1st Parliament · 2nd Session
The President took: the chair at 2.30 p.m., and read prayers.
Senator STYLES presented a petition from 462 electors of Victoria, praying the Senate to prohibit the introduction, sale, and manufacture of intoxicating liquors in British New Guinea.
Senator WALKER presented three similar petitions from 63 electors of New South Wales.
Senator BEST presented four similar petitions from 131 electors of Victoria.
Senator Lt.-Col. CAMERON presented a similar petition from 41 electors of Tasmania.
– I am not yet in a position to make a statement.
– I have made inquiries, but I have not received an answer. As soon as I get an answer I sholl let the honorable senator know.
– I desire to ask the Postmaster-General, without notice, whether bound copies of the statutes of last session are available to the public, and if so, at what price?
– They are available on application to the Government Printer, and the price is 15s. in cloth binding or 17s. 6d. in half-calf binding.
– I desire to be absent on Friday next, as I have important business to perform in Adelaide. Honorable senators will recollect that I have been absent only once during a period of two years. The notice-paper shows that in all probability Committee work only will be entered upon during Friday, because there are two Bills to be dealt with in Committee. Standing Order 21 provides that -
Whenever the House shall be informed by the Clerk at the table of the unavoidable absence of Mr. Speaker, the Chairman of the Committee of Supply and Ways and Means shall perform the duties, and exercise the authority of Speaker in relation to all proceedings of the House as Deputy Speaker until the next meeting of the House.
On the only occasion on which I was absent I understand that some objections were made, and that it was thought by some honorable senators that I ought first to have made a statement to the Senate. I, therefore, make this statement to the Senate, and I hope there will bo no objection taken to my absence.
Honorable Senators. - Hear,hear.
questions to the president.
asked the President of tho Senate, upon notice - 1.In view of clause 51 of the Constitution Act, giving the Parliament power to make laws “with respect to postal, telegraphic, and other like services,” is Message No. 13 of the House of Representatives in order?
– I must respectfully decline to answer the questions.It is my duty to answer questions of order as they arise, and to give decisions as to the practice and procedure of the Senate as the occasion may require. Honorable senators will recollect that in Standing Order 1 it is provided that the practice of the British House of Commons shall prevail in any case not provided for. If they will look at page 236 of May, 10th edition, they will find the following passage : -
As regards questions addressed to the Speaker, no written or public notice of such a question is permissible ; nor can any appeal be made to the Chair by a question save on points of order as they arise, or on a matter which urgently concerns the procedure of the House.
There are a number of references to matters that have occurred in the House of Commons given to support that dictum. I have looked at them all, and they bear out what islaid down in May. Therefore, I think I should be exceeding my duty if I answered these questions.
In whose charge arc themoneys composing the balances to credit of the New South Wales regiments and corps on tho 30th June, 1903 ?
Is it intended to place such moneys to the credit and use of the regiments and corps to which they legally belong ?
What steps, if any, have yet been taken to place such moneys at the disposal of the said regiments and corps ?
– The answers to the honorable senator’s questions are as follow : -
– I give notice that I shall move the adjournment of the Senate next week if they are not dealt with.
– That is not the way to give notice.
asked the VicePresident of the Executive Council, upon notice -
In view of the press exposures in connexion with short weights and adulteration, and that in sub-section (1) of section 51 of the Constitution power is given to deal with trade, and in subsection (15) with weights and measures, is it the intention of the Government to introduce legislation for the protection of the consumers ot the Commonwealth ?
– The pressure of other necessary legislation will make it impossible to introduce such a measure this session.
asked the VicePresident of the Executive Council, upon notice -
When the report of the Auditor-General for the financial year endod 30th June last will be available ?
– The answer to the honorable senator’s question is as follows : -
The Audited Finance Statement for the year ended 30th June, 1903, will be presented to Parliament as soon as possible, probably in October.
– We may be dealing with the Estimates before that time. We desire to see the report before we deal with the Estimates.
– It is not at all likely that it will be ready before October. It was not ready until later than that month last year.
– It will be of no earthly use unless it is available when the Estimates are submitted.
– I move -
That, in addition to the days of meeting set forth in the Sessional Order of the 27th May, Tuesday of each week be a meeting clay of the Senate during the present session,at the hour of half-past two in the afternoon.
I have already explained the reasons for moving this motion. On a previous occasion the matter was fully discussed from every point of view, and, therefore, I content myself with simply moving the motion, which I hope will be carried.
– It seems to me rather remarkable that in a Senate with 36 members, it should be deemed by the Government necessary to sit as often as the other House which has more than twice that number. I cannot see any reason why the Senate should be asked to sit with this frequency. This is not a matter involving the convenience of honorable senators, but, I assume, the convenience of the Government in getting their measures put through.
– Not the convenience, but the necessity of getting the measures put through.
– If it involves the necessity, as Senator O’Connor states, I draw attention to the fact that public business is delayed seriously by the unsatisfactory manner in which it is conducted. It has just been stated, in answer to my question, that a matter of the gravest importance in the public interests has been lying in abeyance for over five weeks, and is still only under the consideration of the Treasurer. I refer to the important question of the custody and the availableness for public expenditure of a sum of £20,000, the greater portion of which came from the old colonies now States. The Commonwealth is getting the benefit of this money without any consideration, and yet it is alleged to be tied up in the hands of the Treasurer, contrary to the laws under which it was granted. Now, after the lapse of six weeks, we are told that the question is under consideration of what shall be done with it ; in other words, whether the Treasurer shall confiscate it or not?
– Has that anything to do with this motion?
– It is cited as an evidence of the unsatisfactory methods of administration pursued by the Government, and I hold that it is due to that fact that the Senate, consisting of 36 members, is asked to sit four days in the week, while the other House, consisting of 75 members, is asked to sit no longer. Personally I am quite prepared to do what is necessary in order to carry on the business of the country.
– There are not so many- four hours’ speeches in the House of Representatives.
– The other House has sat more frequently than we have done.
-The fact that the House of Representatives has sat more frequently than the Senate is no reason why we should be asked to sit another day per week. I should not mind that so much if the business of the Senate had been conducted properly. But we have sat day after day when we have had no business to deal with. We frittered our time away for a fortnight or three weeks over standing orders that no one believed were to be validated during the present Parliament. Time has been wasted owing to the management of the Government, and they are now making an unusual and unreasonable demand upon the time of honorable senators.
– If the honorable senator did not come on Tuesdays it would not be unusual.
.- The honorable senator is making a statement which, if made outside the walls of Parliament, would be best characterized by a word that I cannot use in Parliament. I think that if my attendance here gives satisfaction to my constituents it ought not to trouble the honorable senator. Sometimes he would be much better off if I did not attend. If it is requisite that we should sit four days a week, I shall vote for the motion ; but I should like to hear from the Vice-President of the Executive Council some reasons why we should sit an extra day.
– I gave those reasons very fully last week.
.- The honorable and learned senator gave them in a very general manner. The reasons he gave last week were connected with taking Fridays for Government business. That has been practically assented to. With reference to alloting a portion of Wednesday’s sittings to private business, I submit that we have reached too late a period of the session to do any good in that direction. For some time past’ I have recognised that it has been perfectly useless to bring forward business, because there was no hope oi getting it through.
– Then why did the honorable senator put motions on the paper ?
– After I put business on the paper I found that there was no possible hope of having it dealt with. I made inquiries in Ministerial quarters and found it was useless to attempt to proceed. Consequently I hav.e several times endeavored to withdraw motions from the business paper. But I was unable to do so, because of our eccentric standing orders. We cannot hope to get anything in the way of private business transacted during the term of the present Parliament, and therefore honorable senators must know that there is no sense in the proposed re-arrangement which contemplates providing for the transaction of private business on Wednesdays. I should prefer to give a little extra time to the Government, and sit three days a week.
Question resolved in the affirmative.
Motion (by Senator O’Connor) proposed -
That after the 7th day of August, instant, on Tuesday, Wednesday, Thursday, and Friday during the present session, Government business take precedence of all other business on the notice-paper, except questions and formal motions, and that private business take precedence of Government business on Wednesday up to the tea adjournment, and that so much of the Sessional Order of the 27th May as is consistent herewith be rescinded.
– Before this motion is put, I wish to call the attention of the Senate to Standing Order 187 -
A resolution or other vote of the House may be read and rescinded ; but no such resolution or other vote may be rescinded during the same session, except with the concurrence of an absolute majority of the whole House, and after seven days’ notice.
The -motion which Senator O’Connor has moved purports to rescind a resolution. Seven days’ notice has not been given. But on looking at the resolution I find it provides that certain sitting days shall be the sitting days of the Senate “ unless otherwise ordered.” Therefore, there is no necessity for the concluding words of the motion, and there is no necessity to rescind a portion of the sessional order of the 27th May. I suggest to the VicePresident of the Executive Council that he should leave out the words “and that so much of the Sessional Order of the 27th May as is inconsistent herewith be rescinded.”
– I shall readily follow the suggestion which the President has made, and I propose to amend my motion by striking out the words he has referred to. It will also be necessary to make some amendment in the previous part of the motion. I think that what is intended will be carried _ out by inserting the word “ except “ after the word “and,” in line 6, and I propose to do that.
Question amended accordingly.
– It has been the practice of the Senate, in dealing with private members’ business, that on one Friday notices on motion took precedence, and on the following Friday orders of the day took precedence. I presume that the intention is to adhere to the order in which private business stands upon tho paper. If that be the case, notices of motion will have to take precedence on one Wednesday and orders of the day on the following W Wednesday ; just as was done when private business was taken on Fridays. So long as that practice is safeguarded I shall support the motion.
– I suggest that the words “tea adjournment” be altered to “ dinner adjournment.”
– I do not care what we call it.
– In reference to the point raised by Senator Pearce, we have dealt with private business this session by giving notices of motion and orders of the day precedence on alternate Fridays. We can adopt the same practice on Wednesdays, by adding some words to the motion before the Chamber. I move -
That ‘ the following words be added :- “ and that, unless otherwise ordered, private orders of the day take precedence of private notices of motion on alternate Wednesdays.”
Amendment agreed to. Question, as amended, resolved in the affirmative.
In Committee (Consideration resumed from 5th August, vide page 3083) :
Clause 35; -
The High Court shall, except as provided by this Act, have jurisdiction to hear and determine appeals .f,oi all judgments whatsoever of any Justice or Justices, or Judge of the Supreme Court of a State, exercising as a Court of first instance’ the original jurisdiction of the High Court, whether in Court or Chambers.
– Some discussion took place last evening on clauses 35, -36 and 40 which are really connected. Perhaps it would be useful to the Committee if I stated in a few words what is intended by this clause, and the reasons for some verbal amendments which I intend to ask the Committee to make. I am much indebted to Senator Harney, Senator Symon and others, for pointing out matters in which, for the sake of clearness, it will be better to make some alteration in the wording. It is intended by clause 35 to deal only with appeals from any Justice or Justices of the Court of a State to the High Court itself, in cases -where the Justice or Justices exercises the original jurisdiction of the High Court. All appeals from the Supreme Court of a State are dealt with under clause 36 ; that is to say, not only appeals in State cases, but appeals in cases where a State Court has exercised Federal jurisdiction. But as no mention is made in clause 36 of a Court exercising Federal jurisdiction, I think it would be better if an amendment were made, which I will move in the proper place, making it quite clear that that appellate jurisdiction is given, not only in cases where the Supreme Court sits and decides cases in its State jurisdiction, but also where it exercises Federal jurisdiction. Honorable senators will see that in the appellate jurisdiction given in the clause, reference is made to a State Court exercising ordinary jurisdiction and a State Court invested with Federal jurisdiction. There is a limit on cbe appeals in the first sub-clause. First of all the amount in question must be £300 or over. In cases of appeals to the Privy Council the amount is £500. The next paragraph 2 also involves a limit ; and 3 deals with cases affecting States in different ways. Under 7 t 2 paragraph (b) of sub-clause (1) of clause 36 any order in any case, although it may be under the appealable amount, and may not come within sub-clauses (2) or (3) but which nevertheless involves some important question that ought to be considered by the High Court, there is power given to the High Court to grant special leave to appeal. That leave may be given under -
Any judgment whether final or interlocutary, and whether in a civil or a criminal matter in respect to which the High Court thinks fit to give special leave to appeal.
That is an arrangement as to appeals from a State Court. Clause 39 makes certain matters of Federal jurisdiction exclusive. That is to say, it gives power to the High Court only to deal with them. In all other matters original jurisdiction is handed over to the Supreme Courts of the States to be exercised, concurrently with the High Court - with the exception that the Federal jurisdiction of the States Courts is to be exercised only upon certain conditions. It is in our power to invest the States Courts with the whole of the Federal jurisdiction if we think fit. Therefore we can limit the terms upon which we hand it over. We limit the terms by providing that the States Courts shall have Federal jurisdiction within the limits of their several jurisdictions, and subject to certain conditions. With regard to the limits of their several jurisdictions, the meaning is, first of all, the territorial limits. They are not extended. Then there is a limit as to the amount of the claim or the nature of the subject-matter. But within those limits each court, whether County Court or Magistrates’ Court, has Federal jurisdiction, with the exception that there is no appeal to the Privy Council. Then we come to sub-clause (b), and this, with sub-clause («), is the provision that was discussed by Senator Harney last night. Senator Harney is quite right in saying that sub-clause (b) does not give an appeal in the case of the Supreme Court. The sub-clause provides -
Whenever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from the decision may be brought to the High Court.
That is to say, there are courts of inferior jurisdiction, such as County Courts, District Courts, and Magistrates’ Courts, which may exercise Federal jurisdiction ; and in some cases an appeal from themlies to the Supreme Court of the State, whereas in other cases such an appeal does not lie. It is provided that, wherever an appeal lies to the Supreme Court of the State, the parties may, instead, go direct to the High Court. In the case of a court invested with Federal jurisdiction, there is an alternative appeal to the High Court or to the Supreme Court of the State. If the matter involved comes under clause 36, then an appeal will lie ; but if it is not an appealable amount - if it is a case in which there is no appeal to the Supreme Court, then it is seen that there are two classes of cases. It may be a case in which it would not be right to allow an appeal ; it may be some small matter, in which to appeal would involve hardship to both parties. It may be a matter involving no principle or question of the Constitution ; but where such important points are involved there is the right of appeal to the High Court under special leave. Subclause (c) of clause 40 provides -
Wherever a decision of a Court or Judge of a State is declared by the law of a State to be final, the High Court may grant special leave to appeal from the decision to the High Court.
The whole area is thus covered by the three clauses. Clause 35 gives an appeal from all Justices of the High Court ; clause 36 gives an appeal from all the Supreme Courts of the States exercising either Federal jurisdiction or State jurisdiction ; and, then, clause 40, sub-clause (b), deals with inferior courts, and gives an appeal under the circumstances stated. In regard to sub-clause (b) of clause 40, I propose to submit an amendment which I think will get rid of Senator Harney’s difficulty. I propose to move that after the word “ lies “ the words “ or but for this Act would lie “ be inserted. I may mention one other matter in explanation. Sub-clause (c) of clause 36, provides in its present form -
Any judgment of the Supreme Court of a State exercised by a single Judge sitting in Chambers.
It will be necessary to have an amendment in that sub-clause. What is intended to be dealt with is the exercise of jurisdiction given under clause 18 to the Supreme Court to act in any matter pending in the High Court; that is, before the clause can be brought into operation, there must be a matter pending in the High Court, and that, of course, is very convenient in transferring jurisdiction. In all those cases there must be a right of appeal, and that is provided for by sub-clause (c), to which I am now directing attention. But in order to make the sub-clause clear, I propose an amendment which will show that the reference is only to a judgment of a Supreme Court in the exercise of Federal jurisdiction in a matter pending in the High Court. I now move -
That the words “or Judge of the Supreme Court of a State,” lines 4 and 5, be omitted.
Amendment agreed to.
Amendment (by Senator O’Connor) agreed to -
That the words “as a Court of first instance,” lines 5 and6, be omitted.
Clause, as amended, agreed to.
Clause 36 -
The appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State, or of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall extend to the following judgments and to no others, namely : -
affects the status of any person under the laws relating to aliens, marriage, divorce, bankruptcy, or insolvency ;
Amendment (by Senator O’Connor) proposed -
That after the word “judgments,”line 2, the Following words be inserted - “whether given or pronounced in the exercise of Federal jurisdiction or otherwise.”
– Might there not be a third mode in which they could give those judgments ?
– In what way?
– I cannot quite call to mind just at the moment. What is desired is to extend the appellate jurisdiction of -the Supreme Courts of the States to judgments given in a Supreme Court either in State or Federal matters. If the words “ whether in the exercise of Federal jurisdiction or not “ be used, it exactly conveys the meaning ; but if we use the word “otherwise” it may refer to judgments given in some matters which were never intended to be subjects of appeal.
– All matters are subjects of appeal within the limitations prescribed.
– The word “otherwise “ would make the clause apply to any possible judgment.
– The meaning of the clause is that it shall extend to the “ following judgments,” and to no other.
– The word “ otherwise “ would make it perfectly clear that there is a positive right of appeal from the judgments of the Supreme Court of a State in the exercise of Federal jurisdiction. Under clause 40, which deals with the matter of Federal jurisdiction, exercised by States Courts, there is no positive appeal given to the High Court. Sub-clause (a) of clause 40 provides merely -
Every decision of the Supreme Court of a State, or any other Court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be final and conclusive, except so far as an appeal may be brought to the High Court.
That confers no right of appeal.
– Hear, hear.
– It merely gives, so to speak, a status. Subclause (b) of clause 40 provides -
Wherever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of a State, an appeal from the decision may be brought to the High Court.
As Senator O’Connor has explained, that is intended to give an option in the case of a decision by a single Judge, it may be of a State, whose judgment may be the subject of an appeal to the Full Court of a State. In such a case, it might be desirable to have an appeal to the High Court, and the option is given of passing over the Supreme Court, and going direct to the High Court, Subclause (c)of clause 40 provides -
Wherever a decision of a Court or Judge of a State is declared by the law of the State to be final, the High Court may grant special leave to appeal from the decision to the High Court.
Then there is a provision that special leave may be granted. But there is an omission, because an appeal as of right is not provided for, but simply an appeal by special leave. It is, therefore, essential to include appeals against judgments given in the exercise of Federal jurisdiction, as well as in the exercise of ordinary concurrent jurisdiction. First, I suggest that instead of sub-clause (a) there should be a provision giving the right of granting special leave in every case from the decision of a court or Judge of a State exercising Federal jurisdiction. I am afraid that difficulty may be caused by the words which limit the cases to decisions declared by the law of the State to be final. No law of a State can declare a judgment given by a court of a State exercising Federal jurisdiction to be final - that would, in all probability, be held to be ultra vires. We are now dealing with proceedings in the exercise of Federal jurisdiction, and no law of a State could declare the judgment given by a Commonwealth Court - whether a State Court exercising Federal jurisdiction or a direct Federal Court - to be final. My suggestion is that instead of sub-clause (a) there should be inserted the words -
In case of a decision of the Court or Judge State, the High Court may grant special leave appeal from the decision to the High Court.
That would cover every case of Federal jurisdiction. There might be an action for a shilling in order to test some power of taxation or the validity of some Federal law, or supposed encroachment on some State law. And the power of granting special leave to appeal ought I think to be held by the High Court.
– I have no objection to the form of the amendment, only I think that it ought to be provided that an appeal may lie, notwithstanding that the State law may declare that there shall be no appeal.
– That provision may be inserted at the end of the clause.
– Exactly ; there ought to be a sort of warning sign-post. We do not desire to invite interference by any local Parliament which might choose to say that a particular class of decisions in their own courts, although those courts might be exercising Federal jurisdiction, should be final. With the alteration suggested, we shall have a complete system in regard to concurrent jurisdiction and Federal jurisdiction. In this connexion, would it not be sufficient, in clause 36, to say, that the appellate jurisdiction of the High Court with respect to the judgments of the Supreme Court of a State, or of any other court - whether in the exercise of their concurrent jurisdiction, or of their Federal jurisdiction, shall extend as follows : -
We have the words in the clause - “ from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council.
– That is what has been puzzling me.
– Then we immediately engraft on that an exception, because the monetary limitation in regard to the Privy Council is £500. We are really dealing with a state of things on which we engraft a qualification. The words “Court of a State “ refer to the court from which there is an appeal, and not to the subject matter of the appeal. The sub-clause, however, refers to the matter of the appeal. There is no appeal from a magistrate’s court in some of the States, but in New South Wales there is.
Senator Sir JOSIAH SYMON (South Australia).- It is so in South Australia also. I think that provision was inserted to cover the circumstances in South Australia, where we have a local Court of Appeal. It is a sort of moribund body, which was intended to be an intermediate court between the Supreme Court and the Privy Council. I would suggest that the following words be used : -
With respect to judgments, whether in the exercise of concurrent or of Federal jurisdiction.
– I should like to point out that such an amendment would really limit the power given in the clause.
The only cases in which there is concurrent jurisdiction, are cases in which there is also Federal jurisdiction ; but the desire is to have appeals in cases where there is no Federal or concurrent jurisdiction.
– I shall not press the suggestion.
– I think it is hardly fair that amendments of a very important character should be submitted in this fashion. All amendments of the kind ought to be printed.
– I should like to understand what the amendment is.
– Whatever the amendment is, it is being discussed in a conversational way across the: table, and none of the lay members can understand what it is about. All honorable senators are responsible for the legislation we pass, and I must protest against important amendments being placed before us in this most irregular and un business-like fash ion.
Senator Sir JOSIAH SYMON (South Australia). - I should be no party to any conversational method of dealing with a matter of substance. I would point out to Senator Zeal that my suggestion had merely to do with a matter of form - that my object was simply to make the clause clearer.
Amendment agreed to.
-I find that an appeal cannot be made to the High Court where the amount involved is less than £300 unless special leave is given. I do not see why it should be necessary to make that application. It only means heaping more expense on the litigant. To begin with, he has to hire counsel to apply for the leave. It is very seldom refused, because every appeal brings more and more grist to the mill. Why should not an appeal lie directly to the High Court, and so save the necessity of hiring expensive lawyers? Why should the sum of £300 be fixed? The mere amount at stake may be very little, while the principle involved may be very important. Some persons may desire to have the highest legal opinion in the Commonwealth on a question, and if they are willing to pay for the opinion they should be allowed to appeal. I do not know what sum to suggest. If no limit is fixed it may not suit Senator O’Connor, and if I suggest that it should be fixed at 100 I shall be violating the principle which I ]lave laid down. I should like to hear what he has to say on the subject.
– If there were no limitation, it would really be a very great hardship on all suitors in the States Courts, because in every case then, no matter what the amount of the verdict was, one party or the other might be taken to the High Court. It would be open to him to go to the Supreme Court of his State, which was close at hand, but if no limitation were made he could go to the High Court. Suppose that there had been an appeal from a Judge trying a case to the Supreme Court of the State, and it has decided one way or the other. It would be possible for the litigant party to be taken to the High Court and to have the matter discussed there. It is quite obvious that the effect would be to heap up litigation quite unnecessarily.
– On points of law, not on the facts.
– Even on points of law. It might be a matter which could be perfectly well decided by the Supreme Court of the State. It might involve no Federal matter which the High Court need necessarily decide. It might be a simple, plain matter of law which the State Court could decide. Under these circumstances, why should it be allowed to go on to the High Court ? I quite agree that there might be cases in which, although the amount involved was very small, most important principles would have -to be dealt with. There might be other questions involving the construction of the Constitution, or some very important questions of law. Under these circumstances, paragraph (6) empowers the High Court, wherever it thinks fit, to give special leave of appeal. A case in which only a small amount is in dispute may involve the construction of the Constitution, or some important statute, or some principle, and the High Court may think it right to give special leave to appeal. It would never do to allow appeals in every case. Therefore, a limit had to be fixed, and it has been fixed at £300. If it is found that within that limit there is any case which, in the opinion of the High Court, ought to be heard, it will consider the matter. The honorable senator said something about the expense of getting special leave to appeal. No doubt, where the litigant has to appeal to the Privy Council, the application for special leave is a very expensive matter : it takes a great deal of time. But an application for special leave to appeal to the High Court ought not to be expensive, and certainly it is not likely to occupy any considerable time. It does appear to me that it is only right and reasonable, in the interests of the public, that we should not make litigation too easy, and give opportunities to persons to drag each other from court to court without any real necessity. The more appeals are allowed from court to court, the greater the advantage given to the moneyed man. I move -
That after the word “insolvency,” line 23, the following words be inserted: - “But so that an appeal may not be brought from an interlocutory judgment except by leave of the High Court.”
There may be a decision on a mere point of practice, which ought not to be allowed to go to the High Court unless there is some special reason for taking that course. This amendment is moved at the suggestion of some of the States Benches.
– I desire to know from Senator O’Connor if an appeal can be made from the finding of a court on the facts of the ease, or on the law alone 1
– Clause 37 empowers the High Court to grant a new trial in any cause in which there has been a trial, with or without a jury. The appeal for a new trial where facts are involved is regulated by law. It is laid down that a litigant cannot get an appeal on the ground that the verdict is against the evidence unless there is an overwhelming amount of evidence one . way, and the jury . have decided in the opposite way. So that it is not in every case that a person dissatisfied with the decision on the facts, can appeal, but only in those cases where a verdict has been given so much against the evidence that it is one which no reasonable men ought to have found. In that respect it is an appeal on the facts.
Amendment agreed to.
– I desire to ask Senator O’Connor a question about the appeal in criminal matters. Does it mean that from any State Court an application can be made to the High Court for leave to appeal ?
– The honorable and learned senator will find that under clause 73 it is only in the case of offences against the laws of the Commonwealth that the High Court has jurisdiction.
– Can an application be made, then, to reduce a sentence ?
– I do not think that there is any appeal in Tasmania from a Judge sitting in criminal jurisdiction to the Full Court.
– In most of the States there is an appeal on a point of law.
– I observe that the definition of “ judgment “ includes a sentence.
Amendment (by Senator O’Connor) agreed to-
That the words “exercised by a single Judge sitting in Chambers,” lines 30 and 3.1, be omitted, with a view to insert in lieu thereof the following words : - ‘ ‘ given or pronounced in the exercise of Federal jurisdiction in a matter pending in the High Court.”
Clause, as amended, agreed to.
Clause 37 (New trials).
Senator DOBSON (Tasmania).- Does the clause mean that where a verdict has been given in a State Court an application for a new trial canbe made without limitation or restriction to the High Court?
– No. It means that when a case comes into the High Court on appeal - that is to say, in the class of cases with which we have been dealing under clauses 35 and 36 - it shall have the power to grant a new trial. When a case comes before the High Court it may turn out that there is some question of fact necessary to the decision of the law which has never been submitted to a jury; or that there may have been some misdirection of the jury, and that their attention was not called to a particular set of facts, or to a particular aspect of the facts. The High Court will have power to send the case down for a new trial in order that there may be a verdict on those facts.
Clause agreed to.
Clause 38 agreed to.
Clause 39 -
The jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters : -
Matters arising under any treaty.
– In nearly all the States there are statutes which are founded on extradition treaties. Supposing that a criminal offence has been committed in America, there is a treaty between America and Great Britain under which, on certain proceedings being taken for identification and bonâ fide proof of the commission of the crime, a warrant may be issued and the criminal handed over to the American authorities. There are treaties between Great Britain and many countries providing that that can be done, but they cannot be put into operation unless an Act is passed to enable the inquiries to be made and the warrant to issue. All the British possessions act under the Imperial Extradition Act, which is made applicable by proclamation to the different colonies. In Victoria there is a special Act, but in New South Wales, and, I believe, in most of the other States, the proceedings are taken under the Imperial Restriction Act. It would bea very great hardship if proceedings under that Act were to be confined exclusively to the High Court. It might be necessary to act promptly for the arrest of a criminal, and, therefore, the ordinary remedy in the States Courts ought to be left open. I move -
That after the word “arising,” line 4, the word “directly “ be inserted.
Where a statute intervenes such as the Extradition Act, the matter does not arise directly under a treaty, yet’ it is necessary to preserve this power which is given in the Constitution as an original power of the High Court ; it is exclusively in the hands of the High Court, where it does arise under a treaty, and all matters which concern the relations of Australia with foreign countries ought to be in the hands of the High Court exclusively. Therefore, I think that the sub-clause ought to be amended.
– Will the use of the word “ directly “ do what is wanted?
– I think it will.
– The Imperial Act relates to treaties which have been, or may be, entered into. Therefore, it is really a treaty, although there may be some statutory intervention.
– In that case the matter does not arise directly under a treaty. The word “ matter “ in the clause means a proceeding. The proceeding cannot arise under a treaty, because there is no power to take it under a treaty ; it arises under a statute.
– I regard this provision as most important. We should not put any obstacle in the way of setting the law in motion where criminal offences have been committed. I should like to know whether the words being inserted will amply protect the power of the court 1 I cannot see why we should not leave out paragraph («) altogether. It would not oust the jurisdiction of the Federal High Court, and would preserve the jurisdiction of the States Courts. There is always power to remove a case from a State Court to the High Court; and if -any question arose with regard to a treaty, affecting the constitutional rights of the Commonwealth, the Attorney-General could have the case removed to the High Court.
– That could only be done where the case arose under the Constitution, and involved its interpretation.
– It seems to me to be better to err on the safe side, if we -are going to err at all. It would be better not to rob the States Courts of jurisdiction which may not affect the Commonwealth as a whole. Even if there were no power to remove to the High Court, I have no doubt that proceedings would be taken by which the interests of Australia would be safeguarded. We must be careful in these cases. It would be a great pity to wake up some morning and find that some important case could not be dealt with speedily and properly because the exclusive jurisdiction had been reserved to. the High Court. If we :found later on that there was no necessity to allow the States Courts to have this power-, we could make an amendment in the law which would get over the difficulty. But if we had to wait for an amendment in the law, “to meet a case such as I have supposed, the difficulty would probably be cured one way or the other before the amendment could be made.
– I think the amendment suggested by the Vice-President of the Executive Council makes the matter very clear. In all these extradition matters which, although originally founded upon treaties are now the subject matter of statutes, anything arising under those statutes would not be matters arising under a treaty. But though a matter might arise directly under a statute, -and, therefore, would come within the province of the States Courts, still it might be so connected with a treaty as to lead to some doubts. Therefore, if we put in the words “ matters directly arising under any treaty,” we make it clear that we reserve to the High Court those matters which are not given to the’ Supreme Courts of the States.
– I will explain one matter under which a question of treaty might arise. Senator Gould knows that Great Britain made a treaty with Japan. Under that treaty power was given to any British Possession within a certain time to say whether it would or would not be included under the treaty ; and if a British Possession gave notice that it would be included it became named in the treaty, not as one of the contracting powers, but as a portion of the British Empire to which the treaty would apply. The subject was under discussion when the alien immigration question was before the Senate. The treaty in question gave Japan certain rights with regard to the admission of labourers. Although the admission of Japanese laborers is against certain restrictive Commonwealth laws, the impression was that a certain number of them, during a certain period, were to be admitted. The question might arise, on an attempt to exclude a Japanese alien, whether he had the right to come in or not. It is quite true that we have decided that the Immigration Restriction Act abrogates the treaty. But that is a question of law. That Act may or may not abrogate the treat)’. There are lawyers who hold the opinion that it does not. The question might arise at any time whether the rights given to the Japanese under that treaty are not such as to get round or overcome the provisions of the Immigration Restriction Act. In a case of that kind, it is quite clear that the matter would be of such importance that it ought not to be decided in any local court. For instance, with all respect to the Queensland Courts, I do not think it would be a case which they should decide. It would be a matter for the High Court.
– Could the Queensland Courts decide for the whole Commonwealth t
– Where we have treaties affecting all Australia, the decisions should be uniform, and should bind all Australia. A case of that kind could not be removed under the power of removal. The right of removal is given in any case arising under the Constitution or involving its interpretation, and it is proper that there should be that limitation upon the right. There is no doubt that such a case as I have mentioned would not arise under the Constitution, and would not involve the interpretation of the Constitution. It would involve the interpretation of Commonwealth law, and its effect upon a treaty. I am not supposing that such a case will arise, but it might. We know that there are conventions and treaties dealing with many different matters. I think that there are provisions with regard to foreign investments in a treaty, though they are given effect to by an Act. A question might arise at any time under treaties affecting the relations of Australia with the outside world, or affecting the rights of the British Empire, which certainly ought to be decided by our highest court - by a court which can bind every part of Australia, and every court and individual in Australia. Prima facie there is no doubt that all these matters of treaty ought to be under the jurisdiction of the High Court exclusively. But in order to deal with cases of extradition we ought to make some provision. The only question is whether the words “ directly arising under any treaty “ are sufficient. I think they are.
Senator Lt.-Col. GOULD (New South Wales.) - With regard to the treaty with Japan which has been cited by Senator O’Connor, I would point out that, although it may be the case that under this measure, we should not have power to remove to the High Court if a case were instituted in a Supreme Court of a State, yet as some Commonwealth officers would be made a party to the suit it would still be within the power of the Commonwealth to send that suit into the High Court by way of appeal. Therefore the High Court would deal with the case in that way. I recognise that in any case of that kind it would be very desirable to let the High Court decide. But even in such a case - and it is not the only one which could be cited - there would be power to bring it before the High Court.
– On a question of law only.
– I am not going so far as to oppose the proposal made by the Vice-President of the Executive Council at this stage. I should like to think the matter over more fully before taking that responsibility. The Government have the responsibility cast upon them of leading the Senate correctly with regard to a matter which possibly would involve a good deal of contentious argument. Therefore I am prepared to accept the assurance of the honorable and learned senator, that so far as he can see the clause as amended will sufficiently attain the object we have in view, and that is that the States Courts shall have the power of dealing with matters that call for immediate and urgent attention.
Amendment agreed to.
– I should like to hear a few words from the VicePresident of the Executive Council with regard to paragraph (d), which I think ought to be negatived. The paragraph providesthat there shall be exclusive jurisdiction in regard to suits by a State or any person sueing on behalf of a State against the Commonwealth. Does that mean that any person having a claim against the Commonwealth must come to the High Court to prosecute it ? The matter in question may only involve a few pounds, and the necessity for coming to the High Court may prevent justice being done. It must be remembered that we are dealing with federated States that ought to be closely allied, and as weare conferring Federal jurisdiction upon theStates Courts, I cannot see any reason why those Courts should not be used to grant toany citizen of the Commonwealth justice.
– The paragraph does not affect a citizen sueing in his individual. capacity ; it only relates to personssueing on behalf of a State.
– Can any person suethe Commonwealth in a State Court? I want to be clear that any private citizen having a claim against the Commonwealth can sue in his own State Court. Of course,, there will be an appeal to the High Court.
– I would call the honorable senator’s attention to clause 57,. which provides that -
Any person making any claim against the Commonwealth, whether in contract or in tort, may, in respect of the claim, bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose.
Tha’t answers the question. I move -
That the following new paragraph be inserted. -
Itmustbe evident that those are matters that ought to be dealt with in the High Court.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 40 -
The several Courts of the States shall, within the limits of their several jurisdictions, whether such limits are as to locality, subject matter, or otherwise, be invested with Federal jurisdiction in all matters in which the High Court has original jurisdiction, or in which original jurisdiction can be conferred upon it, except as provided in the last preceding section, and subject to the following conditions and restrictions : -
– An amendment requires to be made in paragraph (b) in order toremove an objection to which Senator Harney has called attention. I move -
That after the word “lies,” line 17, the words “ or would but for this Act lie,” be inserted.
– Does the Vice-President of the Executive Council think that under paragraph (a) there is no infringement of section 73 of the Constitution ? The appeal to the Privy Council is not granted with regard to all matters upon which the States Courts have Federal jurisdiction imposed upon them. Section 75 of the Constitution provides -
No exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such SupremeCourt to the Queen in Council.
I understand the argument to be that, in conferring Federal jurisdiction upon the States Courts, Parliament has a right to limit the power of appeal, and to say that in exercising Federal jurisdiction there shall be an appeal to the High Court, but not to the Privy Council. The
Commonwealth has taken over the Departments of Customs, Defence, and Post and Telegraphs. There may be a considerable claim, involving thousands of pounds, against any one of those Departments. There may be a question of life or death in which the Defence Department is concerned. Because we have given the States Courts power to adjudicate on Federal matters, have we a right to take from parties the power of appealing to the Privy Council, seeing that the Constitution safeguards that right of appeal ? Can we say to the Supreme Courts of the States - “ You shall exercise Federal jurisdiction, but we take away from parties who appeal to you the right of appeal to the King in Council.” It may be that the answer is satisfactory, but I should like to hear Senator O’Connor deal with the constitutional question, and also with the question of the advisability of cutting off appeals to the Privy Council.
– In the first place, all these clauses relate to the Federal jurisdiction which is conferred on the States Courts, and that is a jurisdiction which these courts never before had.
– But the States Courts had the administration of the transferred Departments.
– The transferred Departments may or may not have anything to do with matters which come before the courts. I am now speaking of the jurisdiction which is given under the Commonwealth Constitution. First of all, there is the Federal jurisdiction which belongs to the High Court, and we have provided that a certain portion of that jurisdiction shall be exercised exclusively by that court. That jurisdiction involves only very few matters ; but as to all the rest, the States Courts are given Federal jurisdiction, on condition that there shall be no appeal to the Privy Council, but only to the High Court. A new jurisdiction is given to the States Courts, with the restriction I have indicated ; and no power is taken aw.ay from the States Courts, which they before exercised. For instance, in creating the Commonwealth, and providing that a person may be sued on behalf of the Commonwealth, we are giving a remedy to citizens which did not before exist. Before Federation, an action could not be brought by a resident of one State against a resident of another, unless under certain conditions.
– But the jurisdiction in regard to the transferred Departments imposes a limitation which did not before exist.
– Will Senator Dobson explain to me what the transferred Departments have to do with the case ?
– The people are deprived of a right of appeal to the Privy Council, which they could exercise before.
– How does the administration of the transferred Departments affect the question?
– Directly it does not, but indirectly it does.
– What I am pointing out is that no power is taken away, because no power previously existed. Section 73 of the Constitution provides -
But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
Such matters are not affected at all.
Senator DOBSON (Tasmania).- There ought to be some discussion as to ^whether it is wise to insert this clause - as to whether we should not give Federal jurisdiction with the right of appeal to either the High Court or the Privy Council. I am aware that a considerable number of honorable senators believe that there should be no appeal to the Privy Council ; but that is not my view. I am convinced that a large section of the commercial community in all the States view with some little alarm the fact that there is now no appeal’ to the Privy Council. It is hardly an answer to say that we have power to make a provision of the kind - that because we confer Federal jurisdiction on the States Courts there shall be no right of appeal to the Privy Council. I believe the feeling of the public is that Federal jurisdiction ought to be conferred on the States Courts with the right of appeal to either one court or the other. I do not believe in appeals from the States Courts to the’ High Court, and then to the Privy Council ; but a litigant ought to have the choice of the tribunal to which he may take his case in the last resort.
– A litigant has that choice in all ordinary State matters.
– Senator O’Connor may have the best of the argument from a technical point of view, but I think that from a practical point of view I am right. I quite understand that in all matters where Federal jurisdiction is not exercised, a. litigant may go from a State Court to either the High Court or the Privy Council, but in Federal matters the limitation is fixed. A. litigant in a State Court qua a State Court,, can appeal to the King in Council ; but a. litigant in a State Court qua a Federal Court,, is debarred from that right. This is a matteito which the Senate might well devote a little time. Senator O’Connor has said that a litigant is deprived of no right by this clause > but we must not forget that under the Constitution we control three large Departments which were previously administered by the States, and that these Departments are very closely associated with the rights and liberties of the citizens. Under the circumstances the administration of these transferred Departments has everything todo with the question in an indirect sort of way, and yet every citizen is called upon togive up his right of appeal to the Privy Council. What is the object or advantage of such a provision ? If we wish to magnify the High Court, the only way to do so is toappoint Judges as efficient as those who preside over the States Courts, and in whom, everybody has confidence. But if a litigant prefers to appeal to the Privy Council, heought to be allowed to do so as. hitherto. Why I think the commercial community areagainst the present proposal is because we know how important to the States is the investment within their territories of English or foreign capital. We know that there is a slight prejudice against some of the laws which we in our wisdom have passed in regard to capital and labour, aliens, and other matters. Some great railway or mining scheme may involve an enormous sum of money, and yet foreigners, who have already lent money in the Commonwealth, and may be prepared to lend more in the way of business, will find themselves cut off from any appeal to the Privy Council, no matter how their rights may be affected. A Federal High Court might in such cases be prejudiced - might have that “ unconscious bias” of which we have heard. Cases may arise in which Australia is concerned, us against some foreign nation or Great Britain ; but still the right of appeal to thePrivy Council is taken away. I am inclined to think that the limitation is a mistake, and that the question ought to be discussed.
– I wish I were a lawyer, so that I could understand this matter. At any rate, I shall put my version of the question in my own way. I understand that there may be litigation between individuals and the State, and that if the case be heard in a State Court with Federal jurisdiction, there will not ‘be the alternative of an appeal to the Privy Council or to the High Court.
– If the case be under clause 40, and deals with Federal matters, there is not that alternative ; but in all other cases the appeal is left as before.
– By this Bill we are bringing a great number of litigants under a new phase of the law, and they are, as I understand, cut off from any appeal to the Privy Council. I ‘believe that the public would prefer to retain the right of appeal to either the Privy Council or to the High Court, and I should like the clause to be so framed as to allow of that being done.
– Which would be the final court 1
– The appeal to either court ought to be final - there should be no appeal from the High Court to the Privy Council or vice versa. Any other provision would, to my mind, be an infringement of the rights of the people. We could not expect the High Court to reduce its own powers by refusing to hear appeals. I should like to have this matter more fully explained.
– With Senator Fraser, I regret that I am not a lawyer, so that I might understand the very complicated matters which are now before the Committee. But as I must share the responsibility of the legislation which is passed, I intend to express my views on the measure. I understand that so far as Federal matters are concerned an appeal lies to the High Court, and not to the Privy Council, but that in the case of State law suits there may be an appeal to either the Privy Council or the High Court.
– In all cases involving State matters the appeal is to either court.
– That, I think, is an extremely undesirable position. It means two ultimate courts of decision, running parallel with each other.
– It is so provided in the Constitution, and we cannot help ourselves.
– Then it is a great misfortune.
– I quite agree with the honorable senator.
– I am glad that, so far as Federal matters are concerned, there is no appeal to the Privy Council. I am filled with wonder and astonishment by the utterances of gentlemen like Senators Dobson and Fraser, who would seem to have no confidence in the people of their own country.
– I am sure I have more confidence in the country than has the honorable senator.
– No self-respecting community would for a moment tolerate the state of affairs we have in Australia. Every community which has achieved any position in the world has settled its own disputes within its own borders. If the principle laid down by senators opposite were carried into effect, we should have appeals from Russia settled in England, and English disputes settled in Russia. Senator Dobson said that an Australian Court might be prejudiced in favour of the people of Australia. My answer to that is that the Privy Council may possibly be prejudiced in favour of English investors in Australian securities. Senator Dobson has had much more experience of Judges and courts than I have’ had ; and he has evidently been led to the conclusion - although we laymen fondly imagine Judges to be immaculate - that bias and prejudice exist really even on the Woolsack. The ermine of the Judge is not the unspotted garment that we have pictured ; and that is the conclusion of a gentleman who has lived in the atmosphere of courts all the days of his life. If prejudice does exist in the courts, then let us have Australian rather than English prejudice. We have the making of our own laws ; and ‘ why should we not have the interpretation of them ? Are not the men who are likely to find places in the High Court as honest, intellectual, and patriotic as the members of the Privy Council ? I have ill ways held the opinion that English Judges are altogether incapable of deciding Australian matters. We have had experience of an almost exactly similar state of affairs in Great Britain.- It is well known that the law of England is quite different from the law of Scotland - that the two legal systems are entirely dissimilar. I remember that in
Scotland there was very serious complaint in regard to the appeals to the English House of Lords ; and why ? Because the English Lords did not know Scotch law, and were unacquainted with Scotch customs and conditions. That was an objection raised in the case of communities separated by only a few miles, and the objection is increased tenfold when we have a people living under an entirely new set of conditions. I do not think there is much in Senator Dobson’s argument, that if appeals to the Privy Council be abolished, English capital will not be invested in Australia. Capital seems to be cornered a little in the English market at the present time ; we know that the capitalist is only too glad to get an investment for his money. At the present time there are millions of money going a-begging.
– The honorable senator is quite wrong.
– I do not claim to have soclose an acquaintance with financial matters as the honorable senator, but I think that capital is temporarily cornered in London.
SenatorFraser. - Capital has been cheaper in Melbourne for years than in London.
– I know all about that. This is only a temporary condition of things, and Senator Fraser knowa that ordinarily capital is much cheaper in Great Britain than it is in Australia. Owing to temporary circumstances, which I hope will not last very long, capital in the London market at present is fairly dear. That is a mere passing phase, and, generally speaking, capital there is so plentiful that those holding it are very glad to secure investments in Australia.
– Look at the Queensland loan which was placed on the market the other day.
– Yes, it went off very badly ; but we have had loans floated on behalf of Queensland upon even worse conditions. Although it was not, perhaps, to the point, Senator Dobson was permitted to suggest that capital would not be invested in Australia because of our socialistic legislation. My contention is that our socialistic legislation, instead of making conditions more difficult for capital, is actually opening up avenues of profit for capital.
– What does Mr. Tom Mann say about capital ?
– We are not bound to Mr. Mann’s chariot wheels, or to the opinions which either Senator Dobson or Mr. Mann expresses. It is said that even Homer nodded, andI suppose that Mr. Mann falls asleep occasionally. We have our own opinions upon these matters, and even if I agreed with Senator Dobson that our legislation would hinder the investment of English capital in Australia I would yet say that we should go on with that legislation, and that it is better that we should have legislation of that character than that we should have an abundance of English capital. I hope that Senator O’Connor will not be persuaded by anything which Senators Fraser and Dobson may say in this connexion. It is right and proper that the only appeal in connexion with Federal laws should lie to the High Court of the Commonwealth. We have universal suffrage here, the people have complete power placed in their own hands to make the laws of this country, and I say that it would be a travesty if, having that power placed in their hands, it should be taken from them by permitting the interpretation of those laws to be given in Great Britain. We should interpret our laws where we formulate them, and that is in Australia. I trust that the Government will stick to their guns in this matter.
– I cannot think that Senator Dobson is entirely serious when he suggests that there is, in this legislation, something which deprives an Australian citizen of a right of appeal to the Privy Council which he previously had. I point out to the honorable and learned senator, and to Senator Fraser also, that we are here dealing with matters of Federal jurisdiction. In clause 39 the matters in which the High Court shall have exclusive jurisdiction are determined, and now in clause 40 it. is stated that apart from those matters in others in respect of which the High Court shall have jurisdiction, the several Courts of the States shall have with the High Court concurrent jurisdiction. We must remember that these are not subordinate Federal Courts. They are States Supreme Courts hitherto independent of each other, and within their own spheres final up to a certain point. It is now proposed to confer on these States Courts Federal concurrent jurisdiction with theHigh Court itself in all matters of jurisdiction not referred to in clause 30. This new jurisdiction, a jurisdiction which none of those States Courts with all their supremacy, sovereignity, and independence of each other, ever previously exercised, is given to them for the convenience of the Australian people in order that they may not have to resort to a court at some distance from them, but may go to a State Court, which has hitherto exercised only State jurisdiction, and invoke thatCourt in connexion with certain Federal matters just as they might invoke the High Court in connexion with those matters. But, in giving that new jurisdiction to the States Courts it is necessary that it should be given under certain safeguards and under certain conditions. Oneof theconditions contained in paragraph (a) is that in the exercise of that jurisdiction their decisions shall be subject to appeal to the High Court, and not to the Privy Council. Where they are exercising their own original jurisdiction in ordinary common law matters which may come before the Court of any State, a decision given may be subject to appeal to the Privy Council as heretofore, but in exercising this new jurisdiction conferred upon them primarily for the convenience of Australian citizens, and in order that Australian Commonwealth law and the duties of Australian Commonwealth officers and such matters may be determined, the appeal is to be from the States Courts to the High Court of Australia, and not past the High Court to the Privy Council. Senator Dobson knows that a decision of the High Court of Australia itself may be subject to an appeal to the Privy Council, with the exception involved in section 74 of the Constitution providing that -
No appeal shall be permitted to the Queeu in Council from a decision of the High Court upon any question howsoever arising as to the limits inter se of the constitutional powers of the Commonwealth, and those of any State or States, and so on, but with regard to other matters that do not come within section 74 of the Constitution, the right of appeal to the Privy Council is still preserved. The object of clause 40 of this Bill is that in conferring this new jurisdiction, which may be called an extraordinary jurisdiction, upon the States Courts, it shall be exercised only under certain conditions. One condition being to secure that here in Australia the results of the exercise of this jurisdiction by the States
Courts, although they are separate and independent courts shall wear an aspect of uniformity. The only way in which that can be secured is to make the High Court of Australia a Court of Appeal from any decisions which the States Courts may give in the exercise of this extraordinary Federal jurisdiction. If there is any case where an appeal can lie from a State Court exercising its jurisdiction to the Privy Council, if the law affected by the decision is not upon a subject restricted by the Bill to the High Court, it would still be open for the decision of the State Court to be taken to the Privy Council unless it be a matter covered by section 74 of the Constitution, and such a matter would not come primarily before a State Court, but before the High Court. So that in fact there is nothing here proposed in the way of depriving any Australian citizen of a right of appeal to the Privy Council which he previously enjoyed.
Senator FRASER (Victoria). - I desire to ask the honorable senator a question. If, for instance, a manufacturer in England supplied £10,000 worth or £1 worth of steel rails to the Government of a State within the Commonwealth, and there was a serious dispute over those rails, resulting in a lawsuit, would he be able to appeal to the Privy Council in such a case.
– Certainly. Under this Bill the honorable senator could bring his action in a State Court and appeal from that court to the Privy Council.
– Under section 74 of the Constitution, if a matter is brought direct before the High Court it can be taken from that court to the Privy Council, unless it involves an interpretation of the Constitution. For the convenience of litigants certain other courts are empowered to do what the High. Court can do, and clause 40 simply provides that where the States Courts vicariously carry out the duties of the High Court their decisions shall be reviewable by the High Court, and by the High Court only. In the case put by Senator Fraser the honorable senator would go to the State Court, and if the decision were against him he could appeal to the High Court, and if the decision of the High Court were also against him he would take up section 74 of the Constitution and ask himself whether the matter was one involving an interpretation of the Constitutions.
The answer would be “ No,” and it is clear that he could then go on to the Privy Council.
– In the case stated by Senator Fraser, he need not go to the High Court, but could go direct from the State Court to the Privy Council.
– That is so. Clause 40 really does no more than it is bound to do. Its object is to secure uniformity in the decisions which are given by States Courts on behalf Of the High Court, but whether there is an appeal to the Privy Council or not is ultimately determined by whether the question is one involving an interpretation of the Constitution or otherwise. Though we have been discussing paragraph («), the amendment proposed by Senator O’Connor affects paragraph (&). I understand the position to be this : We have in clause 35 given the right of appeal from any High Court Justice directly, and in clause 36 we give an appeal from a Supreme Court, whether the decision of that Supreme Court is in respect of State or Federal matters.
– It practically comes to’ that, although the clause refers to a Supreme Court, or any other court from which an appeal lies to the Privy Council.
– In these two clauses we have in the first place to deal only with the High Court, and in the second case with a States Court exercising ft Federal jurisdiction, or otherwise. Then we come to clause 40, and all this clause does is to lay down certain conditions upon which Federal jurisdiction shall be exercised by States Courts. One of those conditions we have just dealt with - that where they exercise Federal jurisdiction the appeal must be direct to the High Court. The other condition in paragraph (b) is that where the Federal jurisdiction is ‘exercised in reference to a matter that, ordinarily speaking, would be appealable to the Supreme Court of a State, a choice is given to go either to the Supreme Court or to the High Court. The VicePresident of the Executive Council proposes to insert these words - “ Where an appeal lies or, but for this Act, would lie from the decisions of any court or Judge of a State to the Supreme Court”; but there is nothing in this Act which could possibly affect the right of appeal already existing from an inferior State Court to the Supreme
Court of the State. I, therefore,’ think “that the words proposed1 to be inserted are unnecessary, and will not carry us any further.
– I do not think they are necessary, and I shall not press the amendment.
Amendment by leave withdrawn.
– I propose to follow the suggestion of Senator Symon in connexion with paragraph (c) of clause 40, which provides -
Wherever a decision of a Court or Judge of a State is declared by the law of a State to be final, the High Court may grant special leave to appeal from the decision to the High Court.
It is possible there may be cases in which there is not an appeal to the Supreme Court of a State, although there is no statement in the law of the State that the decision shall be final. It would be better to cover all cases, and I think the more convenient way will be to omit this paragraph with a view of inserting a new paragraph. I move -
That paragraph (c) be omitted with a view to insert in lieu thereof the following : - “(c) The High Court may grant special leave to appeal from any decision of an y Court or Judge of a State to the High Court, notwithstanding that the decision in such matter may be by a law of the State final.”
– I think that we are now directly invading what may be regarded by some persons as a State right. If the law of a State, either impliedly or directly, makes the decision of a court or Judge under certain circumstances final and conclusive, why should we go out of our way to provide that there should be an appeal to the High Court ? The very object of the State law, in making certain decisions final and conclusive, was to put an end to needless litigation and expense in matters which were not regarded as being of such paramount importance as to justify their being carried any further. In many cases it is a direct benefit to a party that the decision of the court or Judge should be final and conclusive, although he may be dissatisfied with it. We have no right as a Commonwealth to step into the breach in such a case, and to say that, notwithstanding the law of the State, the matter may be taken before the High Court to be argued and considered. I hope that Senator O’Connor will either consent to the elimination of the - provision, or give some very strong reasons why it should be adopted.
– The provision applies only to cases in which the Courts exercise Federal jurisdiction. Under this clause Federal jurisdiction is conferred subject to certain conditions, and one is that, wherever it is exercised, there shall be the right of appeal to the High Court.
-Col. Gould. - But how can the law of a State declare the decision to be final?
– It does not refer to the particular matter, but to the jurisdiction of the court. Take, for instance, the decision of a Police or Stipendiary Magistrate. In many States the procedure law declares the decision to be final in any case, irrespective of the subject matter which may be submitted, and there is no appeal to a higher court.
– Under the Excise Act, for instance.
– Not only is it so in particular statutes, but it is so in procedure Acts dealing with summary jurisdiction. Having vested these courts with a new jurisdiction, the Bill says that in Federal matters this declaration of finality of decision shall not apply ; that notwithstanding that the law of a State says that the decision of the magistrate in all other cases shall be final, it shall not be final in these particular cases. Senator Gould will see that it is a misstatement of the position to say that we are sending on to the High Court cases which the law of the State had before declared were not to be appealed against. This provision really involves the same point as I put to Senator Dobson. It relates to only the new jurisdiction, which is given on the condition that there shall be a right of appeal. It is merely following out the principle which we have laid down - that the High Court ought to have jurisdiction over all cases which involve the interpretation of the Constitution or any important matter arising out of it.
– Could the honorable and learned senator state a simple case which would enable a layman to understand the point ?
– Suppose that the Commonwealth is proceeding in a State Court to recover a fine for a breach of a Federal Act That proceeding will be taken in the Federal or new jurisdiction. The Magistrate’s Court, in which it takes place, is by the law of the land declared to be a court whose decision shall in every case be final. In regard to any ordinary State matter the decision of the court remains final, but in regard to this Commonwealth matter which comes to it for the first time by reason of its having been invested with Federal jurisdiction, its decision will not be final, but in any case in which the High Court thinks fit, leave may be granted to appeal to that body. The provision gives the High Court power to overlook the method of carrying out Federal jurisdiction in the States, and in a special case - that is, a case fit to be appealed against - it may give leave to appeal.
Senator KEATING (Tasmania). - The amendment seems to me to contain the same mistake as is contained in the paragraph which it is intended to replace. It will very easily give rise to the impression that is on the minds of Senators Gould and Fraser, because the mere use of the word “decision” in the paragraph and in the amendment seems to suggest that the one particular decision is the subject of two conflicting enactments. As a matter of fact, what we are dealing with is a like decision in Federal jurisdiction to the decision which in State jurisdiction is declared to be final. It would seem on the wording of the amendment that, if we do not recollect that we are only dealing with a like case in Federal jurisdiction to a case in respect to which in State jurisdiction the decision is final, we do not meet what I think Senator O’Connor desires to meet.
– The paragraph in the clause is clearer than the amendment.
– It is just as clear, but there will be a tendency on the part of people to read the provision as being an attempt by this Parliament to make not final what by the law of a State is declared to be final.
– They are both equally clear when we remember the second subclause.
– Yes. We have to import into the reading of the second paragraph the knowledge that there, too. we are dealing with a like case, and not with the case which is referred to therein. I think it would have been rauch better if in both paragraphs (b) and (c), the drafting which was adopted in paragraph (a) had been followed, and we had made the decision appealable from a certain tribunal, whose decision in all State matters might be final, but whose decision in Federal jurisdiction would be subject of appeal to the High Court. There is no doubt that both the amendment and the paragraph refer to the same decision in each instance, and they say that if the decision of a court is made final by the law of the State, notwithstanding that fact it may be appealed against to the High Court. It looks like a deliberate attempt to enact what would be ultra vires.
Senator HARNEY (Western Australia). - It is only a matter of drafting. It is pretty clear what either the paragraph or the amendment means.
– To a lawyer it is.
– We have to import these words into the reading of the provision : - Whenever the decision of a court invested with Federal jurisdiction is declared by the law of a State to be final, the High Court may grant special leave to appeal.
– That does not carry it any further.
– Perhaps it may be possible to put the provision in a neater form, but there is no difficulty about understanding what it means.
– Acting upon the suggestion of Senator Keating, I think I shall be able to make it appear on the face of the provision that it is not intended to interfere with the jurisdiction of the courts in ordinary State matters.
Amendment, by leave, withdrawn.
– Is it not better to say “ from any court or Judge ? “
– It comes to the same thing, and I have no objection to accepting the suggestion. I move -
That paragraph (c) be omitted, with a view to insert in lieu thereof the following: - “(c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State, notwithstanding that the law of the State may not provide for any appeal from such Court or Judge.”
Senator DOBSON (Tasmania). - Are not those words inconsistent with what Senator O’Connor has been laying down all along ? He has told us that this is an entirely new jurisdiction which has not been conferred on any States Courts previously. Therefore it is a great mistake to refer to the decision as being final. We should so frame the paragraph as to say - “ Where a decision of a court or Judge is given under Federal jurisdiction the High Court may allow an appeal.”
– The law constituting some of the States Courts providesin itself that there shall be no appeal from these courts in any case. The matter might be put simply by saying that in every casethere shall be an appeal to the High Court. But, if that were done, a learned argumentwould be raised that there could not be an appeal in some cases, because the State law provided that the decision of the court should be final. We do not want to havedifficulties of that kind if we can clear them up now. To clear them up, we say thatthere shall be an appeal in every case, and we add that that shall be so notwithstanding that there was no appeal provided for in the State law.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 41 to 47 agreed to.
Clause 48 (Salary).
– I have given notice of an amendment to reduce the salaries proposed to bepaid to the Chief Justice and the Puisne Judges. The Bill provides for a payment to the Chief Justice of £3, 500- per annum, and to the other Justices of £3,000 per annum. Since I gave notice of my amendment I have considered the following point, which has, to a certain extent, changed my intentions. I have been made aware that, in the other House, pensions were entirely abolished. Under the circumstances, I do not propose to proceed with the amendment. Provision is made for paying salaries which are £500 a year in excess of what was proposed by the Bill originally. That extra amount, if devoted to assurance purposes, would provide a very handsome retiring allowance amounting to many thousands, of pounds. As the principle is laid down by all the States that civil servants shall insure their lives, and appointments are not gazetted unless their lives are assured, it is only proper that persons occupying high positions should do the like. The extra amounts provided iD the way of salary will enable the Judges to insure their lives, and for these reasons I shall not proceed with the amendment of which I have given notice. But I do not wish it to be understood that I am going back upon what I have said, and therefore I should like to hear an expression of opinion from the Committee on the subject.
– I move -
That the House of Representatives be requested to amend clause 48 by adding the following new sub-clauses : -
A Justice of the High Court, if disabled by permanent infirmity from the performance of the duties of his office, shall be entitled to retire upon a pension to be continued during his life at a rate -
equal to fifteen (15) one-hundred ths of his actual salary at the date of his retirement if he has served for less than five years :
equal to twenty-five (25) one-hundredths of that salary if he has served for five years ;
equal to thirty-five (35) one-hundredths of that salary if he has served for ten years ;
equal to fifty (50) one-hundredths of that salary ifhe has served for fifteenyears.
A Justice of the High Court who has served for fifteen years as a Justice of that Court shall be entitled upon reaching the age of sixty-five years to retire upon a pension to be continued during his life at a rate equal to fifty (50) onehundredths of his actual salary at the date of his retirement.
When any Justice of the High Court is entitled, by virtue of any right preserved by the Constitution to any pension upon retirement, that pension shall be deemed to be in reduction pro tanto of the pension to which he is entitled under this Act.
I have adopted the exact words of the Bill as originally introduced to the House of Representatives, with the exception that I have reduced the amount of the pensions. I am not without hopes that some honorable senators who have voted against the second reading of the Bill, will, now that a final decision has been come to, try to make the measure a satisfactory one. I know at all events of one honorable senator who thought that the Bill was premature, but who is now prepared to vote for an amendment in the direction I have indicated. I think it highly desirable that leading barristers and States’ Judges who accept positions upon the High Court Bench, should have some guarantee that if illness overtakes them they will not be stranded altogether. Therefore, I have made provision for sick allowances to be paid under sub-clause (3). The amounts I propose are considerably less than were proposed in the Bill as originally introduced. For instance, in the original Bill the proposal was, if the Chief Justice retired after the firstfive years of service, he should receive £700 per annum. My. proposal is £525. If he retired during the second term of five years, the original Bill proposed to pay him £1,050 ; my proposal is £875. During the third term of five years, the original Bill proposed to pay £1,750; the amount under my proposal would be £1,225. The maximum pension proposed for the Chief Justice originally, was £2,450 ; my proposal is half -pay, £1,750. In the case of the Puisne Judges, the original intention was to pay £600 in the case of retirement during the first five years. My proposal is to pay only £450. The Bill originally proposed to pay £900 in the case of retirement during the second period of five years ; I propose to pay £750. The Bill originally proposed to pay £1,500 in the case of retirement during the third five years; my proposal is £1,050. The maximum pension proposed by the original Bill was £2,100 ; my proposal is half-pay, £1,500.
– What would the honorable senator pay to an old-age pensioner outside ?
– Personally, I should be glad to see any old-age pensioner receive any amount which Senator Higgs cared to pay out of his private income. The reason why I propose to paypensions in hundredths, is that this plan makes the amounts easier to calculate. It would be a great pity if a High Court Judge were to find that his promotion to that office meant financial loss, and that he would actually be benefited by accepting a position on the Bench of a State.
– He would not have the chance.
– With all due deference, I think a Judge might have the chance. I have no right to go beyond what is known to the public, but I can quite understand that some of the gentlemen, who may possibly be qualified to accept a position on the High Court Bench, might think it well to decline and wait an opportunity of getting a seat on the Bench of one of the States. I think I am now speaking in accordance with what a few of us know. Every occupation and profession ought to have a few gifts to bestow on its most eminent men. I mentioned the other day the case of the manager of the Hong Kong and Shanghai Bank. He receives not only a salary of £10,000 a year, but, in addition, a share of the profits, which in a recent year amounted to £10,000 more. I may explain that this is a European bank, and one of the most successful of institutions. We ought to remember that besides the legal calling, there are others in which there are what may be called “ plums.” I am the director of a certain institution which employs actuaries, and I have ascertained from them what would be the actual money value in New South Wales of the Chief Justice’s retiring allowance. That allowance is £2,450 per annum, and the capitalized value of a pension of that amount, purchased at the age of 65, is £23,306. What is proposed to be given to the FederalHigh Court Judges is a vastly different sum, being some £6,659 less in capitalized value than that given to the Chief Justice of New South Wales. I shall not go into more detail, but will be glad to supply any honorable senators with figures which I have here. It has been suggested that if we cannot see our way to grant a pension, we might agree to pay the life assurance premiums of the J udges.
– We are doing what is practically the same thing ; we propose to pay the Puisne Judges £400 per annum more than is paid to the Puisne Judges in New South Wales.
– But I am speaking of the Chief Justice; and a great deal depends on the time of life at which the payment of premiums commences.
SenatorFraser. - The sum of £400 a year is an enormous premium, considering what it means when capitalized.
– Suppose a Judge did pay such a premium for fifteen years, would he be entitled to anything like the pension now paid to a New South Wales J udge ?
– Let him add another £100 a year out of his salary.
– The question is - Shall we treat our Judges in a way different from that in which we treat other public servants ?
– It was estimated at the Adelaide Convention that the new expenditure of the Commonwealth would probably not exceed £300,000 a year ; and nobody knows better than Senator Zeal that that calculation was on the supposition that onlyfive States would enter the Federation, though there are six States in it now. It will be observed that a Judge cannot retire under the age of 65, if he be in good health ; and handsome as the retiring allowances are in New South Wales, there has only been one instance in that State - that of Mr. Justice Foster - of a J udge during recent years retiring at that age, and then it was a case of illness. The present Chief Justice of New South Wales is 72 or 73 years of age, and has no intention of retiring for many years yet ; so that it will be seen that the retiring allowances are not sufficiently liberal even thereto induce a man in receipt of a fairly handsome income to resign his position. But some provision ought to be made for periods of bad health, when a man’s personal expenses are greater. In the United Kingdom, I believe that if an ex-Minister of the Crown finds that his private means are inadequate for his support he may claim a pension for life. How should we like our Chief Justice to be overtaken by illness and poverty, and be dependent on the aid of outsiders ?
– What allowance does the honorable senator get if he becomes ill?
– Why should a Judge be dependent on any one if he has been in work for years ?
– I am proposing to do very much as I, and, I believe, many other honorable senators, would like to be done by. It is a great mistake to suppose that because a man has £3,500 per annum he is a rich man ; we know that as a man’s income increases his outlay generally increases in greater proportion. We have only to look round and see how quickly persons, presumably in fair positions, get into difficulties when their incomes are decreased.
– And so do civil servants.
– Where is the comparison between a Judge and a civil servant?
– Comparisons are odious.
– Senator Playford himself admitted that the salaries of the Judges might with advantage be increased.
– What I said was that the salaries provided are hone too high.
– Under the circumstances I hope that Senator Playford will see his way to support the granting of pensions to the Judges. I should be prepared to accept any reasonable amendment in that direction, and perhaps Senator O’Connor may be able to suggest some slight alteration. I should like to draw attention to the fact that the retiring allowances now proposed are considerably smaller than those which were suggested in another place ; and I feel sure that if a request were sent to the House of Representatives, it would, if not accepted, be amended in some reasonable way. I believe that many members in another place voted against the granting of pensions, and were afterwards sorry that they had not suggested or proposed some amendment.
– I intend to vote against the addition proposed by Senator Walker. The amount of money devoted to the payment of pensions in the various States has grown to such large dimensions as to create a feeling that the system should be altogether abolished. In the inauguration of the Commonwealth we have abolished the pension system in every branch of the public service except that which we are now considering.
– Has the system been abolished in the military service ?
– I cannot say; but I know that in no other branch of the public service are there retiring allowances, and I do not think it desirable that the system should be perpetuated in connexion with the Judiciary. The salaries proposed in the Bill are very handsome, and my own opinion is that hitherto, in all the States, the Judges have been over-paid. In Queensland the Chief Justice is paid £3,500 per annum.
– With a pension.
– But I do not know whether honorable senators are aware of the circumstances under which the present Chief Justice of Queensland compelled Parliament to pay him that high salary, with the pension added.
– I would remind the honorable senator that the present Chief Justice of Queensland said he could not take the position under a certain sum. He did not compel Parliament to appoint him, because there were other persons eligible for the position.
– The present Chief Justice of Queensland practically compelled the Parliament to appoint him to the position. The then occupant of the office was receiving £2,500 per annum, and for political reasons it was regarded as extremely desirable that he should retire. Sir Samuel Griffith knew the difficulty the Queensland Government were in, and took advantage of it, with the result that he was paid £1,000 per annum move than had been paid to his predecessor.
– Does the honorable senatorknow that Sir Samuel Griffith gave up £1,200 a year which was paid to him in retainers?
– I do not know what he gave up, and I do not care. I know that it is the same with lawyers as with doctors, and even shop-keepers - they become the fashion for the time being, and, as a result, earn enormous incomes. But I do not think that we are called on to pay extravagant salaries to our Judges merely because prominent professional gentlemen, who are the rage for the time being, earn large fees from litigants who, rightly or wrongly, believe that no one else could handle their cases. We ought to be guided very largely by the dictates of common sense. Senator Walker painted a painful picture of a Judge in poverty and rags - even without boots. My own opinion is that any ordinary man - even a Judge - ought to be able to live very comfortably on £2,000 per year. If he restricts his expenditure to that amount, he will be able to save £1,500 a year; and if he should hold the position for sixteen years, he will, by that time, have accumulated a nice little nest egg of between £20,000 and £30,000 ; that is, if he limits his expenditure as he ought to do.
– A most difficult thing to do, sometimes.
– I know that Judges occasionally launch their barques upon the sea of society, and spend very lavishly, but we are not bound to provide them with money sufficient to gratify every luxurious desire. If we give them what may be considered a reasonable living wage, that is all that can be required of us. And if £3,500 a year is not a living wage, I do not know what is.
– What of the salary of £3,000 for the other Judges?
– I think that salary is also a reasonable living wage. Perhaps honorable senators would like to know how Judges are paid in Canada - our great sister Federation, which is constantly held up to us as a bright and shining example which we ought to follow ? In Canada the Chief Justice is paid £2,000 a year.
– No ; £1,640.
– I have taken these figures from the latest available sources.
Five Puisne Judges are paid £1,400 a year each. The Chief Justice of Ontario gets £1,200 a year. What a pauper he must be ! I wonder how on earth he manages to get three square meals a day. It is proposed here to give the Chief Justice of the High Court £3, 500 a year. In Victoria, the Chief Justice receives £3,500 a year, and is entitled to a pension ; in New South Wales, the Chief Justice receives £3,500 a year.
– And is entitled to a pension of £2,450.
– The Chief Justice of Quebec gets £1,200 a year ; of Nova Scotia, a country from which-
– Good men come.
– And oneof the very best of them is here. There the Chief Justice gets the paltry sum of £1,000 a year. The Chief Justice of Manitoba gets £1,000 a year ; of British Columbia £1,000, and Prince Edward’s Island £800. The highest pension paid to any Judge in Canada is £1,000 a year, and the average pension paid is £500 a year. We are proposing to give to our Chief Justice of the High Court at least £1,500 a year more than is paid to the Chief J ustice of Canada.
– £2,000 more.
– I know that the honorable senator says that the salary paid to the Chief J ustice of Canada is £1,640. If it were proposed to base thesalaries paid here on those paid in Canada, I should not have so strong an objection to a pension. I think, however, that it would be much better to pay a higher salary and give no pension. Let a Judge do as other public servants have to do, and provide for his own old age.I think he can very well do it on £3,500 a year. If any one chose to give me £3,500 a year for sixteen years I should live on the £500 and save the £3,000 ; and then Ishould live like a prince, and have all the comforts and a good many of the luxuries of life. But while I do not desire to bring everybody clown to my level, I see no reason why the Judges of the High Court should not be able to live on £2,000 or £2,500 a year, and put the balance of the salary paid into a sinking fund to provide for their old age.
– Supposing a Judge got sick in five pr six years.
– What happens to any man who gets sick ? What would happen to him if he were at the Bar and got sick ?
– But is it desirable to have a man who was a Judge a pauper in the community ?
– It is not desirable that any one should be a pauper. £3,500 a year and pauperism do not go together at all. If the honorable and learned senator spoke of a man getting £100 or £60, or £70 a year as living within measurable distance of pauperism, I could understand him. Here is a man getting this extremely high salary of £3,500 a year, and Senator Harney wishes to know what is to happen to him if, after a few vears, he becomes sick?
– He cannot go back to the Bar ; that would bring the whole thing into contempt.
– I believe that a large practice at the Bar involves a greater strain on a man’s physical capacity than does sitting on a Bench. Suppose the voice of a barrister pleading before juries were to fail him, would he not be likely to lose his practice in a very great measure? We know that juries are very often impressed, not by what a man says, but by how he happens to talk to them ; and a loud, resonant voice carries conviction to their minds.
– He will not succeed very well if he is dumb.
– No ; that is the, one thing that bars a man’s success in a court of justice. I need not labour the matter further. I intend to vote against the proposed pensions on the ground that the salaries proposed are sufficiently high to enable the Judges to make provision for their old age.
– I do not propose to look at this question in the light of any comparison with the position of an ordinary or an extraordinary civil servant. We are engaged in the establishment of the High Court of Australia, and as I said briefly yesterday, I aim to clothe this court with all the dignity and honour possible. I think it is desirable that we should do this in the interests of Australia, present and future. The proposal which has been made by Senator Walker looked at carefully, is really insignificant from the monetary point of view. We are only proposing to appoint three Judges. If we look at this as a matter of ordinary average, we cannot expect that oneof the three will retire under five years ; another in ten years ; and a third at the end of fifteen years. That, according to the law of averages, would be more than we might expect.
– It would be contrary to all experience in the States.
– Quite contrary. So that for five years there would be absolutely no addition to the aggregate salaries of £9,500 a year. If one Judge retired at the end of five years, there would be some £900 additional to be provided during the sixth, seventh, eighth, ninth, and tenth years, so that at the end of ten years from now we might expect possibly to have paid a total of £4,500 in excess or an average for the ten years of something like £400 a year. It will, therefore, be seen that Senator Walker’s proposal is very moderate, and does not threaten to raise the aggregate payment of £9,500 beyond an aggregate of £10,000 a year during the whole of the next period of ten years. If by agreeing to so moderate a proposal we are able to offer to the Judges a status and a position, I think we shall do well to adopt it. If we adopt the salaries here proposed, and give the pensions suggested by Senator Walker, we shall still be providing for an expenditure far below the aggregate payments to Judges of the Supreme Courts in New South Wales and Victoria, and we shall have laid the foundation for a future reduction of the judicial expenses in the different States. We shall have done this, while at the same time making some reasonable concession to the dignity of the position of the Judges of the High Court. I have a profound sympathy with the cry throughout Australia for retrenchment. There has been a reckless disregard of expenditure of which politicians may well be ashamed, but for heaven’s sake let us not, because of this cry, and because of this necessity for retrenchment, take steps which may mar the noblest part of the great work of Federation. For the sake of a few hundred pounds let us not spoil this great work. I have shown by the figures that the expense involved is trifling. For the next ten years it may happen that not one of the three Judges will retire, and in that case there will not be one penny increase upon the sum of £9,500 a year. I say nothing’ about Judges being reduced to poverty. That is out of the question with a salary of £3,500 a year. But I say it is our duty to do honour to the court which we expect will do honour to Australia. We pay our Governor-General a salary of £10,000 a year ; we give him £4,000 or £5,000 in allowances, and we give him one, if not two, palaces in which to live. Surely we desire the Judges of the High Court of Australia to occupy a position that will compare to some extent to that of the GovernorGeneral.
– Does the honorable senator compare the Chief Justice of England with the King of England ?
– I am not doing anything of the sort. I am taking a reasonable view- of this matter. I show what the States are paying their Judges, and what this Bill proposes, plus the amendment proposed by Senator Walker. I will go further than I have yet gone and say that twenty years may elapse before one penny of apension is paid. It is very seldom that’ J Judges retire ; they prefer to die in harness. The States are very seldom called upon topay pensions to Judges in New South Wales for many long years, there has been only one pension paid to a retired Judge of the Supreme Court. That was due to a case of illness, and it could not have been granted under this Bill. The illness occurred shortly after the appointment of the Judge, and instead of the sum of £1,700- which he is getting, a Judge who retired’ from the Federal Court would only get a few hundred pounds under this Bill. Such a case as occurred in New South Walesis guarded against by the pro rata arrangement. In all the circumstances of the case, in the interests of doing all in our power to promote the dignity and position of the High Court, I ask honorable senators to accept this very reasonable suggestion.
– One of the reasons which will animate me in voting against the proposal is that the Parliament can be trusted to deal generously with a Judge who may retire under circumstances such as have been mentioned. Suppose that after a few years’ service the health of a Judge should break down and he should have to retire, I am satisfied that the Parliament would see that he did not suffer, and he would be adequately compensated for the fact that he had given up his practice at the Bar.
– Does not the honorable senator think it is a dangerous thing to put a Judge in the position of being dependent upon the bounty of Pai-liament?
– In the States there have been numerous cases where no provision had been made by law, and yet the Parliaments have voted the retired Judges either gratuities or retiring allowances. We can well trust Parliament to act in this matter.
– There is a very grave principle at stake, and that is the one which was mentioned by Senator Stewart. In Tasmania we did away with pensions in 1 863, except as regards the Judges. I could never understand the justice of giving heavy pensions to the J udges who are most experienced and able men, and providing no pensions for the general manager of our railways, under-secretaries, and other officers. It appeal’s to me that in doing away with the pensions we did a very wise thing. Some States would have been placed in great financial trouble if they had not taken that course. Tasmania would have been placed in an embarrassing position if it had continued the system ofpensions. The only question now, I think, is whether we ought still to make the Judges an exception to the rule. I understand that in one or two States the Judges are not made an exception to the rule of no pensions. I do not think that there is very much in Senator Pulsford’s argument, as against his theory and his prophecy of what may happen, that we shall not have anything to pay for some years to come. In Tasmania, for a very long time, we have been paying a pension of £1,000 a year to a retired Judge. He must have been paid £20,000. ThatI regard as an injustice to the State, and as a grave injustice to all other civil servants, who, from 1863, with much lower salaries, have had to provide their own retiring allowances.
– Did he retire on account of ill-health ?
– No ; he retired when he reached the age of 65 years. He is now, I believe, So years old, or more, and he has been drawing a pension of £1,000 a year for many years. He retired because he wished to go home.
– We had a similar experience. It shows that you ought to have fixed an age limit. He ought to be on the Bench in Tasmania doing his work.
– Thatis one of the principles we have adopted, and we all come to regard it as part of the Sermon on the
Mount, as Lord Rosebery said about freetrade.
– Oh ! That is part of the Sermon on the Mount?
– I did not catch the interjection. Now that we are starting under a new Constitution, we had better make an inquiry, and if we find that these courses are not based upon the principles of justice, we had better mend our ways. One question to be considered is - Are the proposed salaries fair ? Ido not think for a moment that they are too high. I would rather vote to increase the salaries than to provide pensions. I would prefer to vote a salary of £3,750 to the Chief Justice and of £3,500 to the Puisne Judges, because I do not think that there ought to be such a difference as £500 between the salary of the Chief Justice and those of his colleagues. I am inclined to think that Senator Zeal put the position in a very fair way. He started with the statement that he thinks that the salaries are fair. I also think they are fair. I should think that a Chief Justice, at a salary of £3,500, could very well live comfortably, and according to his station in life, on £2,500 or £2,750, and put by certainly £500 or £750 a year. Not only could a Puisne Judge save £750 or £500 a year, but he could make provision for his family. I cannot see that we are dealing unfairly with the Chief Justice and the Puisne Judges in fixing their salaries as we have done, without the right to a pension. Whenever the question of expenditure is raised, extravagance seems to gain the day. We never seem to think of the taxpayer or citizen. We always make an exception in doing the generous or ultragenerous thing, with everybody whom we have to deal with.
– What harm do we do ? Do not they get the money back again? Do the Judges eat the sovereigns?
– My honorable and learned friend knows perfectly well that if we always give a person the benefit of the doubt, and continue this extravagant expenditure in every direction, great harm will be done and disaster will come upon the Commonwealth. I abominate these somewhat personal matters, and this talk about salaries and moneys. If the Committee is of opinion that the proposed remuneration of the Judges is not enough, let us increase the amount rather than grant pensions. I feel it my duty on behalf of the taxpayers to vote against the institution of pensions.
Senator PULSFORD (New South Wales.) - We are making progress. We have had a statement by Senator Pearce that the Parliament is to be relied upon to make provision for any Judge who may have to retire on the ground of ill health. Senator Walker is asking the Parliament to make that provision to-day, and I am supporting him in his request. Why should it not be made in this Bill?
– Why should it?
– I am arguing from the point of view of Senator Pearce, and I feel quite certain that what he says is true. If, after the High Court had been established for a few years, a Judge were taken seriously ill and compelled to retire, I am quite certain that the Parliament would be prepared to do tho generous thing by him. But wo desire to get the Judge first of all - and to get a Judge who, at the present time, may be Chief Justice in a State where he is getting at least the salary which we proffer to our Judges, plus the right to a large pension. What will be the position if he is offered a seat on the High Court without a pension ?
– But look at the honour.
– I know that it is a great honour, and that it will .tend to induce some of our best men to make a large sacrifice in the matter of salary. But do not let us carry that idea too far. Do not let us make the position of the Judges of the High Court look rather contemptible by comparison with that of the Judges of the States Courts. We are getting on. Senator Dobson has said that he would rather give an additional sum of £500 a year to the puisne Judges, and of £250 to the Chief Justice, than vote for pensions. He has not much objection to voting an addition of £1,250 to the salaries, but the proposal for giving pensions does not involve anything like that sum per year. I do not see how we can increase the salaries now that they have been agreed to, but certainly we could agree to this very reasonable proposition. Let it be borne in mind that a pension is not an absolute payment, but only a payment contingent on retirement. That contingency may be very remote. It can only add a sin all sum to the total of £9,500, and it will place the
Government in a much better position to get the class of men whom we ought to get for the High Court of Australia.
– In my speech on the second reading I said that, as regards the salaries, I did not think that we had erred on the score of liberality, and that, as regards a pension, I was absolutely opposed to making any provision of that kind. I do not care what is said about the positions which men occupy; it has been a mistake for many States ever to grant pensions. I am quite sure that Victoria has suffered more in that respect than have other States. I do not know how many ex-Judges they have in England spending the money of the State. In the early history of South Australia, a Judge retired on account of old age. He took it into his head to go home and settle in Bath, where he has lived for twenty years, on a pension of £1,000. If he had stopped in South Australia, and spent the £20,000 with us, it would not have been so bad. It is a rule among the Judges, when they retire, to leave the country which they have served and go to England or the Continent of Europe to enjoy their pensions.
– Well, make it a condition that a Judge shall not retire before he reaches a certain age.
– As a rule, a pensioner lives a long life. It is all very well for Senator Walker to say that a gentleman in some part of the tropical world receives the enormous sum of £10,000 a year, that he .also gets pickings to the amount of £10,000, and that he is a bank manager. It appears to me that that gentleman who received £20,000 a year under these circumstances, must have been connected with the Oriental Bank. No wonder it failed, when it paid such a high salary to its manager. We do not want to fail. We do not wish to err iri the way of extravagance. We are asked by Senator Pulsford to agree to this proposal on the ground that, taking all things into consideration, the chances are that we shall not be called upon to pay a penny for the next ten years. We should have to pay the pensions at some time or other. In view of the experience of South Australia, Tasmania, and Victoria, I think it is only fair that the Judges of the High Court should .be treated in precisely the same way as any other civil servants. They occupy no doubt extremely high and important positions. They stand in the place of the King, who in past times used to interpret the laws himself.
– Why does the honorable senator call them civil servants ? Is the King a civil servant t
– Surely they are no better than the Governor-General, and is not he a civil servant1! Is not the King the servant of the people of England 1 Are we not all servants of the public 1 If we are not performing some service we -are not worthy to be here at all, and should give place to others. The Judges perform the service of interpreting the laws and determining disputes between members of the public, in place of the King ; but, because they do that they are not performing a better, greater, or nobler service than any other man whether he works with a pick and shovel or with his pen.
– It is a different order of service.
– I do not recognise any order in these matters. Any man who does his duty, performing good service in this world,’ no matter how humble his circumstances, or how menial his occupation, should have as much consideration shown to him as the highest person in the land. The true test is the performance of useful services faithfully and properly. Therefore, I do not believe that the J Judges ought to receive more consideration than ordinary civil servants. What did we do with the public servants last year? We told them that they had to make provision for their old age, and we compelled them to do so by Act of Parliament. Surely the Judges ought to make provision for their old age.
– They are not civil servants.
– They are performing service for the public. They are not civil servants in the technical sense of the term, but I am using the term in its broader and more intelligent sense. Technically, they are not civil servants anymore than I am a lawyer. I wanted to be a lawyer. My father was a Baptist minister. When I was a. young man, I said to him - “ Article me to a lawyer in town.” If he had done so, I might have been Chief Justice by this time ; though in South Australia I should have been receiving only £2,500 a year, not £3,500. Senator Fraser said some time ago that he wished he had been a lawyer. The answer given to me by any respected parent was - “Sooner than article you to a lawyer, I would article you to the devil ! “ ,
– I do not know whether that is in order.
– My good and respected father considered these people - the lawyers - servants of the devil. And yet they are the men who are to have special consideration at our hands ! The salaries are not too liberal, but under the circumstances I think they are fair enough. When we consider that a man like Sir Samuel Way, the Chief Justice of South Australia, one of the ablest men in the Commonwealth, receives only £2,500 a year, and the Puisne Judges £2,000, surely £3,500 for the Chief Justice of Australia, and £3,000 for the Puisne Judges ought to be enough. Sir Samuel Way is as able as any Judge in Australia. He may not be a better Judge than Sir Samuel Griffith, the Chief Justice of Queensland, but- he is equal to him. There is no Judge in Australia who is superior to our little Chief Justice. Under the circumstances we ought to leave the Bill in this respect as it came up from the other Chamber.
– I was very much entertained by the speech of my honorable friend Senator Playford, but I cannot say that I was convinced by his arguments. There were two matters which seemed to influence his judgment. One was that there was a gentleman some years ago who annoyed him very much by living in Bath, and spending his pension out of South Australia. The other was that his respected parent had a very poor opinion of lawyers. I look upon this question in quite another light. It is highly desirable that we should get upon the Bench of the High Court the best men in Australia. If high salaries and pensions are paid in Victoria, New South Wales, and Queensland, the Commonwealth ought to consider whether the best men will not be attracted to the Benches of the States rather than to the High Court Bench. At the present moment there are prospective “ billets,” as they are called, in New South Wales, and, I believe, in Victoria. I have reason to believe that gentlemen whose names have been mentioned in connexion with the High Court, would very much prefer to avoid positions on the High Court Bench in order to take places on the States Supreme Courts Benches. That is not a condition of affairs that is likely to elevate this new tribunal to the position of importance and dignity which, in our opinion, it ought to hold. It is impossible to measure the fitness of salaries by saying that a man can live well on £2,000 or £3,000, or even £5,000, a year. The measure of the appropriateness of a salary must have regard to the law of supply and demand in the particular occupation concerned. We must have regard to what eminent lawyers are -able to earn by the practice of their profession, with the condition that a man whose profession would yield him £5,000 a year, with its attendant anxieties and risks, would perhaps be glad to take £3,500 a year without any of those disadvantages. So that we may pay our Judges considerably less than the lawyers who take these positions would earn in private practice. But still, salaries and private earnings must approximate in some degree. We ought never to have a state of things that would put a prominent lawyer in a state of perplexity as to whether he should take a Judgeship on the highest Bench in Australia, or on some subordinate Bench. There is another aspect of the matter. We must look at it from the unfortunate Judge’s point of view. He may have had a very lucrative practice. He may be a few years on the Bench when he is attacked by some malady that unfits him to continue upon it. As Senator Stewart pointed out, the very cause that incapacitated a Judge from remaining on the Bench would render him incapable of practising at the Bar if he left the Bench.
– What would have happened if he had never gone to the Bar ?
– But he would have gone to the Bar, and would have been placed upon the Bench. In a few years he might have to discontinue his occupancy of that position, and be unfit for active work during the remainder of his life. We propose to pay him no pension.” During the few years he was on the Bench he would have had time to accumulate verv little, if any, means.
– If he was in an eminent position at the Bar he ought to have saved some money.
– Suppose he was only three years on the Bench, and was a man whose habits of life were such that he was not of a thrifty disposition. A man may be a very great Judge, and yet not have thrifty qualities. Or he may have made bad speculations. But the point is that a Judge differs essentially from an ordinary civil servant. The personal character, respectability, and social status of a Judge have to be taken into consideration. When you have so many thousands of people whose lives and liberties depend upon the determination of a single individual, it becomes of extreme importance to the community that that individual should stand aloof from them, and above them, and should inspire everybody with confidence in him and his integrity. Would it not tend to make people lose their respect for the administration of justice if they found a poor retired J udge who, having been three or four years upon the Bench, was wandering about without means. I am supposing a case where, a J udge having broken down on the Bench, he would be unfit to practise his profession ; and I put it to the Senate whether we ought, for the sake of a few paltry pounds, to risk the possibility of such a thing as that occurring 1 Would any of us enjoy seeing a broken-down Judge trying to earn his living as a solicitor’s clerk, or in an accountant’s office, or in some of the lower walks of life ? If we saw that, our sense of the way in which justice ought to be administered would receive a severe shock.
– If he could earn hisliving in that way he might just as well remain on the Bench.
– Is he to go to the poor-house or wander about twirling his thumbs ? Or, take the other alternative. If on account of his incapacity to earn his living after retiring from the Bench he says - “ My only chance is to stay where I am, and stick to my last,” will it add to the proper administration of justice if he continues on the Bench when he is unable properly to carry out the duties which devolve upon him 1 He may suffer from mental incapacity. If you say to a man - “Your only chance to get a salary is to remain on the Bench,” you will have men remaining there who are really a menace to the administration of justice in the way the community expects. Senator Pearce said that in a very hard case Parliament would make an allowance. I must repeat Senator Pulsford’s answer. If Parliament is going to do that when an occasion arises, why not do it now 1 It will not cost a bit more to do it now. No Judge will accept a pension of a lesser amount than his salary unless he is obliged to retire or is unable to carry out his duties. I do not think that the salaries proposed to be paid are extravagant. Certainly very much larger salaries are paid in the old country. They are a little bit higher than are paid in South Australia, but they are lower than the salaries paid in some other British possessions. I find from one of the almanacs that in South Africa the salary paid to the Chief Justice is £3,500 per annum, with a pension. I would therefore ask honorable senators not to allow the fad of opposing all pensions to find a place in this discussion. We ought to insure that when a barrister of good practice goes on the Bench he shall be able to regard himself as provided for, with no other concern than that of doing his duty. Such a man should be influenced by neither fear nor favour. It is that independence which has resulted in the integrity and disinterestedness of the British Bench. If a Judge feels that in case of sickness he must apply to the people and the Parliament for a grant, can he be regarded as entirely independent? If a Judge has the knowledge that when he leaves the Bench he will have to earn his living in some other way, is he as independent as he would be if he knew that he was beyond the fear or favour of any man ? Without such a feeling of independence there must always be a fear of Judges being subject to corrupt influences. The pensions proposed are exceedingly moderate, and it might be possible to get the House of Representatives to reconsider their decision in this respect, especially as, I understand, there were very few members in the House when that decision was arrived at.
-It is with some degree of relief that I find myself in a position to speak upon this Bill, because hitherto the subject has been so highly technical that it has been absolutely impossible for any layman to address himself with any benefit to the various clauses which have been discussed. The amendment now under discussion deals with a subject to which any layman may with perfect satisfaction apply himself. It seems to me that we have to consider a question to which no reference has so far been made during the discussion, and that is the question whether the salary here proposed will offer a sufficient inducement to the best qualified men in the Commonwealth to accept office as Judges of the High
Court. No honorable senator who has spoken so far would lead us to suppose that the salary proposed would fail in that object.
– I certainly did so.
– I did not understand Senator Pulsford to suggest that we should fail to secure the bestmen by offering these salaries. Senator Harney suggested that a position on the Bench of the Supreme Court in certain States would present greater attractions than would the position of a Judge of the High Court ; but the honorable and learned senator entirely overlooked the fact that as soon as there are any vacancies on the Benches of the States Supreme Courts, it is almost certain that the salaries now paid will be reduced, and the present inducements which those positions offer will no longer be open to legal gentlemen. Barristers who may be thinking of appointments to the High Court Bench will know that they are not likely to secure an appointment to a States Supreme Court Bench at £3,000 or £3,500 a year with a pension.
– The honorable senator would destroy the anomaly by doing a greater injustice.
– I fail to recognise the injustice. Senator Harney begs the question for the purpose of his argument, but if there is an injustice, it is the injustice done to the community through these gentlemen being in receipt of incomes and pensions which are obviously unnecessarily high. I think I may fairly say that there is no person who at present would be likely to accept a seat upon the High Court Bench who is in the least likely to refuse that very great honour on account of the absence of a pension. I desire that the High Court of the Commonwealth should be a representative body, a first-class body, and the highest judicial authority in the Commonwealth ; but, as a business man, I am of opinion, considering the salaries given in the Commonwealth generally, that gentlemen of the necessary attainments can be found to accept these positions for the remuneration proposed in this Bill.
– Is not £3,500 a year plus a pension a greater attraction than £3,500 a year minus a pension ?
– The honorable senator is perfectly right; but when we have already a gilded pill, where is the necessity to gild it twice ? If we have to offer a position which is so attractive that we know that the first legal men in the
Commonwealth are dying to grasp it-
– We do not know that.
– I have legal gentlemen in my mind who I know would be only two pleased to take these positions, and who would be perfectly satisfied with their prospects. Senator Walker has raised the question of what these gentlemen earn at the Bar. Looking at that question as a business man, I ask myself whether, if I am earning £7,000 a year, not as a certainty, but as a result of the work which flows into my office, and if as the result of circumstances over which I have no control, I may Iia ve to submit to a greatly diminished income, I should hesitate if offered a much smaller income as a certainty, so long as I was capable of exercising my functions as a business man. Speaking still of myself, I am dependent upon fees that flow in te me at the will of other people. During one year I may do very well ; in another year, as the result of circumstances over which I have no control, some change in public opinion, some rival coming into the field and carrying on my -business more attractively than I do myself, I may find myself with a decreased income, not from any lack of capacity, but simply from a change in public fancy. On the other hand, I have assured to me an income of £3,000 or £3,500 a year, without risk. All I have to do is to sit in my office, and carry on my work year by year, without anxiety, for a certain number of hours each day. When those hours are passed, I am able to go home and entertain my friends, and I return to the office at a certain hour next day. I have no anxiety as to where the money is to come from to defray the cost of my living, and that is the anxiety which preys upon us all. No business man in this Senate would refuse a position of that sort, at a salary of £3,000 a year, to take the place of an uncertain salary which may in some years reach £6,000, and in other years any smaller amount. In the circumstances, I do not see how any one can suggest the necessity for a pension for these Judges. Senator Harney has drawn for us a moving picture of a retired Judge in reduced circumstances being obliged to go about the streets eking out a living. That may be very fine from an oratorical point of view, but, as business men, we know that such a thing is absurd. No Parliament of the
Commonwealth would for-an instant consent to allow a- Commonwealth Judge to be placed in such a position. No one knows that better than does Senator Harney, though I admit that the argument was a logical one to use in support of his contention. Senator Pulsford argues that if we have such great reliance upon what the Parliament of the Commonwealth would do in such a case, we should insert a pension clause in this Bill to meet such a condition of affairs. I object to that on the ground that special cases require special treatment.
– The honorable senator wishes to make it a matter of charity instead of a matter of business.
– Some people would call a pension charity.
- Senator Pulsford refers to a grant which might -be made by Parliament as charity in order to disparage it. There might be cases in which a person would not be assisted by Parliament, .but I contend that Parliament should take into account all the circumstances connected with each Judge’s case. If a Judge, through circumstances over which he had no control, were suddenly plunged from affluence into poverty, Parliament should take special account of his position. But if a Judge, as Senator Harney suggested in one of his similes, through a reckless disregard of the caution ordinary individuals have to take, finds himself without any provision for his old age, Parliament would take the facts of his case into account, would not deal as liberally with him as if his loss of income were due to circumstances which he could not control. For that reason I do not think that a fixed rate “of pension should be laid down in any Bill of this sort. Senator Harney referred us to the instance of a Judge who might be incapable of looking after his own mundane affairs, and I trembled when I thought of what might be the fate of a suitor whose case had to be dealt with by such a Judge.
– The greatest thinkers have been the most improvident men ; they have thought so much of others that they have forgotten themselves.
– The honorable and learned senator is now speaking of philosophers, but I submit that mere thinkers are not the men whom we should desire to see elevated to the High Court Bench. We wish to see on that Bench practical men, men whose record in life has been a record of success as well as of legal attainments, and not mere thinkers wrapt in a cloud that is high above the ordinary atmosphere of life, and incapable for that very reason of dealing justly with the claims’ which may come before them. These are men whom we should avoid in selecting the Judges of the High Court, and if by reason of the absence of provision of a pension it will be impossible for men of this kind to be appointed, that will be in my opinion an additional reason for refusing to provide for pensions. There is one additional reason against the granting of pensions. In Western Australia we recently had Judges elevated to the Bench under the pension system, and public opinion was so impressed by the fact that they were not robust, and were therefore likely to put in a very early claim for pensions, that a motion was moved in the Parliament requiring a medical examination of any candidate for a seat on the Supreme Court Bench. I am unable to say whether it was carried or not, but it was seriously debated, and some very sound reasons were adduced why such a regulation should be established. There was a considerable amount of correspondence in the press on the subject. The circumstances were such that the ordinary citizen might reasonably have considered that such a precaution was necessary. The point, of course, was that men were found willing to accept seats on the Bench, because of their failing health and the precarious nature of their incomes in consequence. Undoubtedly, they were men of the highest legal attainment, for whom I have the greatest possible respect. We do not wish to see a thing of that sort happening in connexion with the High Court. Undoubtedly there would be the risk of the appointment of men who we should know could not possibly hold office very long, and also the risk of legislationbeing suggested similar to that which was suggested in Western Australia. I consider that the proposal of Senator Walker is entirely unnecessary, and would work distinctly to the detriment of the Bench, whose power it is supposed to increase. For that reason I feel it to be my duty to oppose the motion.
– I do not know that I should have taken any part in this discussion but for the exhilarating effect of the excellent speech to which we have just listened. Certainly some very remarkable things do happen in Western Australia. They are a remarkable set of people, and their eccentricities are as remarkable as they are. My honorable friend said that Senator Harney had drawn a very moving picture in connexion with his view of this question, and he immediately proceeded to draw a still more moving picture. When he described in earnest and pathetic tones that want of pence was an anxiety that preyed upon us all, I felt, looking at him, that it had not yet reached his inmost vitals. I was still more astonished to hear that when they appoint a Judge in Western Australia they put him under a medical examination to ascertain his height, fighting weight, and general muscular development. That such a question should have been seriously debated in the Legislature affords evidence that in the Union there is one State in which the sense of humour is not wholly lost.
– They look at things from a logical point of view.
– I should say, from a highly humorous point of view as well. I think that when my honorable friend enlarged on that humorous incident, the very reasons which he was stating were strong reasons why the conditions of Judgeships in that State or anywhere else should not be made such as would attract valetudinarians, or to make a hospital of the court, or to make it a place of refuge for those who are out of health, as seems to be the case in Western Australia, but such as to induce men in the full vigour of their mental and physical health to accept the appointments. I should say, looking at the experience of Western Australia in that respect, that there must be a screw loose when it is only, so to speak, the lame, the halt, and the blind who find a temptation to go on to the Supreme Court Bench of that State. I do not say that it is so, but that is the conclusion one would draw. An argument which seemed to impress the Committee was used by Senator Playford. I felt that it was an impressive argument. He said that his respected parent implored him - by all that was holy, I suppose - on no account to article himself to a lawyer, but rather to article himself to the devil. He turned round and said - Are these the men we ought to provide pensions for ? In -fact, the lawyer is a sort of advo catus diaboli i I had the honour of the acquaintance, and for a short time, I think I may say, the friendship, of his father. I beseech the Committee to take the argument of my honorable friend with a grain of salt, because his father, whom I esteemed most highly, as did everybody in South Australia, did not entertain quite so bad a view of the profession as that anecdote would seem to indicate.
– And he received a pension.
– That is the amusing part of it. I had the honour of being his legal adviser. He even came to a lawyer to manage his affairs.
– A candle has to be held to the devil sometimes.
– It was long before my time that that incident happened. My honorable friend’s father had no repugnance to lawyers. I had the honour for some little time of having him as a client, and I possess to this day a volume of his sermons which have been of great use to me.
– Did the honorable and learned senator become his executor 1
– I managed his estate, and that is more than being his executor, because an executor sometimes does not do that. My belief is that if my honorable friend’s father had been a member of the Senate to-day he would have taken quite an opposite view from that of his degenerate son.
– I cannot stand that.
– The honorable senator knows the sense in which I use the term. But I will say his regenerate son. And, following Senator Walker, he would have voted in the direction of what he practised - paying and receiving pensions. I admit that in most parts of Australia, there is a strong adverse feeling to pensions. At the same time I think it arises from one or two instances in which the retirement on a pension did not occur from physical disability or mental infirmity, but from lack of enthusiasm for the work which the official had in hand, and which he left with alacrity in order to secure ease and comfort in what he supposed to be the declining years of his life. I think that has been so, not only in connexion with judicial appointments, but also in connexion with political appointments. There has been one instance, perhaps more, in Victoria which has been fresh in the memory of its representatives, and I know that it was so in the case of a Judge in South Australia. A feeling against pensions has grown up because of these instances. ‘ I cannot forget that in South Australia Judges were in receipt of pensions until 1886, when an Act was passed for their abolition, of course without interfering with the rights of the existing Judges. On the other’ hand, it is a very remarkable fact that one of the foremost planks of democratic policy at this day is not a system of pensions to a limited number of public servants, but a general system of old-age pensions.
– To keep people from starving.
– It is not on that ground that the principle is advocated. If honorable senators will reflect, they will see that, like everything else, it goes round in a circle. An opposition has grown up to pensions, so to speak, at the top, but it has begun again at the bottom, and my belief is that in some years, if not soon, the principle which underlies the great policy of old-age pensions will be given effect to, and will gradually travel upwards until we have the pension system again more generally introduced than I should wish, and perhaps then we shall have it falling off again, and we shall go the round once more. Whilst on the one hand objection is taken to a system of pensions to particular sections of the public service, on the other we have this far reaching widespread policy of pensions, and it does seem to me a singular thing that it is, adopted in one case and rejected in another. That, I think, ought to be considered when we are looking at it as a matter of principle. But the question is not whether the inducement offered is sufficient. ‘ My honorable friend Senator Matheson gave an instance. He said, suppose a man were earning £7,000 a year in private practice, there might be circumstances which would affect his earning power, and he would probably take an appointment at half the money, because that appointment would be permanent so long as he was capable of earning his salary. There is no distinction between the two positions. His power of earning £7,000 per year is exactly the same as his power of earning £3,500.
– No; he may cease to be in the fashion in private practice.
– My honorable friend is always in the fashion ! The same condition as affects private practice affects the permanent position - the capacity to earn the salary. A man who is earning £7,000 per year will go on earning £7,000 a year so long as his brain and his physical strength remain.
– Not necessarily.
– I should like to know of any other conditions which would disable a man from earning £7,000 a year, and which would not disable him from earning £3,500.
– There might be conditions apart from the man, such as the circumstances of the country or the conditions of employment.
– Exactly the same remark would apply. All legal business depends upon the condition of the country, and the transactions going on in the country. The moment a State gets into a dull or stale condition of business, or there is’ a drought, and the edge is taken off enterprise, legal business falls away.
– On the contrary it increases. People become litigious.
– Do they ! It is evident that my honorable friend is not a lawyer and is not badly off, or he would know that in bad times there is not the same temptation to go to law as when people are well off.
– They have nothing else to do.
– The unfortunate thing is that in bad times they have no money with which to pay to go to law. Whilst this is not a question of inducement or amount, it is a question of .whether we are to add one more condition, one more circumstance which will tend to increase the independence of the Judges, and to place them in the position which we wish them to occupy, where they will have nothing to hope for and nothing to fear. That is the high point of view from which this question ought to be regarded. The Constitution declares that Parliament shall not interfere with the tenure of the Judges. Originally they were to be removable on an address by both Houses of Parliament. After a long debate in the’ Convention that was altered. The Judges were made irremovable as they are in the United
States. Their tenure is not to beinterfered with unless on account of misbehaviour or incapacity. When that was provided it was also provided thatthere should be no diminution of their remuneration. From my point of view,, this question ought to be regarded in the light of the following inquiry : - Is the payment of pensions a means of placing theJudges beyond all temptation of “ playing up “ to the Government, or to the Parliament of the day, and securing them in a position of absolute independence and fearlessness - both of which conditions are necessary - in order to secure the effectual administration of great judicial duties such as are cast upon them by the Constitution?
– Does the honorable and learned senator think that the granting of pensions does that ?
– I ask my honorable and learned friend to look at it from the point of view of whether the granting of pensions is an element or not. On the face of it, the argument of Senator Pearce, which was repeated by Senator Matheson, is an attractive one - that if there were no pension system, and a Judge, through mental or physical incapacity, had to retire from the Bench in a position of pecuniary dependence, Parliament might be relied upon to do him justice.1 Attractive as that argument may be, it ought not to be listened to, because it would place the Judges in a position in which they might be induced to curry favour - if honorable senators like to put it that way - with the Ministry or the Parliament of the day when they contemplated retirement. It would, in effect, promote a system of corruption. I am not now saying whether we should a.gree to a system of pensions or not. But when it is suggested as a reason why we should not provide pensions, that Parliament would provide for a J udge who was in unfortunate circumstances, I reply that we should provide now and finally, so that every Judge should be treated alike, and should have nothing to hope for in any way whatever from Parliament, if he contemplated retiring from the Bench. I should be sorry to see any Judge placed in the position of having something to expect from Parliament, or from the Ministry of the day. If we are to have no pensions, do not let it appear upon, the face of our debates that there is an expectation that anything will be voted to the J Judges on their retirement. There is also this practical observation to be made : Should we not treat all the Judges alike ?’ “What is to happen if, as Senator Matheson suggests, we declare that special cases, shall receive special treatment?
– That is bad.
– The whole suggestion is wanting in uniformity. We might have a popular Judge to whom Parliament would vote £5,000 a year, whilst to an unpopular Judge it might vote nothing. But the unpopular Judge might be a man who had maintained the Constitution, who had defied Ministers and Parliament, who had asserted the rights of individuals, and who had protected the poor. For that reason he might not be in favour with the powers that be. I am dealing now with the suggested substitute for pensions, and I declare so far as I am concerned - and all of us who consider the question from the highest stand-point will, I hope, agree - that it should never go forth from the Senate that any Judge exercising Federal jurisdiction has any expectation of reward except what appears in the four corners of the Act under which he is appointed.
– The honorable and learned senator has no faith in the good sense of Parliament.
-Yes, I have. I come from a State where no. pensions are paid, and, from the point of view of that State, I should say - “Let us have none.” Personally, however, I do not agree with the abolition of pensions to J Judges in my State. But I have this faith in the good sense of Parliament - that if they do not grant pensions to the Judges they will not hold out any inducement of any other kind, or any reward except such as is specified in the Act.
– How can the honorable and learned senator say that the payment of pensions is an element in the independence of the Judiciary ?
– Does not Senator Dobson see that it is an element in the independence of the judgment seat that the J Judges should be free from every influence that would tend to warp the integrity of the judicial character - that there should be nothing to hope for in the future, and nothing to fear? Because, after all, the Judges must eat and drink to live. Whether we pay large salaries and small 7 u pensions, or small salaries and large pensions, or large salaries and no pensions, or small salaries and no pensions, is comparatively immaterial, but surely it must be seen that elements of this kind are essential to the independence of the Bench. It will be seen all the more when it is remembered that there is a disparity between earnings at the Bar and salaries .on the Bench. Perhaps too much may be made of the incomes earned by those who are practicing at the Bar, because it must be admitted that there are other inducements besides that of salary in connexion with positions on the Bench. There is the sense of discharging high public duties, and there are many other features which are obvious. But if there is sometimes a great sacrifice - if there is a sacrifice which men ought to make, and which in reason they may be called upon to make in order to discharge high public duties - it must also be remembered that with a view of promoting the independence of the Judges and securing their integrity they are cut off, and ought to be cut off, from all other means of making money which were open to them when they were at the Bar, and by which they might or might not profit. There are considerations to be taken into account which differentiate the position of Judges from that held by others doing public work. Judges hold quite a different position - move in a different atmosphere ; and from that point of view, it seems to me, that the principle of pensions or no pensions ought to be considered. But whatever we do, I hope we shall emphatically declare that we, as a Senate, do not favour any such substitute for pensions as might easily become the subject of intrigue or corruption.
Senator MATHESON (Western Australia). - I should like to say a few words in self-explanation, because I entirely agree with the last few remarks of Senator Symon. I do not think that what I said when previously addressing the Committee, should have been taken quite in the sense in which Senator Symon took it. I never for an instant suggested that any prospect should be held out to a Judge that he should expect a gratuity - that was the word used by somebody - or any pension at the will of Parliament on his retirement. As tho Senate will remember, I was dealing with a very moving picture placed before us by Senator Harney, who described a Judge reduced by circumstances over which he had no control, to extreme penury. I then said that sooner than that anything of that sort should occur, Parliament would undoubtedly intervene and make a proper provision for a gentleman in that unfortunate position. I think that Senator Harney wished us to understand that it would be very derogatory to the dignity of the High Court, if an impecunious Judge were reduced to the necessity of earning his livelihood in what we may call the small businesses of the streets. I very properly pointed out that Parliament would never allow such a state of things.
– But why should it happen if a Judge be paid an adequate salary 1 ‘
– Somebody suggested that provision should be made in the Bill to meet such a case, but I objected because I thought that Parliament should look into the circumstances which led to the penury of any J udge. Parliament ought to consider whether his penury was owing to his own fault, or whether it was due to sudden illness or other causes beyond his control.
– Would the honorable senator grant old-age pensions on those lines ?
– I am not dealing with the recipients of qld-age pensions, but with a Judge who is receiving an ample income, out of which he ought to make provision in the same way as I and Senator Smith have to do. It is not a question of old-age pensions, but a question of what a man can Jive on and make a proper provision for his old age.
– -And his family.
– Undoubtedly. I do not want to labour this matter, but merely to make my position clear. Senator Symon also apparently misunderstood what I said in connexion -with trade competition. Of course it is a very fortunate thing for the honorable and learned senator that he is apparently above that trade competition with which I and other members of the community have’ to reckon. The honorable and learned senator, after holding me up to ridicule, and demolishing my argument, proceeded to point out that the drought had had a most serious effect on his own business.
– I did not Say it had affected “my own business.
– I understood the honorable and learned senator to say that the drought had had a serious effect on legal business.
– On professional business, but not on mine.
– That only enables me to felicitate the honorable and learned senator on such a very pleasant position of affairs. Other people are subject to fluctuations of income ; but, apparently, Senator Symon’s abilities place him above competition.
– It is not the competition of trade, but the competition in this Parliament which troubles me.
– The honorable and learned senator has a voice in those matters, and can nullify competition as other honorable senators have to do. A man no doubt gets his income by favour of outside people, either because nobody is as good as he is, or because he is popular or has influence. But all those aids disappear in the most extraordinary way. By mere accident a man may become unpopular and lose his business.
– Lawyers never become unpopular.
– I could name numbers of lawyers - though I shall not mention names - who have become unpopular simply owing to the fact of their having taken up business for certain clients. Senator Harney will probably remember a case in Western Australia in which a lawyer, who was at one time a member of this Senate, became extremely unpopular, and lost a lot of business because he took up a case for a client, and by that step did not give satisfaction to a number of other people. The fact remains that lawyers are subject to fluctuations in their business in the same way as are other people. I consider that my argument was thoroughly just, and, as I have already pointed out, Senator Symon, at the conclusion of his remarks, said that in times of drought or distress, lawyers’ incomes fall off materially. The fact that a Judge is entitled to a pension does not insure his leaving the Bench when he becomes infirm. If the pension is graduated, as Senator Walker proposes, a Judge knows that by continuing his duties for a certain number of years he will be entitled to a larger amount; and Judges, most of whom are business men, would no more dream of resigning under the circumstances than they would dream of flying.
– Their tenacity would not be so great if they got no pensions.
– That is entirely a matter of degree, and depends on what a Judge considers he can live on in comfort. A Judge will naturally continue his duties until he is entitled to the. highest pension possible ; and to argue, as some honorable senators have done, that if we have a system of pensions, Judges will not remain on the Bench after they have ceased to be competent, is to argue in a circle. Judges will continue on the Bench until they are compelled to resign, or until they are entitled to the highest pensions in the scale ; so that we should be no further advanced on the way of getting rid of incompetent Judges.
Senator WALKER (New South Wales). - Senator Stewart made some allusion to the Chief Justice of Queensland, and I happen to know something about the circumstances of that gentleman’s appointment. Sir Samuel Griffith was the leader at the Bar for years, and, to my knowledge, he received £1,200 per annum in retaining fees from the banks and other leading institutions of the State. All that income he gave up on his elevation to the Bench. Sir Samuel Griffith had no immediate desire to become a Judge, but the circumstances were very peculiar. The previous Chief Justice had retired, owing to. ill-health, and no one more suitable than Sir Samuel Griffith was available for the position. But Sir Samuel Griffith, who was very straight with the Government, said he could not afford, under the circumstances, to give up his practice ; and I may say that it was the leader of the Opposition who introduced the Bill increasing the emolument. These facts ought to be mentioned in justice to Sir Samuel Griffith. Senator Dobson has in a sense “ given himself away,” inasmuch as it appears that an exChief Justice of Tasmania receives a pension.
– He has received it for the last 20 years.
– Senator Matheson has made a very interesting speech ; but, with all due deference to him, I can see thatif there is no retiring pension, we can scarcely expect a Judge to retire unless he can afford to do so. The probability is that a Judge in delicate health will receive leave of absence from time to time, and resume his duties ; and it would be felt unfair to call upon him to retire in the absence of any pension. I believe that it is true economy to give pensions; and if the graduated scheme.Ihave suggested be adopted, any honorable man will see that it is his duty to retire, even though the pension be much smaller than the income. Many years ago the celebrated Rev. Dr. Guthrie was asked to advocate the claims of a minister for more salary in a country part of Scotland. Dr. Guthrie preached to a great congregation, and, after the sermon, he said - “ I have been asked to urge you to pay your minister a larger stipend ; I do not doubt that you could get a minister for £50 a year, but remember he would probably be only a £50 minister.”
– That man was an agitator encouraging strikes.
– We must offer the most we can in order to get the best available men for the High Court of Australia. Senator Playford has spoken strongly against pensions, though he admitted; that he himself is the son of a pensioner.
– My father fought for his country at Waterloo, and there risked his life.
– Does not a Judge fight against error on behalf of his country ?
– A Judge does not risk his life.
– A Judge fights the country’s battles against law-breakers. In New South Wales the Chief Justice is paid £3,500 per annum, and receives a pension of £2,450, while the Puisne Judges are paid £2,600 per annum, and may retire after fifteen years on a pension of £1,820. This Bill, when introduced in another place, proposed to give the High Court Chief Justice £3,500 per annum, and a maximum pension of £2,450. My proposal is that the maximum pension shall be £1,750, or half -pay. The Puisne Judges, under the original Bill, were to receive £3,000 per annum, and a pension of £1,750. I believe the drafting of the clause which I have submitted might be improved; but I am scarcely responsible for that, inasmuch as I borrowed the provision from the Bill as introduced in another place. I should like to turn once more to Sir Samuel Griffith, who was a brilliant student from his school days. He never cost his father anything for his education from the time he was fifteen years. of age. I arn sorry to hear persons here or elsewhere make disparaging remarks regarding that’ gentleman, whose whole career has been highly creditable to him. He was the son of a Congregational minister, ‘and such men are seldom in a position to send their sons to a university, but Sir Samuel Griffith was so brilliant a student that he was able to educate himself by means of scholarships from the time he was a mere boy. I should like to see such men attracted to the High Court as one of the plums of the profession, not merely from a pecuniary point of view, but from the point of view of the dignity which ought to attach to the Chief Justice of Australia.
– I wish to say a very few words to explain the vote I am about to give. When this Bill was introduced in another place it embodied a system of pensions which was introduced deliberately, not for the purpose of conferring benefit upon or of making the position more attractive to the J udge, but in the public interests. Any one. who has observed judicial work, will realize that if there is one thing more than another which ought to be avoided in the work of the Bench, it is that of allowing a man to remain in the discharge of these important and onerous duties beyond the time when he is fit to discharge them. We know that, even where pensions are given, as was pointed out by Senator Matheson, there is a difficulty, in inducing Judges to retire, and give up their work when they are no longer fit to do it, for the reason that a man gets to love his daily work; it becomes part of himself, and he naturally clings to it as long as he can. But if we have no pensions, if there is only the alternative before a man, as there may be, of ill-health and penury on the one hand, or clinging to an office, the duties of which he knows he is incapable to perform on the other, it is too great a strain on human nature to expect him to choose the former. The result will be that the man may go on performing, or attempting to perform his duties, and may do so in such a way that his failure will not amount to incapacity that Parliament can take cognizance of, and for- which Parliament can remove him. Indeed, in the circumstances, it is probable that Parliament would be loth to act, and loth to take a step which is really necessary in- the public interest, because, of the position in which the Judge is placed. In these circumstances the Judge may suffer, but the public interests will also suffer, and it is the public interests we have to regard. Something has been said about a Judge saving money out of such an income. No doubt a man ought to be able to put by something out of such an income, but men are not all alike, and a man may suffer suddenly from some accident or from illhealth ; he may be, unfortunate in his investments, and he may be poor at the end of his days. We cannot provide against these contingencies, and what we say is that where a case of that kind occurs we should not let Judge and public suffer as well. It is because the public are so intimately concerned in the absolute independence and perfect possession of his faculties by a Judge, that it is in the public interest, more than in the interest of the Judge, that he should have no temptation to remain on the Bench when he is unfit to discharge his duties. I should like to add something to what has been said so well by Senator Symon, on the suggestion that the condition of things to which I have alluded would probably be taken into consideration by Parliament. We put our Judges in a position of absolute independence, because .they can only discharge their duties properly in an ordinary unified government if they are independent of Parliament, independent of Government, and independent of every person in the community. But in a Federation, where, by the very words of our Constitution, rights are given to State against Commonwealth, to individuals against Commonwealth, and rights are given, the enforcement of which may run altogether counter to the popular opinion outside, or in Parliament at some particular time, we place a Judge in a position of power, authority, and independence, in order that he may, if it is right- to do so, act directly and strongly in the teeth of popular opinion, and in the teeth of majorities in Parliament. To say that, although we put our Judge in that position, he is to look forward to a time when he will be no longer fit to discharge his public duties, and to the provision which Parliament may then make for him, is to sap his independence. Even though he should be a man of independent spirit, who will not regard that, how will it be possible to prevent public opinion commenting on any action he may take? People may say - “This Judge is poor and old, and will soon be unable to work, and when the time comes he will have to make friends of the Mammon of unrighteousness in Parliament, that Parliament may consent to give him a bounty.” I say that whatever provision we make it should be such that a Judge will have one thing, and one thing only, to look forward to, and that is a provision which he may claim of right. Do not let it ever be supposed that any man put into the position of a Judge of the High Court of Australia will ever have to look to & vote of Parliament or to’ a bounty from anybody.
– Then it is the pension which makes him independent ?
– It is the pension which makes him independent, because if a pension is provided, no matter what happens to him or how his health or his fortunes may fail, he knows that when he is no longer fit to work he can retire on the competence which Parliament has provided for him.
– Apply that rule to the Senate, and the votes might be different on many occasions.
– I do not understand the application of the honorable senator’s interruption. Those are my views, and those are the views which actuated the Government in proposing a system of pensions. Now, when the matter has come to be dis- cussed in the Senate, I find myself obliged to look at it from the point of view of endeavouring to bring about practical legislation. I know that the question was fought strongly in another place by the Government, and that they failed. If this measure is sent back to the other House with the request moved by my honorable friend, Senator Walker, I have no reason to suppose that it will meet with any different fate from the proposal originally brought forward. Under these circumstances I have to ask myself, as a member of the Government in the Senate, whether it would be light or wise to join in sending a request down to another place which can simply produce a long debate, delay the passage of the measure, and which, in the end, must have the same result, so -far as the system of pensions is concerned, -as the scheme originally introduced in the other Chamber. In the circumstances I have made up my mind that it is my duty to vote against the honorable senator’s, request, and I intend to do so. I do not believe that the feeling which has been voiced here, and by a majority in another place, is the real opinion of the country, or the real opinion of Australia. I hope that some day the real opinion of Australia may be brought to bear on this question. If it is, I have no doubt the Judges of the High Court will be put in that position of independence which they occupy in the different States, in the mother country, and in every other country.
Senator WALKER (New South Wales). - I am extremely pained to learn that Senator O’Connor intends to vote as he has stated, whilst I respect the honorable and learned senator’s motives. I desire to make a slight correction. I said that as the Bill was originally introduced in another place, it provided for a retiring allowance of £1,750 for a Puisne Judge. I find that the pension provided for was £2,100, whilst my proposal is £1,500.
Question - That the request be agreed to - put. The Committee divided.
Question so resolved in the negative.
Clause agreed to.
Clauses 49 to 51 agreed to.
Clause 52 (Registrars) -
– I am aware that in clause 1 1 it has been made mandatory to appoint not only a principal registry, but district registries. I venture to think that this is a mistake. Is it necessary now to provide that there shall be appointed a principal registrar and district registrars ? It appears to me that at the commencement we shall not require all these offices or officers, as we shall probably be able to arrange with the State officers to act, at all events for a time. I would ask Senator O’Connor to allow the clause to be altered so as to run in this way -
The Governor-General in Council may appoint an officer, to be called a principal registrar, and such other officers as are necessary.
– I move-
That the words “At the principal registry of the High Court there shall be,” be omitted, with a view to insert in lieu thereof the words “ The Governor-General in Council may appoint.”
I think it is quite sufficient to give the Government the power to appoint registrars without saying that they shall be appointed. Look at how honorable senators have been acting with reference to the High Court. When a number of us wished to avoid the expense of a Judiciary such as that proposed at this particular time, we were told that the Constitution imposed upon us the absolute necessity of creating a High Court whether it was wanted or not. We have already provided that there shall be six district registries, and all I now ask is that the clause may be so framed as to empower the Government to appoint registrars to take charge of those offices, and that the appointments shall be made only if necessary. I hope that Senator O’Connor will accept this reasonable amendment.
– If I remember aright, it was Senator Dobson who insisted, at an earlier stage, upon having a district registry provided in each State.
– Certainly not. I was in the Chair, or else I should have objected to the provision.
– A provision was carried to the effect that there should be in each State a district registry, so that there might be a place at which to make an inquiry, and to get all the information which might be necessary in the conduct of proceedings in the High Court. If it is necessary to have a district registry in each State, I presume that there must be a district registrar.
– I cannot consent to the amendment. I can quite understand
Senator Dobson fighting the principle of the Bill ; but, once the Senate has decided that a High Court shall be established, that the whole machinery for carrying out its functions shall be put into operation, surely there is no necessity, by a senseless kind of cheeseparing, to make it ineffective. We have already provided, not that there may be, but that there shall be, district registries. On what ground? On the ground that every State shall feel that it has a right to have within its territory some place which shall be the home of the Judiciary, to which communications for the Judiciary may be made by its inhabitants, and from which proceedings may be transmitted to the head-quarters of the High Court. Surely there must be registrars to take charge of these places. What difference is there between what Senator Dobson proposes and what this clause says? He asks the Committee to provide that the Governor-General in Council may appoint district registrars. Is it likely that a Government would not appoint district registrars? On the other hand, if it is made compulsory, as it ought to be, to follow the establishment of district registries, it becomes necessary to have an officer in each district registry. It is not necessary to suppose that we shall want in each place an officer with a salary paid solely for doing this work. The duties of the office may be carried out by an officer of the State Court.
-That is what I want.
– Surely any one ought to see at a glance that it is not compulsory that we should appoint an officer with an independent salary. That is really all that is intended. Where it is necessary to have an officer independent of the State Court for carrying out solely the duties of the Commonwealth Court an appointment will be made, but where it is not necessary no officer will be appointed, and the Parliament will have control over every expenditure of that kind.
Senator DOBSON (Tasmania).- I am very glad to have the admission which Senator O’Connor has just made - that it does not follow that a separate officer will be appointed. I suppose that he means that it is quite likely that the registrar of the State Court will also be appointed registrar of the High Court. That is about the last admission that I expected my honorable and learned friend to make. We. all know perfectly well that member after member of the Government has announced that he will not have an officer to do Federal work unless he is under their control.
– That is altogether a mistake. It has never been stated.
– It has been stated again and again by the Minister for Home Affairs, that he will not have any public work carried out for the Commonwealth unless the officers are under his control. Within the last forty- eight hours I have heard honorable senators say that if State Judges were empowered to look after the business of the High Court for a time they would be hirelings responsible to nobody. All the arguments I have heard are absolutely against the statement which Senator O’Connor has now made. It was in order to prevent the appointment of separate officers for district registries that I moved this amendment. But if my honorable and learned friend will tell me that, as far as it can possibly be done, the registrar of the State Court will act as registrar of the High Court, which, I think, he may very well do - the Commonwealth paying an infinitesimal part of the salary - I shall be quite content. I could not have divined that that was the policy of the Government, because I have heard it stated so frequently that they will not have any officers doing Federal work who are not under their sole control.
– I hope that Senator Dobson is not taking what I said as pledging the Government to appoint to these positions the officers of the States Courts.
– As far as the Government can they will.
– I am not saying that the Government will do it. All I say is that it is absurd to suppose that unless it is necessary a Government will appoint an officer, who will be paid a salary on the supposition that the whole of his time will be devoted to this work. That may have to be done in some cases, but if there are cases in which it cannot be done, I have no doubt that the Government will use, if they can, the States officials. I hope that the honorable and learned senator does not think that I am pledging the Government to any such course.
– Quite so.
Clause agreed to.
Clause 53 agreed to.
Clause 54 (Marshal) -
– I should like to know what the duties of the marshal are?
– Does the honorable senator know what the duties of a sheriff are?
Senatar O’CONNOR.- Well, the duties of the marshal will be the same as those of a sheriff.
Clause agreed to.
Clauses 55 to 58 agreed to.
Clause 59 verbally amended and agreed to.
Clauses 60 to 65 agreed to.
No execution, or attachment, or process, in the nature thereof, shall be issued against the Commonwealth or a State in any such suit ; but when any judgment is given against the Commonwealth or a State the registrar shall give to the party in whose favour the judgment is given a certificate in the form of the schedule to this Act, or to a like effect.
– If honorable senators will refer to the schedule they will see that the certificate referred to in this clause is to the effect that A.B. obtained a judgment in the High Court against the Commonwealth, and that the amount is so much. It is provided in the clause that although no execution or attachment or process in the nature thereof shall issue against the Common wealth or a State on a judgment being given, this certificate shall issue. Then clause 67 provides -
On receipt of the certificate of a judgment against the Commonwealth the Governor-General may cause to be paid out of moneys to be provided by the Parliament the amount of such damages or costs as are awarded to such party, and may perform any decree or order pronounced or made by the High Court in the suit.
The two clauses must be taken together, because the amendment I intend to propose will really deal with both.
– Ought not the word “shall” to be substituted for the word “may,” in clause 67?
– I intend to ask the Committee to negative that clause. The Bill provides that there shall be an action against the Commonwealth, and that the rights between the plaintiff and the defendant in such an action shall be the same as between ordinary parties, and that theaction shall go on in that way up to the point of execution ; but it is thought that there should not be a power1 to issue execution, or any of those processes which take possession of property or revenues, against the Commonwealth. I think that will be recognised as a proper principle. It appears to me that the clause ought to stop there, and not to provide that a certificate shall be given. There is no necessity for a certificate, because the judgment is already recorded in the court. It will be observed that the next clause deals only with actions against the Commonwealth. It does not deal with what is to become of an action against a ‘State. It deals only with actions against the Commonwealth, and it provides that on receipt of that certificate the GovernorGeneral may cause to be paid out of moneys to be provided by the Parliament the amount of the damages or costs. In the first place, it is made optional whether it shall be paid or not ; and in the second place, it has to be paid out of moneys to -be provided by the Parliament. If it can only be paid when it is voted by the Parliament, then a party may be in this position : he may get his judgment in the court against the Commonwealth, and the Parliament may refuse to vote the money. What is the party to do then 1 It appears to me that all we want to provide in the two clauses is that there shall be no execution or attachment issued against the Commonwealth or a State in any suit, and to leave the operation of the judgment to stand in every other respect as between party and party. The plan which is proposed here is certainly ineffectual and misleading. In some of the States the Government is put in exactly the same position as any other party. When there is a judgment against the Government, execution can issue just as in every other case. That is so in New South Wales. In three of the other States there is no such provision, and no execution can issue against the Government. That seems to me to be the proper view ; but when so much is provided the matter ought to stand in the ordinary way of an action between individuals. There is a judgment for a certain sum, and any remedy which is consistent with not issuing an attachment against the Government should be open to any person. I therefore move -
That all the words after the word “suit,” line I 3, be omitted.
– I should prefer to see the whole clausestruck but. I have had experience of at similar provision in Western Australia, where I found that the Government did not act up to its engagements. The Government there frequently does things of this kind. A man takes a negligence action against the Government and theresult is that he recovers damages for £400- or £500. He asks the Government to pay him, as a private individual would have to do. He has been in the Government hospital, and they say to him - “ We will not pay you until you have paid the hospital.” Although he is not bound by law to pay the hospital, the Government take advantage of the fact that the man> cannot issue an execution against them, . and compel him to do so. That is the practice that has grown up in Western Australia. It is a course which is always taken advantage of by the Government there, and which is only made possible by a provision of this kind. I give that case as an illustration. If in the instance I have put the plaintiff recovered damagesagainst a company or a private individual, the defendants would have to pay him the £500, and if they did not pay the money would be recovered in the ordinary manner. But the Government, simply because one cannot issue an execution against them, take it upon themselves to say whoought or ought not to be paid out of the money recovered, and which by law they are bound to hand over to the plaintiff. They say - “ “Unless you pay whom we wish you to pay, we will not give you themoney.” The result is that a person obtaining judgment against the Government is often in a very much worse position than if he had obtained judgment against a private person. In these new countries, where a great deal of socialistic work is undertaken by Governments, and where they put themselves in the same position as private employers, and have men to work for them, they should be subject to the sametreatment as private employers, and should not have immunity from redress by way of execution. I think* that the law which prevails in New South Wales is the correct law. Let judgment go against a Government just as against a private individual.. If the Government is fool enough not tocarry out its obligations, let it put up with all the inconvenience and the public- contempt that will be brought upon it byhaving some of its assets seized. The meaning of this clause is that when a man has obtained judgment against the Government that judgment is of no use to him unless the Government chooses to pay. The Government, as regards its contracts and its torts, is placed in exactly the same position as a private individual, but when you go to the courts of law and get a verdict, and the Government are ordered to pay, you are confronted with this clause, which says that they need not pay unless they like. It is left -entirely to their public honour. Our experience in Western Australia has been that Governments are not sensitive on that point ; and, accordingly, they have not hesitated for a moment to refuse to pay. If Governments were always appreciative of their public honour, and never hesitated to pay, this would be a proper clause to put in ; but in the face of my own experience of a Government that has taken advantage of such a clause, by paying merely at its own sweet will, there are good reasons why we should not allow the clause to stand. If we retain the clause, we shall put it within the power of the Government, when an action goes against them, to decline to pay ; say, for. a month, or until the end of the financial year. The Government cannot be placed in a ridiculous position by a seizure, because if they carry out their obligations, no seizure can take place. The clause is put in on the assumption that there will be a difficulty, whereas there will be no difficulty if the Government meet -their obligations.
– There is a great difference in the case of a Federation, because a State might be a. party. A State might put in an execution on Commonwealth property.
– I take that as strengthening my argument, because the Government that would take advantage of this clause not to carry out its obligations towards an individual would be very much more inclined to take advantage of it by not carrying out its obligations towards a State. There might be a good deal of public feeling on the matter in dispute. Take a case like that mentioned by Senator Symon while we were arguing about pensions. Suppose that the High Court gave judgment for several thousands of pounds against the Commonwealth and in favour of a State, and that the public feeling of Australia was in favour of the Commonwealth and against the State. The State, having recovered damages, would say to the Commonwealth- “ Pay over this money.” The Government, knowing that it had public feeling behind it, and that the State could do nothing, would delay or try to get out of payment. This clause puts into the hands of the Government the power to do so. I can recognise no difference between a Government that chooses to enter into contracts and to employ men, and an ordinary private institution or individual. This absurd clause springs from that antiquated doctrine “The King can do no wrong.” It is only by virtue first .of ordinances in these States, and then by Crown Suits Acts, that we are able to recover from the Government at all. An amendment of the law became necessary when Governments began to enter into private enterprise. Why put- the members of the public in a different position in reference to the performance of their obligations with respect to wrongs done, than we put the Government in ? Why give individuals power to sue the Government, and then stop at the crucial point? Why tell a man that he can go to court against a Government just as though he had been wronged by private individuals, that he can get his decree against them just as though they were private individuals, but that the moment he is about to put it to any use, he must leave it to the Government’s sense of honour to pay him what it owes him ? Senator O’Connor may ‘ argue that this is all nonsense, and that the Government would not refuse to carry out its public obligations, inasmuch as it is the public purse that they are dealing with, and not their own money. He may say that there would be no breach of faith by the Commonwealth Government. My experience has been the contrary. In a dozen cases in Western Australia, my experience has been that Governments do take, advantage of their immunity from execution .to delay paying over what, if they were private individuals, they would have to pay, and to insist upon other persons receiving shares out of the money which they have no power to enforce in a court of law. Under the circumstances, I press that we ought not to extend a greater privilege to the Commonwealth or to a State which enters into private contracts and obligations than we extend to private individuals.
– An important point to be borne in mind is that the Commonwealth may enter the High Court as a suitor against a State. In the event of such a case going against the State, how is the Commonwealth to recover ? ‘ Are we likely to keep back some of the customs duties payable to the State? I know that what Senator Harney has said with regard to one of the States Governments is quite true. I know some individuals who have suffered in that way. If the court is to be trusted, its decrees ought to be carried out and be respected by the Government. In America there has been friction between States Governments and the Central Government. In some instances the Central Government have sent the militia to enforce a judgment of the Supreme Court. That was practically carrying out a power of process.
– The honorable senator would not like to see that state of things in Australia?
– I should not like to see either the Commonwealth Government or a State Government rendered helpless, or the Government defying the High Court, or defying another Government to recover.
– If the Government intend to act justly, no harm can be done by omitting this clause ; if they do not intend to act justly, why give them the opportunity ?
– If the court can be trusted to give a just verdict, where is the harm in allowing the plaintiff to recover as against the Government just as against a private individual ? Take the case of State imports. It has to be decided by the High Court whether the Commonwealth can levy duties on State imports. The Government have collected such duties, and have the money in the Treasury. Who is to compel them to give it up? Suppose the Government say - “We will not give up this money ; we will wait till after the next general election, or until there is an alteration in the Constitution. “
– They might not have the money. ‘
– But they have it ; I believe it is in a trust account.
– The Federal Government always have the money - they have the whip-hand.
– Suppose the High Court held that the Commonwealth
Government had illegally collected money oni State imports, how would a State be ableto recover ? It seems to me that we ought togive both the States Governments and the Commonwealth Government power to recover damages when these have been awarded by the Court.
– I should be glad if Senator O’Connor would let the clause stand as it now is. The clause appearsto have been taken to some extent from the Tasmanian Act; and, if I recollect rightly, I have listened to very much the same debate in the Parliament of that State. It is perfectly right to say that no execution or attachment shall issue against the Commonwealth Government, but it would beabsolutely wrong not to lay down somemethod by which a successful suitor might recover. The clause as it stands provides for a proper and dignified manner in which the Commonwealth can pay a successful suitor.
– How would the honorable senator’s suggestion carry thematter any further? How iB a certificate better than a judgment ?
– If the Commonwealth is determined not to pay, 1 do notsee how my suggestion would help a suitor, except that it would lay down the process which he would have to go through. In my opinion the word used should be “ shall “’ and not “may;” and as Senator Pearce points out, I think an exactly similar clause ought to be incorporated to meet the case of a suitor against a State or the case of a State against another State.
– I do not think that Senators Harney and Pearce quite realize what important questions there are behind this. We are not dealing with, the case of a State only, but with a position in which a State may sue the Com,nor wealth, or the Commonwealth may sue a State. If these remedies are to be allowed to be pressed to the utmost extent, then undoubtedly there will be the power of putting State officers in the possession of Commonwealth, property, or Commonwealth officers in the possession of State property. Honorable senators have been speaking of the Commonwealth Government as if it were some foreign body, whereas the Commonwealth is the people themselves. No doubt, there was at one time, and, in fact, there is now, a fiction that the money is the King’s ; but that, of course, is only legal nomenclature. It is the money of the State ; that is to say, of the- people of the State or of the Commonwealth. When dealing with a matter of this kind, in which there may be litigation, between a State and the Commonwealth, the question is whether it is wise or seemly to give such a power as I have indicated to the officers of either a State or the Commonwealth - such a power as is exercised in ordinary cases between individuals. We ought to be able to trust the whole people of a State by their Government and their Parliament, and to trust the people of the Commonwealth in the same way to do what is right in the way of meeting their obligations. We ought not to treat them as though they were likely to occupy the position of defaulting debtors. I can quite understand that there may be cases in which delay must occur.
– Do we not treat them as defaulting debtors by saying that there will be no execution issued 1
– No; we say exactly the opposite.
– Do we not treat them in that way when we go on to provide how the money is to be recovered ?
– An ordinary defaulting debtor has an ordinary execution issued against him. These days are utilitarian enough, and it is quite right to be practical ; but we ought not to lose sight altogether of the nature of the obligations which are imposed on the whole people of the Commonwealth or of a State. We are not to suppose that those obligations will be disregarded. That would be to suppose that the Parliament, the press, and the people of a State or the Commonwealth would encourage repudiation of obligations which have been decided to exist by the highest tribunal in Australia. It seems to me that if we take the ordinary course, and have a provision of this kind, relying on the honour of Parliament, whether it be that of a State or of the Commonwealth, we shall find it the safest. If we take -any other course we shall create materials which may develop, if pushed to extremes, friction of the most dangerous character.
Senator HARNEY (Western Australia). - I am not convinced by the remarks of Senator O’Connor. The honorable and learned gentleman says that it would be unseemly to issue execution against the Commonwealth, and that such a course might lead to complications and State antagonism. But nothing of the kind can arise if the Commonwealth fulfils its obligations. It is only on the assumption that the Commonwealth does not intend to fulfil its obligations that any force can be given to the arguments used by SenatorO’Connor. Why should we delude suitors t Are suitors to think that a judgment against the Commonwealth is to have no substance, or only to have a doubtful substance? If a judgment is to have absolute substance, no harm can happen by providing that an execution may issue, because the Commonwealth will perform its obligations, and pay the money.
– In the case of judgment being given against the Commonwealth Parliament might not be sitting, or might not have had time to vote the necessary money.
– Creditors’ rights come first.
– As Senator Walker says, a judgment creditor’s rights come first, and he must be paid if the money can be found. If, as a result of no money having been voted, the Treasurer has to obtain an advance, that advance may be recouped by Parliament ; but any suitor who comes into a court of justice ought to be assured that he is in exactly the same position in regard to his chance of recovery, whether the defendant be a bank or other institution, or a Government.
– If there be any delay the judgment creditor ought to have interest on his money.
– I can assure Senator Dobson that I know of several cases, but one in particular, in my own State, which illustrates my argument. In the case to which I refer judgment was obtained for £8,000 against the Government of Western Australia, and was subsequently confirmed by the Pull Court and the Privy Council ; but it was two years before the costs and interest, amounting to £11,000, were paid to the judgment creditor. The Western Australia Government raised every possible obstacle, for the simple purpose of forcing the plaintiff into a settlement ; and no Government ought to be able to take such a position. If that judgment had been obtained against, say, the National Bank, the money would have had to be paid at once. I am entirely in accord with Senator O’Connor that it would be unseemly, and lead to .many complications if execution were issued ; but execution never will be issued if the Government fulfil their obligations. If Senator
O’Connor says that the Government do not intend at titties to fulfil their obligations, we shall know what the true position is. I should be perfectly willing to accept an amendment safeguarding the Government to a reasonable extent. A period of two months or any other time might be fixed before execution should issue against the Government, and in the meantime the judgment creditor could be paid interest. Instead of issuing execution, a certificate might be taken out and presented to the Governor-General, and, if after a certain time the amount was not paid, ordinary execution might issue.
– A private suitor has only fourteen days to wait for his money.
– A private suitor has not fourteen seconds to wait, unless there is a stay of execution.
– I think that Senator Harney falls into two errors in criticising this proposal. First that Senator assumes that execution, attachment, or any process, will not issue unless there is an intention on the part of the Commonwealth Government to avoid their legitimate and just obligations. But Senator Harney’s later remarks would indicate that he has some reason for changing his mind in that respect, because he is quite prepared to safeguard the Government by providing that sufficient time must elapse between judgment and execution.
– I do not say that because I see any grounds for such a provision but because I wish, to deal tenderly with the proposal of the Government.
– That is not the question ; but there would be some justification for providing such a safeguard if Senator Harney considered the convenience of the administration of government. The second error into which Senator Harney falls, is that there is really no difference between the Government of the Commonwealth or of a State, and that of a bank or other institution of the kind. I submit that there is a great difference. No matter how colossal a private institution may be, the number of persons interested in it is very limited, whereas in the case of the Commonwealth or a State the whole people are interested. We must study the convenience and interests of the’ whole of the people in either State or Commonwealth, in priority to the interests of even one successful litigant.
– Is it proposed that the Commonwealth shall meet its obligations ?
– Then where is the difference 1
– In the ordinary administration of government, it would in many cases be impossible to have a fundi available for meeting such obligations, unless some provision were made in the Estimates from year to year.
– That would be a verygood way.
– A sum of £10,000’ could be provided, but a judgment for £25,000 might be given against the Commonwealth Government or State Government. We know that when a jury gives a verdict against the Government,, they are not prone to keep to’ a minimum.. Unless there is some such’ provision as I have indicated, it would be almost impossible, ‘in carrying out the ordinary administration of government, to be ready to satisfy a judgment either at once or within a reasonable time. If an ordinary judgmentcreditor for any amount - no matter howlarge or small, or how necessitous or otherwise he might be - was able to deal with theCommonwealth Government or a State Government as he can with an ordinary- financial institution, he might by processes of thelaw embarrass the whole administration and paralyze a particular. Departmentto the great prejudice of the wholeof the people. Such a creditor might, for instance, put the bailiffs into the Post-office and delay the mails for a considerable time. We must remember that the business of Government is not, and cannot be, carried on as is the business of an ordinary financial institution. The ordinaryexpenditure for the year is, in the case of the Government, anticipated and providedfor in a hard-and-fast way.
– What about New South Wales 1 No trouble has arisen.
– That is not a justification for our adopting a similar course for the Commonwealth, in which we have adifferent system of government. We have a complicated system, and many cases will arise out of the complications of the relations of the Commonwealth with the States, of the States with the people, and of theCommonwealth with the people. There may be much more friction in connexion with; the subject-matters that may be in. dispute than there would be in an ordinary case between a private individual in a unitary State against the Government of that State in connexion with some Government contract or some tort. I was saying that the government of the country is not carried on in the same way as a financial institution, because the expenditure of the year has to be anticipated for some considerable time, and the money has to be appropriated in advance. Who can foresee what will be the number of cases arising in twelve months between the Commonwealth and the States, or the number of cases in each State in which the Commonwealth may appear in the court as a defendant ? Even if that could be foreseen, who can foresee to what extent, if any, the Commonwealth or a State, in the course of these cases, will, in the aggregate, be cast in damages ?
– Are unfortunate suitors to trust to a vote in Parliament to get their verdict satisfied ?
– Can they not trust to the people of the whole Commonwealth ?
– No. We know that certain corporations have neither a body to be kicked nor a soul to be damned.
– The body politic is not like a body corporate, if the latter has to be characterized in the way that Senator Harney has characterized it. If an individual, in a case against either a State or the Commonwealth, is given a verdict for a sum of money by a jury, or by a Judge or Judges, we can always safely rely that the people will see to it that the Government, whether of a State or the Commonwealth, shall satisfy the verdict.
– What about Western Australia ?
– Senator Harney has mentioned one or two cases in Western Australia.
– There are hundreds of such cases. I can assure the honorable and learned senator that it is the practice there.
– I do not see that we are called upon to deviate from a well established principle, and one which is founded on good sense, and on the convenience of the public, in order to perhaps force Western Australia to give up its bad habits and bad practices.
– New South Wales is not excepted.
– I have dealt with the case of New South Wales, and I have shown that the cases which could be brought against a unitary State would be limited, and nothing like the number of cases likely to arise out of the complicated relations of Federal and State Governments, contemplated in connexion with this Judiciary Bill. Senator Harney, in his earlier remarks, said that this disability arose from the antiquated doctrine that “ the King can do no wrong.” Perhaps it has so arisen in one sense, but that has now to be read, not that the King can do no wrong, but that the whole of the people of the Commonwealth - the sovereign people - can do no wrong to any individual. We may be certain that where an individual has secured a measure of redress in the law courts of the Commonwealth against the Government of a State or of the Commonwealth, public opinion will be alive to the necessity of seeing that at the earliest moment, consistent with the convenience of the administration of government on the lines with which we are familar, and which are necessary, his grievance shall be redressed, and he shall recover the damages to which the court has said he is entitled.
– Why talk about “ convenience” when the revenue is about £30,000 a day ?
– But my honorable and learned friend knows that when the Treasurer gets that revenue he has to use it for certain defined purposes already arranged for months before. Would Senator Dobson, if he were Treasurer of the Commonwealth, appropriate funds as they came in for certain purposes not defined in the Appropriation Act?
– Is a judgment against the Commonwealth to be of less value than a judgment against a bank?
– Certainly not. It will be better than a judgment against a bank. Senator Harney seems to think that there is some special value in a judgment, simply because it is recoverable immediately ; but I have no doubt that in certain instances the honorable and learned senator would advise a client that if he could not get his money immediately from the Government of the Commonwealth or the Government of any State, with the exception, perhaps, of Western Australia, he would be able to realize upon that judgment as easily as he might realize upon a judgment against any bank.
– One feels a little doubtful whether a layman ought to take part in adiscussion of this kind, but when we are dealing with a matter of judgments and judgment creditors, some of us have had a little experience of these things. Many an action is brought against a Government and a verdict obtained, and we also know that when emergencies arise Governments have always moneys to meet special cases. Does not the Government obtain in each session a vote on account for unexpected contingencies, and could it not meet these judgments out of that vote? I think that Governments, like corporations, have sometimes very little conscience, and we all know that there are cases in which persons have obtained verdicts against Governments, and have found it a most difficult matter to get a settlement. I hope that we shall set a better example in this respect than some of the States Governments, and that we shall protect judgment creditors.
– I do not think Senator Walker quite realizes the kind of claims with which we may have to deal. It is all very well to talk of a claim of £20,000, £30,000, or £50,000, but these claims between State and Commonwealth and State and State, may run into much larger figures. I take for instance claims which may arise underthe Constitution for compensation to be paid for properties taken over by the Commonwealth. The New South Wales claim in this direction will, I presume, be something like £1,500,000, and the Victorian claim will amount to something like the same sum. Assume, for a moment, that the New South Wales claim is for £1,000,000, New South Wales can go into the High Court and get a verdict for £1,000,000. It is nothing if you say it quickly, but it is still £1,000,000, and if this Bill is to remain as some honorable senators desire, within eight, ten, or fourteen days the State of New South Wales could put in an execution upon the property of the Commonwealth Government. They would have the Postofficeand the Custom-house right at hand. Is it not absurd to suppose that a State should be permitted to put an execution into the Commonwealth Custom-house or Post-office and stop the mails and the whole of the business of the Commonwealth in order that this money might be paid ? In other words it is proposed that a bailiff may be put into the Commonwealth itself. Some honorable senators appear to think that these claims between State and Commonwealth and State and State may be treated on the same footing as a debt for rent, or an overdraft in a bank, or something of that kind.
– Is it not the intention to pay a claim?
– Of course the intention is that every claim should be paid, but I remind the honorable gentleman that the Commonwealth Government is regulated in its powers by the Constitution, and, under the Constitution, not a farthing can be paid unless it is voted by Parliament.
– Is there not a vote on account for contingencies?
– The honorable senator cannot get away from these small figures of which he has been speaking, £10,000, £20,000, or £30,000, but I have been pointing out that we may have to deal with much larger figures in connexion with cases that may actually arise. It is impossible that the Government can have at hand money to pay such claims.
– They could arrange with the judgment creditor for time.
– That is begging the question. They could arrange that the creditor should not put in an execution, but the question must be tested on the assumption that the creditor will push his rights to the utmost extreme, and it is ridiculous to suggest that any State should have the power to paralyze the whole administration of Government, and to put the Commonwealth in the position of a defaulting debtor. Senator Walker has said that we will have money on account for contingencies, but nothing like so large an amount as £50,000 can be ready in any advance account if large payments have to be made, and it is impossible that we should have to call Parliament together . when one of these cases occurs. That must be done unless we are to have a large fund always at hand for these contingencies, the amount of which it is quite impossible to anticipate. Honorable senators fail to realize that we are dealing with the people of the Commonwealth and the people of the States, and not with individuals. Let me put another view of the question. In New South Wales and in Queensland it is the law that the ordinary process may be followed after an action. In the other
States that is not the law. Why should we force this law upon the four States which have had an altogether different law hitherto, and which will continue to have a different law in regard to every matter except a Commonwealth judgment? It may be said that the Commonwealth has always plenty of money at hand - the Customs revenue. I shall take the case of Queensland and New South Wales as an illustration. All Queenslanders know, I presume, that New South Wales has had for many years a very largo claim against Queensland. I am not sure, but I think it must amount to £200,000 by this time Thatis a case in which, if a judgment were obtained in a Federal Court, execution might issue to-morrow against Queensland. What position would that State be in then? It would suddenly have to find £200,000, or to submit to have a bailiff put into its Treasury. The more the matter is considered, it seems to me the more impossible it is to carry out a provision of this kind, without putting the States and the Commonwealth in a position which is utterly untenable. When we are dealing with the people in a State and the people in the Commonwealth, we are dealing with conditions altogether different from those between party and party. We are placed in such a position that we must rely upon the honour and the credit of the whole people, whether they are in a State or in the whole Commonwealth, and if we do otherwise, we shall take a course which will lead to endless difficulties, and which must break down.
– Senator O’Connor has certainly raised a very important point, because it must be clear to every honorable senator that it would bo impossible to give a State or any other claimant the right to come down suddenly on the Federal Treasurer for an enormous sum. But, in admitting that point, we must not lose sight of the right of the man who gets a judgment for a small amount, which might easily be met. We have to bear in mind that he is a man who would be very seriously inconvenienced if he were unable to get his judgment liquidated. There are two ways in which the matter could be dealt with, and which I suggest to Senator Harney, because I do not feel competent to draft an amendment. One way would be to limit the amount for which a man might take out an execution. If we were to say that a creditor who obtained a judgment for any sum under, say, £300, could immediately levy unless he was paid, it is. quite clear that the Treasurer would always have funds available to meeta claim for a small amount like that. Therefore, the objection raised by Senator O’Connor would disappear. That is one way in which it could be dealt with. On the other hand, if the Committee thinks it would be unadvisable to make a distinction in the amounts, it could be dealt with in another way. We might amend the clause to say that no execution or attachment could issue until 30 days after the ensuing sitting of Parliament. That would give the Ministryan opportunity of introducing the necessary measure to provide the funds required. If they neglected their obvious duty, and allowed the matter to drag on, the creditor would then be able to get an execution and to levy. Senator O’Connor, in dealing with this question, raised the objection that, it would be ill-advised for us to amend the existing law in the States, and that it would be creating a hardship if the States were compelled to do something which today they are not compelled to do. I submit that we are sitting here for the purpose of rectifying injustices. If it is the case, as stated by Senator Harney, that States can evade their responsibilities under the existing law, surely it is right, if we see a way of doing it, to remedy that state of affairs?
– But this would not affect that.
– I understood Senator O’Connor to say that if the clause were struck out it would alter the position of a State in respect to a Federal claimant who might be a small creditor.
– In respect of any claim which came into a Federal Court.
– What I understood the honorable and learned senator to say was any claim brought by on individual against a State in a Federal Court. I fail to see any hardship to a State in being obliged to pay its debts incurred in that way. I fail to see any reason why we should not adopt the course suggested by Senator Harney - with proper provisions to safeguard the difficulties raised by Senator O’Connor - in the way I have suggested.
Senator HARNEY (Western Australia). - I think that the large figures which Senator O’Connor has dealt with are purely visionary.
Se nator O’Connor. - They are not, indeed.
– It could not possibly arise that there would be a judgment for £1,000,000 suddenly sprung on the Commonwealth. Where these large figures are involved is in an adjustment of claims in respect to property taken over, and which are dealt with by an entirely different method from the judgment of a court. We have already dealt with “them here quite differently. If they had to come into court, there would be a certain lapse of time before judgment could be obtained. The person at whom the clause is principally aimed is merely a judgment creditor, because it is word for word the same as the provision which may be found in every States Act in reference to actions, for damages against the Government. I accept tho suggestion of Senator Matheson. If Senator O’Connor will be good enough to withdraw his amendment, I shall move that the clause be altered to read in this way -
Where the amount of any judgment obtained against tho Commonwealth or a Stale exceeds the. sum of £2,000, no execution or attachment or process in the nature thereof shall be issued against the Commonwealth or the State in any such suit, if the Parliament is sitting, for a period of 30 days, and if it is not sitting, for a period -of 30 days after its next meeting.
If the Government contract debts they should be prepared to pay them like anybody else. Where the amount was under £2,000 they would be in the same position as any other creditor. But where the amount was over £2,000, they could wait until the Parliament had had a reasonable opportunity to provide the money.
– Does Senator O’Connor propose to ask leave to withdraw his amendment ?
– Not to-night. The honorable and learned senator has raised a very important question. I do not see my way to accept his suggestion.
Senate adjourned at 10.13 p.m.
Cite as: Australia, Senate, Debates, 6 August 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030806_senate_1_15/>.