2nd Parliament · 3rd Session
The President took the chair at 2.30 p.m., and read prayers.
Presentation of Address-in-Reply. Senator PLAYFORD (South Australia - Minister of Defence) [2.31]. - I move -
That the Senate, at its rising, adjourn until to-morrow at half-past 3 p.m.
Honorable senators are aware that to-mort row the Governor-General is going to give a luncheon to one-half the members of the Senate. In the circumstances, I think it will be convenient to meet at half-past 3 o’clock instead of at the usual time.
– I wish to intimate to members of the Senate, especially to those who are going to the luncheon at Government House, that I shall ‘be obliged if they will be there at a quarter to 1 o’clock, in order that they may be present when the Address-in-Reply to the speech with which His Excellency opened Parliament is presented.
Question resolved in the affirmative.
asked the Minister representing the Postmaster-General, upon notice -
Senator KEATING__ Inquiries are being made, and answers will be furnished as scon as possible.
asked the Minister representing the Minister of Home Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
The Public Service Commissioner has furnished the following reply : -
Increments to Officers of the Professional Division (Class “F”), Clerical Division (Class 5), and General Division are granted annually subject to satisfactory conduct, diligence, and general efficiency. Officers of the higher classes are granted increments from time to time as warranted by the value and importance of the work and efficiency of the officer.
The Public Service Commissioner upon reports from the Chief Officers, the Permanent Heads, and the Public Service Inspectors.
In Committee (Consideration resumed from 21st August, vide page 3098):
Clause 4 -
Any person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination, in relation to trade or commerce with other countries or among the States-
with intent to restrain trade or commerce to the detriment of the public ; or
with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonweath, having due regard to the interests of producers, workers, and consumers, is guilty of an offence.
Penalty, Five hundred pounds.
Every contract made or enteredinto in contravention of this section shall be absolutely illegal and void.
. -In the debate on the second reading of the Bill, some doubt was expressed as to whether this clause would apply to a business carried on within the boundaries of one State, and the opiniongenerally expressed was that it would not. In order that the Bill may apply, wherever the business is carried on, I move -
That the words “ among the States,” lines 5 and 6, be left out.
Senator Sir JOSIAH SYMON (South Australia) [2.36]. - I wish to call attention to an amendment which I think ought to be made in an earlier line of the clause. Perhaps my honorable friend will do me the favour of temporarily withdrawing his amendment.
Amendment, by leave, withdrawn.
Senator Sir JOSIAH SYMON (South Australia) [2.37]. - This is the. provision which is directed at restraint of’ trade in two forms. It penalizes any “person,” which word, of course, includes a corporation or firm, “ who, either as principal or agent, makes or enters into any contract.” Rightly or wrongly the clause is intended to prohibit the making of, or entering into, a contract, but then it goes on to say - or is or continues to be a member of or engages in any combination, in relation totrade or commerce in other countries or among the States.
I do not suppose it is intended that the measure, whatever its operation might be, should be retrospective. It would, I think, obviously be extremely unjust if existing contracts were put in peril, or if persons who were concerned in contracts, which an informer might suggest were a violation of the law, should be put in jeopardy of being prosecuted and fined. From what I have heard, I do not think that the intention of the Government is that the law should be retrospective in that way - that it should, so to speak, cut existing covenants, or do serious injury to persons who happened to be members of associations which might be charged as combinations. The measure will be a very drastic weapon, and if it be placed in the power of private individuals or firms, or corporations, who might wish to raise difficulties in the way of a rival’s, trade to make use of it for their own purposes, it would be possible for, say, the proprietor of the Sunshine Harvester to set the law in motion against his rivals in a way of which wei might not approve. When I was speaking on the second reading, Senator Trenwith interjected that he had conferred with the Government, or with the Attorney-General, and had been assured that the Bill was not meant to be retrospective, arid that it would not be. But if the. words ‘‘or is or continues to be a member of “ be retained, I think it would necessarily be construed to be retrospective as to combinations already entered into. We might have a combination which was beneficent, or we might have a combination which was vicious, and which every one of us would seek to crush. The Minister of Defence said, quite candidly, that he could not name any combinations that were in existence; he believed that there were combinations in Australia, but that they were not bad or vicious. If there are any combinations in existence - and I do not know of any - we have not heard of them as being vicious or bad within the meaning of paragraphs a and b of this clause. A combination is really a contract or arrangement such as is indicated in clause 3. It might be called a partnership. Therefore, the word “ combination “ ought to be put in the same position as the correlative word “contract “ in the same line, which is not made retrospective. But, because “ combination ‘ ‘ is used instead of “ contract “ or “arrangement” or “cooperation” or “partnership,” it is sought to make the Act retrospective, ,and to make a partnership in such a combination penal.
Of course, it may be said that there would be no harm in that if the persons who were mixed up in the combination were not affected with intent to restrain trade or commerce. But the point is that we might have this instrument used improperly to disorganize existing trades and to injure the workers employed in existing businesses. The provision is to relate to Inter-State trade and commerce only. It might be used to injure a rival in regard to existing combinations with the result that his business might be paralyzed, and everybody might suffer. Whilst he was put on trial in order to determine whether he was filled with that intent or not, what would be the state of his business and of his workmen? His business would be paralyzed, and his workmen, if not thrown out of employment, would be in a state more or less of suspended employment. One manufacturer or trader in Australia might be brought under the clause if at present he has made an arrangement with one or more firms or individuals to regulate, it might be, prices without injuring the public. I appeal to honorable senators to consider what might be the consequences of putting this weapon into the hands of a rival trader. I do not wish to whittle down the clause in the slightest degree in regard to anybody who hereafter might enter into a combination or arrangement or co-operation because he would be acquainted with the law, and must take his chance. But I contend that it ought not to be applied to those who are engaged at present in a combination or partnership or an association of different firms. Such men should not be put on trial in respect of anything which was not an offence when the arrangement was entered into. It is a new offence, so far as we are concerned. There is not one of us who would desire to make any citizen of Australia liable to be punished in respect to an offence that is now created, but which was not an offence at the time he entered into the arrangement. I move -
That the words “or is or continues to be a member of,” lines 2 and 3, be left out.
.- I quite agree with Senator Symon that if this clause is susceptible of making some act unintentionally done a crime, undoubtedly we should do all we can to prevent such a contingency. But with great respect to him, I find it difficult to attach any retrospective meaning to the clause. As I read it, the intentionis, first of all, to deal with the making or entering into a contract. That is one’ definite act which is specifically dealt with. The apprehension has been expressed that contracts entered into by various boot manufacturers in regard to Goodyear machines would be affected. Of course it would have to be shown that the contracts were entered into with intent to injure Australian trade or were detrimental to the public. If they were, this Bill would apply to them. The next offence relates to any person who is, or continues to be, a member of, or engages in, any combination. It is considered possible that that may be retrospective. First of all, we must ascertain what the offence is. If a combination has for its deliberate intent the restraint of trade or the injury of an Australian industry the preservation of which is advantageous to the public, an offence is committed. We will assume that at the passing of this measure there is a person who is a member of a combination which is desirous of crushing out an Australian industry, or of doing something detrimental to the public. This Bill provides that such a person shall be liable to punishment. Continuation of membership of such a body amounts to precisely the same as committing a new offence. It is the duty of the person concerned to at once relieve himself from membership of the combination. If he does so, he will be, of course, free from liability. If he continues to be a member of the combination, surely that is an act with which we can have no sympathy. The duty of Parliament would, I should say, be to put an end to such a state of affairs with the least possible delay. I am disposed to think that if any person were so unfair as to commence proceedings within a few hours of the passing of such a measure, and without allowing reasonable time for a man to get out of. an illegal com- . bination, the Court itself would say that the person proceeded against was entitled to a reasonable time to allow him to get out of the combination.
– We do not want him to have to admit that his combination is one with intent to destroy or injure Australian industries. That is the question to be tried; and as to which he may be put on his trial.
– So may the most innocent indivdual be put on his trial tomorrow.Somewickedcrimemightbe alleged against any one of us, although we might be perfectly innocent.
– Not unless there was a prima facie case.
– Undoubtedly. A charge might be made against any honorable senator to-morrow. He might be dragged before the Court, and have to relieve himself from the stigma. If the combination is such an one as I have referred to, we cannot be too expeditious in compelling persons to relieve themselves of membership. When the prosecution takes place, undoubtedly the persons who are proceeding will do so at their own. risk, and be liable to be penalized if theyfail in what they attempt. If the intent of the combination is to do wrong, that, of course, must be proved in order to secure a conviction. What is meant is not something that is retrospectively done, but something that is done and continues to be done after the passing of this Bill, and I do not think that our Courts would give any sympathy whatever to a man who in a reckless manner, and with a view to injure a rival trader, took proceedings against him, before he had time to clear out of an illegal combination. I think that the clause is clear and expressive in its present terms.
– What I understand Senator Symon to argue is that it would be unfair to make the clause apply to contracts already entered into. If that be so, would the honorable senator desire to extend immunity for all time to any combination or trust that is at present in existence in. Australia simply because it was in existence before this measure was passed? That point has not beensatisfactorily cleared up. If there are in Australia monopolies that are injurious, it seems tome that it would accentuate the evil to provide that no other similar trust should grow up to compete with it. Take theColonial Sugar Refining Company. That may or may not be a monopoly; and. if it is a monopoly, itmay or may not be injurious. When legislationaffectingthe Colonial Sugar Refining Company wasimminent some time ago, thecompany refused to supply its clients withsugar to the amount of theirordinary requirement.
– I do not think so.
– I have this information from storekeepers, who have assured me it was so. Thereply that they received from the company was that it could not supply them with the full amount of sugar which they required.
– I do not know that the Colonial Sugar Refining Company is a combination. It may be said to be a monopoly because it is a large, rich corporation. But it would not come under this clause at all.
– I am not sure that it would not.
– It would come under clause 7.
Senator STANIFORTH SMITH.The company, at the time to which I refer, had accumulated large stocks of sugar, and when the duties of £6 and £10 per ton - according to whether the sugar was made from cane or beet - -were imposed, the price of sugar for consumption within the Commonwealth was immediately raised. Then the company wrote to the ‘storekeepers to say that it- could supply them with the full” quantity that they required at an increased price. It seems to me, therefore, to be a combination with intent to restrain trade and to the detriment of the public.
– It is not a combination at all within the meaning of this Bill.
– It has a monopoly of a commodity produced in Australia. It is a monopolistic institution, which, if what I have heard be correct, operates to the detriment of the public.
– That statement has been contradicted.
– Because a- statement has been contradicted it is not proved to ‘be wrong.
– Because it is repeated it is not proved to be right.
– Not necessarily, but storekeepers have told me what I have related - that they could not get their usual supplies of sugar until the duties were imposed by the Commonwealth, and the price was increased. If the effect of leaving out the words quoted in Senator Symon ‘s amendment would be to allow to continue any possible monopoly which may exist in Australia, it would be a mistake to agree to it. We should put existing monopolies on exactly the same footing as monopolies that may arise after the passing of the Bill. If Senator Symon can show that anything in this Bill will unfairly curtail the legitimate rights of trusts and combines-, I am quite prepared to vote with him, but it would not be well to put existing combinations on a distinctly better footing than combinations that may afterwards arise.
– Senator Symon has expressed a doubt as to whether the clause is retrospective. I have the assurance of the Attorney-General that it was not intended to be, and is not, retrospective in any sense.
– I do not agree with him.
– What Senator Symon would really accomplish by striking out the words quoted in his amendment would be this : There may be at the present time a combination which is acting injuriously to the public. After the passing of the Bill, that combination could continue its operations: to the injury of the public.
– Nothing of the kind.
– That is what I understand that the amendment will accomplish. We say to the members of combinations, “ We do not punish you for what you have done in the past. What you did was legal, although it may have been injurious ip the public. But directly we pass this measure you must stop doing that which is. detrimental to the public interest.” That is a fair position. I do not know what combinations! may be in existence. There may be some which are highly detrimental to the public. Strike out the words to which Senator Symon’ objects, and the result will be that those com;binations can go on for ever, and we cannot interfere with them. What honorable, senators would prefer, I think, would .be to provide that the measure shall not be retrospective, and shall not interfere with what the members of combinations have already done, but that as soon as the Bill is passed they must not continue their injurious practices. If the practices are not injurious to the public, they can of course be continued. If thev are injurious, surely they should not be continued.
Senator Sir JOSIAH SYMON (South Australia) [3.10]. - I am glad to hear what the Minister has said. He tells us that the Bill is not intended to be retrospective, and that a man who has been a member of a combination will not be penalized for what has already been done. As Senator Best puts it even more clearly the passing of the Bill will be an intimation to members of a partnership of different traders that they must, so to speak, clear out of any combination they may have formed. That being the intention, the words go further than the desire. Therefore I shall ask leave to withdraw the amendment I have submitted with a view of, in the first place, moving the elimination of the words “or is.” I frankly acknowledge the force of Senator Playford’s point in discriminating as to continuing to be a member of a combination, but that does not apply to the words which I intend to move shall be omitted. It is not intended to punish a man for being a member of a combination, but for continuing to be a member ; and if we retain the words “or is,” any man who is a member of a combination at the moment the Bill is passed, will be liable to punishment, whether he continues to be a member or not. Senator Best is perfectly right thatany one of us is liable to be unjustly summoned and charged with an offence; but we cannot be charged with an offence which is nonexisting. It is an unalterable principle of British law that when a new offence is created, persons who, in the absence of any law to the contrary, have, as it were, acted innocently, shall not be liable to fine or imprisonment. That is what I mean by retrospective legislation.
SenatorPlayford. - The’ words “or is “ can only apply when the Bill is passed.
– The words will apply the moment the Bill is passed.
– But the words “ with intent “ imply the future.
– The moment the Bill is passed a member of a combination whomay, up to that time, have acted perfectly innocently, will be liable to prosecution. While it is absolutely true that there is no offence in the absence of the element of intent, that element cannot be determined until a man is put upon his trial, and placed, so to speak, in the dock ; and I object to the possibility of any citizen being haled before a Court in respect of an act which, up to that moment, was not an offence. It is not pleasant to be subjected to a prosecution for a criminal or quasi -criminal offence; and we must also remember that by such pro ceedings a man may be harassed and put to considerable expense in defending himself, while at the same time his business and prospects may be ruined and his employes thrown out of work. We ought to try as far as possible, whilst carrying out the objects of the Bill, to preserve individual freedom, and prevent men from being charged with offences in respect of acts which, before the passing of the measure, were perfectly innocent. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment (by Senator Sir Josiah Symon) proposed -
That the words “or is,” line 2, be left out.
– I am much surprised to hear an honorable senator, who professes to be such an eminent authority on draftsmanship, acknowledge that he is wrong.
– I have not acknowledged anything of the kind.
– The very fact of the withdrawal of the original amendment shows that the honorable and learned senator is doubtful as to its advisability.
– I am not in the slightest degree doubtful.
– Let us see what the clause really means; and I ask honorable senators to look at the matter from both a lay and a legal point of view. Lawyers are apt to differ on questions of this kind under almost all circumstances; their legal training seems to make them argumentative, and it does not matter how complete the draftsmanship may be, they find some fault with it.
– We are not dealing withdraftsmanship, but with a matter of substance.
– The clause deals with any person who, as principal or agent, . does certain, acts; and there is nothing retrospective so far.
– Nobody said there was.
– Then the clause provides that any person commits an offence if he, as principal or agent, continues to be a member of a combination, for what purpose? With intent to injure the public, or to restrain trade to the disadvantage of any Australian industry. A person must enter into a combination with that object before he will be liable to a prosecution. So far as the objection to retrospective legislation is concerned, no proceedings can be taken for any act done up to the passing of the Bill, because, although a man might have been doing wrong, there was no law against his wrong-doing. But the framers and supporters of the Bill say that if, after the Bill is passed, a man is, or continues to be, a member of an injurious combination, then he shall be guilty of an offence. Why should it not be so? I hope honorable senators observe the difference between the two divisions of this clause. The first portion deals with, contracts, and that is not interfered with by the amendment. Originally, Senator Symon desired that all the words “or is, or continues to be,” should be struck out; but, as I say, he found out that he was wrong.
– I found nothing of the kind.
– The Minister of Defence, who is not supposed to know anything about law, opened the mind of Senator Symon, and made the latter acknowledge that he was going a little too far.
– That statement is not correct.
– I think there are a good many honorable senators besides myself who think that the statement is correct.
– It is usual for an honorable senator to accept a contradiction. I have said distinctly that I do not admit I was mistaken.
– If I moved an amendment and thought it was right, I should stick to it; but, if otherwise, and I desired an alteration made, I should be man enough to acknowledge I was wrong. It might be months or years after the passing of the Bill before any action was taken ; and if the amendment were adopted there would be a nice job for the law Courts to decide whether any punishment could be inflicted on a person who had ceased to continue to be a member of an injurious combination. As soon as the Bill is passed any person committing the act contemplated ought to be deemed guilty; and the introduction of the measure ought to be sufficient warning to those who are now doing wrong. If coining were not an offence, and the public suddenly awoke to the fact that the practice was injurious, and introduced a law against it. would any one attempt to insert an amendment of this kind? We are not legislating against the innocent, but for the purpose of preventing any one, or any combination; committing a certain act with intent to injure the public. People may now be committing a wrong of the kind, and they certainly ought to be liable to punishment immediately the Bill becomes law; indeed, we should be failing in out duty if we legislated otherwise. Every honorable senator who has the interests of Australia at heart must agree that a man who is, or continues, to be, a member of such a combination after the passing of the Bill - indeed, that is implied in every instance - should be deemed guilty of an offence and liable to punishment.
– I have dealt with the amendment in its original form, and I now intend to add only a .few remarks in regard to Senator Symon’s last comment on the present form of his proposal. I have already endeavoured to show that this clause cannot possibly have any retrospective meaning, because “or is” makes it clear that an offence can only commence on the passing of the Bill, and the words “ with intent” imply something done in the future. “ Intent” cannot relate to any prior act, but must necessarily refer to the future. Senator Symon contends that if the words “ or is” are permitted to remain, there will be the possibility of an innocent man being attacked immediately.
– That possibility always exists.
– As a matter of fact, every one of us is liable at any moment to have an information sworn against us for an act of which we may be absolutely and! completely innocent. It appears to be contended, however, that under the Bill there is some special facility - a facility which H cannot quite comprehend - for some rival in trade or a member of the public to prosecute an innocent ‘ individual’.. That could only be done by an unfair or improper conspiracy with the AttorneyGeneral, because before a proceeding of that kind could be taken, his consent must be obtained in accordance with clause 14. My honorable friend has suggested that an Attorney-General might be so utterly wanting in a knowledge of his duty to the public and to justice, as, upon the passing of the measure, to go so far as to authorize a prosecution against an individual.
– He would have to do it if a prima facie case were made out.
– Does my honorable friend think for a moment that if, on the day the Act came into operation, -he were to tell the Attorney-General that a man was a member of a combination, the AttorneyGeneral would be so oblivious of his duty to the public as not to give that man warning to clear out of the combination as rapidly as possible, or else to take the consequences ?
– What harm would it do to leave out the words “or is”?
– The object of the Bill is to make it an offence for a man to be a member of a combination formed for the purpose of doing injury to an Australian industry. That is the class of combination which we are seeking to punish. Ever since last session, a warning has been given to persons engaged in such combinations, that not much longer would they be permitted to be members thereof. The terms of the Bill are generally well known. One provision is that if a man is a member of a combination formed with intent to do injury to Australian industry, he must clear out of it at once. The measure can only apply to something which is in futuro. because it will operate from the time when it is assented to. Under clause 1.4, a prosecution for an offence created bv the Act must be initiated by the AttorneyGeneral, or by some person authorized by him. Consequently, the dire consequences to which my honorable friend referred could not ensue. If a person went to the AttorneyGeneral immediately after the Act was brought into operation, and expressed a desire that a prosecution should be commenced against a man, the AttorneyGeneral would at once reply, “ We must give the man reasonable time in which to retire from the combination, and if he should fail to do so, then I shall authorize a prosecution.” The Attorney-General would have to be a party to each prosecution, and if he did wrong he would be responsible to Parliament.
– I could understand Senator Symon wishing to have the words “ or is “ omitted if he adhered to his original intention of seeking to omit the words “ or continues to be a member.” His main desire in seeking to have the words “ or is “ omitted is to prevent an innocent person from being brought before a Court, and having his business disarranged. Surely he must re cognise that under every Act of Parliament innocent men may be prosecuted.
– My objection is that, in this case, a man may be proceeded against who has entered into a so-called improper arrangement whilst still innocent of any intent to do wrong.
– I cannot see what difference it can make to the’ man’s intention if we omit only the words “or is.” If to-day a man is a member of an injurious combination, immediately the Bill is brought into force he will know that he is a member of an unlawful combination.
– But the moment the Act came into force he would be liable to a penalty.
– Only if he continued in the unlawful combine.
– If the clause said “is and continues to be,” it would be different; but it says “ is or continues to be.”
– To my mind the one is exactly the same as the other.
– If my honorable friend reads “or” as “and” his argument is perfectly sound.
– The man would , simply have to retire from the combination, or run the chance of being prosecuted, and if prosecuted he would have to prove his innocence. I cannot see. how the amendment could give greater security to an innocent trader. As Senator Keating, who is a lawyer, desires the words to remain, I will support the clause as it stands.
– If I thought for a moment that there was the possibility of such a danger as Senator Symon has pointed out, I certainly should support his proposal. But I cannot imagine any Government being so unreasonable as to proceed against a combination which was in existence on the day when the measure was assented to. If the Government were to dare to strain an Act of Parliament in that way, the people would be up in arms at once. Moreover, the consent of the AttorneyGeneral would have to be obtained before any action could be” taken. We know that there are in existence certain agreements which should be brought to an end as soon as possible.
-Col. Gould. - What are they ?
– In my speech last night I mentioned the case of the shipping ring. Before the Navigation Commission, members of the Chambers of Commerce in the principal cities of Australia declared that the enforcement of the rebate system by that ring was equivalent to holding a pistol at their head, and that it acted so unfairly that they were obliged to do things which they did not desire to do. We wish to put an end to any agreement of that sort. The evidence of the witnesses to whom I have referred ought to carry some weight with honorable senators, because they have suffered from the existence of the agreement. Some merchants declared that the rebates had been retained for a period of two years and a half, and that at the end of that time they were not forthcoming. If I thought that, immediately the Bill was assented to, there was likely to be a proceeding taken against the shipping ring, although it is acting in a very unfair manner, I should still support the proposal of Senator Symon. But I ‘do not believe that any Government would be so unreasonable as to take an unfair advantage of any one who happened to be in that position.
-Col. GOULD (New South Wales) [3.42]. - My vote will always be given against retrospective legislation of the character which has been indicated by honorable senators. It may be that there are in existence certain combinations with intent to injure the public; but the mere fact that a man was a member of such a combination not illegal when the Bill was assented to should render him liable to a prosecution upon its passage is entirely contrary to the principles on which the Legislature generally acts. Wherever it is intended to create a criminal offence, we ought to be very careful to see that the legislation Cannot be regarded as retrospective in its operation. I share the view of Senator Symon as to the effect of the wording of the clause. It is perfectly true that, before a prosecution could be initiated, the sanction of the Attorney-General must be obtained. But are honorable senators going to place the Attorney-General, or any other Minister, in the position of an arbiter, with the right to say whether the law should be put in motion or not? Suppose a man were guilty of an offence. Is the Attorney-General to say. “ Well, although the man has been guilty, I shall not permit a prosecution “ ? If he were placed in that position he would be prac tically above the law. When representations were made to the Attorney-General, it would be his duty to ascertain whether a prima facie case had been made out”, and, if so, not to take it upon himself to say whether punishment should be meted out, but to say that the Court should determine his guilt and what punishment should be awarded. We have been told that the Attorney-General would be unworthy of his position if he were to allow a prosecution to take place simply because, at the time of the passing of the Act, a man happened to be a member of a combination. The Bill, however, ‘ provides that the man shall be liable to a penalty not exceeding ^500, and the AttorneyGeneral could not take it upon himself to say whether it should be inflicted or not. But let us assume, for the sake of argument, that he could do so. In what position would he then be placed ? To one man he could say, “I am not going to prosecute you, “ and to another, “ I intend to prosecute you.” Would it not open the door to corruption and political persecution? ‘It is said that, if a man were a member of a combination the day before the Act came into operation, and had then got out, he would not be liable to the penalty. But is not the offence really the continuation of membership of a combination? If we use the phrase “ any person who is, and continues,” we should achieve the object which is, desired by the Minister. Otherwise, it would be left to the AttorneyGeneral to determine in each case what should l>e done. There is now before Parliament legislation, which is alleged to have been introduced simply because of the importunity and influence of a particular firm of manufacturers. The allegation may or may not be true, but still it is made. Our desire should be to prevent the possibility of imputations being cast upon the purity of Ministers. The Bill adopts certain official! means to convict people of intentions. We are abandoning an English principle that has always been supposed to be imbued m our very blood - the principle that no man is to be held to be guilty unless his guilt is proved. It has always been held to be better that twenty guilty persons should go free than that one innocent person should be convicted. But under this Bill the guilt of a person is to be inferred unless the contrary is proved. Then turn to the provision defining “ Commercial Trust.” It is very wide. It is intended to be wide. I do not suppose that it is as wide as some people imagine it to be, but still it may be effective against combinations that are managed by a board of directors possessing somewhat extensive powers. I do not say that the clause would extend to such a body, but it is arguable that it might. It is to be assumed against persons who belong to a commercial trust that, because of their membership, their competition is unfair. It is a monstrous proposal, and one that is absolutely wrong. I say also that a Bill containing such a provision as that relating to the disorganization of industries penalizes honest men. I have no sympathy with the dishonest man who deliberately sets to work to injure the public. But I do say that we should be exceedingly careful in our legislation not to do anything which will penalize a main for a perfectly legitimate act. We should remember that we are dealing with novel legislation, embodying new ideas. We are constantly interfering with commerce. We are putting it in handcuffs and chains. A mercantile man can hardly move in any .direction without being confronted with some legislation affecting his business. There are honorable senators who condemn this Bill, but who nevertheless voted for its second reading.
– We are not dealing with the second reading now.
.- I do not blame the honorable senator, because he is a supporter of the Bill. He is entitled to his own opinion. But I do blame those who have strongly condemned the Bill and yet supported it by their votes. If the Minister in charge of the measure is not prepared to accept the amendment moved by Senator Symon to strike out the words “or is,” he might accept an amendment making the word “ or,” where it appears for the second time, read “and” so that the clause would read -
Any person who … is and continues to be a member of or engages in any combination.-
Senator O’Keefe has told us that he reads the clause as meaning what I have just read. But, after all, we must bear in mind that the words are capable of a different construction. I think that if my suggestion is accepted the object which the Government has in view will be met, and the Bill will carry out its purpose, whilst at the same time it will not punish a man because he may happen to be in a combination at one moment, though he may get out of it the next. The Minister will not be injuring the Bill by accepting the amendment, but he will get over a difficulty that may become a real live subject of trouble in the future.
– I may point out to my honorable friend who has just resumed his seat, and to other honorable senators, that the clause as at present framed makes it an offence for a man not merely to be in a combination formed for certain purposes regarded as mischievous, but to continue to be in it. The words “continues to be” in the clause would cover such a case as this : We will assume that there is in existence at the moment when this Bill becomes law a combination carrying on operations of a character which we regard as mischievous. The Bill will have no legislative effect upon any prior action that may have been taken by any individual member of such a combination. But the words “continue to be “ throw upon every individual member of ouch a combination the obligation to get out of that combination the moment the Bill becomes law. If a man does hot get out he “continues to be” a member. Take the case of a combination that may be hereafter formed, but is not in existence at present. If before you can prove the guilt of a man who enters into such a combination you have not merely to prove that he is a member, but “ continues to be “ in that combination, it is quite possible that you would hardly ever be able to secure a conviction. Who is to determine what continuity is? Is it to be continuity for the space of a day, two days, or three days? We can measure continuity in the case of an individual who is a member of a combination before the passing of this Bill. That continuity is measured by extending over the point of time that separates the Bill from the Act - that is to say. the point of time when the Bill becomes law. But a man may “Be a member of a combination one day, and get out of it the next.
– The honorable senator is overlooking the fact that that is provided for. The Bill provides for any man who engages in a combination. The moment he does so he is liable.
– In framing legislation of this kind, we try to meet every conceivable set of circumstances, If an information ware laid against a man - notwithstanding the fact that we propose to take away certain safeguards which Senator Gould says always surround an accused in a Court of criminal jurisdiction - still, wherever those safeguards were not removed the measure would have to be construed most strictly against the Commonwealth, and most favorably to the accused. We make all these sets of circumstances offences - the making or entering into the combination, the continuing to be a member of the combination, and the engaging in the combination. All of them are separate offences. Why do we use those different terms? Simply because of the peculiar sets of circumstances we have to deal with. Some isolated cases may be such that even, when a prosecution was instituted the Court would not feel warranted in coming to a conclusion if these words were not left in.
– The Minister wants to stop the coach and four from being driven through the measure.
– We want to leave no loop-hole of escape for any individual who engages in any combination which is calculated to injure an existing Australian industry. I think, therefore, that honorable senators will see that it is necessary that we should have words making it an offence for a man actually to be a member of a combination which is guilty of the practices denned. Let us assume that the Bill has become law, and that an individual is being prosecuted. Suppose that the information laid against him is that he is a member of a combination which operates in restraint of trade and commerce. It would be necessary, in order to sustain the prosecution, to prove that he was a member of the combination. If we are going to strike out the words “or is,” and simply leave in “continues to be,” how should we .have to prove continuance ? We could not determine how long the continuance was to last. What we want to prove, however, is that a man “is” a member of a combination. We are striking at the men who enter into combinations. We are not going to pass this legislation on the assumption that there will be no further attempts to form combinations. The clause as it stands is designed to strike also at those who remain members of existing injurious combinations which continue after the Bill becomes law. and I think that it had better be adopted in its present form.
– The meaning of “ combination “ is not quite clear. The word is not denned. “ Commercial Trust “ is defined, but “ combination “ is not. This is the first operative clause in which the word “ combination “ appears. If we are not quite clear about the meaning of a word in a Bill it is always a good principle to strike it out. The more ambiguous are the words used in an Act of Parliament the greater the trouble afterwards. There is no reference to combination “ in the Sherman Act. The word appears to me to be unnecessary. If the meaning of the clause is that persons who enter into a particular kind of contract should come within this particular clause the word is not needed. The clause reads -
Any person who either as principal or agent makes or enters into any contract .
That is complete in itself. A person who entered into this particular kind of agreement with a certain intent, would be guilty of an offence j and there is no necessity for dragging in the reference to a combination. All that is necessary is to insert the words “ or remains a party to the contract.”
– The very first section of the Sherman Act contains the word “ combination.”
– That is so. But honorable senators will see that there is no necessity for the reference to a combination, because the offence is complete if a person enters into a contract with intent. As I read the clause, a combination means a combination between tire persons who enter into the contract, and a person who afterwards entered into a contract with intent would be guilty of an offence. Senator Keating said that we have to contemplate the making of a contract afterwards : and that is quite true. But sub-clause 2 provides that any contract entered into in contravention of the clause will be absolutely illegal and void ; so that provision is made for contracts entered into after the passing of the Bill. I do not see the use of the words in regard to combinations, unless the Minister is going to contend that a combination is something which goes fur- ther than a contract between persons to do certain things. I should be glad to be shown the difference between a combination and the entering into a contract.
Senator Sir JOSIAH SYMON (South Australia) [4.15]. - The discussion has, in the hands of some honorable senators, drifted a little wide of the amendment before the Committee. But I do not think the time has been mis-spent ; on the contrary, this being a penal enactment, both Senator Keating and Senator Best have pointed out that such an enactment is construed most favorably to the defendant. I originally moved to strike out “ or .is or continues to be a member “ ; and then the Minister of Defence pointed out that the intention of the Government was not to penalize persons who happened to be engaged in a combination - assuming the word to have the meaning ascribed to it by the Minister - at the moment the Bill was passed, but to penalize those who remained or continued to be members. Senator Keating adopts the same view, that the clause is to meet the case of those who remain in existing combinations, or who join combinations subsequently organized. Wilh that view I agree ; but when the Minister of Defence pointed out what was the desire of the Government, I thought I made it perfectly clear that I recognised the force of the distinction. In order that honorable senators might have the view of the Minister clearly before them, I temporarily divided the amendment, but did not abandon or qualify the position I took up, that the whole of the words ought to be eliminated as unnecessary. I thought the Minister would have consented to the elimination of “or is,” and then have relied on what I admit was a fair argument, not wanting in force, that we ought to reach those who remain or continue in combinations previously established. Senator Best advanced the very sound reason, from the prudential stand-point, that nobody will.be likely to suffer, seeing that prosecutions will not be initiated without the consent of the Attorney-General. I am not going to discuss that provision now, but merely to deal with the particular argument offered to the Committee. One of my strongest objections to the Bill is, however, that it imports political considerations and political influences, which are distinctly disadvantageous in a measure affecting trade and commerce. I would rather leave it to the unrestricted action of those who might wish to protect the public or themselves, or any particular trade or industry, than I would put it in the power of an Attorney-General of one particular political complexion to direct f prosecution, or of an Attorney-General of another political complexion to refuse one. The less we bring proceedings of whatever kind within the scope of political influences and considerations the better. This is. not like the case of a magistrate who listens to evidence, and decides that there is a prima facie case ; a prosecution will be ordered on the mere ipsi dixit of the Minister of the da)s and we cannot disguise from ourselves the influences and considerations that may be brought to bear. While I frankly admit the force of what has been said, that does not affect the question whether or not we are to make this clause applicable to a person who is presumably .an “innocent member of a combination that was perfectly fair up to the passing of the Bill. As Senator Drake pointed out, we have a precedent in the Sherman Act, which uses words that are perfectly clear and sufficient. I am not certain that the words “rr engages in a combination “ are not sufficient to deal with existing combinations which are subsequently continued. A person who “ engages “ in trade is not one who merely enters into trade ; he may have been in trade before the expression is used regarding him, and he continues in trade if he engages in it. I am afraid that, in the desire to extend the net widely, and to bring everything within the scope of the enactments, a great many unnecessary words have been used. It is laudable to insure that no leakages shall occur, but I know from experience that when’ unnecessary words are used, particularly in a penal enactment, the object in view is very often defeated. The Sherman Act. on which this Bill is founded, provides that - . . every contract, combination, in form of a trust or otherwise - showing what is aimed at - or conspiracy -
That is what it amounts to - conspiracy with, intent to injure or restrain trade, which is punishable at common law - in restraint of trade or commerce to be illegal ; every party thereto, guilty of a misdemeanour.
What could be more clear? In the clause under discussion more words have been used, without imparting any additional force. The Sherman Act goes on - or engaged in any such combination or conspiracy, shall be deemed a misdemeanour.
That is all. In the Bill, however, we interpose the words “ or is or continues to be a member of,” which I regard as unnecessary, and likely to lead to confusion. The intention is good, but the effect of these words may be to make. the Bill less workable than we should desire in crushing out mischievous monopolies. Lawyers have been taunted by Senator Playford with “weaving a web “ ; but it is the language used in the Bill that is the web. I merely wish to call attention to the fact that in temporarily withdrawing the amendment I do not recede for one moment from the objections which I expressed. I give the Minister of Defence credit for advancing arguments which are seriously worthy of consideration as to the second part of the provision; but as to the first part, honorable senators are asked to do something which I think they ‘ would not ordinarily be disposed to do. I agree with Senator Best, who has put his point of view very clearly, that the words may possibly relate to subsequent combinations ; but that is not the intention. The word “ engages ‘ ‘ is intended to cover subsequent combinations, andalso as I think, the continuance of combinations. Why should we not adhere to the Sherman Act,’ and thus get the benefit of the great mass of decisions on1 the law in the United States? I trust that the Committee will eliminate “ or is,” or, if not, that the Minister will consent to substitute “ and “ for “or.”
Question - That the words proposed to be left out’ be left out - put. The Committee divided.
Question so resolved in the negative.
Amendment (by Senator Stewart) proposed -
That the words “ among the States,” lines 5 and 6, be left out, with a view to insert in lieu thereof the words “ within the Commonwealth.”
– I would point out to the honorable senator that in using the words “among the States” the Government have followed the language of the Constitution. That course, in my opinion,is the preferable one.
Senator Sir JOSIAH SYMON (South Australia) [4.29]. - I would direct the attention of the Minister to the fact that in the very next clause the words “ within the Commonwealth” are used, showing a departure from the language of the Constitution. What earthly reason is there for not making clause 4 equally extensive?
– There is a very obvious reason.
– I can see none. Unless there is some reason for making the difference, the two clauses ought to be put on the same footing, because in the Bill we are dealing with “ trade and commerce with other countries and among the States.”
, - I asked Senator Symon to explain how it is that the Constitution empowers the Parliament, in paragraph 1. of section 51, to deal with “ trade and commerce with other countries and among, the States,” and in paragraph xx. to deal with “ foreign corporations and trading or financial corporations formed within the limits of the Commonwealth”? In clause 4 of this Bill we exercise the power which is granted by paragraph 1. of section 51, while in clause 5 we exercise the power which is granted by paragraph xx. of that section. In each case the clause follows the wording of the legislative power. Therefore, my contention is right all through.
Senator Sir JOSIAH SYMON (South Australia) [4.32]. - My honorable friend has frequently said that he was a layman, and did not understand legal questions. What he is dealing with here is restraint of trade. What he intends to stop is the trade in which certain persons are engaged, and that, of course, must be “ trade or commerce with other countries or among the States. “ We can deal withthat point when clause 5 is reached. Certainly, the amendment of Senator Stewart is just as proper as the enlargement of the words in clause 5.
– I totally differ from Senator Symon. I shall be very glad to go elaborately into the constitutional question on clause 5, if he so desires. The reason why different verbiage is adopted in regard to clauses 4 and 5 is because in each case the draftsman has adhered to the wording of the legislative power in virtue of which it is drawn. Clause 4, for instance, is the enactment of a provision under paragraph 1. of section 51, while clause 5 is an enactment of a provision under paragraph xx. of that section.
– And paragraph 1.
– My honorable friend may, if he likes, bring to his aid one or both ; but, as a matter of fact, the provisions contained in clauses 5 and 8 of the Bill are authorized by paragraph xx. of section 51.
– Have they not reference to the trade and . commerce power ?
– Not necessarily. My contention is - and I have some authority, if it is wanted - that under paragraph xx. of section 51 we have power to do everything which is mentioned in clause 5, quite irrespective of paragraph 1. But, as a matter of fact, the draftsman has brought to his aid both legislative powers.
– - The reason for the difference in the verbiage of the two clauses may be obvious to the legal mind ; but certainly it is not obvious to my mind. What is obvious1, however, is that, if clause 4 be passed as it stands, we might as well throw the Bill into the waste-paper basket. It would be a direct invitation to any monopoly to outwit the law by simply establishing in each State an agency which would have an instruction not to trade with any person outside its limits. If, according to the Constitution, it were incumbent upon us to take up that position, I could see some force in it. But, if we turn to clause 5, we find that a trading or financial corporation formed within the Commonwealth cannot do anything with intent to destroy or injure trade within the Commonwealth. Why do the Government assume over a corporation, foreign or local, a power which it does not assume over a person who is either a principal or an agent? I do not intend to take any part in placing upon the statutebook a measure which: could be so easily evaded. So far as I understand the purposes of clause 4, the Constitution does not know any of the States. The Commonwealth is one area, and practically the State boundaries do not exist. If that were not the case, each State could establish a Customs House at its borders. So long as it did not interfere with Inter-State trade, it could put the territory within its boun- .daries in any shackles or bonds it pleased. Surely the framers of the Constitution never contemplated anything so stupid as that! In any case, the words of my amendment are embodied in clause 5. Why then, should they not also be inserted in clause 4?
– I think that Senator Stewart is unduly worrying himself, because the two clauses are aimed at the same thing, and that is the repression of monopolies. In clause 4 we are exercising the trade and commerce power, and the Government have naturally adhered to its wording. But, in order to cope effectively with monopolies, it is necessary to take power to deal with a company which appoints an agent within a State. Clause 5 is designed to meet a case of that kind, and it is based’ upon paragraph xx. of section 51 of the Constitution. Under clause 4 it would be possible to get at a foreign monopoly even if established in only one State, because it would be engaged iri trade with other countries. Surely an agent who obtained his goods from other countries would come under its purview. Will Senator Symon deny that the Melbourne agent for the MasseyHarris Company is an agent within the meaning of clause 4?
– It all depends. Supposing that he buys the goods, that is not what is meant by “ trade and commerce with foreign countries and among the States.”
– If the man buys the goods on his own account, he is a principal. But if he brings them as representing the maker he is an agent. In any case, he is engaged in commerce with other countries, and therefore comes within the scope of clause 4. Take the case of the sugar trust, which is located in Queensland, and has no works in any other State. That is a trading corporation, formed within the limits Pf the Commonwealth, and therefore is covered by clause 5. That is, I think, the case which Senator Stewart had in his. mind!. If we were to alter clause 4 as he desires, it would be made practically a repetition of clause 5. In the two clauses as they stand, we are getting al] the power which he desires to obtain, and in a constitutional manner.
-45]- - Of course, there are objections, and I think strong ones, to Senator Stewart’s amendment, just as I think that from the constitutional point of view there are very strong objections to clause 5. Senator Stewart said he could not believe that the Constitution was s’o very stupidly framed as to enlarge, by paragraph xx. of section 51, our legislative powers, so that we could prevent in a State a kind of commerce or arrangement which would’ be in restraint of trade locally in regard to a trading corporation, and we could not do it in regard to a combination of individuals. That strikes one at once as a very extraordinary position. The Constitution does riot mean what Senator Best said. The Convention never intended anything of the kind. Paragraph xx. of section 51 has been grievously misunderstood. It is paragraph 1. alone which gives the Parliament power to deal with trade and commerce, and that power is limited to trade and commerce with other countries and among the .States. It does not give power to interfere with trade ,or commerce within the limits of a State. It was never intended that it should be given. Whatever legislation may have to be adopted’ in regard to restraint of trade within the boundaries of a State, must emanate from the State Parliament alone. It has been said that paragraph xx. of section 51 enlarges the power contained in paragraph 1., so that where we have a trading or financial corporation or a foreign corporation, we can interfere with trade within the limits of a State. It does nothing of the kind. The only effect of paragraph xx. is to enable the Commonwealth Parliament to make uniform companies laws. It was introduced in order to enable this Parliament to pass companies laws which would be applicable throughout the States, and give a status to foreign corporations as well as to local trading and financial corporations. We could by the exercise of this power create these legal entities. Instead of persons, we have foreign corporations or local trading and financial companies. How are they to trade? The moment we deal with such bodies in that connexion we act under paragraph 1. of section 51, and we can only legislate with regard to their operations with other countries and among the States. That, I assert emphatically, is what the Convention intended, and what the Constitution says.
– If the honorable and learned senator will refer to section 98 he will find an exception to that.
– That is because of the navigation laws, which must be uniform throughout the Empire. Trade and commerce are dealt with, in paragraph 1. of section 51. Then in section 98, with regard to two subjects, the provision of paragraph 1. of section 51 is extended - that is to say, with’ regard to navigation and shipping, and also with regard to railways the property of any State. But the only power we have to deal with trade and commerce is in respect of trade and commerce among the States and with other countries. If that is what is relied upon to give us power to deal with corporations as we cannot deal with individuals, it will be found to be a broken reed. Obviously so; because, as Senator Stewart has indicated, and I affirm that he is right, this means that we should not be able to deal with individuals acting in restraint of trade within a State, but should be able to deal with a trading corporation. How grossly unfair that would be ! We must nave uniformity. Clause 4, dealing with trade and commerce within a State or outside the Commonwealth, applies to individuals, as well as to corporations and firms. So it should. If we wish to stop monopolies we should stop them, whoever cause them, whether individuals or corporations. But it is admitted that we cannot do that within a State, because paragraph xx. of section 51 of the Constitution only applies to foreign corporations and trading and financial corporations. All that they would have to do would be to say, “ We will resolve our corporation into a combination of individuals, and then roll cannot stop us.” The thing is ludicrous on the face of it- I should be ashamed of any construction of the Constitution which led to such a result as that. Senator Best, than, whom no one in the State of Victoria is better acquainted with companies law, knows that every State has its own companies laws, and fixes the status of foreign corporations within its limits. The
Constitution having said that that ought to be done by the Commonwealth, the only effect is to enable a foreign corporation to be registered as a Commonwealth corporation instead of as a State corporation ; and our only power of interfering with such corporations is that given to us by paragraph xx. of section 51.
.- The Committee is entitled to listen with the greatest respect to anything urged by my honorable friend Senator Symon, particularly in regard to a constitutional point, he having had the advantage of being a member of the Convention which ultimately framed the Constitution as we have it today. But in attempting to construe the Constitution we are obliged to eliminate from consideration1 every debate that took place in regard to it while it was being evolved. We have to cast aside every expression of opinion at the Convention. As a matter of fact, the High Court has held that in construing the Constitution it has no right, for judicial purposes, to look at the Convention debates, although for historical reasons it is justified in turning to the various stages of the Bill as considered by the several Conventions. The High Court has drawn that distinction. Although even an anomaly may be created by the terms of the Constitution itself, it has to be construed exactly as we find it. That principle of judicial construction of Acts of Parliament is constantly applied in the Courts, where sometimes it leads to hardship, and even to a degree of absurdity. But the Courts will, of course, endeavour to reconcile every section of an Act of Parliament, and, so far as they can, will give to all the sections the most intelligent meaning they can be made to bear. We have to see exactly what the Constitution, as we find it worded to-day, and as the Courts have to construe it, actually provides. Section 51 of the Constitution is generally governed by the words -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to.
Then follow thirty-nine paragraphs. According to my view, for the purpose of construing each’ one of those thirty-nine paragraphs, the Court is* justified, if it so desires, in reading each independently, and even in not looking at the other thirty-eight.. The principle followed by the American Courts is to look to each paragraph which confers jurisdiction, and give to each the widest meaning and the fullest construction. It will even read them independently. I am not announcing any views of my own. I am announcing the views of the highest authorities of the United States, and views which have been laid down in judicial decisions. My first point is, therefore, that each paragraph can be read independently, being covered by the opening words of section 51, which I have quoted, and being also affected by paragraph XXXIX., which, reads -
Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
That is to say, Parliament has power to make laws “for the peace, order, and good government of the Commonwealth,” with regard to each matter mentioned in the paragraphs of section 51, and also under paragraph xxxix., with respect to matters incidental to the execution of any power vested by the Constitution in Parliament. That is my first important point - that Parliament has the widest and fullest jurisdiction to deal with every subject mentioned in the thirty-nine articles. My second point is that where the Constitution intends any limitation we must find that limitation within the paragraph itself. For instance, there is a limitation in paragraph 1., which says that Parliament may make laws with respect to -
Trade and commerce with other countries and among the States.
There is a limitation in that paragraph outside which we must not go, although, as Senator de Largie has said, the power is further extended by section 98. The draftsman in preparing this Bill, adopted the actual word’s of the Constitution in clauses 4 and 6, because he recognised that we are prevented by the terms of the Constitution from dealing with any person trading within a State because of the limitation in paragraph 1. Then, in framing clauses 5 and 8 of the Bill, the draftsman saw that we had more extended powers ; because Parliament may make laws with respect to -
Foreign corporations and trading or financial corporations formed within the limits of the Commonwealth.
It will be observed’ that there are no limitations whatever in regard to these words. We therefore have, according to my view, to give the fullest and most extensive meaning to them. Senator Symon has urged that .that provision was only in tended to insure uniformity in companies law. It is a singular thing, however, that the various Conventions, in dealing with this clause, modified it considerably. In Quick and Garran’s Annotated Constitution, page 604, there is the following historical note: -
Historical Note - “ Status of .corporations and joint stock companies in other colonies than that in which they have been constituted “ was a subject which might be referred to the Federal Council under the Act of 1885.
In the Bill of 1891 the sub-clause was worded - “ The status in the Commonwealth of foreign corporations, and of corporations formed in any State or part of the Commonwealth.” In Committee Mr. Munro and Mr. Bray suggested that there should be power to prescribe :i uniform law for the incorporation of all trading corporations ; but Sir Samuel Griffith thought it unnecessary. (Conv. Deb., Syd., 1891, pp. 685-6).
At Adelaide the sub-clause was drawn as follows : - “ Foreign corporations and trading corporations formed in any State or part of the Commonwealth.” In Committee the words “ or financial” were added. (Conv. Deb., Adel., pp. 793-4). At Melbourne, after the fourth report, the words “ within the limits of the Commonwealth “ were substituted for the words “ in any State or part of the Commonwealth.”
Then, of course, we got the Constitution in its present form. I will admit that, if paragraph xx. of section 51 stood in its original form -
The status in the Commonwealth of foreign corporations and of corporations formed in any State or part of the Commonwealth, the contention of my honorable friend Senator Symon would be completely correct. But, as a matter of fact, the Convention rejected that limited conveyance of jurisdiction.
– Bv- what was considered to be one of the drafting alterations.
– I do not care whether it was a drafting alteration or otherwise. My contention is that, if status: had been meant, and it had been intended to limit the paragraph to status, that word would have been inserted. But instead of that the Convention declared that it would not limit the jurisdiction to status.
– It did nothing of the kind. Let the honorable senator read the debates.
– The Court will not read the debates.
– The Senate is not a Court.
– But my honorable friend will realize that it is the Court that has to construe this provision of the Constitution.
– The Court can always listen to the history of an enactment, although it would not be guided by the opinions of individuals.
– The High Court expressly decided, in the case of Tasmania against the Commonwealth, that it could not take notice of what was said at the Conventions.
– We had the debates read before the Court in South Australia the other day.
– Is it not our duty to legislate according to the terms of the Constitution ?
– We have an absolute right, according to my view, lo legislate generally in regard to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, and not only in regard to their status.
– Does the honorable senator think that the States would ever have consented to the Commonwealth interfering with trade and commerce within their respective limits?
– That consideration is hardly relevant. What the States might or might not have done is beside the question. The question is, what are our powers under the Constitution ? If it had been intended, as Senator Symon contends, to limit our powers in regard to foreign corporations and trading and financial corporations formed within the limits of the Commonwealth, to status, or .the enactment of uniform laws, the Constitution would have said so, and the limitation would have appeared in paragraph xx. itself. Instead of that we have the widest and fullest words -
Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.
I propose making a verv short reference in support of my contention first, that we have the right to read each of these paragraphs independently; secondly, that the limitations must be conferred within the terms of each paragraph itself;, and, thirdly, that we have the right to give the fullest meaning to each of the paragraphs.
– Is the honorable senator not reading paragraph i into paragraph xx. ?
– Why not read subparagraph xx. into paragraph i ?
– I am afraid that Senator Best is confusing the two paragraphs
– What I say is that, for the purposes of clauses 5 and 8, we depend on paragraph xx. alone.
– Where is the power?
– Under paragraph xx. of section 51 of the Constitution.
– The desire seems to be to subordinate paragraph xx. to paragraph 1.
– I ask amy honorable senator if he can see any limitation in the words of paragraph xx. -
Foreign corporations and trading or financial corporations formed within the limits of the Commonwealth.
There is no limitation there, and, consequently, according to American decisions, Parliament may legislate as it pleases in regard to foreign corporations and trading or financial corporations - we may limit and control their trade exactly as we like. I contend that that is in accordance with all the principles, and the construction, of the American Constitution. Why .should the Senate limit itself in the exercise of its jurisdiction ? When the Constitution confers, as it does, the right to deal with the subjects set forth in the various paragraphs of section 51, why not give the fullest meaning to the words, instead of .limiting the meaning in the manner suggested.
– Why is there not a limitation as in the case of insurance and banking companies?
– I can illustrate what I mean by referring to half-a-dozen or more of the paragraphs of section 51 of the Constitution. For instance, paragraph 11. gives the power to make laws with respect to taxation, but there is the limitation -
Taxation ; but not so as to discriminate between States or parts of States.
Then, in regard to banking, paragraph xiii. is as follows: -
Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money.
Mark the limitations in every line. . In regard to trading corporations, if the intention had been to cut our powers down, it must have been so expressed.
– Does the honorable senator contend that the absence of limiting words gives a significance to paragraph 1 of section 51, so far as trade matters are concerned?
– I say that the meaning of paragraph xx. is that we may regulate trading and financial corporations formed within the Commonwealth in relation to their trade and commerce,1 though the same be confined to any one State.
– Regulate all their operations ?
– Regulate all their operations, even although it should interfere with State legislation. I propose to read only a few lines on this question; and I first refer to Notes on the United States Constitution, in which, at page 77, there is the following : -
The powers conferred upon Congress must be regarded as relative to each other and all means to a common end ; so when Congress has power to do an act by virtue of distinct powers it may exercise which it pleases; and when it professes to act under one it need not resort to any other, or when Congress has power to accomplish a certain result, indirectly by one mode, it may do so directly by another; but no power in itself substantive can be exercised or contravened by action under an incidental power, nor can an act which cannot be done directly, because of defect in power, be done indirectly.
That seems to me to show very conclusively ‘ that Congress has. distinct powers, and may exercise which it pleases, and in clauses 5 and 8 we have seen fit to exercise the powers given by paragraph xx. of section 51 of the Constitution. I should now like to refer to the volume Treaty Making Power of the United States, bv Butler, page 59 -
In this chapter it is intended to refer to certain instances in which the treaty-making power has been exercised to its widest extent, and far beyond any prerogatives expressly stated in the Constitution, and, possibly, in direct contraven-. tion of constitutional limitations, but in which it has also been determined by the Supreme Court that it was properly exercised.
The author goes on to refer to State legislation as controlled by treaty stipulations. In the United States the Federal authority has direct power to make treaties, and I desire to show that the exercise of this power extends even to the contravening of State laws, if the latter in .any way interfere with the making of treaties.
As already shown the regulation of the descent of property, a matter wholly within the local jurisdiction of the separate States, has been the subject of treaty negotiation and stipulations, with the result that State laws in regard thereto have been declared inoperative, so far as they conflict with treaty provisions; that condition, however, results from the fact that the United States, through the treaty-making power, directly controls State legislation pursuant to that clause in the Constitution which makes treaties the supreme law of the land ; in this chapter it is intended to refer to matters which are not within the jurisdiction of any State, but which affect the people of the United States in their relation to the Federal Government.
This shows that the mere power to make treaties enables, the central power to enter into treaties of such a character as to interfere with State laws; it shows the great extent to which the Courts, bv giving the widest and most extended meaning, have carried the powers conferred by the United States Constitution. That must be so, because, otherwise, where is the limit to be drawn ?
– It is for those who oppose the honorable senator to show exactly where the boundary of our power is.
– Yes, to show us the boundary line.
– The boundary line is that we cannot interfere with trade within a State.
– But that is not provided.
– That is the limit.
– Suppose we were passing a Companies Bill, where would Senator Dobson say the limit was?
– We could do anything in regard to the regulation of companies, not going beyond paragraph 1 of section
– That is. what the American Constitution and the decisions thereon show conclusively is not the case. According to those decisions, we are at liberty to read separately all the paragraphs conferring jurisdiction, and give them the widest and most extended meaning. In the report of the case of Buckfield v. Strachan, in the United States Reports, Vol. 192, page 470, is the following:
Every intendment is in favour of the validity of a statute, and it must be presumed to be constitutional unless its repugnancy to the Constitution clearly appears.
In other words, this Bill, if passed, must be presumed to be right unless it is clearly against the Constitution. The report of the case proceeds -
The power of Congress to regulate foreign commerce, being an enumerated power -
In the same way paragraph 1 of section 51 is an enumerated power - is complete in itself, acknowledging no limitations other than those prescribed in the Constitution.
– It is prescribed in the Constitution ; between the States is the limitation.
– Senator Dobson must see that what this case decides is that each of the thirty-nine powers conferred by section 51 is complete in itself, and must be regarded- as complete in itself, just as though the other thirty-eight were absent. In this case it was argued for the plaintiff that, the police power being within the control of the States, Congress could not exercise any jurisdiction involving police power. Later on, at page 492, we read -
The power to regulate commerce with foreign nations is expressly conferred upon Congress, and being an enumerated power is complete in itself, acknowledging no limitations other than those prescribed in the Constitution.
– That is right.
– Exactly ; but the honorable senator ignores the fact that the power is complete in itself. Certain cases were quoted in support of that view.
Whatever difference of opinion, if any, may have existed or does exist concerning the limitations of the power, resulting from other provisions of the Constitution, so far as Inter-State commerce is concerned, it is not to be doubted that from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries -
Could anything be clearer than that? - not alone directly by the enactment of embargo statutes, but indirectly as a necessary result of provisions contained in tariff legislation. It has also*, in other than tariff legislation, exerted a police power over foreign commerce -
The police power being essentially a State power - by provisions which in and of themselves amounted to the assertion of the right to exclude merchandise at discretion. This is illustrated by statutory provisions which have been in force for more than fifty years, regulating the degree of strength of drugs, medicines, and chemicals entitled to admission into the United States, and excluding such as did not equal the standards adopted.
Although it is within the power of the States to make police laws, and to limit the standard of drugs and so forth, yet Congress has the right to put aside the State powers so far as they interfere with the exercise of the central plenary powers.
– The honorable senator is not defending. States rights.
– I am defending the Constitution; I am arguing as to what our rights are under the Constitution. I challenge any honorable senator to point to any limitation in paragraph xx. by virtue of which the two clauses in the Bill have been framed. I have now the case to which I referred, ira which, it was held that we were not justified in referring in Court to the opinions of members of the Federal Convention. It is the case of Tasmania v. the Commonwealth of Australia. Chief Justice Griffith said -
We think that as matter of history legislation, the draft Bills prepared under the authority of the Parliaments of the several States may be referred to. That will cover the draft Bills of i8gi,*i8o7, and 1898. But expression of opinion of members of the Conventions should not be referred to.
– Putting the opinions on one side, the history of the particular paragraph shows what was intended.
– The history shows that at that time status alone was considered.
– History, to which we are justified in referring, completely establishes mv contention. The history of this legislation is that then status alone was referred to. whereas, when we come to the Constitution itself, we have the wider words which appear in paragraph xx.
– Which show the intention.
– Exactly. We exercise our powers, not by the more limited words, but by the wider words. According to my view, honorable senators are justified in exercising to the fullest extent our powers in this connexion. I do not think that we should be deterred for a moment from doing so when we know that the object of the two clauses is to limit the’ improper and nefarious operations of corporations which have a special design upon Australian industries.
Senator Sir RICHARD BAKER (South Australia) [5.31]. - Senator Best has laid down some rules for the construction of Statutes correctly, and others), I think, incorrectly. There are some rules to which he has not referred. One is that if the construction which ia contended for a Statute leads to an absurd and ridiculous conclusion the Court will struggle against that construction. Does not the construction for which Senator Best contends lead to a ridiculous conclusion? He, in effect, affirms that if two corporations - one a foreign corporation and the other a corporation registered in the State - are trading within the limits of a State, the laws of the Commonwealth may be applied to one but not to the other.
– I never suggested that for a moment.
Senator Sir RICHARD BAKER.That is what it comes to. It is admitted that’ we cannot apply Commonwealth laws to the trade of a corporation registered in a State when it confines its operations within the State.
– I say most distinctly that we can deal with all corporations.
– But not with individuals.
– It comes to the same thing. If a corporation trades alongside an individual in a State, and attempts to do the same kind of business, those two persons - for in law both are persons - have to trade under different laws, namely, one under Commonwealth law and the other under State law. Can it be supposed for a moment that the Convention ever intended a differentiation of that kind ?
– I do not care what the Convention intended.
– Where the construction of a Statute leads to an absurd conclusion, the Court will always try to put a common-sense meaning on the Act, or, as. in this case, on the Constitution. When the Constitution Bill was introduced in the Convention of 1891 - I was a member of the Convention of 1891 and of that of 1897-8 - the words used were “ The status in the Commonwealth of foreign corporations,” and that phrase was noc intended to be altered, nor was it ever altered, except as a drafting amendment. I contend that the framers of the Constitution undoubtedly did what thev intended to do.
– Does the honorable senator see the word “status” in paragraph xx. ?
– It was taken out of the paragraph as a drafting alteration, but it is there in effect, although not in words. Undoubtedly that is what it means. I entirely agree with the contention of Senator’ Symon. The Senate is not a court of law, and we ought to adopt a common-cense meaning when we can. Is there anything in paragraph xx. of section 51 which prevents us from doing so ? It seems to me to be quite clear that our powers in relation to trade and commerce are limited to “ trade and commerce between the States.” I do not believe that the States would have agreed to accept the Constitution Bill if they had imagined for a moment that the Commonwealth could interfere in their internal affairs. I am an> advocate of States rights, and I do not desire to speak at any length. Senator Best has spoken at great length, and used a great many arguments which seem to me not to bear upon the point at issue. As regards the power of the American Congress to regulate the strength of drugs which are imported into the United States what has that to do with the point under consideration? I do not see that it has any relevancy. No one doubts that this Parliament has the power to regulate the strength of drugs imported into the Commonwealth ; the contrary is not contended for. I hope that the Committee will not so frame this Bill that it would be upset directly it was taken before the High Court, which, 1 feel sure, would be the result if Senator Best’s view were adopted. I do not pretend to be an admirer of the Bill. If I wanted to make it null and void I should certainly vote with Senator Best. That would be mie best course for the violent enemies of the Bill to take.
– I should be prepared to take the risk.
– I do not wish to be a party to the passing of a Bill which I believe would be of no use, because the High Court would say that we had exceeded our powers. I hope that a common-sense view will prevail.
Seantor DOBSON (Tasmania) [5.35].- I hope that Senator Stewart will withdraw his amendment, because, if adopted, it would reflect no credit upon the Senate. The speeches of Senators Symon and Baker axe so clear that I cannot understand anyone doubting their statement of the law. I have in my hand an indirect authority on the question at issue. In his Trusts in the United Slates, Von Halle says -
What seems to the author indispensable for the beginning of an effective solution of the difficulties is, above all, a uniform commercial code, or at least a uniform corporation law for the whole United States. A uniform practice is indispensable, considering that the activity of the great enterprises has extended far over the boundaries of individual States. It can only be a question of time, until, by an amendment of the Constitution, the corporation law shall have been brought within the reach of congressional legislation.
It is quite true, as Senator Best has said, that the Constitution of the United States does not contain a provision empowering the Congress to exercise control over foreign corporations.- But let us see what has led up to the paragraph I have quoted. It will be recollected by those who have read books on trusts that one of the greatest curses or evils of the trust system in America is that when a big meat company seeks to get rid of competition it sets to work to buy up every meat factory or canning company in the territory. It gives the different factories full market value, generally their own price, and issues to them preference shares for that amount. But in order to make a good thing out of the transaction, the big company issues millions of ordinary shares, for which there is no good-will or value. Of course, in order to pay a dividend on this enormously watered stock, the trust has to be run for all it is worth, and, therefore, it acts with that brutal tyranny and selfishness which we read about. Von Halle goes on to say -
No author has conceived better the meaning of the corporation problem for the Commonwealth than Henry C. Adams. He asks for publicity, publication of the results, and the ways in which they were reached, a control through public bodies, and a responsibility of the individual member of the administration of the corporation for the observance of the necessary restrictions. The leaders of the large companies have power and honour, but are not kept face to face with sufficient public supervision.
Senator Keating has said that it rests with us to show the limits of our legislative power in regard to foreign corporations. I contend that the Parliament has the power to enact any law” in that regard. It is enabled to say that there shall be the most perfect publicity relative to different trading companies; also, that trusts shall not issue shares beyond a legitimate value, certified to by proper valuers, and shall publish the results of their dealings. It can lay down rules without limit in regard to the status and doings of companies.
– It can say that they shall not do anything to the injury of Australian manufacturers, and so on.
– Not when a company is trading within the limits of one State.
– Surely if we can do the one thing we can do the other.
– The limitation of our power in regard to trade and commerce is contained in paragraph 1. of section 51 of the Constitution. It is impossible for any one to seriously contend that under that paragraph we have the right to regulate trade and commerce between the States, and that, under paragraph xx.. we have the right to regulate trade and commerce within a State. As Senator Baker has pointed out, that would lead to an absurdity. .
– We have the power to regulate the action of corporations, and we are entitled to enact that they shall not do certain things which are detrimental to the public interest.
– Will Senator Playford be good enough to answer Senator Baker’s simple problem? Are we to understand that we cannot regulate the trade and commerce of individuals in any . one State, but that we can regulate the trade and commerce of a company within that same ‘State ?
– Then, as Senator Symon has pointed out, if a man wished to evade the law, all he would need to do would be to register himself with his uncles, cousins, and his aunts as a limited liability company.
– He would still be subject to the law.
– He would come under the provision relating to trading or financial corporations.
– Senator Dobson has transposed the case which he wished to put.
– I hope that; for the sake of our credit, the amendment will not be passed. I might give another illustration. The Bill provides in a later clause that a trust may not do anything to destroy an Australian industry or to lessen the rates qf wages or to interfere with the hours of work. That provision is, I contend, ultra vires. Docs the Minister say that we can regulate the wages which corporations may pay in a State, but cannot regulate the wages which individuals therein may pay ? The absurdity of the differentiation is apparent at once. Every, illustration which one can conceive of shows the unconstitutionality of an amendment of this kind.
– I think that no more important question has ever come before the Senate than the point under discussion, because the Government is claiming that the Parliament has the right to interfere with trading corporations within a State.
– Certainly not under clause 4.
– Under the amendment.
– We are opposing the amendment.
– I also am opposed to the amendment. I most strongly object to the Parliament of the Commonwealth claiming the power to interfere with trade within a State. I feel perfectly certain that on a true interpretation of the Constitution our powers in regard to trade and commerce are limited by paragraph 1 of section 51, as extended by section 98 to shipping and navigation, and to railways the property of any State. I disagree with Senator Best’s interpretation of our powers. The High Court has held, and, no doubt, would hold again, that the Constitution must be construed as a whole; that every provision must be construed as a part of the Constitution, and not separately. I am familiar with the class of American cases which Senator Best has cited. These are cases in which the question has arisen as to how far the plenary power of Congress over trade and commerce can be carried out in the United States. It has been held that all State laws must give way to the exercise of that power, which,. of course, is given with only certain limitations. When we ask how the Government propose to get power with regard to trade and commerce in the case of corporations, we are pointed by Senator Best to paragraph xx. of section 51. If the construction of that paragraph were taken before the High Court, it would have to decide what was the meaning of its words at the time when the Constitution was assented to, and therefore it would consider the history of the provision, but it would not have any regard to the opinions expressed by individual members of the Convention. When we turn to the history of the provision, I think there cannot be the slightest doubt as to what was originally intended. It was one of the legislative powers intrusted to the Federal Council of Australasia under the Imperial Act of 1885, and it was granted in this form : “ The status of foreign corporations, &c.” In the Constitution Bill of 1891, the expression used is still the same as before, namely, the “ status” of corporations. If there is any doubt in the minds of any honorable senator as to what was the meaning attached to the words in that vear, perhaps I had Letter quote the discussion on the provision in the National Australasian Convention on the 3rd April, 1891 -
Sub-clause ig. The status in the Commonwealth of foreign corporations, and of corporations formed in any State or part of the Commonwealth.
Mr. MUNRO. We have agreed to sub clause 13, dealing with the incorporation of banks, and
I do not see why a similar provision should not be made in regard to the incorporation of companies. Why should they not be under the control of Federal officers? At the present time the law as to incorporation is different in the different Colonies, and the result is extremely unsatisfactory in many cases. I do not see why we should not make the same provision in regard to the incorporation of companies as we have made in regard to the incorporation of banks. We might introduce at the commencement of the sub-clause words to this effect : “ The registration or incorporation of companies.”
Sir SAMUEL GRIFFITH. I do not think we should. There are a great number of different corporations. For instance, there are municipal, trading, and charitable corporations, and these are all incorporated in different ways according to the law obtaining in the different States.
Mr. Munro. But as to trading corporations !
Sir SAMUEL GRIFFITH. It is sometimes difficult to say what is a trading corporation. What is important, however, is that there should be a uniform law for the recognition of corporations. Some States might require an elaborate form, the payment of heavy fees, and certain guarantees as to the stability of members, while another State might not think it worth ils while to take so much trouble, having regard to its different circumstances. I think the States may be trusted to stipulate how they will incorporate companies, although we ought to have some general law in regard to their recognition.
Sir JOHN BRAY. I think the point raised by the honorable member, Mr. Munro, is worth a little more consideration than honorable members seem disposed to bestow upon it. We know what some of . these corporations are; and I think joint-stock companies might be incorporated upon some uniform method. In South Australia a banking company is not allowed to be incorporated under the Companies Act ; still, there is nothing in Victoria, of which I am aware, to prevent a banking company from being registered there as a limited company, and opening a branch in South Australia a few days afterwards. I think it is necessary, therefore, to have some uniform law. There is nothing in which the public should have more confidence than in banks, which are in any way recognised by the State ; and I think we should have some uniform system of incorporating banks. Many companies, although doing business under different names, are, in reality, banks.
Mr. Munro. The banks are incorporated under the Companies Act in Victoria !
Sir JOHN BRAY. You can establish financial companies, which you do not call banks, but which answer all the purposes of banks. We have provided that the Federal Parliament shall legislate as to the incorporation of banks ; but there is nothing to prevent the incorporation by the States themselves, quite apart from the Federal Parliament, of trading companies which will do all the ordinary business of banks. If it is desirable to intrust legislation as to the incorporation of banks to the Federal Government, there is no reason why we should not say that the registration of financial companies doing all the business of banks should be dealt with in the same manner.
The paragraph was then agreed to.
– Was nothing said about foreign corporations ?
– I will read the paragraph
The status in the Commonwealth of foreign corporations and of corporations formed in any State or part of the Commonwealth.
– Our Constitution drops the word “ status.”
– As Senator”’ Baker has pointed out, that was merely a matter of. drafting. I will now read to the Senate what took place at the Convention in Adelaide on this subject, when the provision came up in its altered form without the word “status.” Honorable senators mayjudge for themselves whether there was the slightest intention to alter the meaning. In the Adelaide Convention debates of 1897, page 793, the following passage occurs -
Sub-section 22. Foreign corporations and trading corporations formed in any State or part of the Commonwealth.
Sir GEORGE TURNER. With regard to this clause, we have already given power to deal with banking, and we are now giving power to deal with foreign corporations and trading corporations. I fail to see why we should limit the sub-section to trading corporations. There are financial institutions which are not banking institutions, and if we are going to give the Federal Parliament power to legislate with regard to banking, and with regard to trading corporations, we should go a step further, and give it power also to legislate with regard to financial institutions.
Mr. Barton. I do not know.
Sir George Turner. Building societies.
Mr. BARTON. I think the present wording of the sub-section covers as nearly as may be the intentions of the Constitutional Committee, and really for the amendment, which is a desirable amendment, in the sub-clause as it stood in the Bill of 1891, we are indebted to my honorable friend, Mr. Isaacs, who put it in its present form.
Mr. Isaacs. I suggested the word for temporary consideration.
Mr. Barton. I should like to be favoured with any arguments in favour of the suggestion.
Mr. DEAKIN We recently passed a law in our Colony which placed a strict limitation on the meaning of the word “ banks,” excluding from it particular kinds of financial companies which had hitherto been called banks, or treated as banks.
Mr. Barton. You mean that kind of financial company that went down so often.
Mr. DEAKIN. We distinguish them from banks on the one hand and trading corporations on the other. We want to include ail limited companies, because the class of companies I am speaking of dell with lands and ‘with deposits, and they require to be carefully regulated.
Mr. McMillan. You want to include everything outside private companies.
Mr. DEAKIN. Especially land and finance companies, which caused so much litigation in the past.
– In the original Act corporations simply are mentioned. Why this difference?
Mr. BARTON. The reason of making the difference was this : It having been seen that the word “ corporations,” as it existed, covered municipal corporations, the term was changed to “ trade corporations.”
– Why not simply use the term “ company “ ? If you use that word it will be well enough understood.
Mr. BARTON. Why not adhere to “corporation “ ? That governs everything under the Companies Act.
– Why not leave out the word “ trading” ?
Mr. BARTON. Or add the word “ financial “ ?
Sir JOSEPH ABBOTT. I move “ To insert the word ‘financial’ before ‘ corporation.’ “
Mr. BARTON. Would it not be better to make it thus : “Any trading or financial corporation.” So as to separate that branch from foreign corporations?
Sir JOSEPH ABBOTT. I will consent to that, and move “To insert after ‘trading’ the words ‘or financial.’ “
– No reason is given for ‘ leaving out the word “status.”
– Besides that, the Court cannot look at what was said at the Convention.
– Can. any one contend that the intention in dropping out the word “status “ was to confer upon the Commonwealth the enormous power of interfering with trading relations within a State?
– My honorable friend must see that the Court cannot go behind the Constitution.
– The Court will have to say what the. provision in the Constitution means.
– Exactly ; and it cannot look at the debates.
– It can look at the debates, and in the case of Tasmania against the Commonwealth, the debates were quoted at considerable length. What the Court says is that when it comes to give its decision it is not to Le swayed or moved by the opinions expressed by individual members of the Convention. But the Court may, and will, go to the Convention debates to see what was said in order to enable it to arrive at the truer meaning of words in the Constitution.
– But the expression of opinions of members of the Convention could not be referred to.
– They can be referred to to show the history of a piece of legislation.
– Does the honorable senator say that the debates will be relied upon by the Court?
– The opinion of Sir Edmund Barton or any individual member of the Convention amounts to nothing, but the history of how particular words came to be inserted or omitted is vital to the interpretation.
– The portions of the debates which I have read are exactly what would be read to the Court, and the Court would learn from that passage what is the history of the paragraph in question. Reading that passage, we have no doubt as to the meaning of the provision. I think it is perfectly clear with regard to trading, as in many other matters, that the Constitution draws a clear and hardandfast line between what are Commonwealth interests and what are State interests; and nowhere in the Constitution is it provided that trading within a State is to be interfered with by the Commonwealth Parliament. It is almost incredible that it should have been intended that the Commonwealth Parliament should have power to interfere with trading operations by a corporation and not be able to enforce the same laws with regard t’o private persons trading in the same State, and probably in the same place. If the view of the Government were correct, we might have rival traders in a street, the one being a corporation and the other an individual ; and we might have Commonwealth law imposing restrictions upon the trading corporation, but riot touching the individual trader. Such a thing seems to me to be absurd. Senator Best wishes to put on one side the intentions of the framers pf the Constitution, and to look simply at the words and say what they mean. Then my, honorable friend says that if there is an anomaly we must take it as we find it. I say no. If there is an anomaly in a Statute, the law will not allow some obnoxious regulation to be enforced upon a suffering people because of it. The Court will look past the anomaly to what was really meant. I am reminded’ of a case with regard to the construction of a Statute which, would come, I think, under my honorable friend’s rule. It was a case where a man wanted to import a quantity of bolts and) nuts. He said that he was willing to pay duty on the bolts, but that nuts came in free, and he pointed triumphantly to the provision in the Tariff with regard to green fruits. The law will not be deceived bv anomalies of the kind referred to. The Court will always look broadly at what was the meaning of the particular section. I have not the slightest doubt that in this case the Court could come to no other conclusion than that the power intended to be given to the Commonwealth Parliament was to do such things as were referred to by the framers of the Constitution during the Convention debates. They show us clearly and exactly what was intended to come within the. scope of the particular paragraph of section 51 with which we are dealing. Mv contention is that with regard to trade and commerce we must be limited by paragraph 1., and that we have no power to interfere with corporations in regard to trade and commerce within a State.
– The House of Representatives must have been exceedingly negligent in sending us such unconstitutional proposals !
– That is rib argument whatever. I myself was surprised. I did not know how the Bill was framed in this respect until Senator Best put forward’ his argument on the second reading. I was not aware of the view of the Government as to the powers possessed, and which are sought to be carried out in clauses 5 and 8.
Senator Sir RICHARD BAKER (South Australia) [6.1]. - An inquiry has been made as to why the words “ in any State “ were left out of paragraph xx. of section 51 by the Convention. I have here the original records showing that 490 drafting amendments were brought down by Sir Edmund, then Mr. Barton, on the 1 6th March, 1898. They were signed by myself as Chairman of Committees, and were passed in globo without any discussion . whatever. The assertion w as made that they were merely drafting amendments. One of those drafting amendments was to leave out the words “ in any State or part,” and to insert “within the limits of the Commonwealth.”
– The question was as to the omission of the word “status.”
Senator Sir JOSIAH SYMON (South Australia) [6.4]. - I wish to bear out what Senator Baker has just said, and also to say that the word “status” was treated by the Convention as an unnecessary word. If there was one thing which the Convention endeavoured to do very carefully it was to frame a Constitution as free as possible from unnecessary expressions;. If Senator Best argues that paragraph xx. of section 51 gives us power to make laws dealing with the trade and commence of the Commonwealth, whether in a State or not, would he apply the same argument to the next paragraph? We are there empowered to make laws with regard to marriage. Should we be able in our marriage laws to provide whether the married couple should carry on trade, and how they should carry it on within a State? The principle is exactly the same.
– Surely not.
– Surely it is. If we are to say that we have power to make laws, applicable within a State, with regard to trade and commerce because we have power to make laws with regard to foreign corporations and trading or financial corporations within the Commonwealth, surely we have equal power to make laws with regard to marriage.
– I contend that the paragraphs must be read independently.
– But people do not marry for purposes of trade. They do form corporations for purposes of trade. That disposes of the analogy.
– It does not at all. The argument is that the paragraphs of section 51 are to be read independently. Just so; and reading them independently, if we have power to legislate with regard to foreign corporations and trading or financial corporations within a State, we have power quite independently to direct how married people shall carry on trade within a State.
– Certainly, if we were ridiculous enough to do it, we have the power.
– Could we not place a restriction on marriage to this extent - that marriage should be subject to the condition that the parties married should not carry on separate businesses?
– Certainly we could not. The Commonwealth could do nothing of the kind. But if the argument used by Senator Best is well founded we could do it.
– I think we could, although I think it is not at all likely that we shall.
– That is to say that we could regulate the trade in which people marrying in the Commonwealth should engage. It is too absurd.
– I wish to draw attention to a matter of drafting. Paragraph b refers to a corporation which engages in a combination - with intent to destroy or injure, by means of unfair competition, any Australian industry, the preservation of which is advantageous to the Commonwealth, having due regard to the interest of producers, workers, and consumers.
The last two lines of the paragraph appear to me to be foreign to the remainder of the clause1.. It reads as if the person who enters into a contract with intent to destroy is meant to have due regard to the interests of workers, producers, and consumers. Who is it that has to have regard to those interests ? I presume that the Court is meant.
– Those words govern the words “ advantageous to the Commonwealth.”
– Should there not be something to indicate that it is the Court that is to have regard to those interests?
– That is implied.
– In a very indirect manner, I think.
– Quite sufficiently.
– It might be read to mean that the person ‘who has the intent to destroy is to have regard. I think it would be better to have a separate provision dealing with the matter, as is done in clause 6.
It might set out that, for the purposes of the last two preceding clauses, the Court, in determining what is unfair competition, should have due regard to the interests of producers, workers, and consumers.
– That is what is now meant.
– I think the intention ought to be expressed in a direct fashion, instead of, as at present, in an indirect way in two clauses. There is a direction to the Court in clause 6, and I think the other directions ought to be included in the same clause.
-. The Bill, on the face of it, is very strict. We all know what we desire to do, but it is difficult to carry out our intention ; and we ought to give the Court” all information possible as to what we really mean. We know that trusts are sometimes beneficent, and that large organizations of capital are to be allowed ; and under the circumstances we ought to show that it is unreasonable restraint of trade that we condemn. I move -
That after the word “to,” line 7, the word “ unreasonably “ be inserted.
– The words “ to the detriment of the public” attain the object the honorable senator has in view, and, therefore, there is not the slightest necessity for the amendment. ‘
Seantor DRAKE (Queensland) [6.14].- There seem to be a great many provisions in the Bill which will have the effect of preventing competition by prohibiting the importation of goods and their sale at a low price to the injury of Australian industries. But there does not seem to be any provision to prevent persons from combining together to raise the prices of the necessaries of life.
– I think that the words “ to the detriment of the public “ cover that ground.
– Those words are too vague.
– Those words refer only to the restraint of trade or commerce, so that a combination of traders to raise the prices of commodities would not, I think, be affected.
– Would the raising of prices not restrain trade?
– It might or it might not ; trade might go on just the same. We certainly ought to deal with combinations of the kind, the operations of which press very harshly on the poorest in the community. I should like to move that, after the word “ commerce “ in paragraph a, the words “or to unduly raise the .price of commodities “ be inserted.
– In my opinion the words suggested would be superfluous.
– And would altogether alter the meaning of the clause.
– I have not had time to fully consider the suggested amendment, but it strikes me that the ground is completely covered by the words “ to the detriment of the public.” The undue raising of the prices of the necessaries of life would certainly be to the detriment of those who had to purchase them; and I ask the Committee not to agree to the amendment.
.- As I said by way of interjection, the suggested amendment would alter the whole meaning of paragraph a, because the words which Senator Drake desires to have inserted would limit the meaning of “ detriment of the public “ to the raising of prices. “ To the detriment of the public” is intended to apply to anything which is injurious to the public, and the amendment, if carried, would impose the limitation I have indicated.
.- In order to make “ to the detriment of the public “ govern the whole paragraph, those words might be inserted after the word “ intent,” with the words I suggest following. The paragraph would then be grammatically perfect, but I have no desire to recast the whole; indeed, I would prefer the words “ to the detriment of the public “ to follow the words I suggest.
– The honorable senator could make a new paragraph of his proposal.
– I shall adopt the suggestion of Senator Pearce, and move. -
That the following new paragraph be inserted to follow paragraph a : - “ (aa) with intent to unduly raise the price of commodities to the detriment of the public; or”
Question^ - That the words proposed to be inserted be inserted - put. The Committee divided.
Question so resolved in the negative. Amendment negatived. Senator Sir JOSIAH SYMON (South Australia.) [6.25]. - I move -
That after the word “ contract,” line 19, the word “ hereafter,” be inserted.
I submit this amendment in order to make it absolutely certain that the sub-clause 2 applies only to contracts made after the; passing of the Bill.
– We have already provided, in the earlier part of the clause, that, continuance in any combination, which, of.’ course, would be the result of a contract, shall be an offence. That being so, we provide also that a contract, although it is not avoided until the Bill conies into force, shall then be avoided. We do not interfere in any way with any acts or transactions anterior to the Bill coming into operation, but the moment it does come into operation, it renders the making of such a contract illegal, and all contracts already in existence become illegal and void from that moment. We do not in any way act retrospectively or attribute to any action or transaction arising out of a previous contract, any particular force or effect under the Bill ; but the moment the Bill comes into operation contracts for the establishment and maintenance of combinations become illegal and void.
Senator Sir JOSIAH SYMON (South Australia.) [6.28]. - Senator Keating has either not read sub-clause 2 or misapprehends it. The amendment I have proposed does not deal with the continuance of combinations, but with contracts. Neither the draftsman nor any one else ever pretended that sub-clause 2 of the clause was intended to deal with combinations, which become illegal and void at once; it was intended to relate to contracts only.
– A contract now in existence is not illegal, but it will become illegal on the passing of the Bill.
– The Minister entirely, I think, misapprehends the s’.ib-clause we are discussing. The sub-clause deals with persons who make or enter into contracts from the date of the passing of the Bill ; past contracts, are not affected. A man is not penalized who enters into a contract to do something before the Bill is passed; the man who is liable is he who enters into a contract after the Bill is passed.
– And who remains in a combination which is the result of a contract.
– Not a word is said about that in sub-clause 2. We are not dealing with combinations but with contracts into which men enter after the passing of the Bill.
Sitting suspended from 6.30 to 7.45 -b.m.
Bill received from the House of Representatives, and (on motion by Senator Keating) read a first time.
Debate resumed from 10th August (vide page- 2672) on motion by Senator Keating -
That the Bill be now read a second time.
Senator Sir JOSIAH SYMON (South Australia) [7.46]. - This is a Bill to make the High Court a Court of four Justices and a Chief Justice, instead of at present a Court of two Justices and a Chief Justice. The reasons which have been presented by the Government in its support, are chiefly if not wholly, based on the ground of the large increase of judicial work which the establishment of the Court has brought about, and the pressure to’ which Senator Keating referred. In the few words I have to say, I do not propose to enter into that aspect of the ques tion, as he dealt with it fully. .1 propose to look at the subject from what I conceive to be the higher and broader aspect which I have always entertained. To the opinion which I expressed and sought to give effect to in 1903, when the Judiciary Bill was before the Senate, I still adhere. I still hold the view that the High Court of the Commonwealth should consist of not less than four Justices and a Chief Justice. When honorable senators look back on the history of the establishment of the Commonwealth, and the steps which throughout a considerable course of years were taken with a view to the framing of the Constitution, they will, I think, find that the volume of opinion, I believe I may say, probably the best opinion, on this momentous question in relation to the Federal Judiciary, has been consistently and uniformly in the direction of a Court of not less than five Justices. The Constitution framed by the Convention of 189 1, of which you, Mr. President, had the distinguished honour of being a member, provided for a Chief Justice, and not less than four Justices. In the Convention which assembled in Adelaide in 1897, the subject was dealt with. In the first instance, it was brought in the ordinary course under the consideration of the Judiciary Committee of which I had the honour to be chairman. We had before us the provision of the Constitution framed in 1891, and a suggestion was made for the reduction pf the number, so that the minimum should’ be fixed at three .instead of at five. After the question had been most anxiously and earnestly discussed, the provision made in the Constitution Bill of 1891 was retained. In1 that shape, accompanied by the report of the Judiciary Committee, it was submitted to the Convention. On that occasion, Mr. Carruthers, who is now Premier of New South Wales, moved to strike out the minimum of four Justices, so’ as. to leave the Parliament entirely at large in that regard. His amendment was defeated by a majority of three, the numbers being, if I recollect rightly, sixteen to thirteen. So that the Constitution, when it emerged from the Adelaide session, contained a provision with regard to the strength of the Judiciary as a Chief Justice and four Justices. No interference was made with the provision at the Sydney session in 1897, but at the last session, in Melbourne, the subject was revived, and a proposal was made that the minimum should be three, namely, a Chief
Justice and two Justices, instead of five, as originally provided. That was carried, but only by a majority of one vote. Honorable senators will therefore see that when I say that the volume of opinion was in favour of establishing the Court with that degree of numerical strength, it was so throughout, and that at the Melbourne session there was practically an even division. The amendment was made, not, I think I may safely say, because there was any change in the opinion of a majority of the members of the Convention, but because of what I might call prudential reasons in regard to presenting the Bill for the acceptance of the people at the referendum. That was the state of things up to the assembling of the first Parliament, and in 1903, the Judiciary Bill as it is now on the statutebook, was brought in. It was introduced, and I think properly introduced, by the Ministry, with a minimum of four Justices and a Chief Justice, and it so remained until the House of Representatives reduced the number to three. It then came here. Senator Stewart, who spoke immediately before I did, criticised the Bill adversely from certain stand-points. With some of his criticisms I agreed. He rested one of his criticisms on the ground that the Court ought to consist of five Justices and not of three. Speaking in the debate on the second reading, I said-
My honorable friend, Senator Stewart, said that he would vote for the Bill with reluctance, because it was a ragged measure, and that the High Court to be established under it would be a court which would not fill us with pride. Well, I cannot go quite that length with him I shall vote for the Bill, also with reluctance, because the Court will be one of three Judges; and I will give reasons why I think there ought to be five.
I may say that Senator Dobson said that if there was to be a Court at all, he Was strongly in favour of there being a Court of five Justices. Referring to that remark later on, I said -
I have not had the privilege of hearing the debate so far, but I will pledge Senator Dobson my uncompromising support if he will take steps in Committee to increase the number of Judges from three to five.
No effort was made in the Senate to increase the minimum from three to five, because there was a very strong feeling, in Parliament at the time in respect of cost, and so on. I believe I am correct in stating that no amendment was moved, because it was felt that in all probability it would not be successful. On the same, occasion, I said -
As to the number of Judges, I agree with Senator Dobson that there ought to be five. There is a numerical strength as well as an intellectual strength. . . Judges are human, and therefore I say that we ought to have a numerical strength as well as an intellectual strength. I understand that Senator Keating referred to the number of Judges in America, and to an intention there is of increasing them. I should like to tell honorable senators that when the United States were launched on their national career of union in 1789 with a population less than ours-, and with, as Mr. Higgins and others admit, less possibilities of work than are presented to pur High Court, five Judges and a Chief Justice were appointed. And not only so, but a large number of other courts were constituted at the same time for the purpose of doing work under the Federal Constitution.
Three years have elapsed since that time, and Senator Keating has alluded to additional consideration, but with that aspect of the question I shall not deal. I adhere emphatically to the view I expressed in the Convention in 1897-8, and in the Senate in 1903. I still think that we ought to have had ‘from the beginning, and we ought certainly to have now, a Court of five Justives. The great reason by which I am influenced is that which I stated then, that there is a numerical] force, if I may so call it, as well as an intellectual strength. Whatever criticism may be offered to the view I venture to submit, there is this to be said : That we want our tribunal to be imposing in power and ability, and also imposing, within limits, in number. That is really all I have to say, except that, with the proposed numerical increase, we shall get increase of strength, increase of dignity, and increase of influence. I think that the dignity and power of the Court will certainly not be lessened, but will be augmented, by that numerical addition, the judgments will carry undoubtedly that greater weight which the number associated in them will give, and the stream of justice, will be none the less strong throughout this community by increased strength in the fountain from which it comes.
.- I move -
That the word “now” be left out, with a view to add the following words “ this day six months.”
I move the amendment, not because I have any doubt about the necessity for appointing two extra Justices, for I understand that the Court is worked at great pressure, and .that at least one Justice is showing signs of very hard work. My objection to the Bill is based upon the fear that Ministers who have, as a shibboleth, the cry of “ Australia for the Australians “ are likely to follow the example of the Government of Western Australia, who, during the past three years, have imported two barristers to fill positions upon its Bench. The Government appear to be extremely anxious to have coats, boots, collars, and cuffs made in Australia - and that is a very laudable ambition - but, apparently; they have no confidence in the capacity of Australians to fill these high offices, lately they have been casting round outside Australia for a gentleman to fill the position of Administrator in Papua. So far they have not been able to get a gentleman, but they are marking time in the hope that they_ may discover one. If that is their attitude towards the filling of an office which I do not think requires as much education or ability, as does the position of a Justice of the High Court, is it likely that they would appoint Australians to the additional Judgeships ? I do not think it is.
– What ! not for the two High Court Judgeships?
– The honorable senator has heard my argument, and I ask him if he has any reason to believe that the new ‘ Justices would be selected from amongst the citizens of the Commonwealth?
– If I were a sporting man, I would lay the honorable senator odds that they would be.
– My reason for taking up this position is that, during the past three years, the Government of Western Australia have appointed as Judges a barrister named McMillan and a barrister named Roth. The Government has not given us any assurance that two Australians will be appointed. Many names have been suggested, and if I could rely upon it that two of the gentlemen who have been mentioned would be chosen I should not oppose the second reading of the Bill. Because* T fear that the Government has not a complete sense of what is due to the Commonwealth, and has not confidence in the capacity of Australian citizens, I shall submit mv amendment, and press it to a division if I can get a supporter.
– Is the amendment seconded? There is no seconder.
.- I would not second Senator Higgs’ amendment, because I wish .to see the Bill carried with an amendment that can be made in Committee.
– The honorable senator has more confidence in the Government than I have.
– I have not the slightest doubt that, quite irrespective of what is being done regarding another important position in the Commonwealth, the Judges selected will be chosen from the Australian bar.
– Is the honorable senator giving us that assurance?
– I am not, but I have not the slightest doubt in my own mind. But a case for the appointment of two additional Judges has not, in my view, been made out. In Committee, therefore, I intend to move that one additional Justice be appointed, instead of two. We are told that an enormous amount of work is before the High Court, and that litigants have to wait longer than they should be required to do. But I have heard the opinion expressed by legal gentlemen that the Judges of the High Court might do something to discourage so many appeals being made from States Courts.
– Is it their duty to do so?
– How could they do it? ^Senator O’KEEFE. - They may not be able to do it. Reading the correspondence that has passed between the Chief Justice and the AttorneyGeneral, it appears to me that the strongest feature of the case for appointing two additional Judges is that the Judge who has to do the conciliation and arbitration work has not yet been able to devote his attention to it, and that if we still limit the number of Judges to three he will not be able to undertake that work at all. If that be the strongest reason that can be given, why need more than one additional Judge be appointed at the present juncture? It may be urged by legal senators that it would be rather awkward to have four Judges, because there should be a majority decision when the Justices are not unanimous. But that consideration may be left out of the question. If we appoint an .additional Judge, three Judges can still adjudicate in appeal cases, while the time of the extra Judge is occupied with other business. In addition to that, the additional Judge will be able to relieve the other Judges from the strain of their work. We are tol’d that there is danger of some of the Judges breaking down from stress of work. If an additional Judge were appointed there would always be one Judge in reserve to form a member of the Full Court. It is being urged in every State of Australia, and I think, in this case, with some show of reason, that there is a. disposition to pile up expenditure. Those who advocate the appointment of two additional Judges will say, “Let the States reduce the expenditure on their Supreme Courts- If litigants choose to take their cases to the High Court the expenditure connected with the States Courts can be cut down.” But how can that be done? Judicial appointments are made for life, and unless a Judge in one of the States is verging on the age when he will be entitled to a pension, and will be inclined to retire, the State “Government cannot decrease expenditure in this direction. If in the High Court we have four Judges instead of three, the next Parliament will still have the power to pass a measure enabling a fifth Judge to be appointed if that is thought to be necessary. What is to prevent a further amending Bill being passed twelve months hence if it is found that four Judges cannot cope with the work?
– That can be done also if it is found that the imported Judge is not competent.
– I have no fear of an imported Judge being appointed. If I had had a shadow of doubt on that point. I should have seconded Senator Higgs’ amendment. It would be an outrage on common sense, and a serious reflection on the acumen and ability of Australian lawyers1 to appoint an outsider. I have not circulated an amendment, because I was not aware that the Bill was to be proceeded with to-night. I submit, however, that the cry that is being raised - very often on flimsy grounds - that there is1 a disposition to pile up expenditure unnecessarily affords a strong reason why we should not appoint two extra Judges. T have looked into the question with some care, and have come to the conclusion that in another place an excellent case was made out for appointing only one additional Judge. In Committee I shall submit an amendment to that effect, and trust that I shall receive sufficient support to carry it.
.- My honorable friend who has just resumed his seat has raised the question, of the desirableness of appointing one or two additional Justices. I quite agree with him that if the Senate were satisfied that a fourth Judge would be sufficient for the purpose of effectively carrying on the work of the High Court, we should not be justified in appointing a fifth. I do not see any objection to having four Judges instead of five, from the mere fact of an odd number being desirable. That would not be a substantial objection to a Bench of four Judges, if we were satisfied that four could do the work. As one having considerable experience in regard to High Court work, and speaking generally, I say that the High Court has been a very great success. There are, in fact, many persons who were bitterly opposed to Federation who have not hesitated to express the opinion that the shining success of Federation has been in respect to the High Court. I do not for one moment agree with the view that that is the only success Federation has accomplished, but I do agree that the High Court has been both popular and successful from a judicial stand-point.
– I have met people - unsuccessful litigants - who are by no means pleased with the High Court ; though I do not think that their opinion is a good one.,
– We have to be satisfied from the point of view that my honorable friend, Senator O’Keefe, has put, that two additional Judges should be appointed. That the Court has worked at very high pressure cannot be doubted for a moment. I believe that the most conscientious attention has been given by the members of the Court to the highly responsible duties attached to their position. It has been one of the features of the Court that its members have never spared themselves. Their judgments have never been delayed, but have been most promptly and expeditiously delivered - a matter of very great importance indeed to litigants. But, at the same time, working as they have done in order that the public demands might be met, the members of the Court have been obliged to subject themselves to great pressure.
– Does not the honorable senator think that an additional appointment would afford considerable relief?
– It would afford great relief. But the Chief Justice is a man in whose judgment we must have some confidence. On the 59th June, he was invited by the present Attorney-General to indicate the opinion of their Honours as to what increase in the strength of the Court was necessary to meet public requirements. On the 20th June, the Chief Justice replied as follows: -
I have the honour to acknowledge your letter of yesterday’s date, referring to previous correspondence on the subject of the business of the High Court, and asking the opinion of the Justices as to what increase of the strength of the Court is necessary to meet public requirements.
Having regard to the risk of interruption of the appellate business of the Court by the temporary illness or absence of one of the Justices, the importance of making provision for the exercise of the original jurisdiction of the Court, which is now, of necessity, practically in abeyance, and the discharge of the functions of President of the Arbitration Court by one of the Justices, >ve are of opinion that the strength of the Bench should be increased by the -appointment of two additional Justices.
– That is from a man who is notoriously industrious.
– It is a piece of advice conveyed to us by the Chief Justice on behalf of the present, occupants of the Bench, that we cannot afford to disregard lightly. I have referred to the popularity of the High Court Bench. I know that my honorable friend, Senator Symon, does not agree as to the expediency of appeals being made direct from the judgment of a single Judge of a State Court to the High Court. But I think that he will admit this much at all events : that when litigants have chosen to appeal direct to the High Court in the numbers in which they have done, it at least betokens the greatest confidence in the judgment of the High Court and in the justice which litigants may expect to get from it.
– At any rale, so long as the Judiciary Act remains as it is, those appeals must be heard.
– That is so. There is considerable unanimity of feeling that, instead of taking the risk of going to the Full Courts of the several States, appeals should be made direct to the High Court. I am aware, moreover, and I speak from personal experience, that litigants have preferred to go to the High Court, as was originally hoped they would, instead of to the Privy Council.
– Is that not largely traceable to the fact that a considerable percentage of appeals have been successful?
– Both sides cannot be successful.
– Both sides are not satisfied.
-Col. Gould. - But the losing side in the Full Court knows very well that the other side will take the case to the High Court, and it is to save expense that they go to the latter direct.
– That may or may not be; but the fact remains, that the High Court is largely accepted as a final Court.
– It is a pity there is that provision in the Judiciary Act for direct appeal.
– We have to accept the fact that there can be direct appeal to the High Court; and, personally, I think it is a wise provision, though I know other honorable senators do not accept the same view. I have been before the Privy Council with several of my cases, and, so- far as I can influence my clients by advice, I shall never have any hesitation in advising them to go to our own High Court, so long as we’ have the same high standard of legal ability and acumen as at present on the Bench. I do not wish for one moment to discount the great ability to be found on the Benches of the States Courts, but, at the same time, the judgments of the High Court have commanded a great amount of confidence and respect. I agree with. Senator Symon that this is not so much a matter of increasing the numerical strength. The more important point is to increase the intellectual strength of the Bench, so as to secure for it a dignity and high position which will command confidence.
– We cannot get increased numerical strength without increased intellectual strength, because we take it for granted that the men appointed will be intellectual.
– That is so, and I am glad to say we have in our midst men who certainly would adorn the Bench. I have no hesitation in saying that the men appointed will be of the highest legal calibre, and will do justice to. the great and responsible work attached to the position.
– That applies whether one or two be appointed.
– Yes; but I feel that we cannot ignore the advice of the High Court, the members of which know what the work is, and that it is increasing. Above all things, we cannot afford to overwork the members of our High Court; the interests of litigants are too great and serious to permit that condition of affairs to last for any extended time. The present Judges have been working at high pressure, and it is now proposed to relieve them. In view of the increasing work of the Bench, we are called upon to accept the advice of those? who are capable of assisting us, and to appoint two additional Judges. I hope the Bill will be carried into law ; and I am. quite certain that the effect will be to further add to the lustre of this great institution.
– I rise to support the Bill in the form in which it is presented to us, and I do so for the reason that I believe it to be in the interests of the public.
– Everything we do is in the interests of the public.
– Decidedly ; but we hear a great deal about the high pressure at which the members of the High Court are being worked, and about the economy that might be affected by the appointment of only one Judge. It must be remembered, however, that the Commonwealth Parliament is passing a number of new laws, and creating a variety of positions which did not exist under the States Parliaments. In this way we are placing those who are foolish enough to go to law in a very dangerous situation. We have passed a Commerce Act. and an. Arbitration and Conciliation Act, and we have before us the Australian Industries Preservation Bill, all of which, together with a number of other new laws too numerous to mention, will provide work for the Courts of law. Whether we look at the present Bill from an industrial or a commercial stand-point, we cannot but realize that thousands of pounds might be lost to the community in one twelve months if the Court were not in a position to deal promptly with the cases which come before it. That is the reason why we should be prepared to remove any difficulties which there may be, not in connexion with the Court itself, but in connexion with those who are compelled to go to law. If, for instance, a case under the Commerce Act, or under the Australian Industries Preservation Bill, which we hope to pass, involved the suspension of a gigantic business for six months, there would probably be misery caused and more money lost than would justify the employment of five Judges for all time. When we judge of the work of the future by the work which has been done in the past, we shall be very foolish if we do not take care to create an effective Court. The only objection that weighs to any extent with me is that raised by Senator Higgs, when he points out the danger of the present Government appointing outsiders to these positions.
– Why did the honorable senator not second my proposal?
– I do not desire to see the Government go outside Australia to fill the positions created by this Bill.
– The Government went outside to seek a Lieutenant-Governor for New Guinea.
– What makes me sympathize with Senator Higgs is the fact that the Government were prepared to go outside for what might be called an unimportant officer, as compared with the occupant of a seat on the High Court Bench. In all the States there are men occupying very prominent positions in connexion with the law, and, therefore, I hope that no attempt will be made to go beyond the confines of Australia for Judges.
– There is a slight difference between the positions. I do not suppose a member of the Government would go to New Guinea as Lieutenant-Governor, but one might go to the High Court.
– I am not looking at the matter in that light. We ought to pass this Bill expeditiously, so as to create greater confidence in the public mind with regard to the administration of the Acts passed by this Parliament. The reason I did not support Senator Higgs’ amendment is simply that I believe the common sense of the Senate to be such that we should have gained no support, seeing that Senator Zeal is not here. I do not like to be continually in a minority, but always, if possible, to be in the majority when I am right. I hope the Bill will be passed as quickly as possible; and I see no necessity for an amendment.
-35l- - When Senator Higgs rose, I anticipated that he would have shown his usual consistency, and submitted a motion asking the Senate to decline to consider or pass this Bill unless it contained the names of the two gentlemen to be appointed. Such a step would have been in conformity with a motion the honorable senator once invited the Senate to pass in regard to another appointment.
– It may not be too late now.
– It is because I recognise that it is’ not too late that I make the suggestion, so that in Committee the honorable senator may remedy what is no doubt an omission on his part.
– Will the honorable senator second the proposal?
– I am always doubtful about seconding any proposal which the honorable senator brings forward. On the previous occasion to which I allude, I found myself in opposition to the honorable senator, and it is probable I should be in the same position this time.
– Will Senator Millen himself submit a motion of the kind if we support him ?
– No, because I should then be making a proposal in which I did’ not believe. Little confidence as I have in the present Government, it would be too serious to follow the course taken by Senator Higgs on a previous occasion. As to the Bill, I have listened to two speeches by Senator McGregor and Senator Best. I agree with that portion of the remarks of Senator McGregor in which he points out that owing; to the rapidity with which we are turning out legislation, and creating new crimes and offences, it is possible that .we shall require additional Judges. It is a question, however, whether” that is not an argument against the class of legislation we are passing, rather than an argument for the appointment of additional Judges. If every night we meet here we intend to make fresh offences and crimes, we had better face the inevitable, and agree to appoint twenty additional Judges, or leave it to the Government to appoint an unlimited number. I am satisfied that if the legislation of the future is to be like that of the past, five Judges will be insufficient.
– If every infraction of the. rules of trade ls to be an offence, we shall require 100 Judges.
– Senator Best rose for the purpose of supporting the Bill, but to my mind he furnished the strongest pos sible objection to an increase from three to five Judges. The honorable senator assured the Senate that in no case had the public been kept waiting for decisions; and that in every direction, there was unbounded satisfaction with the work the Court had performed. If there is no evidence of an injury to the public interest owing to delay on the part of the Judges, surely it is only reasonable that, instead of jumping immediately from three to five Judges, we should try the experiment- indicated by Senator O’Keefe.
– Some cases have been pending for months.
– If that be so, it disposes of the argument brought forward by Senator Best.
– Senator Millen omits what I said when I mentioned that we cannot afford to keep our High Court working at the present high pressure.
– But Senator Best stated that there was general satisfaction, and that in no case had the public been kept waiting for the decisions of the Court. The honorable senator laid stress on the value of these facts, and I agree with him entirely.
– The public have to wait for hearings and not decisions.
– With one exception to which I shall refer, there has, it appears, been no just cause of complaint against the Court on the score of delay. I do not dispute the statement that the Court has been working at high pressure; but, with the exception of one case under the Arbitration and Conciliation Act, there has been no cause of complaint. The appointment of an additional Justice would mean increasing the strength of the Court by 33 per cent., and a very considerable easement to the present Justices. One additional appointment would not only meet any case of indisposition, but would enable a considerable amount of work in original jurisdiction to be carried on concurrently with the sittings in Full Court lor appeals. That would constitute a large measure of relief ; and, having regard to the unsatisfactory financial position into which the Commonwealth is drifting, we ought to try the experiment of one additional Judge before we incur the large, expenditure which would result from a double appointment. What is the financial position? We are face to face with, an absolute deficiency in Federal finance.
– I think we are some hundreds of thousands of pounds to the good yet.
– The amount of money which the Commonwealth to-day is handing over to the States, in addition to the statutory three-fourths, is becoming smaller and smaller every year.
– That does not mean insolvency to us.
– The amount is now so small that if we carry out the scheme of penny postage, and other schemes suggested by the Government, and if we take over transferred properties, amd are called upon to defray the interest on the money expended by the States on the transferred public buildings, there will be an absolute deficiency. We have been living, to some extent, in a fool’s paradise. Before incurring large expenditure we ought to look ahead, and, when1 we have spent the 25 per cent, allowed by the Constitution, ascertain how to raise’ additional revenue. For that reason I intend to support the suggestion thrown out -bv Senator O’Keefe. As that honorable senator said, it will be easy enough, if we find one Judge is not sufficient, to appoint a second ; but, once we make two appointments, we cannot cancel one. A man in ordinary business, if he found the work in his shop, office, or factory becoming a little too much for his employes, would make appointments by degrees. As I say, we may always make an additional appoinment, but once a Judge is placed on the Bench, no matter whether he be required for the Court or not, his services cannot be dispensed with. Bearing in mind the necessity for financial care, I intend to vote for the appointment of one Judge only.
-Col. GOULD (New South Wales) [8.42]. - It may be regarded as absolutely certain that the motion for the second reading will be carried. I have a good deal of sympathy with Senator Higgs in his doubt as to the wisdom of intrusting the Government with the power to appoint two additional Judges, but my doubt is not on the same ground. My fear is that, instead of the Government refusing to appoint men because of their nationality, or anything of that sort, the appointments may be more for political than for any other reasons. It is possible there are gentlemen whom the Government fear may not secure election to another Parliament, and these gentlemen mav be provided for by seats on the High Court Bench. But, whatever may be the idea in the mind of the Government, I hope the Judges appointed will be men of ability and sterling character, in whom we may have absolute confidence.
– I think we might find one on the honorable senator’s side of the House.
-Col. GOULD. - At the present time we are in a peculiar position. We are nearing the end of the life of this Parliament, and really do not know of whom the majority will be composed after the elections. The present Government may disappear in the course of a few months, and if they have it placed in their power to appoint two -gentlemen to the High Court Bench, it will be impossible to call them to account, should Parliament be dissatisfied with the appointments. I admit that, according to the statement made by the Justices, there is a necessity to strengthen the Bench, and the fact that there is no bar against litigants appealing straight from the decision of a Justice of the Supreme Court to the High Court, instead of going through the Full Court, must unquestionably add very much to the work of the Federal Justices. In some cases where a decision has been obtained in one Court, and an appeal has gone to the Full Court of the State, it has invariably been the practice of an unsuccessful litigant to go to the High Court, on the chance of getting the decision reversed. A man who goes into litigation, if he has any sense at all, will consider carefully how far it may be carried on. He will see that there is no wisdom in appealing to the Full Court of the State, when he knows that in all probability there will be an appeal to the High Court, and he may find himself saddled with the costs of two appeals. Some honorable senators appear to think that it is not wise to allow a direct appeal from the Supreme Court of a State to the High Court. I cannot say that I (agree with that view, because I think that if men have to resort to litigation, and know that eventually they have to get to one goal, the sooner they get there the better it will be for themselves and their pockets, instead of going through two Courts. Therefore I do not think it is a mistake to allow a direct appeal. One gentleman has said that he will always advise his clients to go to the High’ Court instead of to the Privy Council. There are some very good reasons for giving that advice. In the first place, a decision can
– I intend to support the second reading of the Bill. When the original measure was passing through the Senate, I said that three Judges would be found insufficient, and I think that forecast has been abundantly proved. The question we have to consider is whether the case for two additional Justices has been sufficiently made out. Reading the correspondence which has been tabled, I find the. following passage in a communication from the Chief Justice to the Attorney-General : -
So far as it is possible to form an estimate for the future, we think that the appellate business of the High Court is likely to keep it engaged almost continuously throughout the year. We are at present unable to fix any day before the end of this year for the hearing of a case before a single Judge.
The appellate business of the Court is of very onerous and responsible character. Tn the large majority of cases, it is expedient, if not necessary, to reserve judgment. The present continuous pressure of work leaves us very little time for research, and for the preparation of written or even oral judgments. We do not think it desirable that a Court of final appeal should work at such constantly high pressure, from which, however, there is no prospect of escape so long as the number of Justices is limited to three.
A great many persons imagine that the work of a Justice consists of sitting on a chair, wearing his wig, looking as wise as he possibly can, and them saying ditto to the Justice by whom the decision is given. But I take a very different view of the matter. I believe that a great deal of the best work pf our Justices is done, not uponthe Bench, but after the arguments in the case have been heard. Again, the High Court is a Court of final appeal, and we all know what that means. An ordinary District Court Judge, or even a Supreme Court Justice, knows that somebody else will come after him. and, if necessary, take the kinks out of his judgment, but the Justices of the High Court know that their statement of a law must be accepted by the public until that law is changed. Therefore, the, responsibility upon them for giving an accurate judgment legally, and a wise judgment from the common-sense point of view, is all the greater. We find that for months yet Mr. Justice O’Connor, as President of the Arbitration Court, cannot possibly grant a hearing to a case which has been filed, owing to the fact that there are only three Justices on the High Court Bench. I do not think it is desirable that the working of an Act with which we took considerable pains here, and from which we hoped so very much, ought to be suspended simply because we have not a Justice to sit on any case which may be brought up. It seems to me to be a very unwise kind of economy which denies justice in that fashion. With respect to the objection raised by Senator Higgs, I believe that there are too many local luminaries on the pounce for these positions for any outsider to have the ghost of a chance. No foreigner need apply where members of the Bar are concerned We may go to the other end of the world.’ for a Governor or a LieutenantGovernor, but we certainly will not go outside the Commonwealth for any Judges. I do not think that we ought to go outside the Commonwealth, or that there is any need to do so. I have no fear that a foreigner will be appointed to either position. But, apparently, Senator Gould looks upon the measure as one designed to place patronage in the hands of a dying Government. If a case for the appointment of two Justices has been made out, and I believe it has, then some Government will have the making of the appointments in its hands. I would just as soon trust the present Government in that respect as any Government that we are likely to have during the next few years.
-Col. Gould. - They are all alike.
– Yes. I believe that the present Government is just as bad or as good as any other Government we could possibly have.
– Even a Labour Government.
– Even a Labour Government would not be perfect, although, perhaps, it would be very much nearer perfection than would any other Government. I do not see that we are at all likely to see perfection on the Government bench or in the ranks of ordinary members of the Senate during our time. The standard is very high, no doubt, but there are peaks of achievement which even we have not’ reached, and which, probably, our descendants will not reach. I should like the Bill to be amended with regard to the making of rules for the admission of solicitors and barristers, because I think that Parliament should have a voice in that respect.
– The rules will- have to be laid before Parliament.
– I do not think it is desirable that what is neither more nor less than a mere common trade union should have the power and the privilege of saying -who shall be admitted into its ranks, and on what terms the admission shall be.
– Why does the honorable senator call it a trade union ?
– What else is it?
– The honorable senator can be admitted if he can pass the examination required to show his qualifications.
– Yes, but the trade union officials can make the examination so stiff-
– Indeed, they cannot.
– They can, and they do.
– The honorable senator’s complaint is that they do not make the examination easy enough for him.
– 1 am certain that the examination is much stiffer to-day than it was when Senator Symon was admitted to the Bar. A few days ago I was reading the history of President Lincoln, who, as everybody knows, was a lawyer. It is stated in the book that it was very doubtful whether he had ever passed an examination. We all know that he became a famous lawyer, and a still more famous statesman; but the fact remains that the legal union is yearly raising the height of the barrier between itself and the public, so that only young men who have plenty of money and, of course, some brains, are able to get inside the charmed circle. I shall try to get an amendment of clause 4.
.- I was always in favour of the appointment of five Justices to the High Court. After a few years’ experience we can all see that the work it has to do has been more than sufficient to keep three Justices going. Having regard to the administration of the Conciliation and Arbitration. Act, and the
Australian Industries Preservation Bill, it seems exceedingly probable that in the future there will be sufficient work for a Court of five Justices. The reason why I strongly favour the Bill is because I think it desirable that we should, if possible, have a final Court of Appeal in Australia. At the present time, the High Court is the final Court of Appeal in certain matters, and it may be the final Court of Appeal in all matters if litigants are satisfied that it should be so. I believe that the more we strengthen the Court, the greater will be the tendency on the part of litigants to accept its decisions as final. The more they have reason to be content with the learning and knowledge of local conditions possessed by the High Court, the more satisfied they will be to accept its decisions as final, and not to appeal to the Privy Council. In a matter of this kind, as in all others, I should like to’ be with the economists, but I think that the extra cost Qf providing for another Justice will be very small in comparison with the great saving to the people, and also to the Government, bv having a final Court of Appeal in Australia.
– The only question before the Senate is whether we shall have four or five Justices. I think it must be apparent to every one that a good case has been made out for making additions to the High Court Bench. I had the honour of being a member of the Judiciary Committee which was appointed by the Convention of 1:897, and was presided over by Senator Symon. We had a great deal to do with the’ High Court as arn appellate Court. What struck most of us was that we were creating an appellate Court for the whole Commonwealth, and that litigants from the larger S’tates would be appealing from a Court of six Judges to one of three. That appeared not to put the High Court in as strong a position as it ought to occupy. But ‘ since then we have had two years’ experience of a Court consisting of three Judges. We all know that the Court has won the confidence of the people of the Commonwealth. That being so, my objection to a Court of three Judges has to a great extent disappeared. We should on every occasion be guided by the principle of economy. Unless we believe that we should do an injury to the public by carrying out that principle, we should enforce it rigidly. While I admit at once that a good case has been made out for the appointment of an additional Judge, I do not think that a case has been been made out for the appointment of two Judges. It will be noticed that the section of the Judiciary Act which, says that the Court may consist of two Judges still remains in force. So’ that, even if we have five Judges, the Court may consist of only two. It is true, that, in a subsequent section, the Court to hear appeals from the Supreme Courts of the States must consist of three Judges. But, even so, if we appoint an additional Judge, we shall have the Full Court, it may be, consisting of two Judges, with two who need not attend, and the Court of Appeal consisting of three Judges, ,-jvith one who need not attend. While I quite agree that it is necessary to have an additional Judge at once, I hesitate to conclude, on the facts before me, that we should appoint a fifth. The High Court; has been able to carry on its work with efficiency and with promptitude as at present constituted. Unless the High Court ‘has been working at frightful pressure, ai case cannot be made out for the appointment of two additional Judges. I am inclined to think that the existence of the Arbitration Court is being made the ground for the appointment of two extra Judges. But I do not think it offers any sufficient reason. I can scarcely credit the statement that the litigation that is likely to arise in that Court will require the attendance of a Justice all the year round. If that is to be the case, there must be gross abuse, and disputes extending beyond a State must be almost manufactured.
– One association has been waiting for seven months to apply to the Arbitration Court.
– I believe that two cases have been waiting. The fact that there are no more supports mv argument.
– What is the use of citing cases when there is no Court?
– If there had been cases’ we should have heard of them.
– Has not the honorable senator read the Industrial Registrar’s report ?
– I cannot believe that one Justice will be required to act as President of the Arbitration Court for the whole of his time to dispose of the disputes extending beyond a State that are likely to arise in the ordinary course of business. Again, I consider that a great deal of the work of the High Court has been brought about because appeals are taken from a single Judge of a State Court. That may be done in order to save expense, the ordinary litigant desiring to go to the final Court of appeal as soon as possible. It appears to me that that practice has continued largely owing to the fact that the High Court is presided over by a Chief Justice who eminently commands and deserves the confidence of the people of Australia. But it is likely that litigants will come to recognise that, although the Federal Chief Justice is a man of great ability, and, although the other two Justices are men with judicial minds and of considerable attainments, yet the State Judges are men of such ability that the appeals to the High Court will not increase. If they do, it is quite certain that the work of the States Courts will decrease. If we do not mind what we are doing, we shall have more Judges in Australia than there is work for them to do. It appears to me that too frequently arguments are brought forward here, and in the other House, for giving extravagant and generous administration the benefit of the doubt.
– Did not the honorable senator originally support the appointment of five Judges?
– I was originally in favour of five being appointed, because I thought that to appoint only three would place the High Court in an unfair position, as it would have to hear appeals from two States in which the Full Courts consist of Benches of six Judges. But, inasmuch as the High Court has proved that it commands the confidence of the people of the Commonwealth when consisting of three Judges, that argument to some extent falls to the ground. At the present time we should give economy the benefit of the doubt. In Committee I shall support Senator O’Keefe’s amendment, unless a very strong case is made out for the appointment of two extra Judges.
– I shall vote for the second reading, and shall support the measure in its present form. The High Court is a feature of the Commonwealth service as to which we should be careful to provide fully, I will not say lavishly. I remember, three years ago, speaking on this matter, and expressing the opinion that the number of Judges ought to be five. I then said I hoped that, in the course of a few years, an increase in the number would be made. The business that has fallen to the lot of the High Court during the past three years strengthens my view. I have watched its proceedings almost every day since it has been at work. I have seen that the Court has been well occupied, and have noticed that “the Judges have frequentlybeen under considerable pressure. There seems to be no margin for those possibilities, of illness and trouble which must at times affect even High Court Judges. We have much to be thankful for in the fact that, during the three years, not one of the Judges has been laid aside by illness, and that the business of the Commonwealth has not been delayed iri consequence. But we ought not to continue to rely on Providence helping us in our improvidence. Therefore, I shall support the ]ml as it stands.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Clause 2 -
Section 4 of the Judiciary Act 1903 is amended by omitting the word “ two “ and inserting in lieu thereof the word “ four.”
.- I move -
That the word “four,” line 3, be left out, with a view to insert in lieu thereof the word “ three.”
I do not think that it is necessary for me to add much to what I have said in support of my amendment. It has been urged that important cases are awaiting decision in connexion with the Federal Conciliation and Arbitration Act. How many cases are there, and how many are likely to arise within the next year or two ? I believe that two cases are awaiting settlement, and when they are disposed of two or three years; may elapse before the Federal Arbitration Court will’ have any more work to> do. When the Arbitration Act was being considered by the Senate it was contended by a large number of honorable senators - the point was put with considerable strength by Senator Symon, for instance - that under our Constitution there could be very few cases, inasmuch as the Constitution only gave power to deal with a limited number. The cases mentioned were those affecting shipping strikes, strikes among seamen, and also among shearers. Some senators went so far as to say that, outside those divisions of industry, no other disputes could arise which could constitutionally be brought before the Federal Court. If the Court itself decides that its powers are limited, as Senator Symon assured us was the case while the Bill was under consideration, all the arbitration work cast upon the High Court will speedily disappear. That being so, it is quite possible that all the work that may arise within the next twelve months will easily be disposed of in two or three months, and that the appointment of an additional Judge would meet all requirements. I do not for a moment think that we ought to be penurious in dealing with justice. That would be false economy. If I thought it was necessary that we should have five Judges, a question of ?3,000 a year would not weigh with me at all. That is not a very big matter. But it appears to me to be capable of demonstration that it ‘s not necessary to have more than four Judges, and, therefore, I think it is a mistake to have five at this juncture. If we appoint an additional Judge, and if, in twelve months’ time, it is found that the best interests of the Commonwealth are not being conserved through the lack of a fifth Judge, nothing can be simpler than to introduce an amending Bill.
– I should have thought that the papers circulated amongst honorable senators, apart from their own personal knowledge of what has taken place, would have convinced them that it is desirable that the High Court should be numerically increased to the extent proposed by this Bill. My honorable friend Senator O’Keefe, in moving his amendment, seemed to think that the whole object of the increase in the strength of the High, Court was to enable a member of the Bench to devote some time to the consideration of matters arising in connexion with the Conciliation and Arbitration Act. He did not refer at all to the difficulties with which the High Court is confronted in other respects - to its practical inability to deal with’ matters of original jurisdiction, for instance. The Court, as I pointed out in moving the second reading, is constituted under the Judiciary Act, and invested with jurisdiction under it. But, apart altogether from the provisions of the Judiciary Act, many of the Federal Statutes directly invest the CoUrt with original jurisdiction. I made special reference to that in my second-read^ ing speech. What bulks large in the public eye in regard to the work” of the Court is entirely its appellate work, and honorable senators who will peruse the papers wall see that it has had practically to relegate its original jurisdiction work to the background. In the last memorandum appearing in the papers, that from the Principal Registrar of the High Court, Mr. Gordon Castle, under date 10th July, it is stated -
In 1906, the High Court has continuously been engaged from the close of the summer vacation until the commencement of the winter vacation, either in holding sittings or travelling to hold sittings. As the greater part of the business before the Court had to be dealt with by a Full Court of three Justices, no Justice has been available to try original jurisdiction cases, or cases in the Court of Conciliation and Arbitration. Notwithstanding the continuous work, the Court has been unable to dispose of all the business on the lists, and certain cases have had to stand over until the next half-year.
That refers to cases in original jurisdiction -
In Sydney, there are 8 cases now awaiting hearing, in Melbourne 5, in Brisbane 1, and in Perth several more. The Registrar at Perth expects that there will be quite 20 cases for hearing by the time the Court sits there in October next. The Deputy-Registrar in Melbourne expects that 2 or 3 additional cases will be set down within the next few days.
Later on in the same memorandum Mr. Castle states -
In my opinion, there is no reason to expect any falling off in business in the future. The increase in business has been continuous, and, although perhaps the business will not continue to increase at the same rate as it has in the past two years, I believe that it will continue to increase, especially in the States of Western Australia and Queensland.
Mr. Castle concludes
The original jurisdiction work of the High Court has been substantial, if not large. Apart from matters which have been dealt with before the Full Court, sittings before single Justices have occupied 33 days. Judging from the amount of business during the past half-year, and the amount of business already waiting for the present half-year, I do not see how, with the Court as at present constituted, the original jurisdiction work could receive attention without delaying the appellate work.
– - As at present constituted.
– That is the opinion of the Principal Registrar, who is in touch with the different district registrars, and knows the work that has been done, and has means of ascertaining the prospects of work in the various States. Mr. Castle is speaking of the work of the High Court pure and simple, exercising the jurisdiction with which it is invested under the Judiciary and other
Acts, excluding for a moment the Arbitration and Conciliation Act. In those papers there is also a memorandum by the same officer in his capacity as Industrial Registrar. This is a report on the work of the Commonwealth Court of Conciliation and Arbitration, and the prospects of the business likely to engage the attention of the Court. After referring to the Merchants Service Guild dispute, which brought prominently under the notice of the Government the necessity for increasing the strength of the Court, Mr. Castle goes on to say -
Already, three actions and four appeals are awaiting a sitting in Perth, and the Registrar of the High Court there expects that a good many more cases will be set down before October.
In paragraph 2 Mr. Castle says -
There are two appeals from the Registrar to the President pending in Sydney. These have been postponed until the decision of the High Court on a special case, referred to it by the President, has been given.
It has been interjected and stated that there is no reason to anticipate any large amount of work for the Court of Conciliation and Arbitration. After referring to the work that is actually in prospect before the Court. Mr. Castle in paragraph 3, proceeds to anticipate - and no one should be in a better position to do so - the work of this Court -
I have heard from the representatives of the organizations concerned that there is a probability of disputes in relation to the woodworking timber yard and saw-milling industry, and in relation to the Butchering industry, including the frozen meat trade, being submitted to the Court.
– Has it been proved that such cases can be constitutionally brought before the Federal Court?
– I presume; that Mr. Castle, who is well acquainted with the constitutional aspect of the matter, and was asked to report on the prospective work, would not commit himself to such a statement without foundation.
– It is possible there may be a desire to bring such cases before the Court.
– I am not going to anticipate the decision as to whether- or not such cases mav constitutionally come within the jurisdiction of the Court.
– It has an important bearing.
– I am not going to determine either the merits or the con.stitutionality of the cases.
– Has the union referred to been registered?
– I am not in a position to say. Mr. Castle is Registrar, and he was asked to furnish a report on the business, and the prospects of business in the several registries under the Act. Mr. Castle, by virtue of his position, naturally knows the constitutional bearing of the cases which may possibly come before the Court, and that is the report he made.
– Does Mr. Castle mean to say that the disputes referred to will extend beyond one State?
– Mr. Castle simply says that he understands disputes regarding these industries will be submitted to the Court?
– Does- the Minister really believe that the Arbitration Court will keep one Judge employed?
– I do not suppose that it is possible Mr. Castle would submit fictitious cases.
– T do not suppose so either ; but does the Minister believe that the Federal Conciliation and Arbitration Court will employ one Judge all the year round ?
– I am not in a position to say.
– I do not believe it will.
– The honorable senator’s predictions with regard to the work of the Judiciary have been falsified in every minutest detail. I have the honorable senator’s speeches here, and I perhaps will give him the benefit of them, and then honorable senators will be in a position* to estimate the value of his predictions. When it was proposed to establish the Judiciary Senator Dobson said there would be absolutely nothing for the Judges to do, and that the Court would be the third1 in the Commonwealth, ranking after the Courts of New South Wales and Victoria. Mr. Castle goes on to say -
I have noticed lately, paragraphs in the newspapers which indicate that a dispute between the Shearers’ Union and the pastoralists might arise at any time. All the industries affected1 are large and increasing industries, and disputes, should they arise and be referred to the Court, would almost certainly take a long time to settle.
– Why not wait until the probability is a certainty?
– That is the same argument the honorable senator brought before us previously. The honorable senator then, asserted dogmatically that there was not a case awaiting the attention of the High Court, but four honorable senators interjected to the effect that there were cases waiting in their own States. Every one of those cases has since been tried, and the work of the High Court has multiplied considerably. As Senator Best has pointed out, the work to which the members of the High Court have applied themselves has been done with expedition, but the reports show that the whole of the work cannot be dealt with. It is stated that some of the work will have to be left over until next half year - that is stated in a memorandum written as far back as July last. . With all these circumstances before them, the Government asked the Justices of the High Court to fully consider the matter, and report what increase in strength, in their opinion, the High Court should receive. The Chief Justice, speaking on behalf of himself and colleagues, expresses the opinion that the strength of the Bench should be increased bv the appointment of two additional Justices. I do not think that any honorable senator will imagine for a moment that the request preferred by the learned Chief Justice for two additional colleagues is based on any belief or desire that he or his colleagues will be relieved of work which they legitimately and “reasonably might do. The reputation of the hon- 01 able and learned Chief Justice for industry in his profession, both before he was elevated to the Bench and since, is so great that no honorable senator will imagine that he is going to waste any of his time or devote it to other purposes when he might be performing the judicial work of the Commonwealth. We may reasonably infer that when, after full consideration, he recommends that the strength of the Bench should be increased by the appointment of two additional Judges, there is ample work to keep the whole of the five Judges employed - that five is the minimum number, if we are to have regard to the individual rights of the members of the community and expedition in the administration of justice. Unless honorable senators are absolutely satisfied that the Chief Justice has made a recommendation which he, intimate as he necessarily is with all the circumstances, knows to be extravagant, I ask them to support the Government in carrying out the recommendation made by him on behalf of himself and colleagues.
.- Senator Keating might use arguments that are fair and reasonable; but the case has been placed bv him before the Committee in a very unfair way. I do not for one moment wish- to impugn the opinion of the Chief Justice, who must know better than we do ; but I point out that, while the Minister declares that the Chief Justice claims that five Judges are absolutely necessary, Mr. Castle, on whose evidence the Minister appealed to the Committee in the first instance, says nothing of the kind.
– He was never asked, and it is not likely he would be asked.
– Neither the Minister nor the Chief Justice can contend that two additional Judges are necessary unless the Conciliation and Arbitration Court is taken into consideration. I cannot conceive that the business of that Court will occupy one Judge all his time, and Mr. Castle, on whose evidence the Minister relies, only speaks of probability. Mr. Castle does not give a single instance of a dispute which he thinks will extend beyond one State, but he mentions a number of cases in, connexion with which he hears that some technical or preliminary point may have to be submitted. I contend that no case has been made out for the appointment of a fifth Judge, though there is room for the appointment of a fourth. In the interests of economy, without which Tasmania’s finances will get into a very disastrous condition, I feel bound to vote against the clause. Senator Keating has said nothing to convince me that a fifth Judge is necessary at the present moment, and until the necessity arises a fifth Judge should not be appointed.
– The case presented by Senator Keating for the appointment of more than one additional Judge is very weak. I certainly expected when the honorable Minister rose, to hear much stronger arguments presented in favour of the Bill, but the honorable gentleman had to fall back on the communications of Mr. Castle, who, in my opinion, does not present sufficient evidence in favour of so large a demand. If one additional Judge be appointed, and, first of all, undertakes the work of the Arbitration Court, we shall find that much of the so-called block will be removed. I have a suspicion - and I think this has had more influence than anything else- that there is a reluctance on the part of the Judges to do the work of the Arbitration Court. I do not blame the Judges in that connexion, because the work is of a very delicate kind for a Judge to perform. There have been so few registrations, and there are so very few cases likely to come forward for hearing, that I do not think there will be much work for the Judge of the Arbitration Court to do. In mv opinion, three months in, the year will be sufficient to meet requirements in this connexion, and the additional Judge could devote the rest of his time to the usual work of the High Court. It would be far preferable to appoint a fourth Judge now, and a fifth later on if necessary, because, as has been pointed out, if we appoint two additional Judges it will be impossible to dismiss one, should his services not be required. I shall support the amendment.
.- I certainly expected that the Minister would have presented a stronger case. The honorable gentleman relied very strongly on the following paragraph in the report by Mr. Castle: - i have heard from the representatives of the organizations concerned that there is a probability of disputes in relation to the woodworking timber yards and saw-milling industry, nml in relation to the butchering industry, including the frozen meat trade, being submitted to the Court.
I ‘cannot help saving that I think Senator Keating rather shirked the arguments which 1 presented, and it seems rather necessary to repeat them. It will first have to be made clear that such disputes as are there referred to can be brought within the jurisdiction of the Arbitration Court. It would not take verv lang to ascertain the facts ; but Mr. Castle writes as if it had already been demonstrated that disputes, in the industries mentioned can be constitutional Iv settled by the Federal Court. As a matter of fact, seeing that in some Spates Arbitration Courts have not been established, it would be a good thing if a number of those disputes could constitutionally be brought before the Federal Court. I know that’ many senators do not hold that view, but there is a general opinion that there are only three or four kinds of disputes which will ever come within the jurisdiction of that Court, as the Constitution will not allow the Court to deal with disputes which do not extend beyond the borders of one State. When the Arbitration and Conciliation Bill was before this Chamber, I expressed1 the hope that it might be possible for disputes in the mining industry, for instance, to be brought within its provisions) and equally it would be good if the cases indicated by Mr. Castle could be heard by the Court. But whatever view we hold on that point, we have to remember that we are face to face with a constitutional difficulty, and until it is decided whether or not such’ disputes can properly be brought before the Arbitration Court, what work will there be for that Court to do? Once the cases which are now pending were settled - and, surely, it will not take the President long to settle them - it is very probable that he would not be called upon to do more work in that Court than would occupy his time for more than two months in the year. The Minister did not make out a very strong case for the clause. I would ask him, if he speaks again, not to shirk the question as he did before, but to say whether, as a lawyer, he thinks that such disputes as those which may arise in connexion with timber-yard employes and butchers are ever likely to go before the Arbitration Court.
– Undoubtedly, if the ordinary condition be present - that the dispute extends beyond the limits of a State.
– How long will it take the Arbitration Court to say whether such cases can be constitutionally brought before it?
– Not until the High Court has settled the constitutional point.
– Does the honorable senator mean to say that when one of these cases has been settled it will not .dispose of all the others.
– At ‘any rate, it will settle a large number of them.
– I am very sorry to hear the honorable senator make such a statement.
– Suppose that a dispute arises amongst the wood-workers in Victoria, and that it is taken before the Arbitration Court. The Court will give its judgment as to whether it can constitutionally hear and settle the dispute.
– It cannot hear and settle such a dispute, as the honorable senator ought to know.
– If it does not extend beyond the limits of a State-
– There is no doubt that it will.
– ls there a certainty that the dispute will extend beyond the confines of a State?
– Yes, because the unions will be federated.
– My argument is that when it is decided that a case of this kind cannot constitutionally be brought before the Arbitration Court, other cases will lapse, and the unions will rely on the State Conciliation and Arbitration Act or the Factories Act, or, if there is no such legislation, they will probably demand that it shall be enacted.
– The honorable senator is taking a very optimistic view of the future in regard to disputes.
– No. I am asserting that it has not yet been satisfactorily determined what class of cases can be brought before the Arbitration Court. If the Court says that within the four corners of the Constitution Act it is not able to hear such cases, there will be an end to them. In my opinion, there is a very strong probability that not many of these disputes will ever come before the Arbitration Court. In that case, what necessity is there for appointing a fifth Justice at the present time? It has been said that the appointment of a Judge, when once made, could not be annulled. 0f course, it would be unpleasant to cancel an appointment, and, therefore, it would not be done. Probably Parliament will be sitting in February or March next, and if, by that time, it be found that a fifth Justice was required, would any injustice have been done to any litigants by having had to wait a few months to get their cases settled? 1 think it would be far better to appoint a fifth Justice then than to appoint two Justices now. In my opinion, the appointment of an additional Justice will lead to the disappearance of many cases in the Arbitration Court. Senator Dobson has referred to the question of the cost to Tasmania, but that is a very small matter. I believe that there is not one person in the
State who would object to the expenditure of ^150 - its share of the cost - if that be necessary in order to secure the proper administration of justice.
– Senator O’Keefe is losing sight of t the strongest argument for the appointment of two additional Justices, and that is the advice of the Chief Justice of the High Court. He raises a side issue when he refers to the opinion of Mr. Castle in connexion with arbitration cases.
– Has the honorable senator ever heard of the Chief Justice of a State recommending the appointment of additional Justices when they were not necessary ?
– Every speaker has bestowed almost unstinted praise upon the judgments of the Chief Justice. Every one has said that his judgment is almost infallible.
– I did not say so.
– The honorable senator certainly did not say so, but he said something very much like that when he spoke on the second reading of the Bill. But, apparently, when the Chief Justice gives his advice to the Government, or to the Parliament, it. is not held to be worth two.pence. His judgment is not to be compared with the great sacrifice that has to be borne by Tasmania, where the people have been taught by their leading men that it is virtually a crime to put their hands into their pockets to pay their way, and to make the country prosperous. They are behind every other State. If the local statesmen had any acumen, they would perceive that Tasmania has great potentialities - that it might be made the greatest State in the Commonwealth. But they will not move. They must cringe and crawl to the lowest feelings of the people.
– -Why not discuss the Bill?
– I am discussing the Bill from the point of view of the High Court, and not from the point of view of the Arbitration Court. No Justice or officer of the High Court has ever suggested! that the Arbitration Court would occupy all the time of a Justice, because no one cantell what is likely to happen. According to the Chief Justice, it is the work of the High Court which requires additional appointments to the Bench to be made. We
– Every one knows that.
– Then why did the honorable senator quote cases of that kind as cases which would have to be decided by the Arbitration Court ?
– The honorable senator misunderstood me.
– The honorable senator ought to know that nearly every one of the workmen’s associations in- the different States is becoming federated throughout Australia. They realize that they cannot take advantage of the Federal Arbitration Court unless there is a federation of all the persons engaged in the same line of business in all the States.
– Will the mere act of federating make it certain that their disputes can be heard by the Arbitration Court?
– No, as the honorable senator ought to know.
– I do know, but the honorable senator assumes that it will.
– When the members of a trade are federated, it will force the Employers’ Associations throughout Australia “to federate too, and then the work of the Arbitration Court will really commence. It will be called upon to deal with disputes of a national and not of a local character. Can any honorable senator suggest when that time will occur? It might happen next year. Things move so rapidly now, that what are only isolated associations to-day might, within six months, embrace all ‘Australia as regards both workers and employers. It is that position which makes it impossible for Mr. Castle, or any. one else, to say what the
– I shall support the clause as if stands. I think it is admitted by Senator O’Keefe that there is too much work already for the Justices of the High Court to do. In view of that fact, and also of the possibility that the Commerce Act and the Australian Industries Preservation Bill when passed will probably encourage litigation, we may take it for granted that the work of the High Court will be increased to such an extent as to justify the presence of five Justices. What concerns me most is the fact that although we have an Act not only for the settlement of disputes, but to encourage unions of both employers and workers to approach the Arbitration Court, in order that equitable working conditions and wages rates throughout the States shall as far as possible be established, it cannot be taken advantage of to any extent until the services of a Justice of the High Court are available. Until the Bench is strengthened, unions will- hesitate before they approach the Arbitration Court for the settlement of any disputes, or for the purpose of trying to regulate the wages in a trade in order to enable the better class of employers to compete with their rivals on fairer lines. For these reasons, I feel justified in voting for the “appointment of two extra Justices.
Question - That the word proposed to be left out be left out - put. The Committee divided.
Question so resolved in the negative. Amendment negatived. Clause agreed to. Clause 3 -
Section 86 of the Judiciary Act 1903 is amended by inserting after paragraph g the following paragraph: “[g.a) Providing for the admission of persons to practise as barristers or solicitors in any Federal Court, and prescribing the conditions of and qualifications for admission and continuance of the right to practise as aforesaid.”
Senator Lt.-Col. GOULD (New South Wales) [10.6]. - I should like to hear reasons for the insertion of this clause. As matters now stand, I understand that any person who has been admitted to either branch of the legal profession can be enrolled, if he chooses to make application, as a person competent to practise before the High Court. Before a man is placed in a position to practise as a barrister or a solicitor in a State, he not only has to pass examinations, but also to produce a certificate as to character and respectability. It appears to me that those qualifications are sufficient to protect the Federal Court from having undesirable practitioners before it. If a solicitor were struck off the rolls, or a barrister were disbarred, that would be a reason for his disqualification to practise before the High Court. I should like to hear the reasons which have induced the Government to insert this clause.
– What it is proposed to do is to give the High Court a power, which it may or may not exercise at its discretion. Under section 86 of the Judiciary Act, the Court is given power to make rules for several purposes - for appointing and regulating the sittings of the Court, for regulating procedure, pleading, and practise, regulating matters relating to the duties of officers, prescribing forms to be used, regulating fees to be charged bypractitioners, and fees to be collected by officers of the Court, prescribing the extent to which the Act shall be applicable to the Courts of Territories of the Commonwealth, and generally regulating all matters of practise and procedure. All that it is proposed to do in this clause is directly to empower the Court to make regulations for the admissions of persons to practise as barristers and solicitors, and to prescribe the conditions of and qualifications for admission. We do not throw upon the High Court any obligation to make such provision, but simply empower it to do so, leaving it to the Court to act as it thinks fit. At the time we passed the Judiciary Act, it was necessary to make provision as to persons who would be entitled to practise before the High Court, and it was considered onlyreasonable that every practitioner admitted in a State should be entitled to practise before the Federal Court. We now propose to empower the High Court to make regulations regulating admission in regard to other persons. The Court has had the advantage of experience in every State, and has come into contact with the Bar in every State. It will be able from its experience to exercise this power if it thinks fit. We throw no duty- upon the Court, but simply give it the right to. exercise the power prescribed.
Senator Lt.-Col. GOULD (New South Wales) [10. 11]. - I cannot see the necessity for the clause, even after the explanation of the Minister. In section 49 of the Judiciary Act, it is expressly provided that a person entitled to practise as a barrister or solicitor in any State shall, have the right to practise before any Federal Court, provided that he produces to the Principal Registrar evidence showing that he is so entitled. There is also a sub-section enabling the High Court to direct the name of any person to be struck off the register, upon proof that he has been guilty of conduct which renders him unfit to be allowed. to continue to practise before the High Court. It appears to rae that the Judiciary Act has already made ample provision in this connexion.
– Why should admission by a State be the sole qualification? It is quite possible that there are competent men who have never been admitted to a State Court, and who may nevertheless desire to practise before the Federal Court.
– If it is desired to enlarge the number of persons who may practise before the High Court, my objection is to some extent removed. But at the same time, a grave question arises as to whether it is necessary to take a step of this character. It is perfectly well known that a man who wishes to practise before the Federal Court will be all the better qualified if he is a practising solicitor or barrister in a State Court.
– Take the case of an appeal in which perhaps New Zealand interests are involved. A New Zealand practitioner may be retained by the, persons whose interests are affected, and who may desire that he shall appear before the High Court. At present, he would have to get enrolled in a State before he could practise before the High Court. Or it might be that in a case where English interests were involved, an English barrister, might be sent over. Are we going; to say that he. shall not be allowed to practise in the High Court unless he is first admitted in a State?
– I do not think that Senator Keating has completely answered Senator Gould’s objections. Section 49 of the Judiciary Act provides amply for the admission of barristers and solicitors to practise before the Federal Courts. This clause practically takes it out of the hands of the States Courts to admit barristers and solicitors to practise before the High Court. It appears to conflict with the power which the States Courts have to admit men to practise before the High Court bv virtue of their being admitted to practise before States Courts. Senator Keating urges that some learned person not being a barrister of a State Court may wish to appear before the High Court. But the clause does not specifically provide for that. The clause appears to r»”* to conflict with section: 49 of the Judiciary Act-
– It does not conflict with it ; it adds to it.
– It should add to it in a proper way. The clause under consideration, is quite inconsistent. I move -
That after the word “ Court,” line 5, the following words be inserted, “who are not practising barristers or solicitors of a State Court.’
Amendment negatived. Clause agreed to. Title agreed to.
Bill reported without amendment ; report adopted.
United Shoe MACHINERY Company. Motion (by Senator Playford) proposed - That the Senate do now adjourn.
.- Yesterday Senator Guthrie made some remarks reflecting upon a statutory declaration which I read to the Senate on Thursday last, signed by Mr. Henry Best. To-day I have been handed-
– Can the honorable senator on this motion allude to a former debate in the present session? I do not think so. If he wishes to make a personal explanation, he can do so when there is no other business before the Senate ; but it is one of the rules of the Senate that the subject matter of a former debate of the present session cannot be alluded to.
– Is it not competent to refer to a matter of this kind on the motion for the adjournment?
– No. The same rule governs motions for the adjournment as governs other matters, except that irrelevant subjects may be debated.
-Col. Gould. - Senator Pulsford is only attempting to explain a matter in which he is personally concerned.
– I did not wish to stop the honorable senator, but the standing order provides that an honorable senator shall not refer to a former debate of the present session. The standing order governs a motion for the adjournment, just as it governs any other motion. Therefore, I do not see how I can permit him to proceed.
Senator- PULSFORD. - Cannot I do what T desire, as a matter of personal explanation ?
– No. The honorable senator cannot make an ex parte statement at this stage. To make a personal explanation he would have to obtain the indulgence of the Senate. I do not think it can be allowed.
– Perhaps I may mention the matter to-morrow?
– I do not wish the honorable senator to misunderstand the position. He desires to make a personal explanation. He must ask the indulgence of the Senate, and the matter is one that cannot be debated. In making a personal explanation, he can only explain how he has been, misunderstood, or in what respect statements made concerning him ‘were not correct.
Question resolved in the affirmative. Senate adjourned at 10.22 p.m.
Cite as: Australia, Senate, Debates, 22 August 1906, viewed 22 October 2017, <http://historichansard.net/senate/1906/19060822_senate_2_33/>.