3rd Parliament · 2nd Session
The President took the chair at 3 p.m., and read prayers.
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– Since our last meeting I have received from His Excellency the Governor-General a notification as to the election of the Hon. James Vincent O’Loghlin to fill the vacancy in the representation of South Australia in the Senate.
Documents read by the Acting Clerk.
Senator O’Loghlin made and subscribed the oath of allegiance as a senator for the State of South Australia.
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– Now that the Chairman of the Navigation Commission has returned from London, ! desire to ask the Vice-President of the Executive Council, without notice, when he will be in a position to lay upon the table copies of the important resolutions arrived at by the Navigation Conference?
– To-day.
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– I desire to express my pleasure at seeing my honorable and learned friend in his place as leader of the Opposition, and to congratulate him upon his safe return to the Commonwealth. I would ask him to give notice of the questions.
– Perhaps I may be permitted to say, as a reason for giving notice of the question, that some copies of the report have already been furnished. It is not desirable that some honorable senators should have copies and that others should not.
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Bill presented, and (on motion by Senator Keating) read a first time.
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MINISTERS laid upon the table the following papers -
Report of a Conference of Representatives of the United Kingdom, the Commonwealth of Australia, and New Zealand, on the subject of Merchant Shipping Legislation.
Return of persons employed in Cigar, Tobacco, and Cigarette manufactories of the Commonwealth.
Amendment of Public Service Act, Regulation 104. Statutory Rules 1907, No. 73.
Financial and Allowance Regulations foi the Military Forces of the Commonwealth. Repeal of Regulations 65, 66, and 67, and substitution of new Regulations in lieu thereof. Statutory Rules 1907, No. 68.
Report of the Conference on Wireless Telegraphy, with Appendices. Dated Melbourne, 13th June, 1907.
Military Forces of the Commonwealth - War Establishments of Militia and Volunteer Units allotted to the Field Force. War Establishment of a Regiment of Infantry allotted to the Garrison Troops. Peace Establishments of Militia and Volunteer Units allotted to the Field Force. Peace Establishment of a Company of Garrison Artillery and a Regiment of Infantry.
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asked the VicePresident of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : -
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asked the Minister representing the Minister of External Affairs, upon notice -
Was there any correspondence between the Commonwealth Government, the late Right Hon. R. J. Seddon, and the Government of the United Kingdom in respect to the urgency regarding trade between the Colonies and the United Kingdom being regarded, as coastal trade, so as to avoid clashing with treaties made with foreign powers; if there was such correspondence, will he lay aprecis of the same on the table of the Senate ?
– The answer to the honorable senator’s question is as follows : -
Yes ; there was some correspondence, and a precis will be prepared and laid on the table of the Senate.
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asked the Minister representing the Minister of Trade and Customs, upon notice -
– The answers to the honorable senator’s questions are as follow: -
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Motion (by Senator Henderson) agreed to-
That the order of this Senate made on Friday, 5th July, 1907, that certain papers in reference to promotions in the Customs Department be not printed, be, and the same is hereby, rescinded.
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Debate resumed from 12th July (vide page 500), on motion by Senator Best -
That the Bill be now read a second time.
– Ineed scarcely preface the remarks I have to make on the Bill now before the Senate by pointing out that it deals with one of the most important questions that has come up for the decision of the Federal Parliament, further than to add that amidst the conflicting judgments of our own High Court and the Privy Council, the Federal Parliament has a most delicate duty to perform - a duty which requires not only the skilled intelligence of its’ most able lawyers, but also the best ability of the whole of its members.
– A good deal of common-sense is wanted in addition.
– I quite agree that a great deal of common -sense is needed. We want the very best sense and the keenest intelligence of every section of Parliament in trying to put the Commonwealth Judiciary, in the shape of the High Court, upon a sound footing - a footing which will be understood in the United Kingdom as well as by the people of Australia. After the speech - if I am in order in referring to it - which I made upon the Address-in-Reply, and since also 1 arc inclined to support the Government very strongly in the course of action they are taking, I do not think that any honorable senator, whatever his opinions may be about the relations of the High Court to the Privy Council, can accuse me of not being strongly possessed of what I may call the Imperial spirit - a desireto be keenly cognizant of the glory and power of the Empire to which we belong, and highly respectful to every tribunal which the Em. pire lias set up as a means of promoting its greatness. .1 thought when I was making that speech that I was a citizen of no mean city, but it called forth a reply from the opposite side of the chamber which might lead one to think that we were rather mean citizens of a contemptible portion of a still more contemptible Empire.
– The honorable senator apparently wants to introduce a party spirit into this Bill already.
– I merely wish to establish my position. I wish also to emphasize the fact that, while supporting’ the attempt to make the High Court of Australia the sole interpreter of our Constitution, subject to its power of giving a certificate under the conditions mentioned in section 74, I have still the very highest respect for the Imperial Court - the Privy Council- and in fact every one of our Imperial institutions. On the other hand, as I intend strongly to support the corollary Bill dealing with the salaries of the Commonwealth officers and of ourselves also, and as in that respect I shall be supporting State rights, I cannot be accused, when standing so firmly by the High Court as the guardian of the Constitution, of failing to do my duty in a thoroughly impartial and constitutional spirit, by standing by the rights of the States also. _ An open and impartial mind is just as necessary for us as legislators in coming to a decision on this question as it is imperative on the part of a Judge when deciding questions of law.
– Is it possible for the honorable senator to approach this question in that spirit?
– It is quite possible, and after I have traversed the ground J think the Senate will admit that I have attempted to preserve a very impartial mind. Another preliminary observation I should like to make is that there is a common feeling, which was clearly expressed during the discussions upon the draft Constitution, and afterwards when the Constitution was laid before the Imperial Parliament for ratification by an Imperial Act, that in diminishing so to speak the appellate jurisdiction of the Privy Council, we were tampering with one of the links of Empire. 1 do not assent to that feeling, and never have done so. I do not believe that the establishment of judicial tribunals, whether independent or dependent, forms any strong link of kinship be tween ourselves and our Imperial forefathers and Imperial institutions. On the contrary, the main and possibly the only bond of kinship between us - and although it is the crimson thread of kinship, it is a thread stronger than steel - is to be found in our community of race, language, law, religion, and political ideals, which are founded throughout the whole of the selfgoverning portions of the Empire upon the democratic principles of liberty and justice. It is those which bind us rather than the decisions of judicial tribunals. That sentiment has been expressed in the House of Commons as well as here, and also by writers who have addressed themselves to that aspect of the question. In order that we may come to a sound conclusion upon the matter, it is absolutely necessary, as we are addressing ourselves to section 74 of the Constitution, which is really the keystone and crux of the whole question, to deal with it very largely from an historical point of view. Courts of law have their own rules, which are strictly limited, and which leave a great deal of discretion to them in deciding how far in the attempt to interpret any legal enactment they may have recourse to history. No such limitation exists in our case, because if as legislators we are to arrive at a sound conclusion, we must allow no such limitations on our powers. If we do, we shall not arrive at a clear and definite understanding - first, of where we went, second, of how we got there, and third, of what we intended to achieve when we inserted in the Commonwealth Constitution section 74. It will be necessary, therefore, for us to go back to the position in which the Constitution stood when it was framed, and to consider also how it was presented to and passed by the Imperial Parliament. I wish also to emphasize the fact, which I think every honorable senator will have vividly before his mind once it is mentioned, that the Constitution of Australia is unique in all history. It is a Constitution which was founded upon the deliberate volition of the people, who framed a system of basic legislation for their future development as one united nation. All previous Confederations, whether of homogeneous or kindred races, were formed by the instinct of selfpreservation against enemies, internal or external, or were forced upon them by the pressure of necessity. Ours alone was formed by the deliberate judgment and free-will of the people, under no necessity, but under a. strong national aspiration that in times of peace, and without any disturbing element, their genius for self-government should be given free play in order that from a higher and wider platform than formerly existed under separate State Governments they as Australians should achieve a loftier and nobler destiny1 as a united nation. That was a magnificent ideal which was ours and ours alone, and therefore in the consideration of such a document, enacted by the volition and with the assent of the people who were to be governed by it, and who made themselves subject to its provisions, the circumstances of its genesis constitute a. very important element, whether honorable senators agree or disagree with the conclusions that I, and those who support the Bill, have come to. When the Constitution was being framed it was discussed clause by clause, and analyzed line by line, in Conventions elected by and representative of the people. Those Conventions exhausted every form of compromise. They brought the highest legal training, as well as, to use the phrase interjected just now from the other side, common-sense considerations to bear upon the delicate adjustment of the relative rights of the Commonwealth which they were setting up, and the States which were already in existence. After some years had been spent in this task, and after more than one referendum had been taken, to secure the deliberate expression of the opinion of the people upon the various clauses of the Constitution, including clause 74, which was subjected to minute discussion both inside and outside the Conventions, the Constitution, unique in all history, inasmuch as it subsequently received the ratification of the vast majority of the people, was laid, in the form in which the people passed it, before the Imperial Parliament. When we were considering the formation of that magnificent document, we followed the model of the United .States, guided also by the experience of the Canadian and other Confederations, and it is a matter of history that one of the most important questions which confronted those intrusted with that duty was the institution and the determination of the rights and powers of the High Court. Both in the Conventions and outside them, that body was frequently designated as the keystone of the Constitution. Every student of the progress of the long negotiations which led up to the ratification of the Constitution by the people of Australia knows that the High Court was continually referred to in debates in the various Parliaments, and front, various platforms, as a tribunal which wasto bear the same relation to the relative rights of the States and the new Commonwealth here, as the Supreme Court of America bore in almost similar circumstances to the relative rights of the States, of America and the Union. We are, therefore, not only bound to consider this matter from the point of view of our relations as. a Commonwealth with the Privy Council and the Imperial Parliament, but inasmuchas the whole of the representatives appointed by the people to build up the Constitution had before them one fixed model to guide them, we must take also into consideration the position of the great Court in America, side by side with that of our own Court, in order to understand the relation of the High Court to the Constitution, and what the people of Australia,, as well as those of the United Kingdom, intended when they ratified these sections.. Whether section 74 is read separately or inconjunction with the other sections dealing with the establishment of the High Court, its purpose is sufficiently clear upon the surface, and the only contention that canarise out of them will be through trying to import into them what might be called an ordinary common-sense as well asjudicial interpretation. Another thing that I think proper to refer to here, and which honorable senators wil also do well to bear in mind, is this : That we have a system that was a compromise between conflicting interests. I think there was an overwhelming majority of opinion here, and there seems to have been a majority of opinion in the country when the question was discussed in the Imperial Parliament, that we in Australia had set up for ourselves a Court whichwas to be the trustee of all the relative rights between the Commonwealth and the States with sole powers - subject to one limitation - to determine and to adjust those rights and powers. We thought, and so I believe it was thought in the Imperial Parliament, and outside in .the United1 Kingdom, that the ‘trustee of the great power of adjusting the relationships between the Commonwealth and the States lay here, and not at the antipodes. The question of whether some wished it to be otherwise or not is more or less irrelevant to the issue. I may confess that for a long time, as I was a close student both of con- stitutionalhistory and of the proceedings which led up to the formation of the Commonwealth, I desired otherwise. I was under the impression that it would be better for Australia, and for the States, and for the people of the Commonwealth, that an appeal in those constitutional cases, whenever they might arise, should lay to the Privy Council. But it was determined otherwise. The people of Australia, in that document ratified by their sanction, determined otherwise. We have also to take into consideration that, completely or incompletely, that wish was ratified by the Imperial Parliament. After the Constitution had been ratified by a referendum of the people, and their wish expressed in the form of law that the Commonwealth should be set up, the next step in the course of proceedings was that each of the States entering into the Union appointed delegates to take the document and lay it before the House of Commons. The names of the gentlemen intrusted with that very important work were Edmund Barton, Alfred Deakin, James R. Dickson, C. C. Kingston, and P. 0. Fysh, representing at that time five out of the six States that had consented to come into the Union. They were appointed by their Legislatures to take that document Home, and one of the reasons which prompted the appointment of that delegation was, first, that all the gentlemen concerned in it had something to do with the formation of the Constitution.
– That is a mistake.
– Perhaps the statement is not literally correct. It is true that Sir James Dickson took no active part in the formation of the Constitution, but he had been a keen and intelligent observer of what was going on.
– He took an opposite view from the other delegates.
– A piece of gratuitous impertinence !
– He had no hand in the formation of the Constitution.
– Of course it is true that Sir James Dickson had not a hand in forming the Constitution. Queensland, however, consented to come in under the Constitution, and he, as the Premier of the State, was acting in a responsible position for his own State. In common with the other delegates, he was sent Home to lay the document before the House of Commons. It does not weaken my argument that one of the delegates had not taken an active part in drawing up the Constitution.
– It does not matter, but it is just as well to state the exact truth.
– Another purpose of that delegation was - I hope I am not over-stating the matter, I believe I am stating what was absolutely the fact - that they were expected to assist the House of Commons as interpreters of the document. The House of Commons right throughout, by means of its leader on this subject, the Right Honorable Joseph Chamberlain, looked to the delegates for light and guidance - looked to them as interpreters of the Constitution, and -frequently consulted them in that capacity. It is, therefore, necessary, in discussing what is properly the effect of section 74, to point out in regard to it the form in which it was presented to the House of Commons, because it will throw a good deal of light upon the subject of the debates in the Imperial Parliament, and also, I think, throw a certain light on what the section means. It will enable honorable senators to understand its form thoroughly, and what was intended to be effected by it. I shall read the clause exactly as it was presented to the House of Commons. It was as follows -
No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of the Constitution or of the Constitution of a State unless the public interests of some part of Her Majesty’s Dominions other than Hie Commonwealth or a State are involved.
Now, the object of that was intended to be this - that so far as constitutional matters were concerned, which only involved the rights of the Commonwealth in relation to a State, or of one or more States in relation to the Commonwealth, they should be left absolutely to the tribunal set up under the Constitution; and the clause specially excluded from the jurisdiction of the High Court those questions which affected the public interest of any part of His Majesty’s Dominions outside the Commonwealth. There was a proviso to the clause upon such questions, and it read in this way -
Except as provided in this section this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. But the Parliament may make laws limiting the matters in which such leave may be asked.
In that form a great deal of the appellate jurisdiction from the States was still left to the Privy Council. The only material portion of the clause - perhaps that is too wide an expression ; but the material portion of the clause - is that when the Constitution was ratified and taken Home, there was a clear expression of an intention on the part of the Commonwealth Constitution as determined and guided by the High Court, not in any way to interfere with, the public interest of any portion of Her Majesty’s Dominion outside the Commonwealth ; and conversely that we, under that Constitution, and the States amongst themselves and in their relationships with the Commonwealth, should have the final settlement here.
– That view was challenged at the time.
– It was challenged at the time, but the more it was challenged and the more it was discussed the clearer it became, I think, to every person interested in the discussion, that the Constitution sought only to reserve to Australia the right of dealing” with constitutional questions as affecting itself and itself alone, and that nothing else was ever aimed at in the Constitution. I should like to allude to a misconception which I think prevailed then, as to some extent it prevails now, that inasmuch as we had set up a High Court and given it appellate jurisdiction even from States Courts, the right of appeal was gone. That right of appeal was, as a fact, never touched in purely State matters. The Constitution only gave the litigants an alternative Court to which they might appeal in State matters without going to the trouble and expense of appealing to the Privy Council; but if they chose to take that course, and merely upon State matters to appeal to the newly-created Court, the High Court of Australia, the decision of the High Court of Australia was to be final and conclusive. There was still the reservation - that special leave to appeal might be granted. So that the Constitution did not deprive litigants, subject to this leave being obtained, of the right to appeal to the Privy Council instead of to the High Court. That right then remained, and I believe I am correct in saying that it still exists. And if honorable senators look at the matter from that point of view they will see that it amounts to this : In about 90 per cent, of the cases which would be subject to litigation the right to appeal is not impaired now as compared with what it was before our Constitution was set up. I think it is necessary that that point of view should be carefully considered by honorable senators in discussing the question of the right to appeal to the PrivyCouncil. That right, even when the Constitution was set up, was impaired in only one respect - it was shut off in only one particular - and that was in cases dealing with constitutional questions. In all other cases - in State matters and matters which would concern litigants apart from constitutional issues - there was still a right of appeal to the Privy Council. Therefore, so far as the impression exists that the Privy Council still has not the large appellate jurisdiction for 90 per cent, of the litigious business of the Commonwealth, it is a false impression. But in regard to decisions in questions which are purely constitutional, provision is made by which while appeal to the Privy Council is absolutely cut off, the High Court is authorized togive a certificate in that species of questionswhich the High Court thinks it proper for the Privy Council, and not for itself, to determine. I wish to impress upon honorable senators the fact that our Constitution came before the House of Commons in the form of a schedule toan Imperial Bill. It was presented in that form by the then Secretary of State for the Colonies, the Right Honorable Joseph Chamberlain, and at that time the present section 74 stood in the form I have already quoted. Mr. Chamberlain’s speech, in moving the second reading of the Bill to which, I say, our Constitution was appended as a schedule, was illuminative on the questionof appeal. From the “ Commonwealth of Australia Constitution Bill Debates in the Imperial Parliament with Appendices,” I find that on Monday, 14th May, 1900, Mr. Chamberlain, in moving the second reading of the Bill, said, and I ask honorable senators to mark the passage -
I think it is true to say that on the whole this new legislation, although it is in important respects unlike every other Constitution at present existing, still in the main, and more than any other, follows the Constitution of the United States of America.
He pointed out the difference between our Constitution and the formation and extent of the jurisdiction of the Dominion of Canada, and he added these very strong, words, upon which there may be founded a strong implication -
It represents substantially and in most of its features the general opinion of the Australian, people.
It should be borne in mind that, throughout the passage of the Bill through the
House of Commons, Mr. Chamberlain was in constant communication, for purposes of reference and advice, with our own delegates, as well as with the Imperial Crown Law officers. He enlarged on the point to which I have just referred, and then summarized his conclusions in this way -
We have got to a point in our relations with our self-governing Colonies in which I think we recognise once and for all that those relations depend entirely on their free will and Absolute consent.
He was introducing the Bill in the House of Commons, and his object was to find out what it was that the Australian people expressed in the Constitution they had submitted and what it was they Had desired, and he indicated his intention to the House of Commons to, as far as possible, give legislative effect to that expressed desire. I speak in the same spirit now, and I say that it is our duty to consider what it was we intended to effect by section 74 of the Constitution. We may, for the moment, set aside other aspects of the question as to whether it might have been better to have put that section in some other form, and try to find out what it was that was ratified by the Australian people, and subsequently by the Imperial Parliament, when it passed that section in the form in which it now appears in the Constitution. Mr. Chamberlain referred in his speech to the various links between Australia and the mother country, and that naturally led to an allusion to the relations between the Privy Council and the self-governing Colonies of the Empire, considered as a link of the Empire. I shall read his remarks on this point, because it is important that honorable senators who are not prepared to go as far as I have gone in this matter should carefully consider what Mr. Chamberlain said on the question of Imperial links, and the Privy Council as one of those links. He said -
One of those ancient links is precisely the
Tight of appeal by every subject of Her Majesty to the Queen in Council. The Bill weakens that - there is no doubt about that, and surely opens up, as I shall show, a prospect of causes of friction and irritation between the Colonies and ourselves, which, in my opinion, would be more numerous and more serious than anything that is likely to result if the right of appeal is retained.
By that expression of opinion the apple of discord was thrown down to the gods, and round it a long series of negotiations revolved. Much discussion, both inside and outside the House of Commons, was pro voked by the statement, but, with all respect to Mr. Chamberlain, I am inclined to think that he had not at the time a clear conception of section 74 and its relation to the other sections of the Constitution setting up the Judiciary. I think I shall be able to show that when I refer to the compromise agreed to on the subject between the Australian delegates and Mr. Chamberlain himself. I may be pardoned for saying that I do not think the section was properly understood at the time, because it is evident, as honorable senators will have observed from the recent history of the matter, that in these difficult and delicate questions it is a very serious task to determine verbally or by implication what these various sections mean. I make these remarks in the hope that honorable senators who will follow me will closely scrutinize section 74 as it orginally stood in the Commonwealth Bill, and as it was subsequently modified in the Constitution, as well as its relation to the various sections setting up the Judiciary. Having thrown what I call the apple of discord to the gods, Mr. Chamberlain added these remarkable words. Referring to a second principle in the Constitution, he said -
But the second principle which I ask the House to assent to, and to which we have given application by certain amendments, is that wherever the Bill touches the interests of the Empire as a whole or the interests of Her Majesty’s subjects, or of Her Majesty’s Possessions outside Australia, the Imperial Parliament occupies a position of trust which it is not the desire of the Empire, and which I do not believe for a moment it is the desire of Australia, that we should fulfil in any perfunctory or formal manner.
Mr. Chamberlain saw that there were two great principles embraced in the Constitution. On the question as to how far the right of appeal to the Privy Council might be modified or limited, he laid’ down to the House of Commons the principle that in all matters relating to any other portion of the Empire, and matters affecting Imperial interests, the right of appeal should be reserved to the Privy Council, and I think by a corollary which follows, necessarily, he intended to convey to the House of Commons, and to the people of Australia, that om purely Australian matters, it was his intention, and should be the decision of the House of Commons, to permit the High Court, subject to certain limitations, to be the sole arbiter. Mr. Chamberlain was replied to by the then leader of the Opposition, the present Prime Minister of England, Sir Henry Campbell-Bannerman. That right honorable gentleman’s speech is also worthy of the very closest attention. I find that he said -
We have heard of opinions in favour of retaining the appeal to the Privy Council, but the question at issue is - Are we prepared to interpret this instrument as it is interpreted by the people of Australia?
He proceeded to elaborate that point, and he said -
Simple people . . . will ask why it should be so dangerous to leave the interpretation of the Commonwealth Act to those best acquainted with the circumstances and state of feeling out of which it has arisen? Surely those who have framed it and have seen the growth of the whole question should know what was intended when the Act was passed by the Australian people and are better able to judge of the spirit and intention, than persons who though more learned have no such acquaintance with local feeling.
. In order to overcome a difficulty that might be otherwise met, we are to break in upon a solemn instrument which represents not only the will of the Australian people, but a contract and covenant entered into between themselves.
Those are very weighty words, and from the historical point of view, they accurately describe the course of events that transpired in Australia, and the problem we have before us in dealing with section 74, and seeking to give absolute effect to its intention, ft is in exactly the same spirit that we should approach the consideration of the question. We must find out what was the intention of the section, and seek to give effect to it if we can by the means suggested by the Government. Sir Charles Dilke also spoke in the second-reading debate, from which I have been quoting, and, referring to the Constitution, he said -
It has passed, as no other Constitution in the British Empire has passed, through the ordeal of a reference to the whole people of the country whom it concerns.
T find that Mr. Haldane, now Secretary of State for War, said -
There is quite enough appeal left by the clause as it stands to the Privy Council to preserve the existence of the Court, and I would rather see this matter initiated in strict accordance with the wishes of the people of Australia, wishes arrived at after long conferences which must be taken to be authoritative, than in a shape they do. not desire.
That was the expression of opinion! of one of the most eminent lawyers in the United Kingdom, in reply to the speech of Mr. Chamberlain in introducing the Bill, and he pointed out that he anxiously desired that the Constitution, and especially sec- tion 74 - because by this time that section was the chief bone of contention - should pass through the House of Commons exactly in the form in which it had been ratified by the people of Australia. I think his words- “ there is ample appeal left to the Privy Council to preserve the Court” very suggestive, because they may correct- a popular misapprehension on the subject.
– The only question at present is : Who is to say what are the matters which are included in section 74? Whether it be the High Court or the Privy Council, it certainly cannot be the duty of this Parliament.
– Certainly not. No doubt we shall have to find what it isthat is expressed in section 74 within the terms of the law. I hope, in the circumstances, that the Bill will not pass through our hands without the keenest discussion as to the intention of section 74, subject to the other sections dealing with the Judiciary. We cannot derive from section 74 any further powers than are to be found expressed therein. We must be careful about that. I am adopting this method of discussion in order to excite interest as to what was the real intention of that provision. The Government have evidently taken up the view that it was the High Court alone which could determine constitutional questions between the High Court and the Privy Council, and also between the States Courts. It is evident that there is a great conflict of opinion, and consequently it is necessary that we should be absolutely clear on the point. I am of opinion that the words mean absolutely what they say. Of course, lawyers and Judges have extracted quite a different meaning.
– The Judges are lawyers, surely !
– Of course. Very often a lawyer considers a provision from a particular point of view, and sometimes a Judge considers it, not only as a lawyer, but also from the point of view of how it will stand when it is given practical effect to. I repeat that I am of opinion that the words mean what they state.
– There is no dispute about that. The only dispute is as to what do they say.
– I believe that what they were intended to say, and what they do say, is that on constitutional matters the High Court shall be the sole judge.
– But who is to decide what are the constitutional matters ?
– The High Court itself.
– Where does it say that?
– I think that follows from the doctrine of necessary implication, otherwise I do not see how the judiciary sections of the Constitution can be workable at all. In arguing the matter I am not going to admit what seems to have been hinted at in the Privy Council, that we cannot in this connexion import the doctrine of implication. That, I believe, is one of the most necessary forms to be resorted to when we want to find out what is the absolute meaning and intention of an Act.
– No, the Privy Council did not say anything about implication. What they objected to was not any implication from the language of the section, but the doctrine of implied powers not expressed in the Constitution.
– My answer is that once we are clear as to what is the implication the implied powers follow. I should think that the matter was considered sometimes from the opposite point of view ; find out the implied powers before calling in the doctrine of implication. I am inclined to say that it is a useful maxim for the purposes of determining the law as well as considering it that we should reverse the process; in other words, find out first what was the implication. The doctrine of implication being applied shows, I think, that it was a very well-expressed intention that wheresoever and howsoever a constitutional question arose between the Commonwealth and a State, or between States, as to their relative rights and powers under the Commonwealth and their own Constitutions, the High Court should be the arbiter, and the only arbiter, on that particular matter. That follows from section 74. Of course, it would be idle to say that such a question is not open to discussion when we find that the ablest lawyers and the ablest Judges in Australia, and’ very probably in the “United Kingdom, differ on that point. After giving particular thought to the question, I simply express a strong opinion. It may be shown, though I do not think it will be easily shown, that I am wrong. I am trying to preserve as completely as I can an open, impartial mind. I desire to find out from the express form of the sections, as well as by reference to the doctrine of implication, and also to history, what was expressed in section 74, and, if I can find out, to try to give effect to it. I repeat that, in my opinion, the words of the section, if they do not mean expressly, do mean by inevitable implication that the High Court alone should decide constitutional questions as laid down in the section - that it was the tribunal to say when such questions ‘did or did not arise. Perhaps the latter part of that sentence is a rather strong statement - probably stretching the doctrine of implication very far.
– Probably that ought to be so, and may be what we desire; but the question is, is it so?
– I feel myself now very much in the position of one who is arguing before a Judge. I have no other object in view than to promote, not only the welfare of the representative States, but also to establish good feeling and harmony between the respective Courts in the Empire. I desire to ascertain what was the wish of the people, and in the important work of the Judiciary, to find out what are the relations of that great judicial tribunal to our own people as well as to the Privy Council.
– Also, if there is a defect, can we remedy it?
– Yes. I think we can remedy the defect, and if we can, it necessarily follows that we should try to do so. The result of the discussion after the second reading of the Bill was moved in, the House of Commons, and after a conference with the delegates, was the compromise, which read in this form -
No question howsoever arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, shall be capable of final decision except by the High Court, and no appeal shall be permitted to the Queen in Council from any decision of the High Court on any such question -
Let honorable senators mark the proviso - unless by the consent of the Executive Government or Governments concerned, to be signified in writing by the Governor-General in the case of the Commonwealth, and by the Governor in the case of any State.
I would draw the attention of honorable senators to the first portion of that compromise. Apparently, by the amendment, the
Right Honorable Joseph Chamberlain had accepted the position that on constitutional points there was to be no appeal except the Governor-General, in the case of the Commonwealth, or the Governor, in the case of a State, had signified his consent in writing. It went on to say -
Except as provided in this section this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of her Royal prerogative to grant special leave of appeal to tier Majesty in Council. Parliament may make laws limiting matters in which such leave may be asked, provided that any proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.
Now, let honorable senators compare that compromise with section 74 as it stands, and there is no material difference - scarcely a verbal difference - except on the point that when a constitutional question arose, and an appeal was to be made to the Privy Council, and the Governor-General or the Governor, as the case might be, should so certify. When that proviso stood in the clause, it seemed to have been understood Loth by the Crown Law officers at Home as well as by ourselves, that constitutional questions arising between the States, or between the Commonwealth and the States, were to be reserved for the judgment of the High Court. What was the effect of the amendment ? It startled the people of the United Kingdom, and certainly it startled the people of Australia, because for the first time, I believe, in the history of English jurisprudence, the principle was laid down of allowing the Executive to interfere with the Judiciary. That was one of the most vicious, and certainly one of the most dangerous, principles to introduce, because we know how the Empire has gained strength, stability, and respect, exactly in proportion as the judicial power has been kept absolutely free from Executive control. That compromise dragged in the Executive on the all-important question of appeal. It dragged the Judiciary into the field of politics, and vice versa. If it had gone through the House of Commons in that form, the Executive, which simply means the Ministry, would have had the right to say whether or not a litigant could exercise, or be allowed to exercise, his right of appeal.
– In a constitutional question, the respective Executives would be the litigants, and it was merely a proviso for the right to consent.
– The honorable senator has got hold of the point. It would have left the Executive the power to consent, and conversely the power toforbid. That was a dangerous innovation.
– I see that point.
-LEDGER. - That suggested compromise was accepted by our delegates. In the interval between; the second reading of the Bill being moved and the House going into Committee, the clause in the compromised form was transmitted to us, and began to be discussed here. What was the effect? It cannot better be described, I think, than by saying that a cyclonic howl against it went through Australia, and subsequently it was droppedThe motion for the second reading of the Bill was discussed in the House of Commons in the light of the proposed compromise, and I propose to quote some extracts from the debate. The Right Honorable Joseph Chamberlain said, referring tothe compromise with reference to the Executive -
This agreement follows exactly the principles i have laid down. That is, it leaves Australia absolutely free to take its own course whereAustralian interests are solely and exclusively concerned.
– What the right honorable gentleman said referred to more than the previous proposal to introduce the Executive. It referred also to the right of appeal.
– Yes, and I think what he said referred to the fact that while there was a strong expression of opinion that in constitutional matters relating to the States of Australia, appeals should lie to the Privy Council, there was also on the other hand a feeling that it would perhaps be better to restore the position as suggested by the Australian delegates by cutting off the right of appeal on constitutional matters, and that in that way the desire of the people of Australia would be given effect to. It is clear from the speeches on the second reading that there was a conflict of opinion and judgment throughout. Those who held that it would be better to leave to the Australian people and to the Courts which they would set up the right to be the final arbiters of their Constitution, do not seem to have wavered all along, but on the other side there seems to have been hesitationthroughout as to whether it would be better to consent to this position, or in seme. way to modify it; and they felt that, if it was decided to modify it, the only safe way to do so would be to call in the Executive. When that proposal was strongly protested against by the Australian people, it was thought better, as will be seen on reading the debates carefully, to omit all mention of the Executive, and to leave the provision substantially in the form in which it was presented to them, made a little clearer by what we may call a closer definition of the relations between the High Court and the Privy Council, and between the jurisdictions of the States and the Commonwealth on constitutional questions. I will read the remarks of Mr. Blake, who was then honorable member for Longford South, and who had been for years the leader of the Opposition in Canada - a distinguished lawyer with a large practice before the Privy Council - in reply to the amended provision as put before the House of Commons -
I agree in the principle laid down on both sides as to matters exclusively Australian - that we are but the registrars of the Australian will. As to these, we are trustees for her of our legislative power, and should use it according to her wish.
Then he went on to refer to what had been said about the links of Empire -
I believe the condition to be not as the Colonial Secretary said in his speech on the first reading. I do not believe, as he said, that the links that bind you to your Colonies are slight and slender. I do not believe, as he said, that they could be snapped by a touch. I believe them to be strong and real. But I believe them to be absolutely impalpable, not founded on costly appeals, not on your clauses of reservation, not on your powers of disallowance, and not on the paramount legislative power of this Parliament.
One of the greatest writers on English jurisprudence, Professor Bryce, summed up, in words which it would be impossible for me or any one else to make clearer, what we were seeking to attain by section 74. His view of the matter is the view which has been taken both in the Parliaments and in the High’ Court in determining how far we are to be guided by the experience of the United States. He said on the second reading -
Australia has now _a population of nearly 4,000,000. When the Supreme Court of the United States entered upon its functions at the end of the last century, and when, in particular, Chief Justice Jay was succeeded in 1800 by the great Chief Justice Marshall, one of the first constitutional jurists of modern times, or indeed of any times, the population of the United States was almost exactly the same as the population of the Australian Colonies now. Yet it was found possible from that population of 4,000,000 to secure a Court which was in every way worthy of the momentous functions that devolved upon it, and which from that time until now has succeeded in giving the fullest satisfaction, so far at least as learning and ability and purity are concerned, to the people of the American Republic. Why should we not hope that the Australian population, of our own blood, and trained under our own traditions, should be capable of furnishing Judges for the Federal High Court of Australia who will be equal in their capacity and in the spirit which will animate them to those whom America was able to find with a population no larger a century ago? 1 quite agree with that sentiment. That was really what was intended to be given to us by section 74. It was intended that we should be given permission to build up a High Court with powers to deal with Australian matters - so far as our relations with the Empire would permit it, and subject to the supreme control of the Imperial. Parlia-ment - analogous to those of the ‘Supreme Court of the United States ; and with freedom to build up an Australian nation, subject to its relations to the mother country, on the same lines, and determined by almost the same conditions, as the Supreme Court of the United States followed in helping to build up that great nation. That was certainly in the mind of Mr. Bryce, and I think it was in the minds of the Australian people, and it was subsequently ratified, if not in absolutely unimpeachable language, at any rate in clear intention, by section 74. Sir Robert Finlay was at that time Attorney-General in the Balfour Ministry, and he also dwelt upon the effect of section 74 with that proviso in it -
The principle which has guided the conclusion that has been happily so far arrived at is this. All that concerns Australia alone, if the Australians desire it, will be decided in their own High Court. What concerns other parts of the Queen’s Dominions or the British Empire as a whole will be subject to an appeal to an Imperial Court.
Sir Robert Finlay, who was then the responsible legal adviser of the Imperial Government, evidently had clearly in .his mind what he thought was the intention of section 74, even with the proviso dealing with the Executive in it. The Bill went into Committee on 18th June, 1900, and various other amendments were suggested. The protest from Australia had arrived. The provision dealing with the interference of the Executive had been cut out, and section 74 was before the House of Commons practically as we have it now. During the negotiations as to the compromise bringing in the Executive, the whole question of appeal came up for discussion on public platforms, and in many other ways. Mr. Chamberlain made it known in the House of Commons that he had received a. communication from Sir Samuel Griffith, who was then Chief Justice of Queensland, suggesting certain amendments. In Committee on 1 8th June, 1900, the right honorable gentleman said -
We were assisted in our inquiries by the opinion that came to us from Chief Justice Griffith, in which he suggested certain amendments of the proposed agreement to carry out these objects, and I am glad to say that we have now again, after communication this time with all the five delegates, arrived at a further proposal which does, at any rate, absolutely meet the two objections to which I have referred, and I am not aware of any other objections that have been taken. We propose in the new form of the clause which appears on the white paper to-day, and which I shall propose at a later stage, that the right of appeal shall be restricted only in a single case - only in the case of a constitutional question arising as to the powers inter se between the States or the States and the Federal Government, and arising in the High Court. We strike ‘out altogether all reference to the State Courts, leaving the state of the law on the question of appeal exactly where it was before, and we deal only with exceptional cases arising in the High Court. If I may express, in arithmetical terms, my own idea of what has happened it is this. Whereas in the original Bill, as it was presented to us by the Australians, in nine cases out of ten the right of appeal to the Queen in Council would have been restricted, and whereas by an agreement which we came to before the second reading, and before’ the delegates of the southern States were heard, that right of appeal would have been restricted in perhaps five cases out of ten, now, by the new arrangement, it will only be restricted in one case out of ten.
I submit that the one case out of ten referred to by the right honorable gentleman was the case that we are arguing for now - that of a constitutional question arising as between the States themselves or. between the States and the Commonwealth.
– He says- so, does he not?
– He could not have put it in clearer terms.
– But he coupled with the statement as to cases arising between the States and the Federal Government the words, “and arising in the High Court.”
– Precisely so. Of course we shall have a good deal of legal discussion on that point, but it is a maxim in construing a Statute that you cannot keep your eye upon one section ‘only, but must read each section in its relation to the others with a view to making them all stand, and noi with .1 view to destroying any particular one. You cannot take out an accidental verbal omission, and say that by that means you are going to destroy the whole law. You must read section 74 in the light of all those sections which set out and determine the jurisdiction of the High Court.
– Hear, hear ! Sections 75, 76, and 77.
– Exactly. You cannot say that, because the Right Honorable Mr. Chamberlain referred to some particular point, you are going to overlook the combined effect of all the sections by reason of that one point. I shall also quote the remark of Sir R. T. Reid, the honorable member for Dumfries Burghs, on that very question -
The proposal now is that on questions of constitutional interpretation there shall be no appeal, unless the High Court certifies an appeal. That is a difference which it seems to me ought not to occasion any difficulty.
That is, in the form in which we have it now it was taken by all parties that, while the right of appeal was very much enlarged by the amendments, there still remained one case in which that right of appeal had been cut off. As bearing further upon the remarks which I have made, I will quote another passage from a speech by Mr. Chamberlain in Committee. It shows that he himself, and practically the House of Commons also, had made up their minds. He said -
When I am told that the amendments which we have now made do not affect that restriction, I think I can best answer that by saying that by those amendments we have placed the question of appeal, with one exception, in precisely the same condition in Australia as it is in Canada. The honorable and learned gentleman approves of the condition of things with regard to appeal in Canada. Let me point out that under the new amendments we shall be acting in precisely the same way in Australia as in Canada, except that in the limited number of cases where constitutional questions are tried in the High Court leave to appeal will be given in the case of Australia by the High Court, whereas in the case of Canada leave to appeal is given by ‘the Privy Council. That is the only difference. Having brought the right of appeal in Australia so completely or nearly in accord with the right of appeal in Canada, I think we have secured a very great result, and I am only glad to find that in doing so we have the support apparently of. the Australian people.
Again, he was arguing as to the reservation in regard to the particular point upon which appeal was restricted in certain cases. Every one of the speakers seemed to emphasize that fact. I will quote a remark made by the Earl of Selborne when the Bill was sent up to the House of
Lords. There seems to have been no doubt as to what was intended at that time. Lord Selborne said -
In Canada an appeal may be taken by a litigant from one of the inferior Courts direct to the Supreme Court of Canada or to the Privy Council. Under this Bill an Australian litigant will have the same privilege.
No one denied those propositions or suggested that they were in doubt. Lord Selborne also added -
In Canada, if a litigant has chosen to go to the Supreme Court of Canada, he may appeal from the decision of that Court to the Privy Council with and by leave of the Privy Council. In Australia a litigant will have the same privilege, except in one special class of cases where the question which has arisen is the limits inter se of the powers of any State, qua the Commonwealth, or of one State qua another State. In those cases litigants may still have the liberty of’ appeal to the Privy Council from the High Court of Australia, only the leave for that appeal is to be given not by the Privy Council, but by the High Court from which the appeal is to be carried. That is a very slight variation.
That is the position as it stood when the Bill went to the House of Lords. Now, I think that what I have read throws some light upon what .was the intention of the Imperial Act. It is clear - whether we expressed it or not, or whether we expressed it with sufficient clearness or not, is a delicate point - that the intention to be gathered from those speeches was that on constitutional questions as affecting the Commonwealth and the States themselves a litigant could go to the High Court, but could not appeal to the Privy Council except by leave of the High Court. That was the position until the case of Webb v. Outtrim was decided by the Privy Council. Now, I have no desire to speak disrespectfully of any tribunal of the Empire, but the duty of criticism is forced upon us. Subject to that duty, I wish to speak with all respect of the Privy Council. But I regret to have to say that in my opinion the decision of the Privy Council has rather confused than thrown light on the question.
– I do not think so.
– I can see nothing but confusion in it. Of course, it may be that the honorable senator will make the position clearer, but I am unable to see light in it or through it.
– What I meant was that the decision of the Privy Council has brought the difficulty to light; that is all.
– I am not saying that it has not done that.
– It is the decision of the High Court which creates confusion.
– That is so.
– I beg to differ from the honorable senators. In my opinion, when the Privy Council became conscious that it was confronted with a difficulty, it should have thrown some light on what the difficulty exactly was, and also on the proper solution of it. But I regret to say that I cannot find any enlightenment in the decision of the Privy Council. Of course the lawyers in the Senate and in the other House will analyze the decision of the Privy Council, and the decision, of our own High Court, and probably we shall derive enlightenment from them. Now the decision in the case of Webb v. Outtrim was this - that -
No restriction on the part of such an officer
That is, the Commissioner of “Taxes - is enacted by the Commonwealth Constitution, nor can any one be implied on any recognised principle of interpretation applicable thereto.
In the judgment leading up to that decision,. Lord Halsbury, after traversing the doctrine of implication which was laid down by the Chief Justice of the High Court of Australia, in the case of D’ ‘Emden v. Pedder, and which he subsequently laid down in later cases arising out of it or connected with it - said that the first objection to it was -
That the Chief Justice does not state what are the provisions undistinguishable in substance though varied in form. And it is extremely difficult to understand the application of the principles involved unless the comparison is made clear by the juxtaposition of provisions.
That is a most remarkable sentence, and it is a sentence which I do not understand to have any strict relevancy to the question at issue. The Earl of Halsbury seems to deny that we can proceed by the course of implication, or by the maxim of implication, to interpret an Act like our Constitution. He also seems to infer that the Chief Justice of the High Court, in delivering judgment in D’Emden v. Pedder, had not made himself clear when hs referred to the analogy between the American Constitution and our own. I do not wish to be disrespectful to the Privy Council, but I venture to say that had the noble Lord sent the tipstaff or some other person down to a law library to fetch a copy of our Constitution, and of the American Constitution, and had he placed the two side by side, he. would have found a remarkable parallel, which cannot be better expressed than in the words of the Chief Justice of the High Court of Australia. It seems to me that all that was required was not to wait for the juxtaposition to be shown, but to trace where the juxtaposition) was by reference to the text books, and then it would have been seen that the provisions were not undistinguishable in substance, though varied in form. I say that I cannot understand Lord Halsbury’s expression in relation to this case, and I am dealing with it as one not knowing, but trying to find out. Lord Halsbury in that decision seems to deny the doctrine of implication. He seems to deny the principle that we can, in the interpretation of a Constitution like ours, resort to implication. That is the impression that I derive from his judgment. But if that be so, I shall have to revise a good deal of what I have learnt about maxims of law.
– I understand Lord Halsbury to say that we cannot by implication! take away powers given to a State.
– The contention is this: That if section 74 be looked at in relation to other sections, it will be found that a certain power is, if not strictly expressed, almost inevitably implied. When Senator Dobson says that powers are not taken away from the States because they are not expressly taken away, I ask him, how is a Constitution of any kind to be interpreted unless the doctrine of implication is brought in? Let me illustrate the point. The very basic foundation of our Constitution, of its working, and its development, lies in one single maxim. We are here carrying out our wor’k upon the basis of a maxim, and that maxim is that “The King can do no wrong.” It is impossible to interpret that basic maxim except in the light of implication, because as it stands it is stupid. Read alone, it would mean that our system of Government was simply a means for the exercise of autocratic absolute power. Without an implication, it is not intelligible to am foreigner. What is that implication ? It is this : That the King can do no wrong because his acts are the acts of his Ministers. It is implied right through the Constitution, so far as the King’s representatives are concerned, that his every act is done by his Ministers, and, therefore, what is done wrong is not his wrong, but the wrong of his Ministers. Consequently “ The King can do no wrong.” To understand a simple basic maxim like that, we have to resort to implication. We know how that maxim arose, and what gave force to it. It arose through an amusing incident in which the principal actor was Rochester, one of the advisers of King Charles II. It was the custom at the time for men to write witty and fanciful epitaphs suitable for inscription on the tombstones of their friends, and one day. in the exercise, of his wit, at the expense of the Merry Monarch, Rochester composed an epitaph for the King which somewhat irritated His Majesty. He wrote -
Here lies our sovereign lord the King,
Whose word no man relies on.
Who never said a foolish thing,
Nor ever did a wise one.
Of course, the laugh was against the King, but His Majesty was also a witty man, and he at once replied and enmeshed the witty Rochester in his own logic by saying
That is quite true because what I say myself is my own words, and what I do are the deeds of my Ministers.
I mention so much in order to show the importance of the doctrine of implication in construing the Constitution. I ask honorable senators who may be of a different opinion, to consider the position. Are the Commonwealth authorities, in the exercise of the powers of the Commonwealth, to go roaming at large over the States, and conversely are the States authorities to roam over the Commonwealth in the free exercise of their powers to do right or wrong, and then stand in a Court of law and, like Shylock raise the plea -
Is it so nominated in the bond?
Unless this doctrine of implication be relied on. in construing the. Constitution, there will certainly be confusion worse confounded. We see already a possible attempt that might be made by Commonwealth officials to roam over the whole of Australia and seize the cattle and herds and goods and property of men in the States. Are these Commonwealth officers to be met by another set of officers, who shall say - “ You shall not touch our herds, our goods, or our property,” and are both authorities then to wrangle in a court of law as to whether the Constitution construed verbatim et literatim enables them to do this, that, or the other? If we do not admit the doctrine of implication, we shall have a condition of confusion throughout the States and the Commonwealth. I am shaking strongly, but I wish to be clear, and I am mainly inspired by the desire to show the difficulties and to see if they cannot be overcome. I say that if the doctrine of implication is not clearly considered, our condition of affairs in the future will be like that of Shylock when he wished to plead his bond. My desire is that the States from time to time shall know absolutely what their position is, and the Commonwealth shall know its position, and that there shall be order and harmony in their mutual relations. I desire that when difficulties arise between them - and it would take an astral intelligence to anticipate what they will be - they will be willing to agree to submit them to a tribunal that shall have power to decide them once for all. I am speaking in the interests of the good order, development and progress of the Commonwen I th, and if I speak under any misconception of the judgment of the Privy Council, I can only ask to be -excused by them and by honorable* senators. There is another great maxim of common law of universal application when dealing especially with the construction of a Statute as well as dealing at common law with a written document, and that is the brief maxim that the Court shall construe these things ut res magis valeat quam percat, which means that the written words in a document shall rather be sustained than destroyed. That is a maxim which is frequently quoted, and it is almost impossible to understand a section of any of our Statutes, or for the Courts to administer them, unless the view taken of them is based upon a maxim of that kind. Once a law issues from Parliament as a Statute, and it becomes the duty of a Court to construe it, the Court is bound to consider its sections with a view that each and every one of them shall stand rather than that they shall be destroyed. T direct the attention of honorable senators who may be inclined to find flaws in section 74 to that maxim. They should find out, as I am trying to do, what is the clear intention of the section read in conjunction with the machinery clauses setting up the Judiciary. That is the first thing which opponents of section 74 must consider. They must try to construe it and give it meaning in such a way that the clear intention of that section, and the other sections with which it must be read, shall stand, if legally it can be made to stand. I regret to say that in my opinion the Privy Council approached the consideration of section 74, and the construc tive clauses of the Judiciary, rather upon the maxim, ut res magis pereat quam valeat, which means that they should be destroyed rather than sustained. This is strong, but I hope respectful, language, and as a member of a Legislative Chamber, responsible- for the probable course of legislation, I am bound, when seeking a legislative enactment in order to set us right, to give emphatically and clearly, and I hope respectfully, my opinion of the position.
– Does the honorable senator think that the Privy Council really cut down section 74 at all?
– I should not have been making a speech at this length if I did not decidedly think so.
– We cannot make a new section to take its place in this Parliament. That must be done by an amendment of the Constitution.
– I differ from the honorable senator; I think we can.
– If the Privy Council destroyed section 74 this Parliament cannot build it up again.
– The honorable senator has misapprehended me. I said that they have tried to do so.
– But failed.
– I think they failed. I think the section is still strong.
– What is the necessity for this Bill if the section still stands?
– I think it is necessary, because the Privy Council seemed in tire peculiar circumstances to have been under the impression that the States Courts were exercising State jurisdiction, that there was a flaw in the Judiclary Act, that we had not made our intention clear, and that therefore litigants in the States Courts were entitled to get through that loophole. If that be the view which Senator Symon takes, it will probably be found that the honorable senator will be bound to admit that there is a good deal still left in section 74 on which to build, and that if that section stands at all, it will permit such an amendment of the Judiciary Act as is embraced in the Bill before the Senate.
– The Privy Council practically held that section 39 of the Judiciary Act was ultra vires.
– If they were right, we cannot by an Act of this Parliament make it intra vires.
– I am ,not sure that I follow Senator Symon. I think that very probably the position taken up by the States Courts, and by the Privy Council is that we had so worded subsection 2 of section 39 of the Judiciary Act-
– That we had not exercised all our powers?
– Exactly ; that we had not exercised all our powers under section 74 of the Constitution. This Bill is an endeavour to exercise them.
– What Mr. Justice Hodges held was that the question raised in the particular case with which he dealt was not one of the matters within the Jim it of section 74 of the Constitution, and the Privy Council has confirmed that view.
– He did not touch section- 74 at all.
– What he said practically was, “ If this comes within section 74 I cannot deal with it. I hold that it does not come within section 74, therefore I can deal with it.”
– Four of the Judges of the High Court have declared that it did come within section 74.
– I was just going to point that out.
– I only read the Bill to-day, and I am very1 much obliged to Senator St. Ledger for allowing me to ask these questions; but if four of the Judges of the High Court said that, and the Privy Council said differently, we cannot settle the conflict between them, can we?
– I should think we can. I hope that it is possible to do so.
– We are not a court of appeal between the Privy Council and the High Court.
– We are not a court at all in the sense in which the honorable senator uses the word.
– That is the difficulty I and what we want is a solution of the difficulty.
– I can quite see that probably we have not in section 39, sub-sections 1 and 2 of the Judiciary Act taken enough of the power within section 74, and the machinery sections setting up the Judiciary.
– Mr. Justice Hodges says that we took too much in section 39 of the Judiciary Act, and that in so far as we did that section is ultra vires.
– Then I am aghast at his conclusion. Of course the opinion of Mr. Justice Hodges is one to which any one would attach the greatest weight and respect, but there is no middle course, and section 74 of the Constitution stands or does not. If it stands, and the machinery sections stand and are valid, I do not see any great difficulty in our way in setting up a Judiciary Act which will make section 74 and the other sections with which it must be read have effect.
– The honorable senator claims that section 74 cannot be read alone, but must be read in conjunction with sections 75, 76, and 77.
– Precisely. We cannot read section 74 alone.
– Does that help the honorable senator in dealing with the point which is now being raised?
– As I understand it, the point that is now being raised is that the Judiciary Act, sub-section 2 of section 39, is ultra vires, in the form in which it stands.
– The honorable senator will pardon me. I express no opinion on that. All I say is that the Privy Council have not whittled away or touched section 74 at all, and Mr. Justice Hodges, in the cases referred to, said that the income tax matter was not one of the matters within section 74. That was, I understand, his decision, but I may be mistaken.
– I say, with aif respect, that if that be so Mr. Justice Hodges evaded the point at issue. It seems to me that the question whether under a State Act the States authorities can interfere with! Federal officers, is a question the answer to which must depend on the interpretation of the Constitution, and it has been held by the High Court to be an interference with the instrumentalities and powers of the Commonwealth.
– That is just it, and the Privy Council say that there is nothing about instrumentalities in the Constitution.
– Of course, but we are relying on the doctrine of implication.
– The honorable senator is relying upon something which some people say must be evolved out of his own inner consciousness, as it is not to be found anywhere in the Constitution.
– In construing the Constitution we must have regard to the doctrine of implication. If we are not to have the light which the application of that doctrine will throw upon the question bv a consideration of the judgments of courts founded on analogous conditions, it will certainly be an exceedingly difficult problem to solve.
– Not quite analogous, because there was no other possible Court of Appeal in the United States.
– That, I think, is also evading the question. It was pointed out in the judgment of the Chief Justice of the High Court that the question whether an interference with a Federal officer is not an interference with the powers of the Federal Government is a constitutional question. Either the imposition of a tax by a State is an interference with the power of the Commonwealth, under the Constitution, or it is not.
– Does the honorable senator think that the State should not be at liberty to tax its own citizens ? I think it should.
– Very probably if I had been a Judge of a State Court, or of the High Court, and the question had been put to me, I should have followed the judgment of Mr. Justice Isaacs, and found as a matter of fact that it was not an interference. But to my mind the High Court was intended to be the tribunal to say whether the exercise of any power is constitutional or not.
– Does not that mean that the High Court may say that the State shall not tax its own citizens ?
– That, to my mind, is simply evading the issue. When the power of the State or the power of the Commonwealth is exercised we never can anticipate whether the legislation will be constitutional or not. It was to provide for that difficulty that we set up the High Court. Was it to be expected that when there was a conflict between the Commonwealth and the States, the former should be bound to resort to a State Court to get a definition of its powers? And, conversely was the State to be bound to go to the Commonwealth Court for the determination of its State rights ? We can never tell how or when these questions will arise, and with what consequences. In anticipation of these difficulties we established a High Court, to which we gave very large and wide powers. I desire to direct the attention of Senator Best to clause 6 of the Judiciary Bill, as the other clauses simply amplify section 74 of the Constitution, and various sections of the Judiciary Act. Clause 6, I am afraid, will provoke a great deal of argument, and require to be very carefully considered. It deals with the treatment or the course of procedure in a case of indictable offence. It proposes to add to section 41 of the Judiciary Act the following proviso -
Provided that, where the trial of any person for an indictable offence against the law of the Commonwealth or of a State is removed from any Court of a State into the High Court, the trial in the High Court shall be, as nearly as may be, according to the course and practice of the’ Court from which the trial was removed ; and to that end the laws of the State relating to the trial and conviction of persons charged with indictable offences against the laws of the State shall extend and apply to the trial as if the trial were proceeding in the Court of the State.
– Does that mean that the High Court is to take control of the State criminal jurisdiction ?
– That is the point to which I desire to direct attention.
– That would be an invasion of the highest State rights.
– I cannot understand the appearance of that clause in a Judiciary Bill. It seems to me that if it be enacted we shall be interfering, and I think almost necessarilv so, with the machinery and the criminal jurisdiction of the States. I would suggest that where a constitutional question arises on the trial of an indictable offence - an offence against Commonwealth law or against the law of a State - the former procedure should be allowed to continue. Let the facts be determined by the Court which is trying the indictable offence, and, thereafter, let the constitutional question be raised, and then reserved for decision by the High Court. In that respect clause 6 seems to me rather unsatisfactory. I desire now to make a few remarks in regard to the Commonwealth Salaries Bill. I was very pleased indeed with the information which Senator Best supplied when he moved the second reading, because there is an impression abroad that as the High Court decided that under the law as it stood a
Federal official was not subject to the Income Tax law of a State we have no power to tax Federal officers, and consequently that they are immune from the obligation of State citizens. To my mind the question of constitutional powers or rights was never involved in a case of that kind. The question was whether or not Federal officers had been reserved from the sphere of State taxation, and when the High Court decided that under the Constitution they had not been left incident to State taxation it was the duty of the Government to have exercised their power at once, and made it evident that Federal officers should be subject to State taxation. I am pleased with the explanation of Senator Best, because it is evident that we possess that power. In the case of McCulloch v. Maryland, which dealt with the question of whether the shares in the United States Bank could or could not be taxed, the decision was that they could not be taxed, because the bank and its officials were instrumentalities of the State, and as such were not subject to taxation. In order to get over the difficulty which was created in that case the Congress passed an Act providing that notwithstanding that decision the bank shares should be liable to taxation, and it has been held to be quite valid. Consequently if our Constitution is based upon the model of the Constitution of the United States, and our powers are in any way analogous to the powers of its Congress, we had the right, as soon as the High Court gave its decision, to say that Federal officers should be subject to State taxation. It seems to me that by reason of the prerogative we have absolute control over our servants, and may put limitations on our grants, so that it necessarily follows that we can subject them to State taxation. Tt also seems to me to follow from the common law that we can make Federal officers subject to this taxation. I am strongly in support of the Commonwealth Salaries Bill. It has been said that under the Constitution Federal officers were not taxable, but we have a long line of American decisions which go to show that we have absolute control over all our instrumentalities. Four out of five Justices of the High Court have thrown out the suggestion that this Parliament can control Federal officers and its grants to them.
– I understand the decision in McCulloch v. Maryland to be that we cannot tax a bank or the property of a bank, but it says nothing about taxing the salaries of Federal officers.
– The question did not arise in that case, but it is an analogous question.
– There the honorable senator is relying again upon the doctrine of implication.
– Yes, otherwise that case would not have been decided as if was. When the ‘Congress found that the States were being deprived of certain revenues it passed an Act to regulate the conditions under which Federal instrumentalities should operate in the States.
– Thereby ignoring the fact that the men were also citizens of the States.
– I think not. My point is that this Parliament has inherently the power to dictate the terms on which Federal officers shall serve in the States. I think that it ought to have intervened long ago, because the nonintervention has left the impression in the States that we are desirous of giving certain immunities to Federal officers. The people got an idea into their heads that the Commonwealth Government was a sort of cormorant, seeking to protect its servants from an equitable claim made against them.
– And to protect itself also.
– Yes, and to protect its own revenues also. The moment that decision was given the position should have been made clear. It is another unfortunate instance of Commonwealth! legislation being allowed to drift in such a way as to increase the irritation between the States and the Commonwealth. I should like to point out, in conclusion, a danger that has arisen under the Judiciary Act, and that the Federal Government, whoever may be in power, will have to address themselves to. It is rather unfortunate that it has arisen, and the difficulty is increasing. It is that the State Full Courts are being gradually deprived of their powers as Courts of Appeal. According to the decision in the case of Parkin v. James, a litigant can appeal direct from the decision of a single Judge to the High Court, passing over the Full Court of the State as a Court of Appeal. The necessary consequence of that will be that litigants, on account of the respect which they are gradually attaching to> the High Court and its powers, will pass; by the State Courts in increasing numbers.’ “Under the former procedure, before the Commonwealth Act was passed, a litigant, before he could go to the Privy Council, had to exhaust his right of appeal in the State. He had all the time to go to the Full Court of his State. The usual rule with regard to appeals was “ Exhaust all your remedies in the inferior Courts before you go to the superior Court.” The tendency now, however, is for appeals to pass right by the State Full Courts, and, as litigation increases, as it is bound to do, it will be found that the High Court may be broken down with the pressure of its work, or we” shall have to appoint more Judges to it. I have said so much in support of the dignity and power of the High Court that what I am saying now will probably not be misconstrued. It is somewhat unfortunate that, under our Judiciary Act or under the Constitution, we should encourage that tendency, and I shall be very pleased if the Government, or some of our great constitutional lawyers, can devise a means by which the High Court may have the assistance of the State Courts in determining these great questions. Of course, if the State Courts, on being given this jurisdiction, are going to claim for themselves an original and exclusive jurisdiction, then constitutional questions, as well as other questions, may not reach the High Court. There is what may be called a judicial jealousy - a jealousy which all Courts naturally have of any attempts to limit their jurisdiction, and a desire to enlarge it. But it is only fair to say that, as this procedure grows, the State Full Courts will in time be practically denuded of all their appellate business. I hope that, in the consideration of this question, that aspect of the matter will be borne in mind, and that we shall try to remedy this rather dangerous tendency. I believe it is well that we should address ourselves strongly and clearly to the whole question involved in this measure, in the endeavour to find out exactly the respective positions of the two great Courts of the Empire, while remembering what the object of the creation of our High Court was and what was intended to be effected by section 74 of the Constitution. I have tried to contribute something to the debate in order that public opinion, as well as opinion in this Chamber, might be enlightened, and my sole purpose in doing so was to contribute to the stability of the Commonwealth and its standing amongst the various States.
– In common with all other honorable senators, and irrespective of any views I may entertain as to the difficulty which has arisen, I feel that there can be only one opinion as to the desirability of getting out of the tangle we are in as promptly as we can. To that extent, I feel that I can compliment the Ministry on making an effort m that direction, but, having said so much, I am afraid that I cannot share the very, confident opinion expressed by the previous speaker that this Bill will bring about tha4 result. I am not able to free my mind from a very strong doubt as to the position in which we stand, and as to whether the remedy now proposed is the correct one. Senator St. Ledger referred to portion of the history of section 74 of the Constitution. I also want to deal with’ that as briefly as I can, for the purpose of showing that the view expressed by the honorable senator was not entertained as generally as he appears to think it was. Whilst, by your ruling, sir, we are entitled to discuss together the two Bills now before the Chamber - a ruling which honorable senators, I am sure, appreciate - I still think it is necessary for usto recognise that the two questions are separate and distinct. It is an absolutely minor and comparatively unimportant matter whether a certain section of the community is or is not liable to taxation, as compared with the much greater question whether the High Court is or is not the final arbiter on constitutional questions. If some of the fears which I entertain are well founded, it is quite possible that the question we are now discussing will not be settled within this Chamber, or by this Parliament. It may be necessary, if my fears are well grounded, before this matter is determined, that the electors themselves should have an opportunity of expressing their opinion. That being so, it is highly desirable that we should not allow the minor question to cloud the other. The public mind has undoubtedly been greatly exercised by the decision under which the Federal civil servants are held to be exempt from taxation. That decision did not commend itself to the public judgment, and, for that reason, any efforts to strengthen the High Court, or to insure to it that position which we assumed that it held, may not find the favour which I hope they will find. As a starting point in the remarks which I propose to make on the constitutional aspect of this matter, let me remind honorable senators that nothing that this Parliament can do can add one jot to the constitutional powers of the Commonwealth, or take one tittle away from those at present enjoyed by the States. I come now to that historic narrative which the previous speaker gave to this Chamber. He reminded the Senate of the struggle which took place over the judiciary clauses of the Constitution, and gave a brief history of the various stages through which clause 74 - the principal clause - passed before it emerged in its present form. I quite indorse the view he expressed, that when the electors of Australia adopted this Constitution, they, or the majority of them, fully believed that the High Court was to be the final arbiter in all constitutional matters. But I desire to direct attention to the fact that there were those whose opinion entitled them to respect who dissented from first to last from that opinion. In order to show that that doubt did exist then - a doubt which
Ave are entitled to respect - let me quote some of the remarks made by Mr. Joseph Chamberlain, in the very speech from which Senator St. Ledger has just quoted. I would first remind honorable senators that, as Senator St. Ledger pointed out, the Imperial Government, after conferring with our delegates, brought in an amendment of clause 74. To that amendment, the Australian delegate*: and the Australian Governments put forward certain objections, and, dealing with these and the amendment, Mr. Chamberlain said -
In the first place, the Colonies, perhaps with the exception of South Australia - and when I speak of the Colonies I am speaking of the Governments of the Colonies - appeared to consider that it would limit the right of appeal from the State Courts more than was done by the original Bill. It appears that there is some difficulty in ascertaining what would have been the exact effect of the original Bill. There is some difference of opinion amongst legal authorities in regard to this matter. Some assert that under the original Bill it would have been open to litigants, even where constitutional questions involving the powers of the States were concerned, at their option either to appeal to the Privy Council or to the High Court. Other authorities, on the contrary, say that in regard to those constitutional questions the appeal would only lie to the High Court, and this would he final. I do not pretend to settle that matter. I only say it is not as clear to me as it might be that the original Bill did allow of such an appeal. But at all events, it is clear to me that the general opinion in Australia at the present time is in favour of such an appeal - is in favour, that is to say, of a possible appeal to the Privy Council in cases which arise in the first instance in the State Courts.
If we are to attach any importance to the intention of those who frame an Act - and Senator St. Ledger has invited the Senate to do so - we can take Mr. Chamberlain’s remarks as showing that, at the very least, there was a very divided idea as to what really was the intention of that clause. I am sure Senator St. Ledger does not require to be told by me, a layman, that the Law Courts will invariably seek to ascertain, in construing an Act, ‘the intention of its framers from the language in which that intention is set out. Another quotation from Mr. Chamberlain’s speech shows strongly the doubt which existed in his, mind as to whether the original Bill did or did not allow an appeal from State Courts. After the amendment had been submitted to the delegates, and after their objections to it had been put forward and considered by the Imperial Government, they arrived at the final arrangement which was ultimately embodied in the Bill as “clause 74. In introducing that clause, Mr. Chamberlain pointed out that there were two objections to the previous proposal, and added -
I am glad to say that we have now again, after communication this time with all the five delegates, arrived at a further proposal which does, at any rate, absolutely meet the two objections to which I have referred.
One of those objections was that the Imperial proposal limited the right of appeal from State Courts, and the right honorable gentleman said, in effect, “ We have met that objection.” What does that mean, except that originally there was a proposal which gave certain rights of appeal from the State Courts, that the Imperial authorities proposed an amendment which would limit that right, and that then Mr. Chamberlain came down, and said, “We meet you. We concede your point, and whatever right was there before we still allow.” In view of that, I do not think it can be said that Mr. Chamberlain, at any rate, was clear and conclusive that no such right of appeal existed. It seems to me that it did. I mention that because of the great emphasis with which Senator St. Ledger asserted that there was a general consensus of opinion that constitutional cases should be decided by the High Court alone. It was pointed out by interjection, during the honorable senator’s speech, that it does not appear that the real point at issue now is whether the High Court is, or is not, the final interpreter of constitutional questions. The position presents itself in this way. Under our Constitution, certain powers have been conferred upon the Commonwealth, and all powers not so transferred still remain with the States. The States Governments and Parliaments, in the exercise of their power, have, in certain cases, passed a law levying an income tax upon their citizens. Some citizens have sought to evade the tax on the ground that they are Federal servants. A case has arisen, and has gone to the Privy Council. It was a State law that was concerned, and the case went from a State Court to the Privy Council purely in conformity with the State Constitution. Now arises the point as to whether or not that case is a constitutional case. I am not going to say how the matter should be settled, but, at any rate, it appears to me that this Bill is not likely to settle it. It is for the Government to say whether it thinks that this Bill will get us over the difficulty. I am rather afraid that it will leave us where we are at present. I see nothing in the Bill to prevent the States Courts still continuing to say that? the salaries of Federal servants are liable to taxation, and I see nothing in it to prevent the States from collecting income tax from those Federal servants. If the persons sought to be taxed dispute the right of the States, there is absolutely nothing in this Bill to prevent the case going to the Privy Council, and the Privy Council still insisting that no constitutional power of the Commonwealth can prevent the States from collecting the tax. Indeed, I do not see that this Bill helps us in the matter in the slightest degree. I should like to say, however, that anything that it is necessary to db - anything ‘t&at can be done, either by Parliament or otherwise^ - to make clear the position of the High Court, and to secure for it the full and ample powers which, in my opinion, are necessary to the proper working of our Constitution, I am prepared to support. The objections that I urge against this Bill are not urged against the object which the Government has in view. I am merely expressing a fear that the object we desire to attain will not be reached by the methods adopted by the Government. But I wish to see the High Court maintain the important position which all those who assisted in the making of the Constitution desired to see it placed in. Let me say also, that I am fully convinced that in order to enable our Constitution to work, the doctrine of implied powers must be accepted. I quite believe that; but I see tremendous difficulties in the way of that doctrine being ac cepted and acted upon by the Privy Council. The position in America and the position here are entirely different, for this reason. When a conflict arose in America, there was no possible court of appeal beyond the Supreme Court. It was a conflict between a State Court and the Supreme Court. Here, however, the Privy Council is involved, and that seems to me to make all the difference. The Supreme Court in America, being the only authority, its decisions cannot be questioned. But the decision of the Privy Council, in the case that has been so much discussed, shows that, at any rate, a conflicting decision may arise in our case. It makes a tremendous difference, to our disadvantage, in the problem we have to solve, that this should be so. And it is one of the strongest reasons that I can think of why our own High Court should be the final interpreter of the Constitution, that the Privy Council is not called upon to consider the doctrine of implication, as the American Courts are. It is not necessary for the Privy Council to consider that doctrine, for this reason. If it is found in practice that any law in England does not carry out what is desired, all that it is necessary to do is to pass another one. In England, they are not dealing with a fixed and rigid Constitution. Every Act of Parliament that is passed is in a sense an addition to the Constitution. But the position was ,so different in America that it was found early: in the history of the United States that it was necessary to the free working of the constitutional machine that the doctrine of implied powers should be adopted. I can hardly think that the English legal authorities on the Privy Council would be likely to give such free play to that doctrine as I conceive is necessary if our Constitution is to work smoothly ; and that I say is one of the strongest reasons why every power should be exhausted, and every step taken to see that there is no possible doubt or hesitancy as to the position which our High- Court should occupy. Dealing with the Income Tax Bill, I labour under some measure of doubt as to whether it is likely to be effective. I share the opinion apparently held by the majority of, if not byl all, members of the Senate, that there ought to be no privileged class in Australia; and certainly it was not the intention of the framers of the Constitution to create such a special class. But I am forced to ask myself whether this Bill is going to accomplish the object for which it has been launched. It professes to provide that certain acts on the part of a State shall not be deemed an interference with Federal functions, although the High Court has affirmed that they are an interference. It seems to me that it will still be possible, even if this Bill becomes law, for a Federal public servant to refuse to pay income tax, and appeal to the High Court on the ground that this measure is ultra vires. If the Constitution, as approved by the people, and as passed by the Imperial Parliament, in the form of an Imperial Act, provides that a State has no right to tax a Federal public servant, and if it is clear that such a Federal public servant is exempt from State taxation, I doubt very much whether any Act which we can pass can alter that position. If, as the High Court has declared, certain people are exempt from special kinds of taxation, it appears to me to be clear that the States have no power to tax them; and if that be so, can we by any Act of the Federal Parliament confer that power upon the States? That is the doubt in my mind. It must be left for other people to determine whether that power exists or not, but I have not the slightest doubt that if this Bill is passed some public servant will appeal to the High Court on the ground that it is unconstitutional. A somewhat similar difficulty arises in regard to the provisions of the Bill, by which it is proposed to tax the allowances of members of the Federal Parliament. The Privy Council has affirmed that all salaries are liable to be taxed. The High Court has declared that the allowances of members of the Federal Parliament are not taxable. Now in this Bill we propose to declare with regard to parliamentary allowances that portions of them are liable to be taxed. Even if the Bill becomes law, I see nothing to prevent a State, having levied in respect of that portion of an allowance which this Bill says is taxable, proceeding to recover In respect of the other portions and going to the Privy Council for a judgment in support of its act. I think I am correctly interpreting the intentions of the draftsman of trie Bill when I say that it is proposed under its provisions that a State shall only levy taxation upon that portion of the allowance df a member of the Federal Parliament assumed to be earned during the time when he resides in his own State. Say, for instance, that I, as a New South Wales representative, reside during six months of the year in New South Wales. My own
State can, under this Bill, levy income tax on one-half of my parliamentary allowance. But, I say again, there is nothing in the Bill to prevent a State from levying on the whole of the allowance; and if I turn to this Bill for protection, the State can immediately take the case to the Privy Council and get a verdict. Senator Best has affirmed that if a case were taken before a State Court, and a constitutional question arose during the ‘hearing, the case would be transferred to the High Court. That is an easy way of disposing of the matter. I should be satisfied if I thought that that procedure would be adopted. But does Senator Best suppose, for a moment that after this Bill has passed - I am speaking of the Judiciary Bill now, and assuming that the Bill with regard to salaries will not be passed - a State Court would, in view of what the Privy Council has decided, remit the case to the High Court? There is nothing which requires a State court to transfer the case to the High Court.
– If it comes within section 74 of the Constitution there is.
– But suppose the State tribunal chooses to say, “We do not think that this case does come within section 74, and we propose to send it to the Privy Council to find out whether it does or not”
– The State court would do exactly what Mr. Justice Hodges did - give leave to appeal to the Privy Council.
– In saying this, I am not speaking as a lawyer, but am pointing out the possible difficulties in the way. It does not require a lawyer to see the difficulty, though it may require a lawyer to find a way out of it. It appears to me to be easy to conceive that we may be launched in what may terminate in something approaching a crisis, in the sense that if we were forced to seek an amendment of the Constitution to make its terms more explicit, and to obtain a clearer meaning from the people as to what is intended we might regret having to do so at this stage. Because I do not shut my eyes to the fact that there is in certain influential though probably small circles of State politicians a feeling not too friendly to the Commonwealth ; and I venture to say that that State feeling would be thrown into antagonism to the objects we desire to bring about. It is, so far as I am concerned - and I believe the majority of the honorable senators are with me - most desirable to make it clear that so far as Australian questions are concerned, the Australians who framed the Constitution are the people who must interpret it. The words regarding the powers of the High Court were, in my opinion, intended to make it clear that so far as our own affairs are concerned, so far as the destiny of Australia is concerned, and so far as the interpretation of this Australian Constitution is concerned, that interpretation has to take place in Australia and be given by Australians alone. For my own part, I shall support any action which will make that clear. I am sure the Vice-President of the Executive Council has given very careful consideration to the matter, but I ask him, if he has any reason to doubt the efficacy of the measure now submitted, to reconsider the matter, rather than run the possible risk of making confusion worse confounded, and to see if any fault can be found with the present proposal, and, if so, to take means to remedy it.
Debate (on motion by Senator Sir Josiah Symon) adjourned.
page 585
– What seems to be a general expression of the opinion of honorable senators has been conveyed to me to the effect that it is desirable that further time should be given for the consideration of the Judiciary Bill, and that in the circumstances it would be well for the Senate at this stage to adjourn. I therefore move -
That the Senate do now adjourn.
– I object to the adjournment of the Senate at this early hour if there is business to be proceeded with, and if there is none I shall want to know whose fault that is. During the lone recess the Government had plenty of time in which to prepare their measures, and if we now have no business to go on with, they must be held responsible. As a matter of fact, there is business on the paper which could be proceeded with. We might resume the debate upon the Commonwealth Salaries Bill.
– That may be considered almost as a part of the Bill with which -we have just been dealing, and it is the most debatable measure of the two.
– Then why not debate it. I have always objected to these adjournments while there was business for the Senate to do. Honorable senators are aware that towards the close of every session business on the paper is abandoned by the Government on the plea that there is not time to deal with it, and measures are passed hurriedly on the same plea. Yet we fritter away our time at the commencement of the session. I know of only one reason why the debate on the Judiciary Bill should be adjourned, and I do not object to its adjournment on that ground, but that is no reason why we should refuse to proceed with other business. Important legislation has been awaiting our attention since the establishment of Federation, and it is shelved continually on the plea that we have no time to deal with it. If I get any support, I shall call for a division on the motion for the adjournment.
– Is the Vice-President of the Executive Council prepared to go on with the Bills of Exchange Bill ?
– That will be the first business to-morrow.
Senator Sir JOSIAH SYMON (South Australia) [5.50]. - I hope that Senator Givens will not carry out his intention to call for a division.
– I shall, undoubtedly.
– I am sure the honorable senator possesses a judicial mind, and will not give a final an.d definite pronouncement of that kind before he hears the reasons I propose to submit to him. It is usual, even in less august tribunals than the Senate, to listen to reasons before coming to a decision.
– I was informed of the reason for the adjournment of the debate on the Judiciary Bill before I spoke.
– The honorable senator and I run, so to speak, in double harness in our desire for the despatch of public business, but I admit that it is customary to permit the Government to retain some little control of the business put on the paper in the early stages of the session. With commendable energy, they have submitted two important Bills. I do not agree that there is very much connexion between the Judiciary Bill and the Commonwealth Salaries Bill, but though I have not read the speech of the Vice-President of the Executive Council, I know, from what I have heard to-day, and from a perusal of the
Bills, that they are of the very highest consequence. I should like very much to do what I can to assist honorable senators in arriving at a wise decision upon them. Although I say it myself, probably no one knows more of the genesis and evolution of section 74 of the Constitution than I do or did. It is possible, though I do not admit it, that my memory, like that of other persons, may be becoming enfeebled, and I should be glad of an opportunity to refresh it by a perusal of the various papers dealing with the subject of these Bills. From what I have heard, the Judiciary Bill is unnecessary, or it is an infringement of the Constitution, or it will, if passed, have very far-reaching and vital consequences. The Commonwealth Salaries Bill, though perhaps it does not involve as high a constitutional question, is likely to be a much more difficult question to deal with, because we have to consider whether the Federal Parliament in this indirect way has the power to tax a particular section or class in the community by imposing upon the members of it a liability to taxation to which the High Court has declared they are not liable. Lawyers are said to have no imagination, but I can see that that opens up an enormous field for discussion. My intelligence is not equal to the task of dealing with these Bills at the moment, and I jim not quite sure that I shall be prepared to deal with them to-morrow. I shall do the best I can, and if I am unable to deal with them as I should like to-morrow, I may ask the Government and- honorable senators to assist me in securing a further adjournment, in order that I may not address them on so important a matter in an ad captandum way. There is nothing of party about these measures; or, at least, I hope not, because we are all interested in them. No one strove more, though, perhaps, unsuccessfully, than I did some time &so to give the highest possible power to the High Court of Australia in determining constitutional questions. For my efforts in that direction I incurred a good deal of obloquy at the time. I do not mention that with a view to evoke the sympathy of honorable senators, but in order to show that no one can accuse me of seeking to diminish in any way the power of the High Court in that respect.’ I led a party that desired to take away absolutely from the Privy Council any control whatever in this matter. I am, therefore, sure that honorable senators will be interested to hear what
I have to say on the subject, and I should like to make it worthy of their attention. It is because of the importance of the Bills to which I have referred that I appeal to Senator Givens on this occasion to leave the conduct of the business to the Government. There is another Bill on the paper dealing with exchange and promissory notes, and Senator Best proposes to take that as the first business to-morrow. That is a measure which should be dealt with as speedily as possible.
– Why adjourn, then?
– Because the Government are not ready to go on.
– The Government were prepared to go on with the Judiciary Bill and the Commonwealth Salaries Bill to-day.
– I am not reproaching Senator Best in any way. I am merely saying that it is not fair to the Government to adjourn the consideration of business which has been set down, and expect them to take up other business. In the interests of the Senate and of the Constitution, I submit that we should have the most careful discussion of the Judiciary Bill and the Commonwealth Salaries Bill.
– There is a very strong feeling amongst members of the Senate that the leader of the Opposition should be given an opportunity to be prepared when he speaks upon the Judiciary Bill. The Government were in a position to go on with the consideration of the Judiciary Bill and the Commonwealth Salaries Bill to-day. They are represented in the Senate by two Ministers only.
– That is not our fault.
– As they are not prepared to take up other business, the proposal to adjourn is not unreasonable. It is rather early in the session to commence the taking of hostile divisions. I, therefore, appeal to Senator Givens to withdraw his objection to the proposed adjournment.
– I appeal to Senator Givens not to be so eager so early in the session. Every, word that Senator Symon has said is absolutely correct. Bills dealing with the
Constitution deserve the most serious consideration. They should not be rushed either at the beginning or at the end of a session. I am sure that every member of the Senate will be glad to hear a full and free expression of the opinion of Senator Symon, who knows so much about the subject.
– Did we not agree to the adjournment of the debate on the Judiciary Bill for that purpose?
– If I were a navvy, and had only one wheelbarrow, and a leg of that was broken, I should have to stop work.
– Are the Government in that fix?
– No; but the honorable senators representing the Government came here with the intention of taking up to-day in the consideration of the Judiciary Bill and the Commonwealth Salaries Bill, and when that has been interfered with it is unfair to force them into a position in which we should not like to be ourselves. The Government should not be held responsible for the adjournment when we are not prepared to go on with the business which they have put on the paper. They have treated the Senate and the leader of the Opposition fairly, and we should treat them in the same manner. I hope honorable senators will agree to the adjournment.
– It is exceedingly unfortunate that, so early in a new session, the Government should resort to its old game of adjourn ing every now and again from want of business to proceed with. We all know what the history of these adjournments has been ever since the creation of this Parliament. They have been exceedingly inconvenient to honorable senators like myself who,, when the Senate adjourns for a week or a fortnight, or for two or three days, have to live here, and endure a rigorous climate.
– Would it shorten tEe session if we did not adjourn ?
– If it would not shorten the session, we should at least be able to do our business much more effectively. It appears to me as if there was a dearth of legal talent in the Chamber at present. I remember the time when we had no fewer than thirteen legal luminaries all eager to shine, and each one getting up and flatly contradicting the previous speaker. I think that the legal fraternity has deserted the Senate, and that on that account the wheels of business do not move so easily as they did before. I ask honorable senators what is likely to be gained by the (proposed adjournment ? No doubt we shall have to-morrow a speech by the leader of the Opposition, and no one will be more glad than myself to listen to it, because we all regard him as a great constitutional authority. It has been discovered that there is a leak in the Constitution, and the political tinsmiths are or> the hunt for some method of stopping it. Senator Best, who introduced the Bill, confessed, I think, that he was not sure whether his particular method of repairing the leakage would be effective. This afternoon we have had two speeches, one from a lawyer; and the other from a semilegal gentleman, but we are left exactly where we were before. Both speakers agreed with the proposals in the Bill, but are very doubtful whether it will accomplish the desired end. I assume that tomorrow the leader of the Opposition will tell us exactly the same, and we shall be in the end just where we are now. We ought to go on with the Commonwealth Salaries Bill, which deals with the question of income tax. I might desire to say a few words on the measure. I do not feel that I am a constitutional authority, but when a man attacks my pocket I want to know the reason why. I am sure that we shall all be glad to hear Senator Symon to-morrow, but meanwhile let us tackle the other measure on the notice-paper. What I object to is the Senate adjourning at this early hour on its first sitting day in the week without having done any business.
– In past sessions we have adjourned for two or three weeks at a time.
– If the Senate will adjourn for a month I shall be very glad, because I could then leave Melbourne, and go away to the balmy air of Queensland, where the climate is fit for a white man to live in. I appeal to Senator Best to go on with the next business.
Question - That the Senate do now adjourn - put. The Senate divided.
AYES: 19
NOES: 7
Majority … … 12
AYES
NOES
Question so resolved in the affirmative.
Senate adjourned at 6.10 p.m.
Cite as: Australia, Senate, Debates, 17 July 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19070717_senate_3_36/>.