cases there should be upon the tribunal called upon to dispense justice a Judge in the service of a particular State involved in the dispute acting the part of a makeshift Judge for the Commonwealth, it is very possible, if the subject in dispute is one engaging considerable public attention, there may be a disposition on the part of many Commonwealth citizens, from outside that State at all events, to regard the decision of the court of which that Judge is a constituent member as one that has been tainted by some unconscious bias. In every instance in which that would occur, there would be naturally a loss of confidence on the part of some of the citizens of- the Commonwealth in the impartiality of the particular tribunal erected to determine these disputes. That is a condition of things which may very easily arise in Australia, and which we should guard against.
– It never has arisen yet.
– Precisely. We have only been federated for a couple of years, and I remind Senator Zeal that in the early days of the federation of the United States, and even some years after it was accomplished, there were no cases of that kind, but the cases are now so numerous which come up for determination in the Supreme Court of the United States that it takes some two or three years for a matter to come on for hearing.
– This is not the United States.
– In Australia we have our States Government committed to policies which are entirely dissimilar to those to which the States of the American union are committed. We have all our State Governments engaged in industrial enterprises of one character or another. We have them conducting railways and other means of transport and communication, and we have them in various other ways engaged in enterprises in which none of the States of the American union have ever yetbeen engaged.
– In Western Australia the State Government is crushing ore.
– Tes. We have our Governments owning batteries and other such applicances for the use of persons connected with the various industries. By reason of the fact that our States do engage to a greater extent in industrial undertakings than do the States of the American union, we must necessarily expect that there will be greater legal and constitutional conflict as time goes on, proportionately to our population, between theStates of Australia and tha Australian Commonwealth than there has ever been in the history of the United States between theStates of that union and the union itself. I shall shortly bring before Senator Zeal some figures to show what has occurred in this direction in the United States since the establishment of the Supreme Court of that country. I may mention here that, on account of theimmense amount of work which the Federal Courts have to do, and their inability, on account of the paucity of the number of J udges, to keep pace with the work, therehas been afoot for some little time in theUnited States a movement to increase thestrength of the Bench of the Supreme Court from nine to 21.
– For 80,000,000 people.
– Yes. Let it be remembered too that in addition to the nineJudges of the Supreme Court there are 60- or 70 Judges of Federal Courts, besides Other Judges for going on circuit, makingaltogether 120 Federal Judges. ‘
– Foi- 80,000,000 people
– We are asking foithree Judges for 4,000,000 people.
– We have 29 J udges now.
– I would remind the honorable senator that when he institutes that comparison he takes no account of States Judges, for instance, of the dozens of Judges in New York State alone who are not Federal Judges. There are nearer 120 than 100 Federal Judges in the United States. For many years the Bench of the Supreme Court has consisted of nine Judges, and the present proposal is to increase their number to 21. Under our present conditions the Commonwealth necessarily assumes certain national obligations on the part of the several component States. Those national obligations it must assume in respect of persons who are not citizens of the Commonwealth, and in respect to persons who are outside Australia. If it can ever hope to successfully discharge its national obligations it must have all the arms of a national Government. It must have its national
Parliament, its national Executive, and a national Judiciary, which will enable it to enforce to the fullest extent all the peculiar Federal provisions which may apply to the citizens of the Commonwealth, to the Commonwealth itself, to the States, and to those persons who are outside the Commonwealth, and with respect to whom we hold, and must necessarily hold, if we have relations with the outside world, certain obligations. I contend, therefore, that in order to secure the proper adherence to our national obligations by means of a Federal Judiciary we must establish a tribunal of a national character to discharge national functions. We should not delegate such functions to any part or parts of the Commonwealth. We should confer the obligation of discharging those functions on an Australian tribunal, not on any States tribunals or a tribunal composed from certain parts of the union. It is a national responsibility, and it is not to be discharged by any part or parts of the union. I suppose that Senator Zeal has heard before now - if I am not mistaken it was used in the Convention debates, and it certainly was used very freely in the campaigning for the acceptance of the Constitution, in the smaller States - the statement that the High Court was a part of the Constitution, and that ib would serve the purpose of being the bulwark of a limited Constitution against legislative encroachments. Those, I believe, were the words that were used in the Convention, and they were quoted very freely from many a platform in the smaller and less populous States when the people were asked to go into a Federation, when many of those people naturally thought that the larger and more populous States would have such a preponderance of power in the Parliament that it would be exercised to their own benefit, and to the detriment of the smaller States. We were told that the High Court was to be part and parcel of the Constitution, that it was to be the bulwark against legislative encroachment on the part of the Federal Parliament into the domain of State legislative jurisdiction ; and that it would prevent the States Legislatures and States Executives from interfering in matters that were properly within the field of the Federal Parliament and the Federal Executive. It has beep mentioned in the course of this debate that in Canada we do not find any court analogous to the High Court of Australia. But Sena tor Fraser, who took up that attitude last night with Senator Dobson, supplied the answer to it in a measure when he spoke of Canada to-day. He said that it has to be remembered that our Constitution is different from that of Canada, which vests certain powers in the provinces, and the residuum in the Dominion authorities. The converse is the case in Australia. The powers of the Federal Parliament are expressly limited by the Constitution, and the residuary powers remain with the States. It is precisely because our Constitution is much more complex, much more Federal in its character, has so many more limitations on the different depositories of power, that it is necessary that there should be an independent tribunal to interpret its provisions whenever there is a conflict between the different powers. In Canada, on the other hand, the circumstances are different; Now, what have we, and what shall we have in Australia as years go on to give rise to problems or questions for discussion before, and determination by, a federal tribunal ? First, the Commonwealth Constitution - certainly an Imperial enactment, but made at the request of the people of Australia ; secondly, the Commonwealth laws; thirdly, th’eStates Constitutions; and fourthly, the States laws. We have before us all these different systems or bodies of law, which, as time goes on, will tend, unless they are checked, to overlap one another, and it is absolutely necessary that there shall be a tribunal that will prevent any tendency of that character from being successful. In Canada, what is the position 1 Do they want such a .tribunal ? Although they have less checks, less restraints, and less limitations than we have, the Dominion Parliament being the supreme, authority in case of a conflict, still they have the power of preserving those limitations correctly. What is it ? The Dominion Government have the power of veto over provincial legislation. If a province legislates in such a way as to conflict with the jurisdiction of the Dominion Parliament, the latter simply vetoes the legislation.
– As they vetoed the law of British Columbia regarding the employment of Chinese or Japanese.
– That is correct, and it has also been done, if I remember aright, in connexion with the educational question. That immense power is reposed in the Dominion authori- ties. There is no necessity for the
Premier of Canada to invoke the aid of any tribunal to determine whether a provincial law conflicts with the jurisdiction of the Dominion authorities. He has simply to advise the Governor-General to veto the law, and His Excellency accordingly exercises the power of veto. It is not necessary there to have a court to interpret the Constitution, as is the case in Australia. I feel perfectly sure that Senator Zeal or Senator Eraser would not like to see reposed in the Commonwealth Government or Commonwealth Parliament the power of vetoing Victorian or Tasmanian State legislation. But if that power were reposed in such authorities, then there might be no necessity for the establishment of an independent tribunal to determine whether there was any conflict between two authorities, each sovereign and supreme in its own sphere.
– If you have a corrupt court you can suppose anything.
– I am not talking of the Court now, and I feel perfectly certain that the honorable senator does not speak from his experience, because I think he agrees with a recent speaker that the Courts of the Australian States have been a credit to them- so far.
– Hear, hear.
– If we had a corrupt Government it would be possible for that corrupt Government, if it had the power of vetoing State legislation, to exercise that power corruptly. I am pointing out that in Canada there is no necessity for an independent interpreter in these matters, because there is practically given to the Dominion authorities the supreme power of determining the question for themselves without reference to any third party.
– At their own absolute discretion. They are not bound by any rules.
– Exactly ; it is practically a prerogative. Senator Eraser has pointed out that in Canada all powers which are not conferred on the Provinces are vested in the Dominion. The Confederation approaches much more nearly to a unification in Canada than in Australia, and consequently its legal relations are mostly the relations of the Dominion of Canada with Great Britain. Our relations are with Great Britain and again with the several States, each of which is supreme and sovereign in all those matters which are not expressly delegated to the Federal authority. With regard tothose matters which come under Federal jurisdiction, I contend that it is necessary that the Federal authorities should be able,, without asking the intervention or assistance of any outside body, be it a State or any person, to enforce their own legislation. They should be able, of their own authority, to secure to the citizens of the Commonwealth all Federal legislation that is in their favour, and all Imperial legislation that is in their favour, as expressed in the Constitution Act. I might refer, for instance, to* section 117, which says -
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
It is very easily conceivable that theremight be cases in which a subject of theKing in one State going into another State* should consider that he was entitled to get the benefit of that provision. It might bethat there was ‘ such a conflict in polity between two States, and such intense feeling, about the matter that one State might endeavour to disqualify not him alone, but all its inhabitants, from participating in all therights to which he was entitled under that section. Unless we had an outside independent authority in the Commonwealth to enforce that section it might, in very many instances, be no more than wastepaper, because it would leave to the States, which are. sovereign and supreme within their own spheres, the opportunity of nullifying that provision by their own legislation. Then, of course, if application were made to a Federal tribunal to invalidate, so to speak, that legislation, it should be able to do so. But if the State has so legislated as to place its Judges in such a position that they are practically coerced into respecting the law of the State - seeing that they are primarily and in general responsible to that State - those Judges will have to administer the laws of that State.
– That has> not been our experience.
– Of course, that has not been our experience, because the circumstances in our past conditions could have never been present. But we havehad instances, since the commencement- of Federation, in every one of the States, of irritation at the legislation of the Commonwealth. We have had the Executives of various States taking up an attitude of hostility towards the Federal authorities. It is quite competent for a State Executive to submit to the State Parliament legislation which, in certain instances, would have the effect in certain instances of making this particular provision of the Constitution nugatory and void. The only way in which, such an evil as that can be overcome is by the institution of some independent Federal tribunal. If you had to resort to a tribunal of a makeshift character, constituted of Judges drawn from the Supreme Court Benches of the several States - still owning allegiance to their respective States, still drawing their means of subsistence from those States, and still subject to administer within ‘State territorial limits the law of the States as they find it - it is ‘the easiest thing in the world for any particular State to render that provision practically nugatory and void. The only way in which contingencies of that character can be absolutely obviated is by the appointment of an independent tribunal, which shall have no attachment to any particular State; which shall have to administer Federal law in a Federal capacity ; which will regard the law of Australia without recognising any dividing lines between State and State; and the Judges of which will not have to consider, when administering Federal law in Federal Courts of Justice, that after the lapse of a day or two they will have to return to their own States, to administer their own States laws within their own States’ territories, without jurisdiction beyond the particular lines that separate one State from other States. It has been said, I think by Senator Best, that he hoped that the constitution of the High Court would be deferred until later on, when there might be more need for the establishment of a Federal Judiciary. He thought that when that occasion arose, we should be able to establish a Judiciary on a better basis. I presume that he meant on a basis of numbers that would be more creditable to the dignity of the Commonwealth. I Cannot agree with him as to the advisableness or advantage “of deferring the establishment of the High Court. If there is One thing more than another about which we ought to be particularly careful atthis juncture, it is that we lay down the lines for the interpretation of theFederal Constitution on -proper Federal principles. We have had abundant evidence in many of the States of a disposition on the part of many people who are criticsof Federation itself, and of the Federal legislation and administration, to view thesematters from provincial aspects, and to approach them mainly if not entirely, fromprovincial considerations. If we are going to perpetuate that condition of things, we could not go about it in a better way than by adopting this makeshift system thatsome honorable senators seem to favour. But, in my opinion, as we have a Constitution which is purely Australian in itscharacter, we ought to have the work of legislation and administration criticised and dealt with judicially from a purely Australian stand-point. One of the best means of achieving that result would be to establish an Australian tribunal of the characterprovided for in this Bill.
– If we are to go back upon the work of the Convention where* shall we end 1
– Exactly. Theearliest decisions that will be given in respect to matters coming within our purview, will have a tremendous effect on the interpretation of our Constitution for years to come. The earliest decisions that will be given in respect of matters that may properly come within the province of theFederal Judiciary will have a binding effect as established precedents hereafter. I should like to say a few words with respect to an argument used by Senator Fraser this afternoon. He stated that one of the advantages of adopting the make-shift principle and utilizing the services of the Judges of the various States, instead of appointing a Federal High Court, would be that we should’ obtain the services of men who had beentrained and had had experience on the Bench ; whereas by taking men from the political arena we should have Judges whose capacity was untried and whose judicial attainments were unknown. He told us, with pride, that in Victoria they had not done that kind of thing - that they had not placed upon the Bench men from the political arena. I should like to quote from an article contributed by a gentleman who has for some time been living in Victoria, to March, 1903, the number of an.
American magazine called The Annals The author ‘ is a gentleman of undoubted attainments - Professor Harrison Moore, Dean of the Faculty of Law at the University of Melbourne. He has been watching and studying the administration of justice in various countries, as well as in Victoria, where he now lives. It will be admitted that he is an impartial observer. He says in this article, which was published in March of this year -
On the other hand within the colonies themselves, the Constitutions have been formed on the Imperial model with its plenitude of power and supremacy of fcheLegislatuveover the other organs of Government. Amongst the most common objections to Federation was the complaint that a “cast-iron Constitution” was a novelt3r, something essentially different from the Parliamentary rule to which the colonies have been accustomed. When constitutional cases have come before the courts, the Judges have generally been disposed to take short views ; to lay stress upon the fact that such causes were to bo determined by no other rules than those applicable to other classes : briefly, to apply “the lawyer’s rigor” rather than “ the stateman’s breadth of view.” This tendency has undoubtedly been encouraged by the fact that to a greater extent than in America or England, the Judicial Bench consists of men who are without political experience.
– Does he say that that is the rule?
– Then it is incorrect.
– I am Quoting the statement of a gentleman whose environment has been Victorian, and whose testimony is borne out by the assertion of Senator Eraser this afternoon, that in Victoria they rarely or never appointed Judges from the political arena. Probably Professor Harrison Moore is speaking particularly of Victoria iii his article, when he points out that constitutional questions that came before the Courts received a narrow interpretation, an interpretation of “a lawyer’s rigor” rather than of “a stateman’s breadth of view,” and that this tendency has been encouraged by the fact that, to a greater extent than in America or in England, the Judicial Bench consists of men without political experience. So much then for what Senator Fraser stated as to the necessity of drawing Judges from the benches of the States ; and so much for Senator Best’s suggestion that the Judges should receive only a nominal salary from the Federal Government.
– I never placed any reliance whatever upon, nor did I approve of, the formation of a mere temporary make-shift Court.
– In any case, if the Judges doing Federal work received, as Senator Best a few moments ago interjected, only a nominal salary from the Commonwealth, they would own their main allegiances to the States from which- they derived their means of subsistence. Now, so much for the testimony of Professor Harrison Moore, as to Judges drawn from the political arena.
– A very good man.
– Quite so. Coming to the instance of America I should like to quote from Westel Willoughby’s Supreme Court of the United States, where he deals with the Federal Judiciary in politics, in chapter 8 -
Leaving the legal and somewhat technical points regarding the Federal judiciary, we turn to a consideration of the part played by the nation’s highest judicial tribunal in the field of partisan politics. . We have learned of the degree of care and solicitude exercised by the constitutional convention in its endeavour to form a judiciary, which should, by its construction and composition, be wholly removed from political strifes and party differences, and thus be enabled to perform with firmness and impartiality its high functions as arbitrator between the Federal and State Governments, and between the branches of the national Government ; and. which should be in the highest and closest degree the exponent of the peoples’ will as expressed in thenself -constituted law. To secure its independence of the Legislature, its justices were made appointees of the President and their salaries guaranteed them. To raise them above partisan bias, its justices were given life tenure, removable only by impeachment.
Then he goes on -
To what extent has the Supreme Court fulfilled the expectations of its founders iu respect to its non-partisanship? Happily, we may say, that in this respect, us well as in the other respects of which we have already treated, the Court has well played its part. With scarcely an exception, all of the Supreme Court Justices were, before their elevation to the bench, political partisans to a greater or less degree, but with their nomination to the Judiciary, these political predilections have as fur as possible been laid aside.
– Some of the best authorities say the very opposite - that the political colouring of the Bench has always been according to the politics of the day.
– What I have quoted is the opinion of Mr. Willoughby.
– It differs with different men. Some may retain their political predilections, and some may not.
– Of course; and some men upon the Bench retain social predilections which are, in many instances, far more dangerous than political predilections. It is impossible to suppose that the prejudices of men who go upon the Judicial Bench will be wholly eliminated the moment they leave the walks of life to which they have been accustomed. It is generally admitted, however, that the tone of the United States Supreme Court Bench is high, and that there are many instances of Judges taken from the political arena who have occupied their positions with credit and distinction to the Bench as a whole. That is the opinion of Mr. Willoughby, who has gone very fully into the question. In legislation designed to establish a Judiciary we must not merely create a Court, and authorize that Court to administer justice ; we must require the Court to administer the law. ‘ We . have not merely to authorize the Court to administer the law, but require it to do so. Are we going to place ourselves in the position of establishing a Court with authority to exercise certain judicial functions, and make it necessary for some intervening bodies to require or arrange with that Court to exercise those judicial functions’! Are we going to place ourselves practically at the mercy of other parties to a negotiation before we cau really come into even indirect contact, so to speak, with the body we propose to invest with judicial functions ?
– Our judicial power would not be under our own control.
– Exactly. There would be something between the Legislature and the Executive, on the one hand, and the judicial arm of the Government - something which might at any particular time, and, if we take the history of the United States, something which might very frequently be in conflict with ourselves. That is altogether an anomalous position in which to place ourselves. Senator Best, in the early part of his remarks, referred to the present jurisdiction enjoyed by certain States Courts. In effect, the honorable and learned senator said that if it could be shown to him that this jurisdiction was not sufficient, or that it had not been exercised with advantage, he might see some necessity for the establishment of a Judiciary. In answer to that, I should like to say that the jurisdiction referred to is utterly inadequate to meet the requirements of the Commonwealth. First of all, the quality of the jurisdiction is very limited, only applying, as it does, to cases of claims against the Commonwealth. The jurisdiction vested in the States Courts at present is a jurisdiction to try certain claims which may arise against the Commonwealth Government, and the State Court can only exercise that jurisdiction where the Commonwealth is a party and is the defendant. And the jurisdiction of the State Court is exercisable only within the State itself - it cannot go beyond the border. The Victorian Supreme Court has jurisdiction in Federal matters only where the claim is against the Commonwealth, and the extent of the jurisdiction is measured by the boundary of the State.
– We all know that; there is no need for a long statement.
– But Senator Best . asked whether it was possible to show that the jurisdiction was not sufficient.
– No one doubts the proposition of Senator Keating. I was speaking of the last three years
– But what about questions between State and State, and cases where the Commonwealth may appear in another capacity than that of defendant ? The Claims Against the Commonwealth Act is simply a temporary measure to provide for one out of a large number of classes of causes which may arise. That Act is to provide that an individual shall not be prejudiced by the non-establishment of a High Court, and it will cease to have any operation after the certain time prescribed.
– Can the Commonwealth sue a State ?
– Not at present, because there is no court to entertain such a suit. The Act to which I have referred is only for the benefit of any individual who may feel that he has a claim against the Commonwealth. The jurisdiction is very limited iu its quality, and limited in its extent so far as territory is concerned. We want a court which has jurisdiction throughout Australia, irrespective of boundaries, and which will deal with matters as an Australian Court, and not as a court exercising jurisdiction in certain few Australian matters within one particular State. Another argument that was used by Senator Dobson last night, and by Senator Best this afternoon, was as to the numerical strength of the Court. Senator Dobson told us that because there are to be only three J wages, and because there are six Judges in Victoria, and six or seven in New South “Wales, the High Court will be third in importance in Australia. I asked the honorable and learned senator to apply his argument to the Parliaments of Australia, but he said he declined to reply to irrelevant interjections, or something to that effect. If the status of a court is to be determined by its numerical strength, and we apply that argument to the Parliaments of Australia, we find that in Victoria there are about 144 members in the two State Houses, and in New South Wales about 180 or 190; so that, according to Senator Dobson, the Parliament of New South Wales is the first in importance, Victoria the second, and the Federal Parliament the third. Senator Dobson might have pointed out that this Court will not merely be third in importance, but will be lower down, because 1 believe that in Western Australia there are four Judges, and the same number in Queensland.
– That is a very thin argument.
SenatorKEATING.- I was surprised to hear Senator Best employ an argument so thin. We have been told that if there are six Judges on the Supreme Court Bench in Victoria, the people will regard the High Court Bench of Australia, with only threeJudges, as an inferior tribunal. Does Senator Best really think that the status of this Court, or any body, is determined by its numerical strength?
– Not necessarily ; but my argument was that, much as I respect those who will probably be appointed to the High Court, they can not reasonably claim higher pre-eminence as jurists than those on the State Bench.
– Senator Best now says that no matter who may be appointed to the High Court, they cannot necessarily claim pre-eminence as jurists over the Judges of the States Courts.
– I was talking of Victoria at the time.
– But that proves nothing, for perhaps if this Bill be passed, the very men appointed to the High Court may be drawn from Victoria, and if the best men be thus removed from the State Bench, could they not claim pre-eminence over the remnant left on the Victorian Bench? I do not think that Senator Best is in any secret, or knows any more than we do as to what is to be the personnel of the High Court. Much as he may indulge his fancy, I think he is hardly in a position to say that the members of the High Court Bench will not be able to claim pre-eminence over any State Bench. But even if the High Court J udgecould not claim pre-eminence in theoue respect of jurists, they could claim preeminencein many other respects. If their abilities as jurists are only equal to the abilities of the members of a State Beuch, they will at any rate have a more extended jurisdiction territorially. Moreover, the Judges of the High Court will be more independent of Stateattachmentsand State influences, and they will owe their allegiance to a single and a higher authority. Even granted that their ‘ attainments as jurists are only equal with those of the States Judges, their qualifications for administering the functions with which a Federal judiciary will be charged, will necessarily be greater than those of Judges whose attachments are purely to the State.
– And they will be experts.
– Quite so; and they will have perhaps political experience, which according to both the authorities I have quoted, has been of such value in the United States.
– When I spoke of Victorian Judges of great political experience, I had in ray mind Chief Justices Madden, Kerferd, Fellows, Stephen, Stawell, Barry, Molesworth, and Higinbotham.
– If those whose names are mentioned after having been in the politicial arena were successful as Judges, the fact speaks against the argument used by Senator Fraser and Senator Best, that it is not desirable to draw Judges from the Federal political arena. It was that argument which led me into the question of whether it is desirable to take Judges from the Federal Parliament.
– Exceptions prove the rule.
– If the names mentioned are the exceptions, they seem to outnumber those that make the rule. There is another argument which has been raised several times by way of interjection from Senator Zeal, who asks what work this High Court will have to do. But I think that honorable senator was answered by Senator
Dobson last night. I do not know that I am quite correct in the figures, but I think Senator Dobson said that in the first year of the Commonwealth there were two cases which involved constitutional law, and that altogether there have been 22 or 24 cases.
– In the three years ?
– Quite so. I should like to again quote from Mr. Willoughby’s book in this connexion, and also in connexion, with the matter to which some little time ago I said I should make some further reference. The history of the Supreme Court in the United States shows that even at the present time we in Australia furnish more cases of the character which require determination by such a tribunal than did the United States at a corresponding period. Mr. Willoughby says -
The history of the first ten years of the Supreme Court, from 1789 to 1800, ‘is not the most important period of its existence. The work done by the Court during these years was very small. At the first session there were no cases on the docket.
– What was the population in the United States t
– About as large as that of Australia at the present time. Mr. Willoughby proceeds -
From 1790 to 1800 only six cases were decided in which were involved, questions of constitutional law. Marshall, upon his elevation to the Supreme Bench, found but ten cases awaiting adjudication. Few recognised at this time the powerful influence this tribunal was to have in shaping the development of the nation.
That -might be said with equal truth regarding Australia to-day. Later on, referring to the present condition of affairs in the United States Supreme Court, the same authority says -
The last report of the Attorney-General (1889) showed that- the total number of cases on the docket at the beginning of the October term of 1888, was 2,57.1. Of this number, only 423 were disposed of. But 423 cases were decided by the Supreme Court during the last year (1888-89), and the Court is therefore so for behindhand in its work that it takes from three to four years for a case to come up for trial, after having been entered upon the docket. The large majority of its cases are those brought thither by appeal from the lower Federal Courts. Those cases requiring its original jurisdiction are now very few in number.
It will be seen that, with very few cases arising out of its original jurisdiction, the United States Court is at the present day flooded with work. As I pointed out before, owing to the different policy adopted in Australia, - especially in relation to the fact that the States here are engaged in industrial enterprises, which the United States did not undertake - there is not the slightest doubt that as years go by, there will be increasing causes arising for determination under the powers conferred on the Federal Judiciary by this Bill.
– Not original jurisdiction?
– Certainly not ; but causes where conflict will occur between State and Commonwealth. As I illustrated earlier, the Commonwealth States have embarked in industrial enterprizes which are unknown in the United States, such as the provision of transport facilities, railways,, and various other public works and industrial activities, and these must, as time goes ‘on, involve disputes between State and. State,..and State and Commonwealth,, and State and individual, to a larger extent proportionately than in the United States. Consequently, we have no reason to doubt but that our experience will, in proportion to our population, parallel the experience of the United States.
– In the United States, there are no business relations between the Republic and the States, as there are between the States and the Commonwealth.
– There are no business relations because their provisions with regard to revenue are of a totally different character, and there are none of those safeguards that at present exist with regard to the preservation of the financial stability of each of the various States comprising this Australian Union. I haveonly one more reference to make, and that is to an English magazine. In the Nineteenth Century for August, 1901, there appears an article on “ The Supreme Court of the United States,” written by John Macdonell. I commend this paragraph to the consideration of honorable senators, because it is the opinion of one who knows, something about law and about the administration of law -
The impression of an English lawyer as to the Court may be worth little. Such as they are they are almost uniformly favorable. Business is. conducted with dignity and decorum ; counselare rarely interrupted ; their arguments are restricted to two hours - extended in insular cases to five. The tone and manner of the judgments befit the matter, and, when constitutional questions are considered, the judgments delivered by Mr. Justice Miller, Mr. Justice Matthews,’ Mr. Justice Bradley, and Mr. Justice Brewer, not to mention other members, present and past, oE the Court, are acute and sagacious, with occasional passages comparable with the best pages of the Federalist. I note a free discussion of principles, and abstinence from the compilation of a mere catalogue raisonne of authorities, and readiness to seek light from other countries. After reading many of the judgments, the pride of the American people in this Court is intelligible. In many respects it might serve as a model of the Supreme Court of the Empire. It is not broken up into two parts or composed of illustrious casuals.
That was written by an English lawyer soon after this Federal Parliament first met. He points out there that this Court of the United States, upon lines upon which it is attempted to establish the contemplated High Court of Australia, may serve as a model for the Supreme Court of the Empire. He used words which might be used by myself or any other honorable senator, if they were not taken in an offensive sense as applying to the members of such a court as some honorable senators wish to see appointed. He says -
It is not broken up into two parts or composed of illustrious casuals.
Obviously he is referring to some court in the Empire of which he has some cognisance, and he is speaking as an English lawyer. That reference and those to which I have already referred go to show that those who established the Supreme Court of the United States did so with a considerable amount of prevision. Although there was no work immediately awaiting that Court on its establishment, actions arose and multiplied in which that . Court had to be invoked, and to-day it is in such a position with regard to its work that it is actually proposed - I do not say it is proposed in Congress - but there is a movement on foot to have the number of the Supreme Court Judges increased from 9 to 21, and that in spite of the fact that there are, apart from the States Judges, other purely Federal Judges in the United States to the number of over 100. When we see that that has been the experience of America, and when we recognise the differing conditions in Australia, differing in such a manner as to suggest the possibility of their being an increase of such cases here rather than a decrease proportionate to our population, we ought to be influenced by the experience of that country, and should exercise a little prevision in this matter. We should, I think, determine, at this early stage in our history to establish a court on the lines of that to which I have already referred, and which has attained to such a position of dignity and respect in the eyes of outside people We should I think, endeavour to have all these matters which come up for determination decided in a truly Australian Federal sense, so that hereafter the construction of our Constitution and the determination of all disputes that may arise between the people of the Commonwealth of Australia and any section of those people or any individual citizens of the community will be determined, from the outset, on lines that will insure a proper regard for the true interests of the Commonwealth, and for the requirements of the people as a whole, rather than of those of any particular section. If we establish this Court at this juncture we shall, in the truest sense of the word, as pointed out by Senator Playford, be practising economy, financial economy and constitutional economy. W e do not desire to have decisions given in these early days of the Federation by men who are simply taken away from their ordinary duties to come together, perhaps without any previous consultation, and with very little consultation when they get together, to determine questions outside their ordinary routine, at times which they can only spare from their ordinary work. We desire that these matters should be inquired into by a tribunal specially appointed for the purpose - specially equipped with knowledge to enable it to determine them rightly, having all the time at its disposal, when not immediately engaged in determining such questions, for equipping itself mentally for their determination when they arise. Unless we have a court of this character, we cannot expect to have these questions determined on lines which - will make for the best interests of the Commonwealth. If we have to resort to the makeshift proposals which some people suggest, we shall not only be placing between the Commonwealth of Australia and the judiciary a third power that may at times be a party to the dispute coming before the tribunal, but we shall also be placing ourselves in the position of having to compensate the several States Governments for the use of the services of persons primarily engaged by them for States purposes. We shall have to pay the States Governments for the service of their State employes for such time as they can spare from their State duties to come together and determine matters with which they are not intimately and constantly associated. For these reasons I believe that it will be far more economical to follow the example set us by other countries that have been confronted by a similar problem. I feel certain that if we adopt this course,- the result,’ as the years go by, will justify our action, and we shall have established a court which will attain to the dignity and position, and command the respect that the Supreme Court of the United States now commands throughout the civilized world.
– I shall contribute my quota to the debate with little hope of arriving at a successful issue from the stand-point from which I consider this matter. It appears to me, under the present circumstances, that we are appealing from Caesar to Cæsar We have a galaxy of legal talent on both sides.
– From Cossar to Augustus.
– I hope the honorable senator will allow me to go on. There is some little difficulty in addressing a hostile audience.
– I hope the honorable senator will not say that ; we are all very friendly.
– I speak of’ a hostile audience in the sense that I fear I shall not be able to convert the honorable senator to my view of this measure. My principal objection to the proposed establishment of the High Court under this Bill is that the Government has been in existence for nearly three years, and it is only now bringing forward some of the most important legislative proposals which could be submitted to the Parliament. If the Government were seized with the great necessity of establishing the High Court, why did they not bring forward the proposal in the first session of the Federal Parliament ?
– They tried to do it, and failed.
– They, at all events, showed but a halfhearted desire to carry the measure. I suppose that at the first blush of opposition the Government dropped it very much like a hot potato: Whether that be so or not, I contend that the present is not an opportune time in which to bring this measure before Parliament. What is this Parliament 1 It is a moribund Parliament. In the course of a few months, five-sixths of its members will be before the electors for a renewal of their confidence, and will not this be a question of very great interest to the electors 1 If we believe Senator Keating, the establishment of this High Court will bring about the millenium. According to the honorable and learned senator, we have only to appoint a sufficient number of Judges at extravagantly high salaries, and the success of the Commonwealth will at once be assured. That appears to me to be a reasonable summing up of the whole of Senator Keating’s argument. The honorable and learned senator refers us to the United States. What about the United States? As I read history, the United States is a republic that severed itself from the old country, and it had to establish some kind of court, because it had no Privy Council to appeal to. What is the use of Senator Keating stating arguments which do not apply ? The honorable and learned senator’s arguments have no more application to the question than shall I say Kyabram has to the present controversy. I am ashamed of Senator Keating, who is amember of the Bar, a rising and a clever young man attempting to attribute bias to our State Judges. It is a shame to attempt to do anything of the sort. What has been our experience ? In a case which was only recently dealt with by the Victorian Full Court a decision was given in connexion with the sealing of stores in steamers passing along the coast, and it was confirmed on reference to’ the Privy Council. Did not the local court support the Commonwealth in that instance ? Was there any bias exhibited there ? If there were any bias exhibited it was a bias in favour of the Commonwealth.
– Three of the Judges sitting on the Full Court supported the Commonwealth, in the Abrahams case also.
– The case to which Senator Zeal refers was not a case of the Commonwealth against a State, but of the Commonwealth against ship owners.
- Senator Harney is able to draw a legal distinction, the force of which I am unable to appreciate. In the case to which I have referred the Victorian Full Court supported . the Commonwealth, and on reference to the Privy Council their decision was upheld. I do not consider it a crime to be economical. I find that those people who are so very free with other people’s money become very economical when they are asked to spend their own. It is then impossible to get anything out of them, but when we are dealing with the State “ cow,” economy is thrown to the winds, and all we have to do is to spend enough money to give universal satisfaction.
– I understand that the honorable senator is prepared to spend £94,000 on the naval subsidy?
– “Sufficient unto the day is the evil thereof.” I am not considering the naval agreement just now, and 1 have no desire to be drawn off the track by any such interjection as that.
– The honorable senator told us so this morning.
– Probably, I did. If Senator Matheson is not deaf he will hear a good deal more presently. I notice the honorable senator taking notes at the table, and I assume he is aspiring to the position of a Federal- Minister. Unless he shows more ability than he has yet done, it will be a very long time before he attains that dignity. I do not stand up here to oppose the ultimate establishment of a High Court, because I think that the time will come, and come very shortly, when it will be necessary. I make that statement as honestly and as fearlessly as Senator O’Connor ‘ advocates his cause. When it is possible to draw from the States the necessary Judges, we have every reason to believe that we could secure aHigh Court at a nominal expense, and thereby relieve the States of much outlay. I am astonished at my honorable friends in the labour corner supporting the Bill, because it is not very long since they declaimed here about the rights of the working man. They pointed out to the Senate what a shame it was not to increase the working man’s wages. What do they now propose to do ? They intend to cast away tens of thousands of pounds. That is not in the interests of the working man. How can these honorable senators go before their constituents by-and-by, and prove that the expenditure was necessary? Where does the working man come in here 1 Is be going to appeal to the Privy Council ?
Is he interested to the extent of an unstatable fraction of a farthing in the High Court ?
– The working men are interested in the just interpretation of the Constitution.
– What has the working man to do with it ? It is a perfect farce to suggest such a thing.
– He will have to pay.
– He will have to pay his quota, but the poor unfortunate fellow does not know what he is asking for. If theGovernment had shown a desirefor economy, and had proposed to take a Judge from the Supreme Court of each State, we might have had a High Court constituted on the lines of the former Bill. What did the Attorney-General say in introducing this Bill ? He believes that it is an emasculated Bill, which does not provide for enough Judges to carry out the work of tbe High Court. In other words, he says that five Judges are required. How are three Judges to do the whole judicial work of the Commonwealth ?
– We shall sweat them a bit.
– We may sweat the Judges as much as we like ; but unless we can give them wings, and allow them to float from place to place in a definite period of time, they will not be able to carry out their work.
– In the Convention the honorable senator would not agree to having more than three Judges.
– No ; and I should not have agreed to that if I had had my way - at all events for some time. Honorable senators attach great importance to the proceedings in the Convention. What happened in this connexion 1 Two most eminent Victorian lawyers - Mr. Isaacs and Mr. Higgins- - were left off the Judiciary Committee, and two laymen were appointed in their place. It looks as if it were worked in one interest. When Senator Walker was appointed he came to me and said - “ What do you think they have done? They have actually put me on the Judiciary Committee, and I do not know anything about the subject.” That was the body which recommended the formation of a High Court, which Senator O’Connor says has been launched under such favorable auspices, keeping only one side of the question before the public.
– Mr. Higgins was on the Committee.
– Perhaps I have made a mistake.
– The honorable senator is thinking of some other committee.
– No; I distinctly remember Senator Walker coming to me and complaining very bitterly that he had been put on the Judiciary Committee. In the first instance the Government proposed to’ appoint a Chief Justice at £3,500, and three Puisne Judges at £3,000 each, but the number was cut down to three. The Attorney-General said in another place that the Government had adopted the salaries which were paid in other States, but he forgot to say that his statement was hardly correct. In New South Wales, as Senator O’Connor knows very well, the salary of a Puisne Judge is £2,500 or £2,600. It is only in Victoria, that a Puisne Judge gets a salary of £3,000.
– In New South “Wales a Puisne Judge gets a salary of £2,600, with the right to a pension.
– The colleagues of Senator O’Connor in another place tried to procure for the Federal Judges a pension, certainly on a very comfortable basis. They proposed that a Judge, after serving so many years, should receive a pension equal to seven-tenths of his salary, so that -the Chief Justice, after serving fifteen years, could retire on a pension of £2,440 per annum, paid monthly. How are the constituents of my honorable friends in the labour corner “treated t An unfortunate man who goes into the civil service at a salary of £100, and who has probably a wife and several children to maintain, will receive no pension; he is compelled to insure his life, so that whenever he may retire he shall receive a sum of money in place of a pension. The Government desire to give a Federal Judge on his retirement a pension equal to seven-tenths of his salary, but require an unfortunate civil servant to assure his life. If my honorable friends in the labour corner intend to support that piece of iniquity, I am ashamed of them. Senator O’Connor has taken some exception to a remark 1 made the other day. If I showed undue warmth at the time I apologize. I have no ill feeling towards the honorable and learned senator. No one recognises his great ability more than I do.
I think he said that I was actuated by an unworthy motive in giving notice of an amendment to render a Member of Parliament ineligible for a seat on the Bench of the High Court until he had ceased to be a member for twelve months. My conduct is quite consistent. At my instance a provision to that effect was carried in the Convention, and it was only reversed by certain delegates coming in at an early hour in the morning and voting against it. I am fortified in my own view by 25 years’ experience in Victoria, where the Officials in Parliament Act has worked most beneficially. We should recognise that every man is human, and that it is better not to put any temptation in his way. I do not suggest that because a lawyer is a Member of Parliament he should be permanently disqualified, but I contend that we should not give to lawyers concessions which are withheld from other members of the community. I think that my honorable friends in the labour corner will all agree to that proposition. The interruptions have prevented me from stating my case against the Bill as concisely as I would wish to do. The colleagues of Senator O’Connor in the other House proposed that after fifteen years’ service a pension equal to seven-tenths of the salary should be paid to the Chief Justice and Puisne Judges alike. I have asked an actuary to capitalize a pension of £2,440 a year to a Judge who retires at the age of 65 years. I find that an annuity of £2,100, payable quarterly, costs £19,976. In other words, if a Judge receives £3,000 a year, and he serves for only five years, we may say that his salary is at the rate of more than £4,700 during the term. That is a very handsome sum indeed ; it is more than nineteen-twentieths of the community get.
– But he is better than the nineteen-twentieths.
– No doubt he is a sort of archangel Michael in the estimation of my legal friends, but I cannot look at him through their spectacles, because I cannot imagine a human being so perfectly pure and immaculate. I also find that a sum of £23,305 is required to purchase an annuity of £2,450, payable quarterly - or £10 more than the pension which the Government propose to provide for the Chief Justice.. If we take the cost of the annuity at £1,500 a year, it means that, during his term of office, the
Chief Justice will draw a salary at the rate of £5,000, which is equal to that obtained by the Judges of the High Court in Great Britain.
– That is, assuming that he would retire at the age of 65 years ?
– Yes. If he is to retire at the age of 55 years, £31,S69 will be required to purchase an annuity of that amount.
– There are many Judges who do not retire until after 70 years of age.
– I am not taking a hypothetical case, but the case which the Government propose to provide for.
– The Bill before the Senate does not provide for any pensions.
– I know quite well that it does not ; no thanks to the Government. Did they not fight all down the line to get pensions for the Judges ?
– We are dealing with the Bill as it is.
– Is not the honorable senator flogging a dead monkey 1
– If the honorable senator were flogged a little more it would do him good; at all events he would not be so constantly giving us the benefit of his musical voice. I ask honorable senators, if they can, to come down to bed-rock and to look at the question from an economical stand-point. Let us make a contrast with Canada, which is an economically governed country. Canada has a larger territory than Australia.’ The territory of the Dominion is 3,653,946 square miles, as compared with 2,972,906 in the Commonwealth.
– Much of it is snow in Canada.
– That does not matter. There are 681,040 square miles more in Canada than in Australia. The population of Canada is 5,338,883 souls, as against 3,756,894 souls in Australia ; showing that Canada has, in round numbers, 1,600,000 more souls than we have. The debt of Canada, according to the last returns in Whitaker’s Almanack, amounts to £53,696,001. The debt of the States of Australia amounts to between £260,000,000 and £270;000,000- about five times as much as the debt of Canada. The debt of the mother colony of New
South Wales is something like £20,000,000 more than the whole debt of Canada. Itamounts to £75,000,000.
– There are no railways . belonging to the Government in Canada.
– If the debt of New South Wales were not partly accounted for by the railways, one would say that there was scarcely money enough in the civilized world to provide loans foithat State. The debt of the United States . is only £221,000,000, though that country has a population of 80,000,000 inhabitants, and unbounded resources. It is evidentthat we have been carrying on in an extravagant and unheard of fashion, and it is time that we looked at matters in the rightlight.
– The Commonwealth Government is not responsible for the debts of this country.
– I did not say that it was. I am only giving certain facts which should cause honorable senators to reason carefully before plunging Australia into further expenditure. We must not forget that New South Wales, with her enormous debt, is an integral part of the Commonwealth. If any one of theStates defaulted, the Commonwealth would have to come to the rescue. It is the Commonwealth Government, in other words, that owes this money.
– It - is certainly thepeople of the Commonwealth.
– Exactly, and the Commonwealth Governmentwould be responsible, as no one knows better than the Vice-President of the Executive Council. I am no advocate for paying sweating salaries. Any man who occupies a considerable position should bepaid handsomely. But there is a difference, between paying a Judge handsomely and paying him extravagantly. Such salaries as are here proposed are not paid in otherparts of the world.
– Oh yes ; all over theworld, except in Canada.
– Whatabout the United States, which is the greatexemplar of modern times 1
– It is only men of independent means who can take judicial positions in the United States.
– Then, we ought to be able to find men of independent means who are sufficiently patriotic tu-. fill vacancies here. But they do not. They look after what is vulgarly called the “ spondulix ! “ They take care to get their salaries paid every month, and sometimes in advance.
– When the American Judicial salaries were fixed, money had only one-half its present purchasing power.
– Then why have not complaints been made, and why have not the salaries of the American -Judges been increased ? I do nob desire the Senate to believe that I wish to have officials underpaid. I do not want that at -a.U. But I argue that if £2,500 per annum is a salary large enough to pay to the Puisne Judges of New South Wales, it is sufficient for a Commonwealth Judge. In regard to what the Chief Justice of Victoria is paid, let me state that I am old enough to know that it is not very long since the salary of the Chief J ustice of Victoria was raised. The salaries of the Chief Justices of Queensland and New South. Wales were also raised. Victoria was the first sinner. It was owing to the fact that an illustrious lawyer was being promoted to the Chief Justiceship that the salary was increased in this State. An Act of Parliament was passed whereby the Puisne Judges were paid unalterable salaries of £2,500 a year, with £500 a 3’ear under a local Act which can be repealed at any time. I am quite certain that if Senator O’Connor had the same influence in instituting machinery for the establishment of courts in New South Wales as he has in establishing the Commonwealth High Court, he would be well able to fix the salaries at a lower figure than is now paid. I do not think that in the. present state of the country it is right to pay these extravagant sums. Honorable senators from Queensland and New South Wales are well aware of the unexampled misfortunes that have overtaken the people in those two States in consequence of the drought I have special means of knowing that there are hundreds and thousands of people who . have been reduced from comfortable and even affluent incomes to poverty in consequence of the great dis- aster that has overtaken portions of this country. How can honorable senators face their constituents if they vote for the establishment of an expensive Court and the payment of extravagant salaries ? Are honorable senators aware that something like 60,000,000 sheep have died from drought in Queensland, New South Wales, and Victoria during the present crisis 1 Twelve months ago the number of sheep that had died was estimated at 47,000,000, and competent authorities have said that that total has been added to enormously more recently. In the same three States alone, 4,741,830 head of cattle have died, and the wool shipped from Australia in 1901-2 as compared with 1902-3 has decreased by 279,039 bales. That quantity of wool, at £1 5 a bale, represents a loss of over £4,000,000. Senator McGregor laughs at these figures. I do not envy the man who in face of the misfortunes that have overtaken so many of the people of this country can find it in bis heart to laugh and scoff.
– It is only one in- , dustry that is in this position.
– But it represents four-fifths of the population of the Commonwealth.
– Mining and agriculture are all right.
– But they may not be all right for long.
– And shipping is all right.
– Shipping is simply a matter of wood and iron. I am speaking of cattle and sheep that have died, and of human beings that have suffered.
– We all admit the gravity of the drought.
- Senator Pearce is a level-headed man, and from his point of view endeavours to do what is right. He thoroughly appreciates the importance of these facts.
– But what is the connexion between a J udge and sheep ?
– The woolsack !
– It seems to be very pleasant for honorable senators to make jokes about the calamities of the Commonwealth, but I am unable to laugh at such things. If honorable senators had seen, as I have seen, scores of unfortunate people, heads of families, begging for money to carry them on, they would not laugh. It is not a laughing matter.
– We are not laughing at that.
– I do not wish the salaries of .the Judges to be cut down unduly, but I do not think they should be fixed at such rates as are proposed.
– What does the honorable senator think would be a fair salary?
– I should say that the rates paid in New South Wales are fair. If, after, a few years, the Commonwealth recovers, I should have no objections to raise the salaries to amounts consistent with the times. We ought to walk before we run, and should not launch on experiments which may prove ruinous.
– Does the honorable senator think that the proposed salaries are too high without pensions ?
– I do. I should make highly-paid officers do the same as lowly-paid officers, and insure their lives. If a Judge were to put aside £200 or £300 a year in the way of insurance, he would, at the age of 65, be entitled to a very handsome sum ; and what is good for the rank and file is good for the commanding officers.
– At any rate, there is the old-age pension.
– I do not want to make a man a pauper, but to keep him a man.
SenatorDe Largie. - An old-age pension does not make a man a pauper.
– Yes, it does ; and if Senator De Largie had the same knowledge as I have of the effect of old-age pensions, he would be of a similar opinion. I have known poor but reputable members of society maintained by their friends, but directly they were given an oldage pension they began to drink. Every man, who has been in want for a number of years, has not the force of character to withstand temptation. We have been told that the proposed High Court will cost only a small amount, but a glance at the Bill may enable us to form an estimation. First of all the Chief Justice is to receive £3,500, and the two Puisne Judges £3,000, making a total under this head of £9,500 per annum. According to clause 4S the travelling expenses of the Judges are to be allowed, and these cannot, on a moderate estimate, amount to less than £3,000 a year. Then clause 52 empowers the appointment of a Registrar, and as this is an important officer of the Court, I estimate his salary at £1,000, which, in view of the salaries fixed by the Commonwealth during the past two> years, cannot be regarded as extravagantIn each of the States there is to be a DeputyRegistrar, and their salaries I put down at £500 per annum each, or a total of £3000. Another official to be appointed is a “Marshal,” and that, I suppose, is a new fangled name for Sheriff. Such an officer will not. be paid less than £1,000 per annum, and the six Deputy-Marshals I have put down at £700, making a total of £5,200. Therewill be three Judges’ Associates at, I suppose, £450 each, or £1,350 per annum. It will be seen that merely for the. officials of the High Court, the cost amounts to £23,000 per annum; and when we consider that there will be a host of other officials such as bailiffs, tipstaffs, and clerks, it can easily be imagined that £30,000 will not be nearly sufficient. Then the question arises as to where the High Court is to be housed. It is scarcely possible to us to gocap in hand to the States Governments, after the observation’s which have been made here as to “ makeshift “ Judges. It is not a good way to approach a friend tocommence by- belittling him. Senator Pearce challenged the accuracy of a return which I presented showing tho cost of the administration . of justice in Australia at the present time. But it is not my return ; the figures, are taken from the Estimates of the six States, which I perused in the PublicLibrary, and I found that the total cost, amounted to £571,306. Whether that amount is correct by a pound or two more or less I cannot say, but the figures are asthey appear on (the States Estimates, and they show the extravagant way in which the Judicature Acts have been administered. The amount spent on the administration of justice in Australia is about £97,085 more than that spent on the administration of justice and the police force combined, in Canada. The authorities for those figures are as accessible to honorable senators as to myself, being the Statesman’s Year Book,. Whittaker’s Almanac, and one or two other annuals which deal with statistics. In the Dominion of Canada the Chief Justice receives £1,644 per annum, and five Puisne Judges £1,440 each ; in Ontario the Chief Justice receives £1,400, and four Puisne Judges £1,200 each ; and in Quebec the Chief Justice receives £1,200, and five Puisne Judges £1,000 each.
– Do they receive pensions ?
– I do not believe so.
– One might as well be a crossing-sweeper as a Canadian Judge.
– I do not think that under favorable conditions a salary of £1,200 a year is to be despised. I am not arguing that these salaries are enough, but simply showing what is done in an economically-managed country. In Australia, the States have incurred a holocaust of debt which will have to be met some day. In Victoria a loan of £5,000,000 has to be provided for ; and this will test to a great extent whether the States will be able to borrow as freely in the future as they have done in the past.
– That is Victoria.
-The same remark might be made of all the States. At all events, during the whole of my life I cannot remember anything to the discredit of either House of the Victorian Legislature. I am not saying that we, in Victoria, are better or worse than our neighbours, but merely that the Parliament of that State has always been a body of which we had no occasion to be ashamed. I appeal to honorable senators not to be led, in their enthusiasm, to help the Government out of a difficulty by giving a vote which they may afterwards regret. Although this may be the most estimable Government that ever existed, its life may be measured by months, or at most, a few years ; and some other Government may, bettering the present example, try to force on the community a load of debt for which it will be found impossible to provide. In Victoria we at one time heard a good deal about cutting down the “ tall poppies,” but this Government seem to be planting poplars. It is proposed to have, in addition to the High Court, an Inter-State Commission, a High Commissioner to astonish Downing-street, an overland railway to Western Australia, and a Federal capital ; and a nice state of things will result unless members are particularly vigilant. Those who initiated the reform movement in the township of Kyabram did so from the best of motives, and they are not deserving of the derision which has been cast upon them, but rather merit commendation for endeavoring to bring a reckless Government to the exercise of reasonable economy. Whether this Bill does or does not pass, I have done my duty. 7 i
I have attempted to the best of my ability to show that a High Court is not required at the present time, but that it would be quite possible, by appointing a Judge from each State, to provide a tribunal which would work admirably in the best interests of the community.
– I am very glad that this is a non-party question and that I have the privilege, for once, of supporting the Government. In justice to Senator Zeal, I must say that his attitude has been most consistent, both in the Federal Convention and in this Chamber. In the Convention the honorable senator was exceedingly anxious to keep down the expenditure in connexion with the High Court, and he made some rather uncomplimentary allusions to the Judicial Committee of that Convention. I was rather surprised to find myself and Sir Alexander Peacock on that Committee, but I presume we were placed there because there was no other committee where our services could be utilized. But as a member of the Committee, I began to learn a little about law, and, with Senator Dobson, was amongst the minority who were strongly in favour of retaining the Privy Council appeal Although we were in a minority in the Committee, we were actually in a majority in the Convention ; and the result is that, even after the High Court is established, there will still be the appeal to the Privy Council from the State Courts, except from those which have conferred on them Federal jurisdiction.
– ‘The honorable senator is a “little Australian.”
– I am not, but I believe in preserving the appeal to the Privy Council. I think the time has come for us to legislate .for the establishment of a High Court. Judging from the experience of other States in Australia, I am afraid it is only too true that first Parliaments have generally proved to be the best. That was the case, I believe, in both Queensland and New South Wales. Whether or not that will be so in the case of the Federal Parliament, it is, perhaps, premature to say, but the lesson for us would seem to be that we, who are members of the first Federal Parliament, should see that the Constitution is carried out in its entirety. Senator Zeal made some reference to Canada. We may not be so economical here, but I direct the honorable senator’s attention to the fact that living is cheaper there than here. With regard to the extent of Canada, it is quite true that its area is larger than that of Australia, approximately, to the extent of the area of Queensland. If we added to our territory an area of the size of Queensland, Australia would practically have the same acreage as has Canada.
– What about the useless land in the interior ?
– I remind the honorable senator that there is a considerable area of useless land in Canada also, owing to the extreme cold. I do not think, for instance, that the country about Klondyke is ever likely to be permanently settled by a very large population. Much as I should like to see this High Court established, I think there is a great deal to be said in favour of postponing its establishment until the beginning of next year, when the Claims against the Commonwealth Act will expire. Another reason why I consider there is some force in that suggestion is that I am one of those who recognise that we shall probably lose some of the brightest intellects in the Parliament of the Commonwealth if the High Court is established before the 1st January next. I consider that it will be a distinct loss to public life in Australia if we should lose some of the gentlemen who I suspect will probably be asked to accept positions on the High Court Bench. It may please Senator Zeal and others to know that, by postponing the establishment of the High Court “ for six months, we should save six months’ expenditure upon the institution. With regard to the question of cost, allow me to mention that, even assuming that the cost of this High Court will be 20,000 a year to begin with-
– It will be more than £30,000.
– Assuming that the cost will be £20,000 a year, that will mean three farthings per head for each person in the Commonwealth, and as there are 36 honorable senators, this Senate in its joint capacity will have tq pay 2s. 3d. a year towards the up-keep of the High Court.
– Too much.
– Supposing the cost to be twice that sum - £40,000 - that will mean a per capita charge of 1-Jd., or a contribution of 4s. 6d., per year from the whole of the members of the Senate. The fact is that justice and efficiency are the first consideration, and the expense is altogether a secondary matter. In this connexion, I desire to say that I for one object to the Federal Parliament being continually blamed for extravagance. It is the States Parliaments who are guilty of extravagance.
– Two blacks do not make a white.
– I do not admit that the Federal Parliament is a black at all. As regards the emoluments of the Judges, I think the Judges of the High Court should receive emoluments at all events equal to those received by any of the Judges of the States. I have taken some little trouble to look into this matter. I find that in New South Wales the puisne_ Judges receive a salary of £2,600 a year, and if they happen to fall ill even during the first year of their appointment they are entitled to a pension of seven-tenths of that salary - £1,820 a year - for life.
– That is too much altogether.
– The Chief Justice of the Supreme Court of New South Wales receives a salary of £3,500, and he is entitled to a pension of £2,450. We propose, according to this Bill, to give the Chief Justice of Australia £3,500 a year and no pension, If it were proposed to give him- £5,000 a year without a pension there might be something to be said in favour of such a proposal.
– Why not make it £50,000 at once %
– Senn tor Zeal knows as well as I do that there are men in private life who earn more than £5,000 a year, and do not occupy anything like so dignified a position as that of Chief Justice of Australia.
– A salary of £2,600 a year, with a pension, is equal to £3,900 a year on the basis given by the honorable senator before.
– To find out approximately what a pension is equal to in duration, we have only to subtract a person’s present age from 86, and divide by two.
– I have given the honorable senator the result of an actuary’s calculation.
– I take any age. We have only to subtract a person’s present age from 86 and dividebytwotodiscover approximately the probable duration of life of the person. If, for instance, we take the case of a person aged70, the difference between that and 86 is sixteen, and that divided by two will give eight years ; and eight years’ purchase of the pension would in such a case approximately be what the pension would cost the country. It is a very simple rule. You subtract your present age from 86 and divide by two to get the expectation of your life. I have given notice of some amendments which I intend to carry to a division when the time comes. I have made certain proposals with regard to a scale of pensions for the Justices of the High Court. If, for instance, a Judge should become incapacitated at any time during the first five years after his appointment, I propose that he should get a small pension. If this should occur during the next five years, a larger pension should be paid ; if during the third period of five years a still larger pension, and at the end of fifteen years, if the retiring Judge is 65 years, I suggest a pension of half-pay. I need not give further details at this stage, but the maximum pension I propose is half-pay. Honorable senators will see that if this proposal is compared with the provision existing in New South Wales, the Chief Justice, instead of being entitled to a pension of £2,450, would be entitled to a pension of only £1,750 a year. Some previous speakers have referred to the question as to the place where the High Court will sit. According to clause 10 of this Bill, it is provided that -
The principal seat of the High Court shall be at the seat of Government. Until the seat of government is established, the principal seat of the High Court shall be at such place tis the GovernorGeneral from time to time appoints.
– We shall have to. hire a place.
– Not at all. This should be read in conjunction with section 1:25 of the Constitution, which provides that -
The seat of government of the Commonwealth shull be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in, and belong to the Commonwealth, and if New South Wales be an original State shull be in that State, and be distant not less than 100 miles from Sydney..
So that the seat of the High Courtshould be in New South Wales until we have a Federal capital of our own.
– What is Melbourne, then t Is it not the seat of Government at present?
– No ; it is simply the place where Parliament meets. It is not, aGcor.ding to the Constitution, the seat of government.
– What is the place where Parliament meets but the seat of government ?
– I refer the honorable senator to the Attorney-General. I am not a lawyer ; I was only a member of the expired Judiciary Committee of the Convention.
– I do not think that these strained constructions will do the mother State any good.
– We have been told by previous speakers that the Constitution of America has been developed partly, of course, by amendments of the Constitution itself, but also by decisions of the Judiciary, and I take it by the practice of the community. So that although our Constitution is, as Senator Playford has remarked, very rigid, it is not exactly castiron. We know that in New Zealand recently there has been considerable dissatisfaction expressed with a judgment of the Privy Council. The New Zealand Judges almost unanimously allege that that judgment was given in ignorance of certain local conditions existing in that colony. Whatever may be the objections to the High Court, it will, at all events, be well informed as to the practice and wishes of the whole community of Australia. I have no desire to decry the importance of the Privy Council. I believe it is a magnificent High Court for the British Empire ; at the same time in matters purely Australian I trust that our High Court will give that satisfaction which we have every reason to expect from it’. It will, at all events, be the final interpreter of the Constitution. Senator Barrett alluded to the population of Australia as not being very great. That is perfectly true, but I regret that the honorable senator should have bpen one of those who were prepared to go a long way towards preventing Australia from securing population. I refer to the action taken by the honorable senator in supporting the Immigration Restriction Act.
– Does the honorable senator think that a reason why the . population of Australia is not increasing is relevant to this Bill?
– It is one of the arguments which have been used by honorable senators that the population of Australia is not likely to be very quickly increased.
– The honorable senator is in order as to that, but he was proceeding to deal with a question as to why it was not increased.
– I, of course, bow to the ruling of the President. It has been said that it is undesirable that the Justices of the High Court of Australia should have to serve two masters. We have good authority for knowing that it is almost impossible to give satisfaction if one attempts to serve two masters. I desire that the Justices of the High Court shall be the representatives and servants, if I may say so, of the Government and Parliament of the Commonwealth alone.
– Which consists of the people of the various States.
– It is true that the Commonwealth consists of the people qf the various States, who number 3,800,000 at the present time. It is quite true that the position of a Justice of the High Court will be a very dignified one but a man cannot live upon dignity alone, and, from my point of view, the emoluments proposed in this Bill are not nearly sufficient. I happen to know that the general manager of the Hong Kong and Shanghai Bank gets a salary of £10,000 a year, and yet it is proposed that the Chief Justice of all Australia should have a salary of but £3,500 a year. I know several general managers of banks in Australia who get £3,500 a year, and they are all entitled to retiring allowances ; but much as I esteem them they do not, in my opinion, occupy so dignified a position as that of the Chief Justice of the High Court. The Commonwealth is now two and a half years old, and’ Senator Barrett would seem to think that that is a good reason why we should go on for some time longer without a High Court. I think, on the contrary, that having postponed action in this matter for so long, we should delay no longer. Much as I esteem Senator Zeal, I shall feel bound to oppose thehonorablesenator’ssuggested amendment that no Member of the Commonwealth Parliament shall be eligible for a position on the High Court Bench. That is practically saying that the men who are best qualified for the position shall be excluded. According to the honorable senator, men in whom the whole community have expressed great confidence by returning them to this Parliament are to be excluded from the legitimate ambition of men occupying an eminent legal position.
– Either that, or they are to be excluded from the Federal Parliament.
- Senator Barrett referred us to the American Constitution, and quoted from that Constitution a most absurd clause in the light of what we know has taken place since. The clause which the honorable senator’ quoted makes the statement that all men are born equal, but we know that all men are not born equal. Some men are born lame, others are born blind, or deaf or dumb. .
– Nobody ever meant that.
– Why do not people say what they mean? ‘ I suppose it was merely a piece of stage thunder. I think that there is nothing more untrue than to say that all men are born equal.’ If all men were made equal one day, they would not be equal next day. If all the property in the world were divided on that principle, we should not all be equal within 24 hours? I should prefer five Judges to three. So far as I can see, we shall not be much older before we shall require to have five Judges. I believe that my honorable friends in the labour corner are very anxious to have an Arbitration and Conciliation Act brought into force shortly. It will probably necessitate the appointment of another Judge, if we are to judge by the experience of New South Wales, where a member of the Supreme Court Bench has had to be set aside for that purpose. I regret that Senator Symon has not been able to be present durthe debate. He was chairman of the Judiciary Committee of the Convention, and we learned so much from him in that capacity that I should like honorable senators to have the opportunity of hearing what he has to say on the Bill. I hope that he will be able to attend before it is read a second time. I have much pleasure in supporting the motion.
Debate (on motion . by Senator Styles) adjourned.
Senate adjourned at 10.3 p.m.
Cite as: Australia, Senate, Debates, 30 July 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030730_senate_1_15/>.