1st Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
– I wish to ask the Vice-President of the Executive Council, without notice, what arrangements have heen made with the States Governments in respect to the effective administration of the Immigration Restriction Act?
– I am not in a position to give the details of the arrangements, but if the honorable senator will give notice of his question, I shall have an answer for him on Wednesday.
– Before the business of the day is entered upon I wish to make a statement. On the 9th July last, at the instance of Senator Macfarlane, the Senate ordered the production of a return -
Of all moneys deemed to be duo to Tasmania under section 92 of the Constitution Act, and the Customs Act collected since the establishment of the Commonwealth, and unpaid or not credited on the 30th April last.
I have received an intimation from the Customs Department that it is impossible to furnish the return, because Inter-State certificates for goods imported prior to8th October, 1901, do not show which were imported after 1st January, 1901. I take this early opportunity of mentioning the fact, so that the Senate will know why the return has not been laid on the table.
Debate resumed from 30th July (vide page 2856), on motion by Senator O’Connor -
That the Bill be now read a second time.
– I do not intend to occupy the time of the Senate for more than a few minutes. I rise mainly to enter my protest against what I consider an unwarranted proposal to spend public money. I shall emphasize that protest later on by voting against any expenditure for a High Court under this Bill.
– Even at the rate of three farthings a head.
– Like most of the honorable senator’s calculations, that one is inaccurate. The more I hear from the advocates of the Bill the more convinced I am that a High Court is not required. I hear a succession of special pleadings, very clever, and plausible, but to me very unconvincing. I listened with a good deal of interest to Senator Keating, whom I regard as a rising and brilliant man. He quoted Professor Harrison Moore, and immediately he had read the quotation, that gentleman fell 50 per cent. in my estimation - not that it will injure him in the slightest degree, but because—
– Because he did not agree with Senator Styles.
– No; because he wrote what was not correct in my opinion - that the Judges of the Supreme Court of Victoria are not as broadminded as they would have been if they had been politicians. How could he form an opinion on that point? Has he ever been a politician? And, if not, why should he make such a reflection upon any Occupant of our Bench? No doubt he is well acquainted with the theory of law, but I am not aware that he ever had an extensive practice as a lawyer. It is all right for a man at the University, with an assured income, to sit down in his study arid criticise the work of another man with which he has no practical acquaintance. When I heard his view that the Judges of the Supreme Court of Victoria have lacked political experience, and therefore have been rather narrow-minded, I decided in future to accept anything coming from that source with a- good deal of hesitation. Hitherto, I have regarded Professor Harrison Moore as a gentleman who thoroughly understood his profession, and whose word had great weight with me, but in future it will have very little weight with me. In his opinion, we have all along appointed the wrong men to the Bench of the Supreme Court ; we should not have appointed those Judges if it be true that they have not been politicians. It turns out, however, that the professor did not understand what he was writing about, for at least one half of the Judges from the outset had held prominent positions - in some cases leading positions - in the politics of their time.
– And the most distinguished of the Judges, too.
– Yes. To say that those men were narrow-minded, because they had not had parliamentary experience, is something new to me at all events. As a layman, I cannot conceive that a few years’ experience in a State -Parliament would’ be of very great benefit to a Judge in administering the law. Surely we have some very high-class lawyers who have never seen the inside of a Parliament House, and perhaps it is all the better that they have not. Senator Walker has said that the cost of the High Court per head will be only three farthings.
– An expenditure of £20,000 a year is less than three farthings per head.
– It is more than a penny per head, because 4,000,000 pence come to over £16,000. Three farthings per head will not amount to £20,000. I shall not argue about a trifle like that. It does not matter whether the cost is three farthings or £3 per head. If the High Court is not required it should not be created ; but if it is required, let us spend the necessary money.
– Is that the sound of Kyabram that I hear ?
– No ; but I hope it is a little common sense, which I know is a stranger to the honorable senator. I am not done with the labour corner. I intend to put the labour corner into the same fit as Senator Zeal did, but do not desire to get into a fit myself. I like Senator Walker’s ideas of pensions. He referred with great self-complacency to an amendment which he proposes to move.
– I am afraid that I shall not be able to carry the amendment if the honorable senator will not assist me.
– I should think that no man would assist the honorable senator to carry an amendment which would give a pension of £450 to a man who had held office for only one day. If a man were sworn in one day, and met with an accident next day which would prevent him from taking his seat on the bench, he would be entitled to a pension of £450 a year for life. I do not think we are in a condition to be quite so generous as that.
– It is not likely that a man would die the very next day.
-No one can tell what to-morrow may bring forth. My honorable friend also advocates high salaries for the Judges - why? - because a seat on the Federal Bench is a very much higher position than a seat on a State Bench. I wonder why he does not practise what he preaches? The Clerk of the Victorian Parliament receives a salary of £1,200, but the Clerk of the great Federal Parliament receives a salary of £900.
– Yet the honorable senator complains about the extravagance.
– No. I do not know that there has been a great deal of extravagance so far; but the honorable senator wishes to be extravagant. The Secretary of the Department for Home Affairs in this great Commonwealth receives a salary of £750, but the Secretary of the Melbourne and Metropolitan Board of Works and Water Supply - a glorified municipal counci - is paid £1,000 a year. A Federal J udge, however, is to receive more than a State Judge.
– As much, at all events.
– A Federal Judge is to receive £400 a year more than a Judge of the Supreme Court of the principal State in Australia.
– I beg the honorable senator’s pardon.
– In New South Wales a puisne Judge is paid £2,600 a year.
– But he is entitled to a pension of £2,000 a year.
– In Victoria puisne Judges receive £3,000 a year, and in my opinion they get too much.
– More Victorian extravagance.
– It was. The salaries were fixed at a time when our position was much better than it is now.
– They ought to be reduced.
– The salary of a Judge cannot be reduced during his term of office. If I were in the State Parliament I should advocate a reduction of the salary for any future Judge, and we could get plenty of men for £2,000 a year. We hear a great deal about what eminent counsel earn. I wonder how many eminent counsel in Australia earn £2,000 a year. They could be counted on the fingers of one hand, I believe.
– Oh dear.
– Oh yes. We hear a lot about the enormous incomes which eminent counsel earn, but, like the Scotchman, I have had my do’ots about it all along. A good many persons, including myself, think that the Chief Justices of the States could be clothed with the necessary authority to form the High Court for some years. One objection to that proposal was voiced by Senator Pearce, the level-headed young man from Western Australia, as he was described by Senator Zeal, and it was that their travelling expenses would be very heavy. He quite overlooked the fact that the Bill provides for travelling expenses for the Judges of the High Court ; it is an unknown part of the outlay. A far more serious charge, however, was made against the States J Judges when it was said that they would be biased. I do not believe that there is the slightest foundation for the suggestion that the States Judges would be biased in any dispute between the Commonwealth and a State. Suppose that adispute arose between South Australia and the Commonwealth ; if it were thought necessary, although I do not think so, the Chief Justice of that State would not preside in the High Court in such a case. In any.dispute between Victoria and South Australia, the Chief Justice of neither of those States need preside. There would still be four other Chief Justices.. In any dispute that , might arise there will always be the Chief Justices of at least three States which are not interested. But, even if that were not the case, I should be perfectly satisfied to intrust my interests to the Chief Justices of any of the States. I never heard of any of them being biased. Is it to be supposed that they would be biased in favour of their own States as- against the Commonwealth because the States paid them their salaries 1 If that be so the same argument would apply1 to the Federal Judges, who would be biased in favour of the Commonwealth, .which was their paymaster. If there is any truth in the argument at all, why would not the Federal High Court Judges be biased in favour of the Commonwealth in a dispute between States and Commonwealth ? But the argument will not hold water. I have not yet heard where the Federal High Court is going to sit. Will it have a court-house with all its paraphernalia in each one of the capitals, or is it to be located in the capital city of the Commonwealth ? If so, would it not be as well to postpone the appointment of the court until the Federal capital is selected, and a building is erected to receive the Judges ? At present I do not know whether it will be necessary for the Commonwealth to erect court-houses in every State, or in one particular State. Senator Pearce made a point to the- effect that the people of Australia accepted the High Court in agreeing to the Constitution Bill. Of course they did. They had to accept the whole Bill or reject it. If every elector in Australia had been opposed to the High Court, the Commonwealth Bill would still have gone through, because, after all, the High Court is only a small matter compared with the great interests involved.
So that that argument carries no weight with me.
– That is a very weak apology after the enthusiastic manner in which the honorable senator boomed the Commonwealth Bill.
– I voted against the first Bill. Senator De Largie seems to be always wrong in his inferences as to what I have done. Senator Pearce also made reference to the Brunswick meeting, where the High Court was supported. It looks as though a part of the people of this State were in favour of the proposed expenditure upon the High Court. But, for a moment, Senator Pearce overlooked the fact that Mr. Hume Cook, the member of the House of Representatives for the electorate in which Brunswick is situated, had already pledged himself to the High Court, and that the meeting was held in Mr. Hume Cook’s stronghold, near to where he lives. As a matter of course, his friends supported him in that, as they do in nearly .every other subject, because he is a very brilliant and popular young fellow. I can very well understand that senators, in addressing meetings on this question, would be looked upon as being after all simply members of an Upper House.
– The Victorian senators represent Brunswick just as much as Mr. Hume Cook does.
– I am astonished at the -level-headed senator from Western Australia making a statement like that. Mr. Hume Cook especially represents that particular part of the State, whereas senators, like Senator Barrett, Senator Zeal, and myself, represent the whole State.
– As a matter of fact, the meeting was evenly divided.
– Yes. Another point which Senator Pearce made showed that he is very anxious about the’ Inter-State Railway, and believes that the High Court will have some influence in regard to its construction. I will not call it a transcontinental railway, because it is only a line between two States - connecting Port Augusta with Kalgoorlie. I do not see how the High Court can act if South Australia declines to sanction the construction of the line. The High Court cannot override the Constitution.
– Is the honorable senator depending on South Australia to block the line ?
– I am not ; but I shall do all I can to block it “ on my own,” quite irrespective of any one else.
– Because there are so many railways which have had to be shut up in Victoria.
– No ; but because the experience I have gained in Victoria leads me to believe that the railway will be little better than an expensive white elephant.
-We can hear the crack of the Age whip.
– I have heard a great many remarks on that subject. I should like to see what the newspapers in Western Australia say about the honorable senator. I shall have to make it my business to look them up to see whether ihe does not get “ cracked “ occasionally. I fancy that he does. He takes his “gruel “ like a child, and does not complain. He dimply swallows the large doses administered to him.
-r- He is not afraid.
– I do not obey the crack.
Senates STYLES. - It comes with a very t>ad grace from any senator to charge another with obeying the crack of any whip. Surely we are here to do what we think right. The remark is uncalled for.
– The Victorians are so unanimous.
– I should think we were in a case of this kind. No sensible men could be otherwise. I could not help noticing some of the arguments used by Senator Keating yesterday. I paid special attention to his speech, because he is a lawyer, and has erudition. I understood him to say that there were nine Federal Supreme Court Judges in America, And that it was contemplated to appoint twelve more. Accepting the fact that there are nine Federal Supreme Court Judges in the United States, if we had the same proportion to population, we should have half a Judge. The United States has twenty times the population that Australia has. Senator Keating tells us that there are also 120 other Judges. In course of time there will be 1 20 other J Judges here if we keep on as we are going.
– There are 120 purely Federal Judges apart altogether from the State Judges.
– There is nothing to prevent this Federation appointing a number of other Judges in addition to the three Judges of the High Court.
– They started with seven Supreme Court Judges in America.
– I should like to have the attention of the labour party - who are supporting this piece of extravagance- for two or three minutes.
– The honorable senator does not know yet.
– There is the pelican in the wilderness again ! Last session the labour party were unanimous in opposing a loan of £500,000 which the Government proposed to raise for the purpose of carrying out works in connexion with the Post and Telegraph services of the States that would, at all events, have yielded in return some amount of money.
– We did not need a loan, as we had a surplus of £800,000.
– I assisted the labour party to oppose that loan. They were quite right in opposing it. But if the loan money had been raised, it must have been spent for the purposes specified in the Bill, and the result would have been to find employment for 1,000 men for two or three years. The labour party objected to a loan which would have been the means of affording employment to so many men for so long a time.
– So did the honorable senator.
– Yes ; we are all in the same boat. But the parting of the ways has come since then. I now object to this expenditure on the High Court, but the majority of the labour party - not the whole of them - intend to support the spending of £35,000 a year upon- it. The interest on a loan of £500,000 at 3£ per cent, would have been £17,500 a year. The expenditure on the High Court, which will not be less than £35,000 a year, capitalized at 3A per cent., means a million of money. The labour party do not mind spending on the High Court, which is non productive, and will not employ labour, the interest on a million of money per annum, but they objected to speed the interest on half -a-million on works which would have involved four-fifths of the expenditure going into the pockets of the workers of Australia. There is no reply to that point. Honorable senators know that it is perfectly true. The money under this Bill is to be expended, not amongst the workers of
Australia, but amongst high-class officials and their attendants.
– I thought the honorable senator was a member of the labour party.
– I am a great deal better. I am pointing out how inconsistent are some members of the labour party. I admit that this a subject about which a layman cannot pretend to know very much. I do not profess to be able to judge very well as to the legal merits of the question, nor do I value my own opinion very highly.
– Then the honorable senator cannot expect us to do so.
– I do not want the honorable senator to do so. But when I turn, to the division list of another place, and consider the lawyers who were opposed to the Bill, I feel bound to take up the same position. A number of eminent barristers voted on the one side or the other on the motion for the second reading of the Bill. In favour of it were Mr. L. E. Groom and Mr. I. A. Isaacs. But let honorable senators listen to the names of the eminent lawyers who were opposed to it. And here let me say that this disposes of the idea which is sometimes expressed that the lawyers want this court to be established in order to create work for their profession. I do not think that the lawyers are very much worse than other classes of people, nor do I know that they are very much better. There is a good deal of human nature in all of us. But the division list effectively disposes of the story that the lawyers want the High Court because it will find additional employment for their brethren. There were against the measure Sir John Quick, and Messrs. Glynn, Higgins, McCay, Hughes, and Conroy. When I hear these interjections about Victoria, I am led to believe that Victoria is like a’ red rag to some honorable senators from the Never-Never country. I remind them that Mr. Glynn is not a Victorian, nor are Messrs Hughes and Conroy.
– Does the honorable senator expect Mr. Conroy to assist any Government measure 1
– I do not know why he should not assist them in a matter of this kind. We have been told over and over again that it is not a party question.
– Did the honorable senator mention his friend, Mr. Reid 1
– I have taken the division list on the second reading as I found it. I desired to have some enlightenment, and I looked to see how the lawyers in another place voted on this measure.
– The honorable senator did not mention the lawyers in the Government. Are thev not in favour of it?
– So far as we know they are. If a majority of the Cabinet wasin favour of the measure, the others would probably be loyal, Or would retire. We had a* case in point only last week. 1 have said all I desire to say on this measure. I am quite sure that nothing that I or any other honorable senator could say would alter a single vote, for the numbers are already up.
Senator DE LARGIE (Western Australia). I should like to say a few words in reply to Senator Styles. Like thathonorable senator, at one period I thought that it might be possible to postpone the establishment of the High Court until next session. In speaking upon the Address in Reply, I expressed the opinion that so many matters of importance required attention that there would probably not be time to pass this, measure during this session. The opposition which has been expressed to the measure by the Melbourne press and’ the Kyabram movement generally, and the turn-about-face they have exhibited in connexion with the Naval Agreement, have gone a long way to induce nae to alter my opinion. If they showed any consistency in their professed desire for economy with common sense, I should be prepared to assist them ; but, when I find that they are willing to make ‘ a row over the expenditure of £20,000 upon the establishment of a High Court, while at the same time they are prepared to support the Naval Agreement, involving an expenditure of £200,000 a year, I can have no faith in the sincerity of their professions.
– The Age does not support the Naval Agreement.
– The Aye does not support it for the time being, but the other Melbourne newspaper does, and the Kyabram movement generally is in favour of that expenditure. The shallowness of this kind of economy is too apparent to deceive any one. When I find: politics reduced to the advocacy of such miserable economy as that, I am prepared to support an expenditure of £20,000 upon the High Court, and to oppose the larger expenditure of £200,000 upon the proposed Naval Agreement.
– They have asked for no reductions in the military expenditure.
– No; they are quite willing, apparently, that money should be expended upon matters which most people believe can be very well done without. They are prepared in some instances to throw money into the sea, and to refuse expenditure upon useful works. When the Commonwealth Bill was before the electors, there were very few who gave any attention to the Federal Constitution who did not thoroughly understand that the High Court was part and parcel of the proposed Federation, and at the Federal elections it was clearly pointed out that it was necessary to establish a High Court. Senator Styles has made some comparisons with the other House, but in trying to make out a case that the lawyers in that House were not in favour of this measure, the honorable senator told us that only Messrs. Groom and Isaacs supported the Bill.
– Outside the Government.
– What about the members of the Ministry and prominent men on the Opposition side ? The honorable senator’s manipulation of names was not fair argument. When he knew that Messrs. Reid, Bruce Smith, and Fuller, as well as the legal members of the Ministry, supported the Bill, he might well have mentioned their names when making his comparison. As I have already said, the manner in which the Victorian press is trying to bully politicians in this State has had a great effect in inducing me to alter my opinion. Rather than be bullied and led by the nose, as some politicians in Victoria have been, I would prefer to do without a seat in this or in any other Chamber. If politicians, particularly in Victoria, do not show a little more backbone there will be more disgrace than credit attaching to the position. For that, more than for any other reason, I am prepared to vote for this measure.
– That is a very poor reason.
– It would be a very creditable reason if Senator Styles were influenced by it, instead of obeying the crack of the whip every time it is heard.
– I was opposed to the measure before ever the whip was cracked.
– That may be so, but we have had altogether too much of press dictation, and if Federal members do not show a little more independence we shall probably be informed by the press shortly that we can do without not only a High Court, but a Federal Parliament. If this sort of thing continues, I expect before long to see that suggestion made. It will probably be proposed that we shall do without the Federal Parliament by handing over our work to the Kyabram Parliament located for the time being in the Exhibition Building.
-Or by giving the States Parliaments Federal jurisdiction.
– Or by giving the States Parliaments power to legislate in Federal affairs. There would be just as much reason in that proposal as there is in the proposal to hand over the work of the High Court to States Judges. It would be only carrying the absurdity a little’ further, but the proposal would be quite as logical. The necessity for the establishment of a High Court has already been shown by honorable senators who have given more attention to the subject, and I need not therefore dwell upon that point. I shall certainly do what I can to resist the dictation which the Melbourne newspapers address morning after morning to Federal representatives of Victoria and of the other States, as to how they shall vote on Federal matters. There are many great Federal undertakings which have noc received the attention to which their importance entitles them. The establishment of the Federal capital is not a matter which concerns my State one way or the other, but we know that at the present time every attempt is being made to throw cold water upon the demand for the settlement of that question. The transcontinental railway is being treated in a similar manner, and yet these are matters of the greatest importance to the country.
– I threw cold water upon them before the press did.
– Does the honorable senator think that argument relevant to the Bill?
– I think I may be allowed to refer to these matters as involving expense, because the principal argument used against this measure is that it involves the expenditure of money. I take it that much of the opposition shown to the Bill is owing to that fact. Most honorable senators agree as to the necessity for the establishment of some kind of Federal Court, and the question’ has been narrowed down to one of expense. And in connexion with that aspect of the matter, I point out that the proposal to depute States Courts to do the work of the Federal High Court will also involve expense. We have had a case in point- already in our experience of the Works Department. At the present time we are paying a great deal more for our Works Department than we should be paying, simply because the work is being done by officers of the States Departments.
– I did not know that.
– I know that the work is now costing a great deal more than it cost when the States Departments did the work for1 their own Parliaments. The cost of this Department is increased because we have no direct control of those who are doing the work. I know that it is impossible for us to have a Works Department in every State to carry on the small public works we have had to deal with so far ; but there is no getting away from the fact that public works are costing the Federal Government more than they have cost the States Governments, because we have no direct control of the officers doing the work. The same thing will happen if we try the experiment of getting States Courts to do the work of a Federal High Court. We shall find that it will cost a great deal more.
– We should not have control over the States Judges - that is the idea all through.
– I believe we should have the same control over States Judges as we should have over the Judges of the High Court.
– -Not according to the arguments I have heard here.
– According to the arguments I have heard, the expenditure under one system would be, at least, as great as under the other, and there would, therefore, be no economy. I intend to vote for this measure. Alt those who supported the Federal movement at the. last Federal elections understood perfectly well that the High Court was part and parcel of the Constitution, and that the Federal machinery would never be complete until it wass established.
– After the very exhaustive speeches to which we have listened upon this question, I do’ not intend to take up the time of the Senate at any great length. I may say, to begin with, that I shall vote for the second reading of the Bill. I confess, however, that I shall do so with very great reluctance, for several reasons, which I will give very shortly. The first reason is that this Bill has come up to us with an appropriation. That fact, in a very great measure, ties our hands. It limits us rigidly to what the House of Representatives has done. I do not think that is treating the Senate in a proper fashion. We ought to have a> free hand in machinery Bills of this character to lay down whatever lines we please - to increase the number of Judges, if wethink that a proper course, and in other ways amend the measure. “Unfortunately, as I have said, the Bill contains an appropriation, and in that way ties our hands. Another reason why I object to the Bill is that it comes here shorn of a great deal of its usefulness - mutilated and emasculated.. The measure, as introduced in another place, was one which, I believe, the great majority of the people of Australia wereprepared to support. I know that in Queensland the idea was that Federation necessarily involved the institution of a High Court to which the people of the entire Commonwealth could appeal in the ultimate that, in short, the court would be the crowning glory of our judicial system. But the measure, if passed as submitted to this1 Chamber, will create a court contemptible in its “ looped and windowed raggedness.”’ It is true that in some matters the HighCourt will have original jurisdiction, but I believe that the people of Australia desire that original jurisdiction shall be exercised in every particular - that a litigant may be able to obtain the best and highest legal opinion within the confines of the Commonwealth, and not have to drag his casethrough the various inferior courts. The large majority of the people are, I believe, anxious that there shall be a final Court of Appeal in the Commonwealth - that whileour laws are made in Australia by the people of Australia they should be interpreted by Judges appointed by the Australian Government, and paid by the Australian people.
– The commercial community from one end of the Continent to the other, think exactly the opposite.
– It is utterly useless, so far as I am concerned, for Senator Dobson to make that interjection. It would have been very much better for Australia, and for other countries with which I have some acquaintance, if they had been governed less by the methods of the shop and more on the lines of statesmanship. There is a great deal of difference between running a business and running a country. There are people who have been trained up with the huckster’s mind. I am not making any reflection on commercial men, who are absolutely necessary under our present conditions ; but their minds are confined to the narrow groove of the market place. They are utterly out of their sphere in the wider arena of statesmanship, where the. affairs of the community and the welfare and social conditions of the people sire at stake. The fact that the commercial men of Australia believe in appeal to the Privy Council would be quite sufficient to convince me, if there was not a single other good reason for objecting to such an appeal. The Federal High Court ought to have original jurisdiction all round, and there ought. to be five Judges. Some of our Victorian friends are railing against the extravagance of the Commonwealth ; but how many Judges are there for the State of Victoria 1 It would appear that the Federal Parliament is called upon to attire our High Court, sp to speak, in rags, and house it in a stable, so that the States may indulge in all sorts of extravagance. No doubt the States ‘ have been extravagant, spending money without stint; and, to save a particular section of the community from further taxation, we are asked to emasculate the Federal High Court and make it of no earthly use - to place it in the position, so to speak, of a poor relation -seated “below the salt” and beneath the contempt of all the States Supreme Courts. That is not a position which will redound -to either the credit or the profit of Australia. I am not surprised at the action of my Victorian friends, because there is a power in that State which apparently controls everything. But this power is blind of one eye, gouty in both feet - I refer to the movement called Kyabram - and it is astonishing that when this impotent : power waves its crutch in the air, and threatens Victorian members of the Federal Parliament, they come to heel like collie dogs at the shepherd’s whistle.
– Especially in Victoria.
– That is what I am saying. Why do these people yell out for economy ? It is that they may save their own wretched skins from further taxation. But do they think the people of the other portions of the Commonwealth will be content to have their judicial system mutilated merely to save a section from contributing their fair share towards the cost of government 1 I misinterpret the feeling of my constituents very much if I come to the conclusion that they are in favour of a Supreme Court of the character which these advocates of economy desire. The public want a Supreme Court which will be accessible to all citizens, and will be ‘ an honour to the Commonwealth. I suppose that the Judges of this ‘ Supreme Court would be required to go on circuit; but how are three men to spread themselves over the whole continent’?
– If- there are only three cases a year they will be able to do so.
– In my opinion there will be far more than three cases a year. If the court were given the original jurisdiction it ought to have - there, would be sufficient business to employ not only five Judges, but, perhaps, one or two’ more.
– But the Judges are not supposed to go on circuit - that is the purport of the Bill.
– The original intention was that the Judges of the High Court should go on circuit.
– The three Judges are simply to do the work which the Bill gives them.
– In my opinion the Bill is insufficient for the purpose in view ; and I vote for the second reading merely because I hope that in time an extension of the powers of the court may be granted.
– Of course that will be done whenever it is necessary.
– Senator Dobson admits that we must have a Supreme Court some day, but contends that the time is not opportune. But when will the time be opportune ? The Constitution provides that we shall have a High Court, though no time is mentioned for its creation. I suppose, however, that the “people of Australia came to the conclusion that Parliament would institute a High Court at the very earliest possible moment. , Senator Styles. - Or when it was required.
– A High Court is provided for by the Constitution ; it is not for us to say when it is required. The Government have been taunted with not bringing forward this measure earlier, but I think there is a very complete answer to that objection. The Government first brought forward what they believed to be the most necessary legislation. There was a time , limit specified in the Constitution with regard to the Tariff, while the “ white “ Australia question pressed for solution, and the franchise had to be fixed. All the preliminary business of founding the Commonwealth had to be done at the very earliest opportunity, and when it had been cleared out of the way the Government introduced this further measure to carry out the bargain which had been entered -into by the various States. Not a single honorable senator has expressed the opinion that we should never have a Federal High Court, but have only argued that for economical reasons its creation ought to be delayed. My contention is that in matters of this kind delays are dangerous. We know how the legal mind runs in grooves - how lawyers are governed by precedent more than by anything else. It is only proper that in the early days of the Commonwealth our precedents should be laid down, not by State authorities, but by Commonwealth authorities who are in touch with Australian sentiment. We know perfectly well that there isa feeling of irritation between the States Governments and the Federal authorities. If I were to say what I think I should at once describe the feeling as actuated by nothing else but jealousy and envy. We know that the States Judges move in certain State circles, and it is unavoidable that they should be tinctured with State feeling on the question of Federation. For that reason I do not think it is desirable- to have our Federal legislation interpreted by men who are appointed by the States, and responsible to the States. I do not see how it would be possible to get decisions on any uniform lines from State Judges. If there were a law suit between Victoria and the Commonwealth, it would be tried by three Supreme Court Judges from the other States. We certainly would get a decision ; but if at some future period a case arose, say between New South Walesand the Commonwealth, there would be a different set of Judges, who might give adifferent decision. There would be no recognised authority under such a scheme ; but if a Federal High Court be established the laws in the different States in their relation to the Federation, will be immediately brought into line. Precedents will beclearly established by the High Court ; and if the law be wrong, the people will be able to> immediately proceed to alter it in accord with public opinion. It is very desirable for that reason that a High Court should beat once established. In considering this matter, I, rightly or wrongly, have been driven to the conclusion that the cry for economy is merely a stalking horse - thatthere are other reasons operating in the minds of people who say that we ought not tohave a High Court, because- it will cost toomuch. What are those other reasons 1 I find throughout the Continent, in certain circles, an extremely ‘ strong feeling of hostility to the Federal Government and Parliament. In their view the Government is too drastic, and the Parliament is too liberal, because too much progress has been made with democratic legislation. The interests of the masses have been considered too much, and the interests of the classes too little, and for that reason they are extremely unwilling that such a democratic Government should have the opportunity of choosing the men to fill the positions on theBench of the High Court.
– I do not think -that there is a man in the Senate who holds such opinions.
– I did not say in the Senate.
– Or outside the Senate either.
– I think that outside the Senate a feeling of that kind does prevail. They- want the patronage togo somewhere else. They are afraid that if the choice rests with the present Ministers, the J Judges will be too Australian that their sympathy will be rather with the people than with the commercial or moneyed classes. I believe that feeling exists in the mind of a very large section of the people.
– I have heard very little about it.
– -If the honorable senator has been a careful student of public
Affairs, he ought to know that while the democrats - labour men like myself - never conceal their intentions, the other party carefully cover up their designs. They would never dream of giving the reasons I have advanced. They come forward with » specious plea for economy. They say that the High Court will cost too much j that it is going to rob the taxpayers. But when some pet scheme of their own comes up, they are not so economically minded. We are -entitled to judge of their motives in one -case by their action in another. When we :were dealing with the allowances to the Governor-General some of the very persons who are now crying out for- economy charged us with cheeseparing. They said that we were going to ruin Australia, to dr-ag her fair fame down into the mud. I would put it to any honorable senator, or to the public outside, whether a Governor General is more necessary titan a High Court to the well-being of Australia 1
– Or an extravagantlypaid Governor-General. .
– Tes. When a section of the House of Representatives was instrumental in reducing the expenditure on defence we heard the very same cry. No word of economy was uttered : it was called cheeseparing, bad statesmanship, and so on. When the people of the States made up their minds to federate they must have known well enough that they would have to pay for their whistle. They ought to have prepared for Federation by cutting down their State expenditure. But have they done so ? Senator Zeal has said that the High Court will cost £30,000 a year. No opponent of the Bill says that we ought not to have a High Court. They say that according to the ‘Constitution it must be created. They admit that a High Court is both desirable and necessary, but they say it should be created at some other time. If we must have a High Court let us admit the situation at once : it will cost money. We cannot keep up our present establishments, and, in addition, have this Other institution without making extra taxation necessary.- If we can-not do that what is our alternative 1 It is to cut down our present establishments. We have a number of Governors who, with all due respect to them, are of no earth] y use to the Commonwealth. They do mot perform a single useful function so fiar as the people of Australia are concerned, and yet on the average they cost the States from £7,000 to £10,000 per annum. Here is a method by which our Kyabram friends could promote economy. Why not -abolish the office of Governor ?
– This is not a question of republicanism.
– I am not talking about republicanism. I am a utilitarian, as I suppose the honorable and learned senator is under certain conditions. I do not want any figure-heads here - merely ornamental persons who do nothing, and who are very well paid for doing it. My desire is that we should not have a single office which is not necessary. If I am to choose between spending £30,000 a year on a High Court, which I consider is absolutely necessary, and £50,000 or £60,000 on States Governors, who I consider are not necessary, then I sha’ll not hesitate for a single moment. I shall vote to abolish the States Governors, who are of no earthly use. If there must be a connecting link between the States and the Crown, then we could follow the example of Canada. We have heard a great deal about the salaries of Canadian Judges. If the example of that Confederation is a good one to follow with regard to Judges - and I am not saying that it is not - then it is also a good one to follow in regard to States Governors. In Canada the provinces ‘ are placed under the charge of LieutenantGovernors who receive comparatively small salaries, and who are Canadian citizens.
– And who are all appointed on the nomination of the Executive Government.
– »We could appoint Senator Dobson as Lieutenant-Governor of Tasmania.
– I believe he would make a most excellent Lieutenant-Governor.. I should much prefer to see him in that position where he could not do any harm, and might do a little good. I am very reluctantly compelled ‘bo vote for the Bill. I would much rattier vote against the Bill because I think it is absolutely unequal to do what it is intended to carry out. We shall have a poor, wretched, pitiable, contemptible court - one which I believe the people of Australia will despise, and not one of which every person will be proud.
– We take it as half a loaf.
– That is exactly the position I am placed in here to-day. It is commonly charged against labour members that they either “Go the whole hog “ or do nothing. I am prepared any day to take a flitch of bacon, or even the trotters, if I cannot get “ the whole hog.” I shall have to take this wretched measure as it is in the hope that a wiser and more patriotic Parliament - a Parliament with a higher conception of what the High Court of Australia ought to be - will enlarge its scope, increase its number, and add to its usefulness, thereby making it an institution of which every Australian may well be proud.
– It was my privilege - I think I may say very great honour - to preside over the Judiciary Committee of the Convention. For that reason alone, I feel that I can scarcely allow this opportunity to pass without expressing my views as shortly as I can, and giving some explanation of why the Judiciary Committee recommended the establishment of a High Court. I wish first to express my thanks to Senator Walker who I understand alluded, in his speech,, to the position which I then occupied. I thank my honorable friend’ for the observations which he made, and which were in line with and bore out the unanimous views of the committee, from which, I am sorry to say, some of its members, who were then extremely enthusiastic in some directions, have fallen away.
– I do not think the honorable and learned senator has any right to say that.
– Of course I am not alluding to my honorable and learned friend-
– I do not think the honorable and learned senator has any right to say it of anybody.
– I hope I cannot say it of the honorable senator, because I have by me a -passage which has been a kind of testament to me, and which has kept me strong in the faith from the time that the Judiciary Committee dissolved until the present moment. I am quite sure that my honorable and learned friend can not have changed the views which he expressed in the Convention, and which will impel him, as I am sure he proposes to do, to vote for the second reading of the Bill.
– He says he is going to vote against it.
– But perhaps he will change his mind. I very much agree with a great deal of what hasfallen’ from Senator Stewart with regard tothe measure. I believe, firmly, with my honorable friend, that if the Bill as originally introduced had been put before the people of this country, with proper explanations, in an unbiased way, free from by - issues, it would have received their unanimous approval. That is not merely a controversial view ; because I am going to consider this questionquite apart from any controversial position. This is no party measure. That has been recognised on all sides.
– Except by the Kyabram party.
– It is no party measure in this Parliament. The party lines which divide us in this Parliament do not embrace this particularmeasure. That has been recognised in the debates in both branches of the Legislature. It was recognised in the voting. And the reason is that the measure - this organization of the national Judiciary -has a far higher motive and object than the carrying out of any particular party policy. It is above party. It appeals, as I think,, to the duty which we owe to the Constitution, Therefore, I approach the Bill quite apart from any controversial spirit whatever. If we did consider it from that point of view, then Senator Stewart undoubtedly would be justified in saying that the element, I will not say of suspicion, bub of jealousy, might naturally be introduced. So long as we have representative government, so long as we have party government on the British system, so long as human nature is human nature, it is clearly to beexpected, as Senator Stewart indicated, that there would ordinarily be party opposition to handing over patronage and power to the Ministry in office. I believe, in accordance with the interjection of Senator Dobson, that anything of that description can be swept out of our minds. I support the Bill and the Government in this instance, because, in my judgment, they are pursuing the right and only path. They are keeping faith with the Constitution. They arekeeping faith with the people. I believein the first place that every true Federalist - I am not introducing any element o£ controversy or disapproval, one way or the other - every one who at the time of the Convention, and prior to it, during the efforts which were made to educate the public on this great question, was a Federalist, ought to support the Bill. In the second place, every man, whether a Federalist or not, seeing that this Federal union is accomplished, ought to seek to make it complete find effective under the Constitution.
– There is no doubt about that.
– Then my honorable friend is going to vote for the Bill?
– No, I am not.
– Then my honorable friend does not come in the category of those whom I have within my mind. I say that, because of the nature of this Bill, and because of the position which the Judiciary sought to ‘ be set up occupies under our Federal system. My honorable friend, Senator Stewart, said that he would vote for’ the Bill with reluctance because it was a ragged measure, and that the High Court to be established under it would be a court which would not fill us with pride. “Well, I cannot go quite that length with him. I shall vote for the Bill, also with reluctance, because the court will be one of three J Judges ; and I will give reasons why I think there ought to be five. But whilst I say that, instead of following Senator Stewart in believing that the court will be one which will - I think he used the word - be contemptible, I believe that if it is properly constituted, and if it does the duty which we expect it to dis: charge under this Constitution of ours, it will rise .to a level at which it will give satisfaction to the people of this country, small though it be in its beginning. Furthermore, instead of dwindling, I hope it will grow in strength and usefulness, like the mustard seed, which grew into a great tree, and sheltered the birds of’ heaven in its branches. I trust that’ it will grow with its responsibilities, increase with its duties, and always remain an exponent of that dignity, ‘ efficiency, and power which should pertain to the High Court of the Commonwealth. I think that the Ministry are pursuing the right course. I think so, because the Judiciary is embedded in the Constitution. I am afraid it is sometimes overlooked that the High Court is established by the Constitution. The other courts Parliament may or may not create. Under the Constitution Parliament may or may not give Federal jurisdiction to existing courts. But the ‘High Court on every constitutional principle is, in my judgment - I say so with the utmost respect for those who disagree with me - beyond the legal or moral competence of Parliament to block ; just as, once organized, it will be beyond the legal or moral competence of Parliament to abolish it.
– It will be the same if the High Court is created next year instead of this.
– I shall come to that point in a minute or two. If my honorable friend agrees with me up to this point, we have got a step in advance. Such is the view which I take of the Constitution. That is the view which weighed with rae upon the Judiciary Committee of the Convention in seeking the form in which the sections affecting the Judiciary appear in the Constitution. That is the view which was carried out in the unanimous report of the Judiciary Committee. The Convention, following the advice of the Judiciary Committee, adopted those sections in the particular form in which they now stand in the Constitution. The Judiciary, in the position in which it stands now, resembles a warship fully constructed, equipped, and armed in every, way, but not manned. It is on the slips, ready to be launched, and all that this Parliament has to do is to launch it.
– We need not stoke the fires and get up steam yet.
– We certainly want a stoker. My honorable friend would make an excellent stoker. Does any one deny that the Judiciary is established by the Constitution f Does any one say that if we organize the High Court, and bring it into operation, Parliament could abolish it? Of course wo could not. The people of this country have enacted this Constitution. They have enacted the High Court, and they have intrusted Parliament, simply as their Ministers, with the Ministerial duty of choosing or- enabling the Executive Government to choose the personnel of the court, and to provide the wherewithal in money which the Convention had no power to provide for the purpose of enabling the High Court to be carried on. It is also true, as Senator Stewart has said, that there is not a single soul, so far as I am aware, who has been extravagant and absurd enough to declare that the Federal J udiciary should not be set going - not one. Petitions have been received from my own State, but not one of them says that there shall be no Judiciary. They do not ask the Senate to reject the Bill. All they do is to suggest a substitution - that we should have a peripatetic Court of States Chief Justices, and that they should sit periodically in three cities. It is the most crude notion in the world. Which three cities 1 And which Chief Justices ? I am not disparaging the opinion of the petitioners for a moment, nor am I speaking -without the greatest respect for the opinions which have been expressed adversely to those which I now have the opportunity by favour of the Senate of expressing. But when it is suggested by a series of petitions not that we should reject the Bill - a view which I could quite understand emanating from people who did not comprehend the Constitution under which we live - but that we should establish a Judiciary of a peripatetic character, consisting of three Chief Justices, owing place and pay and allegiance to their own States, who should sit in three different cities. I am lost in wonder that otherwise sensible men could conceive such a proposal. Such a court would lead to the greatest irritation and discontent. It would violate the Constitution. The proposal is really too absurd for serious notice. Opposition has arisen, also, because some members of this Parliament who, like myself, were proud of being members of the Convention, seem to have desired to fight over again in Parliament points upon which they were defeated in the Convention. We must take the ^Constitution as we find it. I say, with great deference to my friends to whom I have referred, that we ought not to resist the effective organization of the Judiciary simply because some of us were beaten on some points affecting the Judiciary in the Convention. I .was interested, when my honorable friend Senator Styles was speaking, by his reference to the division list of another place. He laid some stress on the fact that an honorable and learned member from my own State who was a member of the Judiciary Committee of the Convention - my honorable and learned friend Mr. Glynn - has opposed the Bill. In the other branch of the Legislature, Mr.
Glynn, I find, recalled the fact that he moved an amendment at the close of the Convention, when what were called the drafting committee’s amendments were being considered. I may say that I am not with my honorable friend in his view - which was that appeals would be entertained by the Privy Council direct from the States Courts even under the Constitution as it stands. But assuming that that view were correct, he moved an amendment to make it clear that such appeals should not be made. He said, speaking on the motion for the third reading of this Bill–
– Does the honorable and learned senator think that he is in order in referring to debates in the other branch of the Legislature 1
– Then I will say that my learned friend Mr. Glynn said - I will not say where he said it -
Hud the amendment which I submitted been carried, I would have been one of the strongest advocates of establishing the High Court to-day.
That condition of things existed in April, 1 898. It was then known that my honorable and learned friend’s amendment was defeated. The Bill as it went to the referendum and afterwards to England did not contain his amendment. It contained as I think, and think still, an insufficient limitation of the appeal to the Privy Council. But I had to be content. That was the position of affairs then. The first referendum took place, and my honorable and learned friend Mr. Glynn was one of the strongest advocates of this Bill without his amendment at that referendum. Not only was he one of the most eloquent platform advocates of the Bill, but he wrote a series of able articles in the newspapers urging its adoption on every ground, and not least because of the Judiciary. He commended this Bill and this Judiciary - without his amendment - to the acceptance of the people of South Australia in the most emphatic manner. I can use no better language than the honorable and learned gentleman then used. I refer to this simply because my honorable friend Senator Styles seemed to be influenced by the array of undoubtedly eminent legal men against the measure in another place, and he specially mentioned Mr. Glynn. Now I offer the honorable senator the other Mr. Glynn.
– This is the “ Yes “ Mr. Glynn. Senator Styles quoted the “ No “ Mr. Glynn.
– This is what the honorable and learned gentleman wrote, and it touches upon the State bias. Of course, in regard to the States Courts that does not mean a corrupt bias or anything of that kind. It means merely the natural effect of the environment and surroundings in which one has been brought up. When I use the word “ bias “ I use it in no improper sense whatever.
– Hear, hear ; no one uses it in any other sense.
– This is what Mr. Glynn says in a two-column article, half of which is devoted to the Federal Judiciary -
If no special Federal Court were created, the State Court would be bound to declare all laws violating the Constitution invalid.
What a position to put a State Court in, to have to declare the laws of its own State invalid as violating the laws of another Parliament. Mr. Glynn goes on to say -
But State Courts might not be so free from prejudice in matters having a local colour, so a new Judiciary, independent alike of the States and Commonwealth, is created to keep all parties to the conditions of their contract. “ Accept it,” says Mr. Glynn to the people of South Australia, who did accept it.
– Does the honorable and learned member say “Accept it” now?
– Well, the honorable and learned member invited the people of South Australia to accept it under the conditions which existed then. He says now that if his amendment had been carried he would be one of the strongest advocates for this Bill. His amendment was not carried when he wrote this article, and yet he was then one of the strongest advocates for the Judiciary, and was largely instrumental in inducing the people of South Australia to accept it. The defeat of his amendment was no obstacle to his enthusiastic advocacy of the High Court then. Why should it be now? I say that my honorable friends in the Senate must take their choice. Mr. Glynn goes on to say-
The Federal Judiciary is therefore created to secure greater independence and freedom from State or Federal bias.
The jurisdiction of the High Court of Australia is chiefly appellate. It extends to appeals in matters of State law from State Supreme Courts, and of Federal law from courts invested by Parliament with Federal jurisdiction.
He does not suggest that, as his amendment had not been carried, the people of South Australia should not accept the proposed Judiciary, or that they should accept it with qualification. He continues -
The Federal Parliament will doubtless at once invest States Supreme Courts with jurisdiction in Federal matters. Then all cases whether of State or Federal law, except those relating to a few matters of special importance (76) in respect of which original as well as appellate ‘jurisdiction may be conferred on the Federal Supreme Court, will be heard in the first instance by the States Supreme Courts.
– Hear, hear ; that is in our favour.
– In what way ?
– It is clear that there are only a few cases for the High Court.
– But all cases will be heard in the Supreme Court now with the exception of those which come within the exclusive jurisdiction of the High Court.
– That1 argument is distinctly in favour of postponing this Bill.
– Nothing of the kind. If ray honorable and learned f friend will listen to what Mr. Glynn has to say, I shall deal with his own sentiments in a minute. Mr. Glynn says -
From the judgment of the State Courts an up- ‘ peal lies to the Federal Supreme Court, or, as it is to be called, the High Court of Australia.
Not to Senator Dobson’s Privy Council, as the honorable and learned senator will see. Mr. Glynn makes the point, and I, as one who addressed meeting after meeting throughout the length and breadth of South Australia at the time, and who addressed some four or six meetings during the inflammatory discussions in connexion with clause 74, never found a meeting that did not heartily approve of the limitation of the appeal to the Privy Council.
– The honorable and learned senator’s eloquence did that, and not sound judgment.
– The honorable and learned senator’s eloquence would do that, and more also.
– I have no undue faith in what honorable senators are pleased to refer to as ray eloquence. It was the eloquence of Mr. Glynn that did it, and not mine. This is what Mr. Glynn says about the High Court -
The State Court would have exercised the power - by some, under a misapprehension, considered exceptional - that the High Court of Australia in the last instance can exercise and is created to, under conditions of greater independence, discharge.
Why, can there be a finer eulogy of the High Court ? ‘ Then the . honorable and learned gentleman quotes clause 74 of the Constitution, and he says -
The appeal may be taken with the permission of the Privy Council -
That is the view, I took, and that the Privy Council would never give an appeal until the High Court was exhausted.
The appeal may be taken with the permission of the Privy Council from a State Court direct to that body, but the Canadian cases suggest that permission will seldom be granted. Except in very important matters, therefore, all appeals will be heard finally by the Australian Court.
– And ‘it is those two or three important matters which the honorable and learned senator would desire to prevent going to the Privy Council.
– But we have taken that right away by the Constitution.
– Only with respect to interpretations of the Constitution.
– We have taken that away by the Constitution. We have preserved iri the Constitution our power, and with the permission- which I think ought never to have been hesitated about - of the Imperial Parliament, we have the power of interpreting our own Constitution and our own laws. It is no use talking of that ; that is done. But if my honorable friend Senator Dobson were to have his way, and could reject this Bill, what would be the position ? We could not have any decision within this Commonwealth upon any constitutional question between the Commonwealth and States inter se, or between States themselves inter se, because they could never get to the. Privy Council. It is only the High Court that can decide them in the first instance, and it is only the High Court that can certify, if it so desires, that they are matters proper for appeal to the Privy Council. We should under the Constitution be in exactly the position so lucidly shown by my honorable and learned friend Mr. Glynn in his considered advocacy of the Commonwealth Bill in 1898 - that unless a High Court were established we might be involved to-morrow in most serious disputes between the Commonwealth and the States, or the States as between themselves, and we should be without any remedy.
– For over two and a half years there have been no disputes of that kind.
– My honorable and learned friend refers to the fact that two and a half years have expired since the Commonwealth was established, I should have thought that a reason why we should not delay one moment longer. Surely it is not a reason for perpetuating the delay.
– Surely it is, so long as the reasons for delay continue.
– Suppose that to-morrow we had an InterState dispute,- surely the idea is to keep the States in harmony ?
– Senator Dobson would wait until the dispute arises.
– The honorable and learned senator would wait until the dispute arises. He believes that we should wait until people are bleeding in the arena before we make them put the gloves on or name a referee.
– Was it not contemplated all along that Judges of the Supreme Courts of the States might be constituted a Federal Court ?
– Nothing ‘ of the kind.
– There has been a dispute between Victoria and South Australia over 2 miles of territory for the last 40 or 50 years.
– Yes; and there have been threatenings of armies and invasions.
– They keep on talking.
– Why should we keep that as a perpetually running sore between them? We shall get the matter settled when the High Court sits.
– We do not want it settled ; it is all right.
– The man in possession speaks ; the man who has got property that does not belong to him. I come from a State where we always turn the other cheek. All who come from South Australia do that.
– Tlie High Court might take the property from the rightful . owner.
– I n6w come to what I think is the best eulogy of the High Court, one which advocates not only five Judges, but pours contempt upon the penny-wise-pound-foolish policy of meeking to mutilate our court for the sake of saying expense. This quotation is excellent. I am about to refer to a speech delivered on a motion to reduce the number of Judges to three, promoted by Mr. Carruthers, a representative from New South Wales at the Convention. My honorable and learned friend Senator Dobson, said -
While I agree with Sir Edward Braddon
That right honorable gentleman was and -always has been perfectly consistent, and I am not saying that my honorable and learned friend, Senator Dobson, is not entitled to change all his opinions upon this -
While I agree with Sir Edward Braddon that we should do everything we can to cut down the expense of the Federal Parliament, I think the High Court is the one exception to the rule.
– Who said this ?
– Senator Dobson.
– In saying that my honorable and learned friend exposed himself to the usual jibe, which came on that occasion, from my honorable friend, Senator Zeal - “Lawyers again.” That was applied to Senator Dobson, so that the honorable and learned senator is amongst the persecuted few. Senator Dobson naturally resented that, and he said -
It is something far above the lawyers. It is the rights and protection of the citizen. Mr. Wise has pointed out that this Judiciary is an inherent part of the Constitution, and I would remind honorable members that it is to be the interpreter of the Constitution. If America is to be any guide, the High Court there gives decisions on the most vital and important questions between the States and the Commonwealth, and considering that the Bench of New South Wales -consists of seven Judges, and the Bench of Victoria consists of six or seven, and that sometimes the decisions are given by five Judges, I think that as this High Court is to be a Court of Appeal and the interpreter of the Constitution, it would, to some extent, belittle the Court if you had to take a case from five strong Judges in New South Wales or Victoria to even three eminent Judges of the Federal Court.
– That is what I said yesterday.
– I was not present, but that is why I thought the honorable and learned senator would support the second reading of this Bill.
– I say that when we do -appoint a High Court, we should have five
Judges, but we should not establish the court at the present time, as there is no work for it to do.
– But the honorable and learned senator will see that he has said that this is a court to protect the rights of the citizen. Surely my honor able and learned friend is patriotic 1
– Those are very noble sentiments.
– They are magnificent sentiments, I think.
– That was theory ; we are now talking practical politics.
– 1 do not speak in any way offensively when I say that ray honorable and learned friend would, in a political sense, betray the rights and protection of the citizens in order to save a few pounds for two or three years. But, like a lady’s letter, the most important part is in the postscript -
Honorable members will at once see that if it is to be a Court of Appellate Jurisdiction, and to interpret the Constitution, you cannot be penny-wise and pound-foolish.
– The honorable senator says the same now.
– I said the same yesterday.
– I am not suggesting that. Senator Dobson is not saying the same now. I am only observing how deeply grateful I am to him for guiding me on the right course of supporting this measure, although it will only give us what he describes as three eminent Judges. I have not had the privilege of hearing the debate so far, but I will pledge Senator Dobson my uncompromising support if he will take steps in Committee to increase the number of Judges from three to five.
– I have not yet approved of three J Judges
– For the different reasons which have been summarized by Senator Stewart, the question rests between those who do not declare for no Judiciary, but contend for no Judiciary at present, and those who seek to substitute States Judges. The climax and achievement of all the opposition - and as to the wisdom or unwisdom of the opposition I make no comment - is that, in the establishment of our national court, they have succeeded in cutting.’ off two Judges, and saving ±’6,000 a year in a country with a Customs revenue of £10,000,000.
– Was not the debate referred to that on the proposal to absolutely reduce the number of Judges to three t
– It was the debate on the proposal to reduce the number of Judges to three. There was a proposal to leave the matter within the power of Parliament ; but the Convention were against that idea, and refused to reduce the number to three. It was not until the Melbourne Convention that the number was altered ; and Senator Dobson will remember that the Judiciary Committee recommended that there should be four Judges and a Chief Justice. I am now merely endeavouring to recall Senator Dobson’s earlier and fresher impressions. Where is the opposition to this Bill ? Where is the people’s opposition? True, we are dealing with what is an Imperial Act of Parliament, but the Constitution is an enactment of the people of Australia, and we ought to have regard to the fact that no one can alter the Constitution but the people. It has been suggested that the people assented to the Constitution, but not to that particular part which provides for the creation of the High Court. The assent of the people was to this particular part and every part of the Constitution. I have a pretty good memory qf what took place before the first and second referendums, in order to inform the people ; and I believe that every advocate of Federation in my own State - at any rate it was so with myself - regarded the Federal Judiciary as the guardian of the rights of South Australia, and contended that on it rested the protection as well of the State as of the liberty of individual citizens against encroachment or destruction by the Commonwealth. Mr. Glynn, who has the art of making matters clear and emphatic with his pen, used both pen and tongue in urging the necessity for a Federal Judiciary, and the immense part it would play in the development of our Constitution and in the protection of the rights of the States, the rights of the Commonwealth, and the rights of individual citizens. Moreover, I think that the South Australian representatives in the Convention issued to every elector a synopsis of the Bill, prepared, I believe, by Mr. Kingston, in popular language ; and both Mr. Kingston and Sir Frederick
Holder, in their speeches to which I” have been able to refer, laid great stress on the Federal Judiciary, and gave a particular explanation of it to every audiencethey addressed. Nor have I been able to find in any speeches statements or manifestoes of * those who were called “ anti-federalists “ or “ anti-billites “ - those names are now only used historically - any objection to theestablishment of a Federal Judiciary.
– Will the honorable and. learned senator give some practical arguments for the establishment of a Federal Judiciary at this moment ?
– Surely the honorable senator requires no further arguments than those he has himself supplied though later on I shall present one or two humbler arguments of my own. I have had. experience of Senator Dobson in the Judiciary Committee of the Convention, in the Convention itself, and in this Chamber, and I know that no man is more open to reason when he is appealed to on any great national question ; and, with all humility, I shall endeavour to offer him - and I hop& successfully - one or two additional reasons why it is imperative this High Court should be established now. I care nothing about party in connexion with this question. I am here as a member of the Convention, and as one who recommended the people to enter into the Federal Union. I speak as one who urged his own State to join, for one reason, amongst others, that there would be a High Courtto afford protection against any attempted injustice. Why is the provision for a High Court embedded in the Constitution ? If aHigh Court were not essential, that provision would not be there, but the matter would have been left to Parliament. If a High Court is essential it ought to be immediately brought into operation, because we cannot postpone that which is essential in laying the foundations of government.’ An expression has been used, in a sneering sort of way, that in this particular our Constitution is simply a pedantic copy of the United States Constitution. I am sorry that expression has been used. The section was not inserted because of any idea of pedantry, but because the United States Constitution at that time was the highest type of Federal government. Our Constitution is, to my mind, an improved type of Federal government. It is democratic - that is to say, it is the people’s govern ment and the people’s Constitution to a degree to which the United States Constitution can lay no claim. The provisions for a High Court are in the Constitution because we were guided by the 100 years’ experience and aspirations of the American people, and 100 years of interpretation and working of their Constitution. I regard our Constitution as an improvement on that of the United States ; and our object was to meet the needs and aspirations of a people who were constituting themselves a nation 100 years after the United States had come into existence. We bettered the great example presented by a less perfect type, ifI may use the expression. I hope honorable senators will allow me toquotetwo sentences, not from an American writer, whomight be supposed to be prejudiced, but from a great constitutional writer, Mr. Dicey. On page 126 of his work Mr. Dicey says -
The Union presents the most completely developed type of federalism.
That was before we developed our Constitution.
All the features which mark that scheme of government, and, above all -
I hope Senator Dobson will notice this - - the control of the Legislature by the courts -
That is the highest summit, according to Mr. Dicey, of this perfect system of federalism - - are there exhibited in their most salient and perfect form.
That Constitution is inferior to ours, not in the sense of disparagement, but in the sense of being less advanced. Mr. Dicey goes on -
The principle which shapes every part of the American polity is that distribution of limited executive, legislative, and judicial authority among bodies, each co-ordinate with, and independent of, the other, which is essential to the Federal form of government.
What are the three essentials of the Federal form of government? The Executive, the Legislature, the Judiciary. Are we to have a truncated Federal system? If we want a system of government at all in accordance with the Constitution - if we are loyal to what we have created - I am at a loss to understand on what footing honorable senators can advocate the burial for even a day of one absolutely essential branch of the Constitution. Mr. Dicey, on page 146 of his work, says -
To have laid down the principle clearly is much -
The principle is that the people govern in the Federation ; that the dominant law of the Constitution overspreads and overrides the whole of our self-government.
But the great problem was how to insure that the principle should be obeyed ; for there existed a danger that Judges depending on the Federal Government should wrest the Constitution in favour of the central power, and that Judges created by the States should wrest it in favour of State rights or interests.
This problem has been solved by the creation of the Supreme Court and the Federal Judiciary.
– Because the Privy Council was cut away from them.
– I shall come to the bogey of the Privy Council in a minute.
– It is no bogey.
– It is a real live institution.
– I could give my honorable friends some extracts from the Times of only the other day, in which it speaks of the Privy Council - perhaps I may, if I do not occupy too much time. With another quotation from Kent, I shall pass on to our own Constitution. If the Judiciary was the essential element in this tripartite scheme of the Constitution, under the system of the United States, it is infinitely more so under ours. Under our Constitution, which deals not with a community made up of States such as then existed in America, but with self-governing communities with Parliaments which are not to be bridled, and which are not free from the natural desire to legislate in every direction they can, and encroach as much as. they can on the Commonwealth, the situation is infinitely stronger. At page 319 of his Commentaries, Chancellor Kent says -
Nor is an independent Judiciary less useful as a check upon the legislative power which is sometimes disposed, from the force of party, or the temptations of interest, to make a sacrifice of constitutional rights ; and it is a wise and necessary principle of our Government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the Courts of Justice,whoare bound to regard the Constitution as theparamount law, and the highest evidence of the will of the people.
Our Constitution, in its essential principles and features, is modelled on that of the United States. It is a little late in the day to now talk about postponing the creation of the Judiciary. Why did not those honorable senators who were members of the Convention introduce a clause saying that it should be postponed ? If an instrument declares that a thing shall be done it means that it is to be done at the earliest possible moment.
– Is not the honorable and learned senator putting up a bogey for the mere pleasure of knocking it down ? Does anybody suggest burying the Judiciary ?
– For a time. You are going to have a resurrection some day.
– The honorable and learned senator has acquiesced in it for two years and a half.
– I !
– Well, the Senate has.
– I deny it. My honorable and learned friend must have forgotten that whenever I have spoken on the Address in Reply, I have expressly stated that my only complaint against the Government was that it had delayed the appointment of the Judiciary so long.
– The honorable and learned senator could have introduced a Bill for the purpose, so that he is partly responsible for the delay.
– My’ honorable and learned friend is forgetting his wisdom, his experience, and the high reputation which he once gained as the Premier of a State. Is this a Bill which could be introduced by a private member ? The primary purpose for which this Parliament was brought together was to give effect to the provisions of the Constitution at the earliest possible moment.
– At the earliest necessary moment.
– It is necessary now.
– That is a matter of opinion.
– It was necessary the day after we came here.
– We do not think it was.
– My honorable and learned friend was in the Convention when the question was solemnly discussed that the first Ministry - before the Parliament met at all - should appoint the Judges of the High Court.
– The experience of the Federation has shown that such hurry is not necessary.
– If my honorable and learned friend would just listen and apply his mind to the arguments step by step, he would escape perhaps a. little confusion.
– I want the practical argument, not the theory.
– Whenever any one wishes to raise an objection to the doing of a thing which the Constitution requires to be done, he says - “I desire tobe practical.”
– And when other peoplewish something- to be done, they go intotheory.
– These critics are like the man who, devoid of argument, says - “This is not the time ; I shall think about it to-morrow.” That is not a statesmanlike way of viewing theposition. It has to be viewed from the stand-point of our constitutional duty. I ask my honorable and learned friend why if it was essential to provide for theappointment of a Judiciary, it should not be carried out 1 I am not talking: about an ultimate appeal. I have given him a reason why there can be no appeal to the Privy Council on any question arising as to the limits inter se of the constitutional powers of the Commonwealth, and those of any State or States, or as tothe limits inter se of the constitutional powers of any two or more States. Until the High Court is created, you are blocked ; your machine cannot work. One of itsmethods of avoiding dissension is absolutely closed.
– Quite right.
– Surely the honorable and learned senator is going; to provide what he- and I, on the Judiciary Committee, and in the Convention said wasessential in order to enable the machine to work ? What is the good of our coming hereand saying - “ In Victoria members are getting afraid of their constituents, because of the man ‘from Kyabram?” Why should we listen to any appeal of that kind? - Letus rise to a higher ‘ level. I am not sayingsaying that it ought not to influence ourfriends from Victoria, more or less, but why should we be intimidated by a thing likethat 1 What is it in comparison with enabling these constitutional questions to be decided ? I do not wish to offend my honorableand learned friend’s Imperialistic susceptibilities in reminding him that the Imperial
Government and Parliament put in the provision that those constitutional questions should not be decided by the Privy Council, but by our own High Court, and it is only when the High Court can certify that a question is one which ought to be determined by the Privy Council, that an appeal is allowed. It is absolute disloyalty to the Constitution to suggest that the High Court should not be created. I ask Senator Dobson what was the purpose of our assembling in the Convention ? Was this a casual thing which was put in the Constitution ?
– Of course it was.
– My honorable and learned friend may have forgotten that the very key-note to all our proceedings was given in the preliminary resolutions. We never debated the Constitution Bill until we had passed certain resolutions, which were the sign-post, so to speak, of the work which we had to do for the people of Australia, and which were prefaced with this exordium -
That in order to enlarge the powers of selfgovernment of the people of Australia
One of the foremost means of that enlargement - I do not know in what other way our powers of self-government were enlarged - was to provide for the national administration of justice. It was the very purpose for which we met session after session as the delegates of the people. We were there as the agents of the people to do this thing ; that guiding principle was laid down at the inception of our proceedings, when we resolved that -
This Convention approves of the framing of a Federal Constitution which shall establish -
A Supreme Federal Court, which shall also be the High Court of Appeal for each colony in the Federation.
– We alladmit that.
– If so, why is my honorable and learned friend going back on it?
– Because only one case has arisen in two years and a half.
– Why should we not obey the Constitution ? Why should we be traitors to the people ? The people have not amended the Constitution ; they have never disapproved of the High Court.
– We should be far more traitorous to the people if we spent money which we could save.
– My honorable and learned friend is going to save a £5 note, and then he says we must not be cheese-parers. We are proceeding to carry out that purpose. Is all this to be a delusion?
– Oh, no !
– How long is to be a delusion ?
– Nobody suggests that.
– Has my honorable friend told me when he is going to fix up the High Court?
– In the next Parliament.
– Will they be wiser than we are ?
SenatorFraser. - We have been too hasty in many things.
– Tell me one of them.
– The transcontinental railway is one.
– It has not been carried out yet.
– But weare spending money over it.
– We shall stop that.
– A lot of money has also been spent over the selection of a site for the Federal capital.
– Does my honorable friend compare the establishment of a national court with the spending of money on the survey of a transcontinental railway, or does he put it on the same footing as a picnic to see the proposed sites for the Federal capital ?
– Not quite.
– We need not trouble about these allusions because they are not parallel, as my honorable friend admits. Why should we shrink from carrying out the obligations of the Constitution, from building on the foundations which we have laid ? Why should we not carry out the trust which the people - by, this Constitution - have imposed upon us of organizing a tribunal that shall do final justice to our fellow citizens? That is the question I ask, and it is a practical one, I think. There is. nothing so practical as the administration of justice. There is nothing so practical and so essential in any self-governing community as the establishment of a national court.
– The practical answer is that one Judge from each State could form a temporary court.
– My honorable and learned f riend wishes to have a hireling - a makeshift, a scratch court. The members of the Convention ought to1 have packed up their bags and gone home if they were not going to carry out their own resolution. But we carried it - of course we did. How ? In the highest of all ways. We put in the Commonwealth Bill a preamble which expressed the intention of the people of Australia. It was the people themselves who were the parties to this bargain. Yet here are my honorable friends arrogating to themselves the right of repealing–
– Not repealing.
– What is it, then? We are practically repealing the wish of the people for the establishment of this Judiciary if we delay it. If before the next elections I underook to go round the State which my honorable and learned friend Senator Dobson represents, and appear on platform after platform with him, I venture to say that the majority of the people in the audience will agree with me on this question.
– The honorable and learned senator has already promised to go to Hobart.
– It is said that one must not revoke at cards. Nothing but a broken leg is an excuse for a revoke. Unless there is some such reason, I will do what I have promised. I have done it in my own State at the time when an agitation was carried on in regard to section 74 of the Constitution. Many people differed from me with regard to that, and I have the greatest respect for my opponents. We had a very active controversy ; but at the meetings which I addressed the audiences agreed with me at the finish, and every one of them was unanimous, not only in regard to the establishment of the judiciary, but also as to limiting the power of appeal to the Privy Council. This was a people’s question. The Constitution was framed by the people. What was provided in it ? -
Whereas the people …. have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.
We, the Parliament, have no more right to override what the people have done in this respect than in any other. We ought to obey their intentions as expressed in the Constitution. Do honorable senators think that I am not alive to the importance of economy ? Do they not think that I am alive to the opinions of my own State, and, with one insignificant exception, the press of my State on this question ? But I know what my duty to the Constitution is. I know what is my duty to the Convention which framed the Constitution ; and I am going to do my duty irrespective of saving a £5 note, and irrespective of the kudos that will be gained, not from the people generally, but from some quarters in postponing the appointment of the High Court, or in. agreeing to any substitute for it in the form of a body of three Judges appointed and paid by other Governments.
– It is the same people who pay.
– The. same people do not pay. The Commonwealth Judges will be responsible to the Parliament of the Commonwealth. We have no control over State Judges. Great Britain might just as well constitute the Privy Council of Judges from France. My honorfriend Senator Charleston does not appreciate the very rudiments of the Constitution.
– I say that the people of the Commonwealth and the people of the States are the same people.
– The people of any State are only a fraction of the people of the Commonwealth, and in the other case it is the people of a particular State. My honorable friend does not understand his own proposal if he wants to have three Judges serving two masters, one of whom would have no control over them. There is no civilized country in the world that would tolerate such an excrescence upon the administration of justice. Propose other things, but do not let us insult the intelligence of British people in that way.
– It would be exercising the judicial power of the Commonwealth by the grace of some of the States.
– Exactly ; that is a good way of putting it.
– Then there is danger in delaying the establishment of the High Court for even a month ?
– Yes ; the High Court ought to have been established two years ago.
– We have saved £50,000 in the meantime.
– Saved £50,000 and delayed justice. I will answer that argument. The people agreed that the Constitution should be the supreme law of the land. Ours is not so much a government by Parliament as by the Constitution. As it was expressed the other day, it is a government of laws, not of men. This Constitution provides that -
This Act,- and all laws mode by the Parliament . of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth.
The Queen, by proclamation, declared that there should be a new Government and a new community - that the people of these States should be united in a Federal Government, under thu name of the Commonwealth of Australia. Such being our Constitution, how can my honorable friends opposite reconcile it with what they want, or with saying that .the people of the Commonwealth and of the States are the same people 1 Of course, the people of the Commonwealth are constituted of the people of the States, and the people of the States make up the people of the Commonwealth ; but the people of the Commonwealth constitute a new political community. It is because ours is a dual citizenship that the citizenship of a State and the citizenship of the Commonwealth are totally different things. Some honorable senators do not give enough weight to the fact that we ought to regard this question from the point of view of citizens of the Commonwealth, and not from that of citizens of the States. We are concerned with it as citizens of the Commonwealth, and not in any other capacity. This Constitution is the seal and impress of our nationality. That being so, how can anyone contend that, being a new political community - just as though we were a separate island - we should not have a separate court 1 . 1 agree with every word that Senator Stewart said as to that. We shall be shorn of what ought to be our greatest glory and privilege as a nation if we do not have a national court. No one can reflect upon the fact that the highest purpose of all Government is to provide by its own courts and its own judicature for the administration of justice without realizing the necessity for the establishment of this court. If it is to be a national court, undoubtedly we have to consider its dignity and its efficiency. Honorable senators must not think for a moment that I would support any extravagance. Let them cut down as much as they like, but let them secure first that we shall have a strong and capable Bench. Let us first establish our judicature, and then consider how far we can go in the regions of economy, with a view of preventing any undue burdens - subserving always the great purpose of having an efficient national court. Let honorable senators, if they like, take away from the court all unnecessary paraphernalia. I am no lever of paraphernalia. I have visited the Supreme Court of the United States, and have seen the Judges administering justice without full-bottomed wigs, and wearing simple gowns. I have seen the advocates appearing before them without either wigs or gowns, or any other furniture of that sort. I venture to think that no one could enter the atmosphere of that court without coming away with a sense of its dignity, and filled with the utmost respect for it. We do not want lordly trappings, but we do want a capable Bench. It has been said that the whole purpose of British civilization is to put twelve men in a jury-box. It ought equally to be our object to organize an efficient High Court for Australia-. I think I may say that nothing gave me greater pleasure than to hear the assent of my honorable and learned friend Senator Dobson, who, for the moment, is not in his place, to the proposition which 1 ventured to put to him, that, quite apart from the Constitution, no one looking at the position which the Commonwealth of Australia occupies can possibly say that it is to our credit not to have a national court. The position in that respect is strengthened by every circumstance upon which we can bring our minds to bear in connexion with the purpose and the conditions attending the establishment of our union. We know that Mr. Chamberlain himself, in a despatch laid before Parliament the other day in connexion with the Vöndel case, described the Australian Commonwealth as “ a new political community.” I am certain that some of our honorable friends who differ from the views which I venture to submit have lost sight of that all important fact. We are a new Government. We are in that sense a nation as completely as if we were upon another continent, and the expression used by the Secretary of State for the Colonies is one which very fairly describes the position. There can then he no question that the first act on the part of a new political community is to organize the administration of its justice by its own courts - not to borrow courts from the States, which are component parts of the entity, and not to borrow Judges from those States. We may appoint those Judges to constitute our national court, if we please. I hope honorable senators understand that in no respect does any remark I have made affect the selection of the Judges. Whenever the selection comes to be made, it must be made from the men who are most able, most learned, possessing most strength and firmness, and most in touch with the great Constitution which they will have to administer. It is from such men that the court should be chosen.
– They are all in touch.
– I again ask my honorable friend, Senator Fraser, not to interrupt. It does not seem courteous on my part if I do not reply to his interjections, but to do so only prolongs what one has to say. W e surely should lay ourselves out for having a national court. Senator Stewart referred to the possibility of the court being small, and not being properly housed. A court is a court, even if it meets under a gum tree. The Majesty of Justice requires no trappings. But I think that under this Bill Senator Stewart need entertain no apprehensions on that score. Whatever view we take as to the equipment of the court, we certainly ought not to abdicate the function which pertains to every Government, and to the Federal Government as the Government of a new political community of establishing a court to administer justice to our own people. Here all the reasons are emphasized by- the fact that whilst we are called . upon, quite apart from .the Constitution, to constitute a national court it is, under the Constitution itself, essential and imperative. It is essential and imperative, because this is a Federal Constitution. It is a Constitution under which we have a government of laws, not a government of men, and the scope and authority of each branch of the system of government is distinct. Who is to determine when the boundaries are overstepped 1 Is it to be determined by the arbitrament of the sword, or by a properly constituted- tribunal ? On every question of dispute, on every occasion of difference between the Commonwealth and the State, or between the two Houses of the Federal Parliament as to the scope of the Constitution, we cannot have a referendum. We cannot ask the people what they wish, and whether they will amend the Constitution. For that reason this Federal Judiciary is established in our Constitution. It is essential as a national court, it is essential under the terms of the Constitution, and no man can deny, and no man has denied, that the power to construe the Constitution, to interpret its laws, to preserve what has been described as the just equipoise of the State and the Commonwealth, to preserve individual liberty at the high level of the Constitution, rests in one body only - the High Court of Australia - in the judicial power exercised by the High Court of Australia, by virtue of its appellate jurisdiction. I do not attach the slightest importance to a great deal of the original jurisdiction of which the proposed High Court under this Bill has been shorn. The original jurisdiction which still remains to it is that which is essential to my mind, but the power and the controlling influence of the High Court of Australia, as the embodiment and exponent of the judicial power of the Commonwealth, rests in its appellate jurisdiction. Having been given under the Constitution a Judiciary for this purpose, it is there the balance is held between the States and the Commonwealth, between the citizens and those chosen to conduct public ‘ affairs. What court has been appointed for that purpose? Not the Privy Council. If the Convention had chosen, if the people of Australia had chosen, they might have declared by their Constitution that the Privy Council should be the High Court of Australia.
– God forbid. .
– But they have not done so. They have expressly done the opposite. I ask my honorable friends, because I am now dealing with a practical question as Senator Dobson desired - this is a practical question, the highest of all practical questions - what court has the Constitution declared to be that which is to interpret the Constitution, to interpret the laws of the Commonwealth, and to deal out justice to the citizens of the Commonwealth? The High Court of Australia. Why then are we to abstain from establishing it? What are its purposes and its objects? What is its raison d’?tre ? And first of all what is it under the analogous but less perfect Federal system of the United States. I find that Chancellor Kent, in that masterpiece of his on the Laws and Constitution of ihe United States, says at page 334 -
The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from, the union of these States in one national Government, and they may be considered as requisite to its existence. The judicial power in every Government must be co-extensive with the power of legislation. It follows as a consequence that the Judicial Department of the United States is in the last resort -
As it is with us - the final expositor of the Constitution as to all questions of a judicial nature. Were there no power to interpret, pronounce and execute the law, the Government would perish through its own imbecility -
As ours would perish if a Judiciary were not appointed at some time or other. Later on I shall deal particularly with its appointment now - as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty.
Again, on page 325, and I commend this to the attention of my honorable friends who have apprehensions and doubts upon the subject, he says -
The want of a Federal Judiciary to embrace these important subjects, was once severely felt in the German Confederacy, and disorder, license, and desolation reigned in that unhappy country until the establishment of the Imperial Chamber by the Emperor Maximilian, near the close of the fifteenth century, and that jurisdiction was afterwards the great source of order and tranquility in the Germanic body.
And so it will be with us. We find that only the other day that exceedingly distinguished statesman of the United States, the Ambassador at the Court of St. James,
Mr. Choate, in a most interesting article in the North American Review, said this -
The dual system has worked smoothly and , harmoniously, and the magical force which has kept each power, State and Federal, within itsown limits is the Federal Judiciary.
He points triumphantly to the Federal Judiciary as to the highest point of constructive statesmanship in connexion with their Federation. At page 933 of the Review, it will be found that he says, using language which I have already imperfectly quoted -
The provision that the judicial power created by the people should be the arbiter between the States themselves in all their controversies with each other, marks the highest level ever attained in the progress of representative government.
Does not that apply absolutely to our condition ? Is not our court created by the people ? Is it not established by the people f What right have we in this Parliament, who are merely the agents of the people,, under a delegated authority to transgress the limits of our agency, and undo their work ? What mandate have we ever had given us to’ deal with the appointment of this tribunal ? None whatever. No election would give us that mandate. Some say - “ Wait until the elections take place” in December.” If the people of this country return a majority to this Parliament - supposing this Bill were not passed now - against the appointment of the Judicary, I say that it would be an irregular and unconstitutional way of expressing any change in the will of the people, which is declared by this Constitution, and which they can change only in the way prescribed by the Constitution. I think honorable senators will feel that it is idle to put forward the coming election as a reason why we should wait.
– The Commonwealth Constitution did not say that we should establish the court in the first Parliament.
– The Commonwealth Constitution said certainly that we should establish it the moment Parliament assembled.
– No, it did not.
– My honorable friend, Senator Fraser, differs from me in a very emphatic way.
– With great respect.
– Of course I know that, but while the honorable senator differs from me in a very emphatic way, I believe that, like Senator Dobson, he has an open mind, and I shall show him in a few minutes that he is mistaken. At page 943 of the Review, Mr. Choate says -
The written Constitution-
Honorable senators will bear in mind that ours is a written, rigid Constitution, subject to a particular machinery of amendment - instead of being torn asunder, or left by the way as the nation expanded and new and wholly unexpected conditions arose, has grown with the growth of the nation, so that it still embraces and covers the whole of our vast national life.
That is what we desire for our High Court. We do notdesire that it should be constituted of rigid lawyers uninspired by the spirit of the Constitution, but of men who will develop it as the Constitution was developed in America - who will have regard to the fact that there are expressed powers and implied powers, and to the fact that we are a growing and expanding country, men who will, by the legitimate exercise of the powers of judicial exposition, make this instrument, without amendment, beneficently cover all the advances the Commonwealth may make. To what in America do we owe that marvellous condition of things ? We owe it, according to Mr. Choate, to the wisdom of the framers who put into the Constitution only the fundamental rules and principles, and to the vigorous and masterly manner in which the Supreme Court has exercised its essential and lawful function of construing the Constitution. I think we may very well be led to accept these views as to what the Judiciary will be under our Constitution, by observing the beneficent influence of a similar tribunal in the United States. I believe that our High Court, constituted as it oughtto be, will shine with no less brilliancy, and exercise no less a powerful and beneficent influence on the nation of Australia than has the Supreme Court of the United States exercised upon the destinies of that great country. I have taken the liberty of referring honorable senators to the views of statesmen in the United States as to the principles and operations of the Judiciary there, which has had as much to do with the working of the American Constitution as have the framers of the Constitution themselves. We know that amendments in the American Constitution have been few. Why? We know that the people of America have been rarely agitated in regard to amendments. Why ? How is it that the balance has been so well preserved in that Constitution, which was inaugurated under conditions nothing like so favorable as those which prevailed in the case of Australia?
– It is almost impossible to alter the Constitution of the United States.
– No doubt the difficulties of amendment are greater in the United States than here. But no amendments are necessary where the expansive force of the Constitution, within legitimate limits, is exerted through the calm atmosphere of a judicial tribunal instead of through the tempestuous agitations which must go on throughout the Commonwealth if we adopt the principle of altering the Constitution whenever a change is requiredor any doubt is expressed as to the particular scope of the instrument of government.
– The High Court in America frequently based its decisions on the political colour of parties, and amended the Constitution in that direction.
– My honorable friend is mistaken ; but if he means that the Judges of the United States Court have approached these great constitutional questions, not merely with the mind of the rigid technical lawyer dealing with an ordinary Act of Parliament, but with the mind of the statesman in touch with Federal principles and growth, then I am with him. And that is the kind of court we want here.
– The American Court has been in touch with the political influences of the day.
– Not in touch with the political influences of the day, but in touch with the spirit of the people.
– What is that but political influence ?
– My friend spoke of party influence a moment ago, and that I regard as an imputation on the Supreme Court of America.
– But it is admitted.
– It is not admitted, and there is not a shred of foundation for the statement. It has been recognised by every constitutional writer that the J udges of any High Court, in dealing with a Constitutionand instrument of government - which no one pretends is complete in itself, but which merely lays down broad general principles - must be animated by, in one sense, a far higher and broader apprehension than the mere lawyer who is dealing with an ordinary Act of Parliament. Senator Dobson may think that my views are tinged with the same sentiments that prevailed when the Judiciary Committee of the Convention sat ; and, therefore, I ask him to listen to one or two quotations in order to show that the Federal Judiciary is commended not merely by those who have been actively concerned in Federation, but by those who view it from the outside stand-point of constitutionalism in relation to ‘Federation. I have here an interesting volume by Mr. Bryce entitled Studies in History and Jurisprudence, which was written after what I call the unwise and unwarrantable interference of the Imperial authorities with the appellate scheme in connexion with the J udiciary as established by the people of Australia. This book, therefore, was written in full view of some of the restrictions to which we have had to assent, while retaining the power to settle finally all constitutional questions. I shall ask Senator Dobson whether the quotation which I am about to make does not satisfy him as a practical statesman that theJudiciary ought to be set in motion, or, at any rate, that he ought not to vote against the second reading of this, by which we shall simply affirm the principle of it. Mr. Bryce, at page 512, says -
Broadly speaking, the Australian High Court will have to fill such a place, and discharge such functions as have been filled and discharged in America by that exalted tribunal which Chief Justice John Marshall and other great legal luminaries have mode illustrious. In working out the provisions of the Constitution by an expansive interpretation -
That is statesmanlike - - cautious but large-minded, it may render to Australia services not unworthy to be compared with those which America has gratefully recognised.
– If there be only one important case a year, where is the need of the court ?
– There will be a great many more cases than one.
– Is the principle of establishing this Judiciary under the Constitution to be got rid of by measuring the amount of business it will have to do ? Certainly not. Senator Dobson’s reason for opposing the creation of a High Court might apply until doomsday. How many cases does the honorable senator want before he would establish the court ? How many cases do the people say would justify a High Court ?
– We have done right in delaying the creation of the court for the last two years.
SenatorSir JOSIAH SYMON.- Nothing of the kind.
– I differ from the honorable and learned senator.
SenatorSir JOSIAH SYMON. - I recognise that, but I am dealing with the honorable senator’s reasonsfor opposing the Bill. We are not speaking of the Privy Council, but of the contemplated High Court of Australia. Mr. Higgins was a member of the Judiciary Committee of the Convention, and in Adelaide was one of the strongest advocates for the Judiciary and for the total cessation of all power of appeal to the Privy Council. He described the proposed High Court as destined to be the “ arbiter between the States and the Commonwealth,” although now he says it is absurd to speak of such a court safeguarding the Constitution. But I prefer Mr. Higgins in his better and more regenerate days, when his view was exactly that which all of us took, and which is held by every constitutional writer who has dealt with the subject. We never dreamt of making the Privy Council the High Court of Australia.
– Mr. Higgins has had time to reconsider the matter.
– I am willing to admit that, and there may be many reasons for the reconsideration. We know that Kyabram is abroad, and potent throughout the land.
– That is no argument in favour of a High Court.
– I am answering Senator Styles’ remark that Mr. Higgins may have changed his mind, as we all are entitled to do ; and I am pointing out that inVictoria there is a condition of things which has been very conspicuous.
– That does not influence Mr. Higgins one jot.
– I am putting my view as to the condition of things which exists in Victoria and fills honorable senators with economical arguments, of which we have heard so much. As I entered the chamber, I heard Senator Styles referring to Professor Harrison Moore. And, though I did not catch the quotation, I have here the book written by that gentleman, who, as a professor, is, of course, outside the ambits of active political life.
– Senator Styles does not now believe in Professor Harrison Moore.
– I have lost a great deal of confidence in him, because of his reflections on the Judges of the States Supreme Courts.
– I do not think that Professor Harrison Moore reflected on the States Judges. What Professor Harrison Moore says, at page 232 of his book, is -
The objects of the national Judiciary in the Constitution of the United States - objects of paramount importance, and fundamental to free government - are stated by Story to be, first a due execution of the powers of government, and secondly, a uniformity in the interpretation and operation of those powers, and of the laws enacted in pursuance of them ; and to the attainment of these ends, the national Judiciary ought to possess powers co extensive with those of the legislative department, and must be so organized us to carry into complete effect all the purposes of its establishment. These objects are effected in the Commonwealth Constitution.
The Privy Council have nothing to do with it.
Judicial power is an essential element in government, and in the administration of law ; and in a composite government with its inevitable conflicts-
That is what our system of government is. - there must be some provision which shall insure finality, both in enforcement and in interpretation of the law. This practically implies a central judicature, which shall be supreme, for the Courts of the States, whatever their learning, wisdom, and good faith, however free-
I suppose that this is the part to which Senator Styles takes exception - - from all imputationof bias, must, nevertheless differ so as to make uniformity impossible, while the mere co-ordination of a Federal and State Judiciary would simply add to the confusion of authority.
If we mix up our States J udges with the Commonwealth Courts, we shall simply add to the confusion of authority. On the next page Professor Moore says -
The Commonwealth Judiciary is not the mere auxiliary of the Parliament and the Executive Government ; it has, like them, an independent duty but only within its own sphere of judicial power, to uphold and maintain the Constitution against all attack, whether from the Commonwealth Executive or Legislature or the State Governments.
Again he says -
In the Commonwealth, as in the United States, consistently with the princi ple of State autonomy, the States continue to control their Judiciary, and hence it is essential that the Commonwealth powers should be enforced and guarded by an independent Judiciary.
This is really a practical question. We are told by the Constitution that there must be an independent Judiciary. We are told that it must at least take the form of a High Court, with a controlling appellate jurisdiction.
– I am afraid that my honorable and learned friend has not seen Professor Harrison Moore’s prophecy thatthe creation of the High Court would be delayed for some time.
– No; but in the Quarterly Review I have seen an article which, I believe, was written by Professor Harrison. Moore. In his first contribution to this constitutional discussion, in October, 1S99, he stated in the most emphatic, plain, and precise manner that a Judiciary was essential.
– Everybody says that.
– Oh, no; I am dealing now with a practical question. If it is essential then there is no excuse for not launching it. In 1899 Professor Harrison Moore said -
In Canada the whole Judiciary forms part of the Dominion, and not the provincial system. If, however, the States are to retain the control of their Judiciary, the powers of the Commonwealth must be guarded by an independent Judiciary.
Is not that what the people have sent us here to do - to organize this Judiciary which is the only power in the Commonwealth to guard the Constitution? He goes on to say -
The Australian Constitution accordingly vests the judicial power of the Commonwealth in a Federal Supreme Court, to be called the High Court of Australia, and such other courts as Parliament may create.
It is not a question of whether there are ten or 10,000 cases. What moredoes he say? -
The courts, and especially the High Court, are thus the guardians of the Constitution.
But Senator Dobson, a practical man, says - “ I shall have no guardian of the Constitution.”
– He does not say that.
– He says - “I shall not have it to-day.”
– He does not want it to-day.
– When does he want it t
– Next year.
– Next year ! The people said that they wanted it two years ago.
– I do not see why my honorable friends should have it next year.
– What will they say at the end of next year 1
– They may say that they will wait a little longer. We know how disastrous an argument of that sort is. I read that quotation merely to show the development of Professor Harrison Moore. Then, in 1902, came his book, 2’lie. Commonwealth of Australia, in which he emphasized in scarcely less plain, clear, and capable language, the same doctrines, with a little more elaboration of phrase. And this year, when the matter is discussed in the newspapers - in Victoria, as much as in any other Seate and a question of economy has arisen, writing as a thoughtful man may do - a philosopher rather than a practical statesman - he contributes to the Annals qf tlie American Academy qf Political and Social Science an article in which he suggests the possibility of the creation of the High Court being delayed for the present.
– A sensible man.
– And he gives some of the reasons why.
– I know ; but really my honorable and learned friend is doing an injustice to the professor in reminding us that, affected by his environment, and giving expression to the idea which he thinks is prevalent - that the creation of the High Court will be delayed - he does an injustice to himself. He falls away from those considered opinions which are absolutely unassailable, expressed and held for two years, and he backslides to the extent of falling in so far with what he thinks - mistakenly, I believe - is the prevalent opinion in Victoria..
– My honorable and learned friend is doing an injustice to him by suggesting that he, a constitutional writer, is influenced by the demand for retrenchment.
– Of course he is influenced. He has not changed his opinion on the constitutional question. He does not approve of this postponement ; he simply gives expression to what he believes is the prevailing sentiment, as to which I think he is mistaken. These authorities show that in our Constition, more so even than in that of the United States, the judicial power is the keystone of the Federal arch. It is the pivot on which the whole thing turns. It was put in the Constitution for that purpose. It was put in because, as it has been expressed, it was the citadel at once of public justice, public security, and individual freedom ; it was the balance-wheel of the Constitution. We had no right, as a Parliament, to delay as long as we have, or to take the legislative steps which we have taken in other directions until this balancewheel was assured, so that in case of emergency or difficulty everything might proceed harmoniously. Why should we not do what the Constitution prescribes 1 It has surrounded the High Court with every safeguard for its integrity, with every condition necessary to secure its independence, with every condition- required to keep it free from the domination of Parliament. Why should we not launch it ? Why should not thepeople be entitled to say - “ Whatever we may think of lawyers’ views, we put in the Judiciary as part of the three-fold machine, and you have postponed carrying our behest into effect.” My .honorable friends ask, why should the High Court be created at once 1 I answer that the Constitution contemplated that it should be established at once.
– It should have said so..
– Not at all. If my honorable friend tells his servant to go and put the horse in the buggy, does he expect him to wait until next day ?
– Very often I fix thehour.
– Not always. If my honorable friend in that commanding voice of his says - “ Look here, Tom, put my horse in the buggy.” What does he mean 1 He means - “ Do it at once.”
– No ; I ma,y mean that he should do it at two o’clock.
– When we say to a man “ Go,” he goeth and when we say “ Come,” he cometh. It is for those who wish to delay the erection of the High Court to say for how long it is to be postponed, and to point to any words in the Constitution authorizing postponement. In its form the Constitution is an Imperial Act, but for its permanence and efficiency it has a far higher sanction than that of the Imperial Parliament. It is the enactment of the people of Australia. It is binding on the King, the Imperial Parliament, the States and the people of this country ; and no Imperial Parliament, and .no King dare alter one line of the Constitution without the consent of the people of Australia. When honorable senators say to me that the Constitution simply gave an order - that the people of Australia by this enactment gave an order to have a thing done-
– They ordered a time for a uniform Tariff to come into operation, a time for the bookkeeping system to cease, and a time for the special Tariff for Western Australia to lapse.
– My honorable friend is reminding me of something with which lam perfectly acquainted, but which has nothing to do with this question. The Tariff is not a part of the Constitution.
– Inter-State free-trade no part of the Constitution ! Senator Sir JOSIAH SYMON.- It was one of the chief motives, but it is not a part of the Constitution, as my “honorable friends all admit that the Judiciary is. They simply say - “Let us put off until to-morrow what we ought to do to-day.” The Judiciary Committee of the Convention of 1891, of which the President was a member, reported for the establishment of the Federal High Court by the Constitution in the same language as we did in 1897 -
The Judicial power of the Union shall be vested in one High Court.
That was imperative - that was immediate. But the Convention did not carry out the report. It knew perfectly well that it was imperative, but in partial analogy to the Canadian Constitution, it provided in the Constitution that -
The Parliament of the Commonwealth shall have power to establish a court, which shall be called the Supreme Court of Australia.
Does not that illustrate the difference 1 In that respect the Constitution Bill of 1891 was a confused piece of legislation ; it was neither one thing nor the other. If it had been enacted in the present Constitution that the Parliament should have the power to- establish a High Court it might have done just as it pleased. The Judiciary Committee of the Convention of 1897 struck out of the ‘Bill of 1891 the words- “ the Parliament shall have power to establish a Supreme Court,” and going back tothe report of the J Judiciary Committee of 1891 and to the American Constitution, it said that a Judiciary should be established by the Constitution.
The J Judicial power of the Commonwealth shall be vested in a Federal Supreme Court.
– My honorable and learned friend is forgetting these words in section 71 -
And in such other Federal Courts as the Parliament creates, and in such other courts as it invests with Federal jurisdiction.
– No. That shows the exact difference. The Constitution vests the judicial power in a Federal Supreme Court, to be called the High Court, but in no other court. Parliament had no power to create a Federal High Court. It was created by the Constitution. Other courts Parliament may bring into existence.
– The judicial power is. vested in other courts.
– By the Constitution it is vested .in the High Court alone.
– Parliament has conferred jurisdiction upon other courts. .
– Is it. not a fact that the Constitution has created the Federal High Court ? Is it not a fact that the Constitution has not created any other .court? Has not the Constitution given Parliament power to create thoseother courts as it pleases ? Is it not a fact that the Constitution has given Parliament power to invest other courts with Federal jurisdiction if it pleases ? If Parliament does not create other courts, and does not invest other courts with Federal jurisdiction, does not the whole power vest in the Federal High Court ?
– We have an option.
– Wehave an option to make an addition, but not. to make a substitution. ‘Our only option is to add to the High Court.
– We have an option tocreate a temporary court.
– Where does the Constitution say that we have power to create a temporary court?
– We are now acting under that very section.
-In the Act to which Senator Fraser refers we have merely conferred Federal jurisdiction temporarily ; but we have limited the right of appeal to the High Court. In that temporary Act this Parliament has expressly said that the High Court is essential before there can be an appeal from State Courts exercising Federal jurisdiction. My honorable friends opposite are getting more and more tied up in a knot over these suggestions to evade their constitutional duty.
– Parliament has exercised part of it’s duty by giving Federal jurisdiction:
– But my honorable and learned friend has admitted that the High Court must be organized Parliament is not doing its duty in refraining from clothing the High Court with powers which will enable it to exercise its functions. It is urged that we should delay. The United States entered upon its career on the 30th April, 1789. Its Judges were appointed before the Judiciary Act was passed by Congress. In the Convention from which our Constitution emanated the same course was advised. The question was debated for a considerable time. The number of Judges was cut down in the Mebourne session from five to three, and it was thought unadvisable thatthe Executive should appoint Judges until Parliament decided whether the number should be restored to five, or left at three. What does that indicate ? It indicates that here, as in the United States, it was contemplated that the High Court should be brought into existence at once. In the United States a J udiciary Bill was carried, and became law within six months of the establishment of union. It was amongst the first Acts passed by Congress.
– It was necessary to their position.
– It was no more necessary to their position than it is to ours, because there is no tribunal in existence which can determine constitutional disputes between States and between States and the Commonwealth at this moment.
– We have gone along for 70 or 80 years without these disputes.
– But my honorable friend does not seem to apprehend that he now belongs to a Federal Union.
– Disputes are not likely to arise.
– I cannot answer an argument like that. From the clearest sky a squall may come down suddenly - a bolt from the blue. We may have a constitutional dispute at any moment. Senator Fraser wants to wait until many disputes have arisen? How many? And when they do arise are the parties to wait until Parliament sets up the High Court?
– Even if they did arise the parties could wait for a week or two.
– They have to wait long enough when cases go to the Privy Council.
– That shows the impotency of the tribunal across the seas. It has been said that this provision of the Constitution is not what is called mandatory. A singular reason for that was given by an honorable and learned member of the Judiciary Committee. He said that it was not mandatory, because you could not get a mandamus to compel Parliament to carry this section of the Constitution into effect. That would have been a very good argument to address to a bench of magistrates or a licensing court, but as addressed to the High Court of Parliament it seems to me to have been a kind of affront. That the provision is mandatory is shown by a quotation which I will read from Chancellor Kent’s book, in which he says -
The Constitution (a) declares that “the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish . “ In this respect it is mandatory upon the Legislature to establish courts of justice commensurate with the judicial power of the Union.
And again -
Congress was bound to vest the whole judicial power in an original or appellate form in the Court provided by the Constitution.
Surely that is of more value than the statement of an opposing lawyer who says that the section is not mandatory, because it could not be enforced by a mandamus. Story in his book on the Constitution says that Congress had no discretion as to the appointment of the Federal Courts. The duty of Congress is as ours is - because the language of our Constitution is advisedly the same as the language of the American Constitution - quite imperative. “Was that contemplated by the Convention ? Undoubtedly it was. Mr. “Wise, the present Attorney-General of New South Wales, was. a member of the Judiciary Committee of the Convention. What did he say ? I will read his words. At the Adelaide Convention he said -
The first act of Parliament must be to pass a Judicial^’ Act.
The whole Convention” understood it so. Mr. Wise merely gave expression to the deliberate policy and intention of the Convention with regard to the Judiciary. Then we have this fact - that not merely can there be. no appeal upon any constitutional question until the High Court is established, but there can be no settlement of any constitutional question. If the Inter-State Commission is established there can be no appeal unless the High Court is established.
– There is no necessity to hasten that either.
– But suppose it is established ?
– It will be a monstrous shame if it is.
– But under the Constitution it may be established, and there can be no appeal except to the High Court. My honorable friends opposite admit that the High Court is established by the Constitution, and that the section is unchangeable except by the people. But they do not seem to recognise that if we delay the necessary action we shall be just as much repealing the wish of the people as if we do not establish the High Court at all. How long is the appointment to be postponed? Senator Fraser says until next Parliament. Is that the limit of postponement to which Senator Dobson would agree?
– It all depends .on how much business there is to be done. .
– He wants it postponed until there is enough business to keep the court fully employed. How many cases would satisfy him? May not questions arise any day or at any moment? May there not be disputes in connexion with any Department of the Government or any action of the Executive officers of the Government? Every day every officer of the Commonwealth, and every Minister is subject to the Constitution. Who has to determine that a particular act which is performed is constitutional and lawful ? If an officer makes a mistake, who is to decide unless the High Court is constituted ? If it is a question affecting the whole of the States inter se, there are no means whatever of getting the matter adjusted. Reference has been made to Canada. The position of Canada is entirely different from ours. In the first place Canada is not a true Federation. The people of Australia would have none of the Canadian system.
– Perhaps the Canadians, would not like ours.
– The Canadian people are satisfied with their system, but it is on different lines from ours. For all I know, it may be better than ours, but it is not a true Federal system. Here we have a sovereign Commonwealth and sovereign States. In Canada the Judgesof the provinces are appointed and paid by the Dominion Government. There there is a system of national courts from end to end. There are really no State Courts. They are all Dominion Courts in Canada, therefore, there is no need for such a Federal Judiciary as we have under our Constitution. What is imperative for us, is unnecessary in Canada. In Canada there is one State system of Judicature. Here the Statesappoint, pay, and Control their own Judicature. In Canada the whole of the jurisdiction of the provincial courts is controlled and paid for by the Dominion Government. Here it is suggested that our High Court should consist of borrowed Judges appointed and paid by the States. In Canada the Dominion Government has power to veto every State Act of Parliament. We would have none of that. But not only so, it is the Dominion Government that appoints the Lieutenant-Governors of theProvinces, and the Lieutenant-Governors also have a veto. We have nothing of thekind. The only thing we have under our Constitution to represent all the control which is given in all these various ways is our Federal High Court. Then it is said that we have these appeals to the Privy Council. Well, we have no appeals to thePrivy Council, in my opinion, unless they pass through the High Court. The view which was taken with regard to appeals directsome time ago appears to me one which will be found erroneous in practice, though I may be mistaken in that. When we have a Federal High Court, I hope all appeals from States Courts will pass through the Federal High Court before they go to the Privy Council, if they go there at all. But in addition to that, we are going to give Federal jurisdiction to the States Courts. That was introduced by the Judiciary Committee with a view to saving the expense of all the network of Federal Courts which exist in the United States. Do honorable senators mean to tell me that these appeals will go to the Privy Council direct? Not a bit of it. It would be making a perfect farce of the Constitution to do that.
– Under the Bill they cannot. Wherever there is Federal jurisdiction the appeal must be to the High Court.
– I had not noticed that, but I noticed that there was a discussion in another place as to whether we could make a provision of that kind. Undoubtedly we can, because a State Court stands in a double position under this Judiciary Bill. It has its concurrent jurisdiction, which it has had heretofore, subject to the control of the High Court. Then it becomes a Federal Court the moment it is clothed with Federal jurisdiction. It will be in that sense an inferior court of the Federal system as regards its Federal jurisdiction, and we have most ample power to bring such court under our own tribunal, the Commonwealth High Court, constituted as the people willed it should be, to determine appeals from courts exercising Federal jurisdiction.
– Does the honorable and learned senator say that all litigants must go through the Federal High Court, and will not have the option to appeal to the Privy Council?
– I do not say anything of the sort. What I said was that, as to Federal matters, all matters affecting the Constitution, matters that will come within the Federal jurisdiction which is conferred upon States Courts, which they have not got now, they must be subject to the supervision and control of the High Court.
– But the honorable and learned senator argued just now that no appeals would in future go to the Privy Council.
– I said nothing of the kind, and if the honorable, and learned senator understood that, he was mistaken.
– The honorable and learned senator was referring to clause 40.
– I repeat what I said, and it was this : There will be two functions of the States Courts : they will continue to exercise their jurisdiction as States Courts, and where we extend to them Federal jurisdiction, they will be Federal Courts, and their decisions will be subject to review by the High Court.
– Only under clause 40.
– I am not dealing with clause 40 or clause 50 - I am dealing with the principle. I say we have no power under our Constitution, except of minimizing, subject to the assent of His Majesty, the cases in which appeal? may be sought. But I also wish it to be understood that I disagree with those who think that in the case of the States Supreme Courts not exercising Federal jurisdiction, but clothed with their ordinary jurisdiction, and exercising the concurrent jurisdiction which they exercise now, there may be an appeal to the Privy Council, and also an appeal to the High Court. That argument has been used in ordertosuggestthat wemayhave a plaintiff appealing to the Privy Council and a defendant appealing to the High Court. Such a confusion, in my opinion, is never likely to arise, because, in the first place, the practice of the Privy Council always has been to abstain from encouraging appeals to itself until every other appeal in the colony from which the appeal comes is exhausted. I believe that that practice will prevail.
– It is a prerogative appeal.
– It may not prevail, but all that is beside the question. All I desire to say is that when objection is taken to the right of appeal from States Courts to the Privy Council being withdrawn, my view of the effect of sections 73 and 74of the Constitution is that they will be found to work so that the High Court will entertain these appeals as well as appeals from its own inferior courts - that is, from the States Courts - when exercising Federal jurisdiction. Just one word from the point of view of economy. I do not disparage economy. It is just and reasonable in itself ; but I take Senator Dobson’s view that there is no Department in the public service in connexion with this Constitution to which it may be applied with less wisdom than the establishment of our Federal Judicature. The danger, very often, in yielding to a cry for economy is that men, as we all do sometimes, lose their heads, and allow themselves to be carried away to economize in the wrong direction, or in reference to the wrong object. Something, it is felt, must be thrown to the wolves, and we must throw the nearest thing which is at hand. We do not, perhaps, give the matter that care and attention which we ought. I remember an an old school story about a man who adopted economy in (he feeding of his horses.’ He succeeded very well, until he reduced them to living on one straw a day, and then they died. Very often the spirit of economy becomes a disease, and I appeal to Senator Dobson, as a practical man, to consider whether these doctrines of economy may not be driven to death. I ask the honorable and learned senator to be guided by the views which I have read from his own speech at the Convention, and to adopt the course he there laid down, rather than the one which seems to influence him now: I am sure that, if he does so, it will give him more satisfaction afterwards.
– Is there not a middle course between gluttony and the one straw?
– I do not desire that my honorable and learned friend should be a glutton, and I certainly <lo not desire that he should be compelled to live on one straw. I am quite satisfied that the people of Australia knew, because they were told so at the time of the referendum, that this Federal Judicature was going to cost in round figures, £24,000 a year. And I do not think that my honorable and learned friend, Senator Dobson - putting the matter from a practical point of view - is likely to lose his neat for Tasmania if it is known that he is prepared to support the expenditure of £6,000 more on the High Court.
– We have saved £50,000 by the delay.
– I do not agree that it is right that we should have delayed at all. But if Senator Dobson will now agree to the establishment of the High Court, I shall be with him in that respect, and the people of Tasmania may credit the honorable and learned senator with having saved £60,000 during the last two years, and that will be an ample equivalent for his being prepared to vote for the extravagance of £6,000 more now. I find that when at the Convention Mr. Carruthers made a very severe attack upon the probable expense of the High Court, and stated that the Federal Judiciary of five Judges was not at all popular, my honorable and learned friend, Mr. Glynn, was so indignant at such a suggestion, that, betrayed from his usual calm demeanour, he called out in interjection - “It is in this colony,” and the honorable and learned gentleman referred to South Australia.
– The petition we have states that it is not.
– I do not desire to enter into the genesis of that petition. Those who sign it propose a hybrid and expensive system of a court of three Chief Justices of States Supreme Courts, a system which would hold Australia up to the scorn and contempt of every civilized country. I find also that Mr. Higgins, at the Melbourne Session of the Convention,- when the appeal of the Privy Council was interfered with, said - “ We must have no cheeseparing.” I was guided by my honorable and learned friends, Senator Dobson and Messrs. Glynn and Higgins, in the old days when we were trying to do our very best for the people of this country, and in this respect I am guided by them now. I say “No cheeseparing.”
– We were booming then.
– First settle the court, and then be economical. We are dealing now with the second reading of this measure, and I ask Senator Dobson to show his devotion to the principle, that is all. He may then be as economical as he pleases, so long as we have a tribunal worthy of the nation, and efficient for the upright and independent administration of justice. As to its work, that has been sufficiently dealt with, but I find that while we have the little dispute to which Senator Styles alluded in connexion with territory, we have also a dispute arising now in connexion with the Murray River. A great meeting took place on the 20th of this month, that is only a few days ago,, presided over by the President of the River Murray League, and amongst other resolutions passed by that meeting there was this -
That this League urges Parliament -
That is the South Australian State Parliament - to direct the immediate institution of legal proceedings for the purpose of obtaining a high judicial exposition of the powers and rights of the respective States, in respect of the River Murray and its tributaries.
Where is that going to be tried ? What tribunal is going to deal with that question?
– The Inter-State Commission.
– I do not desire to express any opinion on the question myself, one way or the other.
Senatorfraser. - They are crazy on the water business in South Australia.
– They have water on the brain.
– They have not got it anywhere, and crazy or not, they are determined to give effect to their views by instituting legal proceedings. There is only one court which can deal with that question in this country, which is a dispute between three States inter sc. It may depend on the Constitution, or upon many questions, but it is a dispute between States, and I say that if we abstain from organizing the High Court we shall be depriving the State of South Australia and the other States of an opportunity of having that question settled. The people have declared that these constitutional questions are to be settled here, and it is our duty to carry out that behest and provide the necessary machinery. It has been said that there will be no work for the High Court, but I shall, without comment, enumerate a few of the cases which have arisen. A little time ago there was an application for a mandamus in New South Wales, but Mr. Justice Owen said that an application of the kind could only be granted by the Federal High Court.
– That case has been settled because the books have been given back.
– What books ?
– The books in regard to which the application for a mandamus was made.
– What has that to do with the question? The probability is that the books were given back, because there was no court to deal with the case.
– There was no case to try even if there had been a court.
– But there was a case, and the parties concerned were put to a lot of expense. I have not the pleasure of the personal acquaintance of Mr. Justice Owen, but I believe him to be one of the foremost J udges in the country.
– Hear, hear !
– I believe Mr. Justice Owen to be a great Judge from the language he used when he distinctly told the parties that they must have a High Court - that people seemed to forget that a High Court is as essential as. though the Commonwealth were territorially a different country. Then there was the Tasmanian dispute.
– About the Customs?
– That is an important case, I admit, but it can wait - the money is there.
– And what about the imposition of State taxation on Commonwealth receipts ?
– I am appealing to Senator Dobson as a practical man, who has to go to his constituents in December. Tasmania is either being kept out of her money, or has it by the grace and favour of the Commonwealth, simply because the constitutional question which depends absolutely on the construction of two sections of the Constitution cannot be settled in the absence of a High Court. The amount involved is, I believe, £10,000 or £12,000.
– It is £11,000.
– Senator Dobson said there were only two cases for the High Court, but I have more here. What has become of the great constitutional question as to the power of the Commonwealth to pass laws declaring illegal and void the pursuit of a business legalized by the State laws of Tasmania ?
– That has settled itself.
– By an evasion of the Commonwealth law.
– And settled bettor than the Judges could settle it.
– Senator Fraser evidently thinks that the less one goes to law the better ; and I think so too. But that is a constitutional dispute, and I am not aware that it has been settled to the satisfaction of the people. And then there is a dispute as to the constitutional competency of the State of South Australia to deal with questions of difference arising between foreign nations under treaties and the State. Who is to settle the Vondel ease 1
– Mr. Chamberlain.
– If Senator Dobson reads the newspapers he must know that Mr. Chamberlain says that this is a case which must be settled by the Australian High Court.
– Mr. Chamberlain would like to get rid of the trouble.
- Mr. Chamberlain is not our dictator. I should like to see Mr. Chamberlain trying to settle the constitutional disputes of this country ! I am afraid, however, that Mr. Chamberlain has enough to do at present with preferential trade. Then there are questions in regard to the construction of the Customs Act. But I put all that aside and appeal to honorable senators on higher grounds.
– Of course, the honorable and learned senator puts aside the case of Kingston v. Gadd, which has been settled very satisfactorily without a High Court.
– That was not a case which involved any question of the Constitution. That case simply affects, to Some extent, international law and the Imperial Merchant Shipping Act, and also the rights of the Legislature, as an ordinary Parliament, with regard to, the breaking of or interfering with seals placed on a certain part of the ship within our territorial boundaries, and broken before arrival at another port.
– The honorable and learned senator has shown one month’s work for two and a half years.
– Senator Dobson will find that the conditions here will be far more fertile of litigation than in the United States. o
– I doubt that.
– And I. shall tell the honorable senator the reason why All the States here are self-governing with Parliaments of their own, and each Parliament is anxious, and ought to be anxious, to magnify its powers and its jurisdiction.
The States Parliaments and Executives during the past two years have resisted any restraint.
– Very properly so, when they are encroached on.
– I wish Senator Fraser would not interrupt in that loud way ; his interjections are very disconcerting, and, “ like the flowers that bloom in the spring,” they have “nothing to do with the case.” We cannot have observed current events without noticing that the States Parliaments and States Executives have resisted restraint which it may have been sought to impose on them.
– They have been restive under what they believed to be encroachments, and anxious to assert themselves ; they have been morbidly sensitive and jealous as to interference by what they look on as an outside Government, namely, the Government of the Commonwealth.
– The States Governments are very liberal to us.
– We must remember that at the present moment the Parliaments of New South W ales and Victoria are each numerically stronger than that of the Commonwealth ; and is it not obvious, therefore, that the conditions are infinitely more fertile and more likely .to produce disputes, claims and encroachments, than they were in the United States of America, where there was no parliamentary self-government before the Union ?
– I do not think so ; I cannot conceive it possible.
– Then I am afraid Senator Dobson is not a practical man, and is not alive to the conditions of the people amongst whom he lives and moves, and has his being. I am glad to find that Senator Walker, as one of the laymen of the Convention, is consistent with the views which were then unanimously adopted. Senator Walker in a letter to the press wrote -
The probability is that after the establishment of the High Court of Australia appeal to the Privy Council will be less and less availed of.
– That depends on how the High Court behaves itself.
– Of course ; if we constitute a court which will inspire the people with contempt, then, of course, we shall have to amend the
Constitution ; but that is a position I do not contemplate for a moment. I find that Mr. Higgins, at the Melbourne Convention, said -
There is far more likelihood of a large business foi- the High Court here than in the United States.
Mr. Glynn took the same view as Mr. Higgins did. I venture to think that Senator Dobson, as a practical man, will, on reflection, agree that there will be plenty of business for the High Court.
– 1 hope not.
– I would rather that the very existence of a court might tend to make the Parliaments and the Executives of the States a little more careful about encroachments, in order to avoid the necessity of going before any tribunal. As to the number of Judges, I agree with Senator Dobson that there ought to be five. There is a numerical strength as well as an intellectual strength. We might get one Judge strong and powerful enough to discharge the business of the court; but the court will be exposed to criticism, and at the present moment there is jealousy in regard to it. Judges are human, and therefore I say that we ought to have a numerical strength as well as an intellectual strength. I understand that Senator Keating referred to the number of Judges in America and to an intention there is of increasing them. I should like to tell honorable senators that when the United States were launched . on their national career of union in 1789 with a population less than ours, and with, as Mr. Higgins and others admit, less possibilities of work than are presented to our High Court, five Judges and a Chief Justice were appointed. And not only so, but a large number of other courts were constituted at the same time for the purpose of doing work under the Federal Constitution. I shall be no party to any method of having Judges on loan. I have heard of Justices in eyre, but never of Justices on hire. The London Times, in speaking the other day of the absurd anomaly of having an Australian Judge on the Privy Council, who was never there to discharge his duties, said that no man can serve two masters ; and to appoint three of the States Chief Justices to temporarily perform the functions of the High Court would be ludicrous. Why should we have to go to the States 1 We are the superior governing body, and we ought not to have to prostrate ourselves at the feet of the States, in order to have Commonwealth justice administered. We must also remember that the States Chief. Justices are Lieutenant-Governors. I entertain the very strongest view that it is an anomaly and blemish on the judicial office to accept an executive office, such as that of a Lieutenant-Governor. If we appoint the Chief Justices of the States to the Federal High Court, we shall appoint men who are holders of a high executive office in a State, and if there is a possibility in surroundings of influence or bias - I do not use the words in their ordinary sense-
– Unconscious bias.
– If there is any possibility of unconscious inclinations, we shall intensify the tendency tenfold by placing an executive officer of a State on the highest judicial tribunal of the Commonwealth. I hope that we shall not, under this Bill or any other, allow a Judge of the High Court Bench to occupy an executive office of that description, and if there is no provision in the Bill to exclude the Judges from such a position, I shall seek in Committee to move an amendment in that direction, because it interferes with the performance of judicial duty. It is an anomalous position. It is introducing the Executive into the J Judicary. It is putting a man who ought to be outside the pale of social functions, public demonstrations,’ and all that sort of thing, in the midst of them. It is placing a man in a position in which he is bound to exercise hospitality, to discriminate between friends and foes, to take sides in social cliques and jealousies, to show favour to one and disfavour to another. I have always understood that the dignity and integrity of a Judge, and his influence in the community, do not rest on his kitchen or his hospitality, but on the dignity of his high office and the single-minded and assiduous discharge of his political duties without fear or favour to any of mankind. That is an additional reason, and I think it is a final reason to honorable senators. There is another reason so far as regards the Judges themselves. They are estimable and capable men. I do not know any Benches which are better manned than the State Benches of Australia within the limits of their jurisdiction. If you find the right men, choose your Federal Judges if you please from amongst them or from amongst the Bar or from the Parliament, but it is no reason for attempting to make the States Chief Justices do double duty. It is no reason for placing them in the anomalous and uncomfortable position of being the paid servant of one State appointed to dispense justice in the High Court of another self-governing community. But besides that I do not want these gentlemen, however estimable and capable, who have grown up during the best years of their lives in the service of the States, to have imposed upon them new duties, to be transported into new and unaccustomed fields of intellectual activity - it may be into a field towards which some of them may not have had very friendly leanings, being imbued with the sympathies and limitations of the State Bench as contrasted with the higher and wider tribunal under the Federal Constitution. Is it fair to ask any men, ‘who it may be, have been strenuous, and no doubt conscientious, in their resistance to the scope and the jurisdiction of the national tribunal, to assume the position, and exercise and enlarge judicial powers which they may have declared that tribunal should never possess ? Not only so, but in sympathy with the growth of the Commonwealth you are to ask them to enlarge a jurisdiction which they may have already declared to be too large - to make co-equal with the Privy Council, if not supreme, that jurisdiction and judicial power which they may have declared should be in all respects and in all cases less and subordinate. How could we put men - our’ worst enemies - in such a position as that ? It has been interjected that the Judges of the Supreme Court of the United States are influenced by the prevailing condition of things. What I desire to see on any Bench which may be created from the Commonwealth is an expansiveness and a liberalness of mind rising above and beyond the ordinary rut - I speak with the utmost respect - of the interpretation of. local statutes. But I agree in this respect with what Professor Harrison Moore said -
The absence of political experience, and even of anything like a keen interest in and acquaintance with political affairs, must have its effect in the determination of causes in which political results are a factor in the determination of legal issues.
I should not contemplate with any particular satisfaction a High Court which would disregard those questions of
State and Commonwealth, the expansion of the people, the growth of our national sentiment and development, in saying what may or may not come within the ambit of the Constitution, according to ‘ its just interpretation. Proud as we are to be citizens of this Commonwealth, to us individually it may be a matter of little moment whether this Bill passes or not: but to the Commonwealth itself it is of supreme concern. Upon it depends the freedom, the expansion and - that which I put as high as any other element - the harmony of our national life - the success or failure of our Union. With Senator Stewart, I would rather see no court at all, a condition of constitutional anarchy which would compel men to do what the Constitution bids them do, than a court which would inspire us with contempt. We want a court, but. one worthy of the Commonwealth. We want a tribunal stately in intellect, stately in numbers, stately in its march towards the solution of the great questions with which it will have to deal. It need have no guards, palaces, or treasures. It need possess ho claim to dignity except that which arises from the truth and wis- , dom of its judgments. It need have nosplendour but the publicity of its judgments and their essential justice. Such a court as that will, to my mind, be in the noblest sense the Minister of a free people to do justice, uphold their freedom, and preserve the ark of the Constitution inviolate. It will be sustained by the confidence and respect of the nation. It will be inspired by a sense of responsibility, by the magnitude of its duties, and it will be so armed in integrity, so secure in its independence that it shall be said with truth of each member’ of the Bench - “ There is no human being, no Ministry, whose smile or frown, whose favour or disfavour, shall make his pulse beat one atom faster, or move by one hair’s breadth the even equipoise of the scales of justice.” My faith is that this will be such a court that when these early years pass away and we pass away with them, there will be nopart in the process of launching this Constitution of which our children will be more proud than that of bringing this great court into operation - a sanctuary to which States and people, poor and rich, may repair for that justice which it is the highest attribute of any civilized country to render to its citizens.
– I desire, by way of explanation, to thank Senator Styles for drawing ray attention to a mistake which I made last night. I said that, presuming that £20,000 was the annual cost of the High Court, it would amount to f d. per head of the population. I find that I was wrong. The figure should have been l$d. per head. Therefore the sum which I said would have to be paid by the whole Senate collectively, instead of being 2s. 3d., would be 4s.
Debate (on motion by Senator Harney) adjourned.
Royal assent reported.
Royal assent reported.
Senate adjourned at 3.44 p.m.
Cite as: Australia, Senate, Debates, 31 July 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030731_senate_1_15/>.