1st Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
– I have to inform honorable members that His Excellency the Governor-General was pleased, on Friday last, to make the following reply to the address adopted by this House : -
Mr. Speaker and Gentlemen of the House of Representatives -
It gives me great pleasure to receive your address in reply to the speech delivered by me on the occasion of the opening of the second session of the first Parliament of the Commonwealth.
I thank you for your expression of loyalty to the Throne and person of His Most Gracious Majesty.
I trust that your earnest consideration of the various measures submitted to you will result in benefit to all classes of the Commonwealth.
– I wish to know from the Minister for Home Affairs if his attention has been drawn to the following telegram, which appeared in the Argus of the 19th June : -
The Premier, when interviewed with reference to the printing of the Federal rolls, said that two months ago the Federal Government were advised by the Treasurer that arrangements had been made to have the work clone in the Government Printing-office. Sir William Lyne’s statements, he thought, were not correct. Two tenders were submitted, one for linotypesetting and the other for setting by hand, but so far the Queensland Government had not been informed which tender would be accepted. Howcvet-, on the assumption that linotype-setting would be preferred, arrangements have been made to get the necessary machines, and the printing-office was quite prepared to undertake the work. There never had been any intention to farm out the work. The Treasurer also said that there was no justification . for Sir William Lyne’s statements, and added that it had been very evident all along that the Federal Government was anxious to find some excuse for keeping the printing of the rolls in Melbourne.
– The Minister for Home Affairs will be here presently, and will then, I have no doubt, be able to give a complete answer to the honorable member’s question. But, as a part answer, I can say that the suggestion that this Government is endeavouring to find an excuse for keeping back the perfecting of the rolls is wholly inaccurate.
– The following paragraph appears in to-day’s Argus : -
His Excellency the Governor-General (Lord Tennyson) suggested that the King should not assent to the Pacific Island Labourers Bill until the regulations to be framed under it were issued. The King did not, however, withhold theRoyal assent. The regulations governing the deportation of kanakas have not been prepared yet, but the Prime Minister states that they will be forthcoming when any are found necessary.
I wish to know from the Prime Minister if it is true that His Excellency the GovernorGeneral took the opportunity to suggest a certain course to the King without being so advised by his Ministers?
– I believe that the papers containing the passage upon which that construction has been put have been made parliamentary papers in England, and I will see that they are laid upon the table of this House, so that honorable members may. form their own impression upon the subject.
MINISTERS laid upon the table the following papers : -
Defence Forces. - Regulations under States Acts and Constitution of Commonwealth, dated loth June, 1903.
Audit Act 1903. - Transfers of amounts approved b3’ Governor-General, financial year 1902-3.
– I wish to know from the Prime Minister whether, in view of the high price of meat in Australia at the present time, the Government is prepared to introduce a Bill to provide for the imposition of an export duty upon it?
– It has not yet occurred to the Government that there is any necessity for the measure to which the honorable member alludes,and, so far as I can speak from personal impressions, I do not think that the necessity will arise.
– Following up the question of the honorable member for Kennedy, and having regard to the unsatisfactory reply of the Prime Minister, I should like to ask the right honorable gentleman whether, inasmuch as it was proved last week that there is a combination here to raise the price of meat, he will invite the Premier of New Zealand to open his butcher’s shops in Melbourne instead of in London, so that we may be supplied with New Zealand meat ?
– The question is so momentous that I am not prepared with an answer.
– Is the Prime Minister prepared to put an export duty upon other articles, and thus by checking all exportations more effectually check importations than by protective duties?
asked the Minister re presenting the Postmaster-General, upon notice -
– Inquiries are being made, and the desired information will be furnished as early as possible.
asked the Minister representing the PostmasterGeneral, upon notice -
Whether arrangements can be made for print ing, in Adelaide, a portion of the new Federal stamps which the Postal Department proposes to issue ?
– Inquiries are being made, and the desired information will be furnished as early as possible.
asked the Prime Minister, upon notice -
With reference to the Administrator of New Guinea’s last annual report, recently presented to the House, in which the following passage appears : - “ Mr. Symons made a trip into the district of the offending natives, accompanied by several of the owners of property that had been stolen. In order the better to arrest culprits, and to try and find stolen goods in the small scattered villages, Mr. Symons divided his party. Some of those who were notunder Mr. Symons’ eye were not sufficiently careful about keeping strictly within the law. The result was that exaggerated rumours of natives being wantonly murdered, and so on, were spread abroad. These rumours, when sifted and reduced to distinct charges, and to the evidence that supported them, showed that, considering the circumstances, nothing very exceptional had taken place. One European had shot a native without justification, though it is but fair to the offender to state that he thought he was justified in doing what he did. Another European, believing that he had come upon an ambush, fired at what he supposed to be an hostile native man, and found that he had shot a native woman.”
Will the Prime Minister cause inquiries to be made us to whether any trial and punishment were incurred by the alleged murderers referred to above; and will he communicate to the House the result of his inquiries ?
Will he further inquire and state what are the ordinary conditions of life in New Guinea, if such conduct is regarded by the Administrator as “nothing very exceptional.”
– The answers to the honorable and learned member’s questions are as follow : -
I may add that the Lieutenant-Governor considered that Mr. Symons had acted indiscreetly in not retaining full control of the persons composing his party, and he removed him from his position as assistant magistrate of the district to perform duties of a different character.
asked the Minister representing the Postmaster-General, upon notice -
Whether, in view of the fact that cash guarantees have been dispensed with in connexion with some telephone lines, the Postmaster-General will consider the advisability of proceeding with the following lines, which have been delayed in construction on account of guarantees being required : -
Binda to Bigga?
Bungonia to Goulburn?
Windellima to Goulburn or Bungendore (whichever is the more economical) ?
Wombat to Murrumburrah or Young (whichever is the more economical) ?
– The answer to the honorable and learned member’s question is as follows : -
In cases where cash guarantees have been dispensed with, the estimated revenue has been considered sufficient to afford a reasonable return for the expenditure. With respect to the lines mentioned this is not the case, the particulars being as follow : -
Binda to Bigga. Estimated cost of erection, without including cost of operating, &c., is £490 ; the estimated revenue under £13 per annum.
Bungonia toGoulburn. - Estimated cost of erection, without including cost of operating, Ac, is £312; the estimated revenue, £20 per annum.
Windellima to Goulburn. - No application has been received, but the estimated cost of erection, without including cost of operating. &c., is £579 ; the estimated revenue about £20 per annum.
Wombat to Murrumburrah or Young. - The cost would be about the same, and is estimated at £280, without including operating, &c.; the estimated revenue, £9 per annum.
Under these circumstances the PostmasterGeneral cannot favorably consider the provision of the lines without guarantees.
– Cash or other guarantees?
– Cash guarantees.
– In asking the series of questions,upon notice, standing in my name, I should like to make a short personal explanation. The questions are as follow : -
With reference to an article in the Age newspaper of the 15th instant -
The article which prompted those questions, appeared in the Age of the loth inst., and the questions were prepared with a view to getting an authoritative reply to the very important statements which it contained. Since then, in its issue of the 19th June, the Age has published the following statement : -
In the House of Representatives on Wednesday afternoon Mr. Hume Cook was put up toask the Prime Minister a series of questions based upon an article published in the Age of Monday last in regard to Federal extravagance. One of these questions, at least, was framed in such a way as to distort the statement to which it was supposed to refer, possibly with the object of making a denial a little easier.
I should like to say that, if there is any unfairness in the questions as I have prepared them, I am solely responsible for it, my endeavour being, as I have said, to get an authoritative reply to the Statements made in the article of the 15th. As to my being “put up,” I desire to say that the questions were not suggested to me by any member of the Government or any member of this House. As a matter of fact I have had no consultation with any person, either inside or outside the chamber, in , reference to them.
– I have had no consultation with the honorable member for Bourke, nor, so far as I am aware, has he consulted with any member of the Government, with regard to the questions of which he has given notice. Neither I nor, so far as I am aware, any member of my Cabinet knew of his intention to give notice of these questions until they appeared on the business-paper. The answers to the honorable member’s questions are as follow : -
It is not correct to. say that the State Governments do not receive the returns of revenue to which they are constitutionally entitled, or that they do not receive all that in honour and reason ought to be paid to them.
It is true that some officers who were transferred from the States are receiving under the Commonwealth higher salaries than they received under the States ; but this is in every case because they occupy higher and more responsible positions in the Commonwealth service. It is also true that the salaries attached to the higher offices referred to are in nearly every case less than the salaries attached to corresponding offices in the State services.
In justification of the statement referred to in the honorable member’s question, the paper referred to published the following list, to which I have added, to illustrate the unfairness of the statements in question, the columns showing the salaries paid to the holders of similar offices in New South Wales and Victoria : -
In correction of the figures in the Age, I might say that the salary of the President of the Senate is £1,100, not £1,500 ; that the State salary of the Clerk Assistant to the House of Representatives was £560, including two allowances, not £450 ; that the former salary of the Secretary to the Treasurywas£700, not £600 ; and that the State salary of the Comptroller-General of Customs was, including an allowance of £200, £1,200, not £1,000. It should also be explained that the salary of £600 named in the table as attached to the position of Chief Parliamentary Reporter in Victoria is not fairly comparable with the salary of £700 paid by the Commonwealth, as the work controlled under the Commonwealth by this, officer is, in Victoria, distributed between two officers, whose aggregate salaries amount to £1,210. To continue my answer to the honorable member’s question -
As to these officers, with reference to whom it is suggested that “they do little or no work for months while Parliament is out of session.” it is pointed out that this list includes nine Parliamentary and six non-Parliamentary officers. It is not correct to sa)’ that the Parliamentary officers have no work to do while Parliament is not in session : and it is also incorrect to say that Departmental officers, such as the ComptrollerGeneral of Customs, the Secretary to the Treasury the Secretary to the Post-office, “ do little or no “work for months while Parliament is out of session.” It should further be stated that the salaries paid to the officers named are, in most cases, less than those attached to similar offices in Victoria or New South Wales.
– I rise to a point of order. I desire to ask you, Mr. Speaker, whether the course now being adopted by the Prime’ Minister is not an abuse of the ordinary method of questioning Ministers and eliciting replies ?
– What is the point of order?
– My point is that the Prime Minister is reading an answer of inordinate length in answer to a question which should not have been placed upon the notice-paper.
– The Prime Minister is giving us very interesting information.
– Undoubtedly; if it were obtained in the ordinary way, but it is not such information as should be given in the form of an answer to a question.. The Prime Minister is discussing certain statements which have appeared in the newspapers, and, if such a practice is to be permitted, there will be nothing to prevent any honorable member from embodying in a question the principal statements contained in a newspaper article, and eliciting from a Minister an argumentative statement in refutation. This practice might be carried to such a length that no other business could be transacted in the House. I submit that the question is out of order, and that the answer now being given is also out of order on account of its length and detail. 4 g
– On the point of order, Mr. Speaker, I desire to say that it is a matter of everyday practice for questions to be asked whether statements in thenewspapers are correct or otherwise, and inasmuch as news often appears in the newspapers before it can be madeaccessible to the public by means of official documents, one cannot wonder at the practice. I am confining my answer to a statement of the facts, and I submit that when I find that a newspaper contrasts the salaries attached to offices held in the States with those attaching to superior and more responsible positions in the Federal service, I am surely entitled to give details as to the salaries attached to positions in the States similar to those held by the Federal officers whose salaries are the subject of cavil.
– I suggest that it might save time if direct answers were made to questions in the ordinary course. Another opportunity may be sought if it is thought necessary to place before honorable members details such as those now being submitted. If the course now being followed by the Prime Minister is to be permitted, I can conceive that it may lead to very serious abuse of the forms of the House.
– There is no standing order which prevents an honorable member from asking such a question as that placed upon the notice-paper by the honorable member for Bourke, or a Minister from giving a reply, even at such length as that now being offered. But it is contrary to custom, and to the best practice of Parliament, that a reply, involving so much detail, should be given in answer to a question. It is far better that details, such as those now being submitted, should be laid upon the table in the form of a return. In future, if I consider that any question is likely to call for detailed information, I shall intimate to the honorable member giving the notice that his question should take the form of a motion for a return. I shall be glad if Ministers will, in future, abstain from supplying particulars such as those now being given in the form of answers to questions.
– I shall be very glad to follow the practice indicated by you, Mr. Speaker, because it will relieve me of the necessity of going into much detail. I have mentioned the figures given above by way of illustration only, because I have not been able to obtain full particulars. Of my own knowledge, however, I can say that the same comparisons would apply throughout, the difference being in some cases on the one side, and in some cases on the other. The answers to the other questions are as follow : -
The questions raised by the honorable member will be more fully dealt with by the Treasurer in his Budget statement.
asked the Minister representing the Postmaster-General, upon notice -
– The answer to the honorable and learned member’s questions is as follows : - 1 and 2. Nothing is known of the £2,000 referred to, but of the £1,000 provided on the Estimates of 1901-2 for increases to deserving officers, 33. officers with salaries over £200 received £415, and 81 officers of lower grade £585. Of the amount of £750 voted for the same purpose in 1902-3, 50 officers, receiving over £200 a year, obtained £475, and 48 of lower grade obtained £275. It is impossible to answer without names as to those who it is said have received no increases for 10 years, but it is assumed that they have received the maximum salary provided by the regulations as all others have received annual increments. The matter of payment for overtime is receiving consideration.
asked the Minister for Trade and Customs, upon notice -
Whether any steps have been taken - and what steps, if any - to effect the necessary improvements in the Customs accommodation and staff at the port of Burnie, Tasmania, as to which the Minister has been addressed at length by letter ?
– The answer to the honorable member’s question is as follows : -
These matters are under consideration in connexion with the Estimates.
asked the Treasurer, upon notice -
– This matter comes within the Department of the PostmasterGeneral, who has supplied me with the following information : -
In Committee (Consideration resumed from 18th June, vide page 1155) :
Clause 40 -
The jurisdiction of Federal Courts shall be exclusive of the jurisdiction of the several Courts of the States in the following matters : -
Matters arising under any treaty ;
Matters affecting consuls, or other repre sentatives of other countries, in respect of any act done by them in their capacity as such consuls or representatives ;
Suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State ;
Suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State ;
Suits against the Commonwealth ;
Matters in which an order or writ is sought to be obtained against an officer of the Commonwealth in respect of some act done or omitted to be done by him in the execution of his duty.
Mr. DEAKIN (Ballarat- AttorneyGeneral). - I propose to meet the criticism which has been directed against the first portion of this clause, by substituting for the words “Federal Courts” the words “ the High Court.” On a former occasion it was pointed out by several honorable members, that although the phrase “ Federal Courts “ includes the “ High Court,” at the present time it is not proposed to establish any Federal Court other than the High Court, and that perhaps it would be as well to leave that plain. I therefore move -
That the words “ Federal Courts,” line 1, be omitted with a view to insert in lieu thereof the words “ the High Court.”
– Personally I think that the amendment proposed ought to be made. It would be a mistake to include in this Bill the words “ Federal Courts,” because, when we come to create Federal Courts by special Act of Parliament, the question of the extent of their jurisdiction will be settled by the Act.
Amendment agreed to.
– I move-
That the words “against the Commonwealth,” line 19, be omitted, with a view to insert in lieu thereof the words “ by a State, or any person suing on behalf of a State against the Commonwealth, or any person being sued on behalf of the Commonwealth.”
When this measure was previously under discussion, it was pointed out that these words might possibly cover a number of actions in different parts of Australia where it would be difficult for litigants to await a visit from a Justiceof the High Court. I therefore propose to omit them, and to introduce words which will simply cover actions by a State against the Commonwealth. These will have the effect of making the provision precisely parallel with that contained in the previousparagraph.
Mr. GLYNN (South Australia). - I would point out that if the amendment proposed by the Attorney-General be agreed to, there will be no power to decide the extent of the area within which exclusive jurisdiction is to be vested in the High Court. In the discussion which took place on Thursdaylast, several suggestions were made as to the particular provisions of the clause which ought to be retained, and those which ought to be eliminated. I think it was the honorable and learned member for Bendigo who suggested that paragraphs (a), (b), and (e) ought to be excised. The Attorney-General, however, proposes to retain paragraphs (a) and (6).
– I will show why.
– We all know well enough that actions in matters arising under treaties will be very rare indeed. But if such cases do arise, ‘why should we confine jurisdiction in them to the High Court? Under this Bill defendants are empowered to remove suits involving a matter of Federal jurisdiction from the States Courts to the High Court, so that Commonwealth interests, if they are involved, are amply protected, if the clauses relating to the removal of causes are retained. But even if those clauses perish, a right of appeal to the High Court will still remain. Thus, any interests which the Commonwealth may have in any matter are thoroughly guarded. Something may possibly be said in favour of conferring exclusive jurisdiction on the High Court in cases arising under any treaty. That is not a very important matter, but as the honorable and learned member foi’ Bendigo spoke strongly upon it, and as lie is absent to-day, I venture to call attention to it. Further, I do not see why States Courts should not have concurrent jurisdiction in matters affecting consuls. I remember a case which occurred in Adelaide a few months ago, in which action was taken for the recovery of £15, which had been paid to a consul under the Merchant Shipping Act, and which sum was held in trust by him for certain sailors. In that case the consul was sued by a creditor of one of the sailors. It was a comparatively trivial matter. Surely it is not advisable that jurisdiction in a case of that sort shall be exclusively vested in the High Court ] If it is, either the suitor will have to await the visit of a Judge upon circuit, or the suit will have to be heard at the seat of Government, wherever that may happen to be. I ask the Attorney-General to agree to the suggestion of the honorable and learned member for Bendigo, and to excise paragraphs (et) and (b) in addition to some of the succeeding paragraphs 1
– When this matter was. previously under discussion, I had an opportunity of’ replying to the honorable and learned member for Bendigo upon both the points which have been raised. In answer to , an interjection, I think he admitted that he had never known of a case under a treaty arising in Australia, and he had great difficulty in conceiving how one could arise. Under the circumstances, I put it to him that no possible injury could follow the retention of exclusive jurisdiction in the Commonwealth Courts. Moreover, it is clearly a matter which for the dignity of the Commonwealth and of its Courts ought to be dealt with by them. The cases provided for under the clause are limited to those which arise in consequence of some alleged breach in a treaty obligation.
– I think ‘that the honorable and learned member for Indi raised a similar point.
– I think not. The honorable and learned member for Indi referred to paragraphs (e) and (/). Seeing that the Federal Government is charged with responsibility in all matters arising, under any’ treaty,, it would be only proper, if such a case did occur, that it should be dealt with by the High Court. I put that point as a matter of no very great importance from the standpoint of litigants, but as of some importance from the point of view of the dignity of the Commonwealth and its Courts. In the same way the honorable and learned member for Bendigo directed attention to the possibility of actions of any kind being taken against the consuls of other countries, and quoted from the United States practice in this connexion. But it was pointed out to him that under this provision the area covered had been expressly limited to actions against any Consul in his representative capacity. Thereupon the honorable and learned member for Bendigo admitted that such cases would be of very rare occurrence, and I understood - though he did not discuss .the question further - that he was generally satisfied that these two paragraphs might be retained without injury to any one. The whole burden of the argument which took place was directed against paragraphs (e) and (/), and it is in one of them that I propose to make the amendment which I have already submitted. It was admitted that a number of these cases might arise, and it can well be argued, that if litigants have to await the sittings of the High Court in remote States, they might be involved in additional expense. I ask the Committee to accept the amendment which I have moved.
Mr. GLYNN (South Australia). - I desire to move a prior amendment if the AttorneyGeneral will permit me to do so.
Amendment, by leave, withdrawn.
– With regard to cases which may arise under treaties, I offer no objection to the provision in its present form ; but I think I have already shown that there is some reason for making the jurisdiction conferred by paragraph (b) concurrent. Time after time claims will arise by sailors against consuls, or by parties ‘having claims against the wages of sailors. Surely in such cases it is inadvisable that exclusive jurisdiction should toe vested in the High Court. We ought not to increase the expense incurred by litigants in such pettifogging cases. I would further point out that this paragraph proposes to confer upon the High Court a jurisdiction which does not exist under the American Constitution. In America the jurisdiction of the Court in such cases is purely concurrent. I therefore move -
That paragraph [b) be omitted.
– I hope that the Attorney-General will consent to the amendment proposed. I would point out that the honorable and learned member for Bendigo and the honorable and learned member for Corinella both urged the same objections to this paragraph that are now being put forward by the honorable and learned member for South Australia, Mr. Glynn. I am sure that the Committee desire to prevent the possibility of the expense to litigants being increased. Let me invite the attention of honorable members to what would occur if an action under this clause arose in Western Australia, and required to be determined at once. In such a contingency, the High Court would have to go to Western Australia or the litigants would have to come here. In either case there would be unnecessary expense. Personally, I think that when we come to discuss the appellate clauses of the Bill we can well allow any Court to determine matters such as those which are mentioned in paragraph (b). Then, if the Commonwealth is dissatisfied with any decision in which it is interested, it has the right of appeal from the State Supreme Court to the High Court. Thus the whole difficulty would be solved. I trust that what was the evident desire of those honorable and learned members, who had looked into this question, will be followed.
– I am disinclined to agree with the honorable and learned member for Werriwa. If his idea be adopted I. think that the expenses incurred by consuls who desire to secure justice will be increased. I take it that the settlement of these matters by the High Court is necessary to secure absolute uniformity in decisions. If each State Court is allowed to give its own judgment, it may happen that these judgments will be in conflict.
– There is always the right of appeal to the High Court.
– Exactly. A consul in Western Australia who was subjected to a decision by the Supreme Court of that State which conflicted with a judgment by the Supreme Court of New South Wales, would naturally feel that he had been denied justice, and would appeal to the High Court ; whereas, if that tribunal had dealt with his case in Perth in the first place, he would have obtained satisfaction at much less expense. Consequently, under the clause as it stands, litigants would secure finality quicker than they would under the amendment proposed.
Mr. CONROY (Werriwa).- In reply to the honorable member for Coolgardie, I would point out that the States Courts practically sit all the year round. If the High Court is composed of either three or five Justices, it will be impossible for them to visit the remote States more than once in six months.
– In certain circumstances the litigants might come to the High Court.
– Under such a provision the expense involved may be so great as to prevent them from obtaining justice. ‘ If appellate jurisdiction is to be vested in the High Court, it is clearly within the power of that tribunal to correct all conflicting judgments. In the event of a decision being given by one of these States Courts, with which the Commonwealth Government was dissatisfied, an appeal would always lie tq the High Court. Thus uniformity would be obtained for all practical purposes, and at very much less expense than would be the case under the provisions of this clause.
Amendment agreed to.
– I move-
That the words “against the Commonwealth,” line 19, be omitted, with a view to insert in lieu thereof the words “by a State or any person suing on behalf of a State against the Commonwealth, or any person being sued on behalf of the Commonwealth.”
The amendment simply renders the subclause parallel with the preceding subclause. We have provided that jurisdiction in suits by the Commonwealth against a State shall be exclusive, and I now propose a similar provision in regard to suits by a State against the Commonwealth. It was generally agreed, when the Bill was last before us, that these were two classes of cases in regard to which the jurisdiction might very properly be vested exclusively in the High Court.
Mr. HIGGINS (Northern Melbourne).If any jurisdiction is made exclusive, the jurisdiction contemplated in this sub-clause should also be exclusive. From my own point of view I should trust the States Supreme Courts with any power ; but, if the Committee determined to make any jurisdiction exclusive, I see no objection to this sub-clause as amended. It will still be competent for a public servant to bring a suit in a Supreme Court to recover from the Commonwealth salary or damages for wrongful dismissal ; the States Supreme Courts will still be available for small actions which continually arise between a Government and its employes.
Amendment agreed to.
Mr. HIGGINS (Northern Melbourne).Is there any objection to excluding subclause (f), which provides that the jurisdiction of the High Court shall be exclusive of the jurisdiction of the States Courts in -
Matters in which an order or writ is sought to be obtained against an officer of the Commonwealth, in respect of some act done or omitted to be done by him in the execution of his duty.
– I shall not object if the honorable and learned member desires to move the omission of the sub-clause.
Amendment (by Mr. Higgins) agreed to-
That sub-clause(f) be omitted.
Clause, as amended, agreed to.
Clause 41 -
In such matters the several Courts of the States shall, within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with Federal jurisdiction, subject to the following conditions and restrictions : -
– I move-
That the words “Federal Courts,” line 1, be omitted; with a view to insert in lieu thereof the words “the High Court.”
This is a similar amendment to that which has been made in the preceding clause.
– Is the Attorney-General’s idea that in all matters not specified in clause 40 the High Court shall have exclusive jurisdiction - that except where by clause 41 concurrent jurisdiction is given to the States Courts the High Court shall have exclusive jurisdiction? I understand that a subsequent amendment is to be proposed by the AttorneyGeneral carrying out the suggestion made by the honorable and learned member for
Northern Melbourne, and supported by several other honorable members, that concurrent jurisdiction shall in all matters not specified in clause 40 be given to the States Courts. If the States Courts are to have this concurrent jurisdiction why not strike out the whole of sub-clause (2) ? We have just settled what is to be the exclusive jurisdiction of the High Court; and the Attorney-General, by ‘not excising the words to which I have called attention, leaves any other matters which are not mentioned to be matters of exclusive jurisdiction.
– We afterwards give all the jurisdiction back.
– Is not that an extraordinary way of drafting 1 In the beginning of the clause we declare certain things which it appears there is to be a subsequent provision to negative. We start by declaring that, in all matters not mentioned in clause 40, the High Court is to have exclusive jurisdiction, and the Attorney-General asks us to do that, because he proposes to immediately afterwards undo it. Surely that is patching rather than clearly drafting a Bill. If the words to which I have called attention be excised, the clause will simply declare that the Courts of the States shall, within the limits of their several jurisdictions, have the exercise of the judicial power of the Commonwealth ; in other words, that the States Courts shall have all parts of the judicial power, which are not appellate, and which are not, by clause 40, exclusively vested in the High Court. It is the method of drafting to which I object. I do not wish .to move an amendment, but merely to make a suggestion.
-The honorable and learned member for South Australia, Mr. Glynn, admits that all that is involved is a question of method - of the manner in which a thing sought to be done is to be done. We are agreed as to what is to be done, and I propose to take steps in the remainder of the clause to accomplish all that the honorable and learned member desires. But I ask the honorable and learned member not to offer any objection to the sub-clause being retained, because it is deliberately adopted with a view to render it perfectly clear that the investing of the Federal jurisdiction is an investing under this Bill of the whole of the Federal jurisdiction in the High Court - with a view to putting beyond all question the fact that nothing has been omitted.
– It is making the jurisdiction exclusive.
– We make it exclusive in the first instance, and then we invest the States Courts, subject to their own limitations, with the whole of this jurisdiction.
– But the Attorney-General goes further than that.
– One point at a time. I .wish to make it perfectly plain that the object is to place it beyond doubt that all Federal jurisdiction is first of all exclusively vested in the High Court, and then is shared concurrently with the Courts of the several States. That procedure will, in my opinion, place beyond all question what the full meaning and extent of this investing is, and the method to which exception has been taken, is adopted for this particular purpose. If there be any other point in connexion with, this clause which honorable members desire to discuss, I shall be happy to discuss it; but I wish it to be perfectly clear on the face of the measure, and perfectly clear in words which, in the opinion of the honorable and learned member for South Australia, Mr. Glynn, are, at the utmost, unnecessary ; that the investure of States Courts is an investure of Federal jurisdiction which has been first made exclusive in the High Court, and which then comes from the High Court - as an express endowment of States Courts over again, if honorable members like to s» regard it- of what is distinctly Federal jurisdiction. This is done to mark off the more emphatically the jurisdiction given through the High Court from any jurisdiction at present belonging to the States Courts. ‘
– What will be the position of a private individual who wishes to recover damages against the Commonwealth 1
– Such a private individual may bring his suit in any court.
Mr. HIGGINS (Northern Melbourne).So far as the mere matter of expression is involved, I do not feel justified in interfering with the drafting of the measure. I never do so interfere, because it is utterly impossible for a large body like this Committee to draft a Bill ; and the responsibility in this connexion must rest on the AttorneyGeneral. But I think this particular clause raises some very grave questions of substance. In clause 40 we have defined where the High Court is to have exclusive jurisdiction, and in clause 41, we ought to show where the High Court is to have concurrent jurisdiction with the Supreme Courts, or other Courts of the States. Of course, the simple and obvious way of doing this would be to provide that the jurisdiction of the High Court shall be concurrent with the Courts of the States in certain matters. However, the Attorney-General, in the exercise of his discretion, has said that he. would like to provide first that it shall be exclusive, and afterwards to use special granting words in regard to it. I should not strenuously object to that, as I feel that we may attain the same object in other ways, if the Committee accede to my views. If honorable members will look at what the honorable and learned gentleman proposes to insert in clause41 in lieu of paragraphs (a), (b), and (c), it will be seen that he wishes to substitute the High Court for the Full Courts of the States. I hope I am not dealing with technicalities more than is absolutely necessary, because it is a very important matter, and will go to the very root of the position of the High Court. The amendment says -
Every appeal from a decision of the Supreme Court of a State or any other Court of a State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council, shall be brought to the High Court.
I think I am right in saying that the object of the Attorney-General is to prevent an appeal from a Judge of first instance in a Supreme Court to the Full Court.
– Not now. Not under the new paragraph. I have had to abandon the original proposal in consequence of the amendments which have been made, and if my honorable and learned friend will look at the amendment, I think he will see that it does not affect any appeal to the Supreme Court of a State, but affects only appeals from the Supreme Court of a State.
– Does the term Supreme Court include the Full Court?
– That is to say, an appeal may be brought from the Judge of first instance to the Full Court.
– There may now.
– It is very material that the intention of the honorable and learned gentleman shall be carried into effect, and I think we are justified in calling attention to the drafting, because I certainly read the provision in the form in which be says it ought not to be read. I take it that it never was the intention of the Constitution to substitute the High Court for the Full Court of the State. It was the intention of the Constitution to give the High Court the same jurisdiction as the Privy Council. Supposing that a man has been made insolvent by the order of a Judge. If he is made insolvent his hands are tied, he cannot deal with his assets. These are vested in the assignee or trustee, and there he is helpless. Supposing that a mistake has been made, at the present time he is able to appeal to the Full Court, and very often he can be heard the next month. It is important that we should provide that that right of appeal shall not be taken away, because, if we restrict the right of appeal to the High Court, which must consist of three or four Judges at least for the purpose of an appeal, it will mean that the litigant will have to wait the time of five Judges who will have duties all over Australia, as distinguished from five, six, or seven Judges in a particular State, and his chances of getting his appeal heard will be much less. I think the AttorneyGeneral has intimated that he is in favour of what we suggested on the last occasion -leaving the Full Court with that same jurisdiction.
– We must be now.
– Quite so. The honorable and learned gentleman desires to delete the words “ in such matters “ at the beginning of sub-clause (2), so that it shall then read as follows : -
The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with Federal jurisdiction, subject to the following conditions and restrictions.
– No ; the words are to come in after the word “ jurisdiction,” so that the provision will then read -
In all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it, except as provided in the last preceding section, and subject to the following conditions and restrictions.
– I have not had the privilege of seeing the list of amendments until this moment. I understand the honorable and learned gentleman to wish that the several Courts of the States shall be invested with Federal jurisdiction in all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it ?
– We transfer the whole - we give a complete endowment to the States Courts.
– Yes, but there is to follow the new paragraph which appears on the sheet which has been circulated -
Every appeal from a decision of the Supreme Court of a State, or any other Court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council shall be brought to the High Court.
– That is in Federal matters only.
– Quite so. I understand that it is so far limited. It is not clear, but I think it may be made clear that the Supreme Court of a State includes the Full Court and the appeals to it ; that, in fact, there is no appeal to the High Court until after the Full Court has had a chance of dealing with the case.
– Under that part, yes. There is a later paragraph, but I do not think it affects the honorable and learned member’s point. We strike out paragraphs (a), (b), and (c), but we leave paragraph (d), which gives an option afterwards.
– I should like the AttorneyGeneral to state exactly what is the area of the proposed alterations. I feel that I am going a little on supposition here. Suppose that an action involving Federal jurisdiction is tried before a J udge in the Supreme Court of a State. In all cases, even those which involve Federal jurisdiction, there is an appeal to the Full Court.
– I think that will be clear.
– I am quite sure that the honorable and learned gentleman will satisfy himself that the words convey that intention. Paragraph (d) refers to an appeal from a decision - that is, of the Full Court or of the J udge of first instance.
– It gives an optional appeal. In all these cases it rests with the litigant to say whether he will appeal to the Full Court or to the High Court.
– As the amendments have only just been circulated, it is advisable that the honorable and learned gentleman should make an explanation to the Committee.
– I did not make the explanation before, because I isolated, so to speak, the point raised as to the question of drafting. But as I gather from the tacit assent of my honorable and learned friend, Mr. Glynn, and the remarks of the last speaker, that this question is waived, I am only too willing to proceed to the matter of substance, which is of extreme importance. Honorable members will notice that the amendment proposed to be made in the first part of sub-clause 2 is of great importance. Taking out the words “in such matters,” we commence the sub-clause with the words “ the several Courts of the States,” and we then proceed within their respective limits, of whatever nature they may be, to invest them with Federal jurisdiction.
– Does that mean the geographical limits of the State 1
– Yes, whatever the limits may be. There are in New South Wales District Courts, in Victoria County Courts, which entertain cases up to, I think, £250. Whatever their limits are, within those limits the State Courts are to be invested with Federal jurisdiction.
– Not absolutely. It is only given where an Act of Parliament gives it, or where the Constitution Act gives original jurisdiction.
– Exactly ; we give all that we have to give.
– It is left to be subsequently added to.
– I am not able to agree with my honorable and learned friend.
– That is how the amendment reads undoubtedly.
– If the honorable member will look at that part of the sub-clause again he will see that the endowment is as absolute as it can be made. “ If he can point to any way in which it can be made more absolute, I shall be very glad to adopt it. We commence the sub-clause by saying that the several Courts of the States within their several limits shall be vested with Federal jurisdiction, and we then introduce words to make it perfectly clear, so far as we can, that we convey the whole of the Federal jurisdiction as far as we can invest it.
– Would that mean investing the whole of the powers contained in section 76 1
– We say so.
In all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it.
So far as we can deal with original jurisdiction at all, by those words we invest the
States Courts with the whole of that jurisdiction - put it beyond all question by explicit words. Next we proceed to say -
Except as provided in the last preceding section.
That, of course, is necessary, because in clause 40 we have left a few matters, which are still to be exclusively in the High Court. But, by this form of words, we make it as plain as it can be made that, with the exception of those few matters, we vest the whole of the jurisdiction of the High Court. Now we come to the first affirmative proposition. We strike out paragraphs (a) (6) and (c) from the sub-clause, and substitute the new paragraph, which was printed and circulated last week, as follows : -
Every appeal from a decision of a Supreme Court of a State, or any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council shall be brought to the High Court.
The other Courts which are . there alluded to are the Equity Court in New South Wales, the Equity Court in Victoria, where the decision of a single Judge may be appealed against to the King in Council, and also that curious Court which is peculiar to . South Australia. These are the only Courts from which an appeal lay to the Queen in Council at the time of the passing of the Commonwealth of Australia Constitution Bill. So that practically the substance of that paragraph relates to the appeal from a decision of the Supreme Court of a State. The honorable and learned member for Northern Melbourne has asked whether that includes a decision of the Pull Court of the State. I take it that it does, that it in no respect alters, at ail events it is not intended to alter, the present system by which appeals can be taken from a single Judge of a State Court to the Full Court of that State. The paragraph refers only to appeals which, having reached that stage, may otherwise be sent to the King .in Council without going before the High Court, even although they were matters of Federal jurisdiction. This paragraph says that if there be an appeal in such a case, the parties not being satisfied with the decision of the Full Court of the State, that appeal shall be brought to the High Court. The operation of the provision is practically external, if I may use the word, to the practice of the Supreme Court, to which I understand that my honorable and learned! friend, the member for Northern Melbourne,, was alluding when asked whether the endowment of the States Courts was absolute,, and whether or not it was intended to interfere with their appeals within their own States, I replied distinctly that that was notintended, except so far as paragraph (d), confers that option. We have not arrived, at paragraph (d) yet, but I have called, attention to it. That paragraph says -
Wherever an appeal would lie but for this Act, from a decision of any Court or J udge of a State to the Supreme Court of the State, an appeal from the decision shall lie to the High Court.
But that is not an exclusive appeal. Itdoes not interfere with the existing right of appeal, from, say, a District CourtJudge or any County Court Judge to the Supreme Court of the State. But it does provide an option to which, at the risk of somewhat confusing the argument on thispoint, I would call the honorable and learned member’s attention.
– An appeal would liefrom a State Judge exercising Federal jurisdiction to the Full Court 1
– Certainly ; under my new paragraph it comes before the High. Court on appeal from the Full Court of a. State.
– A litigant can appeal to the Full Court of his State, or to theHigh Court, at his own choice 1
– And in any case an. appeal lies to the Full Court 1
– In any case it lies tothe Full Court.
– It seems to methat a portion of New South Wales is atpresent cut off almost completely, so far as concerns ordinary access to its own StateCourt. I refer to the district of Broken Hill. I was wondering whether this would be the proper place in which to introducesome provision that would allow the people of Broken Hill to go to the StateCourt at Adelaide if they thought fit. The clause under consideration seems in a manner to continue existing limits as to locality of venue; and I was wondering whether it would not be possible to insert someclause under which, so far as concernsFederal cases, the people of Broken Hill might have resort to the Supreme Court of the neighbouring State.
– Of course, the honorable member for Bland clearly understands that it is onlypossible in this measure to deal with questions of Federal jurisdiction, and he also knows that its matters of original jurisdiction are now considerably limited. We are, so far as we can, transferring the whole of the Federal jurisdiction to the States Supreme Courts. There is no provision at present for such cases as those to which the honorable member has called attention.
– Would it not be possible to insert something to meet them ?
– The question involves some very difficult problems, but I will give consideration to it and reply at a later stage. The honorable member understands that in some matters of Federal jurisdiction it would be possible for a litigant at Broken Hill to appeal to a Justice of the High Court if he were in Adelaide. But the honorable member desires me to consider whether it would not be possible to allow matters of Federal jurisdiction affecting certain parts of New South Wales to be dealt with by a State Judge of South Australia. That would be an entirely different problem.
– It seems to me at the first blush that it should not be impossible to enable the people of Broken Hill to go to other courts than the courts of New South Wales.
– My strong objection to this clause remaining as it stands relates to the form of drafting. We have struck out paragraphs (e) and (f) of clause 40. Now, in clause 41, we are giving back again to the High Court the powers we took from it under clause 40. There is a danger in allowing this drafting to remain, because, in passing other Acts, we may forget to state where the jurisdiction shall lie. In bankruptcy cases, where, of course, there ought to be a Judge sitting in each State - because it is of the greatest importance to the commercial world that such cases should be settled speedily, whatever decision is arrived at - we may find people in Brisbane having to wait until a High Court J udge visits them, or cases in Perth may be delayed until a Judge of the High Court goes to Western Australia. I cannot understand the Attorney-General’s reason for striking out provisions from clause 40, and then in the first three linesof clause 41 practically reintroducing the same jurisdiction. Let me make this matter perfectly plain to honorable members. We have first of all struck out of clause 40 certain paragraphs, and have consequently taken away the exclusive jurisdiction of the High Court as to those matters. Then, in the first few lines of clause 41, we give back again the whole of that exclusive jurisdiction. It is true that the Attorney-General points out that, in subsequent parts of the clause, there is a limitation as to that exclusive jurisdiction. But, by leaving in these words, the effect may be that in passing patent laws, bankruptcy laws, and divorce laws, we shall each time have to make provision as to where cases are to be settled, and by what courts they are to be tried. An omission to make such a statement in any future Act would vest the jurisdiction in the High Court exclusively. I cannot conceive of a more dangerous provision being inserted having regard to the contingency that we might allow a Bankruptcy Bill to go through Parliament without making provision for the question of jurisdiction.
– Can the honorable and learned member conceive of a Bankruptcy Bill that did not provide for the courts by which cases were to be tried ?
– My objection is that this clause reinvests jurisdiction exclusively in the High Court. The honorable and learned member for South Australia, Mr. Glynn, agrees with me on this point ; and I ask the honorable and learned member for Northern Melbourne whether he is not of the same opinion ? I ask the AttorneyGeneral himself whether it is not true that the effect of the first three lines of clause 41 is to give back to the High Court the jurisdiction taken from it by clause 40?
– Has not the honorable and learned member failed to read the amendment circulated?
– I am sufficiently answered by the Attorney-General’s silence.
– No, the honorable and learned member is not ; this is simply a means to an end.
– The only limitation is contained in paragraph (d). This is a matter of such importance that the Attorney-General might as well take the Bill back and redraft it in the light of the decisions of the Committee upon clause 40. If he does not, he will place a great many honorable members in the unfortunate position that when the Bill comes up for its third reading they will be compelled to vote against it, however much they might be disposed to go part of the way with the majority.
– I should like to hear from the Attorney-General some answer to the statement that this clause gives back to the High Court the jurisdiction which was taken away in the preceding clause. It seems to me to be clear that it does so. In clause 75 of the Constitution it is provided that the High Court shall have original jurisdiction in five matters. It was sought, in this Bill, to make that original jurisdiction exclusive. Of those five matters, we have agreed to strike out three. We have left matters arising under any treaty, suits between States, and suits between the Commonwealth and any person. Those are matters in which, under the Constitution, the High Court has original jurisdiction, and upon which, by this Bill, exclusive jurisdiction was sought to be given to it. It is sought now to give the Supreme Courts jurisdiction in matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it, “except as provided in the last preceding section.” I am not quite clear which clause that is. I suppose it is clause 41. I am bound to say, however, that the whole matter will be very ambiguous. One point is very clear, however, and that is, that what we effected by amending clause 40 is undone by clause 41 as it now stands. The Attorney-General contends that the matter will be made quite clear if a certain amendment, of which he has given notice, is agreed to. I do not think it will. The proposal is that sub-clause (2) shall be amended so that it will read as follows : -
The several Courts of the States shall, within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with Federal jurisdiction in all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it. . . .
That is to say, they are to have jurisdiction in respect of all matters under section 75 of the Constitution. That jurisdiction is to be as exclusive as-
– No. It sets out what jurisdiction the States Courts are to be invested with. It is. investing the States Courts with all the jurisdiction.
– The position must be very clear to the Attorney-General, or he would not stand by his proposal ; but if any honorable member can prove to me that the effect of clause 41 is not to take away directly the effect of the amendments made in clause 40, I shall be happy to receive that explanation.
Mr. HIGGINS (Northern Melbourne).- I think I should intimate at this stage that I intend to move an amendment of the amendment to insert new paragraph (a), notice of which has been given by the AttorneyGeneral. The proposed new paragraph provides that -
Every appeal from a decision of the Supreme Court of a State, or any other Court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be brought to the High Court.
In my opinion, that provision would be void as a matter of law.
– I understand from the Attorney-General that clause 41 vests the superior as well as the inferior courts of the States with jurisdiction 1
– I presume that it is designed to confer upon them jurisdiction in regard to all laws’ made under the authority of Parliament t
– That being so, I think I should illustrate the point I desire to make by referring to the Immigration Restriction Act, which provides that penalties shall be imposed on summary conviction, but prescribes no tribunal for hearing cases of the kind. The words “summary conviction” appear in the Act, but no court is vested ‘ with jurisdiction. The AttorneyGeneral will also observe that in the Punishment of Offences Act 1 901, we make provision to carry on pending the establishment of the High Court, and we must remember that on the passing of this Bill, all the authority conferred on States Courts under that Act will cease. I desire, only as a matter of interpretation, to learn whether the AttorneyGeneral considers that this clause will be sufficient to confer jurisdiction upon all inferior courts to hear cases under Commonwealth Acts, which impose certain penalties for certain offences, but which do not give jurisdiction to any particular court.
– Before the honorable and learned member for Northern Melbourne moves the amendment of which he has given notice, I should like to reply to the honorable member for West Sydney. I presume that he was absent when I explained that the object of the first sub-clause is to carry out precisely what he desires shall be done. It proposes to take all the Federal jurisdiction outside the exclusive jurisdiction, and vest it in the High Court, in order that the whole of it shall then be transferred from the High Court to the States Courts. I believe that object will be effectively accomplished by the sub-clauses which follow. Having vested the whole body of Federal jurisdiction, outside clause 40, in the High Court, we next provide in subclause (2), in the widest words I have been able to find, that the whole of the Federal jurisdiction shall be vested in the States Courts, subject to certain limitations. We thus give them an area of authority which embraces, as the honorable and learned member for Darling Downs has pointed out, the vesting of jurisdiction in them, to deal with cases under all the Commonwealth statutes in which penalties have been imposed, but in which the inferior courts required to act have not been specified. I am unable to conceive of a more complete vesting of all the Federal jurisdiction in the States Courts.
– All that can be conferred upon them.
– Yes. I am not speaking of the possibilities of the future. I take it that the very essence of any amending Act; or any Act dealing with any extension of jurisdiction that may be passed, will be a provision as to the courts by which that jurisdiction shall be exercised, and the extent to which it shall be employed. It is at this point that I part company with the honorable and learned member for Werriwa. I cannot conceive that any House of Parliament would be so blind to the position as to proceed to greatly extend the jurisdiction of the High Court, or other Federal tribunals, without at the same time making provision for the exercise of that jurisdiction. Even a Parliament in which there was not one member of the legal profession would not do that. I am not attempting, in this Bill, to provide for all the extensions of jurisdiction which this Parliament, or future Parliaments, may think fit to authorize. “ Sufficient unto the day is the evil thereof.” Surely it is enough to provide here, in the amplest way, for all the matters with which we have power to deal, and all the jurisdiction which we are actually vesting. If we give to the States Courts all the jurisdiction that we now have power to give, why should we enter upon the consideration of questions of what we might or might not give in the future?
Mr. CONROY (Werriwa).- I feel that the Attorney-General himself has fully justified my objection. When the Committee dealt with clause 40, it laid down the very definite principle that the High Court should be practically an appellate court. The object which the Committee had in view in making that provision was to save expense. Honorable members saw that if original jurisdiction other than that absolutely conferred by the Constitution were given to the High Court, fifteen or twenty Judges, instead of five, would be necessary, or a number of inferior courts would have to be created.
– We are not departing from that principle.
– The Attorney-General admits that he has gone outside it, and that he intends to extend the jurisdiction of the High Court, unless certain restrictive clauses are contained in every measure which we may subsequently pass. If we were to pass any Bill in which there was not a restrictive clause, the jurisdiction to deal with cases under it would vest in the High Court.
– The exclusive jurisdiction?
– That practically would be the result. The Attorney-General admitted that it would be so when he asked the Committee whether there would not be a sufficient number of lawyers in the House to see that every Bill brought forward contained a few clauses determining what court should exercise jurisdiction under it.
– The honorable and learned member is not applying my statement correctly.
– I do not see how the honorable and learned gentleman can get away from that position. I intend to move -
That sub-clause (1) be omitted.
We cannot foresee what will be the absolute result of this clause if it is allowed to remain in its present form, and, therefore, I think it should be redrafted. If the AttorneyGeneral is desirous of following the principle laid down by the Committee, that the High Court shall be only an appellate court, he can readily draft a few clauses clearly embodying that proposal. In every Bill passed by this Parliament in future it will be necessary to provide where jurisdiction under it begins and ends. If we fail to do so we shall find the jurisdiction of the High Court practically exclusive under it. Even if this were not quite so, the practical effect of omitting such a provision would be to vest the High Court with jurisdiction, and in that way we should go beyond the principle that we have decided upon in striking out paragraphs (e) and (f) of clause 40, and also certain provisions in clause 31.
Mr. GLYNN (South Australia). - I should like to ask the Attorney-General whether, as the object which he has in view can be accomplished in the way proposed by the honorable and learned member for “Werriwa - and as there is some doubt as to the expediency of allowing these words to remain - it would not be better to make the amendment suggested. As a matter of fact, I had given notice of an amendment -to omit these words before clause 40 was dealt with. This clause is open to an objection similar to that raised to clause 40, although not to the same extent. Under clause 40, it was originally proposed to confer upon the High Court exclusive jurisdiction, with one exception, in all cases, arising under section 75 of the Constitution. The one case omitted from that clause, however, was impliedly re-inserted in clause 41, so that the clause was open to the objection which has been so strongly urged by the honorable and learned members for West Sydney and Werriwa before the amendment was made. The objection holds now with double force’. As the desired change can be made in one general statement instead of two, would it not be better for the AttorneyGeneral to allow those words to be struck out? I quite admit that the subsequent amendment proposed to be made, if we interpret -it in the way in which the Attorney-General desires, though it is a little ambiguous, modifies the effect of the retention of these words. But surely it is bad drafting to first put in words which say a certain thing and afterwards to abrogate them by a subsequent part of the clause ? The general rule of construction is that words are put in for some purpose, and if the purpose cannot be clearly shown the Judges will not know what to do. The Attorney - General thinks that by the proposal he makes he is really vesting the Courts of the States with full concurrent jurisdiction, and I understand the honorable and learned gentleman to mean that he is giving it wherever the High Court has original jurisdiction, and wherever we can give jurisdiction under section 76 of the Constitution.
– That is so.
– There is an ambiguity in the way in which the honorable and learned gentleman proposes to do that, because the proposed amendment reads -
In all matters in which the High Court has original jurisdiction, or in which original jurisdiction may be conferred upon it, except as provided in the last preceding section.
The jurisdiction may be conferred upon it by a specific Act of Parliament. The clause may not be read as the Attorney-General, evidently intends that it should be read, “ in all matters in which original jurisdiction can be conferred upon it.” That is the honorable and learned gentleman’s intention evidently.
– Hear, hear.
– It is open to the other construction.
– The honorable and learned member thinks that “ can “ is better than “may.”
– The use of the word “ can “ will make the clause absolutely clear while the use of the other word will render its meaning doubtful. I think that if the word “can” is used it will meet the objection raised by the honorable and learned member for Werriwa. With that honorable and learned member I still think that it would be better to redraft the clause, but personally I do not care to interfere with drafting. If the Attorney-General will use the word “ can “ instead of the word “ may” I shall be prepared to allow this clause to go as proposed.
– I am perfectly willing to use the word “ can “ instead of the word “ may.” I hope that under these circumstances the Committee generally will accept my assurance that this matter has been given most careful consideration. In spite of the obvious objection to first giving a power and then transferring it, the way in which the Constitution .is drawn in my opinion, renders this course desirable. This is a deliberate opinion formed after a good deal of examination. The drafting of the clause in the way proposed will render the transfer more explicit. I am prepared to do what the honorable and learned member for South Australia, Mr. Glynn, has asked.
– Am I to understand that the honorable and learned gentleman will be prepared to recommit the clause if he subsequently finds that it will not work well?
Amendment agreed to.
Amendments (by Mr. Deakin) agreed to-
That the words “ in such matters,” line 6, be omitted.
That, after the word “jurisdiction,” line . 10, the following words be inserted : - “ in all matters in which the High Court has original jurisdiction, or in which original jurisdiction can be conferred upon it, except as provided in the last preceding section and “.
That paragraphs(a),(b), and (c) be omitted.
Amendment (by Mr. Deakin) proposed -
That, after the word “ restrictions,” line 11, the following words be inserted : - “(a) Every appeal from a decision of the Supreme Court of a State, or any other court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be brought to the High Court.”
Mr. HIGGINS (Northern Melbourne).The time is now ripe to call the attention of the Committee to what I think is a departure from the Constitution. The proposal as re-drafted is that every appeal in a matter which involves Federal jurisdiction from a Supreme Court shall be brought to the High Court.I wish it to be quite clear that I understand this is only proposed where there is a question of Federal law or of the Federal Constitution involved. Assuming that in the course of a long case, there is some question raised as to the meaning of the Federal law on divorce, on insolvency, on bills of exchange, or any of the numerous matters with which this Parliament may deal, the idea is to deprive the Privy Council of the right it has at present of hearing appeals upon those matters.
– As of right.
– As of right. I submit that there is no power to deprive the Privy Council of this right.
– It deprives it of the appeal as of right.
– The position is that at present the Privy Council, under an Order in Council, made under the Act 7 and 8 Vic., has full power to hear all appeals from the Supreme Courts of the colonies, Canada, Australia, and elsewhere, so long as the amount involved is over£500. It is by virtue of an Imperial Act that the Privy Council has this right, and it is only by an Imperial Act that the right can be taken away.
– Hear, hear.
– The Constitution is an Imperial Act, but the Constitution does not take away the right of the Privy Council. All that the Constitution says is that a High Court may be created, and may hear appeals from the Supreme Courts of the States. It does not say that the High Court must hear appeals, and therefore the attempt which is being made is to concentrate, and to drive into the High Court, willy nilly, appeals which at present would go, as of course, to the Privy Council. I admit that the Attorney-General is limiting his proposal to cases where there is some question of the Constitution, or of Federal law involved. I hope honorable members will understand that I make the admission that the honorable and learned gentleman proposes to limit it absolutely in that way.
– But does the AttorneyGeneral limit it absolutely ?
– That is the intention. I rather think that these words will have the effect of limiting it to cases of Federal jurisdiction, because the amendment to which we have just agreed proposes that the several courts of the States shall within the limits of their several jurisdictions be invested with Federal jurisdiction
In all matters in which the High Court has original jurisdiction, or in which orginal jurisdiction can be conferred upon it, except as provided in the last preceding section.
Then there is the new proposal involving this condition and restriction : -
Every appeal from the decision of a Supreme Court of a State, or any other court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be brought to the High Court.
Although I agree with the honorable and learned member forWerriwa that in this clause it would, perhaps, have been better to expressly state “ every appeal where Federal matters are involved,” still I am assuming that the present drafting will be put right, and that that is the intention. I desire now to raise the substantial question whether there is any right on the part of this Parliament to say to a litigant who has been defeated in a Supreme Court of a State - “ You must appeal to the High Court, because there is some question of Federal law involved.” I dispute the constitutionality of the proposed amendment. If one looks at the Order in Council made on 7th June, 1860, in pursuance of the Acts 7 and S Victoria, it will be seen that the litigant has a right of appeal in any case in which a Supreme Court of a State decides against him where over £500 is involved. The words are -
Any person or persons may appeal to Her Majesty, her heirs and successors, in her or their Privy Council, from any finding, judgment, decree, order, or sentence of such Supreme Court of the colony of Victoria in such manner and within such time as hereinafter mentioned.
The provision could not be more universal than that. The mere fact that there may be new laws made after the Order in Council, which for this purpose may be treated as an Imperial Act, would not prevent the Order in Council applying. So that the effect of the Imperial Act, taken with the Order in Council, is that, no matter what new laws may be made by the Parliaments of Australia, and no matter what orders may be made in the Supreme Courts of New South Wales, Victoria, or any other of the States, the right of appeal lies to the Privy Council. Our Supreme Court Judges have the right, and do frequently decide as to the meaning of Imperial laws. I had a case of the sort only a few weeks ago. In the course of the working out of a case it may become necessary to decide as to the meaning of an Imperial law and a fortiori, the courts will have to decide as to the meaning of Federal laws. We cannot put Federal laws upon a higher basis than Imperial laws. I claim that the Constitution of the Commonwealth, though an Imperial law, has not altered the Imperial law which gives the right of appeal to the Privy Council. I do not dispute that the Imperial Parliament can change its mind and make any alteration it likes, but I say that so far it has not done so. In 1844 the Imperial Parliament said in effect, through an order in Council under the Act, that any person aggrieved by a decision of the Supreme Court of New South Wales, may appeal to the King in Council. Then there is another Imperial Act, passed in the year 1900, which says that the Parliament of Australia may create a High Court to which appeals from the Supreme Court of Victoria, New South Wales, or any of the other States may lie. The Imperial law enables litigants to appeal to the High Court of Australia, but it does not compel them to do so.
– Cannot we give Federal jurisdiction, and limit the conditions under which it shall be exercised ?
– I am speaking now only of the effect of the clause upon the right to appeal to the Privy Council. It is not now a question of giving Federal jurisdiction. We can give Federal jurisdiction to any Court in Australia, but when any of the Supreme Courts gives a decision under any law one may choose to name, there is annexed to it the right of the litigant who thinks he is aggrieved thereby to appeal to the Privy Council. It does not matter what body made the law under which the decision is given. It is not a question of the source of the law ; it is a question of what court gave the decision. ‘ If a Supreme Court, either through si Judge sitting as a court of first instance, or as a Full Court, gave a decision’ affecting a matter involving £500, an appeal would lie as of course to the Privy Council. I know that the AttorneyGeneral is enamoured of the idea of this clause, but he will acknowledge that I suggested to him some weeks ago that I doubted very rauch whether such a provision could be carried into effect.
– Hear, hear.
– I do not want to have a clause put into the Bill which is either obviously wrong or will lead to litigation and trouble hereafter. In these matters there must be differences of opinion, however, and therefore I would waive my objection if this particular difficulty ‘were referred to any impartial lawyer in practice, and he said that the clause is a right one.
– Is it necessary to leave the matter in doubt ? Cannot it be put beyond the possibility of doubt ‘I
– The question is one which is vital to the High Court. The Government is trying to compel litigants to appeal to the High Court instead of to the Privy Council.
– That is in respect to matters affecting our legislation.
– In cases in which even incidentally some trivial question with regard to the meaning of a Federal law is involved.
– The interpretation of the Constitution may arise independently of any of the statutes of this Parliament.
– Quite so. There is, however, a vague theory afloat to the effect that one set of Judges may close its eyes to one set of laws, and another set of Judges to another set of laws ; that the State Judges can close their eyes to the Federal laws, and the Federal Judges to the State laws. That is a mistake. The whole body of law must be consistent, and every State Judge, down to Justices of the Peace, just as much as the highest dignitaries of the High Court, must obey the Federal law. A rule of law must be followed in every court: I venture to respectfully submit to the AttorneyGeneral, however, that the effect of 7 and8 Vic., taken with the Order in Council made under it, is to give a litigant the right, if he feels himself aggrieved by aninterpretation of the Federal law, to appeal to the Privy Council. He may, therefore, snap his fingers at this provision compelling him to appeal to the High Court. I will give a concrete instance. Under the Constitution we may make a lawdealing with bills of exchange. Now there is no class of actions more common than actions upon bills of exchange. Suppose then that we had made a law affecting bills of exchange, and a question arose in one of the States Courts as to the rights of parties under a certain bill for £5,000 - a question relating to indorsement, to presentation, or to any other matter. That would be an ordinary commercial case. As things stand now the dissatisfied litigant can appeal directly from the Supreme Court of the State to the Privy Council. But the proposal of the Attorney-General is to deprive litigants of that right, and compel them to go to the High Court. There is to be no appeal to the Privy Council from theHigh Court unless special leave be given, and in most cases there must be a special recommendation from the High Court. That is an extraordinary interference with existing rights, and, not only do I not think it expedient, but I think it impossible. I put my argument on two grounds. First, that it is inexpedient under present circumstances to deprive litigants of their right to appeal on commercial causes to the supreme tribunal of the Empire; and secondly, that we have not the power to do so, because we cannot interfere with the operation of 7 and8 Vic., which gives litigants the right to appeal to the Privy Council. I have indicated before that I think the option a most unwholesome one, and I know how it will work out in practice. Litigants who are aggrieved by the decision of a. Supreme Court will study the idiosyncrasies of the members of the High CourtBench and of those of the Privy Council before deciding which court to appeal to, and thus the man who wants to appeal will be able to hold the whip over the man in whose favour the decision is given.
– The Attorney-General is trying to prevent that.
– Yes, but in my opinion a provision to that- effect would be ultra vires. We cannot abolish the option ; but we can prevent our statutes from becoming foolish. The option is given by the Constitution, and we must abide by it. If we. provide in the Bill that appeals must go in a certain direction, we shall be exceeding our powers, and only misleading litigants. Imove -
That the amendment be amended by the omission of the word” shall,” line 7, witha view to insert in lieu thereof the words “may at the option of the appellant.”
Mr. CONROY (Werriwa) . - I thoroughly agree with the remarks of the honorable and learned member for Northern Melbourne. We are now face to face withone of the difficulties which were foreseen, both when the Convention was sitting and’ alternative clauses were before it, and, subsequently, when the Constitution Bill was altered by the Imperial Parliament. The clause attempts to get over a difficulty in the Constitution itself. That difficulty arises because the Constitution allows alternative appeals. There is, however, no way in which we can overcome it without amending the Constitution. No doubt, if we took the course provided in the Constitution itself for the making of amendments, the Imperial Parliament would consent to any amendment that we might make ; but the honorable and learned member for NorthernMelbourne has pointed out that we cannot amend the Constitution by the mode of procedure now being adopted. All that we shall do, if we pass the clause as proposed, will be to create doubt in the minds of the non-legal world as to the meaning of the provision. Laymen, when they read the words “shall ,be brought in the High Court,” will think that an appeal will not lie to the Privy Council, and may, therefore, go to the High Court against the wishes of their legal advisers. But where they adopt legal advice they will no doubt go to the Privy Council. One of the first rules for the drawing up of a statute is to make it as precise and certain in form and expression as the knowledge of the men who are drawing it up enables them to make it, and we are departing from that practice when we agree to a provision which, at .best, can result only in litigation. I think that the amendment of the honorable and learned member for Northern Melbourne should be accepted. The words in the Constitution Act are very clear, and I am at a loss to understand how the Attorney-General can think that they can be got over. Does he suggest that because Federal jurisdiction is conferred upon the Supreme Courts they must, before they allow any appeal as of right to the Privy Council, inquire as to the law under which the decision was given ? If they did, they would practically be saying to litigants - “ Although the Constitution entitles you to appeal to the Privy Council from the Supreme Court on any matter, as this is a Federal matter you cannot appeal.” Under such an interpretation of the Constitution, an appeal from a decision under the Imperial Navigation laws would not lie. Are not our courts called upon every day to interpret Acts passed in other countries? Does the Attorney-General hold that no appeal would lie to the Privy Council in a case such as that of McLeod v. McLeod in Sydney, which involved the interpretation of an American Act?
– In that case the court did not deal with an American law, but with an Act passed in New South Wales, and an Imperial Act which had been repealed, and of which one section was still in force in New South Wales.
– Does the AttorneyGeneral wish us to believe that, if a decision were given in New South Wales upon a question affecting New Zealand law, the Privy Council would refuse to hear an appeal ? I contend that, irrespective of the law involved, the moment a decision is given by a State Supreme Court upon any matter an appeal will lie to the Privy Council, and that we cannot take away this right. Perhaps we have the right to limit the power of appeal in matters involving the interpretation of the Constitution, but, even in regard to this point, it is held by some honorable and learned members that, the moment we invest States Courts with jurisdiction, the ordinary course of proceeding will not be followed, and that appeals will lie to the Privy Council. If that view is correct, the objections raised by many honorable members against the Bill on the ground that it is unnecessary are strengthened. The position taken up by those honorable members who supported the proposal that original jurisdiction should be given to the High Court would also have been .improved if the committee had not decided against thenviews. I shall support the amendment, because the first object of a statute should be to lessen litigation, and because, in view of the doubts raised regarding a possible conflict with the provisions of the Constitution, it is necessary to make matters perfectly clear.
– With all deference, I differ from the honorable and learned member for Northern Melbourne upon this question, which he was good enough to brim? under my notice privately a few weeks ago. The strength of his case on the question of law must be apparent to all honorable members who listened to his extremely clear exposition of his views. They may, however, have been somewhat puzzled when, after exposing with great force the very undesirable position in which we shall be placed if optional appeals are permitted, my honorable and learned friend went on to say that, although disapproving entirely of optional appeals, he yet thought, on the ground of expediency, that it would be very undesirable, even if we had the power, to get rid of them.
– No ; I say that the optional appeal is fixed upon us by the Constitution, and that we must abide by that.
– I think that the honorable and learned member will admit that the extreme difficulties imposed upon us by optional appeals justifies us in making every effort to get rid of them ; and that is the object with which the proposal is made in this Bill. I have addressed myself with great care to the Constitution, in order to discover if it is not possible to avoid the optional appeal. I need not at present enter into a discussion as to their inexpediency, because, first of all, if it be not possible for us to obtain the desired jurisdiction, we must submit to the double jurisdiction. I fear, however, that it may weigh with honorable members who, whatever their opinion of the legal question may be, are disposed to agree with the law of the honorable and learned member for Northern Melbourne. Let me now, apart from that aspect of the matter, explain why I have endeavoured to introduce this sub-clause into the measure, even after my honorable and learned friend was good enough to put to me his own clear and strong views on the question. In the first place, I rely upon the fact to which the honorable and learned member has referred, that the Constitution is an Imperial Act, and carries with it all the authority which Acts creating the appeal as of right to the Privy Council can carry, and that, we are to read it as passed in the light of existing Imperial statutes, when emanating from the body which having passed these statutes has authority to amend them either directly or by implication. I submit that the endowment which section 73 of the Constitution gives to the High Court may in effect repeal them by implication. Section 73 provides that the High Court shall have jurisdiction to hear and determine appeals from all judgments, decrees, orders, and sentences, not only of Justices of the High Court, but of any other Federal Court, or court exercising Federal jurisdiction. It is in the power of the High Court - in fact the Constitution imposes jurisdiction upon it - to hear appeals from any Federal Court or court exercising Federal jurisdiction. The courts which would be affected by this sub-section, are courts exercising Federal jurisdiction. They are Courts of the States, and are being endowed with all the Federal jurisdiction we can give them under this clause. Section 71 is important in this connexion. Then, if we turn to section 77 we find that with respect to any of the matters mentioned in the previous two sections, that is with respect to any matter of Federal jurisdiction, the Parliament may make laws not only defining the jurisdiction of any Federal Court other than the High Court, but defining -
The extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is vested in the Courts of the States. and vesting it or any part of it in State Courts. I submit, therefore, that under section 77, sub-section 2, it is possible for us to give exclusive jurisdiction to the High Court in all those matters of Federal jurisdiction which go on appeal to the Supreme Courts of the States, and to require that all appeals in matters of Federal jurisdiction which come before them shall be brought before the High Court. If, then, we have the power to make this appellate jurisdiction exclusive, and to shut out the Supreme Courts of the States or to define the extent to which they shall exercise jurisdiction, that implies that we have the right to invest them with power to hear appeals subject to certain conditions. That is what is sought to be done in this clause. First of all, we absorb in the High Court the whole of the Federal jurisdiction, and then invest the States Courts with it, subject to certain conditions. The position I take is that we are empowered under the Constitution to render back the appellate jurisdiction upon Federal matters to the Supreme Courts, with the condition that any appeals from them shallbe brought before the High Court. They will have no such jurisdiction except under that condition. I admit the force of the contention of the honorable and learned member for Northern Melbourne, but, notwithstanding the deference which I pay to his opinion, and to the opinions of other honorable and learned members, venture to submit that the Constitution justifies the assumption that we have the power to condition these appeals. The inconvenience, loss, and difficulty created by the optional appeal to two different courts justifies us in endeavouring to claim this power. The appeals to the King in Council preserved either by section 73 or74 of the Constitution, are those as of grace as distinguished from those as of right, and as the only appeals with which we propose to deal in the new paragraph are appeals as of right - I admit our inability to reach appeals as of grace, which would still be retained in these matters - it seems to me a fair construction to place upon the whole of these clauses when read together, to say that just as section 74 disposes of appeals as of right from the High Court, and leaves untouched appeals as of grace, in like manner sections 71, 73, and 77 when read together, empower this Parliament to deprive litigants of appeals as of right from the States Courts always leaving them the prerogative appeals as of grace.
– When the AttorneyGeneral speaks of an appeal as of grace, does he mean an appeal direct to the Privy Council or to the High Court ?
– Section 74 refers to appeals from the High Court only, but section 73 relates to appeals to the Judicial Committee of the Privy Council from States Courts in matters arising in them apart- from Federal jurisdiction.
– Under this clause does the honorable gentleman say that an appeal would lie direct to the- Privy Council in any circumstances ?
– This clause does not attempt to deprive litigants of the right of appeal as of grace. Its effect is to take away from them the appeal as of right from States Courts. Both on the particular reading of the words relating to these appeals, and on the general construction to be placed upon the whole chapter, the insertion of the new paragraph can be justified. Unless it be disposed of upon considerations of expediency, as being, perhaps, premature, there is a great deal to be urged iti its favour from the stand-point of taking the utmost advantage of our powers in the Constitution, of reading them in the largest possible way, while not attempting to deprive litigants of the prerogative appeal as of grace, to the Judicial Committee of the Privy Council. I hope the lay members of the Committee will understand that if this paragraph be inserted, it will still leave, even in matters of Federal jurisdiction, the .same appeal from’ the States Courts upon special leave to the Privy Council that exists to-day. We cannot entirely abolish appeals to the Judicial Committee of the Privy Council. It will abolish only appeals as of right. But if my proposed paragraph be inserted, all matters involving the exercise of Federal jurisdiction would first have to be brought before the High Court. It would then rest with the appellants to determine whether they would go farther. We know that in the great majority of cases the decisions given by the Supreme Courts of ‘ the States are accepted by suitors as satisfactory. The functions of the High Court would cover a larger ambit, and probably a great many of the cases coming before it would not be taken on to the King in Council. I do riot dispute that there is much force in the contention of the honorable and learned member for Northern Melbourne, but from> the , reading* of ‘the Constitution which I have given, it seemsto me that we are .within the, power of Parliament if we enact this sub-clause.
Mr. GLYNN (South Australia). - Personally, I ‘ lay less stress upon the legal objection to this clause, because of the possibility of its validity being challenged on the ground that it is unconstitutional, than I do upon the wisdom of passing it.. The honorable and learned member for Northern Melbourne has declared that if a clause is. ultra vires it is our duty not to place it upon the statute-book. I confess to entertaining a slight doubt about that matter. -The balance of my opinion is with the honorable and learned member, but I cannot absolutely set up that opinion against the posi-tion assumed by the Attorney-General, and also by Professor Harrison Moore, that Federal jurisdiction can be conferred upon State Courts subject to a condition. I quite agree with the AttorneyGeneral that possibly appeals as of right will be affected by the adoption of this paragraph, whilst appeals as of grace may not be affected. I am not quite sure upon that point. But -quite irrespective.bf whether or not we vest Federal jurisdiction in the States Courts, I would .point but that under the Constitution itself, probably those courts already have that jurisdiction. If so, appeals, both as of right and as of grace, are permitted to the Privy Council. At the same time any Act that we pass may,’ by implication, repeal appeals as of grace to the Privy Council, though it is generally acknowledged that to accomplish that end express words must be employed. It has been laid down in a Canadian case that Parliament cannot negative a prerogative which exists without the use of express words having that effect. The Dominion Parliament passed an Act in ‘-which it declared that notwithstanding any ‘ prerogative to the contrary an appeal was abolished. Within the past two or three years a case was heard in England, in which it was decided that the old rule requiring a prerogative to be expressly negatived did not hold good in all cases. It was held that by implication the prerogative could be cut down. That being so, it is quite open to argument that under the Acts Interpretation Act, and under section 2 of the Constitution which expressly binds the Crown, we may, by implication, limit the power of appeal to the Privy Council as of grace - that is with the permission of the Privy Council. But subjectto that qualification, I agree with the Attorney-General that the appeal as of grace will be open, and that what we are now attacking is the power of appeal as of right. The honorable gentleman declares that where we vest Federal jurisdiction in a court, we can vest it subject to any condition which we choose to impose. To some extent I have answered that contention by showing that we may not be required to vest it by Act of Parliament, because such jurisdiction may have been conferred upon theStates Courts by the Constitution. It is a doubtful point, but it has been held by some -and I think by Professor Harrison Moore - that the jurisdiction may exist under section 5 of the Constitution. I believe he even goes further and says that as a matter of general British law this jurisdiction may exist without it being specially conferred by Act of Parliament. If that be so, the appeal as of right to thePrivy Council exists under the Constitution. The original jurisdiction exists without any actionbeing taken by us, and incident to that jurisdiction is the power to appeal to the Privy Council. If, as the AttorneyGeneral says, we bestow jurisdiction, it might be we can limit it, but if it exists without us we cannot cut it down.
– Where does the honorable and learned member say that Federal jurisdiction has been vested in the States Courts?
– Under section 5 of the Constitution, which makes that Act as an Imperial Act binding upon the Crown .
SirJohn Quick.- That merely means that the law must be executed.
– But it has been argued that it has a very much wider’ signification. It is argued by Professor Harrison Moore with a good deal of conclusiveness that, altogether apart from the Constitution, as a matter of general British law, this Federal jurisdiction does exist. If that be so, inasmuch as the jurisdiction arises out of this Bill, the appeal to the Privy Council which exists before it is passed will still be open. In the Canadian case ofCushing v. Dupuy it was laid . down that where Parliament confers a right of appeal it can also take away that right. In that case an appeal was given as of right from the Insolvency Court of Quebec to the Supreme Court of Canada or the Privy Council. In a subsequent Act, however, the Dominion Parliament took away that right of appeal by declaring that the judgment of the Provincial Courts in matters of insolvency should be final. In that case it was decided that the appeal of right had been abolished because it had its origin under a Canadian statute, and that what a Canadian statute could confer, it could also take away. But it expressly stated that it did not take away the appeal of grace to the Privy Council, because that existed before the Canadian appeal as of right was conferred by a Canadian Act. I mention this to show that there is another side to that which has been taken by the Attorney-General. Some of the lay members of the Committeemay imagine that the power of construing the constitutionality of statutes is absolutely vested in the High Court, subject to any permissive appeal given to the Privy Council by the High Court, but as a matter of fact, it is possible that if a point involving the constitutionality of statutes - an inter se point - arose in the Supreme Court of a State, under the Federal jurisdiction to be conferred, an appeal would lie direct to the Privy Council.
– Unless we make that provision.
– I do not know that the clause does that.
– I do not say this clause. There is a later clause.
– No doubt an attempt is made by the Bill to stop that ; but I do not know that it is efficacious. Supposing that an Act passed by a State Parliament was unconstitutional under the Commonwealth of Australia Constitution Act. If such a question arose in the Supreme Court of the State exercising Federal jurisdiction, an appeal would probably lie to the Privy Council ; so that the safeguarding of the interpretation about which honorable members heard so much on the second reading as arising under section 74 does not exist; and so far as these appeal clauses are concerned, there is very little final jurisdiction in the High Court. Of course, that ought to have told more strongly than it has done against the immediate creation of the High Court.
– It does not relieve us of the obligation to create it.
-We do not want to go into that point now.
– And the optional appeal lies all the same under section 73.
– No doubt - much to my regret. On the last division in the Convention, I was defeated by three votes in making the attempt to abolish all direct appeals to the Privy Council.
– Now we are trying to get back to where the honorable and learned member left off.
– Yes; but by sinister methods. There is no doubt that this is an attempt to cancel the bungling of the Convention in its final division. On this point the delegates were unfortunately - and, I believe, unintentionally - misled by their leader and Sir Josiah Symon. I endeavoured to point out that direct appeals were retained, and I was point-blank contradicted by those gentlemen, who said that no appeals were allowed in Canada. “What they had in their minds was that there were few appeals from the Supreme Court of Canada, but the direct appeals exist of right and grace. The tremendous leakage which will take place in Australia will be from the States, and do what we will, we shall find that there will be very little final jurisdiction exercised by the High Court. The passage of the High Court Bill and the abolition of the appeal to the Privy Council from the States ought to be contemporaneous. As regards the policy, what the clause does is to protract litigation, because really, where a suitor wishes to appeal direct, he is compelled to appeal to a court not of final jurisdiction - that is, to the High Court of Australia. So that we may have two appeals where, if the clause were left out, we possibly would have only one, or at all events one of the litigants could say that there was to be only one appeal. The probability is that an appeal as of grace from the High Court, if we leave the appeal of the High Court, will be granted in almost all cases. The Privy Council refuses to allow appeals as of grace from the Supreme Court of Canada except in very rare cases of public importance, or where something more than mere money is concerned. But it acts on this ground, that the suitor having had the option of two appellate courts - the Supreme Court of Canada and the Privy Council - has chosen one and is bound by his option. There is no option given by this clause, so that the reason which frequently influences the Privy Council to refuse these appeals does not hold in this cuse, because the suitor is compelled to go to the High Court. I therefore contend that in almost every case the Privy Council will grant an appeal from a Judge of the High Court. If that is so, the best thing we can do is to diminish the opportunities for appeal by leaving out the clause. For that reason, if a division is called for, I shall vote against it.
– I listened with very great attention to the view put by the Attorney-General as to the constitutionality of the clause. But I confess that I was unable to go with him in his reasoning to the conclusion at which he arrived. He has had to say in effect that, taking section 73 of the Constitution with section 77, he could spell out from the two an implied power to place a condition upon the bestowal of jurisdiction on the Courts of the States. Section 73 deals solely with one of the courts created by the Constitution, or that may be created under the Constitution, but does not deal in any way with the jurisdiction to be bestowed on existing courts on which we have the right to bestow further powers. Then, if we look at section 77, upon which the honorable and learned gentleman relied, we find in sub-section (2) that 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.
If I understand the honorable and learned gentleman aright, he says that that power implies an authority to limit the jurisdiction.
– To impose a condition on the granting of the appeal, because we can define the extent to which the jurisdiction shall be exclusive.
– Exactly. The honorable and learned gentleman says that the word “extent” implies the power to impose a condition. Let us grant for a moment that it is so. Sub-section (2) refers solely to courts created by the Commonwealth.
– To Courts of the States !
– The term “Federal Court” in the sub-section includes the High Court and any other Federal Courts that we may create, but it does not include the States Courts, which we invest with Federal jurisdiction. The first section of the Judicature chapter of the Constitution says -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other courts. which are not called Federal Courts - as it invests with Federal jurisdiction.
Consequently sub-section (2) of section 77 does not refer in any way to States Courts invested with Federal jurisdiction.
– But it says, “or is invested in the Courts of the States?”
– I know. It says the Parliament may make laws -
Defining the extent to which the jurisdiction of any Federal Court -
That is, the extent to which that jurisdiction of Federal Courts shall be exclusive of certain other jurisdictions.
– Exactly, “Invested in the Courts of the States.”
– Quite so, but the definition of extent is only permitted with respect to Federal Courts. We can only say as regards a Federal Court, that this jurisdiction shall be exclusive of State jurisdiction. But it does not convey the power to impose a condition upon the investment of the States Courts with Federal jurisdiction. It does not convey the power to define the extent to which Federal jurisdiction shall be bestowed upon States Courts, because, when we come to sub-section (3), we have the investing power given without any corresponding power of defining the extent. Sub-section (1) refers solely to courts created by the Parliament. In sub- section (2) the words “any Federal Court,” refer solely to courts created by the Parliament, and it is only in the case of courts created by the Parliament that we can define the extent of their jurisdiction in the sense in which we can impose a condition with respect to jurisdiction. In sub-section (3) - beyond section 71, of course - we get the only express authority for investing States Courts with Federal jurisdiction. There is no power to be spelled out of that sub-section, or any other portion of the chapter which allows us to impose a condition at the same time that we invest the
Courts of the States with Federal jurisdiction. What I mean is that, having decided that the State Court is to have a given Federal jurisdiction, we must bestow that jurisdiction along with all the incidents and rights of litigants which belong to the State Court in the exercise of its ordinary State jurisdiction ; that the only ground on which we can say that a State Court can have the jurisdiction bestowed on it limited with respect to the right of appeal is that we have the authority to define the extent of its jurisdiction, which we cannot do. The wording of sub-section (1) and subsection (2) - to definein one case the jurisdiction and in the other case the extent to which the jurisdiction shall be exclusive - varies so markedly from the third sub-section, which authorizes us to invest the States Courts with Federal jurisdiction that it seems to me there is a very cogent argument to be drawn from these words to the effect that the Constitution has almost, in so many words, distinguished between what we can do with regard . to Commonwealth-created courts, and what we can do with regard to previously existing courts. Sub-section 2, when it is read carefully, seems to me to give only a power to assert that the jurisdiction shall be exclusive - nothing else surely the power to assert that the jurisdiction of Court “ A,” shall be exclusive, cannot be read to mean that Court “ B “ may haveaconditionimposedupon the jurisdiction vested in it, which is not made exclusive in Court “A.” The Attorney-General has used sub-section (2) in support of the clause in a way in which it cannot be used, when we consider the words of the whole section I submit that sub-section (3) is the only one dealing with the question, and that it does not give such authority. When we find irresistible inferences arising from express words, it will require a very strong implication to be gathered from the general sense of the chapter on the Judicature to justify us in overriding those inferences. I feel compelled, on the ground of law, to say that this sub-clause is not within the authority of this Parliament; because having invested the States Courts with Federal jurisdiction, having said that they shall have power to hear cases arising under laws made by the Commonwealth, we propose to say that there shall be no appeal in the ordinary way. I can see no authority for such a condition ; and, though it is almost with timidity I say it,, my mind is, rightly or wrongly, . not in . any state of doubt on the matter. Rightly or wrongly, it seems to me that unless we are to have the Constitution enlarged by’ interpretation by some court .in a most national and most notable manner - unless ‘we are practically to have meanings read into the Constitution which the ordinary reader cannot there find - this power does not, exist. Even if this question were only debatable, it would be unwise at. this stage to adopt the proposal of- the Attorney-General, quite apart from whether its adoption might not be .an interference or. an imagined interference with the prerogative, and thereby give rise to ‘ the necessity of reserving the measure for the Royal assent. We do not want to pass .laws here of .such a character that - there shall be a chance of any custom growing up of reserving ‘measures, .unless in cases in which the Constitution positively orders such a step. In regard to the matter of appeals, it seems to me - and I expressed very much the same view during the debate on the second reading - that so long as we, as a matter of fact, have no finality, or anything like finality, in the High Court, it is not desirable to introduce another stage in litigation.
– We want as much finality as we can get.
Mr.-McCAY. - We want as much finality in Australia as we can get, but I do not think that finality will, be attained, under existing conditions, by merely introducing a fresh stage, or possibly fresh stages, of litigation, and thereby giving rise to appeal after appeal,, until the Privy Council is reached.’ There is a great deal in what was said by the honorable and learned member foi- South Australia, Mr., Glynn, as to the’ probability of leave of appeal to the PrivyCouncil being given in a large number of cases. If under this clause every appeal went to the High Court, many litigants, whether satisfied or dissatisfied with the result, would probably be thoroughly satis:he(:1 with the bill, or bills, of costs which would come in due course, and consequently a great number of appeals would stop, because of reasons other than the satisfaction - if such ‘a term may be used - of a litigant with the decision against him. I base my objec-tion to the clause chiefly on the ground that I do not see any authority in the Constitution for imposing a condition on a State Court which we have invested with
Federal jurisdiction. I can see reasons for arguing that, given a Federal Court, we can impose conditions on that court. I may have grave doubts on ;that.-p’oint, but I cannot - probably’, ‘through /my. own fault in .not properly following ‘ the arguments of the Attorney-General - see at;. the present time any ground for .imposing any condition, and, therefore, I feel it .my duty to ‘oppose the honorable gentleman’s proposal. ‘ ‘ ‘ .’ . ‘
– The arguments in this matter seem to ‘be very strong both ways, but oh the -whole I ‘feel inclined to accept the- view of the AttorneyGeneral. If there is any doubt, the decision should be in ‘ favour of the High Court. ‘ It is-quite clear that the judicial power conveyed by the Constitution is to be- vested in the High Court, in such, other Federal Courts as are created, and in such courts as may be given Federal jurisdiction ; and if there are arguments both ways, it would be as well to give effect to that provision and concentrate the Federal jurisdiction in the Federal Courts which come within the .purview of the Constitution. The honorable avid ‘learned member for South Australia, Mr. Glynn, said that in his view Federal jurisdiction is conferred on States Courts ipso facto by the Constitution, under, covering section 5, which’ provides that the Constitution and the laws .of the Commonwealth shall be binding on; the States Courts and States Judges.
– I said that possibly that was so. ,j , >
– A ‘similar provision exists in the United States Constitution, and yet.it ‘was not held there that the States Courts had full Federal jurisdiction.’; What is meant is, as I- understand it, that any prohibitions or mandates pf the ‘ Constitution, or laws passed thereunder, are binding on the States Courts. > .
– The words are not identical in the ,two Constitutions. . ‘
-QUICK. - They are. pretty nearly identical ; at any rate they, ,are based on the same design. .But the view. sue gested by the honorable and learned member is quite deprived pf anything to .sustain it prima facie by the distinct power conveyed by our own Constitution to, invest the States Courts, with Federal’ jurisdiction. If the jurisdiction had been previously granted there would have been no occasion for the special provision in the Constitution authorizing the Federal Parliament to’ invest .the .States ‘Courts .with Federal jurisdiction. It.seems to me that if Parliament has -the power to .invest- the States Courts with Federal jurisdiction,” it has the ‘ power to .describe the mode, conditions, surroundings, and provisions under which the ;j”urisdiction is to. be. exercised.’ .The power is unlimited ; ‘and,’ therefore,’. T think , there is very “great force ‘in the view presented by the Attorney-General, namely, ‘ that we may ‘give ‘Federal jurisdiction to the States Courts subject to the’ condition that the High Court shall have the. right ; before the Privy Council to review decisions ‘ in > the first instance. I entertained no doubt -whatever on the subject originally, and should never have entertained any- doubt ‘ but for the suggestion made by the honorable and learned member for Northern Melbourne, for whose opinion’ I have very high respect. It seems to me, however, that there are very strong . arguments for the view presented by ‘the Attorney-General, that this is a power which may be invested in the States Courts, either unconditionally or with a reservation. There is another argument by which the view of the Attorney-General can be sustained. The High Court, under the Constitution, has the right to hear appeals from the States Courts’;’ and it is, therefore, quite clear that where there is a Court of Appeal presiding over courts of inferior jurisdiction; the -Court of Appeal has the power of ‘ removal, and that that power ofl removal exists’ both’ during the hearing of a suit,’ arid after the decision :is given. The High Court -having ‘this inherent power of removal, -there ‘must “be power in this Parliament ‘to make a provision which certainly does not exceed the inherent power of the High -Court, ‘< Under the Constitution of the United States it has been held in the leading case of Martini v. Hunter, that there is a power of removal, of .all causes from the States Courts which assume Federal jurisdiction, at any, stage during the history of a case - du ring- its progress or after the decision - and it has been held that this is a power inherent in the appellate jurisdiction.
– That power was conferred by statute.
– No; it is an inherent power.
– There was no Privy Council, and the power was subsequently conferred by statute.
– It may be’ that the Privy Council, as a-Court of Appeal, has also ‘ inherent jurisdiction of removal,- but the position is quite clear from the remarks of Mr. Justice Story, in the case Marin v. Hunter that the High Court will have the power of removal. Mr. Justice Story said -
This power of removal is not to be found in express terms in any part of the. Constitution ; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language, a grant of original jurisdiction : it presupposes an exercise of ‘original jurisdiction to have attached elsewhere. ‘ The existence of this power of removal is familiar ‘in courts acting according to the course of the common- law, in criminal as well as civil cases, ‘and it is ‘exercised before as well as after judgment. But this is always deemed, in both cases, an exercise of appellate, and not of original jurisdiction.
According to that principle the High Court of Australia would, in any case dealt with by theStates Courts in the exercise of Federal jurisdiction, have power, as the Court of Appeal, to remove a cause from the States Courts, whether or not this provision proposed by the Attorney-General be passed. If that can be done by the inherent authority vested in the High Court as a Court of Appeal, I see no objection whatever to an express provision in the Bill vesting in the High . .Court, in the first instance, the -exclusive right of appeal from the States Courts exercising Federal jurisdiction. Also, on the ground of ‘ expediency, 1 think, it would be better to accept the proposal so as to avoid -any option in a case where one party desired to go to the Privy Council, while the other party desired to go to the High Court. Of. course, the proposal does not in any -way interfere with the ‘ inherent power, which is still vested in the Privy Council, to grant leave to appeal from the decision of a.State Court; and it is not proposed to take away that power. All that is taken away by :the Attorney-General’s proposal is the legal right to appeal under Orders in -Council. Nor does the provision’ interfere with the ultimate right of the Privy Council to grant leave of appeal from decisions of the High Court provided. no’ constitutional question is involved. ‘ Under .these : circumstances, I feel’ quite .justified, < according to constitutional principles, as well - as on the grounds of expediency., in supporting the proposal of the Attorney-General. x»J . . .
Question - That the word “ shall,” proposed to be omitted, stand part of the proposed amendment - put. The Committee divided.
Majority … … 1
Amendment of the amendment negatived.
Amendment agreed to.
Sir JOHN QUICK (Bendigo).- I should like to know how the clause stands as amended. Is it still proposed to retain paragraph (d)?
Mr. Deakin. - Yes.
– If that be so, it does not come within the limitation of the newly-added paragraph(a).
– Paragraph (e) states that -
Whenever a decision of a Court or Judge of a State is declared by the law of the State to be final, the High Court may, if the decision is given in the exercise of Federal jurisdiction, grant special leave to appeal from the decision to the High Court.
I had intended to move an amendment upon that paragraph, but I do not think I shall bother about the point now. As regards paragraph (f), I do not know whether the Attorney-General ever does appoint magistrates to act in a Federal capacity in a State. This paragraph appears in one of our Acts, which provides that summary jurisdiction under Federal laws may be exercised either by a stipendiary or police magistrate, or a magisrate of a State who is specially authorized by he Governor-General to exercise such jurisdiction. In other words, the Justice of a State exercising Federal jurisdiction must have a special authorization. But I know of cases where magistrates have been acting without that special authorization. I gave notice of appeal on this ground in one case, but from other’ considerations did not go on with it. I saw the other day that a case had arisen in Western Australia, where the point was taken that the magistrates acting were not specially appointed. Surely the administration should see that magistrates who act in Federal cases are not without the necessary authority, or should prevent them from sitting. But as it is, a magistrate may be authorized, and beside him upon the Bench there may be two or three other justices who have no authorization. Personally, I think it would be better to strike out the rest of the clause, but I do not intend to move in that direction.
– The honorable and learned member will notice that this clause is negative. The section of one of our Acts to which he has alluded is positive. That section endows police and stipendiary magistrates or other magistrates to be specially appointed, with power to sit as courts of summary jurisdiction. This paragraph provides that the summary jurisdiction shall not be exercised except by a police or stipendiary or special magistrate. It is not a qualifying provision. But I admit the difficulty of which the honorable and learned member has spoken. A case has occurred in Western Australia. It will be necessary to meet that difficulty, although I do not know that it would be desirable to meet it by appointing many of the honorary magistrates. It is desired that there may be, if possible, a higher standard of qualification.
Clause, as amended, agreed to.
Clauses 42, 43, and 44 negatived.
Clause 45 -
– This is an important clause to which I would direct the attention of honorable members, first of all by way of indicating the amendments which I propose tomove. I propose to omit the words “ and whether it is or is not removable into the High Court under the foregoing provisions of this part of this Act.” That amendment will be necessary, because, the foregoing provisions having disappeared, the words I have quoted must disappear also. I move -
That the words “ And whether it is or is not removable into the High Court under the foregoing provisions of this part of this Act,” lines 3 to6, be omitted
Amendment agreed to.
– The nextamendment is in sub-clause (2.) I move -
That the words “ And documents in the cause or certified copies thereof,” lines 15 and 16, be omitted, with a view to insert in lieu thereof the words “in the cause and such documents, if any, relating thereto, as are filed of record in the court of the State, or, if part only of the cause is removed, a Certified copy of those proceedings and documents,”
– In my opinion the whole of the clause ought to be struck out.
– I wish to direct the attention of the AttorneyGeneral to the concluding portion of subclause (1) -
And shall be made as of course upon motion in open court by the Attorney-General of the Commonwealth or on his behalf.
I wish to know whether that means in suits to which the Attorney-General is a party, or whether it is intended that the AttorneyGeneral may interpose in a suit between two private persons, and move that it be removed to the High Court?
– I do not think that is j ustifiable. Why should the AttorneyGeneral interfere between plaintiff A as against defendant B, and say - “I will not allow you to have this case settled in the court of the State ; you must have it removed to the High Court.”
– Is it intended to cover constitutional points?
– I do not know. It seems to refer to all cases.
– I look upon that matter as one of the questions of substance with which I propose to ask the Committee to deal presently. I propose to make these formal and necessary amendments, and then to submit the clause as a whole. If any difficulty occurs, I shall be prepared to recommit the clause.
Amendment agreed to.
Amendment (by Mr. Deakin) agreed to -
That the words “ in the same manner as hereinbefore prescribed in the. case of a removal by a defendant,” lines18 to 20, be omitted.
– Honorable members will observe that this clause contains two important proposals. In the first place, the clause as a whole relates to the power of removing cases from the States Courts to the High Court.
– As a matter of appeal.
– Not as a matter of right, but on the application of any party, if sufficient cause be shown.
– After the case has been initiated in a State Court ?
– Yes. The words of the clause as amended are wide. They provide that -
High Court, which may, upon the application of any party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be madeas of course upon motion in open Court by the Attorney-General of the Commonwealth, or on his behalf.
Let me deal first of all with the power of removal. The honorable and learned memberf or Bendigo in criticising the preceding clause, pointed out that, under words precisely similar to those which wehaveused in our Constitution with reference tojudicial power, it had been held that the power to remove a cause involving matters of Federal jurisdiction was so inherent, that the Constitution of the United States of itself was sufficient to confer that right on the court. Subsequently that right was formally conferred by statute in the United States. The power of removal can be exercised first of all on theapplication of any party.
– Does the AttorneyGeneral say that the United States decision would be applicable to our circumstances ?
– I have mentionedthat, after the judgment in Martinv. Hunter was given, a statute was passed by Congress regulating the method of removal. But Mr. Justice Story, whose decision was quoted by my honorable and learned friend, held that such a power was absolutely inherent in the United States Courts, although in the Constitution, no such power was expressed in any definitewords.
– Does the honorable and learned gentleman think that, in our circumstances, that decision would be followed by the Privy Council?
– That is a very large question; but I thinkthat as the words upon which that decision was based appear in our Constitution, and as it is obviously necessary that matters ofFederal jurisdiction should be dealt with by the High Court, and that there should be power to remove cases from the States Courts in which they arose, a very favorable inclination would be shown towards that reading. Whether such a reading would be established or not I shouldhesitate to say until I had had an opportunityof examining the question much more closely than Ihave yet had occasion to do. But quite apart from that matter, which is merely a preliminary indication of the urgent necessity of such a power in the circumstances of the AmericanCommonwealth, I submit that it may be anequally necessary power in the Commonwealth of Australia. A question of the most fundamental character, involving the interpretation of the Constitution upon some matter of vital importance, may arise in a matterof ordinary litigation, and, unless there be power to remove such a case from the State Court in which it is being tried to the High Court, it would have been possible - as the honorable and learned member for South Australia, Mr. Glynn, has pointed out more than once - that the HighCourt might be avoided altogether. In acase of that kind, the decision might have beengiven, in the first instance, in some inferiorState tribunal. It might then have been taken, upon appeal, to the Supreme Court of a State, and carried direct to thePrivy Council, without havingbeen considered by the High Court. Such a proceeding might have been followed in connexion with a case, the decision ofwhich might go to the very roots of the Federal power. It might occur in regard toa caseinvolving some interpretation of the Constitution, affecting, perhaps, a large body of Federal legislation ; affecting the courts themselves, and the powers of thisParliament.
– Would not the clause we have just passed havesome bearing upon such a case?
– Yes. It has a direct bearing upon it. One of the chief reasons for its insertion was to enable us to escape this danger.
– It is a reserve method.
– Yes. This is also necessary, because cases might occur in which it mightbe to the advantage of the parties themselves that it shouldbe removed at once to the High Court. Myhonorable and learned friend knows that the only power given to us by the sub-clause of the preceding clause which we have just discussed is in regard to appeals. It refers to a case which will have been heard as of first instance in a State Court, which may have gone before the Supreme Court of the State on appeal, and which will then, under that provision, be brought before the High Court. But if it be perceived at the very outset of the case that a vital Federal question involving some decision of farreaching importance must arise, it will be decidedly to the advantage ofthe parties if , instead of waiting for the appeal stage in the State Court, it is removed at once to the High Court. If its importance is so clear, and its Federal operation so extensive that it is manifestly a cause in which the decision of the inferior court would not be allowed to stand unchallenged by the unsuccessful party, it is much better in such a case - in which the ordinarycourse would be totake it on appeal to ‘ the Supreme Court of a State, and then to the High Court, before sendingit on to the Privy Council- to have the power to take a short cut and bring it at once before the High Court. In that way a distinctively Federal matter would be dealt with by a distinctively Federal Court.
– But this clause would enable theAttorney-General to remove any case.
– Yes. It is impossible to foresee in what case an issue of the kind I have referred to may arise. If the honorable member thinks that the expression used in this clauseis too wide, and that we can embrace the necessary cases by some other form of words, I shall be happy to listen to a suggestion in that direction. The provision is set forth in this general manner, because it is impossible to foresee or, as far as I am able to judge, to describe by definition, those cases in which these point’s, and these alone, will occur. This is one of the instances in which if we desire to make the power effective, we must make it extremely broad.’’ In these circumstances I thinkthe sense of the Committee will be that it is emphatically necessary, not only in order that we may have a Federal interpretation of the Constitution or of the Commonwealth statutes on any vital question, but to spare the litigants themselves the cost of proceeding through the varying stages, to be able to say that the case shall be removed to the High Court directly it becomes evident that sucha question has been raised and must necessarily be settled.
-Why should there be any interference with the litigants by the Attorney-General?
– I shall deal with that matter presently.
– But the honorable and learned gentleman cannot separate it.
– I think we can distinctly separate it. I am dealing now only with cases in which either party to a suit that has arisen in a minor court in any one of the States perceives directly the pleadings are exchanged, or as soon as the hearing is commenced, that some important constitutional question is involved. Such a party has the power of saying - “ I object to be taken , from this court to the Supreme Court ofa State, then to the High Court, and, perhaps, ultimately to the Privy Council.Ishall take the short cut of stopping this action in its earlier stages, andtaking it direct to the High Court.”
-Would that case be taken to theNisi Prius Court - would it be heard by a single Judge?
– Itmay be.
– It does not say so.
– If it were heard by a single Judge it would not carry the AttorneyGeneral’s object any further.
– It would help the litigant to this extent - that he would avoid whatever stages had not been passed in the inferior court, as well as the appeal to the Supreme Court.
– But perhaps the parties would be satisfied with the decision of the court in which the case originated.
– A case in which both parties are satisfied will not be removed. But it is absolutely necessary that the Attorney-General should have some power of removal. I am dealing now, however, with the power of the parties. If either party to a case flunks that its hearing and final settlement would be facilitated by going direct tothe High Court, instead of working his way through the States Courts, this clause will enable him to take that short cut, and as such I take it that it should commend itself to honorable members.
– Under the preceding clause parties have the right of appeal from a single State Judge to the High Court.
– They have the option.
– Does not the AttorneyGeneral see that this power might be made an engine of oppression ?
– What procedureinlaws which allows an appeal or any fresh proceeding may not be made an engine of oppression ?
– But we need not add another to the list.
– We are obliged to adopt this course. The honorable and learned member knows that if he followed out the principle he has enunciated, it would be necessary to have a new Procedure Act, and new measures of jurisprudence which would cut down the exist ing practice, which is equally capable of misuse. The fact that the Federal features of a case necessitate a prompt Federal judgment is worthy of recognition in the interests of litigants themselves. Every power capable of use is capable of abuse. That is true not only of legal powers, but of every power which exists. Th6 more strength a machine has to perform its work the greater the danger if it is misapplied. The Committee must consider that the important part of section 74, which requires that questions as to the limits inter se, of the constitutional powers of the Commonwealth, or of a State or States, shall not be taken from the High Court, without the consent of that body, to the Judicial Committee of the Privy Council, may become a dead letter unless it is safeguarded by provisions of which this is one and an effective one.
– Is there a case of that kind which is not covered by the clause just passed?
– That provides an appeal - as the last stage of a series of appeals.
– I understood the honorable and learned gentleman’s contention was that a litigant might get to the Privy Council on an inter se question behind the back of the High Court. How could he, in view of the clause we have just passed ?
– If I conveyed that to the mind of the honorable and learned member, I did not intend to do so. What I pointed out was that we have one provision under which suits, after they have passed through all the stages in which the States Courts can deal with them, are brought before the High Court on appeal. I used the word “provisions” deliberately, because this is another provision which will enable us to interrupt that long course of procedure in certain cases, and in those cases, directly it becomes clear that a question of the character to which I have referred is being raised, there will be a means of removal.
– If litigants saw before them a prospect of having to go through a State Supreme Court to the High Court, would they not exercise their option in the lower court of going direct to the High Court from a single State Judge ?
– They have the power to do that under the Bill.
– I asked the question just now, and the Attorney-General replied that they could go direct from a State Police Court to the High Court.
– That is perfectly true, but what I am coming to now is the power proposed to be vested in the AttorneyGeneral of intervening in any suit. That is the second proposal in this clause. I take it that it would be the duty of the Attorney - General to intervene at any stage of a case at which it became plain that a serious constitutional question was arising. The honorable and learned member for Darling Downs interjected that it would probably appear on the pleadings, but it will be admitted that whenever it arises it would be desirable that the suit should be transferred at once to the High Court because such a question can only be finally dealt with by the High’ Court, and, in fact, it rests with the High Court under the Constitution to say whether it shall ever be dealt with by any other court. Those who desire to shorten legal proceedings, and to see finality obtained as soon as possible, will surely not complain of a provision which enables cases of that particular character to be brought to the speediest possible trial in the shortest possible way ?
– Is it contemplated to remove a cause to a hearing before a single Judge of the High Court, or to the Appellate High Court direct ?
– It can go, under this clause, to a single Judge of the High Court.
Mi-. McCay. - That means a nisi prius hearing with a subsequent appeal, which is exactly what is covered by the previous clause.
– Would the AttorneyGeneral pay the costs of the litigants where he intervenes ?
– That is a question for the Committee to consider.
– If he would all suits would be removed.
Mi-. DEAKIN.- If honorable members will look at the clause they will see that it provides that a suit -
May at any stage of the proceedings before final judgment be removed into the High Court under an order of the High Court.
That order will be made upon such terms as the High Court may think fit, and honorable members will see that by clause 46 it is provided that -
When the cause is removed into the High Court under the provisions of this Act the High Court shall proceed therein as if the cause had been originally commenced in that Court, and as if the same proceedings had been taken in the cause in the High Court as had been taken therein in the Court of the State prior to its removal.
That indicates the stage at which it would be taken up. For instance, if it was a removal whilst still in the court of first instance it would go before a single J udge ; but if it had passed’ the court of first instance, and reached the appeal stage, it would go to the High Court in its appellate jurisdiction.
– If we assume that a cause is taken from the Court of first instance, what saving would there be?
– This saving: that it would get at once to a Federal J udge whose particular business it is to deal with Federal issues, who will be dealing with them every day, and who may, therefore, be expected to deal with the cause more rapidly and more definitely than it is likely to be dealt with by some tribunals before which a litigant may find himself. As it stands, this power of removal safeguards every power of appeal with which we have been dealing. The power of removal will be useful to litigants, and it may be extremely valuable to the Commonwealth as a whole when exercised by the AttorneyGeneral, as it would be exercised, only in cases meriting that special and extraordinary interference. No Attorney-General could be found who would lightly or willingly intervene in litigation in order merely to change the tribunal before which a cause was being heard. It would require to appear upon the face of it that an important Federal issue was involved.
– An Attorney-General who was trying to build up the High Court might intervene.
– Many matters might be suggested, similar to the illustrations already given, in which it is desirable that the business should be dealt with by the High Court, which will be able, not only to deal with it more speedily, but upon more consistent and uniform principles than we can expect every particular tribunal before whom it may come in the States to apply.
– That argument applies only to the Appellate High Court, and not to a Judge of the High Court of first instance. Those Judges will differ among themselves as much as do the Judges of the States.
– Still I think the High Court Judges would be better able to deal with these questions. If the Committee consider that the power of removal can be safeguarded effectively by making it a removal always to the appellate jurisdiction of the High Court, we can consider that proposal.
– It would be removal only on appeal then.
– It would have to be a matter involving some hundreds of pounds. This provision gives much wider grounds.
– Very much wider. Under this provision a cause involving a matter of £10 or £5 might be removed.
– It gives the right to order a fair trial.
– I do not assert that removal is essential to that. Sometimes that can be obtained without this mode of removal.What I wish to impress upon the Committee is the importance of the power, and at the same time my entire willingness to consider any proposal that will safeguard removals, and which authorize it only upon reasonable and proper grounds, so as to prevent it being made what one of my honorable friends calls an instrument of oppression. I am perfectly prepared to consider any limitations either of the matter to be removed or the manner of removal. I have no desire to multiply proceedings or to increase costs.
– I suggest the insertion of the words “ on appeal “ after the word “ pending “ to begin with.
– What I desire is to retain this power as a safeguard, in order that the class of cases for which the Federal Court is specially created, and to decide which it will exist, may be brought before it when necessary, in the most summary and inexpensive manner. That is the design underlying all the removal clauses, and I hope I shall have the assistance of honorable members in shaping them in any better form than is at present proposed to achieve that end. I do not desire that they should be unduly elaborate, coercive, or cumbrous. I hope that honorable members are agreed as to the necessity of possessing a power of removal, and am willing to accept their assistance to so safeguard its exercise, and the manner of its exercise, as to meet all the objections we can.
Mr. CONROY.(Werriwa).- If the powers conferred in clauses42, 43, and 44 had remained, clause 45would probably have been rightly drawn, but since this Bill was introduced we have started upon entirely different lines. We are now trying to secure that the High Court tobe created shall be purely an appellate court, and regarding, it as an appellate court, especially in view of the alteration we have made in clause 41, I cannot see how clause 45 can possibly be necessary. It may work much evil, andit should therefore be eliminated.If the Attorney-General drafts a clause to deal with cases, pending appeal or on the lines lately suggested by himself, it might , meet with a different reception from the Committee. At present we cannot disguise the fact that this clause is altogether too wide, and , would allow the Attorney-General to control and to entirely alter the jurisdiction which we have decided to vestin the High Court. The honorable and learned gentleman would, of course, in his opinion,be rightly exercising his powers under this clause, in giving original jurisdiction to the High Court. Any one can see that that was the honorable and learned gentleman’s intention in regard to it. If somelater Attorney-General is of the same opinion honorable members can imagine thedifficulty we shall be met with-we shall have gone altogether outsideof what the Bill as amended by the Committee is intended to provide for. As theclause is drawn, we have no option butto exciseit ; butit could be drafted in a very much narrower form to meet the class of cases which. the AttorneyGeneral has suggested. Perhaps the honorable and learned gentleman, upon recollecting that this clause was drawn when very much larger powers were provided for under the Bill, will see his way to withdraw it.
– We have restricted the power of the High Court, and we are now being asked to expand it.
– Really this clause amounts to that. I remind the Committee that, under clause 15 -
Any Justice of the High Court, sitting alone, may exercisein court, or, in the cases hereafter specified; in chambers, all or any part of the jurisdiction of the High Court.
So that, so far from any savingof time being secured bythis clause, considerableadditional delay might be involved . There would, for example, be a removal to a Justice of the High Court, and then the right of appeal would still continue from the J ustice of the High Court to the Appellate High Court. There could be no possible saying of time under those circumstances. While the Supreme Courts of the various States are practically always ready to give their decision, it will, be admitted that, considering the limited number of Judgesof the High Court which the Committee seems likely to agree to, the delay under this proposal will be very much greater than without it. However, the chief objection I have to the clause rests on the ground thatwe are here being asked to extend a power which has been removed from the previous clauses by the Committee. So far as we could take it away, the Committee has taken away the whole of the original jurisdiction proposed to be conferred upon the High Court, and our desire has been, as far as possible, to create an appellate court only. Two principles were at first involved, the giving of appellate and also of originaljurisdiction, and this clause 45 deals with questions of original jurisdiction, as if no alteration whatever had been made in the preceding clauses. The very fact that the Attorney-General was unable satisfactorily to answer the question put to him by the honorable and learned member, for Corinella should preclude us from accepting the clause as it stands.
– I hope that the Attorney-General will see his way to abandon this clause. In effect it provides first, that either party to a suit for cause, on application to theHigh Court may have a suit which is pending in a State Court transferred to the High Court; and that the Attorney-General, as of right, shall be entitled to have any such suit transferred to the High Court, whateverthe wishes of the parties may be. In order to justify the clause wemust show that it is likely to confersome benefit upon the parties, or that it is desirable in the interests of the Commonwealth. The only benefits that would be appreciated by the parties to a suit would be speed and economy in the conduct of the litigation. Wemay leave out of consideration cases which are pending in inferior Courts of States jurisdiction, because the decisions of such tribunals are not considered asbinding except upon the parties to a suit. In the greater number of cases pending in the
Supreme Courts of the States evidence will have to be taken either orally or on affidavit, and, if causes are removed, a single Judge of the High Court, instead of a Judge of a Supreme Court of a State, will have to hear that evidence. In either case there will be an appeal to the High Court, so that there will be no saving in time or expense by the removal. On the contrary, probably some time will be lost, because, I venture to say that, whether three or five Judges constitute the High Court, the original jurisdiction of that tribunal will not be exercised as speedily as the primary jurisdiction of the State Court. If a case should be partly heard, and one ofthe parties desired to remove it to the High Court, the whole of the proceedings before the State Court would have to be repeated before the High Court. Then there would be the expenses attendant upon the application for removal. Presumably the application would be made upon notice, and there would be a fight before the High Court as to whether or not the cause should be removed. The exercise of the right of removal of a cause from the primary Judge or Judge of first instance will not result in any saving, and if the power of removal is limited to pending appeals it can be exercised only in regard to appeals from a single J udge of a State Court to the Full Court of the State, in view of a subsequent appeal to the High Court. A single stage in the proceedings might be saved by the party who had won before the single J udge removing the cause from the appellate jurisdiction of the State Court to the appellate jurisdiction of the High Court; possibly because he might think that he would lose before the Full Court of the State and win before the High Court. Such cases would not occur with frequency, or be of sufficient importance to justify the retention of the clause. Then the question arises whether the ultimate decision of the High Court could be evaded. I think that the Attorney-General will admit that the clause does not offer any safeguard unless regard is had to the fact that under it a litigant could bring before the High Court a case involving less than the appealable amount elsewhere provided for. It would rarely be worth while to transfer such a case to the High Court. The Attorney-General could justly intervene only in suits between private individuals which could not otherwise be brought before the High Court, but under the Bill as it stands there could be no such cases.
– Suppose that a private individual could not afford to take a case to the High Court?
– If a suitor had not the money to enable him to take a case before the High Court in its appellate jurisdiction, would the Attorney-General, upon intervening, pay the expenses? He told us that the clause was intended to insure the speedy decision of the High Court in important constitutional matters. If the AttorneyGeneral is to be a beneficent aider of impecunious litigants, and a friend and protector of poor suitors at the expense of the poor taxpayers generally, I shall vote against any such benevolent proposition.
– May it not be important for the Attorney-General tosecurefrom the High Court a decisionwhich will guide the whole Commonwealth?
– If an appellant could not afford to appeal to the High Court, neither could he afford to appeal to the Full Court of a State ; because we are told that the High Court is to be much less expensive to litigants than are the SupremeCourts in their appellate jurisdiction. The decision of the single Judgeof a State would not have any weight in any other State, beyond that attached to a learned opinion, nor would it be binding upon his fellow Judges if they took a different view of the matter. Therefore, as regards the individual the proposal cannot make for economy or speed, whilst as regards important matters affecting the Commonwealth, the causes must ultimately go to the High Court if the litigants have the necessary money, or, if they have not, it is open to the Attorney-General to provide the funds for the appeal without exercising the power of removal.
– The social democrats of Germany contend that the State should bear the whole expense of litigation.
– We have not reached that stage here. My experience leads me to believe that there would be a great deal more litigation if the parties could escape the payment of the costs, and until we are further advanced on the lines of the social democrats’ programme I am not prepared to regard that matter as within the field of practical politics, or to promise it my support when it does come within that area. The clause does not effect any good purpose that is not achieved by provisions already passed relating to appeals to the High Court. The Attorney-General has stated that he is prepared to agree to modifications, and I would suggest to him that it is not desirable to remove causes from courts of first instance to a single Judge of the High Court. We may regard the courts of first instance as capable of dealing with these matters, and getting the causes into form for decision, and if the clause is retained it should apply only to cases pending appeal from the court of first instance to the appellate court. The AttorneyGeneral might also consent to the elimination of the power of intervention by the Attorney-General, because for all practical purposes the High Court will have ultimate jurisdiction under the clause already passed ; that is, assuming that that clause is intra vires of the Constitution. Perhaps the arguments upon this head used against the clause to which I refer might also be urged, though with perhaps less force, . against this clause. I ask the Attorney-General to agree to that limitation of the clause, and then let us decide whether the clause as amended shall or shall not be retained.
– I think that the clause should be struck out altogether, though, of course, I agree with the honorable member for Corinella that it should be amended in the direction which he suggests. But I fail to see that it is required.
– A stage will be saved if we provide for removal before appeal.
– A stage may be saved.
– Then why not give an opportunity for the saving?
– By the last clause we passed we added a stage, so that I suppose the Attorney-General now wants to save a stage by way of counterbalance. But the clause is unnecessary. The power of removal was regarded in the case of Martin v. Hunter as inherent in the American Supreme Court under the implied powers of the Constitution, because otherwise the decision of the State Court might have been final. In that case it was laid down, not only that there is a power of removal to prevent States Courts from giving decisions upon questions of jurisdiction which could not be checked, but that the Federal Parliament was obliged to create Federal Courts in which to vest Federal jurisdiction. If a removal from an American State Court were not allowed, there would be no possibility under the American system of checking its decisions, because there is no Privy Council to appeal to. But here there is the right to appeal from the States Courts to the High Court in all matters, and there is the check of the Privy Council as well. Therefore, our need for a provision like this is nothing like so great as the need for the power under the American Constitution. But this clause is far more comprehensive than the American provision. In America there is no power of removal - except in one or two cases in which justice might otherwise be denied in small matters arising in the district courts, or where a public officer is concerned - unless the amount in dispute exceeds 2,000 dollars. Under the clause, however, a constitutional question might arise during the hearing of an action upon a bill of exchange, because the clause does not apply only to constitutional questions arising under section 74, and affecting the mutual rights of the Parliaments of the States and of the Commonwealth to pass laws, but to all Federal matters. That is the meaning of “ Federal jurisdiction.”
– It will depend upon the meaning placed upon the words “for sufficient cause shown.”
– That is a matter for the discretion of the court; but a litigant would have the power to put his opponent to the expense of an application, even though the case was only one upon a bill of exchange in which £5 was in dispute. About 90 per cent, of the cases which would come under the clause are such as occur at the present time - State cases. The chief end which the AttorneyGeneral has in view is to provide for the removal of cases where decisions are given on constitutional matters, but to do that he asks us to give the power of removal in all cases, sweeping into one net all the cases which may arise under section 51 of the Constitution. That is bad legislation. We should confine the operation of the clause to the necessities of the case. The honorable and learned gentleman, however, seems to act upon the principle that if we want to do a little we must do all. With regard to the power of intervention given to the Attorney-General, I think it is provided for in the. wrong place. I quite understand that where as important constitutional matter has arisen on the judgment of a State Court or of the High Court in original jurisdiction, and the litigant does not wish to take his case on to the Court of Appeal, the AttorneyGeneral of the Commonwealth should be allowed to do so. I go further, and say that in certain cases the Attorney-General of the State should be allowed to intervene, and bring a matter on appeal to the High Court, or to the Privy Council, whichever Parliament likes to fix upon. Suppose that in a small matter in a District Court the question of the rights of the Commonwealth Parliament and a State Parliament inter se arose, and a decision was given affecting the constitutional powers of one of those bodies, and the litigants’ had not sufficient funds to conduct an appeal. In such a case the Attorney-General of the Commonwealth, if the Commonwealth was concerned, and the Attorney-General of the State if the validity of a State law was affected, should be allowed to intervene, and have the question authoritatively settled once and for all. That might be done at the expense of the, Commonwealth or of the State, whichever was affected. I think there is some power of that sort in the Canadian Constitution.’ At all events there is a power of, reference. If a constitutional point is raised in any of the lower courts in Canada, it can be carried on to the Supreme Court or to the Privy Council, by the Attorney-General raising a point by way of opinion, and that is a much more independent way of dealing with the matter than the method provided for here, because the actual issue between the litigants is not decided, but only the constitutional point involved. Under the method provided here, the rights of the parties may be affected, both as to the amount of the judgment given and the costs. In Canada, however, the judgment is not affected. All that is done is to carry the constitutional point on to the Supreme Court or to the Privy Council. No such power exists under our Constitution, though some of us did our best to have provision made for it. We can, however, provide that where an important constitutional point arises in connexion with appellate cases - and I think that the provision might be limited to matters of constitutionality arising under section 74 - and is left undecided by the litigants, the Attorney-General of the Commonwealth, or the Attorney-General of the State, may step in and have it dealt 4 i 2 with by way of appeal. But that power should not be given in this clause, because it has relation only to appellate jurisdiction. But, under this clause, power is given to the Attorney-General of the Commonwealth, though not to an Attorney-General of the State, instead of waiting until a decision is given, to intervene at any stage, either in the beginning, or after judgment has been given. But if it is right that the AttorneyGeneral of the Commonwealth should have that power, it is right that it should be given also to the Attorneys-General of the States, because not only may the powers of the Commonwealth be challenged, but the powers of the States may also be challenged, and provision should be made for such an occurrence. Honorable members will therefore see that the clause is imperfect even from the point of view of the Government, because it gives to one party only a remedy to which both are entitled, and which ought to belong to the appellate jurisdiction of the High Court. Under these circumstances I think the Attorney-General should not continue his opposition to the wish of honorable members to have the clause omitted. If he amends the appellate clauses with a view to allowing the intervention of a State or the Commonwealth after judgment has been given, there are many reasons why such a provision should be supported, and then the omission of this clause will not destroy the whole object that he has in view.
– But if this provision is retained we can miss a stage.
– Possibly. I do not see much objection to that, but all the honorable and learned member wants to accomplish is accomplished at the present time. I think that he should adopt the suggestion of the’ honorable and learned member for Corinella, and even go further, and make the clause apply only under section 74 of the Constitution Act, where the constitutionality of a statute is affected. I would, therefore, suggest the insertion, after the word “ jurisdiction,” in line 2, of the words “ under section 74 of the Constitution.” That may cover cases in which it is desirable that the High Court should have the first and only say. They are partly provided for already, but if the Attorney-General wishes to have a subsidiary provision, and amends the clause in that direction, I shall not vote against it, though without such an amendment I must do so.
Sir JOHN QUICK (Bendigo).- I believe that the power of removal is part of the appellate power, and, consequently, I cannot object to that portion of the clause which provides that in special cases the High Court may remove a cause pending in a State Court upon the application of one pf the parties. So far, I am with the honorable and learned member in charge of the Bill, on the grounds which I have previously stated, but I take strong objection to the power reserved to the AttorneyGeneral to remove. I do not see why he should intervene to remove a private suit during its hearing in a State Court which is exercising Federal jurisdiction. Why should he remove a case during its progress through a State Court? Let the parties fight it out, and let it be determined by the State Court first.
– I shall not press that part of the clause.
– I am glad to hear the honorable and learned gentleman say that. If that part of the clause is omitted, my objection to the clause will be removed. It may be, however, that provision should be made in some other part of the Bill for special cases where the decision of a Supreme Court has been given upon a Federal question.
– And the matter is not taken further?
– And the matter is not taken further. .The interests of the Commonwealth may in some indirect way be related to, or determined by, a decision in a State Court, or a State right or a Federal right might be left in doubt. It might be desirable in such a case to allow the Attorney-General to cause an appeal to be made, so that the matter might be dealt with by the High Court in its appellate jurisdiction.
– If there is no power to remove while a case is pending before the State Court, the removal will be practically an appeal.
– It would be an appeal after determination. If that portion of the clause to which I object is removed I shall support the clause.
– I do not agree that the Attorney-General should have power as of course to remove a cause. But I think the Attorney-General of the Commonwealth should have power to protect its interests in some shape and form when the exceptional circumstances of the case require it.
– That will very rarely happen.
– Yes ; but I think in all cases he should be under the same obligation as either of the parties to show sufficient cause for removal to the High Court. I should not object to allow the AttorneyGeneral of the Commonwealth or the AttorneyGeneral of a State to intervene in a case if sufficient cause were shown to the High Court, which would mean that the court would be called upon to say that there were good reasons for its removal. I think the case might be met by reserving to the Attorney-General of the Commonwealth, and to the Attorney-General of a State, leave to apply to intervene in a cause in its primary stage. In a case before the Supreme Court, or any other Court of a State, it might be very important that the Attorney-General of either the Commonwealth or the State concerned should be present before the facts were finally decided. We know that when the facts of a case are finally decided, the question of law may run almost as a matter of course. It may be of the . highest importance, in some particular .case, that the Commonwealth and the State shall be protected in regard to the determination of the facts, because, after a case goes to appeal, the facts are not as a rule raised again,, and the court decides the law on the facts as put before it ; and, for a long time after, the facts as found in a particular case may limit the law in the particular State concerned. It is therefore important that the facts shall be rightly found, so that all courtsand persons may act upon them properly from the beginning. Subject to that, I see noreason why power should not be given to suitors to apply to the High Court for an order to remove any cause involving a matter of Federal jurisdiction, which is pending in any State Court.. I think that the fallacy lurking in the minds of honorable members is that upon any such application being made, the High Court will, as amatter of course, order such removal, whereas the clause under discussion merely empowers the High Court “for sufficient cause,” to order it. In other words, if that tribunal thinks that any particular case is of so exceptional a nature that it ought to be removed from a State Court, it has the power to order ita removal. In this respect the provision is very similar to that which operates in our State laws. For example, a man may bring an action in the County Court, and the other party to the suit may apply to have it heard by the Supreme Court. The positions are of an analogous nature. In each case, power is given to order the removal of any cause provided that it is of an exceptional nature.
– Does not this clause give the Attorney-General power to extend the original j jurisdiction ?
– Yes ; but I do not agree that the Attorney-General should have a right to remove causes from the States Courts to the High Court as a matter of course. I think that there is great virtue in the clause. “We can never foresee what circumstances may arise. I can conceive of no harm being worked by the operation of such a provision, and possibly it may result in much good. It is guarded against abuse by the use of the words - “for sufficient cause shown.”
– Why not say - “for special reasons shown “ 1
– I do not object to the inclusion of those words in the clause. I think that some safety valve should be provided for circumstances that we cannot foresee, by enabling the High Court, in special cases, to remove causes into its own cognizance from the beginning. If that were done the Attorney-General, in making any special application, would have to show sufficient cause in support thereof, otherwise the High Court would not entertain it. It might be very important that the AttorneyGeneral of a State, which was involved in litigation before the Supreme Court of another State should have power to apply for the immediate removal of the cause to the High Court.
– Such a provision might be very unjustly used.
– I cannot conceive of it being unjustly used, if the High Court has a discretionary power - -if it is told that it is to exercise its power only for special reasons. I think we can trust the High Court to do justice in each case. If the Attorney-General is placed upon the same footing as other litigants; with the safeguards I have indicated, I shall be disposed to support the clause.
Mr. HIGGINS (Northern Melbourne).I think it would be very dangerous to concede the power to remove causes at any stage. . I know well enough how such a power would be abused Let us take for example a case connected with bills of exchange, which come within the Commonwealth competency. Every civilized country has provided means for deciding the liability of a man upon bills o£ exchange by summary process. Under the present law of Victoria and New South Wales, after the issue of a writ, a defendant is no longer able to prevent’ the plaintiff from obtaining his rights by postponing the evil day as long as he can, by protracting the proceedings. The plaintiff applies for summary judgment, and the defendant must show that he has a good defence, or judgment is given against him without allowing him an opportunity, to be heard. This practice is a great convenience to banks and other financial institutions. But, under this clause, what will happen ? I say unhesitatingly that, under its operation, frequent endeavours will be made to remove causes from the States Courts to the High Court with the view to delaying the course of justice. It should also be recollected that delay very often affords an opportunity to litigants to get rid of property, and it is, therefore, highly inadvisable to confer upon them the power to remove actions at any stage. I was very glad that the Attorney-General intimated his intention to prevent the removal of causes until they had been fully heard by the States Courts.
– Until the facts had been ascertained.
– Yes ; until the final stage.
– I do not know that he has agreed to that.
– At any rate the honorable gentleman seems inclined to act in that way. I would further point out that during the hearing of cases a Judge frequently makes observations which disclose the direction in which his mind is working; consequently the interested parties to any suit listen with great eagerness to such observations. But under this clause as soon as a suitor discovers that .a particular Judge takes up an antagonistic attitude towards him, he will at once avail himself of its provisions, and find some reason for the removal of his cause to the High Court, because he will thereby secure another “ run for his money.”
– Proceedings will have to be stayed till the application to the High Court is heard.
– The clause does not provide for anything of that sort.
– It must be remembered that every application brings grist to the lawyer’s mill. What honorable members do not sufficiently realize is that under the Commonwealth Constitution the operations of this Parliament cover a far wider area than do those of the States Legislatures. If we compare the matters in which our Parliament has jurisdiction under section 51 of the Constitution with those in which the United States Congress has jurisdiction, we shall find that there is an enormous difference between them. When we commence to enact laws relating to banking, currency, bills of exchange, and divorce, it will be found that nearly every matter of commercial import, and a great many of social and domestic concern, will come within the scope of our legislation. Why should not cases of divorce, or cases relating to infants, or to companies, be tried by the Supreme Courts of the States ? All such cases are at present dealt with by those tribunals. Of course, the honorable and learned member for Indi will say that it will rest with the High Court to determine whether sufficient cause has been shown for the removal of any cause from the States Courts to itself. But I would point out that each case involves the making of an application, and that most ingenious attempts will be made to raise issues which never would be raised but for this power of removal. I think there is a strong feeling both in this Chamber and elsewhere that the more the functions of the High Court are restricted to matters of appeal the better. There will be an enormous number of cases under the ordinary Federal laws with which the tribunals will have to deal. Very often I see obvious evidence of rich litigants by means of numerous applications compelling poor suitors to submit to an unjust com-‘ promise. I am quite sure that the Committee have no desire to countenance that sort of thing. I hold that the power of removal is a very exceptional one to confer, and 1 would point out that in the United States it is very limited. May I remind i,he Attorney-General that in the United
States a suitor cannot remove any cause from the States Courts in which the sum involved is less than ‘ 2,000 dollars. It must be a very exceptional case. But, apart from that limitation, there is no power to remove causes unless the State Court has decided against a Federal Act, or in favour of a State Act.
– In the United States I do not think there is any limit as to amount.
– Oh, yes. In Moon, on The Removal of Causes, page 146, I find the following : -
The amount in dispute in an ordinary case must exceed the sum or value of 2,000 dollars to make it a removable one.
The Attorney - General desires to apply the power of removal to a far wider area of causes than is covered in the United States. No doubt he is actuated by the laudable anxiety that the Judges of the High Court shall have plenty of work to perform, but I do not desire them to obtain that work at unnecessary expense to litigants. I feel that he will serve his purpose better - having regard to the temper of the country and of Parliament - if he will allow the functions of the High ( Court to be confined as much as possible to the exercise of appellate jurisdiction. Of course, I do not attempt to predict the decision of the Committee in regard to the number of Judges to be appointed. But I think that the general tendency of the voting will be in the direction of limiting the number of Judges, and limiting the jurisdiction, making it as far as possible a court of appeal in Federal matters. I would ask the Attorney-General to consent to strike out the words “ at any stage of the proceedings before final judgment,” and although I would not ask him to consent to do it right off, he might consider whether he would not take away the power of removal before final judgment, and simply leave the ordinary right of appeal. If you do not give the power of removal before final judgment there will be a right of appeal. I might move an amendment.
– The clause will have to be recommitted to make any further amendments in it, because it has been amended right down to the end.
– “For sufficient cause “ is hardly definite enough.
– ‘” For. special cause “ has been suggested.
– I would go even farther than that. I can see that if we keep the power of removal, there is a distinction between a cause in which the Constitution is involved, and a cause in which a Federal law is involved. There is no real need for removing a cause because a mere Federal law is involved ; but there may be a ground for removing a cause where the Constitution is involved. A Federal law may be amended if it seems to be uncertain. It should be remembered, also, that Federal laws include divorce laws, bills of exchange laws, company laws, and mercantile laws generally.
– They may involve matters affecting the Constitution.
– I am speaking of the effect of Federal laws. That is very different from a question of whether a Federal law or a State law goes against the Constitution. In a case where there is only a question as to the meaning of the Federal law, I do not see why there should be the power of removal, but in a case where there is a question as to the scope and ambit of the Constitution I can see that there is much more reason for that power, and although I think that it might be omitted, I suggest that as an alternative.
– I hope that I have collected the meaning of the Committee from the interesting discussion which has been maintained in connexion with the clauses. Although I felt that the changes made in the measure would require alterations here, I thought it best to endeavour to obtain the mind of the Committee before essaying that difficult task. We are placed in the position - and it is not altogether a disadvantage - that having amended this clause, we cannot further amend it now to meet the views of honorable members, even if we desire to undertake that task at once. What I propose to do is to ask honorable members to allow the clause to pass, undertaking to recommit it with the amend-, ments which I shall be prepared to suggest on further consideration. As I take it, the trend of the mind of the Committee is to limit this power of removal as far as possible to the appellate stage, to make it ancillary to appeals, and, if possible, to indicate the cases in which alone it shall be applied, to make it in all cases dependent upon the High Court, being satisfied that there is substantial ground for that removal, and possibly - I have noted it - to limit its area to cases arising under the Constitution or involving its interpretation. I must confess that it was the illustrations drawn from that class of cases which principally occupied my mind when 1 was previously speaking. Having now an indication of the mind of the Committee in regard to the clauses preceding, I hope I shall be able to submit amendments which shall represent the sense of the great majority.
– Eliminating the part relating to the Attorney-General ?
– My present thought is to leave the Attorney-General power only on the same terms as any other person if I do not make a separate provision allowing the Attorney-General of the Commonwealth or of the States to refer certain cases as was suggested by my honorable and learned friend, Mr. Glynn, or in the manner suggested by the honorable and learned member for Indi. That proposal seems to me to be one which, if separated from this clause, might be very useful. It certainly could not prejudice the interests of any litigant, while it might assist the. solution of difficult problems if such happen to arise in minor cases which would otherwise not be brought to appeal. The decision in such a case might, within a State at all events, and perhaps over a wider area if it were a court exercising Federal jurisdiction, operate unfavorably to the construction of the Constitution which, in the interests of the Commonwealth, ought to be maintained. If honorable members will pass the clause as it is it will be reprinted, and they will then be able to grasp with less difficulty the significance of the amendments I shall propose.
Clause, as amended, agreed to.
Clauses 47 to 51 postponed.
Clause 52 -
– Surely we are not going to pass the clause without any debate. I understand that some amendments have been given notice of. I consider that the salaries proposed to be paid are too high. I am quite aware that in some of the States, for instance in Victoria, such salaries are paid.
– New SouthWales and Queensland, too.
– In Victoria the salaries of all future Judges are to be £500 less than the salaries of the present J udges.
– They will also get a pension.,
– I do not see why a Judge with a salary of £3,000 should get a pension any more than a post-office messenger with a salary at £100 or £200. A Judge has a better chance of providing for his old age than the average working man. I do not propose to vote for pensions to Federal Judges. They should be left as other people are to provide for their old age. I think that the salaries ought to be reduced, but I am not prepared at this moment to say what salaries should be paid. I only rose because I thought that the clause was going to be passed without debate.
– What does the honorable and learned member say to a salary of £3,000 for the Chief Justice, and a salary of £2,500 for the other Judges ?
– I shall not move an amendment at the present time. Like the Attorney-General, I shall wait to see what the sense of the Committee is.
– Whatever its individual opinion may be the Committee is in a certain way committed by the action of certain of the States Parliaments in voting salaries of £3,500 to their Chief Justices. They only do that because they find it necessary to have a perfectly free choice in order to get the best men. I would point out to those honorable members who happen to think that a smaller salary should be paid to the Chief Justice that we are in a certain sense precluded from fixing any amount which we may think reasonable while the States Parliaments retain their present rates of salaries. It stands to reason that we could not get a man to take a smaller salary in one position than he can get in the other position. If I am referred to the example of the United States I shall reply that in New York there are 34 Judges whose average salary amounts to £3,500.
– Are they as good as the Judges of the Supreme Court of the United States at £2,100?
– It shows the price that the State has to pay for its Judges. In making the appointments to the Bench of the Supreme Court the United States is absolutely limited to a number of wealthy men, that is if it wishes to obtain the services of men of known and tried abilities. Of course, if it went outside that class it could get plenty of men to take the positions at a salary of £100.
– Are they such inferior men in the United States and Canada ?
– If I am assured that there is a sufficient number of wealthy men at the Bar here - men of the best experience who are prepared to make the large sacrifice which is involved in the acceptance of a Judgeship-
– Are not the best men, if chosen for the Bench, as a rule those who have been making the largest incomes at the Bar.
– My own opinion is that it is so, but it does not always follow that a man is willing to give up his practice. I could mention four or five leading men at the bar in New South Wales who have refused to accept the salary which is offered there, and I have no doubt that in one or two cases Victoria has had a similar experience. There are two considerations which should actuate us at the present moment. We desire to secure the most suitable men for the positions, and to offer them what is a quid pro quo for what they must practically give up, and we desire that the best men shall be attracted to the service of the Federal Government as against the service of the States. If the best men are attracted to the States Benches, it stands to reason that the opinions of the States Judges will be of more value than the opinions of the High Court Judges. In these days of economy we are all desirous of limiting the expenditure as far as is possible having regard to the importance of obtaining men of the highest ability ; and I do not see how we can fix a lower sum for the salary of the Federal Chief Justice than is at present paid to the Chief Justices in at least three of the States. Much as I disapprove of the Government in many respects, I think they have adopted the only attitude open to them on the present occasion. I was, and I still am, strongly opposed to the constitution of the Federal High Court as quite unnecessary ; but now that we have determined on having a High Court, we ought to be able to select a Judiciary composed of men who show that their abilities in their outside walks of life are rated at something like the salaries now proposed. It cannot be inferred for a moment that, because in three of the States the Chief Justices each receive £3,500 per annum, three corrupt Parliaments have been ready to give larger salaries than are necessary.
– That was the case in one of the three States. *
– But what about the other two States ? I remember when the present Chief Justice of Queensland was elevated to the Bench, the late Sir Henry Parkes, whose public appointments throughout New South Wales reflected great credit on his judgment, and have been of eminent service to that State, said that Queensland could not afford to lose from its political life a man of the ability of Sir Samuel Griffith - that in Parliament he could save Queensland the amount of his salary twenty or thirty times over every year.
– Sir Samuel Griffith voted the money for himself.
– I had a conversation with Sir Henry Parkes on Sir Samuel Griffith’s appointment at the time, and am thus able to state his opinion of the loss to Queensland in that gentleman’s retirement from public life, and I do not think there is any breach of confidence in making public the circumstance. Whether we like it or not, we are bound by the decision of the various States Parliaments in this respect.
– The honorable member has not applied that rule in other matters.
– In a matter of this kind the States afford a good precedent ; at any rate, we do not find that in any of the States there is agitation for a reduction of the salaries at present paid to the Judges.
– No future Chief Justice in Victoria will receive £3,500 per annum.
– Does the honorable member for Gippsland say that the Federal Government could not afford £3,500 per annum for the Federal Chief Justice when three Judges of the States Courts are at present receiving that amount ? I do not believe that we can make the High Court as effective as it would otherwise be unless we offer salaries sufficient to attract men who will be a credit to the Judiciary ; and under the circumstances I feel bound to support the Government. No doubt the Government would gain more popularity throughout Australia just at the present time if they made salaries low ; but I venture to say that if later on the question was raised as to unsuitable Judges having been selected, they would find themselves accused of false economy. In dealing with the affairs of a continent like Australia we must remember the Roman maxim, the very age of which proves its value - “Sometimes the greatest tax of all is parsimony.” That, I am inclined to think, will be the conclusion arrived at if the Committee do not adopt the proposals of the Government.
– It would be a great mistake to pass this clause as it stands. We must remember that the times were very different when the high salaries were fixed for the States Judges: The best talent was then very scarce, as it was possible to earn large sums at the Bar. Those were the golden days when we in Victoria fixed the salary of the Governor at £15,000 per annum; and we know that now his salary has been reduced to £5,000, though the salaries of the Judges remain at the original figures. A law has, however, been passed fixing the salary of future Chief Justices at £3,000 per annum, and the salaries of the puisne Judges at £2,500.
– But the States Judges receive pensions.
– Pensions are also provided in this Bill, and will be dealt with later on ; at any rate, the question of pensions is not mixed up with the question we are now discussing.
– If the honorable member is comparing the proposed salaries with the salaries of the States Judges, it must be remembered that the latter receive pensions, and that the clause providing pensions under this Bill may hereafter be struck out.
– But for one consideration I should regard the salaries I have just mentioned as much too high. They are much higher than are paid in other parts of the world. In the United States, with a population of S7,000,000, the Chief Justice receives £2,100 per annum, and the puisne Judges £2,000, and surely the duties they perform must be as important as those to be performed in Australia, with a population of less than 4,000,000? I do not think it would be wise to fix the salary of the Federal Chief
Justice at a lower sum than it is intended to give future Chief Justices in Victoria, and for that reason alone I am prepared to go to the length of fixing the salaries at £3”,000 and £2,500 for the Chief Justice and the puisne Judges respectively under this Bill. “We can get the services of the best men available for the position of Prime Minister at a lower salary than that proposed for the Federal Chief Justice.
– And the position of Prime Minister is uncertain in tenure.
– A man may run the risk of losing his practice at the Bar for the sake of a year or two of office, and yet we have no difficulty in getting the best men as Premiers and as Prime Minister.
– Surely the honorable member does not pretend that a Prime Minister or Premier is paid an adequate sum in return for his work, seeing that a bank manager may receive £3,000 per annum ?
– I consider that£3,000 per annum is an excellent salary for any Judge. In these days, when the professions are largely overstocked, and a great many legal practitioners are unable to obtain briefs, there will be very little difficulty in getting the best talent available for the Federal Judiciary. When commencing our career as a nation it would be a fatal mistake to fix the standard unreasonably high. In fixing the salaries we must have regard to the maximum, and go down on a graduated scale through the other salaries ; and if we fix the remuneration of the Judges - who occupy the highest-paid offices - at an unreasonably high figure, we shall not be able to fix other salaries at an amount proportionate to the services rendered.
– Why should there be such a large difference between the salary of the Chief J ustice and the salaries of the puisne Judges ?
– I am merely taking the salaries as they are proposed ; otherwise I might be disposed to think the difference rather too great. However, I shall not in any case vote for a higher salary than £3,000 for the Chief Justice, because to go beyond that would be to take a mistaken step which we might not be able to retrace. These appointments are practically for life ; and after we have induced men to give up the practice of their profession, we cannot break faith with them by reducing their salaries.
– The Constitution forbids it.
– And therefore we shall be making a fatal mistake if we fix the salaries unreasonably high. I shall support a reduction of the salaries to at least the limits I have mentioned.
– I do not agree that our hands are tied in any way, but hold that Parliament is perfectly free to do what is deemed best in this important matter. I intend to move that the salary of the Chief Justice be reduced by £1,000, because in my opinion £2,500 per annum is sufficiently high as a commencingsalary. It is much easier to go up than down in the matter of salaries. I do not subscribe to the theory promulgated tonight, that a Judge goes on the Bench merely for the sake of what he can make out of the position.’ I read an article today, in the Age or the Argus, by Professor Harrison Moore, who expresses the opinion that Judges sell their law precisely as a grocer sells sugar, or any other commodity. I do not agree with that view. My own opinion is that most of our leading lawyers sacrifice something in the way of remuneration when they are elevated to the Bench. We are told repeatedly that barristers when pleading at the bar earn much larger amounts than they do when they become Judges ; and personally I believe that the present Chief Justices in nearly all the States made great pecuniary sacrifice when they went on the Bench. If that be so, it is clear that the Bench has attractions other than those of a monetary character. The prestige and status of a Judgeship are in themselves a high attraction to ambitious men, apart altogether from the remuneration offered. As has been suggested, the attraction of the judicial office is something akin to that of the Premiership of a State. It is well known that the present Premier of Victoria is making a huge sacrifice of income in holding the position he does. If this operates in connexion with the administrative functions of a State, why not in connexion with the interpretation of its laws 1
– A man has power when he is at the head of a State.
– Has a Judge no power ?
– To construe laws, but not to make them.
– I think that a Judge has more real power than any other man can have. At any rate we might begin in a modest, economical way in connexion with the judicial offices of the Commonwealth. If we must not offer a lesser salary to the Federal Judges than is being paid in “the States, the same argument would apply to all the civil servants in the pay of the Commonwealth. We have paid smaller salaries in nearly every other case.
– The Federal Parliament pays the heads of the Commonwealth Departments about 25 per cent, less than the States pay the heads of their Departments.
– Quite so. Take the case of the Secretary for External Affairs. He gets £800 a year, but the head of a corresponding Department in New South Wales receives £1,100 a year. The Secretary for Home Affairs receives £700, whereas £1,000 is paid in New South Wales. The Secretary to the AttorneyGeneral’s Department receives £750 a year ; a similar State officer receives £950. And so, all through the gamut of these salaries, we have deliberately fixed them at a much lower rate than is paid in the States.
– There is no Federal extravagance there.
– I see none. On the other hand, it is only fair to say that I do not believe that the Federal officers have the same amount of work ‘to do as have similar officers of the States, for the simple reason that all our functions are not yet developed. Similarly, my own opinion is . that the Judges will not have so much work to do ; that is to say, it will not be so continuous, and their noses will not be kept so close to the grindstone in the earlier stages of federation, as is the case with the Judges of the States Courts. My object is to give to the court as few functions as possible. It is a much easier matter to clothe the court with greater powers, and to increase the salaries of the Judges at a subsequent period, than to curtail its powers and pay the Judges less, once the court becomes a settled institution in the country. .We see how difficult it is to interfere in any way with the present States Courts. Reductions ought to be made in connexion with all of them. That is the doctrine that is being preached industriously throughout the Commonwealth. But it is found to be a matter of prodigious labour and of almost insuperable difficulty to curtail the privileges and the functions of State institutions in any way whatever. So it will be with the Judges of the High Court. Therefore we shall do a wise thing, and certainly a thing that will be in keeping with our protestations of economy, if we reduce the amount to be paid to the Judges. I move -
That the word “three,” line 2, be omitted with a view to insert in lieu thereof the word “ two.”
I move this amendment with the object of fixing the salary at £2,500 a year.
– Make it £3,000 and many of us will vote with the honorable member.
– I consider that £2,500 would be an adequate salary.’
– I do not desire to enter into this question very seriously after the debate of a legal character which we have had to-night ; but I wish to say that I cannot see that the Chief Justice will have much more work to do than the other Judges. Therefore, if we reduce the salary of the Chief Justice to £3,000, we should fix the salaries of the other Judges at £3,000 also. We have not yet fixed the number of Judges, but I am taking it for granted that there will be three. We ought not to be too penurious about this matter, because justice is cheap at any cost. Justice is something wherein the height of extravagance may be the essence of economy. Therefore, I shall be perfectly willing to pay £3,000 per annum to each of three Judges. It is nonsense to argue that we must pay £3,500 to our Chief Justice because a State has done so. That is a ridiculous way of looking at the matter. What have we to do with the States? The States can vote what they like. The State of Victoria gave for years £10,000 a year to her Governor, and borrowed the money with which to pay it. That is economy from the Victorian point of view. For years all the States borrowed the money with which to pay high salaries. But the Commonwealth must live within its own means. The Commonwealth has ‘already given back to the States a surplus greater than it is required to do under the Constitution, to enable them to pay their way. I shall vote, not because the States pay their Judges £3,500, or £10,000 or whatever it may be, but because I consider a certain sum to be a proper amount to pay the Judges of the High Court of Australia. The honorable and learned member for Werriwa has said that in the State of New York the Judges are paid £3,500 a year.
There are no pensions attached to those positions.
– How much do they make besides ?
– I have heard a good deal about corruption among the Judges in America, but my experience is that law and justice in the United States are as pure as in any part of the world. I received far more even-handed justice while I was living in the United States than I got in “South Australia at the. hands of one of the Judges of the Supreme Court there.
– The honorable member won his case there.
– Yes, I won it; and I got forty “bob” for my character. Ian: perfectly willing to tell the truth, though some honorable members would be afraid to get up and say how much their characters are considered to be worth. The point to bear in mind is that we have nothing whatever to do with what the States pay. It is a pity that the States do not abolish their useless tinselled Governors, and make the Chief Justices take their place. If they did they could save a lot more money; and if the Kyabramapootrahs and the gildedspurred roosters would begin to crow in that line it would be far better for the States. I am talking of the Deform Leagues of this country, which have their paid agitators, who say that we are extravagant, while the States will pay any price for a jamboree or’ a fandango. I intend to vote against the honorable member’s amendment, with a view ‘ of supporting the payment to all the Judges of a salary of £3,000 a year.
– As I intend to move that the provision with regard to pensions for the Judges be struck out, I cannot follow my honorable friend the member for Parramatta in his amendment to reduce the salary of the Chief Justice to £2,500. A salary of £3,000 for the Chief Justice, and salaries of £2,500 for the other Judges, would be sufficient even for such important positions. I quite agree with my honorable friend the member for Tasmania, Mr. O’Malley, that Judges do not take positions of this kind merely for the monetary considerations connected with them. I notice that the late Professor Morris says, in his Memoir of the late Chief Justice Higinbotham, that the statement to the effect that he had made a monetary sacrifice in becoming a Judge was not in accordance with fact.
– He made a monetary sacrifice when he went into politics, and was punished for his politics.
– We all make sacrifices in going into politics, and do not get credit for it.
– And generally get punished !
– I think that if we fixed the salary of the Chief Justice at £3, 000 per annum and abolished the pensions, we should be offering a scale of remuneration commensurate with the positions.
– I hope that the Committee will not alter this clause in any particular ; because if they do so they will place the Commonwealth, at the very outset of its career in connexion with the High Court, at the disadvantage of finding itself outbid in each of the States. The important consideration has escaped the honorable member for Gippsland that even in the State of Victoria, after a time of economy and reduction, they still propose to pay £3,000 a year to the Chief Justice, and £2,000 to their other Justices of the Supreme Court - six in all ; and to continue the pensions which they have always paid to them. These proposed salaries for the Judges of the High Court are, of course, followed by another clause in which a scheme is given for limited pensions. What we have to consider is the position that we shall occupy if we offer these positions to the leading men at the Bar in the States, or if they should be offered to any of ‘ the Judges who are now on the State -Benches. Are we to ask them, in the one case, to accept a largely diminished income, and in the other case to step down from the receipt of the incomes they now enjoy, with pensions added, to take a lower salary, and perhaps diminished pensions, in order to enter into the service of the Commonwealth ? It is perfectly true that the consideration of pay is not the only one that attracts leading members of- the Bar to these high offices. There is the permanency ; there is the social dignity ; there is the opportunity offered to men of high character and intellect to write their names large in the legal history of the country. All these motives count, and will continue to count. But what will be the effect if these salaries are reduced below the current rates in the States? Victoria is the only’ State that has lately reduced the salaries of future Judges. In New South Wales there has been no such proposal, nor, so far as I am aware, is there such a proposal in any of the other States.
– What does South Australia pay 1
– £2, 000 ; but her population is about one-fifth of the whole Commonwealth.
– And her Chief Justice is a man with a magnificent record.
– But he has the good fortune to hold a position similar to that which many of the Judges of the United States occupy - that he is a wealthy man, absolutely independent of his office. In the United States of America the salaries of the Judges of the High Court were fixed at £2,100 a year, when that sum was more than equivalent to the £3,500 a year paid in Australia at present. Attempts have been made in America for a number of years to alter that rate of salary, and increases would have been carried last session but for the fact that the two political parties came into hopeless collision over other legislation, and the session had to be closed with most of its business unfinished. According to an article published in Harper’s Weekly, the salaries of the United States High Court Judges would undoubtedly, have been raised in the last session of Congress, but for the fact I have mentioned. As I have already said, they were fixed at a time when America had the same number of people as Australia has to-day, and when the value of £2,100 a year, represented more than £3,500 a year does to-day in Australia. The facts are very much the same in Canada. In Canada the salaries were fixed at a time when Canadian rates were even lower than they are now ; and Canadian rates, as honorable members are aware, are always lower than Australian rates. I commend to honorable members the letter by Professor Harrison Moore, published in to-day’s Argus, wherein he shows that the principal legal journal of Canada states that the low salaries paid there are a direct bar to attracting the best men to the Bench.
– The evidence is that the salaries do not attract the men who are earning the largest incomes at the Bar.
– In these States I am aware that there are many men at the Bar who are reputed to be making considerably larger sums than the Chief Justices of the States are paid.
– They have refused Judgeships.
– It is understood that they have refused Judgeships. The present Chief Justice of Victoria refused to accept a Judgeship until offered the position of Chief Justice, which carried with it a salary equal to that proposed by us. That was some five or six years ago. In Victoria and in New South Wales, and probably in Queensland, we can point to-day to members of the Bar who are earning more than is proposed to be given to the Chief Justice. In some cases they are certainly, and in others probably, earning more than the salary we have fixed.
– But their earnings are not permanent.
– I am coming to that point. I have little doubt but that if we fixed the salaries which have been mentioned, we should be able to obtain men qualified for the office. But we should not be able to obtain men in the prime of life who, with the full capacity of earning before them,’ are carrying on their practice at the Bar and are probably earning something considerably above the salaries proposed. The men obtained for the positions would have the advantage, perhaps, of riper wisdom, but they would be men who felt their powers to be not what they were, and who realized that it might not be possible to continue to earn a larger income.
– The case of Chief Justice Way is against the AttorneyGeneral.
– He is a man of independent fortune with whom the Chief Justiceship counts. If there be a sufficient number of independent men in Australia to fill these positions, no doubt some of them would be prepared to accept salaries lower than those proposed in the Bill. But I submit it to the Committee as an incontestable fact that we shall not be able to have a free choice, both from the Bench and the Bar, if we fix the salary of the Chief Justice at the amount named in the amendment. I would myself have fixed a lower salary than that provided in the Bill, if I had thought it possible to obtain that free choice by doing so. But I took the lowest sum possible. The salary fixed in the Bill is being paid in three other States, and only in one has a future reduction been authorized. What chance have we then of carrying out our desire, when, looking round at Bench and Bar, we ask ourselves whether the three or the five Judges - I hope it will be five - to be appointed are to be the best men that we can obtain? When we have found them are we to go to them cap in hand and request them to accept the position, because of the dignity it will confer ? Can we say that we expect them to make so great a sacrifice pf their incomes in order that we may obtain their services.
– The Chief Justice of South Australia surrendered a practice of £6,000 per annum for an office carrying a salary of £2,000 per annum, and the dignity attaching to it.
– The salary which Chief Justice Way receives from the State is not the income upon which he depends. If he received nothing from the State he would still be independent. When the honorable member can show us a number of persons as able and as wealthy as is Chief Justice Way, we shall be in a happy position. But we shall be placed in an unfair position, especially at the outset of the Commonwealth, if we have to offer salaries lower than those actually paid in three of the States of the Union. The gentleman holding this position is to be the Chief Justice of the whole of Australia, but if measured by his income he is to be a man of less standing than are the Chief Justices of three of the States over all of which he presides, and all of which fall within his area. This is to be the status of the, first Chief Justice of the Federal Courts which are to interpret our Constitution and our laws, and upon whose interpretation of the Constitution its future reading for a long time is certain to depend. I do not wish to delay the Committee, but would remind honorable members that the salaries we have fixed are far below the standard set by English salaries. It is true that they are above those paid in Canada and the United States, which were fixed a century ago ; but they are not above the amounts which to-day have to be paid in Canada and the United States, where they seek to obtain the best men. and do obtain them. We have no desire to constitute a court such as that in Canada, to which the chief legal journal of the Dominion has referred in the severe terms which have been quoted. We have no desire to see our court passed by because there is no confidence in its decisions. We have no desire to see it the Chief Court in Australia only in name, because men will not accept positions on the Bench.
– The salaries paid in Canada are not one-half the amount of those proposed by the Government.
– The Chief Justice receives £1,650, while the other members of the Bench are paid £1,450 per annum. But what is the statement that has been made concerning that court ? Professor Harrison Moore states that -
Of the highest appellate tribunal in the country it was declared last year that it did not possess the confidence of the profession or the public ; that litigants went there, not from any belief in the goodness of their cause, but “on the offchance of a reversal by another set of Judges, gambling on the uncertainty of the law.”
– That is a mere statement.
– It is made by the chief legal journal in the Dominion, and as Professor Harrison Moore points out legal journals, like members of the legal profession, invariably defend the Bench and uphold its dignity with all the strength at their command. If we desire to avoid this stigma, and to maintain our courts at all events on a level with the best Courts of the States - if we desire to secure for the first Judges of Australia the best men that Australia can produce - we ought not to reduce the salaries fixed in this Bill.
– Although the question of pensions to be granted to the Judges of the High Court is not strictly before the Committee it is one that seems to influence many honorable members.
– It should be decided first.
– It may be necessary to do so.
– If the Committee think that honorable members would have a free hand in dealing with this question after the clause relating to pensions has been - disposed of, I shall have no objection to postponing the consideration of this clause for the present.
– I am not specially advocating the adoption of that course, but the intimation by the honorable member for Melbourne Ports that he intends to move the omission of the provision for the payment of pensions will certainly influence many honorable members. I shall be glad if the question of pensions is decided first ; but in any event I shall give my vote on this clause with the clear determination of voting for pensions. We must remember that gentlemen who are raised to the Bench are generally well advanced in years, and that even if they received a fairly high salary they would not be adequately recompensed, as they would remain on the Bench only for a few years. It seems to me that the offer of a pension will be one of the attractions of the position. It goes without saying, that the object of the Government ought to be to- secure the very best men to occupy the position of Judges of the High Court. I cannot overlook the fact that in Hew South Wales when the late Sir James Martin died not many years ago, the utmost difficulty was experienced in filling the vacant position of Chief Justice of that State. I am almost safe in saying, that for a time the office practically went begging. It was offered to various barristers but refused, and it was not accepted by the present Chief Justice until Parliament passed a Bill raising the salary from £3,000 to £3,500 a year. Honorable members for Queensland may remember that a somewhat similar case occurred in that State.
– We remember that too well.
– I am not in a position to discuss the merits of the Queensland case, but in New South Wales the ‘facts were as I have stated. If we look around the commercial world we shall find men at the head of firms or great banking institutions, for example, who receive salaries far in excess of those proposed to be given to our Judges.
– That is so in Melbourne and Sydney to-day.
– I dare say that there are men at the head of commercial institutions in Melbourne and Sydney who receive from £4,000 to £5,000 a year. Then we have our, Railways Commissioners. The Chief Commissioner of Railways in New South Wales receives £3,000 a year, while the Chief Commissioner of Railways in Victoria draws a salary of £3,500 per annum. A few days ago, when it was proposed to fill a vacant commissionership, it was found necessary to raise the salary attaching to the office.
– But the commissioners are not appointed for life.
– No one is appointed for life. In New South Wales the commissioners were appointed for seven years, and the term was recently renewed.
– Do they receive pensions 1
– I do not say it is essential that our Judges should receive pensions, but the offer of a pension would be one of the great attractions of the position. I am willing to admit that this is a time for economy, and that we should not go to extremes, but I am inclined to support the Government. I hope that, in any event, the Committee will not consent to reduce the salary which will attach to the great position of Chief Justice of the Commonwealth below £3,000 a year,
– The AttorneyGeneral has just made an appeal to the Committee to look to the various States for guidance in this matter. He urged that we should be outbidden by the States, and that the current rates paid in Australia were higher than the amount fixed in the amendment. We have to remember, however, that these are not the current rates of to-day, but were really fixed in the boom time, when the mercantile, professional, and other classes were receiving very high emoluments. I would reverse the comparative statement made by the honorable and learned gentlemen, for £3,500 a year received to-day, is equal to £5,000 per annum paid seven or eight years ago.
– Notwithstanding the Federal Tariff.
– I am sorry to say that has been the position of affairs for the last seven or eight years. The purchasing power of money has become larger and larger, and those in receipt of a salary of £3,000 seven years ago were in no better position than those who now receive £2,000 per annum. While some urge that no reduction should be made in the salary proposed by the Government, it might be admitted that the purchasing power of salaries ‘is greater than it was. I find that special provision for the payment of the salaries of our Judges is made in the Constitution. Section 72 provides that they -
Shall receive such remuneration as the Parliament may fix, but the remuneration shall not be diminished during their continuance in office.
That is to say if we fix this salary to-night we shall have no power to diminish it during the term of office of the Chief Justice, although we shall be able to increase it. That is another reason why we should support the reduction proposed. If we find by experience that we cannot get the best men to be had in Australia, that the most active members of the Bar will not accept positions upon the High Court Bench, that the salaries we vote are not sufficient, and if we find that the work to be done by the High Court J udges will be so heavy as to involve a great demand upon their time, Parliament can increase the salaries. There is, therefore, no danger in agreeing to a reduction upon the amounts suggested by the Government. They ask that the salary of the Chief Justice shall be £3,500 a year. I intend to support an amendment making the salary £2,500, but whether that amount or £3,000 is the salary fixed, it must not be forgotten that we can diminish the salary proposed only once, and that is to-night. Afterwards, during the life time of the person appointed, it will stand at the sumfixed by Parliament unless it is found necessary subsequently to increase it. I think that £2,500 a year is a fair salary. It must be remembered that upon clause after clause of this Bill, the Attorney-General has been urging the Committee to confer greater powers upon the High Court in order to give employment to the Judges. We have every evidence that there will” be very little for them to do, and that in itself will be an incentive to men to go from the Bar to the High Court Bench. The Judges of the Supreme Courts of the States have six times as much work as these Federal Judges will have to do.
– How does the honorable member know that?
– We know pretty well already the amount of work they will have to do. The honorable member is backing up the Attorney-General, who referred to the gambling that takes place in courts in Canada; but we know that so long as there is a higher court, they will gamble. I do not think the fact that the Judges will not be very highly paid will encourage gambling in law. I remind honorable members that the Prime Minister of this country receives a salary of £2,500 a year. He has no permanency, and no pension, and, in fact, occupies a very precarious position. He has to superintend the whole of the affairs of Australia, and although he will have the appointment of these High Court
Judges, he only gets £2,500. Once we introduce comparisons of this kind, honorable members will see how absurd the Government’s proposal is. If the argument be sound that to get the best men of the legal profession to accept positions as Judges of the High Court, we should pay a salary of £3,500 a year, we should pay the Prime Minister of the Commonwealth £5,000 a year. The present Prime Minister is a well-known lawyer, and is regarded in the . profession as a lawyer of high standing, but we find him working for £2,500, with no chance of a pension and no permanency.
– We are told that it is a permanent position.
– It is permanent until the election. I agree with those who ask for a reduction of the salaries proposed. The Attorney-General has not shown how the confidence of the profession, or of the general public, will be shaken by a reduction, but we know how the public will be shaken by an increase of the salaries. I should like to hear some argument against the proposal to fix the salary at £2,500 a year. We are told that younger men at the Bar, getting £8,000 or £10,000 a year, will not be attracted by the offer of a position on the High Court, but this is the age of economy, and we must not fix as current rates the. rates which existed in the boom period.
– If I understand that it is the wish generally of honorable members to consider clause 53 before clause 52, I shall now move the postponement of clause 52 until after we have considered clause 53. Before doing so I may take the opportunity of reading one short extract which I missed, and which I intended to have used relating to the effect of the salaries paid to the Canadian J udges -
A letter to the EmpireReview for March points out that the names of many of the Judges appear on the directorates of trusts, finance, insurance, or other corporations.
Amendment, by leave, withdrawn.
Motion (by Mr. Deakin) agreed to -
That clause 52 be postponed until after the consideration of clause 53.
Clause 53 -
A Justice of the High Court, if disabled by permanent infirmity from the performance of the duties of his office, shall be entitled to retire upon a pension to be continued during his life at a rate -
– I hope this clause will be struck out. It seems to me to be a great mistake at the commencement of the Commonwealth to recognise discriminating pensions. It has been said that it is rather remarkable that those who are in favour of old-age pensions should oppose aproposal of this kind.
– Old-age pensions apply to everybody.
– Bu t this is a discriminating proposal to which I object, and which I hope will be struck out. We have just had an illustration of the pernicious character of it in ‘Victoria. One of our very esteemed Judges has been drawing a very handsome salary for a very long time past, and he now retires on his pension, and goes away to some other country to spend it, while we have to pay it.
– The State has had services rendered for it.
– I do nob think the services were rendered forthe pension, and I thinkthe salary paid was quite sufficient to enablethe person receiving itto acquire an annuity for himself.
– The honorable member would be quite satisfied if the money were spent in this country.
– I should be very much more satisfied than I am now, because then some of it would be distributed amongst those who haveto pay it. Under present circumstances, those who pay the pension get no benefit from it. However, I object to the principle altogether, and I hope it will not be acknowledged in any way in connexion with the Commonwealth. It seems to me that a man getting one of the highest salaries paid in the Commonwealth, even if the amount proposed be reduced to £3,000, will be sufficiently paid to enable him to look after his own old age.
– I hope this clause will be allowed to remain. After all, what we have to consider is the end we are aiming at, and, unquestionably, we should desire to get the best men we can possibly get for the High Court Bench.
– Does the honorable member think that a pension will attract them ?
– Undoubtedly it will. We know, as a matter of fact, that we have not always been able to get, I will not say the best men, but the men earning the highest incomes at the Bar to accept positions on the States Benches at £3,000 or £3,500 a year. If, in addition to cutting down the salaries, it is further proposed to take away the pensions, we shall be still more in danger of limiting our choice. I shall speak again if I get an opportunity on the clause fixing the salaries to be paid, but I wish to emphasize the point that if the Committee decides that those who are to be offered positions on the High Court are not to receive pensions, we shall in all probability get inferior men, or at all events by no means the best men.
– My feeling is that this clause might be postponed until after the consideration of clause. 52, because I cannot really vote fairly on the question of pensions until I know what the salary is going to be. I desire that the salary proposed shall be lowered, but I think that pensions are very necessary, not only to enable us to secure good men, but also in order bo enable us to keepthem, andto get rid of men who are incapable by physical or mental weakness. The great advantage of the pensions is that, when a man feels that his powers are failing, if a pension is provided he will know that upon retirement he will not have to live upon the small income to which his savings might reduce him. The honorable member for Melbourne Ports has previously contended that upon the abolition of pensionsthere should be a system of compulsory life assurance for all public servants. It is absolutely contrary to the principle of the law that public servants should be in want. There is a dignity attaching to the man who has served his country in the public service, which he should afterwards be able to retain.
– We do not provide pensions for other public servants.
– Where we do not provide pensions for public servants, the honorable member for Melbourne Ports contends that compulsory assurance should be insisted upon.
– Surely a man in this position should know that he ought to provide for old age ?
– I know that there have been men connected with the County Courts in Victoria who have been reduced to a very impecunious position. It is very unfortunate that a man whom one has had to address in terms of respect and deference should afterwards be coming round desiring to borrow a five-pound note. Any one who has moved in legal circles in Melbourne for fifteen or twenty years well know that some Judges have been reduced to that unfortunate position. Am I to understand that if the honorable member for Melbourne Ports can secure the omission of this clause he will propose the insertion of a provision requiring assurance 1
– I think that a Judge should look after his own assurance.
– There must be a provision for a pension or for assurance if it is desired to carry out the policy which Parliament has always insisted upon, and which even the courts have from time to time recognised, that servants of the Commonwealth shall not have their salaries attached. A similar principle arises here, because men in these positions should retain the dignity previously attaching to them. I understand that the honorable member for Melbourne Ports referred to the case of a Judge who recently retired from the Victorian Bench, after a good many years service, because he found that his faculties were not as keen as they previously had been. There is another case of a Judge in another State who is said to be getting too old and too deaf. I shall not say in which State that case arises, but I have no doubt that such a Judge, if he had not his pension to fall back upon, would cling to his position far longer than he should.
– It appears he is still clinging to it notwithstanding the pension.
– If he does he is not in the pitiable position that he has to remain on the bench through fear of poverty. If we wish to get the best men to occupy these positions, and if we wish only to retain them so long as they are able to efficiently perform their duties, we shall provide for a pension. I support the clause, and I trust the Committee will not accept the suggestion of the honorable member for Melbourne Ports.
Mc. BRUCE SMITH (Parkes).- If the honorable and learned member who has just spoken would read the clause a little more carefully, he would see that it is distinctly, in favour of the Commonwealth. It provides for a case in which a Judge is disabled by permanent infirmity from the performance of the duties of his office The honorable a.nd learned member for Corio will not contend for a moment that it is not in the interests of the Commonwealth that, when a Judge has developed some permanent infirmity which renders him incompetent to perform his functions as a Judge, some inducement should be offered to him to resign. We cannot provide in a Bill of this kind that a Judge shall occupy his position only so long as he is competent, in the estimation of the permanent law officers of the Crown, to discharge his duties, and therefore our only recourse is to provide that, when a Judge is afflicted with some permanent infirmity, a moderate pension shall be offered to him to retire and allow a more competent man to take his place. It is therefore proposed that -
A justice of the High Court, if disabled by permanent infirmity from the performance of the duties of his office, shall be entitled to retire upon a pension, to be continued during his life.
Then the rates are set forth. If the Judge has served for less than five years he is to be entitled to a pension equal to twotenths of his salary. If he had been appointed at a salary of £3,000 a year, he would thus be entitled to a pension of £600 a year.
– How much would he get. if he were outside 1
– That is not the question. We are framing a Bill by which we hope to secure the services of, if not the very best, certainly some of the very best men in the community. We want men upon whom four millions of people can depend for the interpretation of the Constitution. It cannot be said that anybody will be good enough to act as a J udge of the High Court, and we may rely upon it that by reducing the salaries we shall also lessen our chances of securing the best men. . Even moderate men would not be attracted to positions of this kind if they felt that, in the event of sudden illness overtaking them, and rendering them unfit to longer continue their duties, they would be shelved, and left to take their chance in the hurly-burly of life. It will be to the interest of the Commonwealth to offer an inducement to Judges who may be thus disabled by permanent infirmity to give up their positions, and we may fairly give them a moderate recompense for the sacrifice they will in such a case be called upon to make. There is no parallel between the provisons of the clause and the case put by the honorable member for Melbourne Ports, in which a Judge of the Supreme Court of Victoria retired at the age of 60 upon a pension of £1,500. The Bill proposes that a Judge who has served fifteen years on the High Court Bench shall be entitled to retire upon a pension - but only when he has reached the age of 65. Although human life is said to be lengthening, 70 years is still about the average span for the most healthy among us, and, therefore, it is only reasonable to provide : that when a Judge has reached the age of 65 years he shall be entitled, if he has served fifteen years, to receive a pension equal to 7-10ths of his salary. AV e are not thus legislating so much in the interests of the Judges as in the interests of the Commonwealth, because if 70 years be taken to be the maximum age at which most men fail to retain their full faculties, it is not extravagant to provide that when a J udge is five years short of the end of his natural life he shall be allowed to retire on a pension. AVe do not want upon the Bench palsied men - men who are really not in the possession of their full faculties, and who are incompetent to do the very difficult work which will fall to their lot. Therefore, instead of looking at this clause from the point of view of the Judge, it should be regarded as a safety-valve which will enable the Commonwealth to clear the Bench of Judges who have become broken down by age or permanent infirmity. I would point out also to the honorable member-for Melbourne Ports that, if no pensions were provided for, it would be open for any Judge to remain on the Bench long after he had become incompetent, through illness, to do his work faithfully and well.
– The Constitution provides for removal in such cases.
– Yes ; but unless a Judge were grossly incompetent no Government would take the extreme step of removing him. 4 k 2
– Would not the same thins apply, even if pensions were provided for, if a Judge still desired to remain on the Bench?
– No; because Parliament would be much more ready to take steps to remove a J udge when they knew that a pension was provided for in case of his lacking ability, through illness, to proper!)’ perform his duties. I submit, therefore, that it is fair that Judges who have arrived at an age within five years of the recognised allotted span of life should be offered an inducement to retire from the Bench, and make way for younger men.
– This seems an opportune time to discuss the whole question of pensions, which is ever recurring in connexion with the discussion of Estimates. AVe should deal with this matter in the broadest possible spirit, and fix the salaries upon such a liberal scale that we shall encourage our best and youngest men to take up the positions of Judges. We should also endeavour to secure as Judges men of such an age that it will be possible to provide for them by way of insurance, instead of adding to the burdens of the taxpayers by granting pensions. We should not make the High Court Bench a place of refuge for barristers who desire to retire from the active practice of their profession. The honorable member for Melbourne Ports proposes that no provision shall be made for pensions, but I take a very liberal view of pensions in the case of Judges, because I feel that we must get the best men. I should, however, be in favour of offering the highest possible salary, fixing the amount of the pension in inverse ratio to the amount of the salary. Our Judges should be not only the best men, but the healthiest, and such as would most likely be able to render us good service for many years.
– I listened very attentively to the arguments of the honorable and learned member for Parkes in regard to the proposed pension arrangements, but I should like to know why, if a J udge is suffering from some permanent disablement - the palsy, or an enlarged liver, perhaps - the amount of pension paid to him should be in inverse ratio to the length of his service ? The clause provides that if the Chief Justice of the High Court becomes disabled before five years’ service he is to receive a pension of £700 a year; if after five years’ service, of £1,050 a year if after ten years’ service, of £1,750 ; and if after fifteen years’ service, of £2,450. As a matter of fact, however, a Judge who becomes permanently disabled at 55, and thus wholly dependent upon his pension for support, has a longer life before him and will be worse off than a Judge who becomes permanently disabled at 65. It seems to me absurd that there should be any connexion between the salary and the pension.
– The longer their services to the country the better their rewards.
– Then am I to understand that their salaries alone are not to be regarded as paying for their services 1 If their salaries pay them for their services, we have no right in fixing their pensions to consider their length of service. I hope that the Committee is not prepared to abolish pensions altogether, but I would rather vote for their abolition than for a differential scheme like this.
– I should like clause 52 to be settled before we go further. If - the scale of pensions allowed for is agreed to I shall certainly vote for much smaller salaries. I think that pensions of a certain amount should be provided, so that Judges who become incompetent by reason of physical or intellectual misfortunes may have something to support them. I should not like any of the Judges of the High Court to be placed in the position in which we saw an old warrior here in Victoria lately. They had a great battle to get anything( for him, though he was one of the greatest democrats that Victoria ever produced. His case made every man who had any human .sympathy in his soul blush with shame at the meanness and parsimony of this State. We must make such provision that we shall not have Judges who have made financial mistakes reduced in penury in their old age. It is easy to say that men in such a position should provide for their future, but, as a rule, Judges are not financiers. They are law-givers, not money-grabbers. They are not sharp enough for the money-grabbing business. Consequently they may lose all they have through some financial mistake on their own account, or to help their sons. But no one would like to see an old J udge of the High Court qf this great Commonwealth going round bare-footed. I heard Holman, of Indiana, the watch-dog of the United States Treasury for 40 years, say when he was bidding good-bye to his people, after a young lawyer had come to his district while he was away and put him out, that - paraphrasing Cardinal Wolsey - if he had served his family half as faithfully as he had served his electors, he would not have been indigent in his old age. I do not want our Judges to be indigent when they are old. I would not give large pensions, but I would give them as much as .£500 a year. It is well known to every thinker that the great men, the intellectual giants of the world, are not those who make money. . They have no time for that sort of thing, and do not know how to do it. They have not studied the methods of gathering in. But, before settling the pension question, I should like to deal with the question of salaries. If I knew that the three Judges were to get £3,000 a year each, without distinction, I would vote for a pension of £500 when a Judge had to retire by reason of intellectual or physical disability. That would enable him to live out in the country with his books, away from the stir and noise of city life.
Mr. L. E. GROOM (Darling Downs).Honorable members have expressed the desire that the field of choice for the Judges of the High Court shall be made as wide as possible, although some have suggested that politicians shall not be permitted to occupy seats on the Bench. I draw attention, however, to’ the fact that under clause 53 pensions are payable to the. Justices of the High Court at certain rates “ if disabled by permanent infirmity.” But it may be desirable to choose some one or more of the Judges of the States Courts.
– Certainly not. We can fill the High Court Bench out of this Chamber.
– The Executive should have the right to choose a Judge of a State Court, if they thought him the most suitable appointment.- I would point out, however, that the Judges of the States Courts have pensions secured to them after a period of fifteen years service, or upon disability. But the provisions in clause 53, would make it necessary for a man who was taken over while in full possession of his faculties, and before the completion of fifteen years of service, to abandon some of his existing rights, as, unless he has served, fifteen years in the State, he has no right to a pension at all.
– We do not intend to take them over.
– I desire to leave the Executive free to exercise an untrammelled choice.
– Will the honorable and learned member vote in favour of a proposal to give the State J udges the first refusal of the positions ?
– No. I believe in allowing the Executive to have a free hand in this matter. If we are to grant pensions to the Justices of the High Court we ought to make provision whereby Judges of the States Courts, if appointed to the Federal Bench, shall not be placed under any disadvantage. Sub-clause (3) of this clause reads -
When any Justice of the High Court is entitled, by virtue of any right preserved by the Constitution, to any pension upon retirement, that pension shall be deemed to be in reduction pro tanto of the pension to which he is entitled under this Act.
That means that we can practically only appoint to the High Court Bench J ustices who have actually served fifteen years in theStates Courts, and who have thus acquired a right to a pension. If we decide to grant pensions to the Justices of the High Court we ought to provide that State Judges shall not be placed under any disability by reason of their having undertaken to serve the Commonwealth in a higher capacity.
– If the honorable and learned member for Darling Downs will carefully read the sub-clause in question he will find that the contingency which he has suggested has been anticipated.
– But if he has not served nine years he will receive no pension.
– The sub-clause provides that in the event of a State Court Judge being appointed to the High Court, and being entitled under the State law to a pension, such pension shall be deemed to be paid in reduction of the pension to which he may be entitled under this Bill ?
– But that will apply only to Judges who are entitled to State pensions.
– The last portion of section84 of the Constitution says -
Any officer who is at the establishment of the Commonwealth in the public service of a State, and who is, by consent of the Governor of a State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth, and were retained in the service of the Commonwealth.
– Can the Attorney-General say that a Judge is transferred by the consent of the Governor of a State ?
– He would require to be so transferred if he were appointed to the High Court Bench, in order that he might have preserved to him the rights conferred by the section I have quoted.
– The Department is not transferred by the State.
– It is a general provision which, in my opinion, may be applied to any Judge of a State Bench.
– I find myself in somewhat of a difficulty upon this matter, because the direction in which I shall vote upon the pensions proposals contained in this clause, depends entirely upon the salaries to be paid to the High Court Judges. Personally, I am opposed to the payment of pensions, but on the present occasion I am bound to vote in favour of these provisions, because I feel that the Committee are inclined to pay smaller salaries than I consider are adequate. I merely mention this fact in explanation of my vote.
– May I ask the AttorneyGeneral, for the information of the Committee, to compare these provisions with similar pensions provisions elsewhere ?
– I find that in New South Wales a Judge upon his retirement, on account of permanent disability, or infirmity, or after fifteen years’ service, receives seven-tenths of his actual salary.
– There is no age limit fixed?
– No. That constitutes much more liberal treatment than it is proposed to accord to the High Court Judges under this Bill. InVictoria the pensions are based upon the regulations of the Imperial Act. I believe they provide that after fifteen years’ service, a Judge upon retirement shall receive half salary.
– And nothing before?
– I think that if they retire before they have served fifteen years, they receive a proportionate amount of their salary. In Queensland, every Judge, after having served fifteen years, or on being disabled, is entitled to one-half of his actual salary. In Tasmania, a Chief Justice who has served fifteen years, and has attained the age of 60 years, is entitled to a pension of £750 a year, and the other Judges to £650. If disabled by permanent infirmity they may receive a pension of £500 a year apparently at any time.
– What do they receive in South Australia?
– I have not the retiring allowances for that State before me, but I am informed by the honorable member for South Australia, Sir Langdon Bonython, that puisne Judges received £1,300 a year upon their retirement. In Western Australia, after fifteen years’ service, or upon attaining the age of 60 years, or being permanently incapacitated, the Judges receive a pension equal to one-half their salary. ‘
– -Upon the whole, I do not think it would be wise to object to the pensions provisions of this clause, though perhaps some modifications might with advantage be made in them. I notice that in America the age at which the Justices retire on pension is fixed at 70 years. Something has been said about allowing the retiring of the High Court Judges on pension, out of consideration to them, at 65 years of age j but it seems to me that what we must chiefly regard is their capacity to satisfactorily discharge the duties of their office. In America, I repeat, that the age limit imposed is 70 years, and I ask the Attorney-General whether he could not base the right of .the High Court Judges to a pension equivalent to seven-tenths of their salary upon a similar limitation. . In England of recent years, complaints have frequently been made in the public press regarding in cases the senility of the Bench. It has been repeatedly urged that it is very advisable to afford its Justices an opportunity to retire. It is said that they sometimes get livery, impatient, and somewhat petulant in their declining years, and that owing to the fact that pro rata pensions had not been granted, Justices who ought to have retired have not done so.
– The honorable and learned member wishes to buy them off.
– There is no other means of getting rid of them except by both Houses of Parliament adopting an. address declaring that they are incapable. It is very seldom, indeed, that Justices are got rid of in America by impeachment, or in England by the adoption of an address by both Houses of Parliament. But here, in a case of established infirmity, some inducement is offered to a Judge whose waning faculties suggest that he ought to enjoy the remaining years of his life where he would not be obnoxious to suitors, to retire from the Bench. Under these circumstances, I think it is advisable to vote generally for the pension provisions of the Bill, whatever the Committee may decide in regard to clause 52.
– I intend to vote for the proposal to grant pensions to the Justices of the High Court, because it seems to me that the reason which has been put forward by the Attorney-General and other honorable members who have spoken in support of it, are unanswerable, that it would not be wise for the Commonwealth to offer lower salaries or pensions than obtain in regard to the Judiciaries of the States. We desire to place the High Court of Australia upon such a footing that it will attract the best legal talent from the States. At the . same time, I cannot quite agree with the details of this pensions proposal. In the first place, I do not think it is the proper thing to give a pension to a Judge who has served only two years. And with regard to the proposal to give a Judge, after fifteen years’ service, a pension equal to seven-tenths of his salary, I think it is, if anything, offering an inducement to a Judge who may feel a little lazy to retire.
– We had better make the age 70 years, as in America.
– I do not say what form the amendment should take, but there is a necessity to provide for some pensions. I think that the first step should be to move the omission of paragraph (a), which provides for a pension to a Judge who has served less than five years.
– Only after disablement or permanent infirmity.
– I do not see at present the necessity for giving a pension to a Judge who has served only a year or two years.
– Make it start from ten years’ service.
– I think it ought to be done in some such way, but I should like to hear the Attorney-General’s reasons for proposing to give a pension for less than five years’ service.
– I cannot understand the remark of the honorable member for Bland, that we should not offer lower salaries than are being offered in any of the States. The whole argument in the Prime Minister’s replies to certain questions I put this afternoon was that we were able to get the best men at 25 per cent, less than is being paid in the several States. I have no doubt that in connexion with the High Court we shall be able to get men of very wide experience both in law and politics who will serve us admirably for the salaries which we are prepared to offer, and without the extra inducement of a pension. I am opposed to the payment of pensions. We did the right thing in the provision we embodied in the Public Service Act for life assurance. In this case, where we are likely to offer a handsome salary, and where the men will enter the service of the Commonwealth later in life, after they have probably had for years a lucrative practice, out of which they ought to have made some savings, it is hardly right to ask the Commonwealth to grant them pensions. That is not done for ordinary business men. It is not done for the managers of bank’s, of trustee companies, or of other great financial or trading institutions.
– Frequently bank managers get pensions when they retire from active work.
– I believe it is so in connexion with some banking institutions, but in the generality of cases men have to make provision for themselves out of their salaries. For the most part the men who will be appointed to the High Court Bench will have had excellent practices at the bar, or if they are taken from the Benches of the States they will carry with them their rights to pensions, and consequently we shall not be under an obligation to create a pension list on their account. We are under no obligation to follow the example of the States and tq offer salaries beyond what it is fair to give.
– It is not a question of what it is fair to give, but of what we must give in order to get the class of men we require.
– I believe that we shall get the best of men for the salaries which tire likely to be voted here without the additional inducement of a pension.
– The fact that we got civil servants is no criterion, because there was quite a large number of civil servants to select from.
– I admit that the circumstances are entirely different. But it is my opinion that we shall get excellent men of proved legal capacity aswell as perhaps ripe political experience to offer their services to the Commonwealth. The peculiarity of the present proposal is that a Judge will be induced to remain at his post as long as possible in order to get the higher pension. If a Judge meets with a paralytic stroke after he has served for three or four years he will endeavour to remain on the Bench for seven or eight years, because at the end of that time he will get a larger pension than if he had retired at the end of five years, and so on right through the piece. I think it is a mistake to differentiate in this way. In any case, if there is to be a pension granted I think it ought to be paid, not so much as a reward for services rendered, as a compensation for some infirmity which has suddenly rendered a Judge incapable of performing his duty. What ought to be done, I submit, is to create a fund out of which the compensation, gratuity, or retiring allowance should be paid in a case of proved incapacity, occasioned by a sudden paralytic stroke or some misfortune.
– Up to what amount 1
– I should say that up to one half of the salary would be a fair thing ; but that is a matter for further discussion. Judges unlike most other persons are not called upon to take a very large part in social functions, and therefore are not under any great obligation to spend money in the way in which other persons are. On the other hand, they are- subject to certain limitations in the way of business. They cannot take up directorships, or any positions of that kind; but the salaries which are likely to be voted will be more than proper compensation for the restrictions which they have to put upon themselves, and for the social pleasures which they have to forego. I think that the proposal in the Bill in respect to pensions ought not to be carried, and that some other proposal might be put forward to provide for a case of sudden misfortune occurring to a Judge whereby he could make provision for his own needs. With respect to the salaries, I consider that it would’ be sufficient to give £3,000 to the Chief Justice, and £2,500 each to the other Judges.
– The Attorney-General correctly quoted me as saying that the pensions of the puisne Judges in South Australia had been fixed at £1,300 per annum, and I believe that that of the Chief Justice is £1,500 per annum. I should like to add that I believe an Act was passed about nine years ago abolishing pensions for future Judges in South Australia.
– The matter we are now discussing is of such importance that we cannot give it too careful attention. On the one hand, there is a natural desire, in which I fully sympathize, to prevent the system of pensions getting a footing in the Commonwealth service. On the other hand, there is a desire to keep British justice and Australian justice up to the high standard which it has hitherto maintained, and from which it would not be to the interests of the community to allow it to fall. In dealing with a question of this sort, we are more limited as to the manner of fixing remuneration than we should be in connexion with many positions in the public service of the Commonwealth. There are three ways in which remuneration is usually fixed. One way is to have regard to the importance of the work ; and I am quite sure we cannot get more important work in the community than that of the administration of justice. When the lives and liberties of the people are at stake we have every reason to avoid the risks attaching to maladministration, even if in doing so we have to expend a little money. I do not say that the mere height of the salary would be sufficient to enable us to escape the evil of maladministration ; but if we wish to get men in whom we have confiddence - whom we believe will administer justice capably and honestly - we must be prepared to give what has been fixed in these States as the remuneration for such services. Another method of fixing a salary is to estimate it according to the rate which applicants will accept. If we adopt that method we can get the work done for nothing, because there are men, one or two of whom might even be’ accept- able, who would take the position for the simple honour attaching to it.
– A very bad principle.
– It would be a very unsafe principle to act on in connexion with our Judiciary
– Either partially or wholly.
– Either partially or wholly ; and no member of the Committee would for a moment consider the adoption of such a principle. Another way of estimating a salary is not to necessarily take the men who want the positions, but to offer a. rate at which we can get the men we want. We have heard a great deal about the High Court. I was, and I am still, very desirous’ of limiting the expense of that court ; but I would rather limit the expense by curtailing the jurisdiction and reducing the number on the Bench than by any cheese-paring in connexion with the salaries of the Judges. If this is to be a court which will command the respect that the Attorney-General expects it to command, we shall have to pay the salaries which the men we want will require. We cannot expect only wealthy men or philanthropists to be called to this court ; we must expect men who are following their profession, and we ma)r perhaps have to ask some .of these to make a sacrifice when they take the position. If we say to the members of the Bar - “You are asked to do justice under all circumstances and all temptations, and we expect you to be so capable that the other Judges, from whose decisions there may be appeals to you, will never, whatever they may say of your judgments, venture to question your capacity,” and if we further tell the members of the Bar that on their appointment to the Bench they must riot occupy certain positions of profit outside their office, which are open to many other men, so that the Bench may be kept clear of any imputation of injustice, bias or prejudice, we must be prepared to pay liberal salaries. And in fixing what is liberal we must have regard to the salaries which are paid to the States Judges in Australia at the present time. Indeed, I do not see any other standard to guide us ; and if the rate of remuneration were £2,000 in the States, I should be perfectly willing to adopt that sum for the Commonwealth, regarding it as an evidence of sufficiency to attract the best men.
– The salary is £2,000 in some of the States.
– In one of the States, which contains a tenth of the population of Australia, the salary is £2,000 ; but I do not think that case affords any comparison.
– Would the present rates be fixed in the other States to-day 1
– It was” in no boom year, but when things were worse in New South Wales than they are to-day, that some of the high salaries of Judges were fixed. It was in no boom time that a Bill was introduced in New South Wales to raise the salary of the Chief Justice to £3,500, as the only way of obtaining the man who was wanted.
– That Chief Justice there is Lieutenant-Governor as well.
– He got additional pay as Lieutenant-Governor, and there is a provision for similar circumstances under this Bill.
– That is more salary still. Mr. THOMSON.- Some low rates have been quoted as prevailing in Canada and the United States, bub if the Commonwealth Courts are to give no better satisfaction than do some of the Canadian Courts, and some of the subordinate courts of the United States, we should be a great deal better without a High Court, seeing that we could get more justice from our present Judiciary.
– There are always complaints about American justice.
– Those who suffer from it complain, and we know that the subordinate courts, at any rate, in the United States, where low judicial salaries are paid, are losing the country money owing to the class of men on the Bench. The honorable member for Bourke expressed the opinion that instead of providing in this way for pensions, we ought to have a fund devoted to paying, as allowances, any sums which Parliament might fix, though not more than half the salary. I do not agree with that idea for a moment.
– It is practically a pension, in any case.
– It is a pension given in the most objectionable way. Some retiring Judges would get the allowance, perhaps through parliamentary influence, while other men, equally deserving, would be denied it through lack of influence. The granting of the pension might be a matter of the whim or prejudice of the moment. If we have pensions the amounts should be fixed. I agree with the honorable member for Bland that there might be some amendment of the clause in regard to the rates of pensions. I would suggest that .after a service of five years the rate should be low, certainly not more than two-tenths of the salary, though I should be satisfied with one-tenth. Then the pension after ten years’ service might be increased to three-tenths, and after fifteen years’ service to five-tenths. I do not think that we need go beyond half the salary, and the suggestions I have made would reasonably support a Judge to whom circumstances had proved unfavorable, at a period of life at which he was unable to earn an income. It would be a most disastrous thing if after the liberties and lives of the subjects of the Commonwealth had been safe in the hands of a Judge for many years, through misfortune or possibly through not being allowed to do things in connexion with business which other persons could do, disaster came upon him and he was reduced to penury. Therefore, while as a rule I oppose pensions in the Commonwealth service as strongly as other members do, in the present case, entirely in the interests of justice, I cannot see mY way to abolish the system.
– I hope that no honorable member will oppose this clause from a misunderstanding of the position. The clause contains a proposal which appears to the Government to be a proper one j but, of course, those who vote in favour of retaining it are not bound to accept the particular rates set forth. I thought that some of the suggestions of the honorable member who has just resumed his seat had a good deal to be said for them, and I am quite prepared to give consideration to such suggestions. If there are some honorable members who oppose the giving of any pensions whatever, of any kind, or of any amount no matter how small, we must, of course, have a division on the clause.
– Could we not have it on the first line 1
– We. could ; but I understood that practically the whole of the Committee were agreed upon some provision to meet possible contingencies that might arise. If that view be accepted, and it becomes a question of the amount and the time of the pension, I should be very glad to consider suggestions. Nothing definite has been, proposed as yet. I desire also to remark that in drawing the Bill I took the words “ permanent infirmity “ as probably covering the whole ground intended to be covered by the Constitution.
But it has been suggested to me that it is safer to use the precise words of the Constitution. Those words are “ proved misbehaviour or incapacity.” Proved misbehaviour would be dealt with in another way; and I should propose to make the clause read “ permanent incapacity “ instead of “ permanent infirmity.”
– Ought we not to have both words?
-We might have both, but it is decidedly desirable to include the words used in the Constitution. I therefore move -
That after the word “infirmity” the words “or by incapacity” be inserted.
– What is meant by “permanent incapacity?”
– Well, a Judge might become incapacitated for a day.
– I think it would be much better to use the words employed by the Constitution. The suggestion of the honorable and learned memfor South Australia, Mr. Glynn, is a very sound one in view of the language used in sub-section (2) of section 72.
Mr. BATCHELOR (South Australia).I am not quite clear as to what this subclause refers to.
– It covers the language of the Constitution, sub-section (2), section 72 - removal on the ground of “proved misbehaviour or incapacity.” We had the word “infirmity” in the clause originally, and we proposed to add “incapacity.”
– Would the subclause cover the giving of a pension on retirement on account of misbehaviour?
– No; a Judge would lose his pension in case of misbehaviour.
Amendment agreed to.
Mr. THOMSON (North Sydney). - I move -
That paragraph (a) be omitted.
I move this amendment with the view of proposing subsequently that after a service of five years, a retiring Judge shall be entitled to a pension of two-tenths of the salary, after a service of ten years to three-tenths, and after service of fifteen years to fivetenths.
– I shall not oppose that amendment.
Mr. HUME COOK (Bourke).- Some of us desire to test the question whether there shall be pensions or not.
– That can be done by voting on the whole clause.
– Would it not be better to test the point by cutting out the words “upon a pension”?
Mr. MAUGER (Melbourne Ports).With due respect to the Attorney-General I prefer to test the question before the subclause is altered. We ought to have a clear and distinct understanding. If the clause is whittled down an amendment against pensions is likely to be defeated.
Amendment, by leave, withdrawn.
Mr. MAUGER (Melbourne Ports). - In order to test the question, I move -
That the words “upon a pension “ be omitted.
Mr. WILKS (Dalley). - The temper of the Committee has undergone a considerable change within the last few minutes, and the Government are now prepared to compromise. The difference between those who do not believe in the payment of pensions and those who support the clause as it stands has been greatly altered. The amendment moved by the honorable member for North Sydney was put forward, because he considered that a money payment would prevent temptation. The honorable member argued that the lives and liberties of the public, which are in the hands of our Judges, would be better cared for if pensions were granted.
– I did not say that.
– That was the purport of. the honorable member’s remarks. The argument put forward in regard to the question of salaries applies with equal force to the payment of pensions. The Prime Minister of the Commonwealth, for example, does not receive a pension, nor does any honorable member of the House receive one ; but the lives and the liberties of the public are in our hands while we are here. The difference between the work of legislation and of administration is very slight. I contend, however, that neither salaries nor pensions can be said to be a material factor . in protecting the affairs of the country. The poorest man that Australia ever had in public life was the late Sir Henry Parkes, and yet he was the most determined in looking after the interests of the people. He was a man who retired upon the slightest insult being offered to his Government.
– He went out once too often.
Mr.WILKS. - The honorable member is scoffing at the memory of the greatest public man who ever lived in Australia, and who, by the way, rose from the ranks of the workers.
– That is a question.
– Members of Parliament are not prohibited from earning their living by following other occupations.
– That may be so: but let us look for a moment at the position of officers in banking institutions. The honorable member for New England said that the managers of our banks receive very large salaries. We must not forget, however, that they have to provide for their own pensions out of their salaries.
– Not at all.
– In the Bank of New South Wales and the Commercial Banking Corporation a deduction is made from the salary of every officer - from the general manager to the officer occupying the most subordinate position - to provide for his pension.
– But the management contribute to the fund.
– It is proposed that a certain pension shall be paid to a Judge who becomes incapacited by permanent infirmity, not less than five years after accepting office. But if a Judge suffers from some physical infirmity after two years service, should he not be entitled to equal consideration on the part of the public as is the man who after five years service becomes incapable of remaining on the Bench ? I see no wisdom in saying that the pension shall start after five years service. If it is right that pensions should be granted, let them start from the time that they are actually required. I can understand the Government proposal. They provide that if a man becomes paralyzed, or suffers some other infirmity during the first year of office, he shall at once be entitled to a pension. But under the amendment which has been temporarily withdrawn, a Judge would be entitled to no such pension if he became incapacitated within five years of his appointment to the Bench. For these reasons, I hope that the honorable member for Melbourne Ports will adhere to his amendment.
Mr. BATCHELOR (South Australia).I have not spoken during the debate on this Bill, but there are one or two phases relating to the payment of pensions to which I desire to make brief reference. When we were dealing with the Public Service Bill, we discussed at length the position of the civil service, but throughout that debate no suggestion was made that we should give a pension to any class of our public servants. Notwithstanding what has been said during the discussion on this clause, I fail to see why any distinction should be made in the case of Judges of the High Court. As a matter of fact, when the Public Service Bill was before us, some honorable members went so far as to oppose a proposal that adults - married men - who had been in the service of the transferred departments for some years, should receive a bare living wage. They were opposed to the payment of a minimum wage, apart altogether from any question of making a retiring allowance to a civil servant suffering from physical infirmity. It would be a great mistake for Parliament to draw this distinction between one class of civil servants and another. I have every respect for the Judges of the States, and I am just as anxious that we should obtain the very best men available for the position of Judges of the High Court as is any honorable member ; but I do not consider it necessary for us to hold out an incentive of this kind. If we offer adequate salaries our Judges, like other persons occupying prominent positions outside the service, will be in a position to purchase life annuities. We compel our public servants to insure their lives, and if in the case of our Judges some provision must be made for old age or physical infirmity, let us make it compulsory for them to purchase life annuities. Such a provision, however, need not necessarily be inserted in the Bill. I intend to protest as strongly as I can against the proposal that special treatment shall be meted out to one particular class of public servants.
Mr. CONROY (Werriwa). - I would remind the honorable member for South Australia, who has just spoken, that there is a great difference between a Judge and the other officers of the public service to whom he has referred, inasmuch as an ordinary member of the service can be dismissed straightway while a Judge cannot.
– That does not count against my argument.
– Sometimes a Judge may become slightly deaf or suffer from some other infirmity which it is extremely difficult to prove, although it is injurious to his capacity on the Judicial Bench. In such a case it might be possible to induce him to retire by the offer of a fairly large pension. If a man incapacitated in this way continues on the Bench, the cost to the community is infinitely more than would be the payment of a pension. That is one reason why we should grant pensions to our Judges. It is far better that a Judge suffering from deafness, or some other infirmity, should be able to retire voluntarily than that a Bill should be introduced setting one of the very worst precedents for the removal of a member of the Bench. In how many cases has this ever been required ? When one listens to the objections raised against the proposal, one would think that we were dealing with vast sums of money, yet I find that under paragraph (a), the amount involved would be £600, under paragraph (b) £900, under paragraph (d) £1,500, and paragraph (e) £2,100, assuming that the proposals of the Government are carried into effect. If a Judge should develope some infirmity, it would surely be better to hold out some inducement to him to retire. I trust that the Government will be able to carry out their proposals in their entirety, or that they will at least be able to carry them with the modification which has been suggested.
– I am rather astonished to find that there is any apologist for the perpetuation of a system which in the past has been condemned throughout the length and breadth of Australia. I am also surprised to find some honorable members who are opposed to pensions for certain branches of the public service advocating that they should be granted to the very highest paid officials of the State. I fail to see any consistency in that. I agree with the honorable and learned member for Werriwa that we are making precedents, and the Committee should establish a precedent in this case which the States could well follow. We can also set a precedent in the matter of salaries, because these, in my opinion, are fixed too high in the Bill, and I shall have something to say upon that when we reach the clause dealing with them. It is our bounden duty to remove altogether from the Federal public service any hope that its members, and especially those receiving high salaries, will have pensions paid to them when they leave the service, though in some of the States the pensions paid nearly equal in amount the salaries which the officers have been receiving when in full service.
It is the duty of those who are in receipt of regular and sufficient payment from the State to make provision for the time when they will not be receiving salary. We can set an example, which some of the States very much require to follow, by wiping out altogether from our annual charges the pension list which, in the past and at present, is in the States proving a terrible, burden upon the taxpayers of Australia.
Mr. BRUCE SMITH (Parkes).- I should like the Committee to consider whether the position in which we find ourselves now is a fair one. The honorable member for Melbourne Ports is endeavouring to have a division taken upon this clause, without first trying whether it cannot be made acceptable to a majority of the Committee in the way suggested by the honorable member for North Sydney. The speeches made so far suggest that there is a very large number of honorable members who are disposed to accept this clause with some modifications, but the honorable member for Melbourne Ports has candidly said that he desires to take a division upon the clause as a whole, because he fears that, if the Committee has an opportunity of modifying it, it may be made acceptable, and he will lose his opportunity of strangling the proposal. The honorable member’s suggestion is the same as if, upon the second reading of a measure, it were assumed that it would be unalterable, and that we should, therefore, take a division upon it in the condition in which .it is first submitted to the House, and without the understanding that, in passing the second reading, we have an opportunity of making the measure acceptable in Committee. Why should we not modify this clause if there is some chance that it may be made acceptable to the Committee ? It will be open to honorable members subsequently to express an opinion upon the whole clause after it has been modified.
– We do not go into Committee upon the Bill before we pass the second reading. We take the principle first, and then deal with the modifications.
– The honorable member for Melbourne Ports is trying now to put the cart before the horse. He is endeavoring to take a final division upon a clause with the expectation and the knowledge that we shall not have an opportunity of making it acceptable to the Committee. We can safely agree to the second reading of a Bill, as we have done in the case of the very Bill now under consideration, on the understanding that we can amend any part of it in Committee.
– Suppose the second reading is lost.
– If the second reading is lost there is no chance of amending the measure afterwards, but honorable members frequently vote for the second reading of a Bill with the full knowledge that they would not accept it finally in the condition in which it is submitted. If the suggestion of the honorable member for Melbourne Forts is agreed to, the whole clause will be negatived, although I have formed the opinion from the speeches which I have heard that many members of the Committee at the present time are willing to accept the principle if the conditions arc modified in the way suggested by the honorable member for North Sydney. If there is not a majority willing to have the clause in a modified form we shall find that out very shortly, but if there is, by adopting the course proposed by the honorable member for Melbourne Forts, we shall be presenting a majority in the Committee accepting the principle in a modified form, merely because the honorable member has chosen to take the clause by the scruff of the neck, in order to kill it at the first stage of discussion. I submit that unless honorable members desire to do that in the face of the majority, an opportunity should be given to fashion the clause so as to make it acceptable.
– As I was one of the first to ring the pension note, I think I have a right to say a word on this question. As a matter of fact, I should like very much to see all Government pensions abolished with the exception of pensions to soldiers who have been crippled in battle. But I quite recognise that there is absolutely no hope of inducing the Committee to accept that policy in a case like this. From the remarks made by the honorable members for Bland and North Sydney, and the sympathy generally expressed by the Committee, I can see clearly that there would be no use in attempting to do away with these pensions. Wecould not expect capablegentlemen of the learning, attainments, and experience necessary to occupy such a position as that of Judge of the High Court without some such provision as this. I am strongly in sympathy with the views expressed by the honorable member for North Sydney, and I have thought it well to explain my position in this respect.
-I understand that if the principle of paying pensions be established, honorable members will be afforded an opportunity of voting on the amendment suggested by the honorable member for North Sydney, or some proposal in a similar direction.
– Hear, hear.
Question - That the words proposed to be omitted stand part of the clause - put. The Committee divided.
Majority … … 9
Question so resolved in the negative.
Amendment agreed to.
House adjourned at10.57 p.m.
Cite as: Australia, House of Representatives, Debates, 23 June 1903, viewed 22 October 2017, <http://historichansard.net/hofreps/1903/19030623_reps_1_13/>.