3rd Parliament · 2nd Session
The President took the chair at 3 p.m., and read prayers.
page 828
– I desire to ask the Vice-President of the Executive Council, without notice, whether, in accordance with the promise given to me on 12th July, the Government has taken any action in regard to the operations of the American Boot Machinery Trust, who are alleged to be carrying on business in contravention of section 87 of the Patents Act ?
– In accordance with my promise the matter was brought under the attention of the Minister of Trade and Customs, who, I believe, is taking action. If my honorable friend will give notice of the question, I shall be able to give him a definite reply to-morrow.
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– I desire to ask the Vice-President of the Executive Council, without notice, a question bearing on the following notification in the South Australian Government Cassette -
NORTHERN TERRITORY.
LAND SALE AT PALMERSTON.
MONDAY, AUGUST 12th, 1907.
TOWN LANDS PLAYFORD.
Crown Lands Office,
Palmerston, 3rd July, 1907.
The following allotments of Crown lands will be offered for sale by public auction at the Land Office, Palmerston, on Monday, the 12th day of August, 1907, at11 a.m., at the upset price of £20 per acre, under the provision of the Northern Territory Crown Lands Act 1890, and the regulations thereunder, dated February 24th, 1891. Plans of the allotments can be seen and obtained at this office.
CHARLES E. HERBERT,
Government Resident.
Allotments abovereferred to. 2, 4, 14, 16, 20, 22, 45, 47, 86, 87, 88, 89, 92, 93, 94, 95, 98, 99,100,101,104,105 and 107.
THOMAS. J. WORGAN,
Chief Clerk and Draughtsman.
I desire to ask the Minister, whether he, acting for the Government, will respectfully request the Government of South
Australia to withhold the sale of the advertised lands until the agreement provisionally entered into between that Government and the Commonwealth Government has been finally dealt with by the respective Parliaments?
– I shall bring the matter under the notice of the Cabinet.
– Arising out of the answer, I desire to ask the Minister when the next meeting of the Cabinet is likely to be held, and whether, when it is held, he, as leader of the Government here, will use his best efforts to have the matter brought under the notice of the Government of South Australia, with a request that the lands be withheld from sale?
– I am disposed to think that a Cabinet meeting will be held either on Wednesday or Thursday of next week, but if by any chance a meeting should not take place on either of those days, I shall bring the matter under the notice of the Acting Prime Minister, together with the representation made by my honorable friend.
page 828
– I desire to ask the Vice-President of the Executive Council, without notice, whether any arrangements are being made to enable the members of the Senate, especially new members, to visit the proposed Federal Capital Site at Canberra?
– Yesterday I received from the Acting Prime Minister, a communication which had been forwarded to him by, I think, twelve new members of the House of Representatives requesting that arrangements be made to enable them at the end’ of this week to visit the proposed Federal Capital Sites at Canberra and Dalgety. At the present time, arrangements are in course of progress, and inquiries are being made through the Government of New South Wales, in order that provision may be made for the travelling of those honorable members who desire to visit those localities. The same facilities will be afforded to any members ofthe Senate , who desire to visit the two sites at that time. I would earnestly ask those who desire to visit the sites, and can do so at the end of this week to supply their names as early as possible to the Government, because it is desirable that the exact number who intend to go should be made known as soon as possible in order that the necessary arrangements may be made. If the contemplated arrangements in progress are brought to a head, it is proposed that the party should leave Melbourne on Friday next by the ordinary express train for Svdney, and be brought back to Melbourne by the ordinary express train from Sydney reaching here on Tuesday next. If any honorable senators desire to be members of that party, I shall be very glad to have an intimation to that effect from them at the earliest possible moment.
– Arising out of the question, I desire to ask the Minister whether, in view of the fact that a number of honorable senators left Melbourne on a trip at the end of last week, and that most of them desire to visit their homes at the end of this week, it will be possible to postpone the visit to the Federal Capital Sites until the following week, or, if not, whether those who may be unable to go at the end of this week will have a later opportunity of inspecting the sites?
– Nothing definite has yet been arranged ; but if there is a number of honorable senators who desire to visit the sites, perhaps they may be able to meet the Government by arranging with the members of another .place to have the visit made on a date which would be convenient to them and the Government. We desire to place no obstacle in the way of any honorable senator who desires to inspect the sites, in order that he may be able to give a vote on any question which may arise concerning the location of the Federal Capital.
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– I believe that some representation has been made, but it is not within my personal knowledge, and therefore I would suggest to my honorable friend that he should give notice of the question.
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– I desire to ask the Vice-President of the Executive Council, without notice, whether he can state, either now or when the Judiciary Bill is brought on, if the Government intend in that or any other Bill to take any step to prevent appeals from a single Justice of a State Supreme Court to the High Court?
– It is certainly not our present intention to include a proposal of that kind in the Judiciary Bill. The Government have not considered the subjectmatter of my honorable friend’s question, and I would suggest that he should give notice of it, so that I may have an opportunity to get a reply.
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MINISTERS laid upon the table the following papers : -
Notification of the acquisition of land at Singleton, New South Wales, for a rifle range.
Defence Acts Regulations, Military Forces. Amendment of Regulations 516 and 526, Statutory Rules 1907, No. 78.
Transfers under the Audit Acts in connexion with accounts of the financial year 1906-7. Approved 19th July, 1907.
Information as to the character of the country adjacent to the proposed route for a railway from Kalgoorlie to Port Augusta.
Judgment of the Lords of the Judicial Committee of the Privy Council on the appeal of Webb v. Outtrim.
– I propose to lay upon the table of the Library, as I intimated a few days ago, copies of the agreement for the carriage of mails between Launceston and Melbourne, and the agreement for the carriage of mails between Burnie and Melbourne.
– Do I understand that the papers are not to be printed?
– The papers will be laid on the table of the Library.
– Then they are not the property of the Senate?
– No.
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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 : -
page 830
asked the VicePresident of the Executive Council, upon notice -
– The answer to the honorable senator’s questions is as follows : - 1 and 2.The Government have no official information on the subject, but have inquired from the Government of South Australia.
page 830
asked the Minister representing the Treasurer, upon notice -
Government Printing Office engaged on Federal work are employed over eight hours at any time without receiving overtime rates for such work ?
– The answer to the honorable senator’s questions is as follows : - 1 and 2. The hours of the employes on the day staff are from 8 a.m. to 5.30 p.m. on Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays, and on Saturdays from8 a.m. to 1 p.m., aggregating 47½ hours per week. Any time worked after 5.30 p.m. or 1 p.m. is paid for at overtime rates.
A week’s work for the linotype operators constitutes 42 hours, whether worked by day or night. This is also the practice in private firms. Those engaged on night duty work more than eight hours per night, but any time over 42 hours is paid for at overtime rates. As compensation for night duty they are paid 10s. per week extra.
Compositors and others on night duty also work more than eight hours each night, but these also receive compensating advantage, as their week’s work consists of 42 hours instead of 47½ hours as worked by the day . staff. Any time, above 42 hours is paid for at overtime rates. These employes do not commence their work till 5.30 p.m. on Tuesday, and a large number of them prefer longer than eight hours to avoid coming in on Monday.
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asked the VicePresident of the Executive Council, upon notice - .
In reference to the reply given by him to the questions asked on Thursday,18th July, concerning the method of dealing with tobacco waste under the Excise Tariff Act and Regulations - Will the Minister inform the Senate -
– The answers to the honorable senator’s questions are as follow : -
page 830
asked the Minister representing the Minister of External Affairs, upon notice -
– The answers to the honorable senator’s questions are as. follow : -
page 830
Bill read a third time.
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Debate resumed from 17th July(vide. page 585) on motion by Senator Best -
That the Bill be now read a second time.
Senator Sir JOSIAH SYMON (South Australia) [3.17]. - I think it would have been better, if these two Bills - the Judiciary Bill and the one relating to income
*ax on Commonwealth salaries and allowances - had been dealt with in the ordinary way, separately. I believe that honorable senators will agree with me in that respect when we come to consider them in detail. But as it is the wish of my honorable friend, the Vice-President of the Executive Council, to deal with both’ at the same time, and in the same debate, I defer to that wish, and am glad on this occasion to follow his example. At the same time, I may as well mention to honorable senators why it appears to me that it would have been more convenient to deal with the measures :separately. The two Bills are not, it ap- pears to me, correlated in any way whatever. They are not the complement the one of the other. Each is independent of the other. One of these Bills might be enacted or rejected without affecting the other in the slightest degree.
Thus it will be seen that when the power of the Parliament to deal with legislation of this kind is challenged -
That is ‘ to say, my honorable friend considered, and the Government of which he is a member contemplated, and, I think, were wise in contemplating, that this kind of legislation, which amounts to putting patches upon the Constitution, might be challenged - would lead to litigation. But what did he rely upon in reference to that anticipated challenge? This -
I am referring, of course, to the Commonwealth Salaries Bill. My first answer is that we have the authority of the High Court for enacting it. That is good enough for me, and I think it ought to be good enough for Parliament.
Now, I beg leave to offer the very strongest objection to any such position as that being submitted to any Parliament, or being offered as a justification or excuse for the introduction of legislation into this Parliament which may ‘be the subject of question and litigative action hereafter. It ought not to be good enough for the Government or for Parliament. It is an unusual thing, as, I think, every honorable senator, and certainly every lawyer, will agree, for any tribunal to suggest or advise particular legislation as an escape from the consequences of its own judgment. The duty of a Court is to expound and apply the law as it is. It has nothing to do with the consequences, whatever they may be. Its duty is solely to expound and apply the law. It is not its duty to recommend legislation to Parliament, to anticipate its own decisions in respect of that legislation, or to do that which may in time - I ask the serious attention of honorable senators to this - become a precedent, and may develop into a direction or a kind of dictation which Parliament would undoubtedly resent. But the great mischief is this : It is obvious that the statement of the Chief Justice is being relied upon by the Executive Government to diminish their own responsibility ; and not merely to diminish their own responsiblity, but it is being used as a prophetic judgment of the Court before whom that challenge of this legislation must, at least may, come to be heard. Now, I say that that sort of thing, if permitted, would be disastrous to our judicial system. I regret the suggestion for another reason also. My honorable friend, Senator Best, in another connexion used the expression obiter dictum. This is worse than any obiter dictum. It is a pronouncement which is not binding even upon the learned Judge who used the words, and took upon himself to give the advice. When even he himself has this challenge brought under the notice of the Court it will be for him, irrespective of what he has previously said, to consider the arguments that are addressed to him, and to come to a conclusion upon those arguments, and- upon the view submitted as to whether or not this measure infringes the Constitution - whether it is valid or whether it is not. Can he do that now with an open mind ? But we have another learned Judge saying most distinctly that as to one of these points he does not agree, and as to another point he reserves his opinion. What a position members of this Parliament are asked to put themselves in ! They are invited to disregard the constitutional objections which may arise in their own minds, and solve the doubt as to the authority of Parliament to legislate in this particular way, on the ground, as my honorable friend put it, that a Judge without argument and gratuitously, has already offered an opinion as to the validity of this prospective legislation. I deeply regret that suggestion. I shall not say that we ought to resent it, because I do not wish to use any words of that character, but it is a humiliating position for this Parliament to be placed in if the question arises for our solution, and we are to say that we can pass this proposed law, whatever doubts we may ourselves entertain, because a Judge or Judges, without argument, have expressed the opinion that we have authority whilst other Judges take the contrary view. On this, I would add that if there is one thing plainer than another in connexion with the Supreme Court of the United States, it is that that exalted tribunal will not give any abstract opinion, that it declines to give any prophetic opinion, and that it will not decide any question, constitutional or otherwise, unless it comes before it in a concrete shape, in the form of a lawsuit between parties who happen to be affected. I say that is a fine rule. Honorable senators and I are concerned in this matter. We may or may not ‘feel that as we are immune from State taxation in respect of our allowances, they ought to be, by some such legislation as is now proposed, made subject to that taxation, and if so, are1 we to be prevented or intimidated from challenging this measure and claiming the right to argue the whole question before the Privy Council or the Judges of the High Court who may have to determine it, by reason of an anticipatory expression of opinion that was not called for in any way whatever by the circumstances of the case? The two points to which I have referred are the only points of similarity between the; two Bills now before the Senate - that they were the outcome, I shall not say probably, but without any doubt, of the same set of circumstances, although they relate to totally different matters, and that the doubts of Parliament as to our competence to pass valid Acts taking away this immunity from persons declared to be free of this particular taxation under the Constitution, are to be removed by an anticipatory judgment, without hearing, parties, without argument, and without that consideration which is essential to the adequate administration of justice, volunteered by one or more Judges who may hereafter have this very question before them for argument and decision. I do not think that many of the questions which have been alluded to, as to the powers of appeal and so on, arise for our consideration now. Senator Best discussed them at great length, and dealt with a multitude of citations relative to the! powers of appeal and so on, but with these, except in so far as they have a bearing, and no very important bearing, on matters involved in these two. Bills, I do not think it is necessary to deal. But I wish to make it clear that I do not at all assent to the proposition my honorable friend has put forward in his interesting address. The honorable and learned senator referred tq the question of the conflict of law. That there is a conflict no one can doubt, but I do not think it arises quite in the way which Senator Best supposes. The awkward, I will not say intolerable, position, is in my judgment not due to the Privy Council, but rather to the High Court. To whoever it may be due, I must say that I do not agree with the following statement made by Senator Best-
This unfortunate and indeed ludicrous position is intolerable; and Parliament has the responsibility of relieving the community with the least possible delay.
I venture to think that Parliament has not that responsibility at all. If Parliament could do it, that would be another matter, but we have the authority of the Chief Justice of the High Court himself, for saying that the powers of appeal to the High Court do not arise from or depend upon the Judiciary Act at all, which is the work of Parliament, but depend on and arise from the Constitution, with which Parliament cannot deal by means of an ordinary Act. My honorable and learned friend went on to say -
The question is whether Parliament is content that we should have two final Courts of Appeal of co-ordinate jurisdiction, for the purpose of interpreting the Constitution and questions arising under it.
That is not the question. I venture to say that there is no such conflict at all. I have seen no evidence in anything that has taken place of a conflict of that character. There is only one Court to interpret the Constitution when a question of that find comes before that Court. The one difficulty is as to which Court is the final judge as to what are questions between the Commonwealth and any State or States inter se. Senator Best said -
We find that what we regarded as the High Court, whose duty it was to decide on the questions I have indicated is not the sole and final arbiter ; on the contrary, the Privy Council has asserted that it has certain powers, with the restilt that we have now . two final Courts of co-ordinate jurisdiction to deal with the same subjects.
Now the Privy Council has not asserted anything of the kind. It has decided a matter brought before it in the ordinary way of litigation, and which was considered by the Judge who sent it there, and by the Privy Council, to be a matter within its competence, and on which it could decide - a matter which was not an appeal from the judgment of the High Court under section 74 of the Constitution at all. The Privy Council dealt with that matter, believing and declaring that it was - as I think it was, though that does not amount to anything except that we are all entitled to express our own opinion’ - a matter as entirely within the competence of the Privy Council as any other question that might come before it. The Privy Council, without seeking to diminish by one iota the high status and functions of the High Court of Austria, decided that question, and if I may say so, decided it, in consonance, at any rate with the universal feeling of Australia that justice was done.
I shall sum up by saying that the decision in the case of Webb v. Outtrim has destroyed the status of the High Court as an integral part of our Constitution, -
I deny it. unsettled the respective powers of the Commonwealth and States and destroyed the finality of the High Court.
I say it has done nothing of the kind, and if it did I say that the whole of that is irrelevant. It might influence or inflame our minds to deal with it as a relevant case, but even if that be so, neither of the Bills before us will alter the position. In fact the Bill with regard to salaries, as I hope to show in a word or two, is an affirmation of the judgment of the Privy Council. It declares, in effect, that the judgment of, the Privy Council is just, that there should be no exemption and no immunity. I do not say at present whether there ought or ought not to be, but is not that what the Bill says? Is not” that what we in this Parliament are called upon to do? It is not the judgment of the Privy Council that affects the status of the High Court. It is this Bill. It is this Bill which -says “You, the High Court, decline to follow the opinion of the’ Privy Council, which is consonant with what the community as a whole believe to-‘ be just. Parliament says that it should* be followed.” That is the effect of this’ Salaries Bill, and, therefore, we may well ask what is it that, to use again the lan-; guage of my honorable friend the Vice-‘ President of the Executive Council, “ hasdestroyed the status of the High Court as-‘ an integral part of our Constitution, unsettled the respective powers of the Commonwealth and the States, and destroyed! the finality of the High Court” ? According to my honorable friend, it is the judgment which we now, by this Bill, are asked to affirm. It is the most novel situation; I have ever heard of. If the Governmenthad asked us to pass a Bill to confirm* the judgment of the High Court, if sucha thing had been possible, that in all probability would have been consistent.
Privy Council with regard to the doctrine of implied prohibitions which, as Mr. Justice Isaacs said when at the Bar in the earlier cases of Deakin and Lyne was invented - that is his expression - by the Supreme Court of the United States, because of the position I have pointed out, and to extend that controlling influence which did not otherwise exist under the American system, but which, of course, exists under our system. Let me anticipate for a moment another matter, which has been referred to more than once, and which, has been widely canvassed, and that is, the so-called interference by a State with the conduct of the Commonwealth Government. Such a thing could not be tolerated. We have first - it is like the adage to first catch the hare - to show that there is some interference. For example, if a Bill were passed by a State Parliament professing to take control of the fortifications within the State, of course it would not be assented to for a moment. With us it is a case of one King. That particular part of the legislative power of the whole of the British Empire is common to Commonwealth and to State. We must be sensible beings when Ave are dealing Avith these things, and we cannot assume for a moment that that particular part of the legislative power of the Commonwealth would assent to an interference Avith the power of a State Go- vernment
No appeal shall be allowed to the Queen in Council from any Court of any State, or from the High Court, or any other Federal Court.
It will be seen that appeal to the Privy Council was to be absolutely put an end to from the Courts of the States as well as from the High Court. There was to be no appeal to the Privy Council at all -
Except that the Queen may in any matter in which the public interests of the Commonwealth or of any State or of any other part of Her Majesty’s Dominions are concerned - that is, Imperial interests which we were all agreed should be made an exception - grant leave to appeal to the Queen in Council from the High Court.
Nothing could have been clearer, I venture to think, than that ; and that stamps what the sentiment of the Convention was. It meant literally that in all domestic concerns, if I may use that expression - in everything concerning the interests of the Australian Commonwealth, about to be created- there should be no appeal, but that we would settle such matters for good or ill for ourselves. The clause in that form was again passed at the beginning of the session in Melbourne.
Saving any right that Her Majesty may be pleased to exercise by virtue of her royal prerogative.
As indicating the grounds upon which Sir Joseph Abbott moved that amendment, and as- evidencing the grounds upon which we rested our claim as Australians to dispense final justice, he took exception to my having said -
We are creating a nation which is to be selfcontained, self-sufficing in every possible respect.
Those were my words, and Sir Joseph Abbott said, “ I deny that,” and so on. That amendment, of course, would have permitted appeals in every case. It would have been the exact opposite of what we intended. The amendment was debated, and ultimately was carried by a small majority - of. I think, four. At a later stage I moved a further amendment to insert the words -
Not involving the interpretation of the Constitution of the Commonwealth or of a State.
Now, honorable senators will see how much trouble would have been saved if those words had been adopted. What we had in mind was that we were formulating a written Constitution; and there could be no doubt whatever that what was being excluded from the power of appeal was the interpretation of the written instrument, not implied prohibitions, not fanciful things outside the Constitution, - and which depend upon the view that each Judge or each Court may take on any particular occasion.
Notwithstanding anything in the last section, an appeal to the Queen in Council from a Court of a State, or from the High Court, or from any other Federal Court, shall not be allowed in any matter in which the interpretation of this Constitution or of the Constitution of a State is involved, unless in any such matter the public interests of any part of Her Majesty’s Dominions other than the Commonwealth or a State are involved.
That swept away the right of appeal from a Court of a State and from the High Court, in that particular class of matters. But then the clause passed on to the Drafting Committee, of which two of the present Justices of the High Court were members. Strangely enough, the Drafting Committee altered it so that it no longer extended to appeals from the Supreme Courts of the States1. It left appeals direct from the States Courts’ to the Privy Council just as before. I think that was an accident. I will not say of the distinguished men who were members of that Committee that what they did was careless, or anything of that kind, but it was unfortunate. These matters only came before the Convention a day or two - if so much - before the Convention broke up. Then my honorable and learned friend, Mr. Glynn, rose to point out the grave alteration with a view to having it rectified. But at that stage, when a large number of the members of the Convention had departed, for their homes, to have re-opened the question on these socalled drafting amendments would probably have imperilled the work which the Convention had done. It might have imperilled the Bill altogether. An alteration was deprecated ; it was not made ; and so the clause appeared in the Bill as submitted to the referendum in this shape. It was the celebrated clause 74 -
No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty’s Dominions other than the Commonwealth or a State are involved.
That left out the express words taking the right of appeal away in respect of the decisions of the States Courts. At the referendum it was adopted in that shape. If it had stood like that I venture to think we should never have had the trouble that has recently arisen. I cannot think that there would have been any difficulty in determining that the interpretation of the Constitution meant anything but-the interpretation of the written instrument. The section as it now stands is, I think, very different. It is-
No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.
Then there is the exception that -
This Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave to appeal from the High Court to Her Majesty in Council.
Honorable senators are aware that when that clause, as I have read it, and as it was carried at the referendum by the people of Australia, went to England, and the Bill containing that .provision went before the Imperial Executive and the Imperial Parliament, art attack was made upon* it. That attack was in order that it should be, if not struck out, at least so altered that an unrestricted power of appeal should be preserved. An alteration was made, and no one gave greater ‘ assistance to the attack that was made on that provision as assented to by the people of Australia, than the present Chief Justice of the High Court of
Australia himself. It has to be remembered that, no doubt rightly, according to his judgment, every effort was made by him, occupying at the time a very elevated position, as he does now, in order, as many of us thought, to thwart the wishes and intention of the people of Australia in regard to this right of appeal, and to preserve the appeal to the Privy Council which has now apparently been found inconvenient.
It was common knowledge, not only that the decisions of the Judicial Committee in the Canadian cases had not given widespread satisfaction -
What a condescension that is - it was quite uncertain whether thev would form members of a Board that might be called upon to determine a question on appeal from an Australian Court, by which it must necessarily be dealt with in the first instance.. It could not be predicted of the Board which would sit to entertain an appeal that it would be constituted with any regard to the special familiarity of its members with the subject.
And no disrespect is implied in saying that the eminent lawyers who constituted the Judicial Committee were not regarded -
By whom, I wonder - either as being familiar with the history or conditions of the remoter portions of the Empire, or as having any sympathetic understanding of the aspirations of the younger communities which had long enjoyed ‘ the privilege of self government.
When was this discovery made? Was this known when all those efforts were made to secure an unrestricted right of appeal to the Privy Council, or has this doubt arisen only now, when, to use the expression employed by Senator St. Ledger, there is a jealousy of the interference of the Privy Council with the jurisdiction of the High Court.
It is said that such a state of things as would follow from a difference of opinion between the Judicial Committee and the High Court would be intolerable. It would not perhaps have been extravagant to expect that the Judicial Committee would recognise the intention of the Imperial legislature to make the opinion of the High Court final in such matters. But that is their concern and not ours.
Again -
In our opinion the intention of the British legislature -
It was not the intention of the British Legislature, but the intention of the people of Australia that was in question - was to substitute for a distant Court of uncertain composition imperfectly acquainted with Australian conditions, unlikely to be assisted by counsel familiar with those conditions, and whose decisions would be rendered many months, perhaps years, after its judgment had been invoked, an Australian Court, immediately available, constant in its composition, well versed in Australian history and conditions, Australian in its sympathies, and whose judgments, rendered as the occasion arose, would form a working code for the guidance of the Commonwealth.
There are many similar references, but, later on, the Chief Justice speaks of the Privy Council as confessing a lack of familiarity with the subject, and speaks of the appeal as - setting up an official in London, subject to political accidents, in place of the High Court, as the guardian of the Constitution.
I venture to think that it is undesirable that expressions of that sort should be used. They were not necessary in any way whatever in delivering a great judgment dealing with a great question.
The Commonwealth, if it wanted to have the emoluments paid over undisturbed to its servants, might undertake to pay the income tax in the particular States for them.
That would be all very well if the Constitution had said so. . . We have to decide what the Legislature means by what it has now said’.
Mr. Glynn was contending for inferences, and so on, in connexion with a claim which was made by Tasmania to some Customs duties collected in Victoria, and the Court then supported the argument that there is no clear intention in the Constitution that duties shall go to the State of consumption. I hold that in the Constitution there is no expressed intention that the citizens of the States shall not be taxed in respect of moneys they receive from the Commonwealth as well as other moneys. Again, in giving judgment, the Chief Justice said -
We were invited by Mr. Glynn to apply in construing the .Constitution some higher rule of construction, to look beyond the letter of the Constitution.
The Court declined to look beyond the letter of the Constitution in that case. Why should it not have equally declined to look beyond it in such a case as the one under discussion ? The Court rejected the opinion that the ordinary rules for considering Acts of Parliament do not apply to the Constitution. Perhaps honorable senators will agree that that is a fairly sound view to take. But, instead of that being done, we had imported from America this doctrine described by Mr. Justice Isaacs, when at the Bar, as a doctrine of implied prohibitions invented by Chief Justice Marshall. I do not want to discuss that, except to say that it does not mean, as I gathered Senator St. Ledger thought, an implication derivable from the language of the Constitution. This is a doctrine invented, as Mr. Justice Isaacs said, at that time, or really evolved from the judicial consciousness, in order to meet what was considered to be a particular defect in relation to the American Constitution, which, otherwise it was supposed, and probably rightly so, could not be met. But it was a doctrine altogether outside the written Constitution, and it was exten’ded here to the Public Service as an instrumentality. I venture humbly to agree with what Mr. Justice Isaacs and Mr. Justice Higgins said - that this tax involved no interference in any respect with the efficiency in the discharge of their duties of the Commonwealth public servants. It was not directed against them in any way, and I cannot do better than read two or three words Mr. Justice Isaacs uttered near the end of his judgment, and to which I am unable to add anything better, taking the broad view which he did, which, I think, will commend itself to all of us -
But the State Act touches no function of the officer, it intrudes its operations into no public act that he performs, it affixes no condition, and imposes no qualification upon the discharge of his duties, it makes no demand upon his public time, and seeks no service at his hands; it merely requires of him his just share of the ordinary burden of his fellow citizens in return for the protection and benefits the State affords him. If this be so, the Statute attacked in each case has not intruded into the exclusive domain of Commonwealth executive action, it has not invaded the powers, interfered with the means, or interrupted the operations of the central Government, and, therefore, should, in my judgment, be declared to stand as a valid exercise of State legislative authority.
The questions as put by the learned Chief Justice seem to involve a little confusion. The first question was -
Is the High Court the final arbiter of the law with respect to the special case mentioned in section 74 of the Constitution?
The question as to that really is : Is this a subject-matter within section 74 of the Constitution ? There is no dispute that when we get a judgment, or whatever it may be, under section 74, the restriction on appeal lies. The question is : Is this such a judgment within the meaning of section 74? The second question which the Chief Justice put was -
Could a State in the exercise of its legislative and Executive authority restrict the exercise of the similar authority of the Commonwealth, and vice versa
That, I venture to submit, is not the question as it would commend itself to most of us. The question really is : Can the’ Commonwealth, or is there anything to enable the Commonwealth to, without express power in the Constitution, give immunity to any individual or class of State citizens from the lawful taxation, by the State, of its citizens? Putting aside the law, with which we cannot deal; putting aside technical interpretations and the consideration of cases to which much reference has been made, and with which we cannot deal ; and looking at it from the broad point of view as citizens of the Commonwealth, and as citizens of our respective States, I venture to say that the answer to that question must be “No; the Commonwealth cannot do anything of the kind.”
That taxation by a State,, on common withe other salaries earned within the- State of, (a), the official salaries of officers of the Commonwealth earned in the State after the commence-; ment of this Act; and (d) the allowances paid after the commencement of this Act. of members of the Parliament elected in the State shall’ not, if the taxation is not at a higher rate or to~ a greater extent than is imposed on othersalaries of the same amount earned in the State,, be deemed [e) to be an interference with the.exercise of any power of the Commonwealth.
The High Court has said that to. tax thesalaries of Federal officers is such an interference. Can we say that it is not? Because, if we can, and do, we shall certainly be flying in the face of all that we supposethat we can do under the Constitution, and; flying in the face also of the principle of the Constitution that the High Court is acoordinate factor in the Constitution withthe Parliament. There are three bodiesthe Executive, the Legislature, and theJudiciary ; and if we can by an Act of Parliament say that, although the High Court has pronounced a particular judgment, wedeclare that it shall be of no avail, we shall very seriously interfere with the position of the High Court. I invite honorable senators to consider the question from that pointof view.
I conclude these remarks in reference to this particular matter by saying that we are not going to the root of it. The root of the matter lies in the Constitution. If the Constitution had been framed as those who thought with me desired, this difficulty would never have arisen. What does the Constitution say? That is the question. The Privy Council says that there is no prohibition against a State tax, and that there is liability unless there is an express prohibition. The High Court says that there must be an express authority to impose it. That is the position as it now exists. I should have thought that it would require an express prohibition to interfere with the right of a State to tax its own citizens. Under the Bill, it is sought to put an end to the difficulty by enacting the direct liability, and we immediately have by this measure a conflict between the Constitution and the Bill itself. I wish just to say one or two words on the Judiciary Bill, and they must be even more emphatic as to the undesirability of passing it. If there was one thing that the framers of the Constitution desired, it was to magnify the States Courts and to place them in the position of being Federal Courts exercising Federal jurisdiction wherever possible. We desired that the great and expensive system followed in the- United States should not be made applicable here. In the United States, immediately their Constitution was agreed to, they’ had to establish, not merely their Supreme Court, but District Courts and Circuit Courts throughout the length and breadth of their then dominion. To prevent that expense and the necessity of having a network of Federal Courts all over Australia, the Judicial Committee recommended, and the Convention approved, that there should be power to vest the States Courts with Federal jurisdiction. That was provided for. We raised their status, and gave them that jurisdiction. We left with them a direct appeal to the Privy Council. That, I think, was not desirable, but it was done. We have since, by means of the Judiciary Act of 1903, interfered with that status to a very considerable extent. V’e have disfigured it in a manner that was certainly not contemplated by the framers of the Constitution. We did that, which I see is the subject of some discussion in this morning’s newspaper - we enabled appeals to take place direct from single Judges, to the ignoring of the States Supreme Courts and from the States inferior Courts of Quar-. ter Sessions or County Courts, I am not certain how they are termed, direct to the High Court. To my mind, that was exceedingly inadvisable. It was passing by the Supreme Courts of the States, placing them in an inferior position, and doing that which was certainly not in the contemplation either of the Constitution or the framers of the Constitution.
Senator Col. NEILD (New South Wales) [5.46]. - We seem to have got into rather a difficulty through discussing two measures at one time. I admit that in the earlier stages it seemed that this method would be a convenience, and was regarded as such, but now it seems to be an inconvenience. If the second Bill under discussion were sufficiently before the Chamber I should certainly ask your ruling, sir, upon it, and I cannot doubt what that ruling would be. I do not know that at present the alleged Salaries Bill is sufficiently before the Chamber to permit of your giving a ruling upon it, and therefore we are discussing a Bill which, if it were properly before the Chamber, might be found to be improperly before us, on the ground that it was entirely out of order and ultra vires of the Constitution. I wish to make a few remarks upon the Salaries Bill rather than upon .the one the second reading of which is immediately before us. I wish to raise no historical questions connected either with the framing of the Constitution or the wording of the Judiciary Act, but rather to point out a few plain and, I think, common-sense reasons why the Salaries Bill should not be adopted. My remarks will, of course, have some relation to the Judiciary Act, and therefore I take it that I shall be strictly in order. First and foremost, let me point out that I come with my colleagues from a State which for many years resisted tha. imposition of income “taxation, and which has very recently in the most emphatic manner announced its abolition. Therefore no representative of New South Wales can possibly be regarded as an in- terested party through this proposal affecting in any shape or way the munificent incomes that we are supposed to derive from the groaning taxpayers of the Commonwealth. One question that I submitted to the honorable and learned senator who has addressed the Chamber with so much eloquence and so much acceptance this afternoon, was whether the officers of the British Army or Fleet serving in the Australian States are subject to income tax. I believe they are not, but that is not because there is any section to the contrary in any Income Tax Act in Australia. They are not subjected to income tax for the very good reason that the lesser Government recognises its inability to tax the higher. In other words, the Colonies have all along recognised their inability to tax Imperial incomes, and in largely the same way the Commonwealth has as “much right to expect the incomes of its officials to be immune from State taxation as ;has the British Government to expect the salaries of its officials to be so immune. I do not see that there is any difference except, of course, the wide one between the magnitudes of the Governments in the two cases. It is proposed specially to exempt the emolument of His Excellency the Governor-General. I suppose that is because there is a statutory obligation to pay him a certain sum. If the Governor-General has a right to the fulfilment of his bargain and to receive unimpaired the salary that is stipulated to be his in the Constitution, then I submit that, in precisely the same manner, members of the Legislature are entitled to receive their little statutory allowances just as free from invasion by the States as His Excellency the Governor-General is to receive his very different sum. In the one case, it is a salary, in the other, an allowance, and an allowance, we ali know, is to cover expenses. This is one of the first proposals that has ever been made to require any man to pay income tax on his hotel bill and travelling expenses. I can confidently appeal to your knowledge of the matter, sir, for you had the honour of discharging the duties of a Minister of the Crown for many years in New South Wales, when I say that there, and also in the other States, it is customary for Ministers of the Crown to draw whatever sum is necessary to meet their travelling expenses when abroad about the country’s business. Who ever heard of a Minister of the Crown paying income tax upon the amount of his allowance as travelling expenses ?
– I had not the pleasure of hearing the VicePresident of the Executive Council deliver his speech, but I have had the advantage of perusing the official report, and I thank him for the very clear and ample way in which he stated the case. I believe that we must all now feel that we are better informed, after having heard the very interesting speech of Senator Symon. The matter at issue, though, is not so much an examination of the mistakes of the past as the finding of a way out of the very serious difficulty in which we are placed. So far as I can see, there are three ways out of the position. The first is to accept the two Bills with such amendments as may be suggested. But the Government Salaries Bill appears to me to be absolutely unconstitutional, and merely waste paper. The second way is to go into the whole matter, and then, when we have really made up our mind as to what we want, to express our meaning. But the third way, and the one which I rather favour, is that we should fall back on the very useful judgment of Mr. Justice Higgins, and see if we cannot prevail on the High Court to, or let it know that we desire that it should, follow the superior Court of the Empire, because the judgment of the Privy Council accords with our sense of justice and gives effect to our intention. But, instead of the High Court following the judgment of the Privy Council, we are asked to escape from the difficulty which has been created by passing two Bills, running the risk of their being unconstitutional. As one who has been a family solicitor all his life, settling other people’s affairs and doing business of that kind, I do not profess to be much more competent to speak upon a matter of this kind than is any intelligent layman. I desire, therefore, to speak as a layman and a senator, and whatever I have to say will be said with the greatest deference to the Justices of the High Court. But still I am here to give reasons for my votes, and to express my views on the terrible constitutional muddle in which we find ourselves. I could understand the method proposed by the Government to get out of the present difficulty if the High Court had given a decision of which all of us approved as being in consonance with justice. But the reverse happens to be the case. The Privy Council have given a decision which we all believe to be in accordance with justice,, and with what the Constitution intended. It is the Privy Council that has told us that the fact that our public servants pay State income tax does not interfere in any way with the Federal authority. That, also, is what Mr. Justice Isaacs has said. It does not limit the Federal control over the officers of the Commonwealth, nor does it affect in any way the authority of the Federal Parliament. But our own High Court has given the decision which has got us into all the trouble. It is the decision of our Court which we do not believe to be in accordance with justice. It is its decision which absolutely ignores the fact that we are all citizents of States, as well as citizens of the Commonwealth.
– Surely the honorable senator pays more attention to the High Court than to the Privy Council?
– I am pointing #out that the Privy Council has given the decision of which we all approve, and my opinion is that, with the knowledge that the High Court has, and seeing that the Privy, Council is the highest Court in the Empire - a Court which no other Court ought to override - the High Court might have saved us from the impasse into which we have been landed by giving judgment in accordance with the Privy Council’s decision.
– Why should the Privy Council have the final voice in matters relating to the Constitution ?
– It is of no use to ask a question like that, because we have to deal with- the facts as they are. Rightly, or wrongly, the income-tax case went before the Privy Council. Mr. Justice Hodges, of the Supreme Court of Victoria, held that it was rightly sent there, and the Judges of the Privy Council itself held that it was rightly before them. They have decided it. Mr. Justice Higgins has pointed out in clear and lucid language that we belong to an Empire, and that the Privy Council is the fount of justice and the highest Court to which we can appeal. Nothing but trouble can result if we refuse, to follow its judgments. I should not, however, be inclined to do so if I thought that the Judges had done something foreign to the genius of . the Australian! people. But, as a matter of fact, they have done everything that we approve of. It is the High Court,in refusing to -follow the highest’ Court in the Empire, that has done that of which our own people disapprove. It does not appear to me as ‘ if the Judges of the High Court really, saw the importance of trie decision which they gave*
It does not seem that they had anxious discussions amongst themselves as to what should be done. On one point, Mr. Justice Isaacs differed from the majority of the Court, and on another point Mr. Justice Higgins differed from them. There were three Judges against two. The Court was not unanimous.
– What is the use of discussing that? The question is, can we remedy the present difficulty.
– I think that I am entitled to point out that the judgment of the High Court was given by three Judges as against two, whereas on the Privy Council, Lord Halsbury, Lord Macnaghten, Sir Arthur Wilson, and Sir Alfred Wills gave a unanimous opinion on. the same side as that of the two dissentient Judges of the High Court.
– How does the honorable senator know that the Privy Council was unanimous?
– Because there was no dissentient judgment.
– The Privy Council merely gives its decision, and nobody knows how it is arrived at. There may have been only a majority of one.
Senate DOBSON. - The chances are twenty to one that the honorable senator is wrong. On an important question of this sort, if one of the four Judges had differed from the others his opinion would have been stated.
– That is not the procedure of the Privy Council.
– The Judicial Committee advises the King.
– I venture to say that if one of the four Judges held a strong opinion in opposition to his colleagues there would in all probability have been a minority judgment.
– No. There are no such things as minority judgments in connexion with the Privy Council.
– The fact remains that, added to the decision of Mr. Justice Higgins and Mr. Justice Isaacs, we have the Privy Council judgment, which is as clearly as possible contrary to that of the High Court.
– How does that help us ?
– I fall back upon the judgments of Mr. Justice Higgins, Mr. Justice Isaacs, and the Privy Council, which are in accordance with our views of the justice of the case, and argue that instead of Parliament being compelled to resort to the roundabout way of passing two Bills, one of which is said to be illegal - although the Chief Justice has suggested that we should pass it - the High Court itself should have got rid of the difficulty. If, according to the judgment of the High Court, every Federal officer has a constitutional right to be exempt from the payment of State income tax, what is the use of one of the Judges of the High Court telling us that we should pass a Bill to put the matter right? We cannot pass such a Bill if Federal officers have the constitutional right to be exempt. I understand, from reading Senator Best’s speech, that he quoted a large number of cases which all depend upon the maxim that the man who has a privilege or right conferred upon him can waive that privilege or right. But other authorities which my honorable friend quoted at the end of his speech were not, to my mind, in point. Let me tell the Senate why. The case of McCulloch v. Maryland was quoted. That case had relation to a bank set up by the Federal Government of the United States.
– I did not quote that case on that particular point, but on another matter altogether.
– My honorable friend will see my point if he follows the argument. When the Federal Government in the United States set up a branch of its bank in Maryland, the State Government commenced, not to tax the Federal officers, but the notes issued by the bank. It was with regard to that note tax that Chief Justice Marshall said that the power of taxation might, or might not, mean the power of destruction. But there is all the difference in the world between a State taxing an institution of the Federal Government and taxing a Federal officer. That distinction runs clearly through the whole of the cases which my honorable friend quoted at the end of his speech. He contended, in accordance with the case of McCulloch v. Maryland, that a State cannot tax a Federal institution, and cannot do anything which would embarrass or control the Federal Parliament in carrying out its functions. But simply to tax the salary of a Federal officer after he has received it from the Treasury, . and has it in his pocket, is quite another matter. It appears to me that in the judgment of the High Court no attention whatever is paid to States rights, or to the fact that every citizen of the Commonwealth is also a citizen of an individual State, the rights of which have to be protected. I find that Lord Halsbury, in his judgment, alluded to this point, and quoted section 1 06 of the Constitution, which says -
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.
If the Constitutions of the States are to continue, we cannot in any way limit their power to impose taxation thereunder. As Lord Halsbury pointed out, that power continues. He also quoted section 107 -
Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be.
What is there in the Federal Constitution that takes away the right of each State to tax its own citizens by an income tax? As Lord Halsbury puts it, we cannot take away the expressed principle of the States Constitutions by trying to read into the Federal Constitution some implied authority. The States Constitutions emanated from the Crown, and they remain with the States except so far as the Federal Constitution takes power away from them, or in some way limits or controls their power. As to the power of taxing by income tax in each State, nothing is taken away. There is no limit and no control. I do not find in any judgment of the High Court that it has considered the question of what are the rights of the citizens of each State, and what are the rights of the States under their Constitutions to tax the incomes of their citizens. But the High Court has gone out of its way to read into the Constitution implications which I do not see there. Even if there are implications in favour of the judgment of the Court, they cannot, I contend, be set up against the direct and positive powers given to each State over its own citizens.
– All the Judges have, in the most conclusive way, said that the principle of the McCulloch v. Maryland, judgment do apply.
– The Privy Council has said that it does not apply. Let me put this position, which will make the matter clearer. We all know that Mr. Kidston has suggested that the States debts should be taken over as soon as possible by the Commonwealth, and that we should establish a Federal bank to deal with them. Suppose we established a Federal bank, with a branch in Queensland. We should have three factors, the Federal institution, the shares in the bank, and the Federal officers in charge of it. Now, I think that the case of McCulloch v. Maryland has nothing to do with the salaries of the officers after they have received them from the Commonwealth Treasury, although it may apply to the bank itself and to shares in the bank.
Sitting suspended from 6.30 to 7.43 p.m.
– The Vice-President of the Executive Council will see that I draw a distinction between three factors ; the Federal institution, the property in that institution, and the officers of that institution. The officer, being a citizen of a State, is subject to the Constitution of that State, and it, therefore, appears to me that the decision in the case of McCulloch v. Maryland cannot apply to the taxation of his salary. But it is of no use to take up time in arguing about the past. The question is how is the difficulty which has arisen to be overcome ? I feel that we need to come to close quarters with those who know something about this subject. We shall never settle technical matters of this kind by a debate; we require, rather, to sit around a table and have a discussion upon them. I find that the Criminal Appeal Bill was referred, in England, last year, to what is called there a Grand Committee. One of the members of the Imperial Parliament pointed out this year that that was not at all a proper tribunal to which to refer such a matter, and that it ought to go before a special Committee. We have provision only for Select Committees in connexion with the Senate, and I feel that this is a Bill which should be referred to a Select Committee, in order that we might get at close quarters with the facts, and be in a position to examine barristers who have practised in the Appeal Courts, and who know something about the matter with which the Bill deals.
– Why not refer it to the ^300 a year expert to be appointed by the States?
– I believe that Senator Best has not considered whether we should deal in this measure with the right of appeal from one Judge of a State direct to the High Court. Articles on this subject have appeared in the newspapers, and I think that most of us recognise that it involves a very important question. If the existing state of things is to be continued, it is quite certain that the High Court will have more work to do than it can accomplish. Additional Judges will have to be appointed, and even then the Court will not be able to overtake the work unless an arrangement be made by which three Judges would sit in Melbourne and three in Sydney, whilst two or three more were travelling about in the smaller States. If that plan were adopted, it has been properly pointed out that it would be open to the objection that there would probably be conflicting decisions given’ by the different sections of the Court.’ I think chat it is the bounden duty of the Government, whilst considering this important Bill, to review the whole question of appeals. We should not let this measure leave the hands of Parliament until it is so framed as to deal with the whole subject. I point out that there is still the question whether the present Judiciary Act ought not to be amended and made clear. Mr. Justice Hodges has said that the income tax case was rightly sent on appeal to the Privy Council. The Privy Council expressed the same opinion, but the High Court, with a great deal of justification, I think, decided that the case was not rightly before the Privy Council. That is another matter which must be set at rest. If I may use the expression, I think that a “botch “ will be made of the business if this Bill is permitted to pass without dealing with the whole question of appeals, and the work to be done by the High Court and the States Courts. With regard to the Commonwealth Salaries Bill, we have the authority of the High Court for saying that it is unconstitutional. The High Court has in the clearest way, and by a full and ample judgment, shown us that there is embedded in the Constitution a right inherent in every Federal officer to be free from any State income tax. If that be so, how can it be suggested that the Federal Parliament, which cannot alter the Constitution, can pass a law taking away a right held by every Federal officer. I quite understand that a gift or privilege conferred upon a person or a body can be waived by that person or body. But what we are dealing with here is a gift inherent in each Federal officer. When we talk of the Federal
Parliament waiving its right and consenting, if we had established a Federal bank, to the taxation of the shares in that bank by the States, that is very different from the giving up of rights vested in individual officers. They are citizens of the different States, and as such the High Court has decided that they are exempt from the income tax imposed by the States of which they are citizens. If we .pass the Commonwealth Salaries Bill exactly in the form in which it is before us, and a Federal officer disputes payment of the income tax of a State on the ground that this legislation is ultra vires, what on earth is the High Court to say to it? We have their answer already. They have decided that the right of Federal officers to be exempt from State income tax is embedded in the Constitution. It, therefore, seems to me that the proposed legislation must be regarded as ultra vires since the High Court will be bound by its own judgment. The difficulty cannot be got over in the way proposed. In connexion with the amendments suggested, [ am bound to say that I differ from Senator Neild on two points. First of all, I think it would be a fatal blunder for us to make any exception in our own favour, or to make any difference in the way in which the law shall be applied to a State as compared with a Federal officer.
– I did not make any such suggestion.
– I understand that Senator Stewart proposes that such a distinction shall be made. Senator Neild has asked, “Whoever heard of a man paying income tax on his hotel’ bill and travelling expenses?” That may be an ingenious but it is not a proper way in which to put the matter. I admit that the honorable senator possesses considerable knowledge of such taxation, not through paying it, but probably in trying to obstruct it. But I point out that it is one of the provisions of legislation imposing an income tax that the expense incurred in earning the income may be deducted in estimating it. But a man is not entitled to deduct hotel and living expenses. He must pay them out of his income minus the tax.
– What do we come here for?
– Senator Stewart is going back to the first point. We have not to consider what we come here for. The honorable senator, being a citizen of Queensland, ought to pay the same income tax as his fellow citizens of that State.
– But they do not pay income tax on hotel bills.
– The citizen of a State must pay income tax, and is expected to defray from what is left to him the cost of living, whether he lives at an hotel, a lodging house, or in a home of his own.
– The honorable senator does not understand the argument.
– I understand something about income tax laws. I ask the Vice-President of the Executive Council to give us as much time as possible for the consideration of these Bills. We require more light on the subject, and we should have such an amendment of the Constitution as will set at rest every point which has been suggested by the income tax cases.
– - I did not intend to intervene in this debate. We have heard opinions from different sides of the Chamber to the effect that the method proposed by the Government is the only one by which the difficulty which has arisen can be avoided, and on the other hand to exactly the opposite purport. In a matter of this kind, as a layman, I would not presume to offer an opinion at all. It seems to me that somehow we have got into a difficulty, but apparently the High Court as the interpreter of the Constitution holds the kev to the position for the present. Speaking with all due deference, it does seem to me that any legislation that we may pass will be what the lawyers call ultra vires if any one cares to contest it. Now, with regard to the Commonwealth Salaries Bill and the income tax, I submit that members of the Federal Parliament stand in quite a different position from any other section of the community, so far as this matter is concerned. Assuming for the time being that what we receive is a salary-
– Under the Constitution it is an allowance.
– It is really an allowance for expenses, but assuming it to be payment for services rendered. I would put it that our allowance of ^400 a year-
– The honorable senator will perhaps permit me to remind him that the framers of the Constitution carefully drew £,600 a year at the rate of £2 2s. per day while they were considering it, and that that was considered paywent for expenses.
– That is a very offensive way in which to put it, and it is not correct.
– I put it that the sum we receive is our gross earnings, and that, in the performance of our duties, we have to expend a considerable proportion, or it may be the whole, of that amount. We are in exactly the same position as a tradesman whose gross income, we will say, is ^1,000 a year, but who is not called upon to pay income tax upon that amount, since he is permitted to deduct business expenses. “Senator Dobson. - But not his living expenses.
– I submit that when I come to Melbourne from my residence in Queensland, at the call of the Commonwealth, and incur certain expenditure while living here, and attending to my business as a representative of Queensland, I am entitled to deduct those expenses from my allowance in any return I may make to the Income Tax Commissioner.
– If a Melbourne merchant goes to Sydney he puts the expenses of his visit down as trade expenses.
– I ask honorable senators to compare the position of a member of the Federal Parliament with that of an ordinary civil servant. If a civil servant is sent from Melbourne to Sydney on Commonwealth business he is allowed his train or steamer fare and a guinea or a couple of guineas per day,, according to to his class, as expenses. Contrast that with our position. We get a fixed allowance of £,A°° a year. Out of that we have to defray our expenses in attending the meetings of Parliament, and we are also expected to go up and down the country like roaring lions’, or like cooing doves, as honorable senators please, giving an account of our stewardship to the people who elected us, and to whom we are responsible. The expense incurred in that way can be looked upon as incurred in attending to the business of the Commonwealth. For that also on every ground of equity we are entitled to claim an exemption. That way of looking at the matter cannot fairly be contradicted. Senator Dobson said that we ought not to differentiate between ourselves and other public servants. The honorable senator evidently wishes to place members of Parliament in a very much worse position than ordinary civil servants so far as the payment of income tax is concerned, and that is exactly what I am opposed to. I agree with every word that Senator Neild said on the subject. Why should we be called upon to pay income tax, not on our net income, but on our expenditure? In the case of a commercial traveller, with a salary of £500 a year and an allowance of a guinea a day for expenses, would the Income Tax Commissioner be entitled to ask him to pay tax upon ^500, plus 365 guineas? He would never dream of making such a demand, which would be scouted in any Court of justice. The traveller would undoubtedly be called upon to pay on the £$°o, but no one would ever think of asking him to pay taxation on the expenses incurred in the prosecution of his employer’s business. When we come to Melbourne, we incur expenses in carrying out the work we are sent here to do, and I submit, with all deference, that we ought not to be called upon to pay taxation on the money paid us to meet those expenses. I do not wish to escape my liability as a citizen of the Commonwealth any more than Senator Dobson does, but I object to being treated unfairly. We ought to have fair play all round, and no man should be asked to pay more than in fairness and justice he ought to pay. My intention is to vote against the second reading of the Salaries Bill, and if the second reading is carried I shall attempt to amend it in the way I have given notice of. If members of Parliament are not treated in the way I have advocated, they will be compelled to submit to an extortion to which they ought not to be exposed. Consider the case of Queensland members. If I have to pay income tax on my full ^400 a year, it will mean a decrease of £10 in my salary. Senator Neild tells us that the income tax is to be abolished in New South Wales, so that the allowance of a New South Wales member would be ^400, and that of a Queensland member ,£390. I think the income tax in Victoria would amount to between £3 and £4. I do not know what it is in South Australia, while in Western Australia there is no income tax.
– There is a danger of Victoria as well as his own State claiming tax on the honorable senator’s income.
– Yes, while we are here Victoria will make a claim on us, but I would much rather ;pay the tax demanded here than what I consider to be the extortionate one in force in Queensland.
– The honorable senator does not want to pay both, surely?
– I do not want to pay either if I can avoid it. I do not -want to pay anything more than I am morally called upon to pay. If my allowance for expenses is £400, and my expenses amount to £100, I am quite willing to pay on ^300, but if my expenses amount to £400, I consider that I should be allowed to escape scot free. I trust honorable senators will not be led away by the ideas put forward by Senator Dobson. Probably it is not a matter of very much concern to him whether he” pays income tax or not, but I can assure him that it is a matter of some consequence to me. My expenses as a representative of a very large State are already considerable, and if they are to be added to by another demand upon my purse for taxation, not upon my income but upon my expenditure, it will mean that I shall be asked to submit to an injustice.
– I do not wish to address myself at any length to this Bill, but we are forced to the conclusion, not only by the Bill, but by the remarks of the Minister in introducing it, that the Government are going to make no serious effort to overcome what is recognised on all hands as a serious difficulty. I refer to the position which has arisen under the Judiciary Act and the Constitution, of appeals going direct from a single Judge of a State Court to the High Court. It is universally admitted that that position is regrettable. I believe it is not suggested by any one that the Full Courts of the various States should be relegated to what must be a most inferior position, but that is the position into which they are rapidly being forced as the practice extends.
– Cannot the States amend their Judiciary Acts to remedy that difficulty ?
– The States cannot remedy it. When the matter has been discussed it has been said that it is outside the province and power of this Parliament to remedy such a state of things by such a Bill as we are now discussing. Apparently Ministers also hold that view, because I cannot believe that the Vice-President of the Executive Council, if he had seen the possibility of altering it, would have failed to indicate his ready desire to do so. I am assuming that the honorable senator will not for one moment defend, as a right and proper thing the decision that an appeal may go direct from one Judge of a State to the High Court. I should like the honorable senator to say so, if he will. I have not heard directly or indirectly that he regards such a state of things as desirable. I can quite understand that he might regard it as a difficult matter to get over, or that he might imagine, for instance, that before we can put it right we shall have to go through the cumbersome process of altering the Constitution. I shall be glad if the Vice-President of the Executive Council will indicate whether he is desirous of applying a remedy by legislation, if practicable. As the honorable senator will not give that indication, I should like to point out that section 73 of the Constitution says that the High Court - shall have jurisdiction with such exceptions and subject to such regulations as the Parliament prescribes to hear and determine appeals. . . .
If I read that section rightly, it is quite within the province of Parliament to legislate so that appeals shall not go from one Judge of a State Court direct to the High Court, and that they shall- not go to the High Court until the Court of final resort in the State itself has been approached.
– That is the position under the Dominion Act in Canada.
– It seems to be a provision that would appeal to everybody, but if a majority of this Parliament does not feel disposed on the actual merits of the case to put such a provision in this Bill, I could suggest another way in which the difficulty might be got over: It is desirable that we should not belittle the States Courts. I do not think the Federation has anything to gain by trying to relegate every State Court, especially the Full Courts, to a most inferior position, or by taking from the States Full Courts most of their work, nor will it gain anything if we compel the High Court to deal with innumerable cases which ought never to come before it. I should decidedly -prefer that we should indicate at once, and definitely, that no appeal should lie to the High Court until the appeal to the Court of last resort in the State had been exhausted. The other way I was going to indicate out of the difficulty is this: I see no reason at all why we could not provide in our legislation that it shall bi necessary in the case of an appeal to the High Court from a single Judge of a State Court for special leave to be obtained from that Judge, and, if necessary, from the High Court itself. I do not wish to address myself to any other aspect of this Bill, but I do feel that the present position with regard to the Judicature demands our serious attention. If it is within the province and power of this Parliament, as I hold it is, to give redress, I certainly think we ought to give it. It is my intention, when this Bill gets into Committee, to move, if no one else does so, first in the direction I have indicated, that the appeal to the State Courts shall be exhausted before the High Court is approached, and next, if I cannot carry that, to provide for special leave to appeal.
– I am not going to address myself at any length to this subject, because, after the lengthy remarks we have heard from a very learned senator, it is no wonder that an ordinary layman like myself should feel bewildered. I desire only to extract from the Minister in charge of the Bill an explanation of the position a litigant would be in if, when his case was being tried in a State Court, the Judge decided that it was not a matter affecting the limits inter se pf the constitutional powers of the Commonwealth and those o’f any State or States, or the limits inter se of the constitutional powers of any two or more States. Supposing that the matter was really in truth and in essence a case coming under those definitions, would such a litigant have any remedy to enable him to have his case bi ought before the High Court? I can easily conceive of a Judge of a State Court feeling that, under the amended section 40A of the Judiciary Act as set out in clause 5 of this Bill, he alone was called upon to decide whether or not a matter was one that came within the category I have mentioned. He would have full and absolute jurisdiction to decide that it was not a case affect. ing the limits inter se of the. powers of the Commonwealth or States, and he might do so even in face of the fact that in truth and in essence it was such a case. What would be the position of the litigant if the Judge of a State Court gave such a decision ? Would it arm a single Justice of the Supreme Court of a State with full power to decide the question when, at the same time, it is reserved exclusively for the jurisdiction of the High Court?
– I am somewhat surprised that the weighty utterance of Senator Symon has not been answered by the Minister in charge of the Bill.
– My honorable friend must understand that if I were to speak it would close the debate. I am prepared to speak at any moment.
– I beg the Minister’s pardon. I thought that the President was going to put the question, and that the debate would then have closed. Like Senator Lynch, I feelvery bewildered with regard to the Bill. I feel that it is an attempt to remedy a position which has been termed intolerable ; but I fear that if the Bill were allowed to go through as it is, the position would be even more intolerable afterwards. I agree with Senator Clemons that, if any thing is to be done at all, the Bill should not go through in its present skeleton shape, but should deal with other questions which have come up as regards appeals from a single Justice of the Supreme Court of a State, and thus be made a comprehensive measure. The speech of Senator Symon this afternoon seemed to me to riddle the Bill, and I fear that no good would result from its passage. I think that, before we can remedy a great injustice, we shall have to go to the fountain-head, and that is to the people. Therefore, unless the Minister, in his reply, can clear away the objections which have arisen in my mind, I shall certainly deem it my duty to vote against the Bill.
Motion (by Senator McGregor) proposed -
That the debate benow adjourned.
– Mr. President-
– There can be no discussion.
– I hope that my honorable friend will see his way not to press the motion.
-I would remind the Minister that, under standing order 416, there can be no debate on the motion.
Question - That the debate be now adjourned - put. The Senate divided.
AYES: 6
NOES: 26
Majority … … 20
AYES
NOES
Question so resolved in the negative.
Motion negatived.
– I was rather surprised at the attitude of the Government in connexion with my motion to adjourn after a very close debate on a Bill of such importance. On a previous occasion, an adjournment was allowed after there had been far less discussion than there has been to-day. In view of the very serious pronouncement of Senator Symon and the important speeches made by other honorable senators, I think it would have been only reasonable on the part of the Government to consent to an adjournment. When I saw what did happen, I was very sorry that I had not communicated my wish to a greater number of honorable senators, but the debate seemed to be collapsing so suddenly - not even the Minister made an attempt to rise - that I moved for an adjournment.
– That is incorrect.
– He got up twice to speak.
– Then I beg the Minister’s pardon. But, even if he was prepared to speak, I do not think that other honorable senators have had a fair opportunity of considering to-day’s speeches. I have listened very carefully to the whole of the debate, with the exception of the Minister’s very important speech, which I was prevented from having an opportunity to hear. I have endeavoured, however, to make myself acquainted with the position. From the time when Senator St. Ledger spoke until the present moment nothing has been said which has had a tendency to clear the minds of honorable senators. The discussion has all gone to make the confusion worse confounded. We have had those who declare themselves constitutional authorities differing widely in their views. We have had the Vice-President of the Executive Council, who is a lawyer of no mean standing, opposed by Senator Symon, who, as a constitutional authority, can scarcely be questioned; with Senator St. Ledger, Senator Clemons, and several other honorable senators of less importance coming in between, and all differing.
– That shows that the Bill must be right. ‘
– According to the honorable senator, when no one understands a measure it is bound to be right, but I do - not hold that view. If I do not understand a proposal perfectly, I like to prolong the discussion as long as I can, in the hope that some light may come to me and to others. We have heard the history of the sections in the Constitution relating to the Judiciary. The whole discussion has hinged on the meaning of sec: tion 74. I heard a great deal about that provision in South Australia seven years ago, when the whole country was agitated, and recriminations were thrown broadcast with respect to the attitude taken up by certain prominent men in Australia. I heard them called - well, I shall not say what they were called. I was very pleased to-day to see that Senator Symon had so cooled down that he was prepared to admit that they might think that they were right, but still those gentlemen who endeavoured to thwart the aspirations of the people of Australia in making the High Court, so far as the Constitution was concerned, the arbiter of their destinies, ought, I think, to be called names which would scarcely be allowed in the Senate, or anywhere else. We have heard all this history repeated to-day, as we have done on a previous occasion, but to-day’s version might be called a revised version. We had the original version ; then we had it revised by Senator St. Ledger; and next we had a further revision by Senator Symon. I am prepared to adopt the revised edition of the revised version, and to take the opinions of the honorable and learned senator in contradistinction to the opinion of any other honorable senator, at least on this question. It must be remembered that this is a double-barrelled discussion. We have to discuss a Bill to amend the Judiciary Act, and also a Bill dealing with a matter with which I do not think this Parliament should attempt to deal at the present time.. It should be left to the Courts. We have been told by as good a constitutional! authority as we have in the Senate, that if we pass the Bills in the present form they will be practically no better than wastepaper. Consequently, the Commonwealth would find itself in no improved position* with respect to the interpretation of the Constitution, or the difficulties that have arisenin reference to the income tax, than it is innow. When I find that such is the case I am still more surprised that the Government should not allow more time for consideration. After all that we have heard* about the Australian Constitution being the best instrument of government in the world, it is rather disappointing to find* that there is something in it that has-‘ brought confusion both to the States and tothe Commonwealth. I believe that theHigh Court of Australia should have full and complete control over all judicial matters in this country, and that there should” be no other Court to appeal to, unless theHigh Court itself determines that a particular case ought to be sent on to the Privy Council.
– I would not- alloweven that.
– I would be liberal enough to allow the High Court itself to send on a case if it chose.
– That is exactly what the people of Australia approved of.
– That is what the people of Australia originally voted for, and wished to be the law, and that iswhat they would glory in to-day. Instead of bringing up two measures like those before us, it would be far better for the Government to take steps to amend the Constitution. Perhaps Ministers will reply,. “ Look at the expense and delay that that would entail.” Well, Australia has beenliving under the Federal Constitution for seven years, and nothing very serious hashappened through Federal officers not paying income tax in the States. There isnothing in the circumstances that would not . justify a little further delay in order to-“ enable the Constitution to be amended, soas to define clearly the position of our Courts and the relationship between the Commonwealth and the old country. Why should we not delay this matter, even by voting against the second reading of this Bill ?
Why should we not delay it by doing everything possible to compel the Commonwealth Government to do what is straightforward And just? If what I suggest were carried out, it would simply mean a delay of three years, when, without any serious additional cost, the people of Australia would be able to say in what direction they required the Constitution to .be amended, and whether they were prepared to permit appeals, not only from the High Court, but from subordinate Courts in the States to the Privy Council. The people should have power 4o express their opinion on that point; and I am certain, in view of the feeling existing between Great Britain and the Commonwealth of Australia, that if the people of this country showed any desire in the direction of vesting their own High Court with complete powers, the Parliament and the Executive of Great Britain would willingly agree to it. They are beginning to see that Australia is capable not only of /governing itself, but of governing itself independently; and for that and many other reasons if an amendment of the Constitution in this respect were submitted to the British people and the British Parliament, I have no doubt that their sanction would be given. Then we should remove doubts, and the difficulties that now exist would disappear with them. Suppose we carry the Bills now before us. In what position shall we then be? The Government is endeavouring to do something which will discredit the Supreme Courts of the different States, arid cause greater friction to arise than at present exists. It is proposed to allow appeals to be brought from almost any Court in a State to the High Court. At present, it appears, there is power to appeal to the Privy Council independently of the High Court, except in constitutional cases. Now, by a side wind, to mv way of thinking - honorable senators will pardon -me for using such an expression - the Government are endeavouring to do what ought to be done by an amendment of the Constitution. Whenever a proposal of that nature is submitted to the Senate, unless I am assured that very great benefit to the people of Australia will be derived from it, 1 shall not support it. I would rather have some amount of delay than assist in carrying a measure such as is now before us. How has this” question arisen ? We should never have heard of this amendment :in our Judiciary legislation had it not been for the unfortunate position first created by the State of Victoria, in endeavouring to levy income tax on everybody connected with the Commonwealth who resided, if only for five minutes, in Victoria. I myself got a wheelbarrow full of notices about the income tax in this State.
– With interest accumulating thereon.
– The interest has accumulated, and- can go on accumulating, for all I care. Now, I come from South Australia. All those who come from that State know very well that we generally spend two nights per week in the train, two nights in Victoria, and three in South Australia. How should the income tax be divided? Should liability to pay it begin at Serviceton, or at Adelaide, or at Melbourne? How is it to be equitably collected ? I cannot understand. A remarkable feature of the proposed legislation is that the Bill dealing with income tax on the salaries of public servants exempts the Governor-General. - That is a nice little dodge. Probably I should not use that word. I will say that it is one of those harmless little courtesies that are paid to great people. If we are going to make a provision of this kind in such a Bill, let us see what it means. The GovernorGeneral comes to Australia to live in the Federal Capital - when we have one. Melbourne is the present Seat of Government. Well, the Seat of Government should be considered, so far as the Governor-General, members of the Federal Parliament and Federal officers are concerned, just in the same way as the Federal Capital will be considered when we get there. Now if the Governor-General were residing in Federal territory, he would say to himself, “I am in a funny position. If I go to Victoria to reside for three or four weeks, they will make me pay income tax. I had better stay where I am.” Probably he would like to go to South Australia for a few weeks, as ‘that country is very beautiful during some portions of the year.
– All the year.
– Well, it is more beautiful at some times than at others. The Governor-General would say, “If I go there for a few weeks they will charge me income tax. I will stay where I am.” Senator Neild tells us that income tax is not demanded from Imperial officers in New South Wales. I do not know whether His Excellency the Governor-General is to be considered an Imperial officer. If so,
New South Wales would be the only State in which he would be safe. The New South Wales senators ought to block this Bill because the Governor-General, if not able to go to any other State to reside, will always be welcome in Sydney.
– We do not tax him in Tasmania either.
– Oh, indeed ! We have heard so much howling on account of the poverty_of the Treasury of Tasmania for the last three or four years that it is remarkable that they do not levy income tax on everybody they can catch. Tasmania and New South Wales, it appears, are the only States in which His Excellency would be safe.
– He would not be taxed in Victoria.
– -Then why did they want to tax me ?
– Why specially exempt the Governor-General under this Bill if he is not taxed now?
– Why do the Government put in such a silly thing as the exemption in this Bill if His Excellency is not taxed now?
– It is the usual practice.
– What is the exemption for? Does it not show the absurdity, the little pettiness of a measure of this description, when the Government put things into it simply .for purposes of padding? I refer to these things merely to show the absurdity of legislation of this description. If we consider the second Bill, I ask where is the guarantee that if we pass the Commonwealth Salaries Bill the High Court will not rule that it is ultra vires, and that we shall not have rules nisi, injunctions, mandamuses, and all those things flying about thicker than duck eggs n spring time. That is another reason why we should delay if it were only to give the subject further consideration. The Government appear now to be in a great hurry in this matter. In whose interests is this haste? Is it in the interests of Victoria ? I think it” must be because the Government of that State seem to be most eager to get hold of every possible penny they can secure from the unfortunate Commonwealth public servant or member of Parliament. I should be quite prepared to pay income tax in South Australia at any time if I had sufficient income for the purpose. I should be happy to pay £100 a year as income tax. But in South Australia the members of the Federal Parliament have never been asked to pay income tax on their salaries. I shall endeavour to show why the South Australian Government are sensible in making no such demand. I do not believe that there is asingle representative of South Australia in either House of the Federal Parliament who would not be willing to pav income tax to the Government of that State. They are patriotic enough and love their own State sufficiently to be prepared to do what they can to advance its interests. But, as I -say, we have never been asked in South Australia to pay income tax, and why? I come back again to the Federal Capital and the Federal Territory, by which it is to be surrounded.
– Where is it?
– It is at Dalgety, undoubtedly. When we remove to the foot of the Snowy Mountains and are surrounded by the Snowy River, what State Treasurer can then ask us for any income tax? While there we shall be as free as the sheep and lambs in that part of the country.
– They are shorn every year. ;’
– We have a certain number of public servants who would be permanently located in that Federal Capital or in the Federal Territory, and none of the States Treasurers would have any power to compel’ them to contribute to the States revenue by way of income tax. They would in that Territory be exempt from any taxation except that which the Commonwealth Parliament itself proposed. I do not object to the Federal Parliament imposing .an income tax if it should be necessary. Despite what Senator Neild has said, if ever there is a proposal of that kind made, I shall probably support it. Our public servants, while in the Federal Territory, would have to pay no income tax. As I have already said, while the seat of the Federal Government is in Melbourne, those public servants should be as exempt as they would be if located in the Federal Capital or Federal Territory.
– No.
– They certainly should, because they are in a position equivalent to that in which they would be if located in the Federal Territory.
– We would not have all our postmasters in the Federal Territory.
– I am speaking of Federal servants who would be, from the nature of their york, permanently located in the Federal Territory. I go a little further, and show the anomalies which would exist even under those circumstances. I do not object to income tax being imposed on the salary of a Commonwealth officer who is a permanent resident of any State. That may be his fortune or his misfortune. He may, by being compelled to live in a State where an income tax is levied, be relieved of disabilities to which he would be subject in the Federal Territory, and the relief from which would compensate him for the tax imposed on his salary. But I wish now to draw a comparison. Let us take the case of a public servant who, according to the Public Service Commissioner’s classification is in class 5, and lives in the Federal Territory j he will be exempt from the income tax imposed in any of the States. , There as another gentleman in class 5, who may have a roving commission, against his will, and consequently be obliged to reside sometimes in one State and sometimes in another. He might sometimes have to pay income tax, and at other times would escape the tax, but would he not be placed in a position of disadvantage in the matter of salary as compared with his fellow servant in th; same class permanently located in the Federal Territory? That is an anomaly which should be considered when we are dealing with legislation such as that before the Senate at the present time. We should also ask ourselves whether it is right that Imperial officers coming to the different States should be exempt from income tax in those States whilst Commonwealth officers occupying very similar positions would be liable to the tax. I know that the public servants of the Commonwealth do not object to bear their fair share of the Government in any part of Australia in which they may be located, but they do object to be treated differently from officers in the same class occupying similar positions in other parts of the Commonwealth. It is for these reasons that I intend to vote against both of these Bills, In order that time may be allowed for further consideration of the matter, and that ultimately an amendment of the Constitution may be brought about which will’ give the High Court of Australia an opportunity to decide between the States and the Public Service of the Commonwealth, and between the States and the Commonwealth itself. If, with the assistance of others, I can, by opposing this measure, secure that, I shall have done my duty, not only to the Commonwealth, but to the States, because I believe that if we pass these measures in , their present form we shall find that within the next three or four years they will have cost the States, the Commonwealth, and the Commonwealth public servants, a great deal more in litigation than the trifling amount of income tax that would be claimed by the States within the same number of years. I hope that the second reading of these Bills will not be carried, at all events, to-night.
– Probably a layman like myself might be expected to approach the consideration of a Bill dealing with a grave constitutional question with a great deal of diffidence. But I do not approach this Bill with any such diffidence, nor do I offer any apology for the remarks I have to make upon it. Seeing the confused mess in which we have been landed by the greatest legal authorities of the Commonwealth, I think that the attitude of the layman to the lawyer in these matters should be one of the greatest disrespect. That is my attitude to the lawyers as a body when I consider that the highest legal talent, not only in this country, but in the old country, has landed us in our present position ; and now, after they have all dealt with the subject, we have only confusion worse confounded. We had the advantage at the Conventions of the combined wisdom of the highest legal authorities of the Commonwealth. Then all the legal talent in Australia offered advice, and in some instances impertinent advice, to the House of Commons and the British authorities when passing our Constitution Act, which, as we were properly reminded by Senator Symon, is an Imperial enactment. Then we had all the legal intellect of the Judges of the States Courts focussed upon the question for a considerable time. They arrived at one conclusion. The matter came before the High Court, who arrived at another, and then it went before the Privy Council, who arrived at a third. In the circumstances, what respect can any one have for the consistency or continuity of a legal opinion on this or any other question? I listened for three hours to a dissertation upon these Bills ‘from another lawyer, in the person of Senator St. Ledger, and I have to confess that I was then in a greater fog than I was before, because the honorable and learned senator made the matter as- clear as mud. These are some reasons why 1 feel no diffidence as a layman in approaching the consideration of this question. I believe that an ordinary intelligent layman is as capable of offering a valuable opinion upon this or any other legal matter as is any lawyer. No matter what question is raised, we can find an equal array of legal talent on either side of it prepared to argue till all is blue that the other fellow is wrong. Divesting the question of all legal quibbles and technicalities, it will be admitted that this Parliament is not competent of itself to enact an amendment of the Constitution. If there is a defect in the Constitution, it is mere surplusage on the part of this Parliament to try to amend that defect in the way here proposed. We are being asked now merely to affirm what we think the Constitution ought to be, but that will not make the Constitution any different from what it is. I agree with Senator McGregor that, . instead of passing tinkering legislation of this kind, we should go straight to the point and amend the Constitution. It will be said that in order to do that we must wait for three years, until there is a general election, but we need not do so if we are prepared to pay the cost of a referendum this year, which would probably not amount to more than ,£40,000, and which I believe would be money well spent, since it would probably save us three times that amount in actual cash, by preventing the enormous litigation with which we are likely to be faced should the course proposed by the Government be adopted. It would also be of great value in putting an end to the heartburnings and jealousies arising between the Commonwealth and the different States. The Government recognise that in this matter they are in a hole, and the legal authorities of the Commonwealth are of the same opinion. While with the most cheerful lightheadedness they acknowledge that we can do nothing, they say, “ Let us try to do something.” I do not want to be placed in any such ridiculous position. When we are faced with a difficulty, we should grasp the nettle with courage, and it will not sting us at all, but if we go on tinkering with it in this manner, we shall be liable to get innumerable stings. It is proposed by these two Bills to do something which one at least of our judicial authorities has thrown a grave doubt upon our ability to do. Mr. Justice Higgins, of the High Court, in, delivering his judgment in the case of Flint v. Webb, as reported on page 86 of the Commonwealth Law Reports, vol. 4. (1907), said -
As to the ‘other suggestion, that the Federal Parliament may make its grants of salary subject to the rights of the States to tax them, I merely refer to it, because I do not at present: want to be committed to any definite view on the-
Subject. At present I cannot see how, if anincome tax upon the salary of a Federal servant is made invalid by the Constitution, the Federal Parliament can alter the Constitution by making, the income tax payable.
That was the deliberate opinion of Mr. Justice Higgins, and is as much entitled to respect as that of any other man I know of in the Commonwealth. Yet the Commonwealth Government rush in where that Judge says he can see no light, crying- “ Here is a ready-made remedy, apply the-‘ plaster in the shape of this Bill, and theailment will disappear.”
– Mr. Justice Higgins was. in the minority. The Chief Justice said that a Bill similar to this would be useful, so that there is a conflict, as the honorable senator very properly says.:
– Where are we to look for light among all these legal luminaries, who are turning their gigantic intellects upon this vexed question? ‘They only land us in greater confusion than before. There is a simple way out of the difficulty, and the only objection to it isthat it will cost a little money. We should not shrink from that if it is necessary.
– Does it mean a little money or a little delay?
– The money will bewell spent in avoiding delay iri removing the heart-burning and bickering now existing between the States and the Commonwealth. If we do pass this Bill and the supplementary measure dealing with Commonwealth salaries, we shall still be in as bad a hole as ever.
– If this Bill’ stood over for two years more there would be no collapse of the Commonwealth.
– If we did pass theseBills, and the States claimed that the collection of income tax was entirely withintheir province, the State, of Queensland might say, “ Senator Givens has escaped long enough from the payment of income tax. We are entitled to a little from him now.” Supposing then they proceeded to demand income tax from me and I objected, as most people do object when their pockets are touched, they would sue me in a ‘local Court, claiming that it was entirely a State matter, and get a verdict. I would appeal to the High Court, who would support my contention that I should not pay. Then in another case the State might sue some other officer of the Federation in a State Court, which following the precedent set by the High Court in my case would give a decision against the State Government. They would then appeal to the Privy Council direct, and we should have the same confusion over and over again. I cannot see for the life of : me how these two Bills are going to alter the position. One tenth of the rOw would not- have been kicked up about this income tax question if it had not been that the State of Victoria, in her desire to get at. members of the Federal Parliament and Federal’ public servants doing work for the other States wanted to tax their “screws “ because they were here in Melbourne. The Seat of Government is situated in Melbourne for the time being, and will remain here for some time owing to a set of adventitious circumstances for which the Government of New South Wales are responsible, keeping us here against our will after we had selected a Capital site. Consequently, all the administrative officers have to live in Melbourne, and the members of the Commonwealth Parliament are located here for the greater portion of the year. The State of Victoria, egged on by some of the journals published here, wanted to make a grab while it bad the opportunity, and that was the cause of the outcry. I think, however, that there is an easy way out of the difficulty. I would first point out that the taxation of officers in the several States by means of income tax may be fraught with the greatest injustice. Two Federal officers of exactly the same status and classification, and performing the same work, may be stationed in adjoining States, which are divided by nothing more than an artificial line across a map. There is no division, between them in the Federal sense, but in one of those States there is a heavy income tax, and in the other none. The consequence is that the Federal officer in the one State is at a disadvantage, to the extent of the income tax he has to pay, as compared with the officer in the same class and doing the same work on the other side of that imaginary line.
– Will not the other officer have some other tax to pay ?
– I do not think so. As the Commonwealth is the authority which levies all duties of Customs and Excise, that form of taxation is- uniform in all the States. The principal taxation upon incomes of this kind is income-taxation, and taxation derived through duties, of Customs and Excise on what a man uses.
– The Federal officer in the State where income tax is collected is in no different position from the other citizens of that State.
– That may be so, but he may be removed by the Commonwealth in the course of departmental arrangements to-morrow, and another officer may be sent to take his place. Thus there would be constant change and uncertainty, and a palpable injustice might be done. The remedy I would suggest is that the Commonwealth should make good out of the Consolidated Revenue the amount of each officer’s income tax, and pay it to the State in which he lives. The States would then get that money practically into their hands, but it would be deducted out of the amount returnable to them by the Commonwealth, out of the surplus over and above the threequarters of the Commonwealth revenue to which .the States are constitutionally entitled.
– Why? It would be a Commonwealth expenditure.
– It would not be- new expenditure, except in the case of officers appointed to new services.
– That would depend upon circumstances.
– If I began to argue with a legal light on that point we might be here for a long time. We have ample surplus revenue over and above the threefourths which we are compelled to return to the States to enable us to do what I suggest. It is a simple way out of the difficulty, and would remove all the heartburning. It is proposed to tax the allowances of members of this Parliament as if they were salaries. I am utterly opposed to such an iniquitous proposal. It is proposed bv the Government, in the other Bill, to allow the State represented by a member to levy income tax on the full amount of his allowance, and, so far as I can see, the Bill will not prevent him from being taxed by two States. Any man receiving, as a fixed salary, either from the Government or from a private firm, an income equal to the allowance provided for each Federal member, is granted almost as much more for travelling expenses if he has to do as much travelling as Federal members have to da The net income of a person, and not his gross income, is the amount that should be properly subject to income tax. If a man is to be taxed upon what he has to spend in order to earn his income it is an unfair discrimination between him and other people in the community. A Federal officer receiving a fixed salary of £400 a year, which is the amount of the allowance paid to a Federal member, would be allowed full travelling expenses for every inch of travelling he did from one year’s end to the other. Even if he went from the Commonwealth offices in Spring-street to Spencer-street he would be allowed cab hire or tram fare, and if he had to be away from his home for a single day he would draw a guinea in expenses. But under this iniquitous proposal, even though a member of this Parliament may live 2,500 miles away from the Seat of Government, as I do, and have to leave his family there, or break up his home to bring them down here, it is proposed to treat his allowance for travelling expenses as if it was his netincome, and make him “ ante up “ on the whole ‘^400 as! though he had not o spend a single shilling in travelling. I never heard a more iniquitous proposal, and it was a cowardly surrender to an outcry by interested people outside for the Ministry to bring it down in that form. I do not object to pay income tax like any other individual in my State, but if I am compelled, in the interests of my State, and on its business, to be down here attending to mv duties, I object to pay it both in Victoria and in Queensland. I do not object to pay income tax upon ‘ my net allowance in Queensland, the State which I represent, but I object to paying it on an income which* I do not enjoy.
– All the Income Tax Acts take’ those points into consideration.
– The honorable senator can speak for his own State, but’ I doubt whether he has such a stupendous headpiece that he can remember every provision of every Income Tax Act in every State of the Commonwealth. In Queensland the income tax officer, if he is not satisfied with a man’s statement, will tax him up to the full amount he thinks he ought to pay, and the only remedy of the citizen is to go to law.
– That is in every Income Tax Act in the Commonwealth. It was in the English Act years ago.
– Just as I have the greatest disrespect for lawyers as a body, so I hold in the greatest contempt all old and musty precedents. ‘Because a thing is a thousand years old it may be no less; iniquitous. We are here, not to follow old and musty precedents, but to create precedents if we choose. I want a fair deal for everybody. If other people, such as Commonwealth servants or commercial’ travellers, are not asked to return their expenses as income, why should I be compelled to have my whole allowance for expenses, which is only a decent allowance for travelling, treated as income?
– The Income Tax Commissioner will give the honorable senator a fair deal, if he will let him.
– I doubt it. ‘
– This is not an Income Tax Bill. ‘,
– It is all provided for in existing Acts.
– I am trying to give reasons why I think it should be provided for ; why it is our business to see that our officers get a fair deal.
– It cannot be done in a Federal Bill ; at any rate, it ought not to be done.
– The honorable senator is entitled to be the judge of what he ought or ought not to do, and I claim the liberty of judging as to what ought or ought not to be done. Inasmuch as the Constitution Act does not call our parliamentary allowance a salary or an income,, and as it really is not a salary or an income, I do not think that that portion which is essential for my travelling expenses, and which I must necessarily spend in order to fulfil my duties, should be taxable as income. Therefore, I am opposed to that proposal in the Bill, and will endeavour to defeat it. I am inclined to agree that we are merely engaged in a work of supererogation in dealing with these Bills ; if we are to take the testimony of the highest legal authorities in the land, amongst whom I include Senator Symon, we are assured that the Bills are not worth the paper on which they are written ; that, at the very utmost, the Judiciary Bill is only a reaffirmation of what we think the Constitution ought to provide, and, as I pointed out before, it will not assist one iota to alter the Constitution. It seems to me that the measure, if passed, will be ultra vires. For these reasons, I am in a quandary as to what I ought to do. I wish to see the States get a fair deal. I also want to see every citizen in a State pay his full quota to its Government, but, above all things, I desire to uphold the Commonwealth authority and the status and dignity of the High Court. If I can be assured that the passing of the Bill will assist in any way to uphold the honour, the dignity, the prestige, and the power of the High Court, I shall vote for it, but, at the present moment, I am not fully assured in that regard. In fact, I am rather assured that we cannot do that except by a referendum and an alteration of the Constitution. I regret more than I can express that the original proposals made at the Convention by Senator Symon, and which I know from personal knowledge he did his very utmost to defend when the Constitution Bill was being enacted by the Imperial Parliament, were not adopted. I think that all Australia has cause to regret that those proposals were not adopted. If they were the law, we should not be in the mess in which we are to-day. I hope that something will be done which will get us back to that position, enable us to follow out our destiny without having reference to a Court beyond the water, and assist us to build up a High Court which will be satisfactory to the people throughout the Commonwealth, and fully capable of adjusting all differences between the Commonwealth and the States.
– I am sorry that any little misunderstanding should have occurred to cause a degree of friction in regard to an adjournment of the debate. Senator McGregor must know that at all times I am anxious as far as possible to yield - as it is my duty to do - to any general expression of opinion when honorable senators desire further time for the consideration of a measure. The Bill before the Senate was introduced on the 12th July. In the meantime, there have been several adjournments of the debate, and these were all protested against. I was aware that there was, as the division list shows, a number of honorable senators who were desirous of going on this evening, and who, like my honorable friend, were ready to speak. In the circumstances, I had no alternative but to call for a division. Perhaps my honorable friend does not know that when Senator Symon resumed his seat shortly before the dinner adjournment, the motion for the second reading of the Bill would have been put but for an honorable senator rising to speak. I hope that the various speeches which have been delivered have assisted towards an elucidation of the question at issue. I do not deny its complexity. But I say that every care has been exercised in regard to the provisions embodied in the measure and in establishing, so far as research can do, their validity if passed. I want my honorable friends to realize that the two Bills have not been introduced in a haphazard way. Apart from the AttorneyGeneral, we have in his Department officers of great experience, who, with other members of the Government, have given thoughtful consideration to nearly every objection, certainly to every fundamental objection, which ‘has been taken by my honorable friends. I am prepared to acknowledge that we are indebted to Senator Symon for a very informative speech, and also for the interesting way in which he disclosed to us some of the more historical aspects of the case. Of course, it is with the greatest respect that I differ from my honorable and learned friend. He will recognise at once that there is the most ample room for a variety of opinions.
– There is no doubt about that.
– We have introduced the Judiciary Bill on no light authority. I have been reproached by Senator Symon -
– No, not reproached.
– I have been taken to task by my honorable and learned friend for pointing out that we have the authority of the High Court for introducing the measure.
– No, the Government have only an obiter dictum.
– I admit that we have the authority of an obiter dictum. But when gentlemen of great responsibility, such as the members of the High Court Bench, through the Chief Justice, with one Justice dissenting, suggest this proposed legislation as a way out of the difficulty, that in itself, I contend, is a guide to Parliament in its action. I have also another authority, to which I regret that my honorable and learned friend did not refer, and to which I shall be obliged to refer a little more fully. I have pointed out that to all intents and purposes the United States were practically met with the same complex problem at the outset of their national life.
– How could they have been so met when they never had a Privy Council ?
– I am talking about general principles.
– There is no analogy.
– In that country, when the States were met with an adverse decision in the case of McCulloch v. Maryland, in which the same principles were involved, the Congress resorted to exactly the same method as we are proposing. In my opening speech I quoted the legislation which was introduced and passed to meet the difficulty. It has been tested in several cases from time to time, and held to be perfectly valid.
– But we shall still have the Privy Council to deal with.
– My honorable friend fs making a mistake. Senator Symon and other speakers have said that the Judiciary Bill is futile. Perhaps, so far as some of my honorable friends are concerned, the attempt may be unsuccessful ; but, nevertheless, I shall try to show that we are acting carefully and within the powers of the Constitution.
– Does not the Minister think that this will depreciate the States Courts?
– I shall try to deal with the points one after another if I can. My honorable and learned friend suggests that the Commonwealth Salaries Bill is ultra vires. Of course, if his contention is true, we are wasting time ; but I hope to show my honorable friends that there is a very valid constitutional reason for the exercise of our powers under the Constitution as we propose. Senator Symon suggests that the only alternative is an amendment of the Constitution. There is no doubt about that being a complete way of dealing with the question. There is no doubt that if there were no other way available that would be the proper course to follow. But I do not think that we are justified in resorting co that step when we have the right under the Constitution to do what we are now attempting to do. My honorable friends cannot get away from the fact that an alteration of the Constitution is a serious matter. It is serious from the stand-point of the expense, the delay, and the friction which will have been caused within the States by reason of the decision of the High Court.
– But in the session of 1906 the Government did not think so, for they tried to pass three amendments of the Constitution.
– That was prior to a general election.
– The Government acted then with a light heart.
– My honorable and learned friend can hardly make that reproach against us, when I remind him that the Judiciary Bill is practically the first measure of this session. It must be remembered, too, that, during the session of 1906 there were very grave and important matters which occupied the close attention of Parliament. In those circumstances this measure was crowded out.
– Besides, I do not think that at that time the Privy Council had given its judgment.
– For the moment, I do not remember the date of the judgment. I shall now try to deal with some of the main points which have been raised. I have pointed out that, as against an amendment of the Constitution, we have to consider the question of the expense, the delay, the irritation, and the loss of revenue to the States. Senator Symon said that in exercising our powers under the Constitution, as Parliament had the right to do, in a Judiciary Bill, it thereby disfigured the Constitution Act.
– No, it disfigured the status which was intended to be given to the States Courts under the Constitution.
– I shall take it in that way. The Judiciary Act was the subject of very careful research and consideration. What was done was done after great deliberation. By virtue of our constitutional powers we have the right to create, first, the High Court, which we have done. We have also the right to create our own Federal Courts. But we have the additional right, according to the terms of the Constitution, of utilizing the various States Courts as part of the Federal Judicature, for the purpose of exercising Federal jurisdiction. What we did by the Judiciary Act was, in terms of section 77 of the Constitution, to divest them of jurisdiction, so far as Federal matters were contained in the Constitution itself - namely, contained in sections 75 and 76 - and to invest them with Federal jurisdiction. In doing that, what we said was that when we were investing the States Courts with Federal jurisdiction we had the right to invest them with it upon our own terms, namely, that there should be a right of appeal only to the High Court itself.
– From the Supreme Courts of the States. That is the provision which Mr. Justice Hodges said was ultra vires.
– Yes. By section 38 of the Judiciary Act we gave exclusive jurisdiction to the High Court in certain matters. As regards the balance of matters contained in sections 75 and 76 of the Constitution, by the 39th section of the Judiciary Act we gave Federal jurisdiction to the States Courts, subject to the limitations as to appeal to which I have referred. The manner in which we did that was no doubt the subject of consideration by Mr. Justice Hodges, who held that we had no right, first of’ all, to divest the States Courts of jurisdiction, and then practically to invest them with new jurisdiction. The Privy Council appeared to take the same view. I hope later on to refer to that point more fully. But I point out that when we -passed our ‘ Judiciary Act we had no idea whatever, and no one ever suggested, that we were attempting to humiliate the States Courts. I do not think that my honorable and learned friend Senator Symon, who gave us the benefit of his assistance, suggested that at any time.
– I introduced a Bill two years ago to rectify it.
– I am referring now to the discussions on the Judiciary Act when it was before the Senate.
– The Bill which I introduced was one to amend -the Judiciary Act.
– My honorable friend did introduce a Bill as a private senator two years ago.
– To prevent the High Court from perambulating.
– That was one of the effects of the measure. The point that I am arguing is that it has been suggested that we have attempted by our Judiciary Act to humiliate the States Courts. I claim that we have done nothing of the kind. In the exercise of our Federal jurisdiction, we have done with the Slates Courts only what we were justified by the Constitution itself in doing, and never by the States Courts themselves, and never - speaking subject to correction - by any honorable senator when the Bill was before Parliament, was it suggested that we were humiliating the States Courts. I am verv sorry indeed that my honorable and learned friend saw fit to accept certain incautious words used by my honorable friend Senator McGregor to the effect that we were seeking to secure the supremacy of the High Court in a manner that was not straightforward. . I ask, “ What advantage is it to the Government to do anything in this connexion to achieve the great end in view by anything but a straightforward method ?
– What I meant was that the object of the Government is to render the decisions of the High Court final, and to prevent appeals from the Supreme Courts of the States. If that be the object, do it directly by an amendment of the Constitution, restoring the Constitution tq the position in which it was when it left the Convention, and do not do it by depriving the Supreme Courts of the States of their right to adjudicate in these matters.
– I ask the Senate to do. nothing whatever but what we are authorized to do by the Constitution itself ; and if honorable senators will bear with me for a little longer, I will try to show them that the Constitution enables us to secure that finality that we all seek to achieve, and to rehabilitate and reestablish the High Court. We are called upon to exercise every power which the Constitution confers, and it is unreasonable to suggest that when we are only exercising the powers of the Constitution our doing so will cause humiliation to any other body. We are simply doing what we are authorized to do.
– Why take this jurisdiction away from the States Courts ?
– Because the Constitution says that we can do it.
– It does not say that we must do it. Why do it?
– As it is the aim and spirit of the Constitution to secure finality in our own High Court, if the Constitution can, as I have pointed out, provide -a means whereby that can be done, why should we not exercise it? Are we not justified in exercising every power committed to us by the Constitution? In section 76 of the Constitution it is provided that -
The Parliament may make laws conferring original jurisdiction on the High Court in any matter (i) arising under this Constitution or involving its interpretation.
I hope honorable senators follow that. We have been given, by section 76, power to make laws conferring original jurisdiction upon the High Court in any matter arising under it or involving its interpretation. By the section 30 of the Judiciary Act we exercised that power, and conferred on the High Court original jurisdiction in regard to matters arising tinder the Constitution or involving its interpretation. We are given power by the Constitution expressly to make laws conferring original jurisdiction upon the High Court. The next thing that we did in our Judiciary Act was to exercise certain other powers which were conferred by section 77 of the Constitution. According to that section - .
With respect to any of the matters mentioned in the last two sections the Parliament may make laws.
The last two sections referred to are sections 75 and 76, one of which - section 75 - confers original jurisdiction in regard to five important matters upon the High Court. In pursuance of that section, and of paragraph II. of section 77, we, by section 38 of the Judiciary Act, gave exclusive jurisdiction to the High Court in regard to some of the matters mentioned in section 75 of the Constitution. Then, as regards the balance of the matters contained -in sections 75 and 76, we, by section 39 of the Judiciary Act, took away from the States Courts jurisdiction and ‘substituted in its stead Federal jurisdiction. Now what are we doing by this Bill? Honorable senators will see that by clause 2 we simply provide that -
In matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States;- so tha,t the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of appeal from an inferior Court.
We give exclusive jurisdiction to our own High Court in regard to matters arising under section 74 of the Constitution - that is, constitutional matters inter se.
– Who is going to determine when a constit’utional matter arises ?
– I will come to that point by-and-by, but I must proceed step bv step with my argument. By clause 2 of the Bill before us we propose to give exclusive jurisdiction to the High Court in all matters coming under section 74 of the Constitution ; and we exercise that power in pursuance of section 77, paragraph II., which says that, with respect to any matters mentioned in the last two sections, the Parliament may make laws -
Defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States.
I hope that my honorable friends realize that, so far, we have simply followed the wording of the Constitution itself in carrying out the powers conferred upon us. But then it may be said that difficulties may arise, as in the case of Webb v. Outtrim. We meet them by clause 5 of the Bill providing that -
After section 40 of the principal Act the following section is inserted - 40A (1) When in any cause pending in the Supreme Court of a State there arises any question 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, it shall be the duty of the Court to proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed to the High Court.
– But suppose the Court decides to proceed with the case?
– In other words, if any question arises in the course of any procedure under section 74 of the Constitution, then, by virtue of this measure, that question will be at once removed to the High Court.
– How can it -be? Who is to decide that such a question has arisen? It cannot automatically decide itself.
– Undoubtedly. If as in many other cases which may be brought to mind a question is bond fide raised as to constitutional powers, then automatically ‘ a removal takes place.
– Then it is left to the defendant to remove any case he likes by simply pleading that it is a constitutional case?
– Take the procedure in an inferior Court when a question of title arises. If that question of title is bond fide raised the jurisdiction of the Court at once ends.
– Somebody must decide the ‘bona fides first.
– Undoubtedly.
– The inferior Court must decide that.
– If it is bond fide raised.
– Suppose the inferior Court says that it is not bond fide raised. What becomes of the case then ? It would not be removed.
– Section 5 of the Constitution provides - and honorable senators will remember that the responsibility, is thrown on the States Courts of observing the Constitution -
– They have nothing to do with it. It is automatically removed.
– Perhaps the honorable and learned senator will permit me to continue. Section 5 of the Constitution provides that -
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State ; and the laws of the Commonwealth shall be enforced on all British ships - and so on.
– I think we shall have tb amend that section.
– My honorable friends will see that’ unless they are going to attribute mala fides to our ‘Judges-
– No, no.
– Unless they are going to attribute mala fides to our Judges, there can be no doubt that those Judges, if a question of constitutional powers was raised bond fide in a case, would observe the Commonwealth law which would automatically remove the action to the jurisdiction of the High Court.
– Suppose the defendant raises the question of mala fides t
– Then it would be for the Court to say.
– Which Court ?
– If the Judge of a Supreme Court is not satisfied that the question is raised bond fide, I have a sufficiently high opinion of the Judges of our Supreme Court–
– That is not my point. I suppose that the defendant raises the question of mala fides.
– If he did, no doubt the case would go on. But my honorable and learned friend must leave it to the Judges of the Court, who will exercise an honest, and, I trust, a judicial judgment in a matter of this kind.
– As the Victorian Court did?
– As Mr. Justice Hodges did.
– I am not for a moment imputing anything to Mr. Justice Hodges in this connexion, but I repeat that if a question is raised bona fide, as to the constitutional powers, then at once the case must go to the High Court.
– It cannot go automatically because, as the honorable and learned senator admits, some one must say whether the question is raised bond fide or not.
– By virtue of this Bill, it would go to the High Court.
– Only if the inferior Court decided that it was bond fide raised.
– Only if the State Court so decided.
– I also point this out as something which must be borne very carefully in mind. If the AttorneyGeneral of the Commonwealth or the AttorneyGeneral of a State makes an application for the removal of any pending action to the High Court, an order may be made by the High Court for its removal. I will go further and say that if any person makes out a just case, and shows special reasons why a case should be removed to the High Court, it is competent for the High Court to order that it shall be so removed.
– In those circumstances the High Court is constituted the judge of both bona fides and mala fides.
– In those circumstances it undoubtedly is. So that there is first of all to be considered the honesty of the
Supreme Court Judge, and secondly, if there is any doubt in the matter there is the power of the Attorney-General of the Commonwealth, or the Attorney-General of a State, or any person upon showing good cause, to secure an order from the High Court to have a case removed. This power of removal is simply incidental to the appellate jurisdiction. It is incidental to our exclusive jurisdiction given by section 77 of the Constitution. My honorable friends will see the complete manner in which we provide that cases invoking the Constitution shall go to the tribunal to which it was originally intended they should go, namely, the High Court.
– Might 1 ask the honorable and learned senator if he has said anything to show that what has already happened may not happen again? Mr. Justice Hodges may again find that a case before him does not raise the constitutional question, the Privy Council may agree with him, and the High Court may differ from the Privy Council.
– That might happen.
– I have already pointed out first of all that if a question of the constitutional powers inter se is bond fide raised, the Judge of the Supreme Court would himself order it to be removed to the High Court.
– Suppose he differs from the High Court, and says that the question raised is not a constitutional question, as Mr. Justice Hodges did?
– Then I have already told my honorable friend that it would be competent for the Attorney-General of the Commonwealth or of a State to make an application to the High Court and secure an order for its removal, and it would also be competent for any party to the action, or any other person, on showing good cause, to secure such an order for removal.
– Is the AttorneyGeneral then to be the judge of the matter?
– No ; it is the High Court that is to be the judge, and that i« the object we have in view.
– That would not prevent the appeal going on to the Supreme Court of the State.
– Certainly it would, where a question of constitutional powers was raised.
– But if the State Court decided that no such question had been raised, the appeal would go to the Privy Council, and an application to the High Court would not prevent that happening.
– My honorable and learned friend is assuming thai Parliament having by this new legislation made provision in the terms of the Constitution for the removal of these particular cases in the circumstances I have referred to, the Supreme Courts of the States will not observe the law, although they are commanded to do so by the terms of the Constitution.
– I quite agree that that is so where it is decided that a constitutional question is bond fide raised > but what happened before may happen again.
– My answer is the one I have already given, that by the terms of this Bill that cannot happen again.
– Certainly it can. I wish only to assist the honorable and learned senator, in view of the Bill going into Committee. He has himself admitted that the constitutional question must be bond fide raised. If it is raised, somebody must decide whether it isbond fide or not, and if Mr. Justice Hodges, or any other Judge, decides that it is not bond fide raised, we shall be ir» exactly the same position as before. Senator BEST. - Not at all; that is where my honorable and learned friend is. wrong, if he will forgive me for saying so. I say that if the question is bona fide raised, the Judge of the Supreme Court must, and will, see that the case is sent on to the High Court.
– I agree with that statement.
– If it is not bond fide raised, it will be competent for the AttorneyGeneral of the Commonwealth or of a State to secure an order, as of course, for its removal, or it will be competent for any party to the suit to make application to the -High Court for such an order, and on good cause shown, an order will be made by the High Court commanding that the case shall be removed to the High Court.
– Notwithstanding the decision of the Judge of the State Court ?
– Undoubtedly. ‘ It is in the exercise of the terms of the Constitution, which gives us exclusive power if we choose to exercise it, and I say that if we. had exercised this exclusive power in section 38 of the Judiciary Act, the case of?
Webb v. Outtrim could not have been sent to the Privy Council at all. Senator Millen was the first on the other side to raise the question as to who was to decide what are questions inter se. In this matter, I think that my honorable friends opposite are magnifying the difficulty unconsciously, because the answer is so obvious.
– Does the honorable and learned senator say that it is obvious ?
– Yes.
– Then either the Privy Council or the High Court must be very dense. One tribunal said that it was obvious that a certain matter was a constitutional matter,and the other said that obviously it was not.
– The honorable senator will pardon me. The High Court did hold that in the case Webb v. Outturn, questions inter se were involved, but, although I have looked carefully through the judgment of the Privy Council, I find no evidence whatever that they decided anything of the kind.
– They must have held that the case was rightly before them under section 74.
– I do not think that they held anything of the kind. All that they decided was that Mr. Justice Hodges had held that the Commonwealth Parliament had not the power to take away the jurisdiction under sections 75 and 76, and substitute Federal jurisdiction in its stead, with the right of appeal. In that case, an appeal was permitted from the State Court to the Privy Council, and all that the Privy Council held was that Mr. Justice Hodges was righ t in the view he took that the Federal Parliament had not the power of divesting and then investing; but not one word appears in the judgment of the Privy Council to show that they decided that these were not questions inter se. That is the position which my honorable friends opposite must face. In this connexion, I point out as to section 39 of the Judiciary Act, limiting the right of appeal so far as the exercise of Federal jurisdiction is concerned, that four of the Judges of the High Court held that the exercise by Parliament of that power of limiting the right of appeal was absolutely sound and good in law. I am at a loss to understand why honorable senators should be anxious to get away from the judgment of men in whom we have confidence, and who, by their legal erudition and research, have upheld the dignity of Australia and the best traditions of the English Bench in our own High Court. These men held, as I have explained, that this Parliament was right in exercising its right of limiting appeals in the way it has done. The Privy Council thought otherwise, but as to questions inter se arising the point was not dealt with by the Privy Council at all. I have already expressed the disappointment I feel in this matter that the High Court, having decided that in these income tax cases questions of constitutional powers inter se did arise, their judgment should not have been accepted as the Australian law, and respected accordingly. In leaving this Bill for the present, I will only say that we have not attempted to touch section 39 of the Judiciary Act, because it was not necessary for our purpose to do so, since we are quite content with the High Court judgment in that regard. But what we have done is to exercise other powers, and secure exclusive jurisdiction, which we are enabled to secure under section 76 of the Constitution, to which I have already referred. I ask my honorable friends opposite to look for a moment at section 74 of the Constitution.
– Is the honorable and learned senator going to deal with the question of appeals from a single Judge?
– I have not come to that yet.
– I ask the question because the honorable and learned senator proposes to refer to section 74 of the Constitution.
– I ask my honorable friends opposite to read that section. They will have no difficulty in gathering from its spirit, at all events, that the anxiety of Parliament was to secure the finality of our own High Court. The section reads -
No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question -
I ask my honorable and learned friends opposite to mark the word “decision.” It has been the subject of very great contention, and also of a judicial interpretation. I point out that a decision does not mean a mere judgment in a case, but means any judgment which has taken place on any particular question.
– Surely it means the judgment on the point?
– No, if my honorable and learned friends will pardon me. I refer them to page 52 of the published judgments of the High Court. I have not had an opportunity to very carefully read those judgments, but in glancing through them in the limited time at my disposal I came across this important passage in the judgment delivered by Mr. Justice Isaacs -
The decision of the High Court upon any question -
Honorable senators will observe that His Honour was quoting the words which appear in section 74 of the Constitution - in that section means in my .opinion what the Court decides to be the law with regard to that question.
So that any decision on any particular question which may be regarded as a preu cedent laying down the case law on the subject comes within the meaning of the word “ decision “ in section 74 of the Constitution. Consequently., with that interpretation honorable senators will see that section 74 says -
No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question - mark these words - howsoever arising -
Senator Symon will see, in the light of what I have already said, that if it was a question “howsoever arising” - a mere question that occurred in any case - it would inevitably, by the terms of this Bill, if it came before the Supreme Court, find itself ultimately removed to the High Court. Section 74 goes on - as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.
Then the certificate has to follow. In this connexion Senator SymOn sought to differentiate between our High Court and the Supreme Court of the “United States. There may be differences, but there is no difference i’n this connexion. While it is possible that the High Court does not possess the whole of the powers of the Supreme Court of the United States, although it does possess nearly all of them, it is clearly appointed by this section as the Court to interpret questions as to the limits inter se of the constitutional powers of the Commonwealth and the States, or of the States as between themselves. That is the important factor that we want to make absolutely certain of. Those are the terms of the Constitution which I have already referred to, which enable us to carry out section 74 in its full meaning and in accordance with its spirit. I come now to the Commonwealth Salaries Bill, which my honorable friend Senator Symon said would be held to be ultra vires. That was his general criticism of the measure, but he also went on to doubt the capacity of the Senate to entertain it at all, because he suggested that it was a taxing measure. I submit with, great respect, that there is not one trace of a taxing measure about it. It is a declaratory measure. All that it attempts to say is that if the States choose to exercise their rights of taxation under certain circumstances, then they are at liberty to do so ; in other words, that we are not going to interfere. But as for putting a tax on anybody by this Bill, we do not attempt anything of the kind. We simply say that if the States choose to exercise taxation on the salaries of officers of the Commonwealth, it shall not be taken -
To be an interference with the exercise of any power of the Commonwealth, or to be inconsistent with any Act by or in pursuance of which the salary is fixed or made payable.
– Without that Bill would they be liable or not?
– My honorable and learned friend knows that as the law now stands - I want to impress this upon honorable senators, because it will show them their responsibilities - if the Commissioner of Taxes of Victoria were to sue an officer of the Commonwealth, and the Supreme Court followed the Privy Council, as no doubt it would, it would then be competent for the officer to appeal to the High Court, when he would be held to be immune from taxation. If, on the other hand, the Supreme Court followed the High Court, it would-be competent for the Commissioner of Taxes to go to the Privy Council, which would declare that the officer was subject to taxation. That is the difficulty which we are in, and which we have to overcome with the least possible delay. It is with that object that the Commonwealth Salaries’ Bill is submitted.
– The Bill, as it stands, simply asserts a negative.
– Does it not impose a liability?
– If that Bill is passed the States will be at liberty, subject to certain restrictions, to impose taxes Upon. Federal officers. My honorable friend also raised to that Bill the objection that it humiliates the High Court by declaring the Privy Council decision to be right. I submit that it does nothing of the kind. All that it says is that we acknowledge the law’ as laid down by the High Court that the State has no right to tax, but we claim, as Senator Symon well argued, that that would create a privileged class. Therefore, so that a privileged class may not be created, we bring in a Bill, which practically foregoes or waives the Commonwealth exemption which was established by the High Court.
– It is not a Commonwealth exemption. It is an individual exemption.
– No, it is a Commonwealth exemption, because the High Court, in their anxiety to protect all Commonwealth agencies, were fearful that this particular taxation by the State might interfere with the transaction of Commonwealth business and the free exercise of Commonwealth powers, and, in their jealous regard for those powers, they held that Commonwealth officers could not be so taxed. We are not disputing their law at all, but we are waiving the Commonwealth exemption which was thereby created. I have pointed out, first of all, that we have the direct authority.-, of, and, indeed, the suggestion, of the High Court” for this legislation. I am sure honorable senators will not lightly disregard that feature. What we seek to declare by the terms of the Salaries Bill is that . where the Federal Legislature authorizes or permits State legislation it cannot be fettered or controlled by it. I do not feel justified at this late hour in quoting passages at length, as I did in my opening remarks on the 12th instant, to show the difficulties that the people of America were met with in this connexion, and to point out that, when by the decision of Chief Justice Marshall, in McCulloch v. Maryland, certain Commonwealth agencies were relieved of taxation in precisely the same circumstances as exist here now, the Congress of America enacted a law similar to what we are now proposing. My authority for this Bill is, first of all, the authority of our own High Court, and, secondly, what was done under the American Constitution, which, to all intents and purposes, is the same as ours. That- same law as enacted by Congress has been tested year after year in the- Courts, and I have set forth various authorities showing where it has been tested. The last case cited by me was in 190 1. It was there referred teas sound and good law, on the general principles then laid down. Senator Millen said that it would still be competent for the Victorian Commissioner of Taxes totax Federal members under that Bill. Of course honorable senators know the limitations of the Bill. I know that it is a. controversial question whether the allowancesof members of this Parliament should be taxed, but it will no doubt be fully discussed in Committee, and possibly amendments may have to be considered in that connexion. The point that Senator Millen made was, that .it would still be competent for the Commissioner of Taxes for Victoria to seek to recover from Federal members taxation on the income earned in Victoria. I have alreadypointed out that if that was attempted the Supreme Court of Victoria would, no doubt, follow the decision of the Privy Council, and then, by going to the High Court, we should be relieved.
– The honorable senator admits the prospect of further litigation, then ?
– It is quite impossible to pass an Act of Parliament to say that there shall be no litigation, but persons are not going to litigate without some reasonable expectation of success. The answer to Senator Millen’s contention is that if any attempt of the kind is made this -Bill automatically removes the case to the High Court, and protection is thereby given. I should have liked to deal more fully with the question of implied power. Senator Symon referred to the implied powers of America, as established by case law, the value of which no one can deny.
– That question is not in issue now.
– It is hardly in issue, and therefore I shall not deal with it at this stage, further than to say that there can be no reasonable doubt within this Senate as to the implied powers under the Constitution, which are essential to its effective carrying out. I have endeavoured to show honorable senators that, in this Bill, we are simply exercising constitutional powers. We are called upon to exhaust our Constitution before attempting any amendment of it.
– Will the honorable senator be disposed to introduce any amendment with regard to the question of appeals from a single Judge of a State Court direct to the High Court?
– I shall be perfectly frank with my honorable friend. That question has not been considered by the Cabinet, and in those circumstances I do not feel justified in making any statement on it. But, of course, I cannot ignore the fact that it has been referred to so strongly and ably by several honorable senators. I submit that the Bills now before the Chamber have for their object the establishment of finality on the part of the High Court, that we are doing this in terms of the Constitution, and that we are called upon to exhaust our Constitution first.
– Knock the Privy Council out - that is all we want.
– I contend that we can do that in terms of the Constitution, and we do it by this Bill. I have shown the authority that we have for waiving the Commonwealth exemption, to which I have already referred, and in those circumstances I commend these Bills to honorable senators in the performance of a grave and important public duty for favorable consideration, feeling conscious that they will carry out their object.
– Before the question is put, may I ask whether we shall divide upon the Bills together or separately ?
– We shall take the division on the Judiciary Bill first, and then go into Committee on it. After that, of course, the other Bill will come on in the usual way.
Question - That the Bill be now read a second time - put. The Senate divided.
AYES: 18
NOES: 14
Majority … … 4
AYES
NOES
Question so resolved in the affirmative.
Bill read a second time.
In Committee :
Clause 1 agreed to.
Progress reported.
page 878
Order of the Day called for the resumption of the debate, adjourned from 12th July (vide page 500) on motion by Senator Best -
That the Bill be now read a second time.
Question put. The Senate divided.
AYES: 19
NOES: 13
Majority … … 6
AYES
NOES
Question so resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Progress reported.
page 879
Motion (by Senator Best) proposed -
That the Senate do now adjourn.
– I desire to ask the VicePresident of the Executive Council a question in regard to a measure in which most honorable senators have taken considerable interest, and that is whether he can fix a date that will be convenient to him on which a determination may be arrived at regarding the Kalgoorlie to Port Augusta Railway Survey Bill?
– I very willingly fall in with my honorable friend’s suggestion - which, of course, can Only be carried out with the good-will of honorable senators - that a date should be fixed for taking a division on the Bill. I would suggest that the division should take place not later than 3 o’clock on Friday week.
– Not before Friday week?
– Not before Friday week, but not later than 3 o’clock on that day.
– On the Friday ?
– At any time between half-past 10 o’clock and 3 o’clock on that day.
Question resolved in the affirmative.
Senate adjourned at10.30 p.m.
Cite as: Australia, Senate, Debates, 24 July 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19070724_senate_3_36/>.