3rd Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
– I desire to ask the Minister representing the PostmasterGeneral, who, I believe, has received notice, the following questions: -
– The answers to the honorable senator’s questions are as follow : -
On 15th July, Captain Collins replied, “Referring to your telegram of 12th July, amount of guarantee not yet paid. Am insisting on immediate compliance demand.”
No further information has been received, but the matter is in the hands of the Commonwealth representative in London, who throughout is acting in consultation with the Commonwealth’s London solicitor.
– I desire to ask the Minister of Home Affairs, without notice, whether he will be good enough to lay before the Senate, as soon as it is received, the information I desired in regard to mining developments in the Northern Territory?
– The matter has been brought under the notice of the Acting Prime Minister, from whom it is receiving attention, and as soon as the information is available, the honorable senator will be furnished with it.
– I am very desirous of carrying out the arrangement which was made last evening, as I understood, with the full concurrence of the Senate, and to meet the accommodation of honorable senators.
– There was no arrangement made.
– I am not complaining of that at all. What I am asking is whether the Minister will consider the advisability of postponing the debate on the Bill until the proposals relating to the transfer of the Northern Territory are before Parliament?
– The arrangement of last night could not be carried out if I agreed to postpone the debate as the honorable and learned senator suggests. I do not consider it desirable that it should be postponed, especially in view of the arrangement which was made by what I regarded as practically the unanimous consent of honorable senators.
– No, not unanimous.
– I can only rely upon the representations which were made to me, as I understood with the general concurrence of honorable senators. I propose, to-morrow, to move the second reading of the Bill, and then, of course, we shall go on with the remaining Government business on the notice- paper. On the following Wednesday ‘the debate on the second reading of the Bill will be resumed, and I hope to have a division taken on that question at some time between half-past 10 o’clock and 3 o’clock on Friday week.
– My honorable friendhas not answered my question. I am not asking for a revision of the arrangement as to the time for taking a division. What I am pointing out to my honorable friend is that a question may arise as to whether it ought not to be postponed. On that question an issue might be raised, and I ask the VicePresident of the Executive Council if, in view of that possibility, it is not desirable for him to consider whether it would not be well to postpone dealing finally with the Bill until the proposals for the transfer of the Northern Territory have been dealt with?
– Under the circumstances, no advantage, in my opinion, would be gained by a postponement of the measure.
– May T ask the Minister if he is not aware that the question of the construction of a railway to Western Australia is one of the provisions embodied in the agreement as a condition of the transfer of the Northern Territory, and, if so, whether it would not be well to deal with the question of construction before any proposed expenditure is debated here?
– Before the Minister replies to the question, I desire to ask him if there is before the Senate a Bill for the construction of that railway?
– I was going to say that, in any circumstances, the survey will bt most valuable.
-Order! -The Minister cannot debate the question.
– I asked the Minister whether he is aware that the provision is in the agreement.
– Yes ; but the Bill which I propose to proceed with is a Bill for the authorization of a survey. I think that, in all the circumstances, we should go on with the Bill.
– Even if the railway itself is refused authorization?
– I desire to ask the Vice-President of the Executive, Council whether, in the provisional agreement between South Australia and the Commonwealth as to the transfer of the Northern Territory, there is a stipulation that the Government of that State shall consent to the construction of the Kalgoorlie to Port Augusta railway,and, if so, whether the Commonwealth Government have any undertaking to bind the Government of South Australia as to the route or the gauge of the railway, or will it be open to them to consent to the proposal on their own terms?
– The Government have received telegrams and letters from the Government of South Australia permitting a survey, but reserving to themselves the question of route.
– May I ask the Minister whether there is a resolution of the Parliament of South Australia consenting to a survey being made?
– Not that I am aware of.
– Arising out of the answer given by the Vice-President of the Executive Council, I desire to give notice that when he moves the second reading of the Kalgoorlie to Port Augusta Railway Survey Bill, I shall raise a point of order that the Bill cannot be considered by the Senate until the requirements of the Constitution have been complied with.
– I desire to ask you, sir, a question in regard to the papers which, from time to time, are laid upon the table of the Library. Does no’t that practice permit of papers, which it might be important should be regarded as confidential, coming within the control or under the scrutiny of the press and the public; and if so, would it not be much more convenient that all papers should be laid upon the table of the Senate, especially since that does not necessarily imply that they shall be printed, but merely retains them in the control of the Senate?
– If papers are laid upon the table of the Senate, they become its property, and they may be required by the Department at any time.
– It is entirely for the Senate to determine whether it will have papers laid upon the table of the Senate or upon the table of the Library. The Minister has said that if papers are laid upon the table of the Senate thev become its property, and the Department may be unable to get them when required. The usual course is to have copies of documents laid upon the table of the Chamber, and then there can be no difficulty about the control of them. At the same time it affords an opportunity to honorable senatorsto have the documents printed.
– Is it not a fact, sir, that in many of the State Parliaments, including the one of which you were a member for many years, papers are frequently laid upon the table of the Chamber for the purpose of scrutiny ?
– And never laid on the table of the Library.
– Is not that fact stated when the Minister tables the papers, and are they not returned to the Departments concerned afterwards?
– I believe that the rule is to lay copies of papers on the table of the House for the scrutiny of its members, and if no motion to print is made they are not printed, but simply remain within the cognizance of the members, and the press. The public generally are not entitled to refer to them.
– I desire to ask the Vice-President of the Executive Council whether, in view of the answers I have received to my questions, the members of the. Government will reconsider the practice which has been adopted, not only by themselves but by previous Governments, and also the question of the liability attaching to the act, with a view to laying all papers upon the table of the Senate in the future?
– The practice which now obtains in the Senate is one which, in my experience, was adopted in the Victorian Parliament, Many of the papers which are asked for are filed, being in some cases most voluminous. Often there are references in a file which should not be subject to public scrutiny. It would be a great mistake if we laid down a general rule that copies of documents should be placed upon the table of the Senate. In particular cases where that course is desired, I think that if representations are made there will be no difficulty.
– Standing order No. 348 reads-
All papers and documents laid upon the table of the Senate shall be considered public. Papers not ordered to be printed may be inspected at the office of the Senate at any time by senators, and, with permission of the President, by other persons, and copies thereof or extracts therefrom may be made.
– May I ask you, sir, whether the laying of papers upon a table in the Library - I have never seen any papers there - is not an absolute contradiction of our standing order, and whether there is any standing order which warrants the laying of papers upon a table in the Library ?
– I believe there is no standing order which warrants the laying of papers upon the table of the Library; nor is there a standing order which forbids that being done. Therefore, it is entirely a matter within the discretion of the Senate.
– May I be permitted, sir, to draw your attention to standing order 40, which says -
The custody of Journals, Records, and all documents whatsoever laid before the Senate shall be in the Clerk - and to ask whether in view of that standing order, documents which are laid upon a table of the Library are by any possibility of construction within the custody of the Clerk?
– Papers laid on the table of the Library are not regarded by the Clerk as being in his custody. They are not laid before the Senate. The Minister simply replies to an honorable senator that he is prepared to lay certain papers or copies of them upon the table of the Library. In those circumstances, the Senate itself has no control over them, nor does it recognise any responsibility in respect of them.
asked the Minister representing the Minister of Trade and Customs, upon notice -
– The answers to the honorable senator’s questions are as follow : -
The reason why Victoria and New South Wales are consulted is that Tasmania buys the goods in question in those States.
– Arising out of the answer, in which it is said that there is no objection to consulting the Premier of Western Australia, I desire to ask whether the Vice-President of the Executive Council will see that that gentleman is notified; that is, if he is taking any part at all as between Tasmania, New South Wales, and Victoria on this question ? Will the honorable senator see that Western Australia, at all events, if not the other States, is notified and consulted?
– My answer to question No. 3 practically ‘means that it is the intention of the Minister to consult Western Australia in a similar way.
asked the VicePresident of the Executive Council, upon notice -
Whether, in accordance with the promise made on Friday, 12th July, any action has been taken by the Government in regard to the operations of the American Boot Machinery Trust, alleged to be carrying on business in contravention of clause 87 of the Patents Act of 1903?
– The answer to the honorable senator’s question is as follows: -
Every effort is being made to give effect to the promise referred to.
– And prosecution will follow ?
– The matter is under the full consideration of the Minister, and he assures me that he is making every effort to see that the law is observed.
Has a communication been received from the Premier of New South Wales urging that matters in relation to legislation regarding Federal Quarantine be delayed pending representations from the States Governments?
If so, is it the intention of the Government to comply with the representations made by the Premier of New South Wales?
– The answers to the honorable senator’s questions are as follow : -
– The answer contains a word that is so absolutely vague -
– Is it in order for the honorable senator to argue about the language in which an answer is couched?
– The honorable senator would not be in order in arguing thequestion, but he is simply asking a question. If he attempts to argue it I shall stop him.
– The VicePresident of the Executive Council informs me that it is not the intention of the Go- vernment to “unduly “ delay the consideration of the Quarantine Bill. As I am unaware that any request for undue delay was made, would the honorable senator be good enough to inform me of the meaning of that term?
– It means that one or more Government measures already precede the Quarantine Bill. When they have been disposed of the Quarantine Bill will be taken up in the ordinary course.
Report (No. 2) presented by Senator Henderson, and read by the Acting Clerk, as follows : -
The Printing Committee have the honour to report that they have met in conference with the Printing Committee of the House of Representatives.
The Joint Committee recommends that the following be printed : -
Petition from the President of the Softgoods Warehousemen’s Association of Queensland, in reference to the proposed conditions of tender for mail service. (Presented to the House of Representatives. )
Public Service Act - Return showing number of persons in the service exempt from provisions of Act.
Proposed railway from Kalgoorlie to Port Augusta - information as to the character of the adjacent country.
Committee-room, 25th July, 1907.
Motion (by Senator Henderson) proposed -
That the report be adopted.
– I desire to ask the Chairman of the Printing Committee, through you, sir, if the reports of the Imperial Conference and the Navigation Conference, held in England, have been laid before the Committee, and if so, whether they are being printed.
– They have not been laid before the Printing Committee yet.
Senator Col. NEILD (New South Wales) [2.53] - I understand that one of the documents recommended by the Committee for printing has some reference to a proposed public work. The Committee’s report does not say who is the author of that document. We are left in absolute ignorance on that point. The subject is the “ desert railway.” Of course, the inference is that the document is one prepared by a member of the Ministry, who writes minutes for the Ministry at large on behalf either of himself or of his colleagues upon any subject, and obtains their printing, while other members of the Legislature are not similarly favoured. I do not think the Senate, ought to adopt a motion recommending the printing of documents of which the authorship is concealed. We ought to know who is the author of any document we are asked to print, so that we may ascertain whether, for instance, it is a bond fide exposition, of a proposed public work, or merely an apology for or an attempt to explain away the utterances of a distinguished explorer of a few years ago. I shall vote against the adoption of the report unless we are told the name of the author of the document presented at this particular juncture by an honorable gentleman from the one State of the Commonwealth interested in the construction of that work. The whole thing has such a peculiar air, and there is such a mystery and so much secrecy about it, that perhaps my simplest course would be to move an amendment to omit the printing of the document dealing with the “ desert railway.”
– I submit with all deference to the Printing Committee that its report would be very much more valuable if it detailed the documents that had been submitted to it, and then set out those the printing of which it had decided to recommend.
– Would the honorable senator be satisfied then?
– I am not very sure. I am certainly not satisfied now. If everybody was satisfied the honorable senator would not have the nice soft seat he occupies to-day. A number of papers are submitted by the Government every day, and honorable senators forget all about them unless they deal with a subject in which they take great interest. Every paper that is laid upon the table of the Senate ought to be named in the report of the Printing Committee, in addition to those that the Committee orders to be printed. I throw out that suggestion, which, I think, would make the work of the Committee a great deal more valuable to the Senate.
Senator Sir JOSIAH SYMON (South Australia) [2.56]. - With reference to -the remarks of Senator Guthrie, I was a little disappointed to hear that no’ steps had been taken as yet-
– By the Printing Committee.
– Then I should like to take the opportunity of ascertaining from the Vice-President of the Executive Council whether any steps have been taken ,to carry out the promise he was good enough to make iri answer to a question last week, that the Blue-book report of the Imperial Conference would be printed and circulated this week. I do not know whether it is necessary for it to go before the Printing Committee or not. It is a voluminous document, with many extremely interesting passages in it, and I should like to know when we are likely ‘to have it. On the -other matter to which Senator Neild referred, my honorable friend ought to remember in mercy when he is making those critical remarks that, amongst the documents and minutes that are floating about in a very unofficial way on all sorts of subjects, those that have special reference to the Kalgoorlie to Port Augusta Railway Survey Bill may be, perhaps, considered from a. friendly point of view, because .the right honorable gentleman who has written them is probably trying to make up for the difficulties ‘that his own action threw in the way of the passage of that Bill in the past, and to assist it more in the future.
– If Senator Symon is referring to the Blue-books of the Imperial Conference and Navigation Conference, the latter was laid on the table, and is, I understand, being printed. It is not within my own personal knowledge whether that is actually so, but I am informed that it is being printed.
– And will be distributed ?
– That is the object. The report of the Imperial Conference has not been laid on the table, but, I understand that it also is being printed with a view to its earliest possible distribution.
– There is no intention on the part of the Printing Committee to keep secret the _ authorship of the mysterious paper which is exercising the mind of Senator Neild. That paper has already been printed. I.t reached us in a printed form, and the Committee simply passed a motion for its printing in order that every member of Parliament might have a copy sent to him.
– The type is already set up.
– That is so. I understand that the author of the paper is Sir John Forrest, K.C.M.G., P.C., and I do notknow how many other titles. That paper received the same consideration at the hands of the Printing Committee as would, or does, any other paper that comes before us. It was considered advisable to take the course which has been taken, because of the importance of the matter dealt withby the paper. With respect to Senator Stewart’s complaint, if it be a complaint, I wish to say that, so far as I, as a member of the Printing Committee, am concerned, I thoroughly agree with him. I think that it should be made apparent to every member of the Senate from the reports of the Printing Committee precisely the number of documents that have been before the Committee, how many have been recommended to be printed, and how many they do not consider ought to be printed.
Question resolved in the affirmative.
In Committee (Consideration resumed from 24th July, vide page 878) :
Clause 2 -
After section thirty-eight of the Principal Act the following section is inserted : - “.38A. In matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States ; so that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior Court.”
Senator Sir JOSIAH SYMON (South Australia) [3.4]. - As the Judiciary Bill and the Bill relating to salaries have been debated together on the motion for the second reading of the former measure, I shall take this opportunity now that we are dealing with them separately in Committee, to define the attitude which I adopt as to both. With the indulgence of the Committee, I should like to refer to a misconception which was mentioned to me this morning by an honorable senator, as to the view which I took with regard to the effect or operation of the Salaries Bill. He thought that I had conveyed the impression that that Bill wiped out all arrears. I am sorry that any in advertence of expression on my part should have led to that impression. I did not intend to convey such an idea. On the contrary, the Salaries Bill., of course, leaves matters exactly as they were with regard to arrears. Whatever income tax may have been declared payable, or may be due up to the time of the passing of this Bill, is untouched by. it, and would be open to the same proceedings as have hitherto been taken. This Bill does not affect any steps which may be taken with regard to its recovery. It does not make less liable those who may have been considered liable for income tax in the past, and the trouble towards which it is proposed to be directed will still exist in the event of proceedings being taken for recovery up to the passing of the Bill.
Government. Therefore, I intend to moye no amendments so far as the Salaries Bill is concerned. I am satisfied with the declaration, and the responsibility for its machinery must rest with the Government; because, although I do not believe that it is effective, or can be made effective, that is a matter for them. The Judiciary Bill, which is now before us however, is not of that character. It is actively mischievous, as I respectfully conceive. I am going to move an amendment on clause 2. I do not know that Senator McGregor requires any commendation from me, but perhaps he will not take it amiss if I adopt an altogether admirable statement he made as to this particular Bill, and as to its position in relation to the States Courts. In the course of my observations on the motion for the second reading, I accepted a word that he interjected, but I am referring especially to that part of his own speech in which he subsequently dealt with the matter more fully. I ask honorable senators to bear with me in my statement of what this provision means, so that we shall at any rate know what we are voting about. Clause 2 proposes to insert a new section in the principal Act. Its object is to take away from the States Courts of Australia a jurisdiction which they now possess. If they possess it as States Courts they do so by virtue of their inherent jurisdiction, which was possessed by them at the establishment of the Commonwealth, and we cannot take it away. I think that everybody, whether he professes to be wellinformed on constitutional matters or not, will agree with that. I repeat, that if this jurisdiction was possessed by the States Courts as States Courts at the time of the establishment of the Commonwealth, they must continue to hold and exercise it, subject to whatever appeals are given to suitors. Because these appeals are all bv the suitors. Some have argued as though the right of appeal were the possession of the appellate Court. But it is not so. The right of appeal is the possession of the appellant who desires to go to another tribunal - perhaps a tribunal no better than the one which tried the original case, but certainly another one, bringing to bear fresh minds upon the question at issue. If we were taking away jurisdiction which the States Courts as Federal Courts possess, we might be able to do it. I am going to assume that we can do it, and that that is what is contemplated by this clause. In other words, I am assuming that we can take away that which we have invested the States Courts with. We “invested them with this jurisdiction. Why? “Federal jurisdiction” is a somewhat vague term, but in plain language it simply means that we enabled them to decide matters involving questions arising out of Federal legislation, questions arising in connexion with the Constitution, and, it may be, questions of Federal concern within the Federal power. That is, speaking generally, what it means. It is a vague term, because the “judicial power” of the Commonwealth, every one recognises, is a little difficult to define, but it certainly includes those things which I have mentioned. We invested ‘the States Courts with it because the Constitution so intended. That is what I wish to impress upon honorable senators. I referred to the point yesterday, and am not going to refer to it at length again. It would not be right to do so, and besides, I know that honorable senators are just as familiar with the ramifications of the matter as I am. But’ I wish to call attention again to the words under which that was done. They occur in section 71 of the Constitution -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia, and in such other Federal Courts as the Federal Parliament creates, and in such other Courts as it invests with Federal jurisdiction.
That phrase “ in such other Courts as it invests with Federal jurisdiction “ does not occur at all in the United States Constitution. It is a new departure, which the Convention that framed our Constitution adopted for two reasons.
States Courts with Federal jurisdiction by the Judiciary Act of 1903. If we were to keep faith with the people who “ had adopted the Constitution, it was our duty to do that. Now, I ask, why are we by this Bill going to deprive them of that jurisdiction with which we vested them for those high constitutional and public reasons ? Is it because of their incompetency ? Is any one prepared to say that the States Supreme Courts are not competent, that they are not constituted of eminent jurists, as capable as any in the world of dispensing free and untainted justice? Is it because of any fault or misconduct on their part? Is it that there is some inherent vice in those Courts, only just discovered, that renders them incapable of dealing with these matters of Federal jurisdiction? Why is it proposed to impeach these Courts, either as to their competency, learning, or fairness, by depriving them of Federal jurisdiction ? Is npt the real reason because the High Court is -vexed that a decision of theirs should be questioned or overruled by the Privy Council ? Whether they think the Privy Council right or wrong, is it because they are overruled- that this Bill is brought in to stop up one of the avenues of reaching the Privy Council, and to stop it by punishing the wrong persons? That may be a reason for amending the Constitution in the direction of limiting appeals to the Privy Council altogether, as I desired to do in the Convention, but is it a reason for depriving the Supreme Courts of the States of that jurisdiction which W6 solemnly conferred upon them two or three years ago? If, to use a common expression, this Bill is intended to some extent or in some degree to “ euchre “ the Privy Council, surely we ought not to do that at the expense of our own domestic forum, the States Supreme Courts? Will any one say that the Supreme Courts of New South Wales and Victoria are not as competent to deal with these Federal questions to-day as they were when we passed the Judiciary Act of 1903? Will any one say that the Supreme Court of South Australia is not also as competent? We have in that State a Chief Justice who is not merely qualified to be a member of the Privy Council itself, but who, as a Judge, is as capable as any in this land.
– I must take exception to Senator Symon’s comment that this Bill is intended to cast a reflection upon the States Courts.
– That is not intended, but that would be the effect of the Bill.
– I am prepared to put it in that way, and I object to the comment that the effect of this Bill will be to cast a reflection upon the States Courts and to punish their Judges. I hope to show conclusively that the Bill attempts to do nothing of the kind. It is only a fair and reasonable exercise by Parliament of the powers under the Constitution, with a view to secure that finality which is contemplated by section 74 in matters relating to limits inter se of the constitutional powers of the Commonwealth or those of any State or States. Section 76 says -
The Parliament may make laws conferring original jurisdiction on the High Court in any matter -
Arising under this Constitution or involving its interpretation.
We have already made that provision in section 30 of the Judiciary Act. Section 77 of the Constitution Act says -
With respect to any of the matters mentioned in the last two sections the Parliament may make laws -
Defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States.
It will be seen that section 77 specially refers to the powers which the Parliament is at liberty to exercise in regard to the matters mentioned in sections 75 and 76. What clause 2 of this Bill is aimed at is the settlement of questions arising under this Constitution or involving its interpretation. How can it possibly be construed into a reflection upon the States Courts when we only exercise a constitutional power? Such a thought never occurred to the Parliament when it previously dealt with the jurisdiction of the States Courts.
– Then we gave them the jurisdiction, but now we are asked to take it away.
– It is true that the Parliament first withdrew from the States Courts the jurisdiction in regard to the Federal matters mentioned in sections 75 and 76 of the Constitution Act, and then invested those Courts with Federal jurisdiction in regard to some of those matters, subject to certain limitations. Of course, the object was to make the States Courts part of the Federal Judicature. By section 38 of the Judiciary Act, we gave exclusive jurisdiction to the High Court in five matters, and all we seek to do now is to add another matter to its exclusive jurisdiction. Why is it proposed to invest the High Court with exclusive jurisdiction in regard to matters involving the interpretation of the Constitution under section 74? It is for the obvious reason that its interpretation should rest with the High Court alone. Prior to Federation, there was no more strenuous advocate than Senator Symon of the proposal to assign that jurisdiction to the High Court.
– But not to take it away from the States Courts.
– But the main object of my honorable and learned friend from the very beginning was to vest that jurisdiction in the High Court.
– As a Court of Appeal, but not to take it away from the States Courts, and the Parliament did the same when it passed the Judiciary Bill.
– In its original form, the Constitution Bill vested the High Court with the interpretaton of the Constitution. We cannot read section 74 without realizing that that was its spirit. Surely honorable senators must see that no Court can be so competent as the High Court to be the final interpreter of the Constitution? That is the sole design of clause 2. If it is struck out, the Bill will be waste paper. Unless my honorable friends desire to stultify their vote of last night, when they agreed to the second reading, it will be a great mistake on their part to attempt to mutilate the Bill by striking out the clause. I feel quite certain that no Judge will imagine for a moment that there is any intention to cast a reflection on the States Courts. We desire to utilize those Courts where it suits our purpose, and that is quite in accordance with the terms of the Constitution. I appeal to honorable senators to, unless they want to completely destroy the Bill, vote for the clause in its integrity.
– I desire to draw the attention of Senator Best to the provision which it is proposed to insert after section 38 of the Judiciary Act. I only want to get light on the clause before the Committee. I am divided between two minds. On the one hand, as I .said in my speech on the second reading, I think that the whole object of the judiciary sections was to vest the High Court with final jurisdiction on constitutional questions. On the other hand, I should not like to see the States Courts divested of Federal jurisdiction unless that is absolutely necessary. I do not feel inclined to go as far as that; but now a dilemma occurs. It is anticipated that if we allow the Supreme Court, as well as the Full Court, of a State to exercise the jurisdiction of the High Court, it may give a decision on a constitutional matter, claiming that it is doing so by conferred or original jurisdiction, and so allow an appeal to the Privy Council over the head of the High Court. I desire to ask the Minister whether it is not possible to invest the Supreme Court of a State with Federal jurisdiction, and, at the same time, to make it clear that it is exercising exclusively the original jurisdiction of the High Court, so that appeals must go to the High Court, and not to the Privy Council ?
– That is what the Bill achieves.
– The words which trouble me in the proposed new section 38A are these -
So that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior Court.
We are now making the jurisdiction of the High Court exclusive, and defining its exclusiveness in very precise terms.
– We are doing exactly what we did in section 38 of the Judiciary Act.
– Is it wise to entirely divest the States Courts of the work of assisting, if we like to call for their assistance, to interpret the Constitution?
– Assisting as Courts of first instance.
– Yes. I am very desirous that there should be the heartiest co-operation between the States Courts and the High Court in that regard. But, at the same time, I should like it to be clearly laid down, if it can be done, that when the States Courts are exercising Federal jurisdiction appeals shall not lie to the Privy Council. It will be wise to invoke the jurisdiction of the Supreme Court, especially the Full Court of a State, so that a constitutional question may go to it, either as a matter of first instance or as a matter of appeal. But it would be unwise, I think, to leave the door open for an appeal to the Privy Council instead of to the High Court.
– What the honorable senator desires is what the Bill achieves.
– Then I cannot understand these words -
So that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter either as a Court of first instance or as a Court of Appeal -
– Exactly. It takes away only questions inter se under section 74 of the Constitution.
– It takes away all that jurisdiction in order to prevent an appeal.
– It does not carry out what .1 want.
– But it does carry out the settlement of appeals under section 74.
– By wiping the States Full Courts out.
– Not at all. They have Federal jurisdiction in other matters.
– I strongly support the taking of all constitutional matters direct through the States Courts into the High Court.
– That is what we do by this Bill.
– I am afraid the Bill does a great deal more. Until my fears in that regard are dispelled,I shall have to vote against this clause, which is the kernel of the Bill.
– The honorable senator spoke in favour of the Bill, and voted against it.
– I shall explain that matter on the motion for the adjournment of the House, now that it has been mentioned. I think every honorable senator understands how the inadvertence occurred.
– Did the honorable senator intend to vote for the Bill?
– Yes, in order that it might get into Committee.
– Then my honorable friend is going to destroy it by voting against this clause.
– That may be. In opening my remarks I said I was between two minds. In asking me to vote for a measure which will bring all constitutional questions direct to the High Court, and at the same time destroy the whole of the jurisdiction that we might profitably confer upon the States Supreme Courts, the Government are asking me to make a very great sacrifice in order to bring about something which I am in favour of. I throw this suggestion out now to the Government, who are responsible for the Bill, that they should see whether the two things cannot be combined, so that the States Courts shall be invested with Federal jurisdiction, and at the same time an amendment be put in the Bill which will, so to speak, bind the States Courts to recognise in their judgments that the High Court, and not the Privy Council, is the final arbiter of the Constitution. I have quite as great respect for the States Courts as for the High Court.
– So have I.
– I wish to see them co-operating in this very important work. I shall certainly consider very earnestly whether I can go any further in this matter. It is abundantly evident from the subsequent clauses that, so far as their appellate jurisdiction is concerned, even on domestic matters, we might as well write “ Ichabod “ on the walls of the States Full Courts. If that is the price which I shall have to pay, and the sacrifice I shall have to make by voting for this Bill, in order to bring about what I greatly desire - I mean to insure that the High Court shall be the final Court of Appeal on constitutional matters - then the Government are asking me to take too much on chance, and I do not feel inclined to do it. I ask the VicePresident of the Executive Council whether by any chance these two things can be reconciled. I wish to emphasize the fact that I am just as jealous of any unnecessary depreciation of the States Courts as I am anxious to guard the powers and status of the High Court. I shall not consent lightly to the States Courts being absolutely divested, in this way, of all participation in the duty of interpreting and working the Constitution.
Senator Sir JOSIAH SYMON (South Australia) [3.50]. - I think I am stating correctly what the Government desire when I say that it is to cut off appeals in respect of these questions from the Supreme Courts of the States to the Privy Council. In order to do that, however, they are going to cut away from the States Supreme Courts their jurisdiction altogether. They are like a man who, in order to prune off the limb of a tree, cuts the tree down.
– The answer to these objections is a very simple one. Under the present jurisdiction of our States Supreme Courts, there appears to be a right of appeal to the Privy Council. So far as constitutional questions are concerned, the aim and object of the Bill is to cut off that appeal and to direct that the appeal shall only be to the High Court itself, which shall be the interpreter of the Constitution.
Senator Sir JOSIAH SYMON (South Australia)[3.52]. - That is exactly what we wish to assist the Government in doing, but they are going further. They are stripping off all the jurisdiction from the States Courts - divesting them of all their raiment.
– If we leave that jurisdiction we shall have all the trouble repeated.
– Will the High Court be the final arbiter of the Constitution ?
– It will be under this Bill.
– If the Government are going to take that attitude and refuse to try to find a less drastic way of dealing with the matter, I am reluctantly forced to the conclusion that the proper way to effect our object is to secure an amendment of the Constitution in the ordinary way.
– I am a little astonished at the remarks from the other side. As a layman, I should like to sit at the feet of the legal profession to hear what they have to say on a question of this kind; but when the Vice-President of the Executive Council was moving the second reading of the Bill, the applause of Senator St. Ledger was so great that at times it was hard to tell whether he or the Vice-President of the Executive Council was addressing the Senate. The honorable senator was then a strong supporter of the Bill. There is an old saying that actions speak louder than words. I referred just now to the honorable senator’s vote last night against the Bill. If the honorable senator had had the numbers with him, the Bill would have been defeated. The position I took was this: I believed that the Government were in earnest and had a good case. I have a free hand on this question, and when I can doso, I shall support the Government, especially when I see the legal profession so divided. I should have thought that this was a question on which we might all agree to sink party differences. The leader of the Opposition, if I may call him so, quite overshadows some of the honorable senators who sit with him, and the effect of the discussion has been to mystify some of us laymen. I intend to stand by the Government, as I think the Bill is undoubtedly on the right lines.
Question - That the clause stand as printed - put. The Committee divided.
Majority … 6
Question so resolved in the affirmative.
Clause agreed to.
Clauses 3 to 7 agreed to.
.- I move -
That the following new clause be inserted - “7a. The appellate jurisdiction of the High
Court as regards the orders, sentences, or judgments of State Courts shall extend only to the final judgments of the highest Court of final resort in the State or the highest Court of final resort from which appeals lie as of right to the King in Council and except as aforesaid there shall be no appeal from any State Court to the High Court.”
I wish to know whether the Minister has considered the question of including in the Bill some provision limiting appeals from the States Courts to the High Court. The matter is very important, and we should do wrong if we allowed this Bill to pass from our hands without considering it, and, if necessary, taking steps to limit what may become a very great evil. We all have the greatest respect for and confidence in both the High Court and the Courts of the Stales. We know perfectly well that they are composed of most eminent men. But it appears to me that the usefulness of the Supreme Courts of the States will be minimized, and we shall bring about disastrous trouble, if the High Court continues to hear appeals from single Judges of States. My amendment leaves the High Court with an enormous amount of appellate work to do. If we do not distribute this appellate business it will mean that we shall have some Judges with more work than they can do, whilst others will be idle.
– The States can get rid of their Supreme Court Judges if there is no work for them to do.
– If there is to be any talk of getting rid of the State Court Judges we shall have to increase the number of the High Court Judges. If that is done, I hope that no political appointments will be made, but that efficient Judges from the States Courts will be appointed to the High Court.But there is no occasion for interference with the Courts as they are at present constituted, if the work be properly distributed. At present the High Court has more work than it can do. It was never understood that appeals from single Judges would be entertained by the High Court. The present position has arisen owing to the decision given by the High Court - possibly rightly - in the case of Parkin v. James. I ask the Minister to give his attention to this matter and see whether he cannot accept my amendment, or a modification of it.
– I do not think that honorable senators will have any difficulty in dealing with this amendment. Such a proposal is not to be introduced into a Bill in a light and airy manner. Itcovers a question of very great and serious importance. So far as I have had an opportunity of giving consideration to it, I doubt whether it is competent for this Committee to entertain an amendment of the kind. The only way whereby my honorable friend Senator Dobson can achieve what he seeks is by an amendment of the Constitution.
– What is sauce for the goose is evidently not sauce for the gander.
– We are dealing -with entirely different subject-matters as my honorable friend knows, lt is also unreasonable and unfair for honorable senators to insinuate that the Government are seeking to injure the States Courts. We are doing nothing of the kind. I am not second in my admiration, for the Judges of the States Courts and the ability that they display. They have their jurisdiction. The High Court has its jurisdiction. It is the dutv of Parliament to carry out the terms of the Constitution. Section 73 provides that -
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences -
Of any Justice or Justices exercising the original jurisdiction of the High Court.
The first appellate power is that the High Court shall be able to deal with appeals from that particular source. Then comes paragraph 2 -
Of any other Federal Court, or Court exercising Federal jurisdiction ; or of the Supreme Court of any State, or of any other Court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council.
It will be seen that the words are wide and comprehensive. The intention of the section was the creation of a national Court of Appeal. It specifically gives the High Court power to hear appeals from various Courts.; amongst others from the Supreme Court of any State. The question was raised as to what “ Supreme Court “ meant, and it was decided in Parkin v. James - and I do not think that any onehas attempted to dispute the decision - that it included an appeal from a single Judge of a Supreme Court. If that be the. right interpretation of the Constitution, itis not competent for this Parliament, by an amendment of the kind proposed, to get: away from it. The only remedy is am amendment of the Constitution. It will? have been observed that since this judgment was delivered suitors have found it; to be less expensive for them to go direct to the High Court than to let their cases.-, filter through the State Supreme Court. It may have been unfortunate for theSupreme Courts that that should be so, but. I do not see that it can possibly be a reflection upon them. Is it likely that thepublic are going to forego, without graveconsideration, this less expensive means of” getting- an ultimate decision from the final’ Court of Appeal? Naturally! they will go- direct to the High Court.
– Litigants have a right: to go to a Full Court of a State if they chose to exercise it.
– Undoubtedly they have ; but, as a matter of fact, they prefer: to go direct to the High Court, and they do so without any reflection on the StateSupreme Court. It has been stated that this will mean that the work of the HighCourt will be completely clogged, whilstthe State Supreme Courts will havepractically little to do. But Ave must all commend the extraordinary industry of” the High Court in disposing of thework before it. It has effectively succeeded in coping with that work, sothat at the end of the last session mVictoria only eight cases were not finally dealt with by the High Court, of which two had been argued and one was part heard. In New South Wales there were only four unfinished cases at the end of ‘ the session. I am not in ai position to givethe figures with regard to the other States, but it is not likely that there was much business in arrear. We have to wait to see how the High Court disposes of its business before it is necessary to determine what shall be done. Some may goas far as to say that if the High Court is - not sufficiently equipped with Judges it - may be necessary to appoint others. But I do not propose to deal with that aspect of the matter at the present moment. What I do say is that matters have not reached that acute stage when litigation is completely blocked, and the High Court has become incapable of dealing with the work before it. Under the circumstances the time is not ripe to do anything. On the other hand, according to my reading of the Constitution, I do not think that it is competent to receive an amendment upon this Bill such as that proposed by my honorable friend.
– It is not the duty of the Federal Government to force business upon the States Courts.
– I regret that in so important a matter affecting the States Supreme Courts, the Government, aided by their majority, seem to have taken the bit between their teeth.
– That is not so; we have to carry out the Constitution.
– Knowing that they have a majority on these questions, the Government do not seem disposed to encourage discussion. I quite sympathize with and admire the desire of the VicePresident of the Executive Council to assist our deliberations, but what he has said does not quite meet the situation. It must be obvious to any layman that what will happen will be that the High Court of Australia will be very largely seized, not only with constitutional business, but with general business. Probably that is a desirable thing in some respects. But I cannot forget that I represent a State, and am bound to look at matters not only from a Federal point of view as a Federal legislator, but from the point of view of the States. I urged the Government very strongly to try to bring about a certain result, but they called for a division without any attempt to have the suggestion I made discussed exhaustively.
– The Government have a right to go to a division when the Committee is ready.
– Certainly they have. I do not think that we have a mandate from the people of Australia to cut down the jurisdiction and power of the respective States Courts as established at the time of Federation. I was hoping that a more conciliatory spirit would be displayed by- the Government, and that they would, if possible, adopt some means of avoiding conflict.
– Does the honorable and learned senator propose to conciliate by forcing litigants into a Court to which they do not desire to go?
– That remark is unworthy of the honorable senator in this place. It is a very cheap thing to say that, because a man happens to be a lawyer, and to look at things from a legal point of view, he is influenced entirely by the sordid consideration of his own pockets.
– Surely I did not insinuate that ?
– The honorable senator appeared to me to do so. It is being presumed that, for some such reason, honorable senators who are lawyers suggest that it is advisable that appeals should go to the High Court through the States Courts. But such a course is sometimes as valuable to litigants as to the Courts themselves. The Privy Council has adopted a rule that, no matter how many Courts there may be in a State, the remedies in each are “to be exhausted before it is referred to as a Court of Appeal. The House of Lords has insisted on the adoption of the same course, and has gone so far, in some cases, I must say, owing to the pressure of business, as to forbid certain appeals being made. It is probable that we shall come to something like that in Australia, in consequence of the pressure of business in the High Court. The Vice-President of the Executive Council said that the alteration suggested by Senator Dobson could not be made without an amendment of the Constitution. Every word in a written Constitution requires to be very carefully considered. I find that section 73 provides that -
The High Court shall have jurisdiction, with such exceptions and1 subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences.
I think it is arguable that, under this power to prescribe regulations, if Parliament thought it advisable, a regulation might be made providing that, before a litigant could go to the High Court, he should exhaust the jurisdiction of the other Courts.
– Does the honorable and learned senator say that that could be done?
– I say that it is arguable. I was very pleased recently to read ‘the account of an interview which a representative of the Argus had with a leading counsel in Melbourne, and generally I agree with the eminent opinion recorded. I think it is possible for this Parliament, if it thought it advisable.’ to do so, to prescribe that, before a litigant shall go to the High Court, which is to be the final Court of Appeal, he shall exhaust the jurisdiction of the other Courts. I am inclined to think that the effect of such a regulation would be to add power and dignity to the High Court itself, and to lead to the law being more clearly and accurately laid down. But if an argument of this kind, coming from me, is to be met with the suggestion -that it represents the wishes of a member of a sordid profession, careful only about their fees, it is wasted when submitted to persons prepared to take that view.
– A highly technical Bill is one which, from choice, as well as from wisdom, a layman will necessarily hesitate to discuss, and I should not have risen but for an impression which appears to be in the mind of the honorable and learned senator who has just resumed his seat that in an interjection I made I imputed sordid considerations to him.
– I am sorry if I misunderstood the honorable senator.
– I had no such idea in my mind. What I interjected was, “ Does the honorable senator propose to conciliate by forcing litigants into a Court to which they do not desire to go?” That does not imply anything personal to Senator St. Ledger. On the point at issue, as it presents itself to me, I would say that the course that has prevailed in the past has been for litigants to be compelled before they can reach the final arbiters in legal matters to go through a succession of Courts.
– That is not so.
– I confess at once a good deal of ignorance of legal matters, but generally speaking, I think that is so. Now we appear to have created a means by which litigants having their own choice in the matter, can proceed either by the method that used to prevail, or, if they prefer to do so, reach the final arbiters by a shorter route. We do not by any of our legislation make it imperative that they shall go from the lower to the highest Court by a hop, step, and jump, but we render that possible if in their judgment that seems to them to be the easiest and surest means of securing the highest legal decision. I do not see how that can be considered as any reflection on the Full Courts of the respective States. But supposing the practice becomes so general’ as to render the Full Courts unnecessary, if litigation is thereby minimized and the administration of justice under equitable conditions expedited, that will be to the public advantage. I think it is a sentiment, about which there is less division of opinion than any other I know, that our Courts in Australia occupy a very high position as regards both ability and integrity. It is quite obvious that the High Court, with its present strength, cannot possibly continue to cope with the business coming before it, if the practice of going from the lower Courts direct to that tribunal becomes more general among litigants than it is. If that should happen the very eminent and able men who preside over Supreme Courts of the States would certainly have provided for them in another sphere opportunities for the exercise of that erudition and ability and the display of that undoubted integrity we are all so proud of.
Senator Col. NEILD (New South Wales) [4.24]. - With, great respect, it seems to me that Senator Dobson’s amendment seeks to restrict the right of appeal that is granted by the Constitution, and for the first time in the history of Australia, and possibly in the history of judicial institutions, to compel litigants to follow a certain course in prosecuting appeals. It was not the intention of this Parliament to restrict rights granted by the Constitution. Reference has been made to section 73, and it is a section of the Constitution to which I have had occasion to make particular reference recently in connexion with my duties here. I feel satisfied that the framers of the Constitution intended that the freest rights of appeal existing at the date of Federation should be retained to the people of Australia, and that there is not the smallest evidence in the Constitution of any desire to force litigants to follow their appeal through any given channel. In New South’ Wales, and I do not know in how many more of the States, there has for years been a right of appeal .to the Privy Council direct from the decisions of the Chief Judge in Equity, with or without a jury, and without the slightest obligation to go through a process of appeal to the Full Court. No one ever conceived the idea that it was any slight upon the Full Court for a litigant to prefer, in the language of the sporting world, “ sudden death,” and go direct to the Privy Council, instead of wandering through the mazes of Full Court proceedings. Although I am not a lawyer, I speak with personal knowledge and experience of this matter, and what I am saying is outside the possibility of contradiction. Senator Dobson’s proposal, if carTied into effect, would mean that while a litigant must go through the Full Court of a State before he can appeal to the High Court he could, nevertheless, go direct from an inferior States Court to the Privy Council. Senator Dobson must see that there is no rational ground on which to base an argument that while a litigant in one case may go direct from a single Judge to the Privy Council, he must not be permitted to follow the same course in connexion with an appeal to the High Court. Really, the amendment is not arguable.
– It is not arguable from the point of view of the litigant.
– He would have the option.
– Senator Dobson proposes to take the option from him and compel him to follow a certain course. When he framed the amendment, the honorable and learned senator must have overlooked the point I have just submitted. I think the amendment is an unintentional effort to ^belittle the position of the High Court, without enhancing the status of the Full Courts of the States.
– The honorable senator should not accuse any one of attempting to belittle any Court. We have had too much of that kind of thing altogether.
– My honorable friend should not take umbrage at what I said because I qualified my observation with the statement that I thought the amendment an unintentional effort to do what I have suggested. Senator Dobson knows me well enough to be aware that I would be the last to suggest that there was anything in Ms proposal unworthy of him as a member of the Senate, a member of the legal profession, dr as a gentleman whose friendship I value. Having said that I hope I need say no more. I am sure there is not the smallest desire on the part of any member of the Senate to belittle any Court.. I have heard nothing in the debate on this . Bill which would lead me to believe that there was animus in the mind of any member of the Committee in connexion with- it. For certain reasons I voted against the second reading of the Bill, and now that it has been carried, I am supporting the Government in what I believe to be the true course. I feel so anxious that the whole proceedings may be freed from any form of party conflict that I should very much prefer this matter to be settled without a division. I would appeal to Senator Dobson to withdraw the amendment on the simple ground that while it would place an obligation on an appellant who was seeking the opinion of the High Court, it would impose no similar obligation on another litigant - or even on the same litigant - who was seeking to appeal to the Privy “Council.
– This is not by any means a party question. We are all trying to bring our best judgment to bear on the proposal, and the freest expression of opinion ought to be encouraged.” My anxiety is not so much for the States Courts as it is for a litigant when he comes to what is practically a final Court of Appeal to have a remarkably strong and comparatively numerous Bench. Anticipating to some extent the progress of the future by the actions of the past, I believe that, owing to the very high respect which the High Court is deservedly gaining, the result of the course of business will be that a litigant, instead of getting a decision on highly important matters from a full Bench, will get a divisional opinion. We cannot expect the High Court to be flying about in balloons from State to State, and a litigant who may have a matter of first instance to be decided will not be able co get an opinion from the High Court. In England it was found that, when litigants had to bring appeals in divisional courts, they only got the opinion of divisions of the King’s Bench, and gradually the practice had to be abolished, and the old system restored. There will be vital questions, both public and private, to be decided, and while rapidity of appeal is a magnificent thing for a litigant, still there is a matter which is of equally vital interest to him, and that is that he shall get a judgment which shall be almost as clear and perfect an exposition of the law as it can be. There are always, two sides of a. question. It is possible that because a man has been1 trained he is able to see both sides. While I quite appreciate what Senators Neild and Trenwith have said, still I contend that it is highly desirable to provide cheap, free, and rapid systems of appeal. The poor litigant is entitled to have the same facilities as is the wealthiest litigant. To the honour of the legal profession I can say that no matter how poor a man may be, if he is oppressed and can make out a case, there are few lawyers who would not do a great dealto help him, irrespective of whether he could put down a fat fee or no fee.
– Is it not infra dig. for a lawyer to take up a speculative case?
– That is a different matter. It is not conducive, I think, to good feeling or judgment that when a lawyer speaks strongly from a lawyer’s point of view, and it does not quite accord with a layman’s point of view, it should be said that there is probably something sinister behind his argument. I wish the Committee to understand that there is another side of this question, and I am inclined to think that with rapidity in the transaction of business consequent on an increase of appeals, litigants will not be getting, if not now, in the future, exactly the kind of law which they desire to obtain.
– I think that every honorable senator ought always to assist in making the course of justice easier and cheaper than it is. I do not wish to make a charge against the legal profession or the Judges, or any one connected with the administration of justice, but I think every one knows how difficult it is to obtain justice. Indeed, it is so costly and so tedious that a great number of persons, rather than incur the expense and the trouble of going to law, put up with injustice. In theory, courts of justice are open to the rich and the poor, but in practice we find that only a man with a very well-filled purse and a plentiful supply of patience can find a foot within their doors.
– Take the case of Lever Brothers that was heard the other day.
– Yes ; there are thousands of cases of which we never hear. Every one, I repeat, ought always to assist in making justice more easily available. Here is an opportunity to do so. It appears that such is the confidence of liti gants in the High Court that they are proceeding direct from the lower Courts to that Court, so as to obtain finality as quickly and as cheaply as possible. Surely, it is not for us to place any obstacle in their way. Yet that is exactly, what Senator Dobson desires to achieve by means of his amendment. I am aware, of course, that he, like every other lawyer here, looks at the question purely from a lawyer’s point of view. They see that if the tedious course of appeals to which we have been accustomed were’ broken up, and justice made speedy, a great deal of work would be lost.
– I thought that the honorable senator was going to make no aspersion against the lawyers?
– I am making no greater aspersion against the lawyers than might be very well made and than is constantly made against workmen when laboursaving machinery is invented. We all know how the ordinary working man, when he is displaced by a machine, grumbles, and how the capitalist tells him that he ought to starve in quietness ; that, somehow or other, Providence will provide for him.Here is a legal labour-saving machine that we have just discovered, and we wish to apply it. In the process, probably a number of lawyers may find themselves minus briefs. I sympathize deeply with them, but there will be any amount of digging to be done. Manual occupations will be crying out for men to take part in them, and I have no doubt that legal luminaries who could not find work in the courts would be very welcome in the fields of the Commonwealth, so that they need not perish from lack of something to do.
– Who would take them?
– I am sure that the honorable senator would provide work for a number of them. In any case, we are here to consider the interests of the people of the Commonwealth, and to try to secure for them justice as cheaply and as rapidly as possible. Senator St. Ledger has pointed out some difficulties in the way, and probably to a greater or a lesser extent they, exist. He also pointed out that lawyers were accused of indecision because they very often saw both sides of any question that; was presented. No matter how many sides of a case we see, we are bound ultimately, to adopt one course. What is the best course for us to adopt with regard to appeals ? In Queensland, a litigant can resort to the
District Court, to a single Judge of the Supreme Court, to the Full Court, the High Court and the Privy Council. Through each of those Courts the poor litigant is dragged. When he has been plucked clean, like a dead fowl, he is thrown into the street to take his chaner nf whatever comes or goes. The abuses in connexion with the administration of justice are not only very serious but are most difficult to attack and to remedy. With all deference to the members, of the legal profession, I say we have opposed to us in this campaign against costly litigation every member of the legal profession, from the Judge on the Bench to the humblest attorney’s clerk. They are all in league against the people of the Commonwealth. They are a brigade of bandits who are out to plunder everybody with whom they do business. An honorable senator laughs, but I read not ‘very long ago of a bill presented by a certain firm in Hobart for I forget how many thousand pounds, which was taxed down enormously. In that case it seemed to me- that the office of taxing master was a very useful one. Whenever you find a lawyer you find a gentleman who gets the biggest costs he possibly can. I was told the other day about a client who, when he was presented with his bill., said “This is perfectly diabolical.” The lawyer very aptly retorted, “ Very well, give the devil his due.” The Government are doing the right thing in this measure. We have in it an opportunity to oil the wheels of justice. I ask honorable senators not to accept the new clause, because it simply means continuing the old costly conservative system that has prevailed up to the present.
– - There is a good old maxim, which forms almost the basic principle of our Constitution, that “ The course of justice must not be delayed.” I fear the new clause - which the Vice-President of the Executive Council assures us could not be adopted because it would be unconstitutional - would, if it could be adopted, have a tendency to delay the course of justice. It voul3 impose another barrier which litigants would have to jump before they could reach finality. Senator St. Ledger advanced, with a great deal of force, an argument which, if not examined carefully, might have considerable weight, to the effect that if the State Full Courts as Courts of Appeals are abolished - although it is not proposed to abolish them, because litigants will have the right to go to them if they choose - the work of the High Court will become so great that business will be congested, and the Court will have to be strengthened in such a way that litigants will get a decision, not from the full strength of the Court, but only from a part of it.- That very same evil, if it is an evil, is likely to exist even if the State Full Courts are retained as Courts of Appeal. People go, to the High Court now either because they want a speedy, final decision or on the score of economy. They may have a further reason in that they feel more confidence in the High Court. Those reasons, except that of economy, would still remain even if we compelled litigants to go to the State Full Courts. As they would continue to have more confidence in the High Court, they would, after sampling the wares of the State Supreme Courts, still desire to get the best goods on the market from the High Court. Consequently, even if the State Full Courts were made compulsory first Courts of Appeal, the business of the High Court would still be as likely to be congested. The only reason why the High Court would have more leisure, as Senator St. Ledger alleged, through the State Full Courts being made compulsory Courts of Appeal, would be because the litigants, some of whom would probably be poor men, would be plucked clean by the time they had gone through the State Full Courts, and would be unable to carry their cases to the High Court. This. Parliament, acting in the interests of the whole of the people who have a right to get justice - first hand and as cheaply as possible, and to have as few obstacles as may be put in the way of getting the decision of the highest Court in the land, has no justification whatever for restricting the right of -litigants to appeal in the most direct manner to that Court. What is the use of this roundabout method of appealing? The only advantage I can see in it is ‘that a litigant has his case discussed from almost every point of view, but after all, it is generally the same counsel that appear for him in all the Courts, and the same arguments are advanced right through. The only difference is that the presiding Judges ‘take varying views, and the view of the last Judge in the highest Court prevails. Why should not a litigant obtain that judgment without the intervention of all the other Courts? I agree with Senator Stewart that it is our business at every opportunity to quicken the course of justice and to make it easy and accessible to everybody. We should be committing a palpable injustice if we forced poor litigants into Courts which they did not want to go to, and so deprived them of the means which are essential to enable them to carry their cases to the highest Court. Owing to the roundabout method hitherto in vogue, a poor man had absolutely no chance, no matter how good his case, against a rich one, because the latter would take the case first to the lowest Court, and then, if he lost, force his opponent step by step from one Court to another until he was absolutely frozen out for want of capital. So the man with the longest purse obtained the verdict, although justice might have been entirely on the other side. Notwithstanding what Senator St. Ledger said about lawyers being willing to help poor clients, it is against the etiquette of the profession for any member of it to. take up a speculative case. No eminent counsel will waste months of his time in studying a brief and appearing for a poor client.
– I have known several eminent counsel to do it.
– The cases are exceedingly rare. One might get the cheap and nasty kind of counsel to do it. Where it was done there must have been an element of speculation about it, because they expected that their client would make it up to them after the case was won.
– Nothing of the kind.
– There is a great deal of make-believe about the lofty and philanthropic motives that animate counsel. The pocket in the back of a barrister’s gown was put there because in the early days a barrister was supposed to work only for the honour and glory of obtaining jus,tice for his client. The barrister, therefore, put that pocket there so that his client could drop the money in without his knowledge; but the pocket remains there until the present day. Of course a lawyer, like any other professional man, is worthy of his pay, and I do not grudge him the highest fee he can get.
– His being a lawyer does not take away his feelings of human sympathy.
– I do not think his sympathies are quite strong enough to altogether overcome his professional in stincts. The legal profession has been graced by some gentlemen who are ornaments to humanity - men of the very highest standing as statesmen and citizens - but there is an enormous number of men in the profession who must live somehow.
– Is this relevant?
– The honorable senator has an easy way of testing the question.
– I am going to withdraw this new clause and move another one.
– As my arguments have been so effective as to induce the honorable senator to withdraw his new clause, there is no need for me to “ flog a dead horse. ‘ ‘
.- I was going to withdraw my proposed new clause about half-an-hour ago, and so I cannot flatter my honorable friends that their eloquence has led me to do so. I quite recognise that it may be attacked on constitutional grounds, but this is a very good illustration of “ the pot calling the kettle black.” Apparently it does not follow, because the Vice-President of the Executive Council can introduce Bills bristling with unconstitutional provisions, that a humble senator like myself can do so. I ask leave to withdraw the amendment, so that I may move another one.
Proposed new clause, by leave, withdrawn.
Senator DOBSON (Tasmania) [4.57I- It is obvious that there are two or three ways of restricting appeals from one Judge of a State Supreme Court to the High Court. I took the most drastic way, but it evidently does not meet with favour from honorable senators. I am, therefore, going to take another way, which will only slightly restrict that right of appeal, and should meet with the approval of the Vice-President of the Executive Council. It certainly should meet with the approval of Senators Givens and Stewart, because it puts a little difficulty in the way of appealing, and by that means lawyers may lose those fees to earn which my honorable friends think is their one object in life. The new clause I propose to move is on the lines of the remarks of a leading barrister, as given in an interview in the Argus yesterday.
– Who was he?
– I do not know.
– Then the Committee is to be influenced by an anonymous individual.
– I am influenced by those remarks, because they suggest a comnonsense way out of the difficulty. I do not think the Vice-President of the Executive Council has quite realized the extent of the difficulty which may arise through giving the High Court too much to do, and the States Supreme Courts toolittle. I was rather pleased to hear the statistics given by the Vice-President of the Executive Council as to the cases which are still awaiting settlement in Melbourne and Sydney. It appears that the report of the High Court being behindhand with its work is exaggerated, but there is no doubt that the Court is getting more work every month, and every one who has any knowledge of the circumstances is predicting the time when the High Court will have too much to do. If Senator Best has not grasped that fact, he is a little behind in his knowledge. I move -
That the following new clause be inserted - “ 7A. After section 35 of the Principal Act the following section is inserted : - ‘ 35A. No appeal shall be brought from the decision of a Judge sitting as a Court of first instance to the High Court without special leave of the High Court.’ “
The Constitution, as interpreted by the High Court in Parkin v. James, provides that a. suitor may appeal direct to the High Court from a Judge of a Supreme Court.I simply desire to provide that he may appeal to the High Court if it grants leave for him to do so. It is provided in the Constitution that the High Court shall have the right to lay down the conditions under which appeals shall be made, and it is perfectly constitutional for us to provide that those appeals shall not be taken unless the High Court gives leave. I do not know that it will very much lessen the number of appeals that go to the High Court.
– If it doesnot, it will, increase the work of the High Court inordinately.
– I do not think that any one who feels aggrieved by the decision of a Supreme Court Judge, and thinks he has achance of getting it upset on appeal to the High Court will have a grievance if he has to ask the High Court for leave to appeal. Many a man launches an appeal when he is smarting under defeat, or because he has the feeling that he is right and must win in the end. In many cases, the High Court will say that there is no ground for appeal, and will not grant leave. In this way my amendment will lessen the amount of work going to the High Court.
– If it does not lessen the number of appeals, it will materially, increase the work of the High Court, because it will have the appeals to hear, plus the applications for the right to appeal.
– It will cut off appeals from litigants who have a “ bee in their bonnet “ as to the righteousness of their cause, and will do good in saving them expense. A leading barrister, interviewed by the Argus, says -
It would probably be found to be quite a sufficient remedy for the present state of affairs if an Act were passed by the Federal Parliament taking away the right of appeal from a single State Judge to the High Court, except by leave of the High Court itself.
My amendment carries out exactly the suggestion made by this leading barrister.
– An anonymous correspondent !
– The honorable senator need not bother about that. The question is whether what he says is commonsense. He goes on -
A careful perusal of the judgment of the High Court in Parkin v. James makes it clear that such legislation would be within the powers of the Federal Parliament. The High Court there held that no implied power to that effect should be read into section 35 of the Judiciary Act, but it seems clear from the judgment that an express power to the same effect would not be held unconstitutional.
It appears that this leading barrister had looked up the Constitution, and the cases bearing upon the question, and he argues it like a man of common-sense. He goes on to say -
All that is required is the addition to section 35 of the Judiciary Act 1903 of some provision to the effect that no appeal should be brought from the decision of a Judge sitting as a Court of first instance without special leave of the High Court. There appears to be nothing therefore to prevent the Federal Parliament making such an amendment under section 35 of the Judiciary Act, when the present Bill for amending that Act is dealt with, and if that is done the High Court could then lay down the conditions upon which alone it would grant special leave to appeal, which no doubt would be only in exceptional circumstances.
When those exceptional circumstances arose, the High Court would grant leave to appeal. It is wise to put some slight restriction on the right of appealing to the High Court. My honorable friend Senator Best does not seem to regard the importance of this matter as being so serious as do barristers and people outside, who know a good deal about it. Here is an opportunity to put the matterright, and I ask my honorable friend to avail himselfofit.
– A similar practice to that recommended by Senator Dobson prevails in regard to some Courts of Appeal in England. In order to save litigants from wasting their money, leave to appeal has to be obtained from certain Courts. That leave is a sine qua non, and it very often has the effect of preventing litigants from wasting their money. We often hear much about lawyers fleecing their clients, and having their pockets in their gowns. But appeals are very often the most fruitful sources of profit to the lawyers engaged in them. The hastiness of litigants is also frequently fruitful in fees. I am sure that honorable senators have often come across persons who have got an idea into their heads that they have a good case. I have known a manto be so strongly convinced that he had an overwhelming case that, when he obtained an opinion about it, and was told that it was not worth considering, he went round the profession obtaining opinion after opinion until he got one that was to his liking; and then he would go on with his case until he had actually impoverished himself and his family. Every lawyer must recognise that it is sometimes an advantage to give a Court of Appeal an opportunity of considering in advance whether a man has a case on which to appeal.
– This amendment would not affect such cases, because the litigant who could not appeal to the High Court could still appeal without leave to the Supreme Court of a State.
– If I understand Senator Dobson’s amendment, it means that a litigant may go to a Judge of first instance, but’ that special leave will have to be obtained before he can go further. The amendment will probably have the effect of enabling him to get an opinion right away that it is of no use giving him leave to appeal because he has no case. My honorable friends in the comer are particularly anxious to obtain cheap and rapid appeals. Senator Dobson’ s amendment deserves commendation from that point of view. The opinion of the barrister published by the Argus bears evidence of having emanated from a lawyer with a thorough understanding of the operations of appeals and the working of the Judiciary Act. I commend it also to the consideration of the Vice-President of the Executive Council.
– In my opinion the Government should not accept Senator Dobson’s amendment. After having been defeated in one attempt to maintain the privileges of the lawyers, he is having another try. Let us look at his proposal. A litigant is defeated before a single Judge of a State and he approaches the High Court. For what purpose ? For leave to appeal directly to the High Court. Senator St. Ledger has told us that such a restriction may prove of great advantage to a litigant, because, if the High Court refuses him permission to appeal, it will be a clear intimation to him that he has a bad case. But my experience in such matters is that, when leave to appeal is asked for, the merits of the case are not gone into at all. If Senator Dobson’s amendment is carried, the position would be this: A litigant would go to the High Court and ask to be permitted to appeal to it directly. That permission would be refused. He would then go to the Full Court of his State, and from the Full Court to the High Court without asking permission. How much better off would he be ? He could get to the High Court in the end in any case, and we could not prevent him. If that be so, why not allow him to go direct to the High Court ?
– There would not be so many costs.
– That weighs with the profession undoubtedly. The only thing certain about the law is its cost. Unless there is further light thrown on the subject I intend to vote against the amendment.
– In opposing the amendment originally submitted by Senator Dobson, I sought to show how the words of the Constitution have been interpreted by the High Court. Senator Dobson now concedes that my contention was sound, and has seen fit to withdraw his first amendment But in the words of one of the members of the Senate, the honorable and learned senator is now seeking “ to get at it by a side wind,” and not in a straightforward way.
– The eminent anonymous barrister is against the VicePresident of the Executive Council.
– I am sorry I have not had the privilege of reading the opinion to which my honorable friend refers. Let me put the exact position before the Committee. Section 7.”. of the Constitution provides that -
The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences.
The section then sets out the tribunals from which appeals can be heard, and goes on to provide -
But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
Parliament, in the exercise of its power to prescribe regulations in regard to these appeals, passed the 35th section of the Judiciary Act of 1903. The object was to impose certain obstacles to the legitimate carrying out of the Constitution where it might be regarded as frivolous or undesirable on the merits of a case, that an appeal should be allowed as of course. It is provided in the section that if the judgment is pronounced in respect of any sum or matter at issue amounting to or above the value of £300 or involves directly or indirectly any claim to property or a civil right of that value, or affects the status of any person under the laws relating to aliens, marriage, divorce, bankruptcy, or insolvency, the appeal shall lie as of course, but taking the particular instance of a judgment in respect of a sum under£300, power is given to go to the High Court and ask for special leave to appeal. It is prescribed by the Constitution that no matter what exceptions or regulations are made by Parliament, nothing is to prevent the power of the High Court on application, to grant special leave to appeal. Senator Dobson contends that by reason of what has recently taken place, additional obstacles should be placed in the way of appeals to the High Court. I have said in reply that there has been no acute congestion of business in the High Court to warrant Parliament moving in that direction at the present time. When that condition of congestion is reached, it will be for us to give full consideration to it. I am not going to say that it would be unconstitutional on our part to pass the present amendment. I believe it is within the competence of Parliament to entertain such a proposal, but I urge that it is not necessary, and is, moreover, against the spirit of the Constitution which established the High Court in order that it should be immediately available for appeals.
– So it is.
– The effect of the amendment will be merely to add an additional obstacle in the expense of litigation, while it will not necessarily have the effect of diminishing the appeals to the High Court.
– I do not think that is so.
– My honorable and learned friend cannot deny that there is a possibility, and even a probability, of that being the case.
– I think that on the whole the effect of the amendment would be to save expense to litigants.
- Senator Dobson must see that if the High Court determine that the spirit of the Constitution’ is that these appeals should go direct to them, they have only to say whenever an application is made to them for leave to appeal, “ Yes, we shall entertain all these appeals,” and then the only effect of the amendment would be to involve the additional expense and trouble of applying in’ the cases referred to for special leave to appeal; I urge that one of the great objects of having the High Court as a court of appeal in our domestic affairs was that it should be immediately available, and that every possible facility should be given to litigants to get to that Court with the least expense and delay. I again urge that the time has not yet arrived when legislation of the kind proposed is necessary, and Senator Dobson must recognise the incompetent character of the patchwork proposal with which he desires to mutilate the Bill.
– The honorable and learned senator has just admitted that it is within our competence to deal with the amendment.
– I admit that it is quite possible to put this patch upon the Constitution, but I am benefiting by advice tendered me by honorable senators on the other side in the course of a recent debate. If Senator Dobson desires to achieve his object, I suggest to him that the more straightforward and better course to adopt would be to seek an amendment of the Constitution at the proper time.
. -One cannot but admire the tenacity with which honorable senators on the other side stick to their work of putting obstacles in the way of litigants, professedly in the interests of the litigants. They are constantly objecting to the adoption of a straight course, and to the exercise by a litigant of his option to go directly to the Court to which he wishes to go to obtain justice. Under existing conditions a litigant can -go to the Full Court of his State if he chooses to do so, but if he thinks it better in his own interests to pass that tribunal and go to another, in which he has more confidence - and that may be his reason for the exercise of his choice in a particular way - why should honorable senators seek to put obstacles in his way? A good deal has been said about the rapacity of lawyers, and like other people, they look after the “interests of the profession thev have adopted. I do not blame them for that, but I say that wherever possible, this Parliament should make it easy for the litigant to reach the tribunal to which he desires to go in the easiest and most inexpensive way. The Vice-President of the Executive Council has aptly tendered to Senator Dobson the advice given to himself, and that is to proceed in a straightforward way by an amendment of the Constitution. The matter has not been made very clear to laymen, because the objection to the Bill in the first instance was that the Government should wait for three years until there was an opportunity to amend the Constitution. It was pointed out in reply that what was required was to conserve time, and not to allow an objectionable system to continue for a number of years. Another argument used against the Bill was that the action of the Government was calculated’ to belittle the States Courts. It seems to me that our object should be to make legal processes as easy as possible for litigants. It is not a question of maintaining or belittling the dignity of the High Court, because it is not provided that the litigant must go to the High Court. Senator Dobson, by his amendment, seeks to compel the litigant to appeal from an inferior Court to the Full Court, and if he wishes to go to the High Court to first get permission to do so by an application for special leave. Senator Dobson is doing all he possibly can to prevent litigation being made as cheap and speedy as possible.
– My object is quite the contrary.
– The interjection reminds me of the drunkard who is always removing temptation out of the other fellow’s way by pouring the liquor down his own throat. I know that the more people are induced to appeal from one Court to another the greater will be the expense. It is only a man with a long purse who is able to follow a case from Court to Court. It is all very well for some honorable senators to talk of the philanthropy of the members of the legal profession ; but I do not think that many lawyers would db much work of that kind without getting some moneY- It is the man with large means who is usually about to wear out a man with a very short purse. Honorable senators on the other side then change their argument, and say that unless the amendment be adopted there will be less work for the Full Courts of the States, and that, therefore, we are belittling that institution. I submit that we are not belittling the Full Courts of the States when we are making it possible for persons to get justice cheaply and speedily. We should not compel any persons to go to the Full Court merely with a view to sustain its dignity. The duty, as well as the purpose of Parliament, at all times, is to enable persons to get justice as speedily and cheaply as possible. Honorable senators on the other side are also greatly concerned about the over-working of the High Court. The Minister has pointed out that wherever it has been possible, the litigants as a rule have preferred to appeal .to that body ; they do not wish to stop at the half-way house. If that is the frame of mind of most persons, surely we should give them the opportunity to get their legal disputes settled by the High Court. The Bill will not prevent any person from going to the Full Court of his State. It merely gives to litigants the option of going to either the Full Court or the High Court. But honorable senators on the other side contend that we ought not to give that right. In the fust instance, thev tried to compel a litigant to go to the State Court, and now they say, “ If we cannot compel a litigant to go to the State Court, he must not go to the High Court until he gets special leave therefrom.” They profess to be great: concerned about the addition to the work of the High Court. If persons prefer to appeal to that tribunal, even though it may involve the appointment of more Justices, the Parliament should see that the Bench should always be adequately equipped to insure speedy justice. But, so far, we have had no evidence that there is too much work for the Justices of the High Court to do. The Minister has stated that there are remanets, and that the Justices have been doing their work both well and expeditiously. Practically all the cases which have been initiated have been dealt with. What, then, is the use of raising a bogy ? When the people say that they have so much confidence in the High Court that they prefer to pass by the Full Court of their State, and to go to the highest tribunal in the land for justice, then we shall have to provide a sufficientnumber of Justices to do the work.
– It seems to me that we are having the same arguments’ advanced over and over again. I intended to support the amendment, on the ground which Senator Turley assigned for opposing it, and that is to help the poor manand prevent expense. If the High Court were permitted to say that it was satisfied with the decision of a single Judge, and to refuse leave to appeal, it would save money to the poor man. We should not be taking from him any right which he may have to go to the Full Court of his State if he so desires. I really cannot understand why Senator Turley should say that the effect of the amendment would be to increase the expense.
– It proposes to take away the right to go to the High Court, because the Full Court could refuse him permission to go.
– The amendment does not deal with that at all. It simply empowers the High Court to say that from the decision of a single Judge of a Supreme Court there shall be no appeal. Would not that provision, if adopted, save expense to the poor man?
– Anywhere a man has the right to appeal to the Full Court of his State.
Question - That the proposed new clause be inserted - put. The Committee divided.
Majority … … 10
Bill reported without amendment; report adopted.
In Committee (Consideration resumed from 24th July, vide page 878).
Clause 2 -
The taxation by a State, in common with other salaries earned within the State, of -
the official salaries of officers of the Commonwealth earned in the State after the commencement of this Act ; and
the allowances, paid after the commencement of this Act, of Members of the Parliament elected in the State, shall not, if the taxation is not at a higher rate or to a greater extent than is imposed on other salaries of the same amount earned in the State, be deemed -
to be an interference with the exercise of any power of the Commonwealth, or
to be inconsistent with any Act by or in pursuance of which the salary is fixed or made payable.
– I move -
That after the word “ Commonwealth,” line 3, the words “ residing in the State “ be inserted.
There are a number of peripatetic officers whose duty it is to go about from one State to another, and the object of the amendment is to prevent them, as far as possible, from being charged income tax in the several States to which their duties from time to time take them. The words “ residing in the State “ must necessarily be taken to mean the State in which they have their domicile.
– Then they will all go to live in a State where there is no income tax.
– The officer must reside in the State in which he has his duty to discharge. I think honorable senators will see that the object of the amendment is reasonable, based as it is upon the same principle as appears in paragraph b.
Senator Col. NEILD (New South Wales) [5.46]. - At this stage, as there was no debate on the second reading, I wish to draw attention to the fact that this clause, and the Bill as a whole, which is presumably an endeavour to get over existing difficulties in relation to the payment of income tax by Commonwealth officials, makes no effort whatever to deal with those difficulties. It only provides for something to happen in the future. So far as regards salaries paid up to the time the Bill becomes law, if it ever does become law, every person against whom any income tax commissioner chooses to proceed to recover income tax will find himself in exactly the same position as at present. He will be the sport of the High Court on the one hand and the Privy Council on the other. There is no attempt in the clause or the Bill to guide us as to our tribulations in the past.
– They are all past.
– They are not past. They are most eminently exigent difficulties and tribulations for some people. I know the Government are dealing with a difficult question. The whole of this matter is practically sub judice, and yet we are actually legislating upon it. The difficulty is paramount, and I would impress upon the Vice-President of the Executive Council that there is nothing in the clause or in the rest of the Bill to give relief to those persons who have been subjected to difficulties or to clear up the muddle that exists, or is alleged to exist. If we pass the Bill in its present form, it will still be open to the commissioners of taxes to proceed against every member of the Legislature, and every public official to recover pains and penalties for not making returns of income upon which thev claim taxation, and they will have a very good excuse for doing so. They will say, “ The Federal Parliament has dealt with this question, and left it to us to recover for the past. The Parliament has actually enacted that there shall be payment for the future, and therefore it is necessarily left . to us, the commissioners of taxes, to recover what is due up to the date of the passage of the Act.” Every one affected by this trouble will be left liable to claims for income tax up to that time, and, what is much worse, to legal process for not having made returns under the authority of the High Court, which- is recognised ‘ as our constitutional authority. I suppose that since the High Court gave -its decision no one has
L33l- 2 made returns. That is no answer to suits for heavy penalties. I think, in some cases, the liability runs to hundreds of pounds. We , ourselves may be mulct in large sums for not having made returns. The Vice-President of the Executive Council said this afternoon, referring to a proposed amendment, that it was not a matter to be lightly dealt with, and I think he will admit that the proposition I am submitting is not to be lightly dealt with either. I ask ‘him to inform the Committee whether he proposes to introduce any amendment or new clause to safeguard those who have honestly and legitimately acted under the decision of the High Court in the cases referred to.
– I think .Senator Neild has really nothing substantial to fear in the direction he has mentioned. I would point out to him first of all, the grave and serious difficulty there always is in attempting retrospective legislation. It is one of the most pernicious things we can do. We never resort to retrospective legislation unless some grave and important consideration drives us to it. The difficulties which the honorable senator apprehends are really not serious. Summonses were issued, immediately after the Privy ‘Council decision became known, against a number of persons to recover income tax. Then the cases of the Commissioner of Taxes of New South Wales v. Baxter, and Flint v. Webb, ultimately went to the High Court, which re-affirmed its former decision, and relieved those people from taxation. If an action was instituted against Senator Neild in the State Court of Victoria, for instance, it would, of course, be the duty of that Court, which claims the Privy Council to be the superior Court, to follow the Privy Council’s decision, as it has in other cases. The honorable senator ‘would thereupon appeal to the High Court, and would at once be relieved from the burden of taxation.
– Who is going to pay my expenses ?
– A large number of cases were instituted, but as soon as the High Court re-affirmed its former decision in the two cases which I have quoted, all the others were immediately abandoned, and it is not likely that any Commissioner of Taxes will run the risk of costs, as he necessarily would, by attempting any further proceedings of the kind. First of all, we must avoid retrospective legislation, which I call pernicious legislation and, secondly, there is no substance in the tears Senator Neild seems to entertain. In the circumstances, I would urge on the honroable senator that it is not necessary to cover the contingencies he has suggested.
– What do the Government propose to do about the defaulters - the men who ought to pay ?
– That is a matter for the Commissioner of Taxes.
– The Vice-President of the Executive Council has explained that the words “ residing in the, State, 1” are meant to meet the cases of peripatetic officers. A better expression would be “ domiciled in the State,” because cases are known where public officers have resided in one State and carried on their duties in the next State, returning at week-ends to their homes on the other side of the border.
– An officer in “that case only pays income tax to the State where he resides.
Amendment agreed to.
.- I cannot say that I am satisfied with the remarks of the Vice-President of the Executive Council as regards the tax owing in the past. Some attempt should be made in this measure to get in those arrears. It seems unfair to a very large number of officers throughout the Commonwealth who have loyally paid their tax, not because they were forced to, but because they believed it was their duty, as they were receiving the benefits of education for their children, protection for their lives and property, and all the other advantages which the State Government gives. They paid because they regarded themselves, not as Federal officers, but as State citizens, who ought to pay obedience to the State laws, and pay their fair share of the State clues. It has not been made sufficiently clear to me that this law cannot be made retrospective. As a layman - and I am prepared to receive instruction on the matter - it seems to me that if the Bill can be made prospective, it can be made retrospective as well. Otherwise we shall do a great injustice by letting a number of public servants off, whilst others have paid their taxes. To test the matter, I move - -
That after the word “State,” line 4, the words “ before and “ be inserted.
Senator BEST (Victoria- Vice-President be very glad indeed to carry out the object which my honorable friend Senator McColl has in view if I thought that the amendment would not have the effect of landing us in more serious trouble. But, after giving consideration to the matter, I have come to the conclusion that if we provide 5 definitely as regards the future, we shall do well. Of course, many public servants have paid income tax, as I paid mine in the State of Victoria. But some thought, after the High Court had given judgment, that they were not called upon to pay, and the law at present is, according to the High Court, that they are exempt.
– lt is not the highest Court in the Empire.
– At any rate, numbers of officers considered that the judgment of the High Court relieved them from taxation.
– It did not give them any moral relief.
– I urge my honorable friend to be content with providing for the future. Without going into all the difficulties that will inevitably arise if we attempt to deal retrospectively with this complicated matter, I cannot advise the Committee to accept the amendment.
– This appears to me to be .a very important point, and I should like to hear some debate about it. I am inclined to support Senator McColl’s amendment, because, after all the troubles that we have had, it would be a great error to allow some officers to escape payment of arrears of taxation whilst others have paid. Is there no clear way out of the difficulty? I am inclined to think that there is not without an amendment of the Constitution, or unless the High Court gets rid of its last judgment. Is it a fact that New South Wales and Victoria are combining in one action in which the income tax matter will be again brought before the Privy Council ?
– I believe they are.
– I am afraid that the validity of this Bill will be questioned before long, and that it will be declared ultra vires. But are we really going to provide that, whilst some officers have paid their income tax for the last four or five years, others shal1 escape scot free ?
– This Bill clearly provides for the future.
– It ought to provide for the past as well. If I understand him aright, in mw honorable friend’s able speech in introducing the Bill, he showed that people who have privileges can waive them. I take it that if we can legislate to make our officers liable to pay income tax in the future, we can also enable taxes to be collected from them on account of past years. I wish to make no distinction between those who have the making of the laws and our fellow citizens outside Parliament. I do mot wish it to be said that the members of the Federal Parliament have taken advantage of their position to legislate in their own favour, and, after our efforts to put the matter right, I am anxious that we shall not stand before the world as a privileged class, who are trying under the shelter of legislation to escape payment of taxes which our fellow citizens have paid.
– I do not think that the last position put by Senator Dobson is involved in this Bill. What would he do with citizens who have actually offered to pay income tax, which has been refused by the States ? The Bill does not merely relate to members of the Federal Parliament. It is neither for their benefit nor their detriment. It applies to the Public Service generally, and its object is to enable the tax-gatherer to collect income tax from them in the future. The High Court has determined that in the past it was unconstitutional to collect the tax from Commonwealth servants. Now the suggestion is that we should make our legislation retrospective. I remember occasions when attempts were made to make legislation retrospective, and loud cries were raised against it by the very senator who is now advocatingretrospective legislation. I refer to Senator Dobson. But it is difficult to fathom the windings of such a mind as his. I think that we shall have our work cut out to sustain the validity of the Bill we are passing, and if we legislate for the future we may very well allow the past to stand.
.- I voted against the second reading of the Bill, because I regarded it as a partial measure. I do not think that there ought to be a privileged class in theCommonwealth. This Bill deals with the. question at issue in a half-hearted, partial manner. I do not dispute that the lawyers whom we have heard on the question know more about the constitutional issues than I do, and we are told by some of them that this Bill will be knocked on the head by the Court. If so, we are wasting our time.
I agree with what Senator McGregor urged, that it would have been wise to postpone the measure and take a referendum of the people as to an alteration of the Constitution. If we pass the Bill in its present form, those who have resisted the law will go scot free, whilst those who have paid their income tax will be penalized. The Bill practically relieves those who have not met their liability. That is not a proper thing to do. If we are going to do anything, let us provide that all the people, members of Parliament and public servants of the Commonwealth, in common with ordinary citizens, shall pay alike. The amendment proposed by Senator McColl would improve the Bill. Are we going to protect those who have disobeyed the law?
– The honorable senator is assuming that it was the law.
– I am. Will the Minister contend that those who have paid their income tax should have the money refunded to them?
– That is what they have to look out for.
– They were told by the States Supreme Court that they ought to pay, and if the Judges do not know the law, I do not know who should. If the Minister can assure us that the money paid by some public servants will be refunded to them, it will be a fair deal. Otherwise the Bill will be unfair. The fear has been expressed that even if the Bill be passed in its present form, it will be upset on appeal by the High Court, on the ground that it is unconstitutional. The High Court, which is the highest Court in the land, and the final Court of Appeal, has already decided that the imposition of the tax was illegal so far as Federal public servants are concerned.
– This Parliament is the highest Court in the land.
– I very much doubt it. Last night I heard an honorable senator ask another with respect to the measure under consideration, “ Will it down the Privy Council?” and when the answer was, “Yes,” he said, “Well, I shall vote for it on that ground.” When a member of the Senate will adopt such a course as that how can. this Parliament be called the highest Court in the land? The High Court has the duty of interpreting the laws we make, and of interpreting the Constitution, and is, therefore, above this Parliament. We might pass a law to-day, and the High Court might to-morrow decide that it is ultra vires of the Constitution, and then all our trouble in passing the law would have been in vain. The High Court, as the final arbiter, has already decided that the money taken from those who have paid the tax was taken from them illegally. Will the Vice-President of the Executive Council say that under this Bill, if passed, in its present form, the money thus paid will be refunded by the Commonwealth, or by the States, to those who have paid it?
– That must be left to the States Governments.
– The States Governments, like every other Government of which I have heard, will very likely keep any money which has been paid to them. I have never known a Government disgorge money illegally obtained, unless it was compelled to do so, and I suppose those who have paid these taxes must suffer the loss. I shall oppose the clause as I have already opposed the Bill, and shall support the amendment.
Senator Col. NEILD (New South Wales) [6.18]. - I am disposed to protest against the utterances of honorable senators who have declaimed that those who have not paid these taxes in the past are dishonest.
– The amendment would mulct them in serious penalties.
– I cannot understand how there can be any immorality in obeying the law as laid down by the highest judicial authority in the land. It ill becomes those who have had no possible connexion with these troubles in the past to allege that members of this Parliament and other alleged taxpayers, who have not paid income tax, have done something unlawful and dishonorable. That was the tenor of one or two speeches which have been made from this side of the chamber, and I protest against such twaddle. I suggest that there is a way of overcoming Senator Savers’ troubles about those who have paid. There might be some trouble in dealing with those who have not paid, and have since deceased. I do not know whether Senator Sayers would consider it honorable to pursue the estates of deceased persons to recover the amount of taxation alleged to be owing by them.
– There might be some difficulty in serving the summonses.
– There should not be much difficulty in serving the summonses on some of them if there is any foundation for the popular idea concerning tax gatherers. Apart from badinage, there is a way in which Senator Sayers and those who hold similar views might legislate in order to recover taxes which have been paid. It might be provided by an amendment of this Bill that persons paying taxes under it should be entitled to take credit for the amounts they have paid in the past. I believe in being fair all round, and my suggestion would provide a means by which those who have paid these taxes under an apprehension of liability might, under this Bill, obtain a set-off for the payments they have made.
– The honorable senator is going against the wisdom of Solomon, who said that the fool should suffer for his folly. Why did they pay ?
– I was not referring to Senator McGregor, and had not the honorable senator in my mind. The suggestion I make would be a means of recovering the amounts which have been paid in income tax by some persons in good faith. I had a little correspondence with the Crown Solicitor’s Department in Victoria, and that official formally withdrew his claim against me on the ground that there is in that State an exemption, I believe up to£150, of income, and the payment for my attendance at the Senate would not cover the proportion of my small revenue from the Commonwealth represented by the amount exempted from taxation. To put it in another way, assuming that my allowance was £1 per day, it had not been necessary for me in the performance of my duties to attend the Senate in Victoria for 150 -days during the particular year under discussion, for the reason that the Senate did not meet so many days in that year. Consequently, the Crown Solicitor formally withdrew his claim. Honorable senators who have spoken of those who have failed? to discharge their duties in the payment of income tax will recognise that in this connexion I cannot be charged with laxity, and I present a case as sound as it is possible for any one to present. I spoke to the Chief Commissioner of Taxes in New South Wales about the matter, and he told me that he was making no demand upon any representative of that State. No such demand has ever been made in New South Wales, and I believe that in some cases where members of the Federal
Parliament residing in New South Wales “included the amount of their allowances from- the Commonwealth in their taxation schedules, it was struck out subsequently in the office of the Commissioner of Taxes. In all the circumstances, it is very unreasonable to suggest that those who have not paid income tax have been guilty of any -dereliction of duty.
Sitting suspended from 6.27 to 7.4.5 p.m.
-45]- - I move -
That the Bill be now read a second time.
I feel that a very great responsibility rests upon a private member of a legislative chamber who proposes an important alteration in legal procedure. But the question of criminal appeals was dealt with by the Senate last session with* so much courtesy to myself in the matter of leave granted that, there being no time to proceed further in that session, I felt emboldened to carry out my intention, and with the leave of the Senate, again happily obtained, to $>ring forward for its consideration proposals which, while novel, are not without the highest British precedent, and are of a character which I hope will commend themselves to the good-will of the Chamber and another place. I know that in some quarters exception is taken to a private member, particularly a layman, handling a question of this character. But, in New South Wales it has been my good fortune to receive from both Houses not only encouragement, but wide indorsement of various proposals involving important reforms, and as you. sir, are aware, some of the measures drawn by myself, or drawn by others and introduced by me, are on the statute-book. They have remained in full working order for many a long year without any proposal being made from any quarter to amend them. May I, in selfdefencem advance, so to speak - point out that in a parliamentary sense I am the author of the well-known Divorce Extension Act of New South Wales.
– Some persons say that it is a doubtful honour.
– I am not referring to the measure as an honour, but as a. ^precedent.
– Does it contain anything about the marriage tie ?
– I hope that when I am trying, under a physical difficulty, to address the Chamber, my honorable and volatile friend will allow me to pursue my course with that kindness which is so distinguishing a trait of his character. That measure, whether it be good or bad, was adopted by the . Parliament of Victoria at the instance of a private member, the late Hon. William Shiels. In those two great States of the Commonwealth we had one of the most important measures of legislation passed for many years, in each instance passed, so far as parliamentary conduct was concerned, by a private member. I might refer to one or two others. Two measures which have utterly stamped out in New South Wales the infamy of baby-farming were drawn by me and passed at my instance. Of those, it may be said that they contain an authority which perhaps is unique in colonial legislation, in’ that they give the right of entry without warrant where there is reason to suppose that any child is suffering harm, bodily or mentally.
– Is not that an interference with private enterprise?
– I do not know that it is. If my honorable friend deems baby-farming1 a private enterprise, I can only say that those two measures have very seriously interfered with private enterprise. I might mention another measure of a somewhat similar character, which, although it passed through the House of which I was a member, did not get through the Upper House, and which, after I had left the State Parliament for a higher sphere, was taken up by a private member, and passed into law. I refer to a Bill that authorizes the legitimatization of children whose parents subsequently intermarry. I have mentioned those measures - there are others which I might mention, but it is needless - by way of self-defence in advance to show that if I am taking up here an important question which might be considered a Tittle out of a layman’s line, I am doing nothing which I have not done with acceptance, not only to the Parliament of which I was a member for many years, but also to the whole community. Therefore, I hope I may be relieved of any imputation of rushing in where angels fear to tread. The Bill I now submit for second reading has been circulated for a fortnight. I do not know that it is necessary to go into its provisions at great length or in great detail. Perhaps the course I had better follow will be to give a very short reference to the several efforts which have been made in the old country to provide for appeals in criminal cases.
– Is this taken from the Bill now before the House of Commons?
– That is just exactly what it is.
– From the new Bill or the Pill which was before the House of Lords fast year?
– If my honorable friend will let me tell my story in my own way it will, perhaps, save me from going over the ground twice. Briefly described, it is the Bill of the present AttorneyGeneral and Mr. Secretary Gladstone.
– The honorable senator has not given the marginal references.
– I have given about ten times as many marginal references as are given in the English Bill, because I thought that that would be more convenient. I do not believe that the marginal references in the English Bill will average one to a page. Perhaps it will be convenient if I point out one or two historical facts as leading up to the present position of affairs before the Imperial Parliament. It will not be necessary for me, I think, to go back further than 1879, when there was a report by a Council or Committee of Judges, consisting of Lord Blackburn, Mr. Justice Lush, and two other experienced Judges, who recommended an appeal on questions of fact and an appeal against a verdict of the jury, with the qualification that it should be with the leave of the Court or Judge. That recommendation will be found in vol. 154 of the Imperial Hansard. at page 1002. In the following year a Royal Commission recommended appeals by leave of the Court of Appeal or a Judge, and my authority for making that statement is a speech made bv the Lord Chancellor in the House of Lords last year, and reported on page 1094 of the Imperial Hansard for that year. In 1883, a Committee of the House of Commons made exactly the same recommendations, and, later on, the Association of Chairmen of Quarter Sessions - a body which has been in existence for upwards of forty years - indorsed them.. I am sure that I shall be forgiven if I make a brief quotation from a letter written to the Times by so- eminent a man as the late Lord
Esher. It seems that something prevented his presence at a meeting of the Council’ or Committee of Judges, and, therefore, he wrote a letter which appeared in the Times, and in which he said -
The appeal should be as much as possible on law, facts, and sentences. The Judges should be bound in case of conviction and sentence of death at any inconvenience to business to attend’ in a Court within seven days after any such appeal.
There are those who, perhaps not unreasonably, think that appeals on matters of fact should not be allowed, but, going back even to the seventies, we find a recommendation of appeals, not only on law, but on fact and on the sentence imposed.
– But most of the writers say that the appeal on matters of fact should be most carefully safeguarded, and some of them object to it.
– I am quite aware of that, and I hope that .1 shall be able to show that I am following the Lords and the Commons of England. There was no division in either Chamber, except one, in the Commons, which was taken under the influence of a sort of interlocutory motion, and in which only forty-three members voted against the Bill, and 197 for it, the majority numbering 154. That is the only division that has taken place on the question in either Chamber of the British Legislature during the last two years. I admit that there have been speeches made against appeals on questions of fact. Nevertheless, various authorities have recommended appeals on fact as well as on law. I would remind honorable senators at this stage how the law stands to-day regarding criminal appeals. Of course, there are appeals in criminal matters to-day, but they only lie at the present time in respect of points of law reserved at the trial, and it is competent for a Judge to refuse to reserve ns point of law. A refusal of that kind has sometimes led to most deplorable consequences.
– It is not the law in Queensland. The Judge must take the point and reserve it.
– Apparently it is. the law in England, and I believe it is in New South Wales. Unhappily, I am riot acquainted with the procedure in all the States. I need only quote one celebrated1 case, which occurred a few years ago in England, in which an attempt was made to redress a grievous wrong, brought about by the refusal of a Judge to reserve a point of law. That was the historical Beck case, in which the Imperial Government had to PaY thousands of pounds, and then did not give proper compensation to a grossly ill-used man. Later still, even the conservative Balfour Government introduced a Bill to extend the law of criminal appeals. I have not a copy of that Bill with me, and I only gather its purpose from the debates, but it was clearly intended to do what this Bill proposes to do with reference to appeals on questions of law. It will not be necessary under the English Bill or under this one, if it becomes law, for points of law to be reserved at the trial at all. Under the English Bill, a period of ten days is allowed after conviction during which notice of appeal on a point of law may be given. I propose to make the period in Australia fourteen days, regarding that as a very reasonable time in view of the vast distances to be covered in Australia. The time may be extended indefinitely by permission of the Court of Appeal. On the next ground of appeal - the question of fact - the Bill of the Lords of last year and the Bill of the Commons of this year are alike, and I have followed them in drafting this measure. I provide that appeals on questions of fact can only be made by leave of the Court that is to hear the appeal, which, in Australia, will be the High Court. There can, therefore, be no appeal or tampering with a sentence on frivolous grounds. There must be a prima facie case made out for the appeal, or the Court will not allow it to be lodged. There is, therefore, the most ample security that the time of the Court will not be frittered away, and the imposition of sentence delayed, without some rational ground. There is the further question of mixed law and fact as a ground of appeal. It is proposed in all three Bills - the Bill of the Commons, the Bill of the Lords, and this one - that appeals on the ground of mixed law and fact can only be made with the leave of the Court, and the same applies to appeals against sentences. There can be no appeal against a sentence if it is one definitely fixed by Statute, but in other cases there is the right of appeal with “the leave of a Court. That, however, may be a boomerang blessing, because all three Bills provide that it shall be in the power of the Court of Appeal to increase as well as diminish a sentence. If that Court thinks the sentence insufficient it may increase it, just as it may diminish it on good grounds shown. Here, again, is a bulwark against frivolous or undesirable appeals, because no man is likely, unless he has really a sound case, and feels himself labouring under an eminent wrong, to run the risk of having a sentence increased by appealing needlessly against it. The Bill in the House of Lords was introduced, and its second reading was moved, by no less a personage than the Lord Chancellor. It was supported by some of the ablest lawyers in that historic Chamber. Its contents are imported without exception into the Bill of the Commons, which, however, contains many additional provisions, such as machinery clauses to explain and enact adequately what the functions of the Legislature are, not leaving the matter too indefinitely to be dealt with by rules of court. Of course, those Bills give the fullest authority to the Court of Appeal to frame and adopt the rules of court necessary for carrying into effect the wishes of the Legislature. The two English Bills omitted one rather important matter. Probably it was intended to be dealt with by rules of court,, but those might have been in the opposite direction to what the Legislature intended, and therefore I have inserted the following provision, which will be found in clause 45 -
In any appeal or other proceeding under this Act security shall not be required to be given by an appellant.
Under the British Bills provision is made that no costs shall be claimed by either side with reference to appeals, and it seemed to me that it would tend to the denial of justice if the Judges should devise a rule of court requiring the same kind of security in criminal appeals as is necessary in civil cases. For an appeal in a civil case to the Full Court of a State it is quite common to require a deposit of fifty pounds, sometimes more, sometimes less; but that security is required chiefly for the purpose of meeting costs which may possibly be given against the appellant. As in none of these Bills is it proposed that costs shall be given or claimed in connexion with an appeal, there “does not appear to me to be any justification for requiring security, and, therefore, I hav.e inserted that clause to make it impossible for any rule of court to require security to be given in a criminal appeal. To show honorable senators how slow is the operation of legal reform, and yet how unconsciously we grow accustomed to what are deemed most dangerous novelties, I may mention that it is only during the last fifty years or thereabouts that plaintiffs and defendants in civil actions in England- have been allowed to give evidence on their own behalf. Yet when that commonplace proposal was brought forward - and we stand aghast at the thought that it should ever have been necessary to advocate its adoption, because it must appeal to every one’s sense of justice that no one -can state his case more correctly in the vast majority of instances than the man who makes a claim or the man who defends himself against it - it was looked upon as an innovation even more dangerous than criminal appeals such as are now proposed appeared to any speaker in the British Parliament. After pointing out the salient features of this Bill, I propose to read extracts from the remarks of some of the most distinguished lawyers in the British Parliament on proposals which I have simply copied.
– Does the honorable senator provide for appeals from Courts of summary jurisdiction?
– The matter is one which is absolutely covered by section 73 of the Constitution.
– The honorable senator cuts it down to indictable offences?
– I think so, and also to coroners inquisitions.
– That would include appeals from District Courts direct to the High Court ?
– That would be so, I think. I doubt whether it would be possible for the Federal Parliament to legislate except in accordance with section 73 of the Constitution in appellate matters. I light-heartedly started to adopt the two English Bills in the form in which I found them. They proposed to set up an entirely new Court of Appeal to consist of Judges of the High Court of England. Of course, it occurred to me that in Australia the appellate powers of the High Court are defined by the Constitution. I do not suppose that it is within the power of the Commonwealth to confer the same appellate powers on any other Court, because the Constitution provides the Court that is to possess those powers. Therefore, I slightly altered the first clause or two so as to make the measure now submitted practically an extension of the jurisdiction of the High Court-not’ ari extension of authority, but rather, if I may so express it, an extension of the defining of authority. There is no : proposal in the Bill now before the Chamber for the High Court to exercise onesolitary atom of power more than the Constitution has conferred upon it. But it did not appear to me, and does not appear to me now, that this Legislature could set up another Court of equal powers to theHigh Court; because we have no warrant” in the Constitution for doing anything of the kind. Therefore I considered that, asthe High Court is a Court of criminal appeal at the present time in reference topoints of law, and as such has dealt with matters in certain very well-known cases,.the simplest and most efficacious way of achieving the end in view was to refer criminal appeals such as it is desired to deal with, to the High Court as a High. Court of Criminal Appeal.
– The honorable senator provides for appeals from the High? Court to the High Court. How is that: possible ?
– It is possible,, because the High Court is a Court of original jurisdiction, and is empowered by the Judiciary Act to try offences against the laws of the Commonwealth. That is to say, a single Judge of the High Court, sitting with or without a jury, may try a prisoner for a crime. Therefore, there would be the same right of appeal from a sentence or a conviction by a Judge of the High Court, as there would be from the Court of a State. That is the reason for the phraseto which my honorable friend draws attention. Though the measure seems to be of some little length, I am glad to be able-; to say that it is shorter by about fiveclauses than the English Bill was. I found” some clauses in that Bill which are not necessary here. For instance, there was a clause dealing with cases of accused persons who are entitled to claim privilege of peerage. I do not think that it is necessary for us to pass a clause with reference to privilege of peerage in the Commonwealth. There are really only three varia-tions between the Commons Bill and the measure that I submit. One of those variations is as to a period of fourteen days within which an appeal can be entered instead of ten days. Another is as to the requirement of security, and the third is that a little more licence is given in the making of appeals in capital cases. In the Commons Bill there could be no appeal in such a case as the Maybrick case. There could be no appeal” after thelapse of ten days. Now, if a person has; failed to appeal, andhas been executed - well, there is an end of the matter ! But it does appear to me that if the convicted person had not been executed, and there was sufficient doubt in the minds of the Executive to change the capital sentence to one of lesser degree, there would possibly be features in the case to warrant its reconsideration in view of information subsequently obtained. I see no particular virtue in the proposal to limit theright of appeal in the case of one sentence as against another. For instance, if a man has been condemned to death for a capital offence, and that sentence has been commuted to, say, fifteen years’ imprisonment, why should not the same rights of appeal pertain to him as are given to a man who has committed a lesser crime but who has received just as severe a sentence, or, say, a sentence only one-half or one-third as severe? The whole object of the Bill that I Have the honour to submit is, in the language of the English measure, to afford substantial justice. I suppose that honorable senators have read the Bill through, and perhaps it would be better for me to answer questions, if any are put, than wearisomely to go through it in detail and explain its effect.
– The honorable senator might as well explain the clauses which are technical.
– I will run through them briefly. It will be noticed that the Bill, following the drafting of the Judiciary Act, is divided into five parts. The first part is preliminary, and consists of only a couple of clauses - a short title and an interpretation clause.
– The interpretation of “ sentence” seems rather muddled.
– It may be.
– Is it the English in terpretation ? It struck me as being rather confused.
– It struck me so too; but I did not consider that I could do better in a matter of legal phraseology than follow the Bill introduced into the Imperial Parliament.
– But the honorable senator cannot expect us to follow everything introduced into the Imperial Parliament without explanation.
– You, Mr. President, would rule me out of Order if I attempted to give a detailed explanation of each clause, and I am sure that my honorable friend, Senator Guthrie, will not accuse me of discourtesy if I skim through the Bill as briefly as possible. Part II. refers to the jurisdiction of the High Court, and it will be seen that the third clause provides that, in addition to the powers conferred by the Judiciary Act of 1903-.
The High Court shall have jurisdiction to hear and determine appeals under this Act.
That is my own phraseology, and I think it is clear enough. I do not suppose that Senator Guthrie will require an explanation of its meaning. The. next clause deals with the constitution of the Appeal Court, and provides that there must always be an uneven number of Judges sitting to hear such appeals, and that the number shall not be less than three. The decision is to be by a majority, and is to be final. There are not to be here, as there are in the United States, unlimited appeals so long as a man can fee counsel. He cannot carry his appeal from one Court to another. He has his one effort - to seek in open Court the justice that he may now attempt to obtain by backstair influence in the Ministerial chamber. Any man who has been in parliamentary life for any length of time must know full well how continually members of Parliament are approached for their influence to operate upon the mind of the Minister of the day to secure reductions of sentences. I suppose that no day passes in Australia when such appeals are not made to the Minister charged with the responsibility of controlling the Department of Justice. There must be the most harrowing applications made to him; and you, sir, whose presence as the presiding officer of the Senate is so acceptable to us all, have, in your past experience been, to my certain knowledge - not that you have told me yourself ; you have never given away the secrets of your office - approached scores, and perhaps hundreds of times with a view of securing reduction of sentences. Indeed, I know of a case where a Ministry was turned out of office on account of a Minister’s action in connexion with a celebrated criminal. We have had such cases in New South Wales. Possibly the experience of other States may be different, but in New South Wales there is not the slightest doubt that personal appeals, the appeals of Government supporters, and the appeals of possible opponents, are frequently being made to Ministers - not only to the Minister of Justice, but to all the other Ministers who may influence their colleagues - to bring about releases or reductions of sentences. This
Bill seeks to put an end to that sort of thing - an absolute end to it. Because, if the Minister is approached with an appeal for leniency, he is empowered by this Bill to hand the matter over to the Court. He can wash his hands of it; and I am sure that I am addressing a sympathetic audience whenI say that it is infinitely better that justice should be done in open Court, that investigation and representation should take place and be made in open Court, and not in the Minister’s room with the door shut.
– But the honorable senator does not propose to do away with the prerogative of mercy?
– No; that is absolutely untouched.
– That is exercised on the advice of the Executive.
– Yes, but honorable senators will see that the Minister would have in his hands a resource that he does not possess to-day. If he were approached in such a matter his reply would be to hand the matter over for investigation by men trained in the administration of the law.
– He has the advantage of a report from the Judges now.
– We recognise in our civil jurisdiction that an appeal from the Judge who tried a case to the same Judge sitting in appellate jurisdiction is something like an appeal from “ Phillip drunk to Phillip sober.” In New South Wales years ago a measure was passed preventing a Judge who had tried a case from sitting and hearing an appeal against the verdict and judgment in that case. I am aware that the practice to-day is for the Minister to call for a report from the Judge who tried the case, the only person who, perhaps, feels any professional ground for maintaining the attitude he took up at the trial. I refer honorable senators to the Beck case as one involving a notorious misdirection by a Judge. I quote from some of the most eminent law lords in England when I say that there was a deplorable miscarriage of justice in that case. If we could always depend upon having a trained and experienced legal mind in the person of the Minister in charge of the administration of Justice, there might be less need for the present proposal. It has been admitted that amongst the Secretaries of State for the Home Department who are charged with the administration of justice in the old country, there have been many eminent men competent to deal with questions of law and fact, and to properly appreciate and act upon the reports of Judges. But in the formation of Ministries we do not always find men in the positions for which they are best suited. There are questions of seniority, and men’s wishes and feelings tobe taken into consideration, and political exigencies have also their part in the allotment of portfolios. We can never depend that the right man will always be in the right place, and it might happen that amongst the members of a Ministry there would not be a single one capable of discharging the special duties to which I refer. These duties should, I think, be undertaken by men whose whole energies are devoted to the proper carrying out of the eminently important work which would be committed; to them under this Bill. The Minister would in all probability be buried to the ears in political difficulties and Ministerial adventures, and be by no means in a position to give that calm and deliberate attention to such questions coming before him that would be given by Judges free from party strife and the conflict of political existence and capable of dealing dispassionately with the questions which would come before them in appellate form.
– Does the honorable senator in his Bill provide for the Crown having a right of appeal ?
– If the honorable and learned senator means that the Crown is given a right of appeal against the sentence, that is not proposed, but the following provision is made in clause 42 dealing with the prerogative of mercy -
Nothing in this Act shall affect the prerogative of mercy, but the Minister on the consideration of any petition for the exercise of His Majesty’s mercy, having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted, may, if he thinks fit, at any time either -
Refer the whole case to the High Court, and the case shall then be heard and determined by the High Court as in the case of an appeal by a person convicted ; or
If he desires the assistance of the High Court on any point arising in the case with a view to the determination of the petition, refer that point to the High Court for its opinion thereon, and the High Court shall consider the point so referred and furnish the Minister with its opinion thereon accordingly.
– That means going through the whole ease again by another Court.
– It does not mean a new trial by a jury, but an investigation of any additional matter.
– The clause does not say that.
- Senator Guthrie cannot expect to find every detailin a measure in one clause, and I again remind him that this Bill is not of my drafting, but one which I have adopted.
– The honorable senator has altered the form of the Bill from which he has taken this measure.
– I have not altered the clause to which I am now referring. I have stated the alterations that I have made, and they are of so minor a character as to in no way affect the machinery or principles of the Bill.
– Paragraph a of clause 42 refers to the whole case, and paragraph b to a particular point only. Might there not be a new trial under paragraph a?
– No, it would be an appeal, but not a new trial. Paragraph a refers to the whole case, which might be in a nutshell ; but if the case depended on many circumstances, an application might be made in respect of one feature only under paragraph b. That is the clear meaning of the clause. There is provision made in the Bill for sittings of the High Court if necessary, even during vacation, to deal promptly especially with capital convictions in connexion with which there are appeals.
– Could not that matter be better provided for in clause 41, dealing with rules of Court?
– If the Bill gets into Committee the honorable senator may move an amendment; but again I say, although perhaps it may not seem to be a very good reason to Senator Guthrie, I have followed in this matter the order of the clauses in the English Bill. I admit that if I had drawn the Bill myself throughout as a novelty, I should possibly have arranged some of the clauses differently, but I thought that I should be wise in approaching the Senate with a Bill following closely the lines laid down by the law authorities ‘ of the motherland, and that it would be more acceptable to honorable senators than if I had drawn the Bill myself. I do not think I could have done the work much, or any, better, though I freely admit, in reply to Senator Guthrie, that the order of some of the clauses referred to by Senator Guthrie might have been differently arranged. I doubt if the honorable senator could pick up any Bill containing forty odd clauses which would not be open to a similar objection. Part III. of the Bill deals with the right of appeal and the determination of appeals. It will be seen, as I have already indicated, that in clause 9 it is provided that -
A person convicted on indictment before the High Court or a Court of a State may appeal under this Act to the High Court -
against his conviction on any ground of appeal which involves a question of law alone ; and -
– Why is leave left out? There is an appeal on a question of law by leave now.
– The Imperial authorities have in every case made the same recommendation, that there should be an absolute right of appeal on questions of law alone. The clause further provides -
The next few clauses provide for the way in which the High Court may deal with cases, but there is one clause to which I invite particular attention, and which I think must appeal to every man in the community whether he approves generally of this Bill or not. It gives the right to the High Court, the court of appeal, where it is satisfied that a wrong result has been arrived at in the inferior Court, not merely to quash the conviction, but to enter a verdict of acquittal instead of the issue of a free pardon to a guiltless man, the practice which is now followed. That old remnant of a bygone time still disgraces the Imperial Judiciary, and to-day we still go through the unwholesome farce of issuing a free pardon to a man who, by every process available, has been declared to be guiltless. From the time I began to think of such matters, I have always considered that it was a heinous thing that a guiltless man should be afflicted by the grant of a free pardon for an offence he never committed. I hope that honorable senators, by passing this clause, will enable the highest Court in the land to enter a verdict of acquittal, and let such a man go free amongst his fellows not bowed down with the burden of a free pardon.
– We shall pass thai clause for the honorable senator, and the Bill will be a Bill of one clause.
– I was going to say that if honorable senators pass no more, something will have been done, but it will be necessary to provide some machinery to enable the entering of a verdict of acquittal, and therefore we cannot pass one clause bv itself. But if the Senate ‘did no more at the present juncture than to provide sufficient machinery for the clearing of a man’s good name, where he was guiltless, instead of continuing the antiquated farce of a free pardon to a guiltless soul. I think I should have some reasonable excuse for submitting my proposals to the Chamber. There are other clauses which give to the Court the right to vary a sentence. It mav increase as well as reduce a sentence. If it thinks that a conviction has been wrongly arrived at under one count, and would have been more appropriate! v arrived at under another count, it is open to the Court to correct the mistake and confirm the conviction, even though it be under a different count.
– Will the honorable senator explain clause 17?
– Clause 17 deals with cases of appeal where the High Court is satisfied that, though the accused person was sane at the time he was tried, he was, nevertheless, insane at the time he committed the offence for which he was tried. I do not know whether such cases have arisen, but T suppose that the eminent jurists of England, in both Houses of the Parliament, would not have agreed to such a clause unless there was reason for so doing. No doubt some of the legal members of the Senate may explain the provision better than I can do.
– If he was sane when he committed the offence why keep him as a criminal lunatic?
– What are we going to do with him?
– If he is sane, he is not a lunatic.
– I think that my honorable friend is misreading the provision a little. It says -
If on any appeal it appears to the High Court that, although the appellant was guilty of the offence charged against him, he was insane at the time the offence was committed, the High Court may quash the sentence given at the trial, and order the appellant to be kept in custody as a criminal lunatic, under the law of the State in which the offence was committed.
I admit that the last few words were introduced by myself, because, at the present time, the Commonwealth has no method of dealing with questions of insanity. The English Bill provides for’ such cases to be dealt with under ah Imperial Statute, which is quoted. Orders for the restitution of property are to remain ineffective until- the period for lodging appeals has passed, or if an appeal has been lodged until it has been disposed of, because the restitution of property would be involved in the guilt or innocence of the accused person. Part IV. deals with procedure, and I do not think it is necessary to go into details, because the clauses really ‘deal .with matters of machinery. They are of considerable length ; but, in the estimation of authorities at Home, they appear to be required, and if they were not included in the Bill either the same or similar provisions would have to be made by rules of court. I am one of those who think it is not desirable for the Legislature to continually pass skeleton measures and leave either the Government or the Court to provide the details by rules or regulations.
– Is clause 24 exactly the same as the clause in the English Bill ?
– I believe that it has not undergone any alteration except, of course, where the High Court is substituted for the Court of Appeal. Some of the conditions which it contains are of great importance. For instance, in the case of conspiracies and in the case of peculations or embezzlements the question of wrong-doing between partners and in connexion with public company affairs there may be, and very frequently there are, matters involving questions of accounts, and, in some cases, matters which can only be properly dealt with by experts. The Bill provides in the fullest manner for investigations by competent persons, not merely as witnesses, but as Commissioners, who by that means will probably arrive at a better result than would be attained by calling in professional gentlemen as wit-: nesses. To some extent that is an innovation, but it seems to me that it is a very useful proposal. Then we come to the question of providing legal assistance. In a Bill which seeks, as I have said, in its own phraseology, to achieve substantial justice, it necessarily follows that an appellant who is without means should have the same assistance as is given to a prisoner standing his trial ; he should have a solicitor and counsel assigned to him. That is a provision which I have no doubt will meet with the approbation of every one.
– In order to be consistent, honorable senators opposite are bound to object to that.
– Or he will have to do it for nothing.
– Is not the honorable senator treading on rather dangerous ground there? To give legal assistance tocriminal persons would certainly be very dangerous.
– I admit that it is debatable. I cannot debate the details of a proposal of that kind which involves little of principle, but much of an administrative character. No doubt it will be a subject for discussion and possibly alteration in Committee.
– The Bill does not give an absolute right. It merely says that the Court may assign assistance.
– In another part of the Bill there is a clause which makes it the duty of the Registrar to call the attention of the Court to the fact of an appellant’s inability to provide legal assistance ; and a single Justice may exercise the rights of the Court up to a certain point.
– The honorable senator does not want it to become an invariable practice to give applicants the advice of the dreadful lawyers?
– It can only be obtained on an application pro forma pauperis.
– The Judiciary Act gives power to the Court to assign counsel.
– It is a power which is also exercised in criminal cases.
– Yes. It is exactly the same power as is exercised at an original trial. Necessarily there would be cases where the Judges would be glad tohave the assistance of counsel on each side in arriving at a satisfactory result. ‘ However well any one of us may look at a given matter, it is almost invariably the case that another man may throw’ other light upon it, and lead to a wiser decision than would be come to by an individual acting alone.
– Appoint a public defender.
– That does nol: come within the order of leave, and opens up a wide field for discussion, because we cannot have a public defender without officers. . I take it? that if we started a Public Defender Department for the Commonwealth we should accomplish very little unless there was a fair army of assistants, and the cost would be so phenomenal that the innocent little proposal made in the Bill, for the assignment of solicitor and counsel where a prisoner was without means to obtain assistance for himself-
– It is provided in clause 28 that the Crown Solicitor for the Commonwealth shall appear for the Crown in every appeal.
– There must be some authority to act on behalf of the Crown, and therefore it is the duty of the Crown Solicitor to appear. As the Crown would be represented in every such appeal, surely it is only right that the prisoner also should be represented? The English Bills are not identical as regards a later clause. The Lords Bill, proposed that all cases of appeal should be dealt with without the presence of the applicant. I think that possibly there might have been leave given in some cases, but the Commons Bill, which I have followed, provides that the applicant shall have the right to be present at appeals except where there are questions of law only involved. That is an important difference between the two Bills. It shows that, in the opinion of the law authorities in England, there was a step forward, and the right to be present is accorded to an applicant. Clause 28 describes the duty of the Crown Solicitor for the Commonwealth, while clause 29 says that no costs shall be allowed on appeals. The- expenses of assigned solicitor and counsel, and the expenses of witnesses, applicant, and other persons are dealt with in clause 30. Then there are some clauses which deal with the custody of the applicant. He may be admitted to bail, or, if bail is not possible, or fit, he may be admitted to the same class of treatment as is accorded to a prisoner awaiting trial, according to the law of the State in which the offence was committed, or in which he is for the time being. But provision is made that such time of bailment and such time of special treatment shall not reckon as part of any sentence. If he is on bail, or if he is experiencing special treatment, his actual term of imprisonment will not begin until the Court has given its decision on the case. Then there are provisions for the custody of the applicant when attending the Court, the duties of the Registrar respecting appeals, the custody of exhibits pending appeal, and other matters of machinery. Clause 40 deals with the way in which the powers of the Court may be exercised by a Justice. Of course, when sitting on a motion for leave to appeal, and in interlocutory proceedings, a single Justice may act for the Full Court, which, I suppose, is the invariable rule in the Supreme Court of every State. Provisions as to the character of rules of court appear in clause 41. There is a clause providing that appeals from convictions on indictments at common law in relation to nuisances, such as the non-repair of bridges and roads, and so forth, shall be civil matters, and shall not come within the purview of this measure.
– In view of Beck’s case, why does the English Bill contain no provision relating to compensation? That is what the honorable senator wants to remove from political influence and Ministerial control. The honorable senator might put ina clause of some sort.
– If thehonorable senator will undertake to draft any clause to deal with the question of compensation, he will do a very important service to the public. I shall be only too glad to accept any rational proposal of the kind.
– In the course of his reading, did the honorable senator discover any reason why a provision for compensation was left out of the English Bill ?
– I cannot say that my reading has helped me ; butmy common sense, or what in my case answers the purpose of common sense, leads me to the conclusion that it is perfectly impossible to devise any scale of compensation.
– We could not have a scale.
– How then could it be defined?
– The honorable senator could simply provide the power to grant compensation.
SenatorCol. NEILD.- Then the amount must be left to the Minister or the Legislature.
– It was Beck’s case that hastened on those two Bills in England, yet they leave out the very matter that was the knotty point in Beck’s case.
– It was the Judge who unfortunately created the knotty point in the first instance in that case. How could the honorable senator devise anything more than a general expression of the fact that compensation may be granted ?
– That is all I mean.
– There is no trouble about putting that in, but still it would leave open the question of the amount of compensation for the different kinds of hardship arising from wrongful convictions. There is in this Bill the customary provision copied from our own Judiciary Act for laying the rules of court before Parliament, and a final clause, which is in point of fact the exact proposal of the English Bill, and provides a Christmas box for the innocent. It provides that the measure shall come into operation on Christmas day next. I think I have given as full an account of this measure as is possible in moving its second reading. I have to thank you, sir, for the large liberty you have given me in dealing with matters that are usually regarded as rather for the Committee stage. You have granted me and the whole Chamber a leave that is very valuable, inasmuch as questions have been asked, and I hope satisfactorily answered, so that we understand a little more about the Bill than would have been the case if my remarks had been strictly confined to matters of principle. I propose to read extracts from the speeches of some of the principal legal authorities of the realm in support of what is practically an identical proposal. Even if I occupy some time I hope I shall be forgiven, not only by those who listen, but by those who will afterwards find in Hansard information that is not so readily obtainable by hunting up different volumes in the library. I do not quote from these high British authorities because I think the proposals in the measure are not good enough to stand without propping up by eloquence from either end of the world, but because every experienced advocate recognises that, however good his case, however eloquent he may fancy himself to be, he achieves more success with the jury by calling in witnesses than by depending on the merits of his own eloquent advocacy. I propose, therefore, to call in a few witnesses from the other side of the world, whose utterances will be so strongly in support of the propositions laid down in the Bill that they will, I trust, commend themselves to honorable senators who have listened to me- so long and so courteously. One point that I have already referred to, I had, perhaps, better emphasize now. I stated that the Bill of the Lords last year went through all its stages without a single division. When a measure of this character has that experience in so antiquated and venerable a Chamber, which, in the estimation of some people, is in opposition to all advancement and all reform, there must be in it elements of such high merit and human justice as commend it even to the most crusted conservative mind.
– I believe there were twenty-nine Bills introduced previously in one or other of the Imperial Houses of Parliament with this object in view.
– No doubt it is quite possible to find in the records of any Parliament which has existed for a great number of years many a proposal made be’fore the end has finally been achieved. In my little world across the Murray, it took me seven years to put one measure on the statute-book. I introduced it five times, and handled it twice from the other Chamber, and, therefore, I can understand how in questions of legal reform “ the mills of God grind slowly.” In the Commons this year, an amendment was moved that the Bill be read this day six months. It was negatived without a division, and the Bill was read a second time. Quite recently, a system has been devised in the Commons by which all Bills proceed automatically to certain Committees after their second reading.
– A rule we ought to adopt.
– That will be a matter for the Standing Orders Committee. But, this Bill having been read a second time in the Commons, an unusual motion was moved to commit the Bill to a Committee of the whole House. Here I am at a slight disadvantage. Last evening, about this time, I obtained in the Library a copy of the London Times, giving a full report of these proceedings. The second librarian put it carefully on one side on a shelf in his room, but this morning it was not to be found anywhere. It is therefore extremely fortunate that I made last night the rough extract that I hold in my hand. Otherwise, I should not be able to give the exact figures about that motion. The Hansards that have been received from England do not take us up to 31st May of this year, when this motion was dealt with. There was a division on the motion - the only one that has yet taken place on these measures in the Imperial Parliament. The ayes were 43 and the noes 197, or a majority of 154 against dealing with the Bill by any other than the ordinary procedure in the Commons. Of course, I am not in a position to say- that all those 197 gentlemen were in favour of the Bill, and all the other 43 against it, but the figures afford a very plain indication that the immense majority of the newly elected House of Commons was strongly in favour of a measure similar to the one I am now submitting. I cannot do better than commence my quotations with the short speech of the Attorney-General, Sir John Lawson Walton, in introducing the Bill in the Commons. It is a matter of three columns, and I hope I may be allowed to read it, because it is a most sapient summing up. Coming, as it does, from His Majesty’s Attorney-General, I am sure it will be of more interest to, and have greater influence upon, honorable senators than the summing up of any layman. If in reading it I omit anything, it will not be to cloak any matter of difficulty. Perhaps, however, I had better read every word. The volume I quote from is the Parliamentary Debates. authorized edition, fourth series, volume 172 of the British House of Commons. The Attorney-General said -
I have to ask the leave of the House to introduce a Bill for the constitution of a Court of Criminal Appeal, and for. extending the powers of our” tribunals to review convictions on indictment for criminal offences. It is proposed to end a controversy which at recurrent intervals for sixty years has engaged the attention of Parliament. The settlement which I invite the House to adopt will create appellate rights against convictions for crime, similar to those which exist in relation to adverse verdicts in civil causes. Liberty will thus be put upon an equality with property, and the consequences of judicial miscarriage will receive in each case similar protection.
Here, may I interpose a reminder, that while there is unlimited right of appeal in reference to a matter of a few pounds, a beast, a haystack, or any subject of property which may be litigated upon, there is not at the present time any similar right of appeal, or even of review, in the case of a man’s life or liberty. Yet a man’s life is worth more than the ten pounds’ value upon which people litigate till the costs run up to hundreds of pounds. A man’s life is of more worth than the small or large value attaching to any piece of property in this world. What is the ownership’ of a cottage to the ownership of a man’s life and liberty? What is the ownership of a paltry piece of property to the liberty of a man or a woman ? It is for the sake of human liberty and human life that 1 make an appeal to this Chamber not only to give a sympathetic hearing to mv remarks, but to support me in placing this measure upon the statute-book of the Commonwealth. While to do so may place us ahead of the old land by a few months in such a reform, yet in that respect it will only be following Australian example in a great many other matters in which we have led the rest of the British speaking world. The Attorney-General proceeded -
The administration of our criminal, law has attained its present unsurpassed reputation in spite of defects of procedure which are irreconcilable with the acknowledged principles of all sound jurisprudence. Various mitigating causes have tended to obviate the defective operation of an imperfect system. -The generous bias of our Courts towards the innocent until they have been shown to be guilty, the conscientious solicitude and high character of our Judges, and the tempering jurisdiction of the Home Office have done much to accomplish this result. But. justice has blundered. Innocent men have been convicted, and the number of the victims of judicial miscarriage during the last few years has not been inconsiderable.
These were the remarks, not of a notorious law reformer, but of the King’s AttorneyGeneral -
This question, owing to recent incidents and developments, has been forced to the front. The Royal Commission recently reported that the resources of the Home Office were neither adequate nor satisfactory. The admissibility of the evidence of an accused person in his own behalf, tainted as it often is bv falsehood in regard to collateral matters, tending to prejudice a good case and to confuse the issues to be tried, makes the conduct of criminal trials more difficult. Public sympathy in recent striking instances has been aroused by the misfortunes of men who have been called upon to suffer that most terrible form of moral torture which confounds the innocent with the guilty, an<! condemns them to a common fate. An enterprising Press has rushed in where jurists have feared to tread, and re-trial by newspaper threatens to take theplace which ought to be occupie’d by the process, of rehearing before a judicial tribunal. Last,. but not least, the delicate and difficult duties of the Home Secretary have been discharged under the pressure of public agitation, which has made calm- and independent judgment well nigh im-, possible. These considerations have led the Government to the conclusion that the time for some change has arrived. Last year a Bill was! introduced by the Lord Chancellor and passe* through the House of Lords, which will, I trust.. ever associate his name honorably with this great change in our jurisprudence. The present measure differs in material respects from that which then passed through the other House. In its present form, I trust it will not meet with those hostile motions which threatened the introduction, of its predecessor. I have given careful consideration to the criticisms, many of them most’ able and cogent, which have reached me from many quarters, and I trust that I shall be able to count former opponents of the measure among its present friends. The Court will be constituted of seven Judges of the King’s Bench Divi-sion, selected and presided over by the Lord Chief Justice of England. They will be invitee? to undertake the duties arising under this legislation in addition to the functions which they now discharge. The right of appeal in matters, of law will be unqualified ; in matters of fact’ it -will take, place with the leave of the Court, of Appeal. This proposal revives an ancient procedure.
That is of consequence arid merits attention., - that this question of appeals on fact is a revival of an ancient procedure -
It is attended by this great advantage, that the, Court will be able to prevent the abuse of its-‘ process by the erasing of unfounded and frivolous contentions. There will be no new trial.” The scandals to justice, which must very often, occur on the re-trial of a criminal cause, wilt, not happen in consequence of the provisions of” this measure, and the accused person will be spared an .ordeal which is consequent upon no’ misconduct on his own part. The Court wilD have ample powers- to get at the truth. They, will be able, if necessary, to summon fresh: evidence. When they have satisfied themselves,, so far as they can, of the true merits of the case before them, it will be their duty to determine whether the conviction should stand, should be set aside, or should be modified, anr! whether the sentence which is challenged should remain as it> was pronounced, or should be brought into harmony with principles of general application, by which the duration of the punishment is made to correspond with the gravity of the crime. This is not a rich man’s Bill. Itwas said that the last measure possessed that character. It will not be said of this Bill. An official is appointed whose duty it will be to. obtain the materials which it is necessary to’ place before the Court for the consideration of the petition of every appellant; and if professional assistance be required a solicitor and counsel will be appointed to argue his case. This Bill differs from the last in one respect which will be appreciated by my legal friends who are members of this House. The machinery, will not be left to be framed by ex post facto regulations. It is substantially embodied in the Bill itself, and the whole history of the litigation may be reviewed from beginning to end.: A rule committee will be appointed.
Honorable senators may or may not be; aware that in England in the superior5
Courts Committees are appointed to draw up rules pf court. Under our Judiciary Act a majority of the Judges of the High Court are empowered to make the necessary rules of court. There is a reference in the speech from which I am quoting to the Court of Crown Cases Reserved. I need not .quote it, because it is inapplicable here. The speech goes on -
The prerogative of the Crown will be unaffected, but the Secretary of State will have the inestimable advantage of being able to take the opinion of the Court of Criminal Appeal upon any question upon which his advice to the Sovereign may depend. This is the measure which I would like the House to consider. It is a non-party Bill. I am sanguine enough to believe it will be non-contentious also. Notwithstanding, in my humble opinion, it yields to none in the order of its importance. It affects immediately and possibly for all time the administration of justice in that sphere of its operations in which it touches* the defence of personal security, which is the absolute condition of individual happiness and welfare on the part of every member of the community throughout all classes of our population.
The order for the Bill was made, and the Bill was brought in by the AttorneyGeneral and Mr. Secretary Gladstone. It is the Bill of which I have already given an outline and history. In the House of Lords the Lord Chancellor, Lord Loreburn, in introducing the measure, said, amongst other things - see the Parliamentary Debates, fourth series, vol. 154, page 992-
My Lords, this Bill deals with a subject which has been a great deal canvassed for many years in this country, and which, I think, has partially divided the opinion of legal experts; but I do not think there is, or has been for a long time, any considerable section of opinion either at the bar or on the bench, that is not prepared for a measure going a considerable distance. Though I believe there is no country in the world where justice is more fearlessly and more effectively administered than it is in this country, and while I yield to no one in my respect and admiration for the spirit in which the Criminal Courts are conducted, of which I have myself had some experience, yet it is beyond human nature to suppose that there is, or ever can be, without some opportunities for appeal, an entirely satisfactory condition of things. From time to time there have been, as, indeed, quite recently, instances of error, admittedly innocent error, on the part of the Courts, resulting in a great deal of hardship and suffering to individuals which have stirred the public mind. With that prefacefor your Lordships are, many of you, familiar with the administration of criminal justice youselves - I shall proceed to say a word or two on the subject of criminal appeals, and contrast them with the appeals allowed in Civil Courts. Let me take, in the first instance, the system of appeal’ which obtains in the Civil Courts of this country. In regard to civil procedure, the smallest cases tried, for example, in the County Courts, are subject to appeal upon matters of law, but they are not subject to appeal upon questions of fact; and I must say that I have never seen any cause for complaining of the state of the law. It is to the interests of the public that litigation should be ended, and where the sum of money involved is small it does seem to me more desirable that there should be some risk now and then of failure, than that there should be constant opportunity for appeal, and the waste of time and money which that would involve. When you go from the smaller kind of civil case to the more important litigations, which are abundant in this country, you find that the facilities for appeal are enormous. A case may be tried by one of the greatest Judges of the day before a special jury. It may have lasted days, or indeed, as sometimes - but happily seldom - happens, it may have lasted even weeks; but there is an appeal, not only as to law, but an appeal on every point of fact on which the jury have come to a determination - an appeal to the Court of Appeal, and then to your Lordships’ House. There is an appeal also on the point of damages that may be assessed, assuming that the verdict and judgment may be right. Not only so : there is an appeal on what may be called interlocutory proceedings. I would give an extreme illustration. Suppose that one side wishes to have a case, involving,, say, £100, tried at Bristol, and the other side wishes to have it tried at Glasgow. Such is the state of the law that an appeal can be taken to the Court of Appeal and then to the House of Lords upon the question of whether this case, involving merely ^100, shall be tried at Bristol or at Glasgow. I am not making any complaint about the facilities for appeal that exist in regard to civil causes, but I think it is a very open question whether there is not too much facility for appeal in regard to civil causes. It is not a matter that is relevant to my proposals to-night, but I think it may .well be that some restriction would be advisable, but nobody would ever dream of proposing that there should be no appeal at all. All that the most zealous reformer in that respect would suggest would be that there should be some limitation to the exuberance of appeal in civil causes. So much for civil causes. Now I come to the criminal law. Your Lordships will find that in the Criminal Courts the law is almost exactly the reverse of that which obtains in Civil Courts. In small, insignificant cases’, tried before the magistrates, where three months’ imprisonment is a possible penalty there is an appeal. In small cases, where a man may only be fined, or where he may be sentenced to only three or four days’ imprisonment, there is an appeal to Quarter Sessions, and very properly too; but in grave criminal causes, in which a man may lose his life or his liberty for the whole of his life or for ten or five years, there is, with -two exceptions^ substantially no appeal at all. Let me give the two exceptions. I am not pretending to offer to your Lordships an exhaustive and detailed statement, but merely an outline, which I think will be found perfectly accurate, of the right of appeal in these cases. If the Judge who tries the case thinks fit to reserve a point of law for the Court of Crown Cases Reserved, he can do so. And then the point of law alone may be made the subject of appeal.
But it very. of ten happens that the Judge, being himself satisfied of his own opinion, refuses to grant a case at all ; and there is no machinery of any sort, kind, or description known to the law - I mean no machinery of the law apart from the prerogative of mercy - by which that Judge can be set right, though it may be notorious that his law is wrong.
Is it possible for any one to submit for the consideration of a Legislature statements of a more serious character than those I have just read as falling from the’ lips of the Lord Chancellor of England? They show that while every possibility of appeal exists in civil suits affecting property of great or of small value, there is absolutely no possibility of doing justice in the case of a notorious mistake on the part of a Judge in a criminal case unless the Judge himself admits that he has blundered.
– Or by the exercise of the Royal prerogative.
-Or by the exercise of the Royal prerogative. The Lord Chancellor went on to say -
There was the case quite recently of Adolf Beck, who, I believe, was perfectly innocent, and was so stated to have been by a Royal Commission. There was an undoubted misdirection in that case ; evidence was refused admission which was palpably proper evidence to have been allowed.
Honorable senators might have thought, when I was speaking some little time ago about the Beck case, that I spoke without warrant of the action of the Judge in that case, but anything I said is very much more than confirmed byl these utterances of the Lord ‘Chancellor himself. I think I said at the time that I was not giving my own opinion, but quoting the opinion of one of the great law lords of England. The Lord Chancellor proceeded to say -
The Judge was confident that he was right although he was transparently wrong ; he refused to grant a case ; and no remedy against his refusal was possible.
No wonder England cries out for a remedy against this kind of thing -
Another case where an appeal is allowed at present is that limited kind of case in which by certiorari the case has been brought up for trial in the King’s Bench Division, and then there is an appeal both on law and on fact. But those cases are very rare. The result is that no matter how bad the law may be that the Judge lays down - and criminal law is not always absolutely clear - no matter how erroneous the verdict of the jury may have been, there is at the present moment no means of obtaining redress in any Court of Appeal in this country. To put an extreme case, a man may be tried for his life and have no appeal ; he may wish to get a case involving only £100 pounds tried at Glasgow instead of Bristol, and he may take that question up to the House of Lords. Surely, my Lords, such a state of things is a plain absurdity.
I suppose that, in. a broad sense, every word of condemnation uttered by the Lord Chancellor in the remarks I have read are applicable to the administration of the criminal law in Australia to-day. I am gla’d that it is not possible for me to bring forward for consideration in this Chamber any glaring cases of unsatisfactory action, but from time to time there have been in Australia cases that have stirred the public mind in no slight degree. There was one to which I shall make only sufficient reference to name it, one that stirred a large section ‘of .the people of New South Wales for many a year; I refer to the Suffield case. The prisoner in that case was eventually “released, I believe, before the conclusion of his, sentence, merely to die from a broken heart, or from al maladycontracted by long incarceration. I express no opinion upon the merits of the case, because I am not in a position to dr> so. I make no comment upon it beyondreferring to it as one that stirred the people, the Parliament, and the press of New South Wales for many years. The reason I refer to it alt all is that it appearsto me to have been a case in connexion with? which it would have been eminently advantageous to have had an investigation by a public appeal rather than by the process of private application. Some of the applications ‘ to Ministers in connexion with that case were public, since there was many a deputation, many a debate in Parliament, and many an article in the press concerning it. I think it would tend to raise the administration of justice if in such a case, on sufficient grounds shown, the Court of Appeal might grant permission “ to have the matter investigated. It would be better investigated by an inquiry of a public character than bv any! process of private administration, however pure, however perfect. Ministers come and Ministers go with greater frequency than Judges, and I submit with a great deal of respect that wemight have a case dealt with in the first, instance by an incompetent or even bv a. prejudiced Minister. Something might cause him to take a particular view. Helays down a course of action and gives a decision, and no Minister who succeeds^ him may care to interfere with the decision of his predecessor in a case of that kind. The Minister who decided the matter in the first instance gives his decision without the public being informed of the grounds on which he arrives at his conclusion. He has practically no opportunity to give to the world his reasons for his action, and where applications have been made for a reconsideration of such matters by a Minister, the reply has not infrequently been, “ My predecessor in .office considered the matter, and I see no good reason for departing from the conclusion at which he arrived.” As I have pointed out, there may; have been reasons for that conclusion which it would be hard to fathom. Many influences are at work in this world, and the first decision in such a case might not have been without some element of bias. If, therefore, the decision of a later Minister is based upon that of his predecessor, we run the risk of allowing human frailties and prejudices to play a part in our secret administration of justice, and such a risk could not possibly exist to the same extent where the decision is not that of one man, but of not less than two out of three, and where it is given openly after public inquiry, in which all the world is free to participate, at least to the extent of knowledge. I wish to make a brief quotation from a speech by Lord James of Hereford, who is a distinguished British jurist. At page 1002 of the volume from which I last quoted he is reported to have spoken in these terms -
I would ask your Lordships’ permission to say a few words, a very few very sincere words, in support of this Bill. Few things in my political life have given me greater pleasure than the prospect at last of seeing a real Court of Criminal Appeal in this country. As Attorney-General and, as a private member, I have drawn three of these Bills in different directions. Fortune has been against rae ; but now, under the circumstances that exist in the other House of Parliament, it is to be hoped that, with your Lordships’ sanction, this Bill will not only be considered, but will pass into law. Let me ask - What ought to be the chief aim of our criminal law and its administration? It is no doubt to protect the community and to punish the wrongdoer. But I claim a higher duty than either of those, namely, that the law should take care that no innocent person suffers punishment. Let us see what safeguards we have in this country that innocent persons shall not unduly suffer. My noble and learned friend* Lord Halsbury speaks, I think, quite correctly, of the anxiety of our Judges to do their duty, and of the juries to find just verdicts ; but they “are not infallible, and those who have been in the Home Office know full well that many cases have arisen in which innocent persons have been convicted, and it must be obvious that there are a great number of such cases which are never known. We have a right, on behalf of our national character, to see that all is done under our machinery to secure that justice is administered. We stand unique amongst civilized nations in that we will accept error without attempting to remedy it. We have no Court of Criminal Appeal. I think in every other civilized nation in Europe, and certainly in America, there are these Courts of Appeal ; but, strangely enough, while we have no Court of Appeal, we also have no Minister of Justice, whose duty it is, as in other nations, to see that justice is purely administered, and to take care of the accused as well as the prosecutor.
I doubt if we have such an officer in the Commonwealth.
– Will the honorable senator permit me to suggest that he should ask the Seriate now for leave to continue his remarks on another occasion?
– I wish to complete my task as soon as possible, but I confess that, while I have been speaking I have been standing on one foot for over two hours. I admit that I have been speaking under a strain which is very severe, and the courtesy of my colleagues of the Chamber, if they will permit me that indulgence which I have never asked before, will be appreciated very deeply.
– All the honorable senator’s colleagues have deserted him, but we have remained.
– I do not pretend to gauge what the engagements of honorable senators are, but let it be remembered that this is the first occasion on which private, business has been taken at night.
– No, it was taken on the night of last Thursday.
– However, the new arrangement has an element of- novelty, and I admit that, as a rule, extracts from speeches are less attractive than a speech directly made. To the members of the Senate who have done the speech, as well ‘as myself, to a small extent, the courtesy and the honour of a continuous attendance to-night I can only express my very deep sense of obligation, not so much from the personal stand-point as from the fact that honorable senators are evincing interest in a subject which is very dear to my heart, and the success of which, I am as certain as I stand here, must come. The justice that this measure seeks to enact must follow the darkness of existing methods as surely as the sunlight follows the darkness of the night hours. If, sir, I am permitted the consideration suggested by the leader of the Senate I shall take it as a great compliment.
– Is it the pleasure of the Senate that the honorable senator have permission to continue his address at a later date?
Honorable Senators. - Hear, hear.
– Leave is granted, and it is only necessary now to fix a date when the consideration of the Order of the Day shall be resumed. There is no occasion for any one to move the adjournment of the debate, because Senator Neild is in possession of the Chair, and it will be simply a. continuation of his- speech that we -shall have at a later date.
Motion (by Senator Col. Neild) agreed to-
That the continuation of the debate be made an Order of the Day for the 8th August.
-52]. - I ask for the discharge of the next Order of the Day. standing in my name and’ relating to the filling of a vacant seat for South Australia in the Senate. At the time I gave notice of the - motion the field was clear. No election had taken place i nothing had happened, and therefore I acted as I did.- Now other things have happened, and the matter being sub judice, I take it that, though- there is no standing order to the contrary, it is . in accordance with the best parliamentary usage to avoid any discussion on a matter which is sub judice.
Order of the day discharged.
Motion (by Senator Best) proposed -
That the Senate do now adjourn.
-54]- - I desire to make a personal explanation concerning a remark which fell from- Senator W. Russell this afternoon, during the discussion on the Judiciary Bill. On the motion for second’ reading, I happened to make a speech- in support of the Government, and by. an accident, which I thought was patent to every one, my vote was unintentionally given against the Bill. I was in close conversation with Senator Symon, and accidentally with Senator Millen, on a clause of the Bill, and I did not observe that the tellers were just going to tell the division. I was rising to move across the chamber, when both of those honorable senators drew my attention to the fact that it was too late. I thought that my action at the time was not capable of being misunderstood, but from the remark that Senator W. Russell made to-day it is evident that it was misunderstood.
– Hansard- records it.
– It could do nothing else than record the vote as it was given, but I thought that the mistake was thoroughly understood. I wish my honorable friends on the other side of the chamber who voted on the second reading of the Bill to remember that it was quite by an accident that . I was not with them. I was there absolutely’ with them in spirit, alL though, unfortunately, my body was on this’ side.
– I was one of the tellers, but I cannot count spirits.
Question resolved in the affirmative.
Senate adjourned at 9.57 p.m.
Cite as: Australia, Senate, Debates, 25 July 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19070725_senate_3_37/>.