1st Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
Senator Lt.-Col. NEILD presented a petition from 122 electors of WaggaWagga, in New South Wales, praying the Senate to prohibit the importation, sate, and manufacture of liquors in British New Guinea.
Senator Sir J. H. SYMON presented a similar petition from 84 electors of South Australia.
Senator BARRETT presented a similar petition from 79 electors of Victoria.
Senator O’CONNOR presented a similar petition from 131 electors of New South Wales.
Senator DOBSON presented a similar petition from 45 electors of Tasmania.
SenatorO’KEEFE presented a similar petition from 42 electors of Tasmania.
Senator CHARLESTON presented a similar petition from 136 electors of South Australia.
Senator McGREGOR presented a similar petition from 97 electors of South Australia.
Senator DRAKE laid upon the table the following papers : -
Arrivals and departures : Victoria.
Ordered to be printed.
Regulation under Public Service Act.
Estimates for Defence Department, 1903-4.
Commonwealth Forces : Repeal of Regulation.
– I desire to ask the Vice-President of theExecutive Council, without notice, when he can communicate to the Senate the decision of the Cabinet with regard to asking the Secretary of State for the Colonies to visit the Commonwealth?
– I am not in a position to make a statement, as the matter has not yet been considered.
The PRESIDENT reported that he had received the following communication : -
Governor - General.
I have the honour to inform you that I am in receipt of advice by telegram from His Excellency the Governor of Western Australia that Henry John Saunders has been choson by a Joint.Sitting of both Houses of the Western Australian Parliament to fill the vacancy in the Senate caused by the resignation of Norman Kirkwood Ewing.
The Governor of Western Australia also intimates that the selection of Henry John Saunders will be confirmed by letter.
Sydney, 3rd August, 1903.
asked the Vice-President of the Executive Council, upon notice -
Those who go to England at this juncture should be careful when we are asked, as Members of the Imperial Parliament are asking us, and as the Times on more than one occasion in the lasttwelve months has asked us to do, to make a more equitable contribution towards the cost of the Navy. I am not speaking against the morality of the Imperial position, but I am impressing upon honorable members the reality of the Australian position ; and we ought to give a caution to some of the bellicose gentlemen who are going home to be careful that no arrangement is entered, into which will bind the Commonwealth. “Sir John Forrest (Minister of Defence). -
The Prime Minister has undertaken not to bind the Commonwealth.”
– The answers to the honorable senator’s questions are as follow : - 1, 2, and 3. Yes.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the Vice-
President of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Senator MATHESON, upon notice, called the attention of the Vice-President of the Executive Council to section 35 of the Constitution Act : -
As often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. The Speaker shall cease to hold his office if he ceases to be a member. also to page 8 of the Estimates, where it is stated in a footnote to the Speaker’s salary -
If returned again to Parliament, salary to continue, notwithstanding the dissolution, until the meeting of the new Parliament. and asked : -
Can the late occupant of the Chair perform any of the functions of the Speaker during the interval between his ceasing to be Speaker under the Constitution and the election of a fresh Speaker?
Is it the intention of the Government to pay the salary of the Speaker for the time during which the Speakership is in abeyance and there is no Speaker ?
Is it the intention of the Government to make similar provision for the Chairman of Committees of the House of Representatives ?
When the office of President is vacant, will the same benefit be extended to the late occupant ?
When the office of Chairman of Committees of the Senate is vacant, will the same benefit be extended to the late occupant ?
– The answers to the honorable senator’s questions are as follow : -
asked the VicePresident of the Executive Council, upon notice -
What arrangements have the Government of the Commonwealth made with the States Governments for the effective administration of the Immigration Restriction Act ?
– The answer to the honorable senator’s question is as follows : -
None. The Department of External Affairs invokes the assistance of the Customs Department of the Commonwealth, andhas on the Estimates a sum of money to be paid to the Customs Department for more effective administration. In the prevention of offences and prosecution of offenders this Government has the assistance, under the provisions of the Act, of the police in all the States.
Debate resumed from 31st July (vide page 2947), on motion by SenatorO’Connor -
That the Bill be now read a second time.
– I feel somewhat in a difficulty in rising to speak after the very able and exhaustive address we heard from my honorable and learned friend, Senator Symon, on Friday last. But being one of those honorable senators who have recently devoted attention, somewhat too assiduously, to the portion of his duties which consists in remaining amongst his constituents, I feel bound to say something when I am in the Senate chamber. So far as I have been able to understand, from the many speeches which have been made upon this Bill, no one appears to deny that we ought to have a High Court ultimately. The objection seems to be that we ought not to have it just now ; that it is premature ; that there is no work for it to do ; and that we can very well get on, as we have been doing for some time, by clothing the States Courts with Federal jurisdiction, or in the alternative by establishing a court of some sort, of three Chief Justices taken from the States. With reference to the first argument, that there is no work for a High Court to do, I must, at the outset, join issue upon that. It is true that not many constitutional questions have so far forced themselves upon the attention of the public, but there . are some, and there would be many more if there was a court at hand ready to deal with them. It is absurd to suppose that where we have two jurisdictions like those of the Commonwealth and of the States, which overlie and underlie one another, which are intimately interwoven, and which permeate one the other, there will not be many points of collision, which will increase in far greater ratio the longer the Commonwealth is in existence. Take again the question of appeals. I know that in my own State there are six or seven cases now held in abeyance pending the establishment of this, High Court. I am sure that lawyers from other States have the same thing to say, and I think, therefore, that if the High Court were established, it would have, even at the outset, a very respectable cause list to deal with. Here,
I ought to point out that nothing can be more erroneous than to measure the amount of work that this High Court willhave to do by the Australian records of the Privy Council. In the first place, there are many appeals lodged that never reach the Privy Council. In the second place, there are scores projected that are abandoned when the parties have learned of the cost, of the delay, and of their inability to have their own local solicitor or lawyer present to explain to the English barristers the rninutite of their cases. Some may remark that if the only good of a High Court is to increase litigation - is to multiply appeals - then the longer we postpone its establishment the better. There would be some force in that argument if the difficulties that interpose between the litigant in Australia and the final determination of his rights in London were difficulties that curtail appeals all round. But what is the fact 1 These same difficulties that act as a deterrent to the poor man really act as a stimulant to the rich man, and it has been my experience that there never was a wealthy individual or institution that desired to go to the Privy Council that did not go there, while there have been scores of persons less fortunate in purse who have been reluctantly obliged to abandon their lawsuits. I go further, and say that it has come within my own observation that poorpersons who, after a hard fight in the court of first instance, and in the Full Court, have obtained a decision in their favour, have been obliged to make a miserable settlement because a notice of appeal has been given, and a delay of two or three years and much expense have thereby been interposed between them and the fruits of their victory. But while, therefore, I, as a lawyer, having an opportunity of observing these things (certainly in my own State) am, quite satisfied that there would be ample work for the High Court to do, I do not think that that, though an answer in fact, is the real or the most unassailable of the answers that may be given to the argument that inasmuch as there is little work for such a court to do at present that we should wait until it arises. I say the true answer is one founded on principle. Senator Dobson, if we can judge by his running commentary during the speech of Senator Symon, would say that I am now about to indulge in theory, and that what he desires is something practical. Well, it is theory ; but, after all, when we are discussing our constitutional position, we must to a large extent enter the region of theory. I say that the High . Court is necessary for the completion of our Constitution. I think every one will admit that we already possess judicial functions ; that we possessed them from the beginning. We required no Act of this Parliament to give them to us. The very moment the Queen attached her signature to the document which is now in the Queen’s-hall, the judicial functions under this Constitution arose. That must be obvious. We cannot conceive a Parliament for the making of laws, and an Executive for carrying them into effect, without a judicial body to enforce, to explain, and to guard them. The three are interdependent ; they are mutually co-existent ; they are the tripod of the Constitution. And the Constitution itself, which is the basis of our rights, recognises that. Section 71, Chapter III., of the Constitution does not purport to give judicial functions to this Commonwealth. It assumes that the judicial functions are there; but it provides for the way in which they are to be exercised. Chapter III. deals with the Judicature, and the first section of that chapter provides that-
The judicial power of the Commonwealth -
It does not give it ; it assumes that the Commonwealth has it- shall be vested in a Federal Supreme Court.
The very Bill we are now discussing does not purport to create judicial functions ; its very title is -
A Bill for an Act to make provision for the exercise of the- what already exists - . judicial power of the Commonwealth.
Why, then, is it necessary for us to pass an Act of Parliament at all? For this reason : Because, although the three functions of this Constitution- the Legislature, the Executive, and the Judicature are all coterminous, all co-ordinate, all exist from the first moment, the bodies to exercise these functions have to be called into being one by one. First, our Constitution is passed ; then our Governor-General summons the Parliament, then he appoints the Executive, then the Parliament aided by the administrative work of the Executive calls into being the body for the exercise of the third function, the Judicature. I wonder that it should be necessary to argue the matter at all, having regard to the Constitution. We have Chapter I. - The Parliament - and the first section provides that the legislative power of the Commonwealth “ shall be vested “ in a Federal Parliament. Chapter II. deals with the Executive Government, and provides that the executive power of the Commonwealth “ shall be vested “ in Executive officers not exceeding seven. Chapter III. provides that the judicial power of the Commonwealth “ shall be vested “ in a High Court, and the rest of the Constitution is taken up in pointing out what these three joint powers oan do. Now Chapter III., which says how the judicial functions are to be exercised, ‘ really goes out of its way. It says that they shall be exercised - how ? In one way, and in one way only - by a High Court. What sort of High Court? A body consisting of a Chief Justice and at least two Judges. It does not give us any option. The framers of the Act knew that judicial functions were inherent to the Constitution, and all that they were called upon to do was to point out the mouthpiece for these judicial functions. They described that mouthpiece in as clear language as’
Any draftsman could put it - -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal- Courts as the Parliament creates, and in such other courts as it invests with Federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not.less than two, as the Parliament prescribes.
Now, in the face of that, I wish to know what authority we have- our whole authority is derived from this Constitution - to make any provision for the exercise of our judicial powers other than that provision, which the framers of the Constitution said we must make ? They need not have said «o, but they have said so, and we have accepted it. But Senator Best tells us that no time was prescribed in the Constitution. Of course, no time was prescribed, and why 1 Because the time was forthwith, in other words, as soon as we could do it. Was any time prescribed for the appointment of the Executive, and could the <3overnor-General have refrained from making the- appointment, and have said - “ True, it was my bounden duty under the Constitution to appoint the Executive, but really
I have been able to get along very well without it. Could’ he have done that? The positions are perfectly analogous. What is the difference in the words? Here is a Constitution which directs the different powers how to act. It says to the Governor-General - “You shall appoint an Executive,” but it mentions no time. It says to the Parliament - “You shall appoint a High Court,” but it mentions “no time. If we be at liberty to say that because no period is specified it is left to our own sweet will, it must similarly be open to the Governor-General to Say that it is left to his will to say when he will appoint an Executive? “Wait until next year,” said Senator Fraser. But if we proceeded upon those lines, we might as well wait for ever. “ We have got on very well for two and a half years ; “ but ought that not to be a stimulus to us to make haste now rather than a justification for further delay ? We ca!n . excuse our dilatoriness for two and a half years, because we have had so much else to do ; but now when we have the time, and when we are here discussing the question, is it any excuse for the nonfulfilment of a duty to say that we have been unable to carry it out for two and a half years ? Senator Best reminded us that under section 88 a time was specified within which we must have uniform customs duties. But mv honorable friend, Senator Best, although he is a lawyer, entirely ignores this fact, that the making uniform oi Inter-State customs duties is an act of the Constitution, of the tripartite powers ‘ I have mentioned, whilst the formation of the High Court is not the doing of anything by the Constitution, but is the completing of the Constitution itself.
– The other is the act of the completed machinery.
– One is the act of the completed machinery, and the other is the completion of the machinery. It must be evident that in some form Or another we are bound to establish this High Court to carry out our judicial functions. But it is said - “Let us carry it out by constituting a court of three Chief Justices taken from the other States.” It appeared to me, as I sat here listening to the speeches, that nearly every honorable senator who advanced that argument was suffering from a confusion of thought, arising from the fact that the Federal Constitution, so to speak, covers ground already parcelled out and dealt with by subordinate State Constitutions. Somehow or other, honorable senators have mixed these, two facts together, and, to make matters clear, let us assume, for argument’s sake, that the Commonwealth Government does not cover the same people or the same geographical area as the States Governments, but a virgin, political soil, lying contiguous to the Australian States. On that .hypothesis let us examine the position. The Commonwealth Parliament is elected and the Executive is appointed, and the VicePresident of the Executive Council rises and moves the establishment of the High Court. Senator Best then gets up, and says - “We ought not to have a High Court at all; we have been getting, on very well during the past twelve or eighteen months by borrowing Judges, or rather, getting Judges in the Australian States that are nearest, to do the work.” And Senator Fraser gets up and -improves the matter by saying - “Why do we want a regular and very expensive High Court at all, when there are lots of Judges in Australia, who have very little to do, and would be quite willing to act for us ?” Assuming that these arguments are made under the circumstances I have suggested - and they are identically the same as I have heard made in reference to the Bill - what would the answer be, not from one, but from every member of this Chamber 1 Would there not be a wave of indignation, and would it not be said-“ What ! Are we too poor to pay our own Judges, or, are we so lost to every sense of dignity, of propriety, of prestige, and of the traditions of a nation, that we are willing to jeopardise the administration of justice itself, and for the sake of a few niggardly pounds to commit our property, our security, and the guardianship of our Constitution to a few hireling Judges from the neighbouring States.”
– Do not call them that.
– What are they?
– They are Judges administering justice for the same people whom we represent here.
– I grant that. ‘ The honorable senator ought to remember that for the sake of clearness I am assuming that the Federal Constitution does not cover the same ground as the States Constitutions. I say that in the case I have put, we should be committing our rights and securities and the- guardianship of our Constitution to a few Judges hired from a neighbouring State, who would owe to us no responsibility, derive from us no remuneration, and over whom we could not exercise any control.
– And, therefore, Judges the more likely to be unbiased.
– Senator Charleston takes the view that my analogy is not at all right, because the Commonwealth Government is in respect of the same people, and of the same interests as are the States. Governments. Let me ask Senator Charleston whether that connexion between the Commonwealth Government and the States Governments is a weakening or a strengthening of the argument I have used ? I undertake to say that it greatly strengthens the position I am urging. . If, as Senator Styles has suggested, we bring Judges from, say New South Wales, to do Victorian business, they will never have to deal with any questions affecting the interest of New South Wales.
– As against the interestsof Victoria.
– As against the interests of Victoria. New South Wales Judges administering Victorian law will never have to be affected by the interests of New South Wales, bub the Commonwealth Judge coming from New South Wales, will have to administer Victorian law as well, though indirectly. What is the difference ? If we take a Chief Justice from New South Wales and tell him to try a Victorian question, that does not affect his New South Wales interests. If we take a New South Wales Judge and say, “ Sit on the Commonwealth Bench,” will he not have to deal with Victorian concerns just as much, with this further consideration, that when the Judge is not sitting on the Commonwealth Bench he can never have to adjudicate on differences between the States. * But when a Judge is sitting on the Commonwealth Bench, he will scarcely have to adjudicate on anything else - that is what he is sitting there for. Will Senator Charleston, in face of this, point out to me how his interjection draws any distinction? If there is any distinction, the argument applies a fortiori in the case I am putting. If we, at once, repudiate as absurd, and contrary to the dignity of nationhood, the idea that a country should have its judicial work done by Judges from another country, show me why it is not equally derogatory to the dignity, without going further, of the
Commonwealth Government to get Judges from another community to do its work. There is the additional argument, in regard to Judges coming to the Commonwealth to do the States work, that they may have to deal adversely with the interests of the country they themselves represent. That leads me to the unpleasant question of bias. J do not for a moment suggest intentional bias. I have sufficient faith in British Judges to believe that such a thing as intentional bias has no place on a British Bench. I am referring, however, to what has been very happily called unconscious bias.
– Did not the British Judges recently make law on their own account in connexion with trade unions.
– Yes, they did.
– Very well; there is bias already.
– Unconscious bias I understand to be that disposition of mind which is brought about by motives so small, «nd so insinuating, that the individual himself cannot perceive them, and therefore believes he is actuated by no motives at all. But motives are there all the time, and we see them in operation in every walk in life. ‘ If we have States Judges sitting on the Commonwealth Bench a question may arise which perhaps involves an increase of taxation in his State; an increase in railway rates; or- an encroachment, perhaps, on his own judicial privileges. It may be a question on which the whole community holds a very strong view ; that community including the Judges, own associates, companions and friends. It may be a question of the greatest doubt and difficulty, because most questions - as every lawyer knows - which reach the higher Appeal Courts are difficult of determination. We may have a Judge coming from a State to deal with a question which intimately affects, not only his own interests in a minor way, but the interests of the whole of the community to which he belongs, and do honorable senators mean to tell me that there is anything unreasonable or that it is derogatory ‘ to the J udge to say that he may be drawn instinctively from the region of doubt towards the side with which is associated his home, his family, his friends, his patriotic sentiments and those to whom he is responsible, and from whom his remuneration conies ?
– That would apply to Commonwealth Judges also.
-. - It would apply to all Judges.
– How could it apply to a Commonwealth Judge ?
– The Commonwealth will pay the Commonwealth Judges.
– The Commonwealth Judge will be a person who has been weaned from a State, and owes his duty to the Commonwealth. I have been speaking of a Judge whose duties still lie to the State, and who can be looked at askance by the people of the States as one of themselves if he has injuriously affected their interests. That is where the difference comes in. It would be unfair to the Judge himself to expect that, under the circumstances, his judgment would not be unintentionally warped in the direction of his friends and his own sentiments.
– I do not believe a word of it.
– The whole means of such a Judge’s subsistence would depend on the State.
– As to Senator Styles interjection, I would point out that we are speaking of intangible and imperceptible promptings of the mind. The Judges are above doing any conscious wrong, but in spite of themselves they are affected by preconceptions and predelictions in the same way as are other members of the community. Judges are very excellent, but they have not wings ; as was well said by Edmund Burke - “ He censures God who quarrels with the imperfections of man.” But there is another and a higher and a stronger reason which makes me maintain that all Federal Judges should be thoroughly independent, and unconnected with any other body- entirely devoted to the duty of looking after the Commonwealth judicial affairs. We need Federal judicial experts. All honorable senators are perhaps not aware, but I am sure that all lawyers will agree with me, that the Constitution is essentially different from any other statute. In an ordinary statute legislators seel-, to express with the greatest precision of language what they wish to convey, and they carefully limit every proposition to the requirements of the moment. That is done because they are aware that, as times and circumstances alter, so the statute may be altered. But with the Federal Constitution, the framers knew that the powers of amendment were very limited - that for all practical purposes the Constitution was to be unalterable. They knew that the Constitution was made for permanence, and that, therefore, they must avoid that very precision of expression andlimitation of proposition which are the characteristics of the ordinary Act of Parliament. Therefore, the Constitution is not formed rigidly in steel, but moulded in elastic, so that with the times it may expand and adjust itself to the ever varying and ever multiplying exigencies of an inscrutable future. An Act of this kind requires, if it is to fulfil its end, specially trained men as its exponents.
– That is the reason why so many different constructions are put on the different sections.
– By lawyers.
– By untrained Federal lawyers.
– By lawyers pure and simple.
– Where is the lawyer who is pure and simple ?
– All lawyers are pure, and all are thought simple. I ask Senator Styles to do me the favour of following me in my argument.
– I am trying to.
– The Constitution is the foundation of our rights, and it was deliberately drafted upon principles which are opposed to those which run through the the ordinary Acts of Parliament. Can we find in any other statute the broad, farreaching, loosely-termed, abstract political conceptions which run all through it ? We cannot, and why? Because the Constitution is intended to be the foundation of a growing tree of rights without any alteration in itself. If, therefore, we apply to its construction the narrow and technical rules which obtain in an ordinary court of justice, we shall defeat its end. If the Constitution is to fulfil its purpose, we want men who can construe it - men whose minds are entuned to its high purposes. How are we to find them ? Perhaps to an extent they are born, but to a larger extent they are made. We can get them only by first selecting our ablest and most experienced lawyers, and devoting them exclusively to the class of work that the interpretation of the Constitution requires.
– None are more fitted to administer the Constitution than those who framed it.
– I do not say so. I think that a “ dash “ of those who framed the Constitution would be a very good thing on the High Court Bench ; but I do not say by any means that the States J udges are not good enough to interpret the Constitution . What I say is that those whose business it is to interpret the Constitution must devote their whole attention to the work, which must be conducted on lines different from those followed in the ordinary States Courts. We therefore want a permanent Judiciary, whose duties shall be confined to this particular class of work. That is the way in which the American Constitution has been developed - and I deliberately use the word -into the present comprehensive, broad, and liberal Constitution. I noticed that Senator Barrett, by interjection, objected to the word “developed” in this connexion. It is for the Parliament andnot the Judges, he thinks, to develop the Constitution. I entirely disagree with him. It shows that he has not grasped the fundamental principle underlying written Constitutions, which is that in proportion as the action of Parliament in the way of amendment is impeded or excluded, in like proportion the assistance of the jurist inthe way of an. enlarging construction must be invoked. We cannot remain stationary ; times change. The Bible is unalterable, but theologians have done for that work what the Judges have to do for the Constitution. While retaining its principles, they have given them an application in conformity with the multiplying complexities of our increasing civilization.
– But always keeping within the rules of legal interpretation.
– Always keeping within its principles, but still so applying those principles according to the rules of interpretation that they can make them fit into the growing exigencies of increasing civilization. We have had many eloquent quotations from American authors in which the speakers dwelt with great fervour oil the wonderful growth of the American Constitution. We have heard that during the 100-odd years of its existence the work of the Legislature is represented by seventeen amendments, while the work of its. Judiciary is to be found in the monumental records of huge libraries. We have heard that the names of Marshall and other celebrated persons are immortal in America, because of the part they played in bringing the Constitution to its present perfection. Is ita good augury for us that at the outset of our career we should constitute a court, which is to be the means of expanding and enlarging the Constitution, with a . scratch team, of “illustrious casuals?”Is it a good augury for us that, in the hope to find a Marshall among ourselves, we should be obliged to look for him in those chance, fortuitous gatherings of the leisured supernumerary Judges of other States, and subordinate States, too?
– We are starting under conditions different from those that prevailed in America.
– What different conditions? In America the population was about the same, and’ the Constitution was somewhat similar, but they lost no time. We do not read in their debates about the saving of £10,000, £15,000, or £20,000. They carried out the provisions of their Constitution ; they appointed five J udges, although there were only eight or ten cases before the court in its first year. The J udges have grown in number, and the result of their work is such that there is nothing of which the Americans are so proud as they are of their Supreme Court.
– Senator Charleston means that the Americans did not have a Kyabram movement.
– They might have had one, but it has been forgotten for 100 years.
– I do not quite agree with one set of observations which fell from Senator Symon in his able and exhaustive speech last Friday. If it was economy that troubled us, he said, why not brush away all our noble edifices; why not raze to the ground the imposing piles of stone in the way of courts that ornament Australia; why not banish the full-bottomed wig, the ermine, and the gown, and all those trappings of glory ; or, in the words of Shakspeare, which he did not quote -
And, like this unsubstantial pageant faded,
Leave not a rack behind.
What my honorable and learned friend wants are men, merit, and integrity. Those three things are very good ; they go a long way, but I like the other, too. I may be somewhat conservative ; I may carry with me some of the insular notions of the old country ; but I certainly have always felt very strongly that those so called illusions, shams, humbug, if you wish, do much in the minds of the ignorant and unsophisticated to create a feeling of dignity.
– A delusion !
– Do not most of us live in delusion ? Is not this Parliament to a certain extent a delusion? Are not most religions a delusion?There is no institution in the world which gains such practical effect from the idea of dignity as does the administration of justice. I have seen - and I am sure that Senator Downer will indorse my statement - many men, and just as many women, too, who would lie like Trojans before a respectable, bald-headed, ordinarily clothed gentleman sitting at a deal table, but who would shiver, shrink, and blurt out the truth in the. presence of the full-bottomed wigs, the ermine, the tipstaffs, and all the awe-inspiring accessories of a court of justice. It is for that very reason that I so strongly advocate that the High Court of Australia should not be in any way mean or paltry, that it should contain nothing to suggest that it was a makeshift, but that whatever it might cost, it should stand apart in Australia as something grand - winning respect and confidence from all of us.
– But every court should be like that.
– Certainly. The honorable senator must know that we shall not get a court of that character if we are to have the uncertain, shaky, tottering shanty it is suggested we should set up and call the Commonwealth Temple of Justice. However just may be the decrees of a court, if it is not so circumstanced that it inspires respect and confidence, half its force is lost. I think it is of greater importance to the community, and contributes more to its peace, happiness, and stability, that there should be a court which, though faulty, was thought faultless, than a court which, though without flaw, was, on account of its surroundings, looked at askance, and with a sort of sceptical regard.
– Give us the names of the Judges, and I shall say what their record is likely to be.
– I have not the power of appointment. I am not now dealing with individuals, but with how the individuals are placed, how they are surrounded, and how the general public look at them.
– But the States Judges wear all this clothing.
– Certainly ; and we respect them.
– Would not they frighten the witnesses into telling the truth as well as the Judges paid by the Commonwealth ?
– The idea, says Senator Dobson, of having only three Judges sitting in solemn review on the judgment of seven wise and learned seigniors of the Victoria or New South Wales Bench. He held up his hand with holy horror at such a propositi. Let me ask him or Senator Styles, who supports his view, what he would think of a carefully-considered judgment of the Supreme Court of New South Wales or Victoria being reviewed by a Bench of three Judges gathered from the neighbouring States, brought up in different conditions, having no concern in the Commonwealth, meeting to-day and separating to-morrow, getting their remuneration from elsewhere, and having no attribute in common but thenidleness in their own States ?
– I have such a high opinion of them that I should be quite satisfied to accept their decisions.
– Now, apart from these general observations, the two suggestions which have been made are absolutely impracticable, and I venture to think also illegal. The first suggestion is to clothe the States J Judges with Federal jurisdiction. It may be possible by a Commonwealth Act to enable a State to sue the Commonwealth, as at present, or the Commonwealth to sue a State, but no Commonwealth Act can enable one State to sue another ; can give jurisdiction, beyond its borders. See what this system would lead to. We should have one decision in WesternAustralia and another decision in South Australia, with absolutely no uniformity Nor could we correct that want of uniformity by an appeal, because, according to the Constitution, there can be no appeal to the Privy Council unless with the sanction or at the request of the High Court, and, of course, there would be no High Court in existence to give that sanction. Now, take the proposition to compose the High Court of three Chief Justices from the States. That seems to me to be altogether ultra vires. Is it the idea that the three Chief Justices are to be brought together occasionally to determine such cases as may have” arisen in the interval? If so, they must be given jurisdiction of some kind. How can it be given ? It can only be given under the terms of the Constitution. What does it say ? We can give j judicial power to a High Court or to other Federal Courts, and we can vest Federal jurisdiction in the States Courts. But if we give power to anybody to do general Federal work, such as the High Court should do, it must be given within the terms of the Constitution, and it says that the Justices of the High Court and of any other courts shall beappointed permanently, shall only be dismissed for misbehaviour and incapacity, and shall receive their remuneration from the Parliament, so that from the moment we get the Chief Justices together and say to them “Administer Federal jurisdiction,” their positions become permanent.
– Could they not resign ?
– Of course they could. The honorable senator would trust to whether they would resign or not.
– The very momentthe Chief Justices were clothed with this jurisdiction they would be permanently Federal Judges, and from that moment they could only be dismissed for misbehaviour or incapacity on an address from both Houses of Parliament, and their remuneration would be paid to them by the Parliament of Australia.
– Could we not from that moment have their resignation in our hands?
– That would be a. nice position to put the Judges in.
– Without accepting it.
– The beautiful device of Senator Styles is to go to the Chief Justices in the States and say to them - “ You are getting a salary of £3,500 a year or thereabouts in your own State ; will you be good enough to act .for the Commonwealth? Before you go you must write out your resignation .and give it to me, sothat it may be placed in my pocket, to be used the moment I want to get rid of you.”
– They would know that it was only a temporary arrangement.
– Would a Chief Justice who had a permanent position at as. high, if not a higher, salary, just at oursweet will, write out his resignation and hand it in ?
– He would not be ap-r pointed permanently.
– He would cease to be a State Judge.
– He must cease to be a State Judge.
– While he is acting 1
– My honorable friend must see the absurdity of the proposition. If we simply take a Chief Justice from the State and clothe him with Federal jurisdiction, ipso facto he is a Commonwealth Judge for life ; he cannot receive his salary from anybody but Parliament.
– Could he not receive it from both State and < Commonwealth ?
– No, because the section of the Constitution Act says that he shall receive such remuneration as the Parliament may provide. The honorable senator suggests the only way out of the difficulty. If we take a Chief Justice from a State and clothe him with the necessary jurisdiction, we appoint him a High Court Judge, and must pay him. So what is gained 1 If we wish to get out of the position by saying to him - “We shall not appoint you unless you write out your resignation and hand it in,” does any one think that he would be such an imbecile as to relinquish a certain position carrying just as high a salary in order to be called the Chief Justice of Australia, with a precarious tenure 1
– If he had a scintilla of dignity he would not accept the position on those terms.
– Of course he would not. Senator Fraser said that he would be very sorry to see the superintending jurisdiction of the Privy Council interfered with.
– “ The superintending jurisdiction “ ?
– I think the honorable senator’s idea was that we should have the Privy Council as a court of last resort in all cases.
– Where the litigants desire it.
– I must say that my experience has been that the Privy Council is not the high and mighty tribunal that some would have us think.
– I thought all lawyers were perfect.
– There are no doubt very able and learned men on the Privy Council Bench.
– There is Lord Watson.
– Is that the Watson who looks after the Government 1
– That is the man who looks after Canada. But they are very old men, they have been brought up in very close conditions of thought, and they are the last men in the world who are likely to assimilate quickly the, to them, entirely novel condition of things which prevails in Australia. Every one of us who has a thorough knowledge of the subject with which we are dealing has a great advantage over a superior mind that does not know so much. In the first place, there is no intellectual waste in trying to grasp facts, when drawing an inference. If a person comes before me with a set of facts with which I am entirely unfamiliar, a great deal of my mental muscle, so to speak, Ls exhausted in the effort to grip the facts before I can reason from them. This is very largely the case with the Privy Council when dealing with Australian affairs.
– They have been dealing with colonial matters for the last hundred years.
– Yes, but with matters from various colonies, new sets arid conditions of facts. Whereas if we had a High Court, its members would always be dealing with the same order of thought and the same conditions.
– Will the honorable and learned senator tell us what they will have to do for the next ten years ?
– I explained, when the honorable senator was not present, that this court will, in my opinion, have a great deal to do. But even if it will have absolutely nothing at all to do, we are bound constitutionally to establish it. It is the only judicial mouthpiece of, the Constitution.
– God helpthe Constitution.
– Was not my honorable friend, Senator Zeal, present when this Constitution was being framed ?
– -Yes ; he was a member of the Convention.
– Is my honorable friend aware that judicial functions must exist in every body intrusted with Government ?
– Will the honorable and learned senator ask Senator Walker, who was also a member of the Convention %
– I have no need to ask Senator Walker, because he agrees with me. I ask Senator Zeal whether the authors of this Constitution - and I suppose the opinion of the majority prevailed- did not decide that the judicial functions of the Commonwealth should .be exercised by a High Court? ‘
– Yes ; under the direction of lawyers.
– I really did not intend to speak at such length, and I do not know that there is anything more of importance that I can say. I am satisfied that it was the idea of the framers of the Constitution, that as soon as possible a High Court of the character which they have described,. and which should consist of a Chief Justice and two Puisne Judges at least, with certain jurisdiction, should straightway be established as the mouthpiece of the judicial power of the Commonwealth ? They recognised that judicial powers existed without a court, and that they had only to concern themselves with the exercise of those judicial powers. Honorable senators have endeavoured to explain away the effect of that, and they propose to set up a makeshift tribunal, or, as my honorable friend, Senator Neild, has called it, a sort of shandygaff tribunal instead of the High Court. I say that we ought to do our plain duty under the Constitution, and at once establish a High Court, not in a’ niggardly way, but one of which we may be proud, and which will commence its career of interpreting this Constitution in such a way as to secure as high a name for itself as did the High Court of America. I am very sorry that the Bill has reached us in so shorn and dilapidated a state. I know that the picture of a High Court which I conjured up when I first read the Federal Constitution was very different to that which is presented by this Bill as it reaches us.
– What is the matter with it?
– It does not cost enough.
– It does not cost enough ; it is not large enough in its Bench ; it is not broad enough in its jurisdiction ; it is not dignified enough ; it is not worthy of Australia. I conjured up an image of a court that would be in substance and in fact, as well as in name, a High Court for all Australia.
– And the honorable and learned senator’ objects to bald-headed men sitting on the Bench ?
– Without having their heads covered. I should like to see a court that would be a crown and caj) for all the judicial systems of the States, a court, to use the graceful simile of Senator Symon, that would form the trunk of the sheltering tree of justice to which the honorable and learned senator referred, from which all would derive their support, and to which they would all look for their ultimate guidance - a court that would overarch them all, protecting, guiding, and controlling them. That is the kind of High Court I desire to see - a court that would be worthy, not merely of all the subsidiary Governments, but of Australia as a nation.
– What does the honor1able and learned senator think would be the cost of such a court as he has pictured in such glowing colours ?
– This everlasting question of cost !
– The honors able and learned senator never has to pay for it.
– No ; I have never had to pay, but to me it is something disgusting to hear this continual talk about economy. We give £5,000 a year to each of the Governors of the States ; £10,000 a year to the GovernorGeneral ; I do not know how many hundreds of thousands of pounds for an army ; we are about to give £200,000 to Great Britain towards the cost of keeping up her navy, and we hesitate, and mouth, and are , frightened about paying £20,000 for an institution which is to be the protector of our dearest rights, the arbiter of our differences, and which will be the harbinger of the greatness of the Constitution.
– Would £20,000 cover the cost ?
– That is what it is said will be the cost.
– I ask the honorable and learned senator what he thinks will be thecost ?
-The Constitution provides that we shall have a High Court, that our judicial functions shall vest in a High Court ; then why not have it ? We should have it if it cost £50,000. It is now too late to talk. Why did not honorable- senators who are now asking these questions say to the electors of their States when discussing the question of Federation - “ No ; do not join the Federal Union, because it involves the Creation of a Federal High Court, which is going to cost £20,000.” That was the time at which these statements should have been made.
– They did not know it was loaded.
– We did .not find the representatives of Victoria saying to the electors “ Do not join the Federation, because you will have to pay your members £400 a year each ; do not join, because there will have to be seven Ministers of the Crown provided for; and do not join the Federation because there must be at least three Judges in the High Court.”
– Kyabram has arisen since then.
– Many of these things were said.
– Many of these things were said, but they were unheeded, and the honorable senator ought now to patiently accept the verdict of his constituents. If my honorable friend, Senator Styles, and others did protest against the cost of the High Court, and were beaten, they should now accept their beating and obey the. decision of their constituents.
– The objection to the cost of’ £20,000 a year was met by the benefit to be derived from Federation.
– I am speaking of a cost of £20,000 or £30,000 a year, and I say, and it is the last word I shall say on the subject, that the Victorian senators who in this Chamber are objecting to the High Court, and making mouths about its cost, should have done two things when Federation was being considered. They should first have read the Constitution before they voted for Federation, or asked others to vote for it, and they would have there seen that a High Court of at least three Judges was an essential part of it. They should then have measured the cost of that, and if they did not succeed in convincing the people of their State that this was an insurmountable objection to their joining the Federation, they should have accepted the verdict of the people, and should not afterwards have grumbled about the cost.
– That was not an insurmountable objection.
– The appointment of three Judges will comply with the provisions of the Constitution.
– So I am saying. We must have a High Court of at least three Judges, and we cannot by any possibility clothe three Judges, whether selected from the Benches of the States or otherwise, with Federal jurisdiction without making them Federal Judges who will have to be paid by this Parliament.
– If the honorable and learned senator will inquire from Mr. Higgins he will tell him how to do it.
– I do not need to inquire from Mr. Higgins or from anybody else. It is patent to any one capable of reading.
– What is the honorable and learned senator’s opinion as to the cost?
– My opinion is that the cost will not be more than 20,000 or £25,000, but if the cost were to be £50,000, £60,000 or £70,000, 1 would vote for it, be-‘ cause I consider that I am bound to do so. It is not a question of cost, but a question of carrying out a duty cast upon us by the Constitution, and of keeping faith with the people who voted for that Constitution. The only ground upon which I vote for the second reading of this Bill, pitiably dilapidated as the High Court proposed under it is, is that I am confident that further inquiry and an appeal to the country will send into both Houses of . the Federal Parliament bodies of the representatives of the people, who will have no choice, but by amendment of this law, to increase the jurisdiction of this court, to enlarge the Bench, and to make the court of the character intended by those who framed the Constitution.
– Then the honorable and learned senator is an advocate for allowing the settlement of this matter to remain over until after the elections?
– Nothing of the kind. I accept half-a-loaf rather than no bread. I have read the Constitution, and I am quite satisfied that we have no power to delay the establishment of the court.
– It has been delayed for two and a half years.
– It has been neglected for two and .1- half years, or we have been unable to overtake the work.
– So we had the power to allow it to remain over 1
– No ; we had not the power, but we did it.
– Perhaps Senators Styles and Fraser will, in the seclusion of their own studies- .
– I am not taking up the attitude adopted by Senator Styles in his last interjections. The honorable and learned, senator, I hope, will not couple me with Senator Styles unless he is entitled to do so. It is sufficient for me to bear my own burden.
– I thank the honorable senator. I know that Senator Fraser will not be annoyed with me, because he must be aware that I have the greatest personal respect for him. Perhaps Senator Styles will cudgel his brains over this and come to a conclusion. Here is an Act of Parliament laying down a Constitution, and it says that the legislative power of the Commonwealth shall be vested in a Parliament; that the executive power of the Commonwealth shall be vested in at least seven Ministers and a Governor-General; and that the judicial power of the Commonwealth shall be vested in a High Court, consisting of a Chief Justice, and at least two other Judges ; that that court shall have certain jurisdiction, but may be given other jurisdiction. Will the honorable senator, having read all that, tell me what option we have left ?
– I am troubled to know why we failed to act for so long when it is such an imperative matter.
– I sincerely hope that the fostering care of this Parliament, and the more generous treatment of amending Acts in another- Parliament, will ultimately enlarge the jurisdiction, and so strengthen the Bench of this High Court that it will prove worthy of what such an institution ought to be for the Commonwealth of Australia. It is only on these grounds that I vote for the second reading of this Bill, being quite convinced that time for consideration and an appeal to the electors will bring those who are now dissentients round to the same way of thinking as myself. I vote for the second reading of the Bill trusting to a growth of the power and dignity of the High Court as the result of generous treatment by the people.
– We .have had in both Houses a most able and instructive debate on this Bill, and most of the arguments that could be urged on the subject have certainly been submitted. Nevertheless, as one who has been actively engaged in the cause of Federation since 1883, and in every important movement in connexion with it, I have thought it to be my duty, if not to the Senate, at all events to those who have sent me here, to state my views on this subject. Incidentally also, when I find my honorable friend Senator Styles, who I am sorry to see is not now present, taking a view antagonistic to that which I take, and I know that a few days ago he expressed to the Senate the highest opinion of me as a constitutional lawyer - of course, I happened to be with the honorable senator at that particular moment - T thought that possibly, by listening to me, the excellence of my constitutional law might induce the honorable senator to see the. error of the way which he has been following lately. I look upon’ the Judiciary as the very basement of the Constitution. Without it the Constitution simply cannot work ; without it the Constitution would never have been proposed, and without it the Constitution would never have been accepted by the people. We were all agreed in the Convention of 1891 that the time was ripe for a Federation of Australia if it could be arranged on satisfactory terms. The question was what those terms were to be. We had practically before us only two systems which we had seriously to consider - the one, the American system, which is a Federation pure and simple ; the other, the Canadian, which is altogether an impure Federation, and which is more in the nature of a unification. In the “one we had before us a Parliament or a Congress, with the powers which the States had conferred upon it ; the States preserving their own sovereignty throughout, and reserving to themselves the residuum of power. In the Canadian system we had the converse. We had the power of the States defined by the Constitution, and all other power given to the Dominion. We had the Judges in America appointed by the States ; we had the Judges in Canada appointed by the Central Government. We had each State in America supreme and sovereign within its jurisdiction ; and we had every State in
Canada subject to the Dominion Government, and liable to have its Acts of Parliament vetoed by the central Executive. There could be no more complete contrast between two Governments ; and the question before us was whether we should federate under the American system or under the Canadian system. The Convention of 1891 followed the American system, and yet not quite so completely,’ so far as the words used were concerned, as did the later Convention. The Convention agreed to follow the American system, and resolved on two Houses such as we now have– one, the Senate, in which the smallest State was to have as large a representation as the largest State, and the other a House of Representatives, which was to be based on a population vote. The one House was to represent the people as a whole, and the other was to be purely and simply a States’ House; and that was the protection which the States insisted on in order to insure their sovereignty. But what is a la w without a power of vindication ? ‘ As some honorable members have said elsewhere, and honorable senators have said here, what is the good of “a law of imperfect obligation?” I am pretty sick and tired of that phrase. Is it that we are not to fulfil our bounden duty because we cannot be made to’do so ? Is it that we need not tell the truth because we cannot be punished for a lie 1 Is it, as an honorable member said elsewhere, that we are to abstain from the whole decalogue of offences because there is no sanction or vindicatory power at hand to punish ? A man is a rogue and a scoundrel who- will assent to such a view ; and a sovereign Legislature should take a higher position. What is the meaning of “ a law of imperfect obligation t “ It means that we cannot be mandamused - that there is such dignity in Parliament that the courts cannot interfere with it. And why not1? Because our honour is so high that we are superior to the necessity of interference by courts of justice in order to make us fulfil our obligations. To retire from that high position which, constitutionally, we must assume - however much, incidentally, we may fail - would be to associate Federation with a bad system of morality and a poor recognition of our obligations. The Americans have done their best to preserve the power of the people. They recognised that it was well to preserve the sovereign power of the States, and asked that a vindicatory power should be created.
They felt that they must have a tribunal, practically raised above the Commonwealth and the States - a tribunal which would be the defender and protector of the smaller States against the aggression of the more populous States. That was the view taken in the establishment of the American Constitution; and. it is admitted that that Constitution has worked in the most exemplary way and is, practically, unalterable. No doubt, there are great difficulties in the way of altering the American Constitution, as there, are in the way of altering the Australian Constitution, and it- is most necessary, in order to secure permanency, that there should be those difficulties. But if there were a crying injustice or a strong public feeling in America against the whole system of Government, do honorable senators think that a remedy would not be found, or that the safeguards against too hasty action would be sufficient to prevent right and justice being done. The Supreme Court in the United States has been called “ the living voice of the Constitution.” Those were the words used by the great writer, Hamilton, and they have been used by great Judges and great jurors ever since. Bryce thus speaks of the United States Supreme Court -
It is the living voice of the Constitution - that is of the will of the people - expressed in the fundamental’ law they have enacted. It is, therefore, as some -one has said, the conscience of the people who have resolved to restrain themselves from hasty and unjust action, by placing their representatives under the restriction of a permanent law. It is the guarantee qf tlie minority who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assault of faction. To discharge those momentous functions, the court must be stable, even as. the Constitution is stable.
These are the words of a great writer of later days, but they merely embody in a few sentences arguments which Hamilton and all great constitutionalists have used as to the absolute necessity of a High Court, and of raising it far above all factions of the people. In the Convention we had before us the comparative failure of the Canadian system. And in both the Convention of 1891 and the Convention of 1897 it was determined to follow the American precedent.
– Not in 1 891 ; power was then given to the Parliament.
– I think it was determined in 1891 to -follow the American precedent, but I shall refer further to that matter in a moment. I think the difference made was accidental, be- cause, in 1891, we practically intended to do the same as we did more effectively in 1897. The intention undoubtedly in 1891 was to have two Houses established as in America, with an Executive and a High Court. The only difference made was in the wording, which, by the subsequent alteration, was made to emphasize immensely what we wanted. Even supposing the words used in the Constitution passed by the Convention of 1891 would have diminished the similarity to the American Constitution, the second Convention removed all dissimilarity, emphasizing what we had in our minds as to the divergence between the American and the Canadian Constitutions. We had this divergence clearly before us, and it was clearly before the people when, the Constitution was submitted to them.
– We retained the appeal to the Privy Council at the sametime that we adopted the American Constitution.
– We preserved one portion and struck out the other.
– At the time of the Convention an appeal to the Privy Council lay as of right in certain cases and as a favour in other cases, and an endeavour was made to alter that state of things. We thought that the time had come when Australia should in these matters be self-contained. We were of opinion that there was no necessity for appeal to a foreign tribunal which knew not our wants, which knew not the reasons for our legislation, which was absolutely unacquainted with our surroundings, and which, so far as we were concerned, conducted its deliberations in the dark, so that we were ignorant of its proceedings until a decision was given.
– And there may be ‘apparent unanimity with horrible dissensions.
– The Privy Council consists of a number of eminent men and a number of men of loss eminence. It is a tribunal very varied in its assortment, and a magnificent tribunal if the Bench which is called together happens to be composed of the best. It is not such a good tribunal, however, if the best of the members do not happen to attend ; at all events, it is a tribunal which, from its constitution, requires none of the most excellent to attend, but which is composed of stray gentlemen sometimes more and sometimes less able. The arguments are submitted to them without our knowing anything about the proceedings until they .are all over ; and on this point I lay great emphasis. The Privy Council decide on our intentions and our circumstances, with which we ourselves ought to be best acquainted, and have to be guided by the evidence of experts when we here would require no such assistance. In .’the end, as was evidenced in the New Zealand case the other day, whether the decision happens to be right or wrong, a most lamentable bungle may be made as to the circumstances on which a judgment is founded. The Privy Council cannot be blamed because the New Zealand case was not properly brought before them. That may have been the fault of the solicitors or of counsel ; and J Judges cannot act except on that which they know’. As a matter of fact, in the New Zealand case the Privy Council acted on a false assumption of the law of New Zealand, and of the circumstances under which the case arose.
– It is impossible in any’ one case they can bring to bear all the knowledge necessary.
– Quite impossible. If the Privy Council judgment happened to be right in that case, it was more by good luck than by good management ; the grounds on which they decided may have been right, but the material was certainly all wrong. The people of New Zealand first knew of the decision when they saw the severe strictures passed on the Judges. If the trial had been held in a High Court of Australia sitting in one of the States, the proceedings would have been published from day to day, and such a lamentable mistake as was then made could not possibly have happened. With a High Court in Australia we should have justice administered in the broad light of day instead of practically in a back room 13,000 miles away, and realty inaccessible to persons acquainted with all the circumstances of the cases. It may be said that the public and lawyers may listen to the proceedings in Privy Council appeals; but the public and the lawyers who would attend cannot do so owing to the immense distance.
– The public oi not listen ‘to Privy Council appeals. Very few people in England know where the appeals are heard.
– I am simply saying that the public may listen to th appeals if they choose - that is their proud prerogative under the British Constitution. This is one of the most important objections to Privy Council appeals, along with the other objection to which I have referred, namely, that nothing is known of -the proceedings until judgment is delivered. The Convention proposed to take away the right of Privy Council appeal ; but strong resistance was offered by an exceedingly active minority from the States, in the absence of which I have not the slightest doubt that the Secretary of State for the Colonies would not have taken up the position he did. That minority did not represent the general public of Australia, but it prevented the mission which went to England from being as successful as it otherwise would have been ; and the result was the Constitution as we have it now. It is contended that the cardinal features1 of the Constitution have been so altered that the same obliga-tion does not rest on the Legislature to establish u High Court as would have rested on it had the Constitution been passed as originally proposed. I have read the arguments which have been used here and elsewhere to show that the establishment of “the High Court is not mandatory, but that there is merely conferred an authority which we may or may not exercise as we like. I cannot honestly think that any lawyer seriously entertains that. view. I put it strongly to honorable senators that the High Court is not the creation of Parliament, but is established by the Constitution. Other Federal Courts, or courts vested with Federal jurisdiction, may or may not be established by Parliament ; that is within our control. But the High Court is the very basis of the Constitution. It is provided for by the Constitution Act, and the Legislature have only a Ministerial power in respect of it. This power is legislative in one particular, but Ministerial in the bulk. It is a Ministerial power to define the manner in which the court shall carry out its jurisdiction, and to prescribe the number of Judges : although, in that particular, there is a limitation upon the Legislature that the number of Judges shall not be less than three I notice that it has been said in another place, and also in the Senate, that Parliament has discretion on this subject. I say “ certainly not.” This is a part of the Constitution as much as Executive control is a part of the Constitution. The Constitution does all the work itself so far as it can, and’ it gives to Parliament a mere Ministerial duty to carry out. It lets Parliament settle whether there shall be more than three J Judges Except for that one thing, the duties of Parliament in respect of this matter are merely Ministerial. It is said that as we have postponed appointing the High Court for so long we can postpone it for a little longer. That argument means that if one does a wrong often enough, or long enough, it becomes all right. In my opinion, as I said by interjection when Senator Harney was speaking, the constitutional machine will not be complete until the Judiciary is appointed. We ought not to have legislated except in matters of immediate moment - by passing temporary Supply Bills, and measures of that description - until the. Judiciary was established. Above all things, we had no business to give Federal jurisdiction to any courts until the High Court was established. The other courts were ancillary to the High Court. They were in the nature of agents for the High Court. How is it possible to have that which is ancillary or an agentship established before the principal thing is established ? I agree with what was very well said in another place by an eminent leader of the Bar in Victoria, that the sooner we pass this High Court Bill the better, if only to meet the difficulties that may arise through some of our legistion proving ultimately to be a little beyond our jurisdiction. Let us cure this defect as soon as possible. If we have been improvident, let us cure our improvidence as soon as we can. But to use this neglect and improvidence as an argument against carrying out the mandate of the Constitution is un- worthy of the honorable gentlemen who defen d such a course. I say unhesitatingly that without this High Court provision, Federation would not have been accepted. It certainly would not have been accepted in South Australia. Senator Symon, .Senator Playford, and I, in our campaigns, pointed to the High Court as being the protection we should have against the aggressiveness of numbers. We certainly should never have persuaded the people of South Australia to accept Federation except for it. They said that the result of Federation would be that they would be merged in New South Wales and Victoria - most likely Victoria - and they were not prepared to make this sacrifice. We explained to them, as we were justified in doing - Senator Charleston, who is voting the other way, heard me explain this matter several times when we were on our campaign together - in unmistakable language that this High Court was to be above Parliament, inasmuch as it was the protector and defender of the Constitution, and especially the defender of the rights of the smaller States. We pointed out that it was from that point of view that the High Court was established in the United States, and that we had folfollowed the American precedent. What do my Victorian friends mean by the stand which they are taking now ? What has happened to justify their position ? Senator Styles has said that the objections to the High Court were stated during the time the Convention proposals were being considered.
– I did not state any.
– If he pointed out objections and was beaten, he ought to take his defeat in a proper and constitutional way, and not try to resist the law because he has not been able to mould it at his own sweet will. But if at the time of the Convention he made no objection when the subject was being publicly discussed, he failed in his duty all the more by remaining absolutely silent. Such difficulties as we had in the Convention of 1891, and such as we had - although at that time they were smaller difficulties - in the later Convention, came generally from the Victorian members.. Singularly enough, they never came from the New South Wales members who, though they had just as large an interest in the subject, seemed to take a broader view. The Victorian members had a strong disposition against the principle of equality of representation in the Senate, and against provisions of the Bill which would give the smaller States such powers as they ought to have in comparison with the larger ones. But the Bill was submitted to the people at the referendum, and the people said “ yes “ to it. Thereupon, with the full consent of the people of Victoria, as well as of the other States, the Constitution was adopted. I say that those whose duty it is to preserve the Constitution, anr! stand by it, are false to their trust in endeavouring to enfeeble it in the smallest iota. It has been proved to demonstration that theHigh Court was created by the Constitution. The next point to consider is - What was the jurisdiction conferred upon it ? Therewere some items of original jurisdiction which the Legislature could not interfere with, and very important those were. Some were absolute, some were conditional on theLegislature bestowing this jurisdiction. The principal power was the right to entertain appeals. I do not think that honorablesenators have quite realized what authority this general right to entertain appeals givesIt was said in America, soon after the Constitution of the United States was adopted, that the right to entertain appeals gave theright to remove causes before judgment from the courts in which the proceedings had originated ; that incidental to the power of appeal, the court had the right toremove cases before judgment had been given. Mr. Justice Story decided, in the case of Martin v. Hunter, that the United States Supreme Court - and the American power is substantially the same as ours - asa court of appeal, had increased jurisdiction to remove cases which might be subjectsof appeal. He said -
This power of removal is not to be found in any part of the Constitution - if it be given, it is only given by implication as a power necessary and proper to carry into effect someexpress power. The power of removal is certainly not, in strictness of language, a grant of original jurisdiction - it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence qf this power of removal is. familiar in courts acting according to the course of the common law in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed in both, cases an exercise of appellate and not of original jurisdiction.
Observe what an immense jurisdiction that power gives to the High Court. In a casein which they have an appellate jurisdiction they need not wait until judgment is given. They can remove a case from thecourt below into the High Court for the purpose of trying it before judgment has. been delivered ; and that the American Judges laid down was not an origination of proceedings in the High Court. Mr. Justice Story- said that it is always an implied power. If, under our Constitution, that power exists, whether by express enactment or by necessary implication, it cannot be taken away by Parliament in any shape or form. For we can no more, by legislation, take away powers which are .implied than we can take away powers which are expressly conferred upon the High Court. “There are appeals from all the States Courts to the High Court. There are appeals from all Federal Courts to the High Court. There are appeals from every State Court in Australia - where an appeal at the time of the passing of the Constitution lay - ‘-to the Privy Council. That is the one limitation. Observe what a huge jurisdiction that gives to the High Court. It has not, of necessity, to wait until the appeal comes to it, but it may anticipate judgment in the court below by removing the case and try: ing it ; and it can do that in all jurisdictions of the States Courts, whether those relating to Federal matters or relating to other matters. There may not be many cases just now for the High Court to try. We are only feeling our way. We, ourselves, do not properly understand our Constitution as yet. We, who are supposed to be experts, are merely children seeking the light. But what about the people outside 1 They know nothing in the world about it.
– Suppose there is only one States rights case ?
– Then there ought to be a tribunal somewhere to which to appeal. We have had, for a long time, a dispute between South Australia and Victoria with respect to a’ piece of territory. That dispute remains, but we can get no satisfaction.
– We have an important question- with respect to the representation of Queensland in the other House.
– There is also a question with regard to the use of the waters of the Murray. We should have tried the question of the disputed boundary long ago had there been means of trying it. One Victorian Government agreed to a case being stated to the Privy Council, but that Government went out of office and the succeeding Government would not permit the case to go on. Consequently there is no remedy. We did appeal to the Crown, but the Crown said in effect - “ You must settle these questions amongst yourselves.” There was no remedy for us unless by means of an army. The result is that South Australia with respect to that disputed territory is simply remedyless, and cannot even get the question tried. Is not that a sufficient reason why we should have the High Court established 1 These were some of the questions actually mentioned as instances in the Convention debates. Similarly, is not the River Murray question one upon which it is absolutely necessary that there should be a settlement ?
– Victoria has the Murray now.
– Victoria has t he disputed territory also. But is it not imperative that there should be some tribunal to try such cases? Under the Constitution the High Court has jurisdiction to try questions arising between the inhabitants of one State and the inhabitants of another. First of all, under sections 73 and 74, there is the appellate power of the High Court. Then, under section 75, the High Court has original jurisdiction in all matters - in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party ; and all matters - between States or between residents of different States or between a State and a resident of another State.
Cannot honorable senators see, therefore, the immense ambit of the jurisdiction of the Commonwealth Court, and the necessity for its being a strong court to carry out the work thrown upon it ? Under the American decisions, the High Court has the power of appeal absolutely in words, and we use the American words so as to make applicable to our circumstances the American decisions, that include that power of removal before judgment. This will mean an immense addition to the work of the court. I will also say this with regard to the American decisions. First of all, the opponents of this Bill say - “ Why do you want to establish a High Court, when you have the American decisions to govern you “ ; and then they say - “ We will not follow the American decisions, because you have not got a High Court”; so that they have us both ways. If their argument that they are willing to follow the American decisions is carried out, then, undoubtedly, a High Court must be established. .For that was the opinion of Mr. Justice Story in a case that was tried iri the United States, and that was also the view expressed by Chancellor Kent in his great Commentaries, which have been quoted and which I do not wish to repeat. Story said that there was no discretion in the Legislature - that the word “ shall “ was imperative, and that the court had to be established as soon as possible. Kent took the same view. It was acted upon, and has always been taken as law. If the American authority is conclusive, there is the authority for what the Ministry are -contending for now - that this court ought to be at once established, and when established, its jurisdiction, as I have said, will be immense. It will have not merely the jurisdiction in appeal immediately conferred, but it will also have an implied jurisdiction in causes removed. It will not have quite all the jurisdiction which we desire, because we should like the Privy Council to be excluded altogether. I would ask honorable senators to notice that an appeal from the High Court will never be as of right; it will always be as of favour. In granting these appeals, the King in Council would probably go on somewhat the same lines, only more strongly so, as are adopted in the case of Canada, and never allow an appeal unless some very large question were involved. In Canada there is an alternative appeal. The Privy Council does not allow an appeal from Canada as a matter of course in the slightest degree. The general principle on which it acts is to say to a litigant - “Before you come to us, you must first exhaust all local remedies. If it is the decision of a Judge, although it is a final decision, you must go to the Pull Court.”
-Col. Neild. - Not in equity.
– That is ari exception, but it arises under special legislation. The Privy Council says : - “If it is a decision by the Full Court, and there is a court of appeal, you must go to that body.” The genera] principle, which they have always followed, and which they are emphasizing in the case of Canada, and will emphasize still more in our case* is not to allow an appeal to them unless the litigant has exhausted all local remedies ; and when all local remedies have been exhausted, then he has to show some very good reason why an appeal should be allowed. We have another power. We have a power by legislation to limit the cases in which an appeal to the Privy Council by favour can be granted from the High Court, only that it has to be assented to by the King. So that first of all we have the power of drawing nearly all the cases into the High Court. I do not say that the power will be exercised, because, of course, it would only be used in cases involving Federal jurisdiction. When the cases get to the High Court, in some instances there is no’ appeal at all except by its leave, and in other instances there is an appeal by favour to the Privy Council, which, again, is subject to limitation by subsequent enactment, which may reduce that power to nothing at all, subject, of course, to the King’s assenting to the Bill. If we wish to carry out our original desire - to have a great court which shall be sufficient for our own needs, in which justice shall be administered within our hearing, and under our eye, in which every argument shall be submitted, and towhich every assistance shall be given to bring about a just conclusion, with the possibility before us, without any alteration of the Constitution Act, of our practically doing away by legislation with this right of’ appeal, subject to the King’s assent ; if we have that inherent power under the Constitution, is not that a reason for our endeavouring to establish, a court of such strength and dignity that its decisions shall be so respected that, when we ask for further diminution of this right of appeal, it will be conceded to us ? We asked to have the judicial power placed in our hands absolutely, and at once. The Imperial Parliament desires us to go through an educational course. It says - “Your court will have huge powers. You have the power of limiting our right to grant special leave to appeal, subject to our dissent. Show us that your court is as capable as it ought to be to do the great work which you have thrust upon it, and fear not that our assent will be withheld.” All these appear to me to be reasons why we ought to provide for a very powerful court. It is to be regretted that the Bill was altered in another place, that it does not still provide for a court of five Judges. I look upon the question of the expense, which has been made so much of, as being simply beneath contempt. That a Commonwealth, whose Customs revenue is £10,000,000, which is going in for large defence and other expenditure, absolutely out of proportion to its requirements, should hesitate about voting £30,000 to establish the High Court, which is the very foundation of the Commonwealth and of the rights of the States thereunder, is simply beneath contempt. The Constitution cannot work without the High Court. .The
Constitution cannot work satisfactorily unless the High Court is competent, and undoubtedly it needs not merely the weight of intellect, but the weight of numbers as well, in order to prevent the ill-feeling which, comes from appealing from a larger number of Judges to a smaller number. It does seem an extraordinary thing to me that we should have this question of saving the salaries of two Judges raised when at the very initiation of our Constitution we are establishing a body on which the States rely for the correct exposition of its meaning, and the settlement of all disputes between the Commonwealth and themselves, between the inhabitants of their States and themselves, and in which the whole people of the Commonwealth are concerned. That we should quibble over what, as against the revenue, are a few shillings, on the very foundation of our Constitution, indicates either a lamentably small way of approaching the subject, or else a determined attempt to destroy or weaken the Federation by establishing a court which would bring the Federation into contempt. ‘
– That is a little ungenerous, I think.
– It is one or the other. We all know, that everybody was not in favour of Federation, and some persons would now be very glad to see the Commonwealth done away with and the Constitution Act repealed. Possibly it may have occurred that weakening the High Court, or weakening any part of the Constitution so as to make it less effective might be a strong. argument in favour of not continuing the system as it is at present. At all events the line of attack in opposing the completion of the machinery, the making of the Constitution a workable instead of an unworkable thing, the question whether the expenditure should be £20,000 or £30,000, appears to me to be quite unworthy of the great people whom wo profess to be, of the great Commonwealth which we wish- to. see safely established. As regards the question of composing the High Court of States Judges, it has been sufficiently dealt with, and it is unnecessary that I should elaborate it. We have to appoint the Judges, and we have no business to take a Judge of anybody else’s appointment. If a Judge who is appointed has to resign his office and become a J udge under the Commonwealth, it can be done now; there will be no trouble at all on that point. If a Judge is to retain both offices, the position will be inconsistent and ridiculous. The States Judges do not of necessity hold office on the same tenure as the Judges to be appointed under the Commonwealth. The States Judges hold their positions under the local Constitution Acts, which may or may not be the same as the Commonwealth Constitution in that respect, but which, whether they are the same or not, may be’ altered by the samepower that created them. We might, therefore, have the anomaly of having a State Judge employed as a Commonwealth Judge, whose tenure of office was altogether different from that which is prescribed by the Constitution Act. The impossibility of a Judge serving two masters is self-evident, and although I quite agree that, in Australia, we have on our Benches high-minded, honest, just, able men, still I do not wish to take them away from their sphere of capability to new fields, with which they are not acquainted, with a possibility of their doing less justice to the work which lies before them. Bryce, speaking of Judges taken from their ordinary fields and called upon to administer a jurisdiction like this, says -
They sometimes need the exercise not merely of legal acumen and judicial fairness, but of a comprehension of the nature and methods of government which one does not demand from the European Judge, who walks the narrow path traced for him by ordinary statutes.
That, I think, is a valuable opinion, and one which will commend itself to the sense of everybody. This Constitution is in a way rigid, and in a way highly elastic. It is rigid in terms ; it is elastic in substance. The Judges to administer this Constitution ought to be much more than lawyers. They ought to be great constitutional lawyers from the Federal point of view. Look at the ambit of the subject matters of our jurisdiction ; look at our thirty-nine articles, and see what they cover. The first deals with “ Trade and commerce.”
– Read the 39th, and see the extensive powers which may come under that.
– The first deals with “Trade and commerce with other countries and amongst States.” Then there is “Taxation, but so as not to discriminate between States or parts of States” ; “Borrowing money on the public credit of the Common wealth,” and a number of other important matters. I desire to know where the Privy Council is to get an intimate knowledge of these subjects. How can they know as much about them as we do ourselves? “Trade and commerce” is an exceedingly extensive term. The words are rigid enough, their meaning is elastic enough in all conscience, and they have been treated by the great Chief Justice Marshall and others in a manner which has considerably expanded them in accordance with the spirit of the Constitution, and in a way which has proved beneficial entirely to the community. We have come to see the immense wisdom of using these terse words, which, though precise, were yet capable of infinite expansion to meet the development of the Republic as time went on.
– A terse expression of limitless ideas.
– I agree entirely with what Senator Harney so eloquently expressed on that subject. The development of the American Republic is a marvellous justification of the use of terse language, but at the same time we must have competent exponents of it, and, fur.ther it must be interpreted according to the spirit of the times, and for that purpose we must have people who are sympathetic with the spirit of the time, who know what is’ going on, and who will accurately interpret the law so as -to meet the demands which an altered set of circumstances require. I see that in another place it has been said that the Judges are not to make the law. We are not appointing these Judges for the purpose of making a Constitution for us, but for the purpose of interpreting what we have done ; interpreting it strictly, undoubtedly, but in its interpretation they must have immense latitude. The elasticity comes in there, and it was on the sympathetic and wise interpretation of the American Constitution that the good working of the institutions of government and the good results to the public depended. It is not as important with us, perhaps, as it was with them, because we have all their illustrious precedents to guide and assist us. There is no doubt that when adopting all these terms from the American Constitution, we acted advisedly, so that all the 120 years of experience and the immensity of volumes that have resulted from it should- be available to us in deciding what these words mean. ‘ But it does not follow that these are exhaustive, and that no more is to be done. There is still much in the future to be determined, and for the work there ought to be a High Court raised above all questions of State concern, not only the arbiter between the Commonwealth and the States, the States themselves, the citizens of one State and those of another, but also the arbiter of the extent of the interpretation of these hugely broad terms of jurisdiction which the Constitution bestows upon the Commonwealth, and of which the High Court must ultimately be the interpreter. I do not think there is anything more that I wish to say. The subject is so expansive that it would not be very difficult to talk at much greater length ; but the whole question has been very fully considered and thrashed out, and is, I think, practically determined by the Senate. I wish only once more to express my regret that a pecuniary consideration of some £10,000 should have led another place to agree that this High Court should be reduced in numbers, and therefore reduced in dignity, when at the outset of our Commonwealth it was essential that we should surround it with every dignity and give it every importance.
– After the very able and eloquent addresses we have heard from legal representatives in the Senate, it’ might be advisable that the situation should be placed before the public from a layman’s point of view, and from the point of view of the largest class in the community - I refer to the working or industrial class. I should like also to deal very shortly with the question from the constitutional point of view. I should like all those honorable senators who have at different times declared that we have noi command from the people ; that there is no mandatory statement in the Constitution that this court should be brought into existence straight away that we may dilly-dally over the matter as long as we please if, in the opinion of some small section of the population of Victoria, we can save -a paltry pound or two - I should like those honorable senators to look at the Constitution. They will find that in the very first section of the first chapter of the Constitution dealing with the legislative power, we are told that the legislative power of the Constitution shall be vested in a “Federal
Parliament, which shall consist of the Queen, a Senate, and a House of Representatives,” called the Parliament of the Commonwealth. It does not say that we are to dally over that. It does not say it is to be done to-morrow or the next day. In exactly the same position, we find the provision with respect to the executive power of the Commonwealth. In Chapter II. of the Constitution, we are told that the executive power of the Commonwealth shall be vested in the Queen and so many Ministers. It provides for their appointment, but it does not say that this is to be done to-morrow or the next day. There is is no definite time fixed in connection with the executive power of the Commonwealth. There is Chapter I., dealing with the legislative power of the Commonwealth ; Chapter II., dealing with the executive power; and Chapter III., dealing with the judicial power in exactly the same terms. There is no question as to the date when these powers are to be brought into existence. If it has been necessary to bring into existence the Parliament and the Executive, seeing that the High Court is the complement of these, is it not just as necessary that it should be brought into existence as speedily as possible ? I agree with certain honorable senators who have already spoken, that this Parliament had no right to pass a single Act having reference to the concerns of the people one with another before it created this High Court. If honorable senators will only read the Constitution fairly and with an unbiassed mind, they will see that the creation of the High Court runs concurrently with the creation of the Parliament and Executive. . The one is the complement of the others, and any honorable senator who now says that we can delay the establishment of any of these powers for an indefinite term is not true to the Constitution. I have been still more surprised that certain honorable senators, and certain honorable members in another place, who assisted in framing the Constitution, should have turned about in the way they have done. Some of them actually went through the country inviting the people to approve of this Constitution on the ground that one of the greatest blessings it would give to the Commonwealth was a High Court, which would protect the smaller States as well as individuals against injustice. Now because in some quarters of the Commonwealth a cry for economy has arisen they have been frightened to such an extent that they are actually prepared to go back upon the work they did five or six years ago. But there are others who honestly oppose the creation of a High Court -who, indeed, opposed Federation. I should like to point out to those who take that attitude that he would be an unworthy member of any community who, when by a large or a small majority a Constitution had been agreed on, exercised all the eloquence he possessed in an endeavour to mould that Constitution to his own particular view. Honorable senators have no right to now raise doubts and difficulties in the way of carrying out the clear meaning of the Federal Constitution ; they should use every effort, in the interests of the people, to carry out every provision of the Constitution which they themselves helped to frame. It is said that there is no work for a High Court - that we ought to wait until work is provided. But if that argument be a valid one, it might be applied with equal force to the Defence Bill. It might be pointed out that there being no war, or danger of war, there is no necessity to make any provision for defence ; but I hope honorable senators will see the absurdity of arguments of that character. Senators Stewart and Higgs have referred’ to the naval subsidy proposal ; and here, again, the argument to which I have just referred would apply. It might be said that it is quite time enough to assist in providing a navy for the protection of Australia when there is any danger of war, and that because there is no probability of war for years it is useless to spend a f farthing on naval defence. If the argument applies to one case it applies to all. In my opinion it is just as necessary to establish a High Court to interpret the laws passed by the Commonwealth as it is to pass legislation providing for our defence. The general public, and a great many working people, are misled by newspapers, and by public men who endeavour to show that a large amount of money might be saved by delaying the establishment of the High Court. I should like to refer to one gross misrpresentation in one of the daily newspapers in South Australia - a misrepresentation which shows how absolutely necessary it is for members of this Parliament to visit their own States as often as possible, in order to correct statements which might have very injurious effects. The misrepresentation to which I particularly refer was in the South Australian Advertiser of the 29th July - a newspaper which is owned by one of the representatives of South Australia in the Federal Parliament. If the misrepresentation had appeared in only one part of the newspaper, it might have been regarded as a printer’s error, but when it is found repeated in two or three places, and in two or three other newspapers, we must come to the conclusion that there is something wrong - that it must be done for the purpose of misleading the people, or that journalism is of such a character that no reliance can be placed on it for truth. The mis-statement was’ that on the Estimates for this year £45,000 is provided to meet the cost of the establishment of a High Court.
– And the people believed the statement.
– There is no doubt that people believed the statement, because dozens came to me in South Australia in reference to it. When I made inquiries I found, as will be seen on page 19 of the Estimates, that the amount provided i? not £45,000, but £4,500 ; so that a ten-fold lie has been told for the purpose of sustaining a certain position on this question. In the face of such misrepresentation we, who represent the people, cannot be expected to be treated fairly. I should like to ask members of the industrial classes - and even business people - by whom they would like to have the Commonwealth laws administered and interpreted? We have passed an Immigration Restriction Act, a Pacific Island Labourers Act, and a Post and Telegraph Act ; and in the last-mentioned there are sections which are supposed to be in the interests of the great masses of the people. Are these laws to be interpreted by J Judges of the States Courts, who, notwithstanding anything that may be said, are bound to have bias, either conscious or unconscious ? Such measures as the Conciliation and Arbitration Bill or the Navigation Bill have a more definite relation to the great masses of the people than any others we have passed or are likely to pass. I should like to ask the working classes of “Victoria, or Senators Barrett and Styles, whether they would like any of the Acts I have mentioned to be administered and interpreted by a court under the domination or influence of the present Victorian Govern-‘ ment, or whether they would not prefer to have it heard by Judges appointed and paid by the Commonwealth? From which court would the working classes be more likely to get a fair and unbiased interpretation of the law ? Is it from the State Courts of Queensland that we would get the most unbiased interpretation of the Immigration Restriction Act ? Those who advocate delay until there is a great accumulation of work for. a High Court, are making a great mistake. Such a court was not absolutely necessary two years ago, because we had then passed very little legislation. Now, however, we have passed a great many Acts - indeed I may say that the Federal Parliament has passed as much important legislation as has any other legislative body in Australia in the same time. And this legislation is of a character which affects the whole of the people.’ Seeing that within the next two or three years there will be a good deal more similar legislation, it is the duty of the Federal Parliament to create a High Court. The working classes are those which have been the most misled in the past, and are the most likely to be misled by the cry for economy. The working classes know what it is to economise - they know what it is to ma,Ke one shilling go as far as two shillings ; and’ they are more likely than other people to be misled by the cry for economy. But I ask the working classes - Who is preaching economy now? Economy is being preached, in reference to the High Court, by the very sections of the community who protest against such measures as the Conciliation and Arbitration Bill. They are the very sections of the community who, for the past twenty years, in Victoria and the other States, have been doing all they possibly can to keep the working classes in a degraded position. I should like the working men of Australia to look at the matter from that point of view. These are the very classes who led the way in the Federation movement. The Chambers of Manufacture and the Chambers of Commerce, with the selfish instincts which have ever actuated them, loudly advocated Federation ; and, I dare Say, those selfish instincts will continue their influence until Federation smothers them. Victoria’s fiscal policy had developed industries, and with them Chambers of Manufactures and Chambers of Commerce ; and, imagining that, with manufactures already established, Victoria would be able to supply the other
States, and thus reap great benefit, those organizations strenuously advocated Federation. Had they had any idea that com-‘ petition would be induced, they would not have urged the people of Victoria to adopt Federation ; but competition has arisen, and the attitude of these gentlemen has changed. Then we have the Victorian stock brokers - those great walking gentlemen. Did the stock brokers ever do anything in their ves to assist the working classes ? Have not all the resolutions passed at their meetings been opposed to the interests of the working classes ? These are the people who are crying out against the expense of the High Court. “We have them all over the country passing resolutions. Probably, the meetings consist of the chairman of some district council, and a couple of individuals who pretend that they represent the people. They send the resolutions which they pass down to the newspapers, and have them published. Two or three people meeting together in this way try to get the world to believe that they are expressing the public opinion of a country like this. The thing is so monstrous that I am surprised that men having the astuteness of Senator Styles and Senator Barrett are led away by it.
– I was not led away for a moment.
– If the honorable senator has not been led away, he has been frightened away.
– Neither the one nor the other.
– Then he has been led astray. Whatever may have been the cause, he has been going wrong, and he is prepared to keep going wrong so long as his conduct is sanctioned by the press.
– That is a very unfair way of putting it.
– Not exactly sanctioned ; it is commanded.
– I. am indebted to Senator Pulsford for the more expressive term. It seems to me that in Victoria the press commands more than it requests.
– The idea of a member of the labour party, who has signed a document giving up his rights as a British subject, talking about being commanded - a man who offered himself for sale two years ago !
– It is a peculiar thing to hear Senator Dobson talking about, being sold. If ever there was a representative of any portion of Australia who has changed about in connexion with almost every question, he is the man. He hasactually surprised . himself by his own changes. There is not an honorable senator who is so fickle. I speak as a member of the labour party, and, as far as they are concerned, when they come to Parliament they have made up their minds on certain questions. They come here not to be moved by the eloquence of Senator Dobson,, but to try to give effect to legislation affecting questions which they have thrashed out years ago.
– Has the honorable senator a monopoly of that determination ? Do not other honorable senators do the same ?
– I am not going to argue the question with Senator Styles, because I am only sorry f6r his position. He would have been quite willing to pledge himself, just as I or any other member of the labour party did. Indeed, I believe he did pledge himself.
– I did not. I never signed any pledge in my. life.
– What has signing a pledge got to do with it X The honorable senator pledged himself to the people, and when a man makes up his mind and gives a pledge of that description, he has to carry it out.
– Nor did I pledge myself to give 5 per cent, of my income towards expenses.
-All this has very little r.o do with the establishment of the High Court, and I shall not deal with it any further. But I intend to warn the working classes of Australia to beware of those advisers who recommended them to adopt the Constitution. Those same advisers to-day are going about Victoria declaring that if they had to vote again, they would vote against the Constitution. They are trying to make the people believe that it would have been better for them not to take the advice they gave four or five years ago. Is it a safe thing for the lambs to keep company with the wolves? When the wolves say that they are advising them for their own good, I tell the lambs to beware, and rather go in the opposite direction than in the direction in which their advisers wish to take them. With respect to the expenses of the High Court, a paper has been circulated by Senator Zeal, showing the cost of the Judicatures of the different States. New South Wales spends in that direction over £255,000 a year ; Victoria, over £135,000 ; Queensland, over £75,000 ; Western Australia, over £57,000 ; and the model State of South Australia, where one can get just as much law, and I dare say just as much justice as anywhere else, spends £27,000 a year. When the question of Federation was being discussed in the States, some of us told the people that we objected to it on account of the enormous expense which was bound to be incurred. I was opposed to the Constitution originally, and pointed out to the people what I thought it was going to cost. But people said to me - “ You are wrong ; we believe these others, who tell us that we are going to save more by the cutting down of expenses in the States than we shall lose by bringing into existence the machinery of the Commonwealth.” The common cry was - “ W e are going to save in State administration more than will pay for Commonwealth administration.”
– In time.
– Is it not time that this saving began in the States? What is the meaning of the figures which 1 have quoted ? Senator Downer, Senator Symon, and Senator Playford, know that in South Australia there has been a cry for economy in respect to the Judicature for some time past. That State could do with only two Judges. If South Australia is spending £27,000 a year, and could do with a Judge less - including all the machinery in connexion with a Judge - the expenditure could be brought down to at least £20,000, without the people suffering anything by it. But because New South Wales and Victoria have been extravagant in the past, and are not prepared to economize now, is it reasonable to expect that the Commonwealth shall not bring into existence the machinery necessary for the interpretation and administration of the law?
– Victoria has reduced her Supreme Court Judges by one.
– Victoria will need to reduce her expenditure considerably before she attains reasonable limits of economy. South Australia has about onethird of the population of Victoria or New South Wales. If honorable senators multiply £27,000 by 3, the result is £8,000. Divide that into the cost of the Judicature in New South Wales, and it will be found that that State is paying three times as much for the interpretation of the law as South Australia is paying. On the same basis, it will be found that Victoria is paying nearly twice as much. I am proud of the State that can do efficiently and effectively, for one-third of the cost that is incurred in another State, what that other State is only doing in a very slipshod manner. Suppose that economies were effected in South Australia to the extent of £7,000, and that Victoria and New South Wales were to bring their expenditure down to the same margin of economy and efficiency, South Australia would then be paying £20,000 a year forher Judiciary ; Victoria would be paying £60,000 a year ; and New South Wales about £80,000 a year. Yet all we are asked to pay for the officers and Judges of the High Court of Australia is £20,000 a year. And yet, in the face of this fact, there are people who are crying out against bringing this machinery of the Commonwealth Constitution into existence. I say to Victoria and New South Wales - “ Before you cry out against the representatives in the Federal Parliament of your own or any other States, do your own work as it ought to be done ; bring about the economies you promised before Federation was commenced. Then there will be no burden in creating a High Court, and the many other institutions that are contemplated by our Constitution. But until such time as you do that, you have no right to complain of the action of the Federal Parliament, which is by no means extravagant in its demands in connexion with the High Court.” Each one of the States can bring about economies in their own Judiciaries that would represent a larger sum than it would cost to establish the Federal High Court. It is, therefore, the duty of the States Parliaments to bring about these economies before complaining of our action. There are many other directions in which the States ought to economize, and have promised to economize. They may now very well begin to do so. I trust that honorable senators will not be frightened by what they have read in the press, or by what they may hear from different platforms, but will treat this question in a straightforward and honest manner. Those who turn to the history of this measure in another place will find that, principally in consequence of the action of the Victorian representatives, the more comprehensive character of the High Court was destroyed. It was destroyed, not on the merits of the J udiciary itself, but because the “Victorian representatives had been instructed - or rather, as SenatorPulsford would say, commanded - by the press to have only three Judges instead of five. Honorable senators who bring matteers down to that level are legislating by excuse, not by the merits of the measures brought before them. I hope that the representatives of the different States will take a far higher view of their responsibilities than to do anything of that description, and will, if they possibly can, confer the fullest jurisdiction and so make the High Court one of which the people of Australia ought to be proud, and which, by its just interpretation of the Constitution and Federal laws, will give such satisfaction that the Privy Council will almost refuse to hear an appeal from Australia. I think that enough time has been given to the discussion of the measure. I have no desire to weary honorable senators by endeavouring to conjure up arguments or to clothe arguments in a form different from that in which they have been presented. I hope that the second reading will be carried, and that the Bill will be improved rather than otherwise when it leaves the Senate.
– I am one of those who feel it is necessary, even in dealing with this very great question, to study the requirements of the people and the financial position in which we find ourselves. I am not afraid to say that I am largely influenced by what has been said of the need for economy in the States, and especially in the State which I have the honour to represent. The arguments which have been advanced by several honorable senators have certainly been of a very high order, and must be of very deep interest to those who read the report of the debate. I have read most of the speeches delivered in the other House, and I have heard all the speeches delivered in the Senate, but I still think that, at least for a time, we could give such jurisdiction to the Supreme Courts of the States as would enable us to proceed satisfactorily with the work of the Federation.
-Was that the fault of the speakers, or of the honorable senator?
– It should be done on the ground of economy. I am one of those who had the privilege of urging the people of South Australia to accept the Constitution Bill as it left the Convention. I know that one of the strong points I, with others, used was that the High Court would safeguard the liberties of the people.
– The honorable senator has turned round worse than Senator Dobson.
– Will the honorable senator be good enough to wait until I have finished. I grant that we cannot have a complete Federation without a High Court, but surely In our infant days, when we have such strong Benches in the States, we can with confidence give those Benches jurisdiction on matters which are likely to crop up. During our. existence of two and a-half years we have passed a Tariff which has caused a great deal of friction. We have had appeals to the States Courts, but has the Commonwealth had any reason to complain about the decisions?
– Yes. What about the decision in Sydney?
– The Commonwealth has had no reason to complain, and even if it had, we have the right of appeal to the Privy Council.
– No ; because an appeal must go from. the High Court, and there is no such body in existence.
– Appeals can go from the Supreme Courts of the States to the Privy Council.
– Not on constitutional questions.
– The Commonwealth has had no reason to complain about the decisions by the States . Courts. Since we urged the people to accept the Constitution Bill, and started this great Commonwealth, what has been our fate ? We have had a drought of such a character as to destroy millions of sheep and hundreds of thousands of cattle, and our crops have failed to such an extent that to-day we are in financial difficulties. Within the next few months Victoria will have to raise a loan of five and a half millions to pay her debts, and even South Australia will soon have to raise a loan to redeem some of her debentures. It behoves us therefore to be very careful not to incur any more expense than is absolutely necessary. Take the Supreme Courts of the States. In many cases the Judges cannot be got rid of unless they retire. I do not care whether it is called the Kyabram cry or any other cry, we are under the necessity of studying economy, especially when we know that we have able Judges on the States Benches ; that the South Australian Bench includes a member of the Judicial Committee of the Privy Council ; that we have J Judges like Sir Samuel Griffith and Sir Frederick Darley. Surely these men, who are possessed of high attainments and have had a large experience, are as deeply imbued with the Federal spirit as any men who may sit on the Bench of the High Court I When we know that the services of such great jurists are available to us we ought, at least for a time, to invest them with the jurisdiction which is necessary to enable us to get on with our Federal work.
– He was a nonfederalist.
– Sir Samuel Griffith is considered to be one of the best and highest authorities on the Federal Constitution.
– I am not referring to him.
– We are asked to create a High Court because we are told it is necessary to have men who will interpret the Constitution in a purely Federal spirit. The Constitution preserves ‘ to the States their rights, and we are not justified in having a Federal Court so strongly in favour of the Commonwealth as opposed to the States. What we are anxious to do is to preserve to the States the powers which the Constitution gives to them, and not to have Federal Judges who, by their decisions, would really take away those powers from the States. If we turn to the early history of the United States, what do we find ? We find that the decisions of its Supreme Court were influenced largely by the party in power. When Marshall was Chief Justice, he interpreted every provision of the American Constitution according to the broad Federal idea, and he was influenced largely by the opinions of such men as Alexander Hamilton. But when he passed away, and the other party came into power which represented the States rather than the Federation, the Judges gave their deci- sions more in favour of the States. We do not desire that spirit to be exhibited in the High Court of Australia. When we have at our disposal men who are familiar with every step which was taken to establish the Commonwealth, who are- familiar with every line in the Constitution, who have held judicial positions for years, and command the highest respect of every citizen, I contend that they should be asked to come to our aid and interpret the Constitution, and I submit that they are able to interpret it according to the desires of the people. It has been urged, and urged very boldly, that there is a mandate in the Constitution to the Parliament to establish a High Court. I shall not argue that point at all, because it has ray sympathy. Those of us who will vote against the second reading of this Bill have no desire to say that there shall not be a High Court.- I believe that almost every member of the Legislative Council and of the House of Assembly of South Australia has petitioned the Senate to delay the establishment of the High Court which the Bill provides for. Are not these men federalists ?
– How long would the honorable senator delay its establishment 1
– Until we are in a financial po.sition to establish it on the lines which my honorable and learned friend would prefer. I know very well that the ‘ Bill does not meet the wishes of Senators O’Connor and Downer. But why has the personnel of the High Court been cut down 1 Why did the Government give way to the pressure in the other House ?
– Because they had to.
– Yes. The times were not sufficiently good ; the financial position was not such as to justify the appointment of five Judges ; and the Governnent yielded to the pressure to such an extent that even the friends of the Bill are almost ashamed to support its second reading in the form in which it is now presented to them.
– They yielded to a newspaper panic about economy.
– I think not. The Members of the Parliament of South Australia and the members of the Chamber” of Co’mmerce, the Chamber of Manufactures, and various other bodies who have petitioned the Senate on this subject, have not been -influenced by the newspapers. They knew very well the financial position of the States, and they could see that we are not in a position just now to incur further expense. We have Judges capable of interpreting the Constitution as it should be interpreted, not in favour of the Commonwealth as against the States, but in such a way as to do justice to both, because they will be citizens of both.
– We shall have to pay them.
– How will that be cheaper?
– We shall have only the same number of people to administer the law for as before. The Judges who have been administering the law in the various States have commanded the respect of every one in the Commonwealth, and if they are prepared, with the approval of their States Governments, to act for the Commonwealth, why should we not give them Federal jurisdiction in the same way as we have given Federal jurisdiction to some States Courts.
– They would then become permanent Federal Judges, and would have’ to be paid by the Commonwealth.
– The honorable senator does not understand the Constitution.
– I do understand it, and I have studied this matter very carefully. I know what I am talking about, and I know that men who are eminent in the law, and who were members of the Federal Convention, have given an answer to the question put by Senator Harney. It is, therefore, unnecessary for me to’ go into details of that character. I say that, in present circumstances, we should be justified in staying our hands until we are in a position to establish a High Court that will be worthy of Australia.
– I look upon the establishment of a High Court as a great and solemn duty, the fulfilment of which has been too long delayed, and which ought to be proceeded with at once. If the Constitution itself did not require us to do what we are proceeding to do, it seems to me that common sense and the ordinary usages of civilized nations would lead us to take this course. I have, as I suppose we all have, a great deal of sympathy with the cry for economy. But economy must be properly directed, and if there is anything on the face of the earth that is not economical, it is bad law, or law improperly directed and insufficiently administered. The truest and best economy for Australia is a High Court, established on a broad and liberal basis, and clothed with such honour and dignity as we can give it. I do not propose to detain the Senate any longer. I should like to say that I am proud of the position which has been taken up by a majority of honorable senators. I think that most honorable senators have spoken from a high sense of the importance of the question, and of the greatness of the Commonwealth ; and they have seen how much depends upon the character of the High Court which we are to establish. I hope that when we get into Committee we shall take some steps which will tend to improve the Bill, and that we shall send it out of this Chamber a better Bill than it is at the present moment.
– I shall not take up more than a few moments in reply. I have always followed the rule in the Senate never to take up time unless there is some necessity for it. The arguments that have been used in support of this measure have been put with the utmost strength and the greatest possible eloquence. The arguments on the other side have been answered completely. There is, therefore, really no advantage to be gained by my taking up the time of the Senate in repeating what has already been said. Some few amendments will require to be made in Committee, dealing, for the most part, with questions of drafting, while some will be of a little more importance. These will be explained as they come up for consideration.
Question put. The Senate divided.
Majority … … 14
Question so resolved in the affirmative.
Bill read a second time.
In Committee :
Clause 1 agreed to.
Inthis Act, unless the contrary intention appears - “Appeal” includes an application for a new trial.
– I move -
That, after the word “trial,” line 4, the followingwords be inserted : - “ and any proceeding to review or call in question the proceedings, decisions, or jurisdiction of any court or Judge.”
The amendment is submitted with a view to preventing the word “appeal” being interpreted in a narrower sense than is intended. The amendment will give a much wider meaning, especially as “ appeal “ is said to include an application for a new trial, and it might be held that it did not embrace a number of matters which it ought to embrace.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 3 postponed.
The High Court shall be a superior court of record, and shall consist ofthe Chief Justice and two other Justices who shall respectively be appointed by commission.
– I should like to express my regret that the court has been limited to three Justices, which I regard as altogether an insufficient Bench. The Commonwealth High Court should not be inferior in a numerical sense to the States Courts. I do not propose any alteration, but I am sorry the number of Judges was reduced in another place. I hope, however, that ere many years have passed, the number will be increased to at least five.
– Shall I be in order in moving that after the word “ two” the words “ or more” be inserted ?
– There must be a definite number of Judges provided for in the Bill, because it would never do to give the Government power to appoint as many as they liked.
– It is well known that if this Bill pass, the work of the court will be largely that which is now done by the States Courts ;. and under the circumstances we might make it possible for the States to reduce their number of Judges. With that end in view I move -
That, after the word “ Justices,” line 3, the words “ chosen from the States SupremeCourts “ be inserted.
Such an amendment would assist the States in reducing their expenditure on the administration of justice.
– The only effect would be to limit the choice of Justices to those of the States Courts.
– The honorable senator might propose that the J udges “ may “ be chosen from the States Courts.
– That is provided for in the next clause.
– I know ; but it occurred to me that an amendment of the kind would reduce the expenditure which the States at present have to bear.
– Does Senator Charleston think there are too many Judges, in the States Courts now ?
– From what I can learn, I should say there are too many.
– Then the States can easily find the remedy them selves.
– That is not so, because the Judges are chosen for life.
– How can we limit the number of the States Judges?
– I do not know that we can limit the number of the States Judges ; but if we constitute the High Court of Judges at present employed in the States, we shall not add to the expenditure of the Commonwealth as a whole.
– But the vacancies in the Stales Courts would be simply filled up by the appointment of other J udges.
– That might be ; but I presume, from what I have heard, that the vacancies would not be filled up.
– Does Senator Charleston think that the High Court should be a place in which to shunt unnecessary State Judges ?
– That is not ja fair way of putting the matter.
– Well, a place for superfluous Judges.
– I presume that there will be some superfluous Judges, seeing that the work of the High Court will largely consist of work now done by the States Courts.
– The States would give us the least able Judges.
– Or the J Judges of whom they want to get rid.
– Would Senator Charleston propose to invite applications from the States J Judges ?
– Or advertise the vacancies in the Argus ?
– Does Senator Charleston wish to limit the choice of Judges 1
– I want, if possible, to prevent any increase of expenditure.
– But the States J Judges would have to be paid if they came to the High Court.
– The States would be relieved of their services, and, under the circumstances, I submit the amendment.
– The amendment of Senator Charleston would result in a very peculiar arrangement. From which State are we to take the Judges’! I suppose that if Tasmania had an extra derelict they wanted to get rid of, or Queensland had some worn-out craft, we should have to take them. Two States only can be affected ; and to whom shall the discrimination be left 1
– Draw lots.
– But that is against the Commonwealth law.
– Not so long as the Post-office is not used.
- Senator Charleston ought to see at a glance how ridiculous his proposal is. No economy could result, because the States would simply fill up the vacancies under the powers given to them by their present Acts. There is nothing in the proposal to indicate from which States the J Judges are to be taken, and it would be much better to pass the clause as it stands.
– I suggest that ^Senator Charleston withdraw his amendment. His object is a laudable one, but it is impossible to attain it in the way he proposes. No economy could be effected, because if the States did not want to get rid of the Judges, the vacancies would be simply filled up. On the other hand, the choice of the Government would be restricted to one class.
Senator PULSFORD (New South Wales). - If I did not know that Senator Charleston was serious in politics, I should think his object was to throw contempt on the proposed Federal High Court. If we pass the amendment, or anything approaching it, we shall certainly throw a slur on that tribunal. And if Senator Charleston had thought the matter out, he would not have submitted his proposal.
– There is really more in Senator Charleston’s amendment than honorable senators seem to think.
– It is sure to suit Senator Zeal “down to the ground.”
– Senator Charleston wishes, if possible, to decrease the expenditure of the States without impairing the efficiency of the High Court.
– Can a Judge be spared in Victoria 1
– Never mind Victoria ; I am addressing myself to the remarks of Senator Charleston. There is nothing to prevent the proposal being carried out, and I cannot see that it could do any harm if the word “ may.” be introduced as already suggested. It is ridiculous to suppose that the Government would appoint inefficient Judges ; and, speaking for Victoria, I am quite sure that no High Court could possess Judges more eminent or better qualified than those who preside in Victoria.
– That is a public utterance.
– It is.
– What is the honorable senator’s private opinion 1
– That is my public and private opinion on this particular occasion. It seems to me that honorable senators are trying to disregard economy ; but I am quite sure that after the High Court has been established for some little- time, the estimated expenditure of £23,000perannum will be found tobe utterly inadequate. I have shown on a previous occasion that the salaries of the officials, without including police, tip-staffs, court orderlies, and the like, will amount to £23,000 or £24,000 per annum ; so that the total cost must ultimately he nearly double that amount. The suggestion of Senator Charleston is not one to be lightly disregarded, if he will use the word “ may.”
– That is provided for in clause 5.
Senator CHARLESTON (South Australia). - My idea is that almost every Judge now sitting on the Benches in the various States would be only too pleased to be elevated to the Bench of the Federal High Court.
– Elevated at a lower salary !
– Even if the choice of the Government were limited to the J Judges of the States Supreme Courts, I think there would be found to be a sufficient number anxious to take the positions. W e should then have men of experience - nien who have adorned the Benches in the various States, and who would ascend the High Court Bench with a prestige which would justify the confidence the public ought to feel in such a tribunal. I submit the amendment not with a view of embarrassing the Government, but in order to give them the choice of the very best men. That was my sole object in moving this amendment.
Clause agreed to.
Clause 5 -
The qualification of a Justice of the High Court shall be as follows : - He must be either a Judge of the Supreme Court of a State, or a practising barrister or solicitor of the High Court, or of the Supreme Court of a State of not less than five years’ standing.
– In some of the States there may be a difficulty in appointing a Judge while he remains a State Supreme Court Judge, and it is necessary to provide that in that case a Judge may retire, and then be appointed to the High Court. I, therefore, propose to move to insert after the word “ be,” in line 2, the words “ or have been.”
– The neatest way would be to insert the words after the word “ either.”
– That would bethe better way of effecting the purpose. I move -
That the word “be,” line 2, be omitted, and that after the word “either” the words “be or have been” be inserted.
Amendment agreed to.
– In Queensland we have what is known as a District Court. . I believe that” in Victoria similar courts are called County Courts. Would this clause debar Judges from a District or County Court from being appointed to the High Court Bench 1
– Why should it? District or County Court Judges are always barristers or solicitors, and are as fully qualified to take positions on the High Court as are Judges of the Supreme Courts.. I move -
That after the word “Court “ line 3, the words “or of a District or County Court” be inserted
– I cannot ‘ accept this amendment. We ought to lay it down that certain qualifications shall be necessary for Judges of the High Court, and the qualification should be prescribed in such a way that there will be no possibility of any person being appointed who isnot thoroughly worthy to occupy a seat in the High Court. A Supreme Court Judge is, by virtue of his daily work, versed in almost every branch of law.
– By virtue of hispolitical friends getting him the billet.
– -If the honorable senator introduces an element of that kind I would pointout that the same objection mightbe made concerning any man. It is necessary that there should be a limitation, first to insure that the persons appointed shall be men of adequate experience. The Judgeof a County or District Court is not always a man who has had a varied experience. The jurisdiction of a District or County Court is of a limited nature. In New South Wales,. . for instance, the District Courts have nojurisdiction in questions involving titles to land. Their jurisdiction is limited to £200’ in amount. The result is that the class of cases which the Judges of these courts have-, to try do not embrace anything like the areaof law which a Supreme Court Judge’s daily work brings him in contact with. A man who has been upon the Bench of a District Court, although a very good Judge in every respect, as many of the Judges of the County
Courts are, is necessarily restricted in his experience. For that reason, it is not desirable to widen the limitation as proposed by Senator Stewart.
– A practising barrister may be limited in his experience.
– A practising barrister would be a well-known man before he would be likely to be appointed to a position of this kind. No matter what limitation is imposed, appointments will have to be made by the Government. We must trust the Government to make the best choice’ and we must leave it open to them to appoint a practising barrister, knowing that any man whom they appoint will, if he has had any practice at all worth speaking of, have had a practice extending over every branch of law.
– I am very sorry that the Vice-President of theExecutive Council does not see his way to accept the amendment. I speak with some diffidence after the observations which he has made, but I know of two cases in Queensland in which District Court Judges were promoted to the Supreme Court Bench. I refer to the late Judge Pring and the late Judge Shepherd of Queensland, both of whom were District Court Judges before being elevated to the Supreme Court Bench. It was considered in those days that the experience gained as District Court Judges did a good deal to qualifymen for the higher positions. It is a pity to restrict our choice. In New South Wales District Court J udges are frequently appointed acting Judges of the Supreme Court. Have they not even greater experience than some of the Supreme Court Judges have? I shall support the amendment.
– I have no desire to restrict the choice of the Government unnecessarily in the appointment of High Court Judges. Senator O’Connor has given a fair reply to the objections he himself raised as to the power of appointing District or County Court Judges when he said that we must trust the Government in making these appointments. The Government have power to appoint a practising barrister or solicitor of five years’ standing. That is to say, they have power to appoint a man who, perhaps, has not appeared in court a dozen times in his life. We know that no Government would be so foolish as to appoint a man of such limited experience. It is not likely that any man would be appointed to. the High Court Bench unless he had been practising for a longer period than is necessary to qualify him to be a Judge of the Supreme Court or of a District Court. It is not a wise thing to place a bar upon the appointment of any member of the profession who has been qualified sufficiently long to take the position of a Supreme Court Judge. I admit that the work, of a District or a County Court Judge is, to a great extent, upon a different line from the work of a Supreme Court Judge. There is a difference in practice or procedure. But I do not place much reliance upon that. If we are going to say to barristers - “ If you take the position of a District Court or County Court Judge, it will be a bar to your promotion,” the States would have to look to an inferior class of men to be appointed to District and County Court judgeships. As these are the courts which deal with the affairs of the masses of the people, it is important that the States should be able to find good men for the positions. They should be men who have a good grip of the law, and of all the circumstances affecting a case. For these reasons we should not impose a bar. As Senator Walker has stated, in New South Wales, Judges of the District Court are frequently appointed temporarily to be Judges of the Supreme Court. To one part of New South Wales, Broken Hill, it is the practice to send a District Court J udge to take the circuit work of the Supreme Court. I admit that hehas not to deal with nice questions of pleadings, and do the Chamber work which Judges of the Supreme Court have to. On the ground that it is not wise to restrict the choice of the Government, it will be well to accept the amendment. After all is said and done, if the Government do not consider that a man is suitable, he will not be appointed. Suppose, for the sake of argument, that a man happened to be placed on the District Court Bench for a week, he would be barred from the prospect of getting a position on the Federal Supreme Court unless he had resigned his judicial position and practised at the bar for a few years. The Bench of the Supreme Court of New South Wales includes a gentleman who was a good Judge of the District Court for a number of years and afterwards returned to the Bar. Another gentleman who is looked upon as eminently qualified for the position of Supreme Court Judge, and who by the’ sheer accident of ill health missed the opportunity of getting an appointment, is a District Court Judge in New South “Wales. His varied experience was of such a character as would have enabled him to fill a position on the Bench of the Supreme Court with the same dignity, honour, and ability as any of its number. He acts as a Judge of the Supreme Court every now and then. Senator O’Connor is in a position to verify my statements. Do not let us do anything which will give the idea that we desire to bar any particular members of the profession. Let us make the field of choice as wide as possible and trust to the Government, who, if they are ordinarily prudent, will take care not to make any ludicrous appointment.
– I agree with Senator O’Connor. After all, it lies with the Executive Government to say whom they shall appoint, and if we were to give full effect to the argument of Senator Gould we should have no limitation whatever. Why is this provision put in the Bill ? It is inserted to keep the Government from doing anything which is very foolish. When the Legislature says that the Government shall not appoint a practising barrister of less than five years’ standing, all it means is that, however excellent a man may be, he is not to be regarded as having had the requisite experience until he has had five years’ practice. And if we say that a member of the County Court Bench may be appointed, it will simply be left open to the Executive to say whether such a person ought to be chosen. But it will bring about this anomalous position : that a man may be eligible for appointment to the Federal Supreme Court who is not eligible for appointment to the State Supreme Court. When ‘we restrict the choice to practising barristers of at least five years’ standing, it is left open to the Government to choose a man who has distinguished himself in his profession. When a man is appointed to the County Court Bench he is removed from active practice and may be removed from it for many years, and his experience in that position is entirely different from that which would prove of assistance to him on the Bench of the Federal Supreme Court. Therefore, it is quite right to deter a man who is ambitious enough to think that he is fit to occupy a seat on the High Court from taking a position on the Bench of the County Court. We should do nothing which would lead the public to think that the Federal Supreme Court is a less important body than a State Supreme Court. I do not think it will be found that in Western Australia a person who has held a position on the County Court Bench can obtain a position on the Supreme Court Bench. We ought not to make it possible for such a man to obtain a position on the Bench of the Federal Supreme Court.
– There is a practical difficulty which, I think, may well be taken into consideration. The amendment would do a very grave injustice to South Australia. It would not cover our case. We have neither County Courts nor District Courts strictly so called. We have a system of what are called Local Courts, and the effect of the amendment if carried would be to exclude - suppose that they were otherwise eligible - those who in our State have a very much larger and more important jurisdiction than that of many County or District Court J Judges elsewhere.
– Alter the amendment accordingly.
– I am going to point out another circumstance, which I think will induce Senator Stewart to withdraw the amendment. But, in the meantime, I wish honorable’ senators to appreciate the position that the gentlemen who preside over the Local Courts in South Australia exercise a very much larger jurisdiction pecuniarily, and in other respects, than the Judges of the County and Districts Courts in other States.
– What is the qualification before they are appointed 1
– The majority of those who preside over these tribunals are laymen ; but the gentleman who presides over the Central Court is a trained barrister, not only exercising the jurisdiction of the local court, but exercising insolvency jurisdiction as well;’ in fact, doing a great deal of work which is generally done in insolvency jurisdiction by a Court Of Equity. If South Australia is included within the scope of the amendment by putting in the words “Local Courts,” it would qualify for the position of High Court Judge a large number of most excellent laymen who have no professional qualification.
– They are merely stipendiary magistrates.
– They are called stipendiary magistrates, but they are County Court Judges in every sense of the term. They exercise all this wide jurisdiction; and still they are laymen. So that, if the words “ Local Courts-“ were inserted in the amendment, we should have a qualification for a High Court Judgeship which required no professional training of any sort, and it would mean that any layman might be appointed. Why should the Judges of the Local Courts of South Australia be shut out ?
– Because they are not professional men.
– One of them is, and I undertake to say that his predecessors have been as able, perhaps abler Judges than many, perhaps most, of those on the County Court Benches in the other States.
– It is not necessary that he should be a professional man 1
– The Commissioner of Insolvency has to be.
– Well, make him eligible for appointment, but not all of them.
– I wish justice to be done to the Judges of our Local Courts, and I do not see how it is to be done by this amendment. Whether Local Courts are included in the amendment or not, an injustice will be done. Senator Gould has said that he has known instances in which District Court Judges have acted as Supreme Court Judges. Our Commissioner of Insolvency has acted as County Court Judge with the greatest satisfaction to the community.
– Why not put in an amendment which will make him eligible for appointment ?
– If the Local Courts are covered _by the amendment, the effect will be to include persons who have no professional qualification, and if they are not included it will shut out one man exercising a superior jurisdiction in our State, who is, if anybody would be, certainly eligible. That is not quite fair.
– It can be done in another way. We can insert the same words before practising barrister as before a Judge. 7 a 2
– It seems to me that either we should wipe out the qualification and leave the choice to the Government, who certainly would not- appoint an unqualified man, or else we should leave the clause as it is. It is also to be borne in mind that while we have most excellent men on the Benches of the County and Local Courts, the natural field of ambition for them is the Bench of the Supreme Court. At any rate, unless we enlarge very greatly the qualification, it would be rauch better to leave the clause as it is. It provides for the usual qualification with regard to an Appellate Court.
– As one who is a great believer in economy of time, it is left for mo to draw attention to the great waste of time that has taken place during this debate. I ask honorable senators to come down to bed-rock, and bedrock in this matter is that all this talk of extending the choice of the Government is so much nonsense. Senator Stewart proposes to extend the choice of the Government by including County Court and District Court Judges. Do not politicians of the most ordinary brand of common sense know that it is the intention of the Government to appoint to the High Court Bench members of the present Federal Parliament? Honorable senators will recollect that when I moved a motion in this Chamber, providing that no member of the Federal Parliament should accept a position in the civil service, until he had been twelve months out of Parliament, a majority of two to one cast the motion out. Some honorable senators, who have a great gift of flattery at their command, at once commenced to butter up other honorable senators, and to ask whether I desired that they should not have a chance of appointment to the High Court Bench. We had references to “ my honorable and learned friend of so many years’ standing “ and so forth. Since it is decided that only members of the Federal Parliament should be eligible for these positions, why should honorable senators raise false hopes in the minds of some poor Judges outside when they know that they have no possible chance of appointment ? The sooner this Bill becomes law, and the High Court J Judges are appointed, and the sooner we remove from the political atmosphere, so far as we can, any temptation to members of this Parliament to regulate their course with regard to certain possible future events, the better.
– Would the honorable senator give me a show ?
– I should be- willing, if it were in my power, to allow Senator McGregor a chance to practise in the Court without having to pass the extraordinary examination which the lawyers’ trades union declares to be necessary. I think the honorable senator would be an ornament to the Bar. But we are taking up unnecessary time in discussing a proposal whether we should allow County Court and District Court Judges to take a position on the High Court Bench when we know very well that none of them will ever be invited to do anything of the kind.
– I am very sorry that the Vice-President of the Executive Council cannot see his way to accept this amendment. It seems to me that all we have to aim at in this clause is to secure that the class of persons from whom the Justices of - the High Court shall be selected shall be qualified persons. Senator Harney put the case properly when he admitted that it was comparatively a matter of no consequence, because after all the Executive will have the choice of persons to occupy these positions, and they will have regard for the necessary qualifications in malting their selection. That, it seems to me, is an argument against Senator Harney’s intention to vote against the amendment, because, by making County Court and District Court Judges eligible for these positions, we in no way affect the action which will be taken by the Executive.
– It would be anomalous that a larger class should be eligible for the High Court Bench than for a State’s Supreme Court Bench.
– It would be so if the facts were as Senator Harney suggests. But these persons are eligible for appointment to the Supreme Court Benches of the States, provided they fulfil certain necessary conditions. In most of the States a man occupying a seat on a District or County Court Bench may be promoted to the Supreme Court) Bench. Senators Gould and Walker have referred to instances in New South Wales in which men from District Court Benches have been acting as Supreme Court Judges, and to-day in Victoria a County Court Judge is acting as a Supreme Court
Judge. We, by this legislaton, are by implication saying that a certain number of Judges can never hope to be elevated to the High Court Bench, no matter how great may be their qualifications.
– Unless through the Supreme Courts of the States.
– That would involve that they should be transferred to a Supreme Court Bench of one of the States at a time when there was a vacancy in the High Court Bench.
– Unless they went back to the Bar.
– Then they would require to practise for five years, and the vacancy would not wait for them.
-Col. Neild. - Surely the five years would represent the time during which they had been members of the Bar, and not necessarily the time during .which they had been actually practising.
– Senator Stewart is willing to insert the words “be or have been “ before the word “ practising.”
– “Have been” would not do, because the barrister might have been struck off the rolls.
– That would apply also to a Judge of the Supreme Court, who might have been removed from the Bench on account of incapacity or misconduct. Senator Higgs, in addressing himself to this question, has assumed that we are. now about to determine the personnel of the High Court for all time. The honorable senator tells us that the Justices of the High Court will be selected from the political arena, but we are making provision here for the continuance of the High Court throughout the whole of the existence of the Commonwealth, and when 30, 40, or 50 years hence the Executive of the day are called upon to fill vacancies on the High Court Bench, they should be entitled to pick out the most qualified men for the position, even though they should happen to occupy positions as County Court Judges.
– How can a County Court Judge qualify for the position, when the class of work in which he is engaged is not at all that which a Judge of a Supreme Court has to do 1
– The honorable and learned senator must know that that argument is of equal force applied to the case of a practising barrister. There are many practising barristers, whose work is of a special kind, and who never interfere in other domains of the law.
– A practising barrister may practise anything, while a County Court J udge’ must practise at one thing.
– He will have experience of different classes of work. There are some matters which will be beyond his jurisdiction, but apart from those he will ileal practically with everything; and he will have a better opportunity than a special practising barrister of making himself intimate with the principles of law governing matters beyond his jurisdiction; whilst in his own domain he may have a greater variety of work to perform than any practising barrister.
– Shall we have a more virtuous Government ten or 50 years hence ?
– I am not dealing with the comparative virtue of the present Government, but I remind Senator Higgs that he ought not to be motived in voting for this clause, by any consideration of the personnel of the first High Court. The question is - -Is a man, simply because he happens to be a County Court or a District Court Judge to be absolutely debarred, no matter what his attainments may be, from any chance of promotion to the High Court Bench ? Are the people of Australia to be denied the right and privilege of having appointed to the High Court Bench a man of great attainments, simply because at some time during his career he has thought well to accept a position on a County Court or District Court Bench ?
– If he is any good, he will not take a County Court Judgeship, and having taken it, he will have no opportunity to qualify himself for the High Court Bench.
– I am sorry that Senator Harney should make such a reflection _ upon Judges at present occupying seats on County Court and District Court Benches. The past history of these courts will show that their Benches have been very creditably filled. Many of these men have had a reasonable hope that in due time they would be elevated to the Supreme Court Bench in their State, and if a vacancy on the Supreme Court Bench existed at the time of their appointment to the County Court, they might have been appointed to fill that vacancy. I hope the Vice-President of the Executive Council will not tie the hands of the present or any future Executive in this matter. I hope that no restriction will be placed upon the selection of men to fill the High Court Bench, but that every man of legal attainments, no matter what his position, will be considered eligible for appointment if he has the necessary qualifications. Senator Symon suggested that an anomalous condition of things would arise if Senator Stewart’s amendment were agreed to in the form in which it is put, because certain local courts in South Australia are presided over in all but one instance by laymen. The honorable and learned senator suggested that the amendment should be so framed as to include the local court, because amongst the local court Judges in South Australia there is one who possesses the necessary professional qualifications.
– There may be more ; a few years ago they were all professional men.
– I do not think Senator Stewart should be induced to withdraw his amendment or to modify it because one man in South Australia of the same class as those whom he proposes to include would not be eligible. I should riot like to see the amendment so qualified as to make a lesser number of men eligible simply because a man in South Australia may be ineligible. I hope the amendment will not be withdrawn.
– I was very much surprised to hear the remarks of Senator Symon, who led the Committee to believe that eminent laymen are performing the duties of Judges in inferior courts in South Australia in quite as capable a manner as could qualified men. Does that not strike at the root of the whole discussion 1 Does it not show that the qualifications of Judges for the .High Court have altogether been over-estimated, and that laymen, with their common sense, may make suggestions worthy of attention ? If democracy has any claims whatever, the proposal of Senator Stewart is one which the Committee should unanimously accept. It is within the recollection of representatives of Victoria that some time ago a County Court Judge for many years occupied an important position as Supreme Court Judge ; and Senator Gould has told us that in New South Wales a Judge of a District or County Court has, with advantage to the State, discharged similar duties. The Government are not bound to select any man ; and if they can get a competent J udge from either the County or the District Court, surely they ought to take advantage of his services. The Government will not select an inferior man, and there should be no bar to the promotion of any one qualified to become a Judge. The late Lord Armstrong was a lawyer to begin with, but he proved to be one of the best engineers of the age ; and I. can tell Senator O’Connor that there is one man, if not more than one, on the County Court Bench who would fill the office of Judge with as much distinction as would any practising barrister in the Commonwealth.
– At one time the Lord Chancellor was usually an ecclesiastic.
– The Committee will not lose anything by being liberal in this matter ; and will be given an opportunity to deserving men, who may have been forced by circumstances into an inferior court, to become eligible for a seat on the High Court Bench.
– It may give such a man an opportunity of toadying to the Government instead of being satisfied with his billet.
– That is not the way in which I should put the matter, and, at all events, I do not think that that would be the .effect. There is not the slightest doubt that only sheer ability will count in such an appointment.
– I must admit that the discussion has shown some good reason on the part of those who wish as far as possible, to do away with all limitation.
– What does Senator O’Connor think of my view ?
– I simply regarded” it as an example of the humour with which Senator Higgs frequently favours the Canute. I am about to make a proposal which I think will remove all difficulty. Whatever amendment may be carried the responsibility for the appointments must rest with the Government, and that responsibility will be exercised in the full light of public and press discussion. No Government would dare to appoint a person whom they did not believe to be suitable, or who had not by. his conduct and career shown himself to be fully qualified. That being so, I do not see that there is much necessity for preserving the restriction.
The next question is, How are we to carry out the view which has been presented to the Senate1? Senator Symon’s allusion to South Australia has made it quite evident that it would be unsafe to indicate any particular class as ineligible for employment. There is no doubt that the Local Courts in South Australia have quite as large, if not a larger, jurisdiction as County or District Courts elsewhere ; and 1 am quite willing to carry out Senator Stewart’s views, but in another way, which will really amount to’ the same thing. My suggestion is that” after the word “or” the words “be or have been “ should be inserted. There will, first of all, be the necessity that a man must be, or have been, a practising barrister for five years. If he be on the County or District Court Bench, or the Bench of any other court, and before he assumed that position had practised as a barrister, he will be eligible. I do not think that the field of choice should be any wider.
– Does that mean a man who has practised in any court?
– Yes. A barrister or solicitor must be admitted by the Supreme Court as the only body with power to admit him ; but, as a barrister, he may practise in any court he likes.
– I ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment (by Senator ‘Stewart) agreed to-
That after the word “ or,” line 3, the words “ be or have been “ be inserted.
Clause, as amended, agreed to.
Clauses 6 and 7 agreed to.
Clause 8 -
A Justice of the High Court shall not be capable of accepting or holding any other office or any other place of’ profit within the Commonwealth, except any such judicial office as may be granted’ to him under the King’s sign-manual or by the authority of the Lords of the Admiralty of the United Kingdom in matters of prize, or .as may be conferred upon him by or under any law of the Commonwealth .
– This clause, I understand, will have the effect which I indicated to the Senate the other day, of precluding the possibility of any Judge of the High Court occupying an executive position such as that of Acting Governor-General, or Lieutenant-Governor, or any office of similar description within the Commonwealth, and, of course, within a State.
– That is . the intention of the clause.
– I think the language of the clause is large enough to cover the intention; but, in regard to the exceptions, I# move -
That the following words be omitted: - “As may be granted to him under the King’s signmanual, or by the authority of the Lords of the Admiralty of the United Kingdom in matters of prize, or” -
A Justice of the High Court ought not to be open to appointment to any judicial office other than that conferred on him by the Commonwealth. I particularly take that view because I wish to exclude the possibility of any Judge of the High Court being appointed to the Privy Council. With the best of objects, no doubt, we have had experience of such appointments, and I think it must have come home to every one of us as an entire anomaly that a person actively occupying the position of a J udge in one country should also hold the nominally active position of a Judge in another country. I feel that it is the desire, as expressed in this Senate, that when the Federal High Court is organized and in working order it shall be a truly Australian Court ; and it would be anomalous for any one having a seat on the Bench to hold another office, the duties of which it would be impossible for him to perform. There are instances in connexion with Admiralty jurisdiction which do not involve appointment to any judicial office, but simply involve the conferring of jurisdiction. That is done by means of Imperial Acts, which formerly conferred Admiralty jurisdiction on an Admiralty Judge ; but, so far as my recollection goes at this moment, that jurisdiction is now exercisable by the Judge of any Supreme Court. That is so, at any rate, in South Australia under the recent Admiralty Act. As to “.matters of prize,” that is an old-fashioned phrase which found a place in the United States Judiciary Act of 17’89, but which has no application, so far as I am aware, to modern conditions.
– It is a relic of the privateering days.
– That is so, I suppose, because the whole Admiralty jurisdiction - is now conferred in the way I have described. The object of the clause is served by simply providing that a Judge shall not hold any office except that which may be conferred on him by one authority, and one authority only, namely, the Commonwealth to which he owes allegiance.
– I was about to move this amendment on very much the same grounds as the honorable and learned senator has put. Such an amendment would really be consequential upon the amendments made in the Bill in the other House. The reason why these words are in the clause is that when the Bill was originally introduced in the House of Representatives it conferred Admiralty jurisdiction. It ls quite true that in all the States except New South Wales and Victoria, the Admiralty jurisdiction is exercised by the Supreme Court under an Admiralty Act, called the Imperial Colonial Courts of Admiralty Act 1890. But when that Act was passed it was provided that it should apply to all colonies or possessions in regard to which a proclamation was made. No proclamation was made in regard to Victoria and New South Wales. Therefore, in both those States Admiralty jurisdiction is’ exercised by what are called Vice-Admiralty Courts, presided over by Judges appointed by the Imperial Government. These Courts have no jurisdiction in matters of prize, and it was largely on account of New South Wales and Victoria that these words were inserted. But the High Court will have no jurisdiction unless it is given by proclamation, and as that jurisdiction is not given by this Bill the words are inapplicable.
– The moment it is desired to give jurisdiction there can be a proclamation.
-That can be done when the jurisdiction is conferred upon the High Court. I thoroughly agree with the view which Senator Symon has put as to any Judge not holding any office which is not conferred upon him by the Parliament of Australia.
– I wish to ask the Vice-President of the Executive Council whether this clause will debar the Chief Justice of the High Court from accepting the office of Lieutenant Governor-General during the absence of the Governor-General 1
– Undoubtedly it would ; and a very proper thing too.
– Who will occupy the position then?
– It is not for us to say that now.
– The practice has worked very well in the States so far as I have known. At any rate we in Victoria are perfectly satisfied with what has happened.
– This does not interfere with what has been the practice in the States.
– It deprives the Chief Justice of the High Court from the opportunity of being appointed Lieutenant Governor-General duringthe absence of the Governor-General. Is that desirable ?
– It would be giving an executive office to a J udge.
– Who should be more eligible to occupy the Lieutenant Governor-Generalship than the Chief Justice, who would be removed from the arena of politics? The Vice-President of the Executive Council has assumed a great responsibility in allowing this amendment to be made without due consideration. In some instances’ the Chief Justice might be eminently fitted to occupy the position of Lieutenant Governor-General. Indeed, who could be more fitted than a quiet, unassuming, capable lawyer ?
– The amendment will not affect the substantial meaning of the clause in any way. The clause itself prevents the appointment of the Chief Justice of the High Court to the position of Lieutenant Governor-General. I accept in all friendliness the suggestion of Senator Zeal not to consent to the amendment without due consideration. But the Bill as introduced provided that it was impossible for the Chief Justice to act as Lieutenant Go vernor - General, and this amendment does not affect that question. I hold a strong opinion that the two positions are inconsistent. We, however, are not considering the best way of appointing a Lieutenant Governor-General, but the best way of keeping a High Court Judge or the Chief Justice from being touched with the suspicion of political inclinations. In the States, Chief J ustices who have been Lieutenant-Governors have often had to occupy public positions in times of crisis when men’s passions have been strongly roused, under circumstances that placed them in situations in which they should not have been.
– Take the cases of New South Wales and Victoria.
– I am thinking particularly of New South Wales. Although no one in the world could say a. word against the integrity and high honorable conduct of the gentleman who has held the office of Chief Justice of that State for so many years, yet he must often have been put into the position of Lieutenant Governor which was inconsistent with that absolute detachment from all public affairs which a Chief Justice ought to occupy.
– Who is to be appointed Lieutenant Governor-General then?
– There are a number of ways in which that can be done. It is a matter for the Imperial Government to consider. What we have to see to is that the Chief Justice of our High Court is kept apart from any contact with politics.
– We do not want to take a leap in the dark.
– The matter has been very fully considered, and the amendment does not affect the purpose that the honorable senator supposes. That has. been effected already by the clause as passed by the other House. I have risen to explain this, because it was due to the honorable senator to make an explanation. I hope that he will be satisfied.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 9 -
Every Justice of the High Court shall, before proceeding to discharge the duties of his office, take oath or affirmation of allegiance in the form of the schedule to the Constitution, and also an oath or affirmation in the form following : -
I, A. B., do swear that I will well and truly serve our Sovereign Lord the King in the office of a Justice of the High Court of Australia, and I will do right to all manner of people according to law, without fear or favour, affection or ill-will : So help me God.”
I, A. B., dp solemnly and sincerely promiseand declare that (&c., as above).
– At the end of this clause there is a form of oath, and also a form of affirmation. I do not think that it is customary to have at the end of a form of affirmation the words “ so help me God.” I suggest that the affirmation clause should be inserted intoto. A great many people have strong views on this point. We ought to say that the affirmation shall be in the form of the oath, with the exception of the words “ So help me God.”
– Is that necessary ?
– In affirmations these words are not usually included.
– I quite appreciate the honorable senator’s view, but I do not think there can be any doubt about the point. The words of the oath commence -
I, A. B. , do swear that I will well and truly serve …
The close of that form is the ordinary words that conclude an oath, “ So help me God.” But the affirmation commences -
I, A. B., do solemnly and sincerely promise and declare . . .
There are no words of oath there.
– There are at the end.
– The four words mentioned by the honorable senator would not be included in the affirmation because they are not appropriate to a declaration.
– Then why include them ?
– Can any soul in the world be misled by this form? I do not see how it is possible. The honorable senator will see that it is provided that every Justice before proceeding to discharge the duties of his office has to take “ an oath or affirmation of allegiance:” That is to say, the affirmation of allegiance is distinct from the oath. It is impossible for any person of ordinary intelligence who has to administer the oath to make a mistake.
– I think that the best way will be to repeat the words of the affirmation in the clause.
– If the honorable senator feels seriously about the point we can do that.
– Many of my friends i have strong feelings on the matter.
– Then I have no objection to an amendment being made.
Amendment (by Senator Walker) agreed to-
That the following words be added : “ Except the words ‘ So help me God.’”
Clause, as amended, agreed to.
Clause 10 agreed to.
Clause 11 -
Senator STEWART (Queensland).Subclause (3) provides that the GovernorGeneral may establish district registries on the recommendation of the Justices of the High Court, or a majority of them, of whom the Chief Justice is one. We might very well omit the words “ of whom the Chief Justice is one.” As the clause stands at present, the consent of the Chief Justice is absolutely necessary before an additional registry can be established. There is really no difference between the three Judges, except that one of them by courtesy is called Chief Justice. I do not see why, if two are in favour of an additional registry being established, even though one of the two is not the Chief Justice, their opinion should not have weight. Therefore, I move -
That the words “ of whom the Chief Justice is one,” lines 3 and 4, be omitted.
– There is a very good reason for retaining the words. Senator Stewart is in error in saying that the Puisne Judges have the same functions, and stand in the same position, as the Chief Justice. The Chief Justice is the head of the Administrative Department of the High Court, which is particularly concerned in the appointment of registries. He is the person who officially stands for the High Court. The writs are attested in his name; he has the control of all the officials who carry out the work of the High Court in the different offices, and it certainly would be an extraordinary thing if in a Court of three Judges a majority were to carry a recommendation against the Chief Justice, who really is responsible for the control and management of the registries. There is not likely to be such a difference that it will be necessary to use the power which is given in these words, but certainly it ought to be there to be used, and the Chief Justice, who is responsible for the proper administration of the Judicial Departments, certainly ought not to have a recommendation made with regard to the establishment of a new Department without his consent. I think that honorable senators will see that if we are to have the administration carried on in an efficient way it is necessary that the man who is at its head should not have recommendations made which will add new offices or local areas of jurisdiction to the High Court without his consent.
Amendment, by leave, withdrawn.
– I think it is undesirable that in the second sub-clause it should be made compulsory to establish a district registry in every State.
-Col. Gould. - I think it is.
– The original jurisdiction of the High Court has been greatly cut away. We should use the word “ may” rather than the word “ shall,” so that it should not be obligatory to take this course. So far as appeals are concerned, a district registry will not be necessary. It is only required in the case of original jurisdiction. It would be very much better to give power to the Judges to establish a district registry if necessary. If the provision is imperative, we may be burdened with -the trouble of organizing a district registry, or entering into a compact with the State to have the work done in a particular way.
– I take a different view on this point. I think it is very desirable that no State should feel that it is neglected in regard to the High Court. Even if there were a very small quantity of business to be transacted, the expense of a district registry would not be very great. In the absence of a district registry, a State would feel that it was being neglected by the High Court. For that reason I think that we should adhere to the sub-clause.
– The reason which Senator Gould has just given is that which appealed to the Government to make it obligatory that there shall be in each State what may be described as an office of the High Court, with which communication may be made by any person in the State, and then the officers in the district registry will communicate, if necessary, with the central office.
Clause agreed to.
Clauses 12 to 15 agreed to.
Clause 16 (Power of single Justice).
– This clause is not necessary now. The jurisdiction of the High Court is fully dealt with in clause 15, and clause 17 provides that its jurisdiction may be exercised by a Justice sitting in chambers. Those are the only two cases which need to be provided for, and therefore I ask the Committee to negative this clause.
Clause 17 agreed to.
Clause 18 verbally amended, and agreed to.
Clause 19 -
Any Justice of the High Court sitting alone, whether in Court or in Chambers, may state any case, or reserve any question for the consideration of a Full Court, or may direct any case or question to be argued, before a Full Court, and a Full Court shall thereupon have power to hear and determine the case or question.
– In this clause there is a slight omission which has to be rectified. Besides a Justice of the High Court, sitting alone or in Chambers, a Judge of a Supreme Court may sit when exercising Federal jurisdiction under the provisions of the preceding clause. And it is necessary ‘ to provide that he may state a case or reserve a question for the consideration of the Full Court. Therefore I move -
That, after the word “Chambers,” line 2, the following words be inserted : - “or any Judge of the Supreme Court of a State exercising Federal jurisdiction under the provisions of the last preceding section.”
– Might he not exercise it in Chambers, too ?
– He will exercise it by virtue of clause 18.
– I would suggest to Senator O’Connor whether it would not be betterin his amendment to substitute the word “and” for the word “or,” and to leave out the words “ under the provisions pf the last preceding section.” Because Federal jurisdiction is also conferred in later clauses, for instance, in clause 40. Wherever Federal jurisdiction is exercised it is well that the Judge should have power to state a case or reserve a question.
– The same right ought to be open to a person appearing before a Judge of a State Supreme Court exercising Federal jurisdiction as before the High Court, and, with the leave of the Committee, I shall alter my amendment in accordance with the suggestion of my honorable and learned friend.
Amendment amended accordingly, and agreed to.
Clause, as amended, agreed to.
Clauses 20 to 30 agreed to.
Clause 31 -
In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction in all matters which involve any question, howsoever arising, as to the limits interse -
– This clause is authorized by section 76 of the Constitution. As honorable senators are aware, original jurisdiction is conferred on the High Court expressly under section 75 of the Constitution in regard to certain matters, and under section 76 power is given to confer original jurisdiction. The Government, in introducing the Bill in the first instance, thought it right to give all the original jurisdiction which could be given under section 76. That is now limited in the Bill to matters referred to in paragraphs (a) and (b) of this clause. It appears to me that the same object will really be better carried out if the very words of sub-section (1) of section 76 of the Constitution are used, “arising under this Constitution or involving its interpretation.” By the use of these words we shall include all the matters referred to in paragraphs (a) and (b) of this clause, and we shall insure that in all cases where an interpretation of the Constitution is involved, or where a party goes to the High Court to claim any right which is given by the Constitution, even although the interpretation of the Constitution is not involved, the High Court should have original juris- diction, as it certainly would appear it ought to have. I therefore move -
That the words ‘ ‘ which involve any question howsoever arising as to the limits inter se -
It seems to me that of the powers which we have the right to give to the High Court that is the most important, and the one which ought to be given.
– Should we not define what Constitution it is?
– The honorable and learned senator will remember that in the Interpretation Act it is provided that “ the Constitution “ shall mean the Commonwealth of Australia Constitution Act. With regard to the matters included under paragraph (b) of the clause, they are really involved in section 75 of the Constitution, because it gives as original jurisdiction the right to hear disputes between States.
– The honorable and learned senator does not propose to include matters “ arising under any law made by the Parliament.”
-No ; that would be a very large jurisdiction, and to do that would be to go back on what has already been determined. It appears to me that the least jurisdiction with which we can endow the Court, beyond what is provided for by the Constitution, is that it shall interpret the Constitution.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 32 and 33 agreed to.
Clause 34 -
The High Court maymakeorders or direct the issue of writs -
Senator Sir JOSIAH SYMON (South Australia). - I think that the words “ not being the Supreme Court of a State” have been retained in this clause through inadvertence. We have invested the Supreme Courts of the States with jurisdiction, and we should have no power of controlling them if these words are left in. I move -
That the words “ not being the Supreme Court of a State,” lines 4 and 5, be omitted.
– There seems to be a reason why these words should be struck out. Because, otherwise, while we should be able to control the Judges of the High Court we could not control the Judges of the Supreme Court of a State exercising precisely the same jurisdiction. I presume that the honorable senator intends to move a similar amendment in paragraph (b).
Amendment agreed to.
Amendment (by Senator Sir Josiah Symon) agreed to -
That the words “ not being the Supreme Court of a State,” lines 8 and 9, be omitted.
– Under paragraph (c) of the clause power is given to the High Court to make orders or direct the issue of writs commanding the performance of a duty by any person holding office under the Commonwealth, but it appears that just as the right is given to issue a writ of habeas corpus - an amendment made in another place - there should also be a light expressly given here to issue a writ of mandamus. A writ of mandamus is issued to command the performance of a public duty, and it may be the discharge of a public duty by an officer of a State, or some person in a State, or by some officer charged with the administration ‘ of public companies. It seems to me it would be largely restricting the usefulness of the Court if it had not the power to issue writs of mandamus generally. To give an illustration. A citizen of a State may bring an action against a citizen of another State ; that can only be cognisable in the High Court. The proceedings there might necessitate the issue of a writ of mandamus to an officer of the second State, and that is not provided for under the clause as it stands. I think the power of mandamus generally ought to be conferred, and it can only be exercised where there is Federal jurisdiction. I move -
That the following new paragraph be inserted : - “(da) of mandamus or”
Amendment agreed to.
– There is another amendment necessary in this clause. The clause gives express power to issue certain writs, and that may be taken to limit the power to issue writs not here mentioned. In order to make it prefectly clear that the clause will not have that effect, I move -
That the following words be added : - “ This section shall not be taken to limit by implication the power of the High Court to make any order or direct the issue of any writ.”
– Would it not be better to say - “Nothing in this section shall be taken to limit the power of the High Court to make any order or direct the issue of any writ? “ That would leave out the words “ by implication.”
– The honorable and learned senator has suggested the usual form, but the advantage of the form I suggest is that it directly prevents any implication.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 35 -
The High Court shall, except as provided by this Act, have jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices, or Judge of the Supreme Court of a State, exercising as a Court of first instance the original jurisdiction of the High Court whether in Courtor Chambers.
– I intend to move , that the words “ or Judge of the Supreme Court of a State “ and also “ as a Court of first instance,” be omitted. The clause will then deal only with Justices of the High Court, the appeals from judgments of the Supreme Court of a State being dealt with later on in sub-clause (c) of clause 36.
– I suggest that the clause might be still further shortened by simply inserting after the word “ exercising “ the words “ Federal jurisdiction.”
– What we desire to deal with is the exercise of original jurisdiction.
– But that would be covered by the clause, as amended in the way I suggest. This clause deals with the general appellate jurisdiction conferred on the High Court, and Supreme Court Judges exercising Federal jurisdiction are quaFederal Judges. Senator O’Connor desires to give a general power of appeal from any Justice or Justices exercising Federal jurisdiction.
– It will not do to put the clause in the shape suggested by Senator Symon, because the jurisdiction dealt with is the jurisdiction of the High Court. The clause deals only with the original jurisdiction of the High Court, exercised either by a Judge of the High Court, or by a Supreme Court Judge who acts for the High Court.
– Clause 35 confers general appellate jurisdiction on the High Court in every matter of Federal jurisdiction. There is no other clause that I am aware of, which confers any general appellate power on the High Court, in reference to matters of appellate jurisdiction, or in reference to matters dealt with by Judges exercising Federal jurisdiction.
– I ought to have pointed out that clause 40 deals with the matters referred to by Senator Symon. Clause 40 provides -
Then the sub-clauses read as follows : -
Clause 40 includes all cases in which a Supreme Court of the State is invested with Federal jurisdiction, except cases in which a Judge of the Supreme Court may sit in Chambers, exercising the power of a Judge of the High Court. These are the only two circumstances under which we wish to deal with the Supreme Court of a State. In sub-clause (c) of clause 36 we deal with the judgment of a Supreme Court of a State exercised by a single Judge sitting in Chambers, and then in clause 40 we deal with general appeals from any Supreme Court exercisingFederal jurisdiction, while in clause 35 we deal with appeals from a Justice of the High Court exercising original jurisdiction of the High Court. If we insert any reference to the Supreme Court in clause 35I am afraid it will be misleading.
Senator Sir JOSIAH SYMON (South Australia). - I see that clause 40 deals generally with the Courts of the States, invested with Federal jurisdiction, and although clause 35 might be made simpler, it would, perhaps, be a pity to disturb the arrangement now. I understand that the intention of clause 35 is that there shall be a general appellate power from a Justice or Justices of the High Court itself, and I would suggest, in order to make ‘it clearer, that after the word “ J ustices “ the words “of the High Court” be inserted, and the remainder of the clause omitted as unnecessary.
– The insertion of the suggested words might meet the case; but I do not think it is necessary to strike out all the remaining words of the clause. We want to make it clear that it is with the original jurisdiction of the High Court we are dealing, and it ought to be unmistakable that it applies whether the jurisdiction be exercised in Court or in Chambers. There is a very strong body of decisions which turn on the difference between a Judge in Chambers exercising their jurisdiction of a Judge of the Supreme Court,in which case there is not appeal except under certain circumstances, and a Judge exercising jurisdiction only as a delegate, or branch of the Supreme Court, in which case there may be an appeal. I desire to leave in the words which provide that appeals may be heard’ from cases whether heard in Court or in Chambers.
Senator Sir JOSIAH SYMON (South Australia). - I ask the Vice-President of the Executive Council to consider whether it would not be advisable to omit the words - “Or Judge of the Supreme Court of a State exercising as a Court of first instance the original jurisdiction.”
It is my intention to move that amendment.
– The difficulty about the amendment in the form in which it is presented is that the appellate jurisdiction may be exercised by two Justices as provided by clause 20.
– But that refers to the Full Court.
– We ought to make it perfectly clear that the J ustices we refer to are not Justices sitting as a Full Court.
– It must be so; it is a High Court sitting to hear appeals.
– We do not want appeals from two J ustices sitting as a Full Court to a Full Court of three Justices. There is nothing more desirable than to have these matters made perfectly clear. That is the object we have in view.
– Clause 35 gives the High Court power to deal with appeals, and it is the only clause that gives that power. We wish to give the power of appeal both in respect of matters that have been determined by Justices of the High Court or of States
Courts Tested with Federal jurisdiction. Senator O’Connor says that the matters are dealt with by clause 40. If we turn to clause 40 we see that it provides that the Courts of the States are invested with Federal jurisdiction subject to certain conditions ; and it would seem to convey that in every case where an. appeal could be brought to the Supreme Court of a State it could also be brought to the High Court. Does not that collide with clause 35, which limits the power of hearing appeals by the High Court ?
– They deal with different classes of cases.
– I am aware of that. But clause 40 says that one can go to the High Court by way of appeal from a State Court exercising Federal jurisdiction. Clause 35 says that the High Court shall only have power to hear certain appeals, and amongst them is not the appeal given by clause 40- I fancy that the draftsman had that difficulty in his mind, when he used the words “ or Judge of the Supreme Court of a State exercising,” &c. Here we have jurisdiction conferred in two ways. First of all, jurisdiction is given to the High Court to hear certain appeals. That is contained in clause 35. If clause 35 is read as a mandate, we find that it only gives power to hear appeals in respect of matters decided by the Justices of the Supreme Court of a State. It gives no power to hear appeals in reference to matters that have been decided by States Courts exercising Federal jurisdiction. But we find in clause 40 that States Judges exercising Federal jurisdiction have their decisions appealable to the High Court. Therefore, would not that lead to great difficulties of construction ? The J udge who would be trying to construe these two clauses, would say to counsel - “ Do you contend that an appeal lies to the High Court under clause 40?” ‘ Counsel would say- “ Yes.” Then the Judge would say - “Look at clause 35, which is the clause dealing with appeals, and which says that the High Court has no right to hear them.” Therefore, the draftsman found it necessary, in order to give a complementary effect to clause 40, to insert the words in clause 35, which it is proposed to strike out. I think the whole matter will require to be looked
Senator Sir JOSIAH .SYMON (South Australia). - It would, I think, be very much simpler if clauses 35 and 40 were considered together. They could then be very much simplified. I am inclined to think that by leaving clause 35 as it stands, we could state the whole Federal jurisdiction given under it in two or three words. But still some of the provisions of clause 40 may be wanted. With a view of simplifying the matter some such procedure as that might be considered. Certainly it would be better than putting in a provision like clause 35, giving an appellate jurisdiction in respect of orders made by a single Judge of the High Court, whether in court or in chambers ; then another provision, clause 36, dealing with appeals under an ordinary concurrent jurisdiction; another in clause 40 having a rather more complicated system of appeals from Courts of a State exercising Federal jurisdiction.
– Clause 35 follows the words of the Constitution.
– It simply repeats those words - that is, that the High Court shall have jurisdiction to hear and determine appeals from any judgment of any Justice or J Justices
– The matter which has been referred to has been very carefully considered. Of course, it would strike any draftsman that the clearer and better way to proceed would be, if possible, to put the appellate power in one clause. But, in dealing with the matter practically, it has been found impossible to do that in any clear way. The appellate jurisdiction , in regard to the High Court is perfectly simple. We have power to introduce the Federal jurisdiction without any conditions whatever. But that is not done, for very good reasons, as I shall point out when necessary. We invest with Federal jurisdiction the Supreme Courts of the States subject to certain conditions, one of which is that there shall be an appeal from their decisions to the High Court. That is under clause 40. Therefore, we must, in clause 40, state the conditions under which this Federal jurisdiction is given.
– That must be stated.
– We* take the whole field of Federal jurisdiction which it is within the power of this Bill to deal with. As to a portion of it, we may say in clause 39 that it shall be exclusively in the High Court. As to the rest of it, we say that it shall be exclusive except that a portion of it is given to the States Courts’ subject to the conditions enumerated. The conditions are that -
Every decision of a Supreme Court of a State or any other Court of a State, from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be final and conclusive, except so far as an appeal may be brought to the High Court.
Then wo provide that -
Whenever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from tho decision may he brought to the High Court.
That is to say, we there give jurisdiction to the High Court on appeal from all those decisions ; but we do not give it in every case, because of course we do not want to multiply appeals.
– We do not give it at all in regard to Federal jurisdiction.
– Wo give it in this way : We invest a Court with Federal jurisdiction subject to these conditions. One condition is that whenever an appeal lies from the decision of any Judge or Court of a State to the Supreme Court of a State, an appeal from the decision may be brought to the High Court. However, the matter requires careful study. It has been already carefully considered by the Government, and there are very good reasons for the clauses being drafted as they are.
Senator HARNEY (Western Australia). - I may be altogether wrong, but I suggest to the Vice-President of the Executive Council that this is the difficulty that presents itself to me. We arc dealing with Part Y. of the Bill. It deals with appeals. It says specifically that the High Court shall have jurisdiction to hear certain appeals. Except in so far as provided by the Bill, it cuts down the jurisdiction given in clause 35. That is a conferring of appellate jurisdiction. What is the appellate jurisdiction conferred ? It is the power to hear and determine appeals from all judgments - whatever of any Justice or Justices. That is the only appellate jurisdiction conferred. But when we come to clause 40, we see that there is no appeal whatever given by it. All that, clause 40 says is that the jurisdiction of the High Court, except in certain matters, shall he exclusive. The several courts of a State are to have jurisdiction, except as to the following conditions. What are those conditions f Paragraph (a) gives no right of appeal from a State Court exercising Federal jurisdiction. Paragraph (6) gives no right of appeal to the High Court. Suppose that a State Court gives a decision while exercising Federal jurisdiction, and there is an appeal to the Supreme Court. Counsel is asked - “ What right have you to come hero 1” He says - “ Look at paragraph (6) of clause 40.” But that paragraph gives no right of the kind. Suppose that the appeal is taken to the High Court. The J udge says - ‘ What right have you to come here to appeal from the decision of a State Court exercising Federal jurisdiction ? “ Counsel says - “ I come here under paragraph (6).” The Judge says - “Paragraph (6) gives you an appeal in respect to all matters where you could appeal from tho Supremo Court of a State ; but this is not such a matter.” Counsel then says - “You have jurisdiction under clause 35.” But ob looking at that it will be found that there is no jurisdiction.
– I think that when my honorable friend looks into the matter more fully to-morrow he will form a different opinion.
Senate adjourned at 10.16 p.m.
Cite as: Australia, Senate, Debates, 5 August 1903, viewed 22 October 2017, <http://historichansard.net/senate/1903/19030805_senate_1_15/>.