4th Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
– I wish to ask the Minister representing the PostmasterGeneral, without notice, whether he has any further information to give to the Senate with regard to the contract for the construction of wireless telegraph stations at Sydney and Fremantle? Has the contract for Sydney been signed, and has any settlement been made in regard to the proposed Fremantle site?
– I ask the honorable senator to give notice of his question.
-That is a farce at this time of the session.
– I think that that remark was unwarranted. Does the honorable senator expect me, as the representative of the Postmaster General in the Senate, to have at my. fingers’ ends-
– I wish to ask the Minister representing the PostmasterGeneral, without notice, whether he is prepared to table the correspondence with reference to the Vancouver mail service?
– As I have given a. promise with reference to the subject, it will be carried out, as far as I am concerned.
– Will the promise be carried out to-morrow? I understand that there are to be only two more days of the present session.
– As soon as possible.
asked the Minister of Defence, upon notice -
Wales debarred from applying for positions as Area Officers?
– The answers to the honorable senator’s questions are as follow : -
In addition, I may inform the honorable senator that the responsibility in reference to Junior Cadet officer’s being debarred from applying for positions as Area Officers is on the Education Department of New South’ Wales, which refused to give the Junior Cadet officers of that State who are employed in the Department the necessary leave to attend the Albury camp. The Commandant, therefore, did not recommend for appointment as Area Officers any of the Junior Cadet officers of New South Wales.
asked the Minister representing the Minister of Home Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
– I move -
That there be laid on the table of the Senate a return showing -
The number of members of the Parliament who declined to draw from the Treasury the increased allowance to members at the time such allowance was increased from£400 to £600 per annum?
The names of the members who so declined to draw the amount of the increase, and the period during which each of them so declined to draw it respectively?
How many of such members authorized the Treasurer to pay the amounts which they declined to draw into the Consolidated Revenue?
The names of the members who so authorized the. Treasurer, and the total amount so paid into the Consolidated Revenue on behalf of each of them respectively?
The number and names of the members who at first declined to draw the amount of the increase on their allowance and subsequently drew the whole amount of such increase that was lying in abeyance in their names at the Treasury?
The dates on which such amounts were so subsequently drawn by each of such members respectively, together with the total amount so drawn by each member?
By leave of the Senate, I have amended questions 2 and 4 so as to make the information obtained more complete than it would otherwise be.
Question resolved in the affirmative.
– I have to lay upon the table of the Senate the following report of the Standing Orders Committee : -
On 16th November, 1910, the Senate passed the following resolution, viz. : -
Resolution. “ That the Standing Orders Committee be instructed to consider the desirability of submitting a Standing Order, for the approval of the Senate, providing that any motion disapproving of a regulation shall be regarded as business of the Senate and shall take precedence of Government Business or Private Business.”
Your Committee met and considered the proposal, and now recommend for adoption the following New Standing Order : - “ A motion disallowing a regulation shall take precedence of Government and Private Business.”
Motion (by Senator McGregor) agreed to -
That the report of the Standing Orders Committee and the recommendation be adopted.
Message received from the House of
Representatives, intimating that it had agreed to the amendment made by the Senate on the amendment of clause 19 made by the House of Representatives in this Bill, and did not insist upon the amendment inserting new clauses 21 and 22, with which the Senate had disagreed.
– I move -
That this Bill be now read a second time.
I am sure that honorable senators will bear with me’ to a considerable extent in submitting this measure, seeing that I do not claim to belong to the legal profession, nor to be even what is commonly called “ a bush lawyer.” But sometimes it falls to the lot of a layman to do things for which neither his natural aptitude nor his experience seems to have given him the necessary equipment. Nevertheless, I take courage. I am in no way downcast. People in my position have had to do many things of a similar character before. Furthermore, I do not think that honorable senators will expect me to enter elaborately into the questions involved in the Bill. Therefore, I do not intend to occupy very much time. I am sure that my determination in that respect will be approved by most honorable senators. The time has arrived when short speeches should be the order of the day. We are, of course, undertaking an important task in proposing to amend the Judiciary Act, but circumstances have arisen that have made some amendment of it almost imperative. The Federal Parliament has been passing legislation under the Commonwealth Constitution for the last ten years. The only authority to which we can look for the interpretation of that legislation and the determination of its constitutionality is the High Court of Australia. I consider that it is very unwise for a Parliament to pass legislation and not to have an immediate means of testing its validity. We might pass a number of Acts, not one of which might be brought before the High Court for interpretation for, say, twenty or thirty years. Then a case might arise, and after incurring considerable expense and being involved in a great amount of trouble, the litigants might fmd that a particular Act was ultra vires. The object of this measure is to avoid the possibility of such an occurrence. The intention is to enable questions affecting the validity of Commonwealth Acts to be submitted to the High Court, in order that a decision may be obtained as soon as possible, before any citizen or any State of the Commonwealth, or the Commonwealth Government itself, is put to any trouble or expense. Honorable senators will recollect that in 1906 we passed an Excise Tariff (Agricultural Machinery) Bill. Twelve months after it was passed a case was brought before the High Court, and a great deal of expense was incurred, only to find that the Act was ultra vires. There were also cases in connexion with the Australian Industries Preservation Act, notably the case of Huddart, Parker and Company Proprietary Limited v. Moorehead, where the very same thing occurred. Every one who takes an interest in the legislation passed by this Parliament, and its administration and treatment, must recollect the fate of the workers’ trade mark, which was embodied ‘in the Trade Marks Act. When the workers in Sydney were prepared to take action under the Act a case was cited before the High Court, and the legislation was found to be ultra vires. I could enumerate many similar cases. Only so recently as a few months ago there was some trouble concerning the boot trade, and when a common rule was attempted to be applied it was stated that the Arbitration Court had no power to take such action. In connexion with the Broken Hill strike, a similar difficulty arose. We want in future to be able to submit any legislation which we have passed to the High Court, sp that it can decide whether it is valid or otherwise, and then, of course, the people of the Commonwealth will be in a position to take such action as they may think fit. It may be argued by some honorable senators that we have no precedent for this Bill. But I understand that in Canada the Government are empowered to go much farther in this direction than.we propose. In England itself, which might be called the mother of civilization and the home of the law-giver, similar action has been taken in the Courts. In the middle of last century - in 1843, I think - a case was submitted by the House of Lords to the Judges of England in connexion with the question of insanity, and their decision, with the exception of some alterations made on account of the advance of science, remains even to this day. I think that every one must admit that the sooner we know from the High Court whether our legislation is valid or not the better it will be for the people. I have no desire to labour the question, and submit this short measure to the Senate with every confidence.
– If this Bill does nothing else, it serves to furnish us with what, I think, is a much-needed reminder of the fact that we are living under a written and Federal Constitution. Ever since they obtained constitutional government the people of the States have had their law-making done by Parliaments free from the restraints which were placed on this Parliament - free because their Constitutions, whilst confining their action within certain limits, placed those limits on a larger basis. They have not found themselves, as this Parliament frequently has, hedged in by restrictions imposed by those who framed the Constitution, and those who adopted it. I think that both in Parliament and outside we are too often apt to forget that important fact, and to consider that this Parliament enjoys the same freedom of action as has hitherto been enjoyed by the State Parliaments. The Bill serves to remind us that that is not the case. We have a field in which we can work with the utmost freedom, but we are not at liberty to go beyond it.
– And the boundaries of that field, even in the Constitution, have not been sufficiently indicated.
– There may be some indefiniteness about them, but I venture to think that they are not as indefinite as they are frequently made to appear in the heat and flash of party conflict. It is quite true that certain measures have been declared by the High Court to be ultra vires, but I would remind honorable senators that when those measures were under discussion here and elsewhere some of the most eminent lawyers in this country declared that they were not within the limits of the Constitution.
– Even the Judges of the High Court have differed in opinion..
– I would rather not discuss that point now, because we are rather too near the creation of the High Court, perhaps, to pass an unbiased judgment in regard to its work. I venture to think that had there not been some political pressure compelling the Governments of the day to introduce and pass measures there would have been a smaller record of measures declared ultra vires. It is, to my mind, rather ominous as to its future operation that this Bill comes here under a shadow. In the minds of some of our most eminent lawyers there is a very grave doubt as to whether it is constitutional.
– The sooner we know that the better.
– Is it the intention of the Government to immediately refer this Bill, when it becomes an Act, to the consideration of the High Court?
– No; that may come afterwards.
– The constitutionality of the Bill is already challenged. By whom? By those who as lawyers command respect. I need not mention more than one name - Mr. Glynn. If the Government is a firm believer in the policy which is now sought to be established, the very first thing it ought to do after the Governor-General’s assent has been given is to refer the measure to the High Court to ascertain whether it is constitutional.
– Submit some case under the authority of this Bill, and then see how the Court treats it.
– Why not submit the Act itself? What is the use of proceeding to pass another measure and referring it to the High Court in order to test whether the present one is constitutional?
– What is the good of discussing the Bill at this stage?
– That is a point on which I shall have a few words to say later. It is a remarkable thing, I repeat, that the proposed remedy is under suspicion as to whether it is constitutional.
– It is only a remarkable fact, if it be a fact, owing to the limitations of the Constitution.
– That may be so. What is implied in the interjection is that we ought to immediately abolish the Constitution.
– Not necessarily, but to amend and enlarge it.
– To what extent would the honorable senator enlarge the
Constitution? Does he propose to make this Parliament sovereign?
– So it ought to be.
– If that is done honorable senators will see at once where it will land us.I am not arguing as to whether it is right or wrong that we should travel in that direction.
– Honorable senators opposite want only one sovereign Parliament.
– To make this the sovereign Parliament would be unquestionably to tear up the Federal Constitution.
– The grant of this power would not do that.
– I am dealing with the interjection of Senator W. Russell.
– We have too much of the judgment of law Courts.
– That is a statement very frequently made, and I have no doubt that it is regarded as effective ; otherwise it would not be made. But the Judges do not make the law ; they interpret it.
– A change of Judges might give us a different law.
– It is the Parliament which makes the law. If the Judges, when they are called upon to interpret a law, decide that certain words do not mean what Parliament intended, they do not make the law, and it is optional with the Legislature to adopt other words to more clearly express its intention. The object of this Bill appeals to me. Its intention is unquestionably good. But having got that far, I am reminded of that broad thoroughfare which is alleged to be paved with those good intentions which make the passage of a person to a certain destination extremely smooth. As to whether the good intentions underlying the Bill are going to lead us to a similar destination is a matter on which I shall not attempt a prediction at present. It is one thing to say that the intention and object of a Bill are good, but it is quite another to state that we have arrived at a correct method of giving effect to that intention. I speak with the diffidence which ought to mark a layman when he is dealing with a purely legal question, and I am supported in that diffidence by the knowledge that lawyers have spoken with a good deal of hesitancy as to the operation of the Bill.
– Apart from the question of its constitutionality?
– Yes, as to the practical effect of it. I can hardly conceive that in regard to any Bill submitted to a Court, even when the precautions which are taken in this measure that the various view-points shall be properly presented are observed, the Judges will give a plain “ Yes “ or “ No “ to any appeal which is made thereunder. If my theory in that regard be correct, and if the Court were to proceed to give a conditional judgment, hemming in and rendering almost impotent by reason of the number of “ ifs “ and “ buts “-
– Does the honorable senator think that we shall ever get any judgment unless a case is brought properly before the Court?
– Suppose that a Bill is sent to the High Court for interpretation. I can hardly conceive that any body of men charged with the responsibility of determining that question would give a fair, emphatic, and unqualified “Yes” or “No” to the question. What seems much more likely is that the Court would protect itself by giving a decision of this description: “ On the ar’guments presented in this case, and without binding ourselves to any future set of circumstances which may be brought before us,’ we hold this measure to be constitutional “ - or otherwise.
– The Supreme Court of the United States has refused to take any part in this movement. It will only deal with questions which arise in genuine cases.
– That is, of course, following out what has been the guiding principle in Great Britain and America. What I question is the method of achieving the object of the Bill. Suppose that a measure is passed and referred to the High Court under the provisions of this Bill, and its validity- is argued there with that ability which a sufficiently briefed Bar can bring to bear on such a question, the Court will, I think, say, “ On these facts and arguments, on the view which we have so far been able to seize, we regard the measure as constitutional.” But under a new set of circumstances, which has brought an entirely new point to light, there will be nothing to prevent a citizen or a State from immediately approaching the Court and again testing the constitutionality of the Act.
– Does not the honorable senator think that the High Court can give an absolute decision as to the constitutionality of the Seamen’s Compensation Act - the unconstitutional- Bill’ which be helped to pass last session?
– Does the honorable senator say that it is unconstitutional?
– I believe it is, and so does the honorable senator. He knew that then.
– No. If I thought that my honorable friend was serious, I should be inclined to resent his statement.
– Does the honorable senator mean that he did not know that the Seamen’s Compensation Bill was unconstitutional within a State?
– If there was one matter which occupied my attention last session, it was that . to which my honorable friend refers. It was because I came to the conclusion that we could not proceed constitutionally that that Bill was altered before it was passed through Committee. I ask honor- ‘ able senators, with the exception of Senator Guthrie, to accept my assurance that I would not have played with this or with any other legislative chamber by asking its members to address themselves to a Bill of that kind, touching the lives of a large section of the people, unless I thought it was an absolutely sound one.
– It has been proved to be unconstitutional.
– How can the honmable senator say that when it has not yet been tested?
– By other decisions it has been proved to be unconstitutional.
– There has been no decision on the point, to which I assume Senator Guthrie refers, as to whether the Commonwealth has the power to deal with Intra-State boats. I believe that we were within our constitutional powers in proceeding, not under the trade and commerce section of the Constitution, but. under the ampler powers given us over navigation. I was endeavouring to show that whilst the High Court, on what I might call fro forma argument, might declare a certain measure to be constitutional, later on, upon a case arising in fresh circumstances, it would be possible for an individual citizen or a State Government to appeal to the High Court, and by submitting different’ circumstances and new arguments, convince the Court, despite the former judgment, that the Federal Parliament had exceeded its powers in passing the measure. In such a case I should like to know what position the Commonwealth would be in in the matter of costs. The Government have taken upon themselves the responsibility of proposing to pay a portion of the costs incurred by the members of a union, in what is known as the Harvester case, on the ground that private citizens were misled and ultimately mulct in costs, because this Parliament passed a certain law.
SenatorE. J. Russell. - There was another reason, and it was that, without a tied a ration that the Act was unconstitutional, the Government failed to administer it.
– There was no application by any private citizen to compel the Government to do so. The private citizens who took action did so in order to secure redress for what they considered to be a wrong to themselves. They were not concerned about the failure of the Government to discharge their duty in administering the law. They were looking to secure what they believed to be their rights.
– And what a Judge of the High Court told them were their rights.
– I need not argue that question, because the High Court showed them that they were not their rights, though they believed they were. They went into Court, not to compel the Government to do anything, but to secure what they believed to be their rights under the law.
– Is the honorable senator not aware of the fact that if an attempt had been made to administer the Act, its constitutionality would have been tested against the Government, and not by the men?
– That has nothing whatever to do with my point, which is, that if it be considered a just claim against the Government that the men should be recouped the costs they incurred in testing the constitutionality of that law, how much stronger will such a claim become if, after Parliament has passed a law, the High Court, under this Bill, declares it constitutional on a pro forma argument, and later, on the motion of a private citizen or public body, and the consideration of different circumstances and fresh arguments, the Court arrives at the conclusion that it is unconstitutional. Such a claim would then become unanswerable. It is difficult to conceive of a single just reason for refusing to refund costs incurred in a case of that kind. I repeat that the object of this Bill is one which commends itself to me, and will, I think, commend itself to every member of the Senate. The points on which there may be a difference of opinion regarding it are the two I have mentioned. Whether the measure is constitutional is a question which the- Government will have the power to immediately determine by referring this Bill, when it becomes an Act, to the High Court, a course which I gather’ from the Vice-President of the Executive Council they have no intention of following.
– The honorable senator should not have gathered anything or the kind from what I said.
– I agree that it is a mistake to think that I could gather anything from what the honorable senator said.
– I was very, guarded in my statement.
– I have never accused myself of gathering very much from what the honorable senator says, and I shall not do so now. If the Government believe that this Bill is constitutional, and that it will be possible under it to secure decisions from the High Court, which will be valuable as guides to Parliament, there is. a simple and inexpensive method of settling the matter, and that is to send this Bill to the High Court to test its constitutionality.
– We cannot do that until the Bill is passed.
– It was quite unnecessary for the honorable senator to say so, and it would have been more comforting to me if, speaking for the Government, he had informed us that they will not occupy the time of Parliament, and perhaps raise vain hopes outside, by submitting measures, which are afterwards to be sent to the High Court for their judgment, before we know whether this measure itself is constitutional.
– The honorable senator’s suggestion will receive every consideration.
– Perhaps I should say that I do not know whether the Government can speak for themselves in this matter. It may have to be dealt with by a much larger body than the Cabinet. That is one point on which the Government might afford me some measure of comfort, and also a large number of people who, like myself, believe in the object of the Bill, . but have serious doubts as to whether its provisions can be carried out. The other point is as to whether it will be possible, under this Bill, assuming it to be constitutional, to get a decision from the High Court, which will be so clear, emphatic, and free from saving clauses, . as to leave no doubt in the mind of Parliament when it comes to deal with later legislation.
-Colonel Sir ALBERT GOULD (New South Wales) [3.9].- I waited to see whether any. honorable senator on the other side would attempt to reply to the criticisms levelled against this Bill by the Leader of the Opposition.
– We look to the lawyers on the other side.
– I am afraid that, if the. lawyers on this side are united in saying that this Bill is, first, undesirable, and, in the next place, unconstitutional, no matter how strong the arguments they submit, honorable senators opposite will not accept their view.
– Does the honorable senator not know that a legal opinion that is not paid for is not of much value?
– It is sometimes of little value when it is paid for.
– I am satisfied that, when a lawyer addresses himself to any measure submitted to Parliament, he does so with a sense of responsibility, which he might not have in offering, in a railway carriage, what a very eminent counsel in New South Wales used to call a “ travelling opinion.” Honorable senators, in addressing themselves toany measure submitted in this Chamber, will no doubt express their opinion, and it will be for honorable senators generally to determine the best course to pursue. I wish the Senate to realize that this is oneof the most important measures which Parliament could be called upon to consider, because it proposes to provide an authoritative Court to express an opinion on legislation which may be passed here before any action is taken under it. In passing this Bill, we shall really be saying that in the future this Parliament will be at liberty to pass whatever legislation it sees fit, on the off chance that the High Court will decide that it is within its constitutional powers. A serious objection may be urged against the measure that it will have a tendency to induce Parliament to neglect its own duty to ascertain, to the best of its knowledge, whether the legislation it proposes to enact is constitutional or not. The majority in Parliament may say, “ The legislation we propose commends itself to a large majority of the electors, and though some honorable members on the other side do not agree with that opinion, and believe that it is unconstitutional, and though we recognise that they express an honest opinion, and support it by weighty argument, we are not going to take the responsibilityof deciding the matter, because we have created a tribunal which will decide for us whether Parliament is acting within its constitutional powers. We shall therefore pass the law, and though it may be a law which should be passed by a State Parliament, we shall not consider that, because we intend to leave it to the High Court to decide.” In this way the High Court may find Itself placed in the position of being called upon to decide that a measure is unconstitutional, in opposition to the opinion of the majority of the public. However high the opinion of the public may be of the integrity, intelligence, and ability of the Justices of the High Court, they may be disposed, in such a case, and particularly if there be a difference of opinion amongst the Justices, to say that they are riot satisfied with the decision of the Court. They may urge that the composition of our Judiciary should be altered so as to bring it more into accord with what they believe to be public opinion. It would be the most serious injury imaginable to bring the High Court unnecessarily into conflict with public opinion, and it ought not to be done if it can possibly be avoided. I recognise that any person has a right to challenge the validity of any measure which involves an interpretation of the Constitution, as that is one of the duties cast upon the High Court. It is a task which that tribunal has to undertake, irrespective of whether its decision proves popular or unpopular. But it is not desirable that we should lay upon the High Court work which it should not be called upon to perform. Let us assume that this Bill is the law of the land, and that the Attorney -General has submitted the question of its constitutionality to that tribunal for its decision. As the Leader of the Opposition has already pointed out, the High Court would have very many matters to consider. After the Commonwealth AttorneyGeneral and the Attorneys-General of the States have given their best attention to the reasons advanced, both for and against the constitutionality of the measure, the Court, recognising that there are other matters to be considered, may intimate that it desires to hear those matters argued. When all this has been done, let us suppose that the Court determines that the law is constitutional . It may nevertheless happen that another set of circumstances will arise which will be quite foreign to the set which came before the Court in the first instance, and which will result in a different judgment. In such circumstances, what would be the duty of the Court? Would it act in the way that a witness, who has already sworn to certain statements, acts upon being reminded of the fact ? Would it say : “ We have declared that this law is constitutional, and we are going to stand to our decision ?” No. It would be bound, even though it might have declared that a certain law was constitutional, to reverse its decision. Let me further suppose that a case comes before the Supreme Court of one of the States which is affected by a Commonwealth Statute that may have been declared intra vires the Constitution. The Supreme Court may see fit either to accept or disregard that decision. Then the party who is dissatisfied, instead of appealing to the High Court against that decision, will probably appeal to the Privy Council, which may give judgment entirely in opposition to the judgment of the High Court. I need only remind honorable senators that that position actually arose in connexion with the attempt of the State Governments to collect income tax upon the salaries of Federal officers. The High Court declared that the States had no power to impose income tax upon the salaries of Commonwealth officers. The Privy Council held the opposite. When a similar case again came before the High Court, that tribunal adhered to its previous decision.
– Parliament subsequently ratified the decision of the Privy Council.
– So far as it believed that it had power to do so, it declared that, in the future, the decision of the Privy Council should be the law of the land. Has anybody yet taken the trouble to test the constitutionality of that legislation? As soon as we attempt to deal with measures of this kind we shall find ourselves in a sea of difficulty. When the constitutionality of a proposed law has been challenged, I have heard honorable senators exclaim, “ Oh, the High Court will decide that!” If we relieve honorable senators of their responsibility, we shall deprive them of one of the most important duties cast upon them. It has been suggested that one of the first measures that the Government should submit to the High Court for an expression of opinion as to its constitutionality is the Bill which is now under consideration. But, if it be unconstitutional, what authority have the Government to take it to the High Court? Then, the probability is that that tribunal would decline to express an opinion upon its constitutionality, unless a concrete case were stated to it. In matters of this kind, where several grounds are taken and upon one of them the Court is able to decide the question submitted, it is the invariable practice of the higher Courts to say, “ The judgment of the lower Court should be reversed upon this particular question; and, therefore, there is no need for us to express an opinion upon the other grounds of the appeal.” Why do the Justices do that? Because they wish to prevent the Court from being unnecessarily tied. We know that very frequently Judges express an obiter dicta upon questions arising incidentally. Great respect is paid to these expressions of opinion. But, whenever the question comes before them again, the very Justices who voice these opinions hold themselves perfectly free to give an entirely different judgment in the light of fuller information. Is it not dangerous for us to prevent our Judges from doing that in the light of altered circumstances ?
– Circumstances do not alter a law.
– I admit at once that there are many matters connected with constitutional law upon which the Court may say that this Parliament has legislated within the powers conferred upon it by the Constitution. But I would point out that every important Act embraces a large number of subjects, some of which may, whilst others may not, have been dealt with constitutionally. We cannot expect the Court to say in every instance what it said in the case of the Excise Tariff (Agricultural Machinery) Act, namely, that the entire Statute was unconstitutional. There the High Court did not decide that it was unconstitutional for the Commonwealth to levy an Excise duty upon stripperharvesters. It merely said that when Parliament enacted a law making the payment of that Excise dependent upon the observance of certain industrial conditions, it exceeded its powers, and that, consequently, the legislation was ultra vires. It declared that it had to regard the law from the point of view of the intention of the Legislature, which unquestionably was to use the power to levy an Excise duty upon the manufacture of agricultural implements for the purpose of compelling manufacturers to pay their employes fair and reasonable wages.
– The portion of the Act levying the Excise was not ultra vires of the Constitution.
.- The decision of the Court was. that the Act was ultra vires.
– Not that portion relating to the imposition of the Excise.
.- The High Court declared that the whole Act was unconstitutional.
– We have power to pass an Excise Act at any time.
– Of course we have; but we cannot impose an Excise duty to compel the payment of reasonable wages in. any industry. If honorable senators will look at the Constitution they will see that this Parliament is supreme within certain limits. But beyond those limits it has no more right to legislate than has a rabble in the street. Section 51 of the Constitution sets out the subjects upon which it is authorized to legislate. Then if we turn to the Judicature Act we shall find the powers which are vested in the High Court. Is there any provision in our Constitution which will enable a Bill of this character to be held to be intra vires? I do not feel justified in expressing a conclusive opinion upon the matter.
– Suppose that the honorable senator were advising a client upon it?
– I should have to advise him with a certain amount of hesitation, and I would frankly tell him so. The question which now arises is, “ Have we the power, under Statute, to say that the. decision of the High Court in matters such as those to which the Bill relates, shall be final?” It is provided that the determination of the Court on certain matters submitted to it shall be final and conclusive, and not subject to appeal. But how far are we entitled to legislate in such a direction? It would appear that under our Constitution we have no power to deprive a citizen of the right of appeal to the Privy Council, except in a few limited instances. That right of appeal is inherent in every subject of His Majesty. The limitations are carefully guarded. There are, it is true, certain matters as to when the decision of the High Court is final and conclusive, but thoseare not embraced within the ambit of this Bill. I do not deny that a matter affecting the constitutional powers of the Commonwealth-, and those of any State or States, or affecting the limits inter se of the constitutional powers of any two or more States, is not subject to appeal from the High Court. Those limitations are laid down by the Constitution itself. But I doubt whether we have the power to limit the right of appeal in other matters. Suppose that a number of citizens determined to test the powers assumed by the Federal Parliament in connexion with the land tax. Say that a decision is given by the High Court, and that a dissatisfied person determines to appeal to the Privy Council. It was a revelation to many to find that the right of appeal to the Privy Council was so extensive as it is. There was undoubtedly a desire on the part of certain supporters of the Federal Constitution to abrogate entirely the right of appeal under any circumstances. Others who were just as good Federalists wished to retain the right of appeal to the Privy Council in its entirety. The result was that we secured a constitutional provision which was in the nature of a compromise. I do not suppose, however, that honorable senators who support the Government will bother their heads very much as to whether this Bill is constitutional or not. They will say, “ This Bill is placed before us by the Government, and we intend to support it.”
– That is not fair.
– I ask the honorable senator whether he has taken the trouble to consider whether this Bill is constitutional or hot?
– Would not the honorable senator laugh at us if we, as laymen, professed to know anything about the subject?
– No, I should not, because I recognise that honorable senators, as elected legislators, are supposed to have the. knowledge and the intelligence requisite to form a judgment on such a question. They have every right to consider the point that I have raised. Another point is as to why a Bill of this important character should be brought before us in the closing hours of the session. No one can doubt the grave importance of it. It is indeed one of the most important Bills that could have been formulated. Assuming it to be constitutional, what more important legislative project could be brought before us than one which proposes to invoke the opinion of the High Court before any citizen has attempted to challenge a law passed by this Parliament? Such a measure might very fairly have been brought forward in the early days of a session, and not at a time when our legislative work is nearly at an end. Parliament is to close within a few days, and honorable senators cannot be expected to bend their minds to the consideration of a subject of this kind. I ask those who have read the debate which took place on the Bill in another place whether they are satisfied that those honorable members who were best qualified to deal with the subject had a fair opportunity of dealing with the Bill ? I do not propose to pursue this topic much further. There is a strong inclination on the part of honorable senators to decline to debate ‘the Bill at this period of the session, knowing that whatever they say or do cannot have any effect on its passage. The supporters of the Government say, “ This Bill has been considered by the AttorneyGeneral, and submitted to Parliament by the Ministry ; we are advised that it is constitutional, and we intend to pass it.” No doubt it is very tempting to go to the people of the country, and say, “ We are determined to give you a good and fair opportunity of ascertaining whether our legislation is constitutional, without subjecting you to the cost of bringing an action. Therefore we will go to the High Court ourselves, and ascertain whether you have a right to protest against our measures or not.” That may be gratifying to some people, but the public should not forget that the Bill will give the Government an opportunity of passing all sorts of experimental legislation.
– Which the people want.
– Some of it will be legislation on subjects which ought to be left to the States. The supporters of the Government, when such legislation is presented to them, will be able to say, “We may as well pass it, although we have grave doubts as to its constitutionality, because we have the High Court outside to save our face if we make a mistake. The Court will enable us to say to the people of the country, ‘ We did our best to pass this, legislation for -you, but that wicked High Court stood up against us, and held our Bills to be unconstitutional.’ “ But is that a desirable position in which to place the High Court? Every man in this community ought to be taught to regard the High Court as the very epitome of integrity, impartiality, and wisdom.
– Why not add ‘‘and divinity” straightaway? The honorable senator might as well.
– If I ever have the honour to see Senator Rae adorning the High Court Bench, I shall perhaps recognise that it possesses even an element of divinity.
– The honorable senator seems to think that the High Court has the attributes of divinity already.
– Does not every citizen who goes before the High Court know that he will get an honest decision from it? Every member of the legal profession regards a seat on the High Court Bench as the “ blue ribbon “ towards which only the ablest and most trusted of lawyers should aspire.
– There is no country in the world in which doubt has not been cast at some time or other on the integrity of the highest Courts, and there is no country where that has been the case to such an extent as America.
– That certainly- is not the case with the Supreme Court of the United States of America. The judgments of that Court are regarded as monuments of learning and wisdom, by which our own Judges are only too glad to be assisted. Senator de Largie. - Some of the decisions of the Supreme Court of the United States of America have given rise to fights and wrangling in Congress time after time.
.- That may be, but I do not believe that in any British country men accept seats on the High Court Bench without the strongest determination to do what is right and proper according to their ability and knowledge.
– Ishall begin my speech on the Bill, which will be brief, by alluding to a remark by Senator Rae. He stated, in reply to Senator Gould, “. Let these things go to the people.”
– I never said that.
– The honorable senator made a statement to the effect that the people should be the final arbiters in these matters. I remind the Senate that, on more than one occasion in history, the people, when they sought to take these matters into their own hands, or when others put them into their hands, committed acts which shamed civilization and humanity. I object to the intrusion of such a remark, and of such a feeling behind it, when we are dealing with one of the most important questions which can affect the Parliament or the Judiciary itself. In order to illustrate the danger we may be incurring, I shall give an historical anecdote. During the Revolution, the French had an emasculated form of Judiciary, and before a Judge exercising emasculated powers, a man was brought, charged with an infernal crime. The very nature of the crime, and the evidence in support of the charge, were such as to provoke at once abhorrence. When the Judge asked the man, “ Have you anything to say to justify yourself?” he replied,. “I did it because the people of France wanted it done.” The Judge replied, ‘ ‘ That may be so ; but, unfortunately, there is not in France at present a blackguard who does not call himself the people of France. ‘ ‘ There is a moral to that.
– How does the honorable senator apply that?
– Every honorable senator, every man in the community, when considering that incident, and the application of it, can understand at once the reason why, on questions which vitally affect the formulation of our laws, we ought to act with the calmest of deliberation.
– Any sort of delibera- . tion would be better than the present proceedings.
-I shall say something about that now. We ought to eliminate from our minds every element of popular appeal or prejudice, and remember that we are dealing with matters which appertain to our legislative procedure; and that that procedure is vitally affected in its relation to the Judiciary. I have only to mention that aspect of the question - one which will commend itself to every honorable senator, apart from party considerations - to show that the Senate has neither the time nor the opportunity for deliberation to insure that this Bill, if passed, can attain the desired object. Look at the questions which are involved, First, have we the power to enact this legislation? Second, if we have that power, in what form can it be exercised, subject to the Constitution? Third, how far will any legislation of ours be consistent with the powers which the High Court enjoys under the Constitution?
-Mr. President, I call your attention to the state of the Senate. [Quorum formed.]
– A consideration of these important questions is vital to enable us to come to a calm and deliberate decision on this measure. I refuse to touch any one of them, although each of them is important) because the Senate is waiting now for Parliament to be prorogued. We shall have to discuss the measure in all its bearings, if we are to discuss it at all, with the sense that amid the crash of millions, the other House is awaiting our decision. There is no layman, there is no lawyer, who, in the circumstances, could bring to a consideration of the measure that deliberation and judgment which it requires. Here we are at the fag end of a session of unexampled stress and pressure on every honorable senator. By reason of that fact, the Senate is not in a fit state to exercise a careful and deliberate judgment. I regard it as an insult to the legal profession from the Attorney-General, because we are here, as lawyers, trying to help the Chamber in the discussion of constitutional and other legal questions. The Attorney- General has practically said, ‘ ‘ There are lawyers in the Senate, but they shall have no time, nor shall the Senate itself be allowed time, to give to the consideration of the measure that careful deliberation which will enable laymen to understand some remarkably difficult questions.”
– I have never heard the Attorney-General make a statement of that kind.
– No; but his acts speak louder than words. That is the actual position, anyhow. In the circumstances, how can any layman or lawyer deliberate? Every earnest layman must recognise that the more he considers the measure the more difficult it is to understand from every point of view; and this difficulty which the layman feels is intensified a thousandfold if he knows his subject, and is seized with a sense of the responsibility which follows upon what he says and does. It is only a matter of hours before the session will be closed, and in the crush of business we are asked deliberately to pass a measure of this transcendent importance. That is a farce on the Senate, and an insult to the members of the legal profession here. And, more than that, it is a menace to the proper formulation of legal measures which are intended to bring about a sound and safe administration of justice. I intend to conclude with a remarkable quotation which has flashed across my mind, in order to show how important it is that Parliament should consider great measures with calmness and deliberation. There is one thing which is even more important, and that is that the course of justice shall be laid down deliberately and clearly to the people as a whole. We are deprived of that opportunity, and for that reason I refuse to discuss the principles of the Bill.
– Order ! The honorable senator is not in order in stating that he refuses to discuss the principles of the Bill. I’ call his attention to the fact that, on the motion for the second reading, only the principles of a Bill can be discussed.
– What I should have said, sir, was that I refused to discuss the omission of certain principles from the Bill.
– The honorable senator has any amount of time ; there is no occasion for hurry.
– I have not yet stated my view exactly. What I intended to say was that the Senate has not had time to go into the principles which appear in the Bill. I have not had an opportunity to discuss them with the closeness which I should like to do. I wish to point out what a danger it is. I give it by quotation. I desire the country to know that “ there can be no true liberty where positive law is not a supreme guide both of the Legislature and of the conduct of justice in all judicial proceedings.” I do not think that we have had time to consider the positive law, and the relation of Parliament to judicial proceed ings in the deliberate way in which they should be considered, and for that reason I decline to say anything further as to the merits or demerits of the Bill.
– I regret very much that the eminent legal lights which adorn the Opposition should have spent so much time in telling us that they have no time for the proper consideration of this Bill. If they had displayed what little knowledge they pretend to have as to the constitutional principles involved in the measure, it might have helped to enlighten the ignorant Huns and Vandals who sit on this side.
– Who do not sit on that side, the honorable senator means.
– Order ! The honorable senator has no right to characterize honorable senators who sit on any side of the Chamber as “ ignorant Huns.” I hope that he will withdraw the remark.
– What I intended to convey was that honorable senators on the other side stigmatized us as such.
– Will the honorable senator withdraw the remark?
– Of course, sir, I bow to your ruling. Judging from the way in which honorable senators opposite contemptuously spoke of this measure, my opinion is that they would have the public believe that we are no more than Huns and Vandals.
– We have too great respect for history to apply the terms.
– We are referred to as if we wanted to rush the Bill through without any consideration. Senator Gould commenced his speech by talking about the high qualifications of the High Court, as though we were impugning the integrity of, or seeking to cast a reflection on, the Court. To put it mildly,_it is electioneering claptrap on the part of honorable senators opposite. It is an accusation which they ought to have been ashamed to level against this side. We are presented with a Bill which, according to Senator Millen, is open to two possible objections - first, that it may not be constitutional, and, second, that, even if it be constitutional, the High Court may refuse to give a plain, straightforward judgment on which we could afterwards act. It appears to me that the only way in which we can test the constitutionality of the measure is to pass it.
– That has been said about many measures. “Chance it” - that has been the motto.
– There is a difference between testing a thing and chancing it. Notoriously, lawyers differ, but we have some legal advice that this measure is constitutional. Where lawyers differ, it is reasonable to put the matter to a test, especially when the only layman on the other side who has spoken on the measure so far has admitted that it is full of good possibilities. We need not expect lawyers to look with favour upon this legislation, because it proposes that we should do in a straightforward way what is abhorrent to their very nature.
– It is going to bring them the fattest of fees.
– If that be so, let me remind the honorable senator that the cost will be borne by parties who will have the money to pay the legal expenses involved. It will not be difficult for the Commonwealth Government, on the one hand, and the State Governments, on the other, to fee counsel to secure these important decisions, and so prevent private citizens from becoming involved in useless and expensive litigation. Senator Gould has sought to surround the High Court with such an air of divinity as to suggest that it could not possibly do anything which might be the subject of criticism, and that any attempt to alter its Constitution in any way would be the rankest blasphemy. It is strange how this awesome reverence for a Court is attempted to be built up.
– The honorable senator does not share it.
– I do not; and I believe the majority of the citizens of the Commonwealth are not built in that way either. They recognise that there is nothing on earth entitled to that kind of worship. They know that lawyers and Judges are flesh and blood, and subject to allthe frailties of human nature. I protest against this superstitious reverence.
– Does the honorable senator desire to lower the standard ofour Judges.
– I have no wish to lower their standard at all ; but I do not subscribe to this worship, which is on a par with the worship of kings and other manmade deities. I protest against the whole of it as a gross superstition, by which the public are deluded and enslaved. It is a means adopted for getting the people down and making them the slaves of those who assume a superiority which they do not possess.
– The Judges have often been appealed to to prevent the oppression of the Crown.
– I do not in any way wish to underrate their powers, or to say a word against the character, ability, or integrity of our Judges. The best way in which to bring any institution into disrepute is to try to surround it by a superstitious and unreal glamour of this kind. If it should turn out that the High Court does not possess the constitutional right to give decisions in the way proposed in this Bill, that will only teach the people that our much-lauded Constitution contains another weakness. It will be but another object-lesson to show that they have tied themselves up with a Constitution which must be liberalized if they are to be permitted to do what they desire to do. The superstitious regard for the High Court is all of a piece with the regard sought to be inculcated for our Constitution as though it were the Ten Commandments brought down from Sinai - a divine document not to be altered. We are all aware, on the contrary, that it represents a compromise between contending opinions at the time it was framed by men who were not the divinities they have been understood to be. However good it may have been at the time it was formulated, as progress and development take place in this age of rapid change, it must be capable of change asrapidly to meet , the altered needs of the people. If this proposed law be shown to be unconstitutional, the people of this country will get very tired of having tangled themselves up in a Constitution which so limits their powers, and they will take the necessary steps to alter it. I think, therefore, that we shall do well to pass this Bill. Our legal friends in the Senate and in another place, who have expressed doubts about its constitutionality, have not been ready to give us a very positive opinion, and no discussion of the matter in this Parliament would decide it. It must be put to the test. I should like to protest against the suggestion that every measure should be the first measure submitted in a session. No matter what Bill is brought before the Senate, honorable senators on the other side complain that it should have been introduced earlier.
– Could we not have delayed the consideration of the Navigation
Bill in order to give time for the discussion of this measure?
– We have thrown the Navigation Bill overboard for this session.
– The time spent upon it has not been wasted.
– I was going to say that we can take it up next session at the stage which it reached this session. I am referring, however, to the complaint that all these measures should be taken earlier in the session. There are some, such as the Estimates, for instance, which I should like to have had more time to devote to. But if we cannot do the work before us properly this week, there is no reason why we should not do it next week, since we are paid to do it. If it be found that this Bill is constitutional, I am satisfied that nothing will please the common sense of the Australian people more than to know it will be possible for our legislation to be tested before private individuals are put to the trouble and expense of finding out for themselves whether we had the right to pass it or not. It is the sound common sense of the legislation proposed by the party on this side that accounts for our friends opposite being on the other side.
.- No doubt this Bill will go through. Of course, everything goes through nowadays.
– Except strawboards.
– There was an exception last night, but it was the exception which proves the rule. The question is whether, after all this legislation goes through, it will be found to be for the benefit of the public. I do not see any very serious objection to this. Bill in some respects, but I contend that if the Federal Parliament confined itself to its proper sphere, there would be no necessity for the measure. We did not federate to do a thousand and one things. Any suggestion of the kind would have been scouted when Federation was proposed. People would have resented the idea that the Federal Parliament should do everything.
– The honorable senator was putting a weapon into the hands of the people without knowing how they would wield it.
– The people are all right when they know the facts, but they can be bamboozled a good deal.
– They were for a long time, but they are not now.
– No; they were acting on fair and honest lines. I say that we federated only to do what we could not do without Federation.We federated for national defence, and a few other things. I say, further - and I wish I were young enough to say it from the platform - that if the Commonwealth Parliament tries to do everything for Australia this country will go down. If this Parliament possessed all the wisdom of creation it could not legislate for the whole of Australia, because its members would be ignorant of the facts. The State Parliaments can do many things better, because they are better acquainted with local circumstances and surroundings. We are continually invading the powers of the States in a way we have no right to do under the Constitution.
– We wish the High Court to tell us what to do.
– The High Court has already told us what we can do. When our honorable friends opposite passed an Excise law that was unconstitutional, we told them on the floor of this chamber that they had ho right to do so, but they did not listen to us, probably because they did not wish to know the truth. We have plenty of time within the next thirty or fifty years to make experiments, and there is much good work which we may do, but we should leave the State Parliaments to perform their proper functions.
– We ought to hurry them up a little.
– It is unnecessary to do so. They will hurry up of themselves. But there is no reason why we should not make suggestions to them. In my opinion, it is not honest to propose legislation which may interfere with the powers of the State. Parliaments without first conferring with them. When the State Governments are prepared to confer with the Federal Government, the Federal Government should not be above conferring with them in the interests of the prosperity of the people.
– We played a cricket match together the other day.
– Order !
– I enjoy the VicePresident of the Executive Council’s interjections. They are sometimes funny, but I am in rather a serious mood just now, because I believe in my inmost soul that we are on the highway to doing an injury to the people of this country. How can honorable senators coming from Western Australia claim to be able todeal satisfactorily with matters affecting the north of Queensland ? How can honorable senators, without a knowledge of local circumstances, hope to deal with matters affecting the most distant parts of the Commonwealth? For God’s sake, let us leave to the State Legislatures what they know best , how to do. They are as responsible to the people as we are, and they are far better acquainted with local circumstances. If we had acted wisely, there would be no necessity for these extraordinary over-reaching laws. Though I rise to protest against this measure, I know it will go through. I say, without any anger or any intention to be offensive in any way, that the Senate might just as well close up. We do not need to come here to record our votes, because the vote of honorable senators opposite are registered elsewhere.
– It is rather strange that such a small measure as this should be responsible for the heroics in which honorable senators opposite have indulged this . afternoon. Senator Fraser has declared his belief that the Federation will inflict an injury upon the people of this country. What relevance such a remark has to theBill which is under consideration it is. extremely difficult to discover. But surely tlie honorable senator has had a sufficiently long parliamentary experience to enable him to recognise that the people of this country make their Parliament, and that if they see that the instrument of their creation is inflicting injury upon them, they will speedily remedy the evil. Senator Fraser is old enough to be my grandfather in politics. He has been half a century in this country, and such an observation was therefore unworthy of him. He knows perfectly well that it is within the rights, powers, and privileges of the people to crush this Parliament, and to thoroughly revise it every three years. At the back of his mind there must be the idea that the Commonwealth Parliament will do an injury to a section of the community if it be necessary for it to conserve the rights and privileges of a majority. The honorable senator’s only objection to the Bill is that there would have been no necessity for it had the Commonwealth confined itself to its proper sphere. What” is the Bill designed to accomplish? It is intended to confine the Federation and the States to their respective spheres of influence. Of course, I do not feel able to “criticise this
Bill with the same freedom as my honorable legal friends opposite can criticise it. But I would ask Senator Gould, who is a constitutional lawyer of some standing in Australia, whether, if the High Court is to be the real interpreter of our Constitution, it is not a simple matter to empower it to interpret the constitutionality of the Acts which this Parliament may pass? I am satisfied that the common sense of the community will welcome a measure of this kind. I believe that our Constitution is so elastic that the High Court must be its interpreter. That being so, when a doubt exists as to the constitutionality of any legislation which we may pass, is it not absurd to urge that it is not a good thing to have that doubt removed? That is the sole purpose of this Bill. In the past, we have had discussions here upon the question of whether or not certain measures were constitutional. Those measures have not all emanated from one party. They have had to run the gantlet of the High Court. Surely, then, we shall be- acting wisely if we empower that tribunal to say whether any one of those measures is ultra vires of the Constitution. If ever a Bill was intended to draw a clear-cut line between State rights and Federal rights, surely it is that which we are now considering. In it we propose to empower the Attorney-General of the States to go before the High Court, and to argue whether or not any measure passed by this Parliament is constitutional.
– Our complaint is that we have not time to discuss it.
– That has been the burden of the honorable senator’s cry all the afternoon. For nearly two hours the cry has been repeated. Senator St. Ledger affirmed that it is an insult to the members of the legal profession in this Chamber not to afford them sufficient time to consider and debate this Bill. ‘ But I would ask him whether he has not had a copy of it in- his possession for some days? The measure contains only three clauses, and its contents might be easily written upon one side of a sheet of foolscap. If the honorable senator is unable to put within a speech extending over two hours all that he desires to say upon the Bill, he is not possessed of the legal acumen with which I credit him. If the five honorable senators opposite who belong- to the legal profession had each occupied an hour in discussing it, the business of the Senate would not have been in any way retarded. But they did not discuss it, because it did not suit them to do so. Their cry that they have not sufficient time to debate it is an empty one. It falls to the ground.
– It is because we recognise the difficulties’ connected with the measure that we do not intend to debate it now.
– What does the honorable senator want? He has refused to debate it on the ground that he regards is as an insult for the Attorney-General to Submit this measure to the legal members of the Senate at such a late hour of the session. In the light of the full facts such a statement is absolutely absurd. Honorable senators opposite have had ample time in which to discuss the Bill, if they had desired to do so. They feared to do so, because the people of Australia would then have known which section of the Senate objected to its passing.
– I did not object to it.
– The honorable senator did nothing else.
– I beg to call attention to the state of the Senate. [Quorum formed.]
– I quite feel that this is a subject which might have received much more searching criticism from the members of the legal profession in the Senate. But that criticism which, flowing from their legal experience and their vast knowledge, might have resulted in some Benefit to the Senate generally, they have refused to vouchsafe. They have declined to shed the light of their wisdom on this Bill, the only reason for doing so being that they have not had time to consider it. I think that I have been able to show that that was an empty cry. I admit that I have very little to add with regard to the measure itself, but speaking as a layman, there appears to me to be sufficient merits in it to warrant us in supporting it.
– I said that the Senate has not time to discuss the Bill.
– But the honorable senator assumed that the greater part of the debate ought to have emanated from the members of the legal profession.
– Why should it? Have the lawyers special privileges in the Senate?
– I think not, but they seem to be under the impression that the Bill will suffer from lack of their criticism. The merits of the Bill are obvious. The High Court is the property of the people of Australia. The whole of the extensive paraphernalia connected with it has been set up by the people to conserve their rights and interests, and to maintain just relations between the constitutional powers of the Commonwealth and of the States. Surely it will be a good thing, in the interests, not only of the people of Australia as a whole, but of the Federal and State Governments, that there should be an opportunity of saying to the High Court, ‘ ‘ The Federal Parliament has passed a piece of legislation which some believe to be ultra vires. We ask you to rule whether Parliament had the constitutional power to pass it.” That procedure will mean a large saving to persons in Australia who may be affected by Commonwealth legislation. We all know- that the High Court has declared in previous cases that certain Commonwealth enactments were ultra vires of the Constitution. But litigants have been involved in great expenditure in eliciting those decisions.
– The High Court cannot decide anything without argument.
– The High Court can decide in many cases that an Act or portions of an Act are beyond the powers of the Federal Parliament, and it will be a splendid thing for the people of Australia to know beforehand whether a piece of Federal legislation is, or is not, within our powers. Had such a measure been passed a year or two ago a vast amount of trouble and expense would have been saved to some individuals in Australia. The objections to this measure have come from those who have usually shown a particular regard for State rights. This Bill is surely in the interests of the State Righters, whilst it is also in the interests of those who are inclined tosupport the rights of the Federation. It is a very useful Bill, and I sincerely hope that it will become law.
– I approach this Bill with a great amount of diffidence in view of the fact that I am not a lawyer. I have listened to the addresses of the legal luminaries of the Senate, and, as far as I have been able to gather from their remarks, their objections to the passage of the Bill may be condensed into a major and a minor criticism. In the first place, they argue that if the Bill becomes law it may not be constitutional ; and, secondly, they object that, through this Bill, lawyers may be deprived of some amount of work.
– I said that the Bill was going to be a source of considerable profit to the lawyers. I hope to get my share of it.
– Senator St. Ledger, in his characteristic manner - which is such that it is difficult to follow exactly what he means or what he says - uttered grave doubts as to whether the Bill is constitutional. But there is a remedy. The people of Australia are the final arbiters. I should be very sorry to regard even the High Court as the final arbiter in reference to any piece of legislation that might be passed by this Parliament. The people in the last resort must determine whether a certain law shall remain on the statute-book or not. Senator Fraser expressed the opinion that the Bill will go through, because its fate has really been determined elsewhere. I should like to tell the honorable senator that, as far as I am concerned, I have never discussed this Bill in any other place than this Chamber. Consequently, his observation cannot apply to me. I regard the Bill itself as a very wise one. It will not detract from the powers of the High Court, but will add to them. It will certainly improve the Judiciary Act. As to the appearance of counsel, if any lawyer is briefed to bring any question before the Court, there is nothing to prevent his being heard, though the Bill also allows others than lawyers to appear and argue. Where, then, is there a manifestation of any desire to rob our legal friends of their means of earning a living? I may, however, while I am on this point, venture the observation that if some of our legal friends opposite had to depend entirely on their legal acumen for their living they would be very poor indeed. While Senator St. Ledger was speaking, I happened to make an interjection, whereupon his leader, Senator Millen, said that I had just come into the chamber, and wanted to make myself heard.
– The honorable senator succeeded very well.
- Senator Millen implied by that remark that I had not made myself conversant with the course of the debate. Senator Millen himself, however, was yesterday afternoon asleep for half-an-hour on the front Opposition bench.
– Order !
– These personal reflections are becoming somewhat trying, and I am simply desirous of giving the Leader of the Opposition the retort courteous. The Leader of the Opposition attempted to imply that because a senator is absent from the chamber for a few moments engaged in other business, and comes in, he is not conversant with the debate, although he himself was asleep in his seat yesterday afternoon. I support the second reading of the Bill, which, I hope, will be passed.
– Judging from the debate which has taken place, I have no apprehension with respect to the fate of the Bill.No serious objection has been raised against legislation of this description by either the Leader of the Opposition or his learned supporters. The only statement of any consequence which has been made has been that circumstances alter cases. I am sure that Senator St. Ledger as a lawyer knows very well that circumstances never alter the law. They may alter the results of a case at law, but the law itself is never altered by circumstances.
– I was of quite the contrary impression. I thought that sometimes circumstances did alter the law.
– I have never heard of such a thing as circumstances altering the law. When a law is made - whether it be good or bad- circumstances never alter it.
– Do they not?
– They cannot. Of course, so far as the evidence is concerned, circumstances may affect the validity of a case, but not the law itself.
– There are such things as killing and wilful murder proved by circumstances.
– That is all very well, but it does not alter the law with respect to wilful murder or justifiable homicide. The law ought to be the same at all times and in all circumstances. That being the only objection which is raised to legislation of this kind, I do not think it is a very serious one. As regards its validity there is a division of opinion, and it is to settle that difference in many other cases that the Bill has been introduced. It is a very simple Bill. The Judiciary Act at present contains eleven parts. Clause 2 of the Bill amends section 1 of the Act referring to the parts, while clause 3 intra- duces another part containing seven sections, numbered 88 to 94 inclusive. Each new section contains a different provision, the Government being empowered to submit a case to the High Court and the High Court to hear it. I think that the Billis simplicity itself. I believe that honorable senators, when’ they read the clauses one after another, will pass them with very little discussion. Complaint has been made of want of time for deliberation.. I do not think that there was any pressure brought to bear on Senator St. Ledger to make him sit down. He might have been talking yet if he liked.
– I told him to sit down, and he obeyed my injunction.
– It is very laughable for Senator St. Ledger to be under the control of Senator Needham. I would remind the former that sometimes excessive deliberation leads to vacillation and to doubt. In connexion with legislation or anything else to be in doubt is a most dangerous position for any person to be in. I believe that the honorable senator was very wise in sitting down at the bidding of Senator Needham, because the further he wentthe more confused he seemed to become.
– I said that the Senate had not time to deal with the Bill, not that I had not time.
– I hope that even in Committee there will he as little room for difference in the debate as there has been on this motion.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment.
Order of the Day read for the resump tion, from 7th September (vide page 2625), of the debate on motion by Senator McGregor -
That the papers be printed.
Question resolved in the affirmative.
– Has the VicePresident of the Executive Council no intertion to proceed with the Petherick Collection Bill this session?
– I think that I explained to the Senate the other day that I have been waiting for the members of the Library Committee to make some suggestions regarding the measure.
Sitting suspended from 4.55to8 p.m.
Senator McGregor laid upon the table the following paper -
Papua. - Despatch from Administrator relating to Native Labour in the Territory, dated24th October, 1910.
– As some delayhas been experienced in passing the Estimates through another place, and as we have no business of importance to proceed with, I move - .
That the Senate do now adjourn.
– I would tike to ask the Minister representing the Postmaster-General if he can say definitely whether the correspondence in connexion with the Vancouver mail contract can be tabled early tomorrow ?
– This afternoon I gave the honorable senator . an assurance that I would do all that I could to have the correspondence to which he. refers laid upon the table of the Senate without delay. I have done all that I possibly could in the matter ; and 1 hope that the papers will be available to him to-morrow.
– J wish to ask the Vice-President of the Executive Council whether it is the intention of the. Government to endeavour to close the session to-morrow.
– Give notice for Tuesday next.
– That will be too late for me to obtain the information for which Senator Henderson and other honorable senators are so anxiously waiting. I was about to suggest that if the Government really desire to terminate the session to-morrow, we should meet a little earlier than it is usual for us to meet on Friday. I quite recognise the position in which the Government find themselves, and it may help them if the Senate met at half-past 9 o’clock to-morrow morning, or perhaps at 10 o’clock. We all know that even halfanhour makes a difference to the business which may be transacted, and an hour a greater difference.
.-I would direct the attention of the Vice-President of the Executive Council to the fact that, on several occasions recently - and especially this afternoon - members of the Opposition have complained bitterly that they are not allowed sufficient time to discuss measures. In view of that circumstance, I ask the honorable gentleman not to make up his mind to close the session to-morrow. I would like the Opposition to be afforded a full opportunity to ventilate their opinions upon all questions coming before the Senate. To make a declaration in regard to the close of the session would, I think, be a grave mistake. I hope that the fullest opportunity will be given to members of the Opposition to discuss measures to their hearts’ content.
– Then the Government should be careful to keep a quorum in the other Chamber.
– We cannot control the other Chamber, but we will endeavour to keep a quorum in the Senate.
– I sincerely hope that we shall be able to finish the business of the session tomorrow. At the same time, the Government do not desire to deprive any honorable senator of an opportunity to discuss any subject that he may wish to discuss. The Budget papers were laid upon the table some time ago with the idea that they would be debated. An opportunity to debate them was afforded honorable senators this afternoon, but was not availed of. In regard to the suggestion of the Leader of the Opposition, I do not think there is any necessity for us to meet earlier than usual to-morrow. I make that statement in view of the way in which business is being transacted in another place. I am not reflecting upon members of the other branch of the Legislature, because they have a right to discuss the measures brought before them in
Any way that they may deem fit. But I do not think we shall be able to do any effective work here before half-past ten o’clock to-morrow moming. For that reason, I believe that we ought not to assemble before the usual hour of meeting on Friday.
Question resolved in affirmative.
Senate adjourned at 8.7. p.m.
Cite as: Australia, Senate, Debates, 24 November 1910, viewed 22 October 2017, <http://historichansard.net/senate/1910/19101124_senate_4_59/>.