8th Parliament · 1st Session
The President (Senator the Hon. T. Givens) took the chair at 3 p.m., and read prayers.
The PJRESIDENT. - I desire to lay upon the table of the Senate a paper for the information of honorable senators. I would have tabled this paper upon Thursday last but for the fact that it is one which is jointly signed by Mr. Speaker and myself, and that I did not then have the Speaker’s permission to do so. However, I take this opportunity of laying it upon the table of the Senate, and I think it will show that instead of desiring to arrogate to ourselves any authority over .parliamentary officers that we do not possess, we wish to be relieved of our authority in that connexion at the earliest possible moment. The paper contains a recommendation to the Prime Minister that the officers of this Parliament in regard to classification, fixation of salaries, &c, shall he placed under the control of the Public Service Commissioner.
Motion (‘by Senator Pearce) proposed -
That the paper be printed. ‘
– I understand, sir, that the paper which you have just laid upon the table of the Senate recommends that the officers who are employed in this particular establishment shall, for the future,come under the authority of the Public Service Commissioner.
– That is our recommendation.
– Before discussing this question it would be wise for honorable senators to have the whole of the facts placed before them. But upon the motion for the printing of this paper I wish to say that in view of the indignant manner in which you, sir, resented a proposal for an inquiry into the affairs of the Senate, and into the treatment of officers of this Chamber, the recommendation which you have now made i3 a complete backdown. It invites us to abrogate the functions of this Parliament by handing over to another body the power to interfere with the management of this establishment. If that course be followed, and if we surrender to an outside tribunal the control of our parliamentary officers, it would be within the power of that body to make the conditions under which we perforin our duties so difficult as to render their efficient discharge impossible. I realize that you, sir, have experienced some little trouble in managing the staff of this Chamber, and I recognise that your predecessors have had a similar experience. I have no doubt, too, that your successors in the days to come will find them.sevles in the same position. But the difficulty will be increased and not lessened if, in addition to managing the existing staff, you have also to manage a Public Service Commissioner or a Public Service Board. I look upon Parliament as the supreme Court - the highest Court - :which controls not merely its own staff, but also the whole of the people of Australia by means of its wisely designed legislation and by the administration of that legislation. Holding that view, I do not like the idea of calling in an outside body to assist us in the management of our own officers. More than that, with a strong Public Service Board and a weak President - a condition of affairs readily conceivable - our position here would become intolerable.
– Is not the recommendation of the President and Speaker merely that our parliamentary officers shall be transferred to the control of the Public Service Commissioner, for classification purposes?
– Whenever I see the rights of this Senate being interfered with in any way, I am not inclined to say that one infringement is a small one, and that another is a big one. My protest is against the principle of infringement. I take it that this Parliament is absolutely supreme, and is not to bp. compared in any way with outside Departments of the Public Service.
– Parliament should always control its own officers.
– It must set the example of controlling its own officers, and it can ill-afford to voice an admission that it is incompetent to manage its own staff - so incompetent that it has to call to its aid an outside body for the purpose of classifying the members of that staff. I object to the recommendation which is contained in the paper that has been submitted,, on the ground that it is altogether derogatory to the dignity of Parliament. Honorable senators ought, therefore, to protest against it. Personally. I recognise that you, sir, during the many years that you have occupied the office of President, must have been, confronted with many matters that were disturbing and difficult to deal with. A staff composed as is that of this Parliament will always bring to you certain irritating troubles, but that is no reason why they should be brushed aside by the simple expedient of leaving the ills w© know of to, say, a Public Service Board, and allowing that Board a controlling voice with you in the management of this particular establishment. Let me instance a personal matter which has come under my own notice. Until quite recently, the officer who acts as secretary .to me in my capacity as Leader of the Opposition, and who will discharge similar duties when I am gone, was under the control of the Public- Service Commissioner. He was given notice by the Commissioner that his services were to terminate on the 31st December last. He is a married man with a family. He had been in the Service since 1914, but did not go to the war - during which, period, as we all know, no temporary officers were made permanent. . However, as I was not prepared to hand over my correspondence to some one I did not know, I protested against the dismissal of an officer who had served me in a manner to which I could take absolutely no exception, and whose trustworthiness was beyond question; but the Public Service Commissioner was quite satisfied that he must be replaced, and my protests were of no avail. This was an officer who, to all intents and purposes, was attached to the Senate, seeing that he was serving some one who was a member of the Senate, but he was not under the control of Mr.
Speaker or the President. However, there has been a long drawn-out correspondence for nine months on this question, terminating in the officer going out of the Public Service; but a compromise has been arrived at by which a certain salary is placed on the Estimates, and I may engage whom I like to take’ charge of my correspondence. It is an unsatis-factory arrangement so far as the officer himself is concerned.
– But it certainly vindicates the stand taken up by the honorable senator.
– That is true; but my point is that months of irritating annoyance have been, occasioned1 to me because of the unjustifiable interference of the Public Service Commissioner in this regard. I need not appeal to honorable senators. They would feel equally with me how objectionable it is to be obliged to intrust one’s correspondence to a stranger, particularly one who is replacing a man in whom confidence has been displayed, not only by myself, but also ‘by my predecessor, Senator’ E. D. Millen, whom he was serving when that honorable senator was Leader of the Opposition. In fact, it was on that honorable senator’s recommendation that, when T became Leader of the Opposition, I continued to employ this officer in the POS tion he was then occupying. I merely mention this matter to show that the prospect of placing the attendants attached to the Senate under the control of the Public Service Commissioner are not very encouraging. In fact, I venture to- say that we ought not to agree to- the recommendation to transfer them from the control of the President. I protest against control being exercised over officers of either House ‘by any one but constitutional officers of Parliament elected to their positions by $e members of either House. Parliament is supreme over every Department, land is the highest Court in the Commonwealth, and we have no right to say that we are- prepared to intrust the management of its affairs tc> any body except that which is directly appointed by honorable members of either House.
Senator DE LARGIE (“Western Australia) f 3.14 . - In view of the fact that I have a motion on the business-paper dealing with the attendants of the Senate, I think the President (Senator Givens) has taken up a most extraordinary attitude in apparently presuming that this is a purely personal matter. On the contrary, it is one for the consideration of the Senate, or of the various Committees appointed by the Senate. In any case, I think the Senate should have been conSuited, and its opinion taken before the submission of a recommendation to the effect that the servants of Parliament should be transferred to the control of the Public Service Commissioner, when Parliament has very rightly decided that they must be under the control of honorable members of both Houses.
– Hear, hear!
– And, before any alteration in that regard is made, honorable members of both Houses should give a decision upon it.
– This is merely a recommendation for the consideration of the Senate.
– I take it to be an expression of the desire of the President to resign from a position he occupies by virtue of his office, and a recommendation on his part that in future, instead of senators having any say in the appointment of the officers of this House, the control of these officers should be vested in the Public Service Commissioner.
– Would not the Public Service Act have to be amended before any effect could be given to the recommendation ?
– The recommendation is that the Government should consider the desirableness of doing so when the Public Service Act is being amended. It cannot be done in any other way.
– The step taken by the President to-day seems to me to be an underhand way of getting behind the motion which is now before the Senate, and which, I contend, should be first disposed of before anything else is done.
– If the honorable senator will look at the document he will not make that mistake, because the recommendation was made and sent in on the 3rd June last.
– In view of the fact that it has not been made public, and that honorable senators have known nothing about this document, in my opinion it should have been allowed to remain where it has been reposing until the motion on the business-paper touching on the same question has been disposed of. The motion raises the question of the desirability of appointing a Select Committee to inquire into all these matters, and goes a great deal further than is proposed in the recommendation read to us by the President. If the President does not wish to fulfil duties which his post imposes on him, I have no objection to him resigning, or recommending that they should be intrusted to some one else. During his administration so many debatable questions have arisen that the inquiry suggested in my motion has become an absolute necessity, and evidently the President recognises this. At any rate, one would judge so by the attitude he has taken up to-day. It is the most extraordinary stand imaginable in the circumstances. However, I think the motion asking for an inquiry should be proceeded with. If the Senate approved of it, Parliament would know exactly the position of the various Committees in relation to the President, and whether it would be better to transfer the control of the officers of the Senate to the Public Service Commissioner. To bring forward a proposal of the kind at this juncture seems to me an attempt to get behind my motion.
Senator BAKHAP (Tasmania) [3.201. - When the recommendation was tabled, I had some doubt as to whether it could be given effect to without an amendment of the Public Service Act. Now, sir, I want to tell you this: I have the very greatest respect for your .position and for you personally; but I would hesitate to> vote for, or be a party to, any movement the object of which was to relieve you of certain functions vested in you by virtue of your position. I believe you are the proper person to discharge those duties, I am sorry if some of the criticism that has been directed at you irritates, but I am going to support you in your position, for I believe you have carried out your duties excellently Notwithstanding that the recommendation is to be printed., I tell honorable senators that I will in no sense be a party to any action that will cause legal sanction to be given to the abrogation of any powers that are at present vested in you. With Senator Gardiner, with whom I do not often agree, I believe that Parliament, which creates all Departments, should be supreme in regard to the supervision of the officers under its immediate control for the carrying out of our individual and collective duties. Parliament, and the Senate in particular, would be doing something very far-reaching in its ultimate effect, and pernicious to a degree, if we, with all due respect to you, sir, sanctioned the recommendation contained in the paper, the motion to print which is now before the Senate. If out of courtesy to you, sir, I support the motion, I hope it will not be taken’ to indicate that I approve in any way of - the recommendation, for I have sufficient confidence in you to know that you will always discharge your duties in a satisfactory manner. I shall Vote for the motion, but I shall strongly oppose any attempt to so alter the Public Service Act as to give effect to the recommendation to the Prime Minister.
– We are all indebted to Senator Gardiner for opportunely sounding a very grave note of warning in connexion with this particular matter. . We are under a disadvantage in discussing the motion owing to the fact that we do not know the contents of the paper. Very often on motions of this kind we are acquainted with the whole of the contents of a certain paper, because it has either been printed previously and circulated amongst members elsewhere, or we have had access to it; but on this occasion we only know, from the statement given by you, sir, what is its purport. Like Senator Gardiner and Senator Bakhap, I strongly believe in Parliament retaining the control of its own officers. Senator Gardiner gave an illustration of the disadvantages of any other system. There is a personal note in his statement, because itrelates to an officer who acts as private secretary to the Leader of the Opposition in the Senate, and, as he has pointed out, certain action taken by the Public Service Commissioner has led to a very lengthy correspondence on the subject, with the result that it is now left to Senator Gardiner, personally, to select his own secretary to replace the one who has been acting for him, and also for Senator E. D. Millen, his predecessor. .This is not at all a desirable position. But let me take another illustration - that of an officer acting on behalf of all the senators. It may seem unimportant, but, as a matter of fact, it is highly important, and it strengthens the position as stated by Senator Gardiner. We have a network of telephones here, and an attendant at the parliamentary telephone switchboard. That attendant very rarely comes in contact with members of either House, but, after he has been at the switchboard for a little while, he begins to learn about the movements of individual members, so that when he receives a call on the telephone at any particular hour of the day, the attendant is almost certain to know whether or not the member referred to has arrived, whether he is likely to be found in the Library or some other part of the building; or, if not, whether he is engaged elsewhere in the city, and what number is likely to get him either on his private telephone or at his place of business. He quickly becomes acquainted with the habits and movements of every individual member, but, unfortunately, as he acquires this experience it frequently happens that he is removed from the switchboard, and another attendant takes his place, with the result that, when the exchange calls for some particular member, the new attendant, not being acquainted with his movements, makes a general inquiry, and then, if unsuccessful, advises the caller that he is not about. I know of numbers of instances in which this has occurred, all due to the fact that the attendant is unaware of the movements of members. Of course, I am not blaming the attendants. They have shown themselves, one and all, very apt and ready to familiarize themselves with the procedure of the two Houses, and the activities of the Committees with which members are associated ; but, unfortunately, they have hardly time to acquire this particular knowledge before they are removed. If they were under the control of Parliament, or of its duly accredited authorities in both Houses, we would have a much better service, and the position would be more satisfactory in every respect. I hope that, when the opportunity comes for the discussion of this particular matter, the Senate, as well as the House of Be- preservatives, will evince a desire to retain full and complete control over all the officers of Parliament.
.- I had no idea, when I submitted the motion, that there would be any discussion at all, because I thought that honorable senators would want to ascertain what the document contained, and my object, in submitting the motion for the printing of the paper referred to, was to give them that opportunity. I do not think it is quite fair to assume, as Senator de Largie seemed to assume, that this document had been produced as the result of a motion which he had placed upon the notice-paper. It is only fair to the President (Senator Givens) to point out that the document is dated 3rd June, 1920, so that it is obvious that it could not have been the result of the motion submitted by Senator de Largie last week. Again, as the President has pointed out, this is a recommendation to the Government for consideration in connexion with the proposed amendment to the Public Service Act, and that being so, no action could be taken upon it either by the Government or the President and Speaker, without the indorsement of Parliament. Therefore the President could not be said to be going behind the back of Parliament. As a matter of fact, in the course now being taken, he is seeking to bring the matter before Parliament in the only way possible.
– It is hoped that the Government will not accept the recommendation and embody it in a Bill, making it a Government measure.
– The Government are not likely to do that, because this is a question for the Parliament, and not for the Government. The Government may be here to-day, and gone to-morrow.
– We hope not, at all events.
– I am, of course, speaking figuratively. This is a question for Parliament, and if the Government submitted any proposal, it would, of course, be for the consideration of Parliament. There would be no endeavour to crack the party whip over a question like this. But, as the point has been raised, I wish to make it clear that I have a perfectly open mind on this subject. I am not going to commit myself, but I refuse to attach to the motion that great importance which some honorable senators have tried to attach to it. It does not propose, as honorable senators seem to think, to take the officers of ‘the Parliament out of the control of Mr. President and Mr. Speaker. As I read the proposal, it is that, as regards the classification of those officers and the fixation of their salaries, the recommendation shall come from the Public Service Commissioner in the same way as all other public servants’ salaries and classifications are dealt with by him.
– That means practically the whole control.
– It does not. The Public Service Act, in respect of the Public Service .generally, goes very much further. For instance, the President and the Speaker have the power to suspend any officer of Parliament, or to dismiss any officer of Parliament. 2fo Minister has that power of dismissal. Under the Public .Service Act, .a Minister may suspend, but he cannot dismiss. That can only be done by the Public Service Commissioner after a long and complicated process laid down in the Public Service Act itself. The only proposal that the President and Speaker are putting forward for the consideration of the Government is that, should an amending Public’ Service Bill be brought in, then the classification and fixation of the salaries of the officers of Parliament should be done by the Public Service Commissioner, and not by them. I do not commit myself on that question. I express no opinion on it, but that is what it amounts to. I do not see, therefore, that we can say it is a very grave or important matter. It has importance, but it does not warrant the terms that have been applied to it. The printing of the paper will enable honorable senators to read it for themselves. If the Government adopt the recommendation it contains there will be ample opportunity before the Bill amending the Public Service Act comes, forward for honorable senators to make up their minds regarding it, and to deal with it in a legislative way.
Question resolved in the affirmative.
asked the Minister for Defence, upon notice - 1.Whether Collins Brothers, of Geelong, or any other woollen manufacturers, accepted Government contracts for the supply of all wool flannel required for our soldiers and supplied adulterated material?
– The answers are -
Mr. Justice Ewing: Dismissed Officials
asked the Minister representing the Minister for Home and Territories, upon notice -
– The answers are -
asked the Minister for Defence, upon notice -
Is he aware whether a great quantity of the original records of the Australian Imperial Force, comprising historic documents of great value and absolutely irreplaceable, are now stored in an inflammable wooden building, viz., the Engineers Depôt, near Alexandra-avenue?
If this is the case, will the Minister take early steps to remove them to safer premises ?
– Therecords were transferred to the Australian War Museum on 1st August last. The present building is admittedly not suitable,but every possible precaution is taken to safeguard them. Arrangements have been made for their transfer to a building which is being rendered as nearly as possible fireproof. Their transfer to this building will be made by the end of next month.
The following papers were presented : -
Public Service Act. - Promotion of J. F. B. Carroll, Postmaster-General’s Department. Promotion of J. D. Chettle, Prime Minister’s Department.
War Gratuity Acts. - Regulations amended. - Statutory Rules 1920, No. 154.
Assent to the following Bills re ported : -
Supply Bill (No. 4) 1920-21.
War Service Homes Bill.
Debate resumed from 14th October (vide page 5619), on motion by Senator Pearce -
That this Bill be now read a second time.
– This Bill, although very email in ap pearance, will be very far-reaching in its effects if we pass it into law in its present form. Its two principal provisions amount to radical alterations of the existing Judiciary Act as brought up to date. The first of these radical alterations provides that, for the future, constitutional questions may be determined by three concurring Justices of the High. Court. Honorable senators will appreciate the fact that constitutional questions almost invariably affect not merely the Commonwealth but each of the States. The High Court is a body, as has been very aptly said, which is constituted to guard the Constitution. There is in certain quarters a disposition, as exhibited on several occasions, to call in question the very existence of the High Court, or rather the justification for that existence.
– I am sorry to say that some of the High Court Justices recently seemed to abrogate the doctrine that the High Court defends, or should defend, the Constitution.
– That is an illustration of what I was just saying. The honorable senator takes exception to a decision of the High Court, and is, therefore, prepared to criticise the High Court as an institution. Many honorable senators and members of the public are apt to look upon the High Court as an institution which to some extent shackles and limits the expression of the people’6 will. We must get back to the fundamental principle that, just as the Parliament of the Commonwealth is the creation of the people of the Commonwealth according to the will of the people of the several States, expressed at referenda taken at the initiation of Federation, so, too, is th© High Court the creation of the people of the ‘Commonwealth, and its existence is the expression of their will. It is an independent and co-ordinate organ of the government of the Commonwealth. That part of the Commonwealth Constitution which is headed “ The Judicature “ opens with the words “ The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia. . . .” The High Court is. therefore, equally the creation of the Commonwealth people with this Parliament. This Parliament did not. create the High Court, although it designated, through its Executive, the particular holders of the first offices and their successors. The High Court has been brought into being just the same as this Parliament has been, and its functions are assigned to it by the Constitution. It has to determine whether or not after the establishment of the Commonwealth any legislation by State or Commonwealth which may be called in question is valid or invalid.
Originally the High Court consisted of three members, and a majority of them, that is two, were able to give a final and binding decision as to the constitutionality or otherwise of a State or Federal Act. Later, the High Court was increased numerically from three to five- Justices, and three out of the five were able to give a binding decision as to the constitutionality or otherwise of State or Federal legislation. Since this Bill was introduced, these circumstances have been quoted as a reason why we should regard three Justices, if concurring, as quite sufficient to give a binding decision as to the validity or constitutionality of a State or Commonwealth Act. I contend that those circumstances do not justify us in adopting this proposal, because at the time Parliament made the present provision, namely, that an absolute majority of the full Bench of seven Justices should be required to concur in determining the validity or otherwise of State or Commonwealth legislation, this Parliament had before it the fact that in the early days there were only three Judges, which number was later increased to five, and that, in consequence of the practice adopted previously, two Judges were .competent to give a decision, and later three. In the light of those facts, and with experience closer to them, Parliament decided, without a division, if I remember ‘ aright, that when the Bench consisted of seven Judges, four at least should concur in determining the validity or otherwise of Commonwealth or State legislation. The reasons that applied then, when Parliament insisted upon the concurrence of at least four J Judges, apply equally, and with perhaps ^greater strength, to-day.
– Is it not impracticable under present conditions?
– I will come to that. The real abstract reasons for requiring four to concur were emphatically placed before the members of another Chamber when the present Prime Minister (Mr. Hughes), as Attorney-General, introduced a measure in the House of Representatives. He strongly insisted that no legislation of this Parliament should be declared to be invalid unless by an absolute majority of the Full Court of seven. It did not necessarily mean that seven Judges would- have to sit, but four of the Full Bench of seven had to concur in determining the validity of legislation. The reasons that applied then apply equally now. The Senate is a State Chamber, and it has more particularly intrusted to it than another place the interests of the States. If this measure becomes law, it will enable three of the seven Judges of the High Court, if they concur, to affirm or deny the validity of any piece of State legislation that maybe called’ into question. The passing of certain State legislation contemporaneously with this Parliament passing Commonwealth legislation, may be called into question.
– That is being done at the present time.
– Yes ; and I do not think there will be a unanimous decision in that regard. We have insisted for years that an absolute majority of the Pull Bench shall be required to determine the validity of legislation, State or Commonwealth; and, although I have closely watched what has been taking place here and elsewhere, I cannot see that anything has arisen to justify us in departing from our present position.
SenatorRowell has just interjected that there is something in the nature of a practical difficulty. I believe there is, and that it can be reduced to this : One of the seven Judges of the High Court has assigned to him arbitration work, which takes up so much of his time that, very often, he is not available for service upon the Bench in High Court matters, in which, possibly, the validity of State or Federal laws may be in question. The second J udge, until recently, was also very largely engaged in arbitration matters; but it is hoped, by the establishment of a separate Arbitration Court for the Public Service, that his work will be reduced, and that one Judge of the High Court will be able to grapple with it. Apart from that, certain Judges have not had leave since they took office. Mr. Justice Isaacs has not taken leave, but intends doing so as soon as Mr. Justice Powers, who is abroad, returns. That will leave the High Court effectively reduced to five Judges, as one will be absent on leave out of the Commonwealth, and another almost chronically engaged on arbitration work. It is suggested that that is the reason why we should reduce the requisite concurring number from four to three; but I submit, with all respect to the Government, that we are not justified in permanently altering a constitutional provision because of temporary conditions created by the personal affairs of individual Judges, who comprise the High Court Bench. I think it is wrong, and we would be recreant to our trust to the States which we have to represent if we allow temporary personal considerations to influence us in departing from a matter that Parliament practically unanimously affirmed, namely, that when the Bench consisted of three Judges two had to concur, that when it consisted of five three had to concur, and that when they had the full strength of seven four had to agree. Because of these temporary circumstances, which, after all, are personal in their nature, we are being asked to depart from a fundamental principle. I sincerely trust that the Senate will not agree and will insist on four Judges concurring in the affirmation or denial of the validity of State or Commonwealth legislation. Supposing four Judges sat after this measure were passed, and Commonwealth or State legislation was called into question, three Judges might decide one way and the fourth in another* The opinion of the three would hold and the one who dissented would be overruled. But it might so happen that the Arbitration Judge, who was not sitting, might have agreed with the dissenting Judge. It might also happen that two Judges who were not sitting would have held with the dissenting Judge, and we might have three Judges with one opinion and four, only one of whom sat, holding another opinion. A similar case might arise later on and a legal adviser might be disposed to advise his clients to take the case before the High Court, and, having a different Bench, might get another decision.
– Does this apply only to constitutional cases ?
– Yes . Four Judges might sit and three might give a decision one way, and the fourth be overruled, notwithstanding the fact that four of the whole seven might be holding the same view as the one who was overruled.
I want honorable senators to realize that the Court does not take into consideration or come to a determination on abstract constitutional questions. Constitutional questions are not submitted to the High Court in an abstract way, such as has been the procedure of the Supreme Court of the United States of Americaand of the High Court of Australia. The High Court will not determine the validity or otherwise of an Act unless it arises in the course of a concrete case between two parties to a suit. It may therefore happen that there is a suit between “ A “ and “B” or between “A” and the Commonwealth, and three Judges out of the four decide in a particular way on a constitutional point. Later on, there may be a case on the same point between “ X “ and “ Y “ or between “ X “ and the Commonwealth, and “ X,” taking legal advice upon the matter, is informed that as the High Court has already given a decision in a similar case he is not likely to succeed. But on further consideration he may be advised that the Judges who gave that decision were D, E and F, and that G dissented from it, and he may be told that probably K, L and M would dissent from it if the case could be got before a full Bench. This’ is another concrete case, but precisely the same constitutional principle is involved. The lawyers would not know which way to advise, and they would probably say, “ If you can get so and so upon the Bench, you have a chance of upsetting the decision, but if you get »o and so upon it, the chances are that the decision cannot be upset.” This must inevitably lead . to uncertainty. Now the law is uncertain enough, HeaVen only knows, and there is nothing worse in legislation than adding to that uncertainty. If we pass this Bill we shall undoubtedly add to uncertainty. Time and again the complaint has been made here, in another place, and in the country generally, that we do not know what are our constitutional powers. One of the reasons why an absolute majority of the full strength of the High Court Bench should determine constitutional cases is that we may possess a greater measure of certainty in connexion with such cases. But if we allow a minority of the full strength of the High Court Bench to determine the validity or otherwise of constitutional propositions merely because of certain temporary circumstances, our uncertainty in respect of our constitutional limitations will be very seriously aggravated. I do hope that the Senate will not agree to the proposal. Only temporary and personal circumstances have been put forward in its justification. Any legal adviser will know that a decision given by three Justices with only one dissentient may possibly be upset by the one dissentient, and the other three Justices, if they can be got together upon the same Bench. Again, most of these appeals will be from the judgment of the Supreme Courts of the States. Many of these tribunals are very strong both numerically and fi om. the standpoint of judicial attainments.
– Those Courts are usually composed of three Judges.
– Sometimes they consist of four Judges, but three Judges generally constitute a quorum. In !New South Wales the strength of the Judiciary of the Full Court is six. Here it is five.
– And they are bound by their own decisions.
– Yes. It must also be remembered that our High Court is recruited from the same field as are the Supreme Courts of the States. From the stand-point of judicial eminence, experience, integrity and ability, there is, upon the surface, nothing to choose between them. There are men of the ‘highest attainments, and of the greatest degree of integrity to be found upon the Supreme Court Benches of the several States, just as there are similar men to be found upon the High Court Bench. Yet we are now asked to invest a minority of the High Court with power to overturn their decisions upon the gravest constitutional issues.
Let me institute a comparison with the United States. What is the position there? In the United States the Supreme Court consists of nine Justices - a Chief Justice and eight Associate Justices. In connexion with constitutional appeals, the decision of which forma the principal function of that body, a quorum of the Bench consists of six Justices. In other words at least six Judges must adjudicate upon such questions. After argument the majority opinion of the Justices 13 ascertained. When that has been done the Chief Justice assigns to one or other of his colleagues the duty of expressing that opinion in writing. The opinion is ,put in writing, and is again submitted to the whole of the Justices, when, if a majority should concur in it,it becomes the decision of the Court. But there must be a majority in favour of any decision. In other words, there must be four out of six Justices, or five put of nine Justices, who concur in it. That is the position in the United States of America. I nave already said that appeals of this character form, perhaps, the principal function of the Supreme Court of that country. There, the judicial functions of that tribunal have been very carefully regulated. Here, the judicial power of the Commonwealth is practically exercised by the High Court. Personally, I think that that tribunal has too much to do, and that it would be better if it were afforded greater opportunities of concentrating, particularly upon constitutional questions, under section 74 of our Constitution. In the United States of America, in addition to the Court of which I have spoken, there are Federal Courts called Circuit Appeal Courts, Federal Circuit Courts, and Federal District Courts. There are eightynine of these District Courts, presided over by Federal Judges - Judges of inferior standing, and who are in receipt of a lower remuneration than are their Supreme Court Judges. There are twenty-nine Circuit Court Judges and nine Circuit Courts of Appeal, which deal with a number of appeals, not appeals upon constitutional questions, but appeals from lower Courts.
– What constitutes a quorum of the Privy Council?
– I think that it is three, but I am not quite sure.
– It is three.
– The Privy Council is a body which is not comparable to any other tribunal in the world. It is not a Court in the strict sense of the term at all. There are very few, iven amongst those who have been associated with the Privy Council, who can give definite information as to its position, its limitations, and. its functions. These have varied from time to time, and the history of the Privy Council is a very complicated one. That tribunal seems ito have developed by no method or rule ais other bodies do.
The other provision in the Bill which we are now considering deals with the question of criminal jurisdiction. “When I first looked at the measure I thought that that provision was all right, and to a large extent I think that it is so :still. Until 1915 we had no legislation whatever dealing with Federal criminal jurisdiction. But in that year, during the war period, we passed a Bill to amend the Judiciary Act which enabled the
High Court to deal with criminal offences of a Federal character. In that measure we provided that it should be competent’ for the Attorney-General of the Commonwealth to file an indictment in the High Court against any individual for any alleged criminal offence of a Federal character, and we declared that the High Court should be competent to deal with such an indictment forthwith. As honorable senators are aware, the ordinary procedure in criminal matters in each of the States is as follows: - When a man is arrested under warrant upon a criminal charge he’ is brought before an inferior tribunal, either a Court of petty sessions, a magistrate, or a body of magistrates, when the case against him is presented. There, he may either reserve his defence, or he may enter upon it. But that tribunal has no power to deal with him finally. It must either dismiss the charge against him absolutely, or commit him for trial by a jury in the Supreme Court or in a District or Sessions Court. ‘That is the ordinary course of criminal procedure under British systems of jurisprudence. The result is that a man against whom a criminal charge is laid has the option at the first hearing of deciding whether he shall then open his defence and take the chance of securing a dismissal of the charge against him, or whether he shall reserve his defence until he is tried before a Supreme Court or other higher Court and a jury. It may be that he i3 unfamiliar with all the circumstances in connexion with which suspicion has rested upon him. He may, therefore, require time to prepare his defence, and also an opportunity of investigating the character of the witnesses who have been called against him, and he may further desire to test the value of their evidence. Between the time when he is committed for trial and the period when he comes up for trial his defence, may be prepared.
When we passed the Amending Judiciary Act in 1915, we had no Criminal Procedure Act for the Commonwealth. There was no provision to enable any particular tribunal, such as a Court of petty sessions or a body of magistrates, to hear a charge of a criminal character ‘against any individual, and to commit him for trial before the High Court. But in each of the
States there was a provision which enabled such bodies to hear criminal charges and to commit accused persons to Courts of the States, but not to the High Court. In 1915, during the war period, we enacted that the High Court should be competent to deal with criminal offences, and we empowered the Attorney-General to file an indictment against any accused individual, and have him brought before the High Court without any .previous hearing. At that time, we knew that we had no procedure of a preliminary character, and that we had no Courts to carry out that procedure. The measure of which I speak was assented to, and under Lt the Attorney-General may file an indictment against any individual, and, without any preliminary hearing, have him brought before the High Court and dealt with by a jury. But we were then in a state of war, and we suspected that there were offenders in our midst who were plotting against the peace, order, good government,, and even the safety and existence, of the Commonwealth.
– That measure was not brought forward as war legislation.
– But its operation was limited to the period of the war and six months thereafter.
– By an amendment which was made in another branch of the Legislature.
– The honorable senator’s argument is that it was war legislation.
– It was war-time legislation. The measure was passed during the pendency of the war, and it was ‘because Parliament realized the seriousness of the departure which was being made from the normal procedure that the period of its operation was definitely fixed.
– Three States possess this power now under State jurisdiction.
– They do not. I know that that has been asserted by my honorable friend’s colleagues in another place, but the cases cited are not at all parallel. The Minister who made the statement elsewhere should have known that. The reason why the cases are not parallel is that in every State of the Commonwealth the ordinary procedure is that an accused person must be brought up for a preliminary hearing, either before a magistrate, justices, or a Court of petty sessions, and the charge against him must either be dismissed by that tribunal or he must be committed for trial. He is thus afforded an opportunity of preparing ‘ his defence. If it is dismissed, the matter is done with. If the accused is committed for trial, he has an opportunity of preparing a defence, and the case goes up for trial. That is the ordinary procedure in every State, but over and above that particular procedure the Attorney-General has in the several States the reserve power to indict an individual directly without previous trial or inquiry in the lower Court. How often has this reserve power been exercised ? The normal and ordinary procedure is that which I have described, but here we are asked to enact nothing but “what is the reserve power in the States. That is to say, we are asked to make the reserve power in the States the ordinary normal procedure in the Commonwealth.
– That is a misrepresentation of the position.
– It is not. The ordinary reserve power which exists in each State has been referred to elsewhere as justifying this amendment.
– Does the honorable senator contend that this is the procedure which would be adopted normally?
– I do not say that. What I maintain is that this is all we are asked to enact now.
– The honorable senator says that the Senate is being asked to make what is the reserve power of the States the ordinary normal power of the Commonwealth.
– That is so. We are asked to do that in this Bill.
– We are not.
– Before we passed the Act of 1915 the Commonwealth had the power to prosecute for indictable offences. Section 69 of the principal Act provided that an indictment could be laid in the High Court, or in the Supreme Court of a State, by the Attorney-General of the Commonwealth or by any other person appointed in that behalf by the Governor-General. I understand that the practice has been . to appoint the several Attorneys-General of the States to represent the Commonwealth in this respect, and that prior to the Act of 1915 they have been able to lay informations on behalf of the Commonwealth in the several Supreme Courts of the States. Why, therefore, is there necessity for this amendment ? We already have the power to act through the Attorneys- General of the different States.
– Why cannot the AttorneyGeneral of the Commonwealth have authority to act on his own behalf ?
– He ought to be in a position to do so, but only when the ordinary criminal procedure applies to the High Court. It was not until 1915 that we sought power to endow the High Court with criminal jurisdiction, and proposed to give the Commonwealth AttorneyGeneral power to bring an offender before that Court by direct indictment. But when that, proposal was put to Parliament, it said, “ This will be an alteration for the period ‘of the war, and 6ix months longer, and shall not continue in force afterwards.” We are now asked to make it perpetual. I ask the Senate not to do so. .We certainly ought to let the Attorney-General have this reserve power, but first let us have a proper criminal procedure provided, so that when it is decided, without the intervention of State Courts or the assistance of State AttorneysGeneral, to prosecute an individual for an alleged offence against the Commonwealth criminal law, there will be in existence a procedure somewhat analogous to that which is in operation in the States. Then the Attorney-General can take this reserve power, but do not let us start off by conferring upon him a power which is only held in reserve by the AttorneysGeneral of the several States, and which is practically never exercised. No matter what the Minister may say. the only power we are asked to give the Commonwealth Attorney-General is the reserve power which the State AttorneysGeneral enjoy but do not exercise, leaving the ordinary criminal procedure to be followed in all normal actions. The .State Attorneys-General may have this reserve power, but that is no justification for vesting in the Commonwealth AttorneyGeneral that power only.
– It is not the only power he would have. He has two channels open to him as well.
– That is what I have said.
– It will merely be a reserve power in the case of the Commonwealth.
– But we have not only the Attorney-General to consider. I am not speaking from the point of view of the convenience and power of the AttorneyGeneral, but from the point of view of the rights of the subject, and I claim that the subject who is charged with a Federal criminal offence should not be placed in a worse position or in greater jeopardy than he would be if he were being prosecuted by a State. The Commonwealth Attorney-General has ample power at present through the deputies in the several States who may be appointed by the Governor-General, without being given this additional power. If we are to invoke the criminal jurisdiction of the High Court of the Commonwealth, let us, before doing so, adopt a comprehensive system of procedure that would be characteristic of criminal law wherever the British flag waves. I hope honorable senators will not agree to the proposal to’ perpetuate this legislation. If this power is wanted let it be exercised merely as a reserve power auxiliary to similar criminal procedure obtaining in every State.
– That is all we ask for.
.- A layman approaches a measure of this kind with considerable temerity, but I- do not wish to record a vote in opposition to the Bill unless I am given some reason for doing so. We are all indebted to Senator Keating for the very complete analysis he has made of the measure ; he has given us some food for thought, which will necessarily make us very careful in exercising our votes, either on the second reading or in Committee, should the Bill reach that stage. I agree with the honorable senator that it is very dangerous to allow constitutional questions to be settled by a minority of the High Court. It is quite possible, in several eventualities which the honorable senator has outlined, that a decision may be arrived at on a constitutional question vital to the interests of a State, by a minority of the Justices constituting the High Court, and that subsequently a different decision may be given when there is a full sitting of the Court. I realize the difficulties under which the Government are labouring in consequence of the fact that certain Justices of the High Court are engaged in other work, and because, in the near future, one Justice intends to. take leave of absence which is long overdue. At the same time, it is a rather dangerous expedient to overcome these difficulties by allowing a minority of the Justices to settle a constitutional point which may vitally affect the interests of one or more States.
The other phase of the question referred to«by Senator Keating is also important. We all know the ordinary procedure .followed in criminal cases, and that the preliminary trial before a stipendiary magistrate or justice of the peace may be all-important to the person charged in the preparation of his defence.
– In 999 cases out of 1,000, that will be the procedure followed.
– But it is not provided for in the present Judiciary Act.
– Neither is the procedure laid down in the State Act.
– I understand the Minister implies that the High Court will have very few criminal cases referred to it, and that it will be only in very exceptional cases that the power this Bill seeks to bestow upon it will be exercised. But there may be, in these very few cases, some very grave injustice done to an individual. During a state of war, I am always prepared to give exceptional powers to the Judiciary. There are occasions when it is necessary to act promptly, even at the risk of doing an injustice to the individual. The rights of the -nations must be protected. But in the time of peace, every effort should be made to see that no injustice is done to the individual. Charged with an offence against the Commonwealth, he may perhaps be convicted in times of excitement, or under circumstances in which full, deliberate, and cool consideration has not been exercised, and he may probably be ruined; whereas, if he had had the same opportunity for placing his defence before the tribunals of justice now existing in the different States, he might be in a position to prove his innocence, and thus save his reputation, or- perhaps his life. Unless the Minister can say something in rebuttal of the argument advanced by the honor able and learned senator who has preceded me (Senator Keating), I am inclined to refuse to place in the hands of the High Court more immediate powers to deal with criminals than those which now obtain in the Supreme Court6 of the State.
.- I am strongly in favour of the views put forward by Senator Keating, particularly in regard to the proposition to make decisions of the High Court on constitutional questions dependent on the verdict of three Justices only. Throughout the British Empire, with the one exception of the Privy Council, the Courts have always been bound by their own decisions. That i3 to say, when a point has once been decided by a Court, any other - Court of equal rank’ has been bound by that particular decision. This rule has applied to all the Supreme Courts of the Dominions and the Courts in Great Britain right up to the House of Lords. At no time have they held themselves free to overrule a previous decision. This Very admirable rule has led to absolute certainty, so far as the facts can be applied to any particular case, with the result that a legal practitioner, if he knows the law, is able to give pretty definite advice to a client. The remedy then is clear. If the law, as interpreted by any Court, conflicts with the views of the people, it can be altered by an Act of Parliament, and in that way only. The Privy Council, on the other hand, has always taken the stand that it is free to set aside a previous decision if it is considered manifestly wrong. No doubt the Privy Council has been guided to some extent by the fact that it is a Court of Appeal from every part of the Empire, and so has to deal with many different systems of law. In Cape Colony, for instance, the Roman Dutch law is in operation, and it is possible that members of the Privy Council are not always altogether familiar with its interpretation in South Africa, and so, in -general principle, they have held themselves free to reverse previous decisions, although this has been done only on very rare occasions. When the High Court of Australia was established it was early laid down that the Justices would follow the practice of the Privy Council. Our system of constitutional law has been laid down in a most emphatic manner for many years, and a great deal of money has been spent by litigants to establish their rights. Then we got a change in the constitution of the Court and the whole thing went “by the board.” No one can now advise with any degree of certainty on constitutional questions until the whole procedure has been gone through again, and fresh pronouncements given by the High Court as now constituted on these same questions that were thought to be finally settled for us. In addition, by the Ministerial proposals, it is proposed to still further destroy any chance of arriving at finality by providing, as Senator Keating has so ably pointed out, for a minority of the Court to give a decision, leaving it open for other parties to bring the same question up again next week. That is to say, a pronouncement may be given this week, and the whole case be re-opened next week with a possibility of the judgment being upset. In view of the fact that the High Court thus holds itself open to overrule its own decisions in this way, I emphatically protest against this proposed amendment of the Judiciary Act to allow three Justices of the High Court to decide important questions.
– I think it is a great advantage that measures of this nature should be subjected to the most searching criticism, but I take exception to the nature of the criticism directed at this Bill by Senator Keating, because he has hardly been fair in some of his remarks. He seems to be more desirous of scoring a point than of elucidating the facts .
– The honorable senator’s remarks were certainly capable of that construction at all events. He knows the law and the Judiciary Act probably better than any other honorable senator in this Chamber, and, therefore, it would only have been fair if, when he made one or two of his important points, he had drawn attention to the qualification contained in the Act in regard to what he had to say. He made an appeal that is always forceful to a Chamber of this character, an appeal in regard to constitutional questions as affecting State rights. Obviously that is a matter, above all others, that appeals to honorable senators. But when he was making his points one would have expected him to draw attention to the safeguards in Part XII. of the Judiciary Act. He made no mention of these safeguards, although he is quite aware of them, and it would appear therefore that he wanted to score a point against the Bill.
– Part XII. is optional, and is exercisable by the GovernorGeneral only.
– As the honorable senator did not direct attention to Part XII. I propose to do so, and to show what bearing it has upon the very class of cases in regard to which the honorable senator made such an eloquent appeal, that is, the questions affecting the States as States - a matter in which this Chamber is particularly interested.
– Can you tell us if Part XII. has ever been, or ever will be, operative?
– Part XII. provides -
Provided that if any of the Justices are absent from the Commonwealth or incapacitated by illness, the matter may be heard and determined by all the other justices.
– Can any State invoke that power?
– No; it rests with the Governor-General.
– It applies only when the Federal Government or the GovernorGeneral invites the Court to take that action.
– It is a very important qualification, which the honorable senator might have mentioned, and he now suggests that it is a dead letter.
– I did not say it was a dead letter. I asked, Has it ever been operative ?
– The inference from the honorable senator’s interjection is that he thinks it is a dead letter. I am not aware of any case in which it has been operative, but I have known of cases where Cabinets have very seriously discussed the advisability of referring measures to the High Court under that power, and I have no doubt at all that that part of the Act is well in the minds of all Ministers who have to administer the laws and assist in the framing of laws, or who approach the consideration of debatable questions that are on the border line and threaten to invade the domain of State legislation.
– Do you think the Justices of the High Court would give a decision on an abstract constitutional question..
– I am trying to point out that this would not be an abstract constitutional question, but a specific issue.
Another point which Senator Keating might have mentioned as qualifying his objection to the Bill is that the great majority of constitutional judgments by the High Court have been given by three or a less number of Judges.
– We knew that when we passed the present law, making four Justices necessary.
– It is a fact which the honorable senator may not gainsay.
– I emphasized it, and showed that we knew it was a fact.
– It is also a fact that during all that time we were in a far more uncertain position as regards the constitutional rights of the States than we are to-day. The respective powers of the Commonwealth and the States have now been marked out, but when the Constitution was being interpreted by the High Court of Australia, Senator Keating was quite content that all those important judgments should be given very often by only two Judges.
– We had to be content.
– There was no “ had to be “ about it. Senator Keating, as a member of Parliament, could have raised all these objections. If it was not safe to trust decisions on constitutional matters to three Justices of the High Court, he could have used his power as a Minister to increase the number. There was nothing in the constitution of the High Court limiting it to three Justices at the outset. It is very evident, therefore, that Parliament was prepared to accept the decision of three Justices, and very often less than three, on very important constitutional questions; and many judgments, given by only two of the Justices of the High Court, are held to be quite sound to-day..
I come now to the third point raised. Senator Keating is well aware that the Bill does not provide that the decision shall not be given by more than three Judges. It is not a limitation, and he knows quite well that the Chief Justice of the High Court has the authority to convoke an assembly of the Judges. He knows, too, that if he were Chief Justice, he would have regard, when convoking an assembly of Judges, to the magnitude of the cases to be decided. Any human being gifted with, common sense - and the Chief Justice of the High Court of Australia must be credited with common sense - would, in the interests of the Court over which he presides, and for its good name, require the attendance of as many Judges as were available to decide these important constitutional questions. This has been the invariable procedure. Senator Keating might well have put forward those three points, because we are not here simply to destroy measures but to offer constructive criticism of them. Those points seem to me to be qualifications of Senator Keating’s criticism which, holding the position he does, and being one of the few lawyers in a body of laymen, he might very properly have brought under notice. We are in a more difficult position than many of the States in this regard, by reason of the fact that we cannot appoint a Deputy, or acting Judge, or Commissioner, if any of the Judges are not available by reason of illness or other cause. We must appoint a Judge, under the terms of the Constitution, for life. Therefore, in the case of illness, it is quite conceivable that, even with the High Court Bench at its present strength, we might not be able to secure the attendance of four Judges. That is a factor that should be taken into consideration by the Senate.
Senator Keating also, somewhat unfairly, depreciated the comparison with the Privy Council. The Privy Council deals with matters not, perhaps, of a constitutional character as referred to in our legislation, but of constitutional bearing, arising out of individual cases. It lays down the law of the Empire, and deals with matters of wide effect.
– .The Privy Council does not lay down the law of the Empire.
– It does, because the judgment of the Privy Council upon any point is recognised and observed by the Courts of the Empire.
– The Privy Council ia not the final Court of Appeal for any Court in Great Britain. It is the Court of Appeal only from the. Courts of what are called “ the Colonies and Plantations.”
– When the Privy Council has given judgment in a case coming from any of the Dominions, litigants are well advised by their counsel to accept it as final on that issue, because they know that their opponents may appeal to the Privy Council, which will stand by its previous judgment. Will Senator Keating admit that a litigant in Australia can appeal to the Privy Council from the High Court on other than constitutional matters?
– Then any judgment which the Privy Council gives in that appeal is taken as a standard and guide, because it is the law as laid down by the final and ultimate Court of Appeal on such matters 1
– It is not final and conclusive in Great Britain.
– I do not say it is; but in the respect that I have indicated the Privy Council is a Court of high standing and tremendous scope, dealing with large and important issues. In that Court three Judges are able to give a judgment. Surely that fact should be some guide to us.
– It is difficult to get the Judges of the Privy Council together. You might have to hunt up one from the Riviera, another from’ Scotland, and another from Devonshire.
– I understand that the Privy Council does not meet very frequently.
On the question of indictable offences, the obligation is laid on those who object to the Commonwealth taking this power, which is only similar to that held by a number of the States, to show that the Commonwealth has abused it during the years it has had it. I do not take it to be part of our duty, as representative of States in this Chamber, to put the Commonwealth in a worse position than the States. Senator Keating seemed to challenge my statement, which I made on the authority of one of my colleagues, that three of the States had this reserve power.
– I say they have it as a reserve power. I did not challenge that statement.
– The Queensland Criminal Code, drafted by the late Mr. Justice Griffith, provides in section 561 -
A Crown Law Officer may present an indictment in any Court of criminal jurisdiction against any person for an indictable offence, whether the accused person has been committed for trial or not. An officer appointed by the Governor in Council to present indictment in any Court of criminal jurisdiction may present an indictment in that Court against any person for an indictable offence within the jurisdiction of the Court, whether the accused person has been committed for trial or not.
I see no reference there to any reserve power. It is an express power given to the Attorney-General. It may be called an alternative power or method. We are simply proposing a similar alternative in the case of the Commonwealth.
– Is not an alternative method a reserve power?
– Not in the sense that Senator Keating uses it. Section 334 of the South Australian Criminal Law Consolidation Act states -
Any person may be put upon his trial at any criminal session of the Supreme Court for any crime or offence whatsoever, upon an information presented to the said Court in the name and by the authority of Her Majesty’s
Attorney-General of the province aforesaid, and every provision of the common law and of Acts of Parliament for the time being in force within the said province relating to indictments and to the manner and form of pleading thereto and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information to be so presented as aforesaid.
Can Senator Senior tell us whether any terrible scandals have arisen through that power being in the hands of the AttorneyGeneral of South Australia? If so, I have never heard of them. In the Victorian Crimes Act 1890, section 388 refers to powers with regard to presentments, and section 390 provides -
Nothing herein contained shall in any manner alter or affect the power which Her Majesty’s Attorney-General possesses at common law to file by virtue of his office an information in the Supreme Court.
– An appeal may lie from the State Supreme Court to the High Court.
– I take it that an appeal may also lie from a Justice of the High Court to the full High Court. The present procedure is that the Commonwealth may proceed to prosecute for an indictable offence through the channel of the Attorney-General of a State. It is not likely, but still it is thinkable, that an indictable offence may be committed within a State by a person who would have the sympathy and support of the Government of that State. If any honorable senator regards that as farfetched, let me tell him that during the war, when the existence of the Commonwealth was at stake, one State Government refused to administer the Commonwealth War Precautions Act in certain of its aspects, and the Commonwealth Unlawful Associations Act. They refused also to allow their law officers and police to enforce those Acts.
– Which State was that?
– Queensland. If a State Government will take up that attitude in time of war, is it unthinkable that in certain contingencies a State AttorneyGeneral may refuse to allow himself to be the vehicle of the prosecution of one of the citizens of his State for a criminal offence against a Commonwealth law? Why should the Commonwealth say, “ This is a reserve power, or an alter native power, with which certain States have seen fit to clothe themselves, but we, as a Commonwealth, will not arm ourselves with it, because of some absurd idea that it will be a reflection on the State Courts, or because there may be some day a Commonwealth Attorney-General who will abuse it in such a way as to be unfair to the defendant?”
– That eventuality is just as likely as the case of the State Government you quoted.
– If the power is given to the Commonwealth it simply means that the Commonwealth will have an alternative method of procedure. As I interjected when Senator Keating was speaking, in 999 cases out of 1,000 the Commonwealth Attorney-General would proceed through the medium of the State Attorney-General in the ordinary State Courts, but if there should ever be a case which the Commonwealth AttorneyGeneral thought fit in the interests of the Commonwealth to take to the ‘High Court, why should he not have the power to do so? Why should not this Parliament give the Commonwealth Attorney-General that power?
– Why should not the subject have the same rights?
– The honorable senator seems to assume that some injustice is going to be done by the High Court if a case happens to come before it.
– I do not think the subject will get the same rights.
– If it is an injustice, the Supreme Court of a State can do an injustice. The State AttorneyGeneral can take a man to the Supreme Court without indictment.
– But he does not
– He does not, nor will the Commonwealth Attorney-General do so. He will have just as much common sense, and be just as much responsive to public opinion, as the State AttorneyGeneral. The State Attorney-General does not adopt this procedure, because he is a man of common sense, and has to answer to public opinion, but the reserve power is there. Why should we deny the same reserve or alternative power to the Commonwealth Attorney-General? Let us by all means preserve the rights of the States, and let us not, in this legislation, place arbitrary power where it is not required; but let us not, for the mere sake of amending or rejecting Bills, refuse to be as just to ourselves as we recognise that other people are to themselves. Let us give the Commonwealth, which has to enforce Commonwealth laws, the same means as are given to those who have to enforce the State laws.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Clause 2 -
Section 23 of the principal Act is amended by omitting from sub-section (1) thereof the words “ unless a majority of all the Justices concur in the decision “ and inserting in their stead the words “ unless at least three Justices concur in the decision.”
– I was going to move an amendment which, if carried, would practically mean negativing the clause, thus leaving the law as it stands at present. That would mean that the majority of the whole number of Justices must concur in a constitutional decision. I therefore propose not to move the amendment, but simply to vote against the clause. I hope the Committee will refuse to pass the clause, and so allow the law for the present to stand as it is.
Question - That the clause stand as printed - put. The Committee divided.
Majority . . 3
Question so resolved in the affirmative.
Clause agreed to.
Clause 3 (Duration of Judiciary Act 1915).
– This is the clause which provides the extraordinary criminal procedure to which I referred when the Bill was before the Senate, and I trust honorable senators will not insist on perpetuating that procedure. It has been said by the Minister for Defence (Senator Pearce) that this is only a reserve power in the sense that a State Attorney-General holds a reserve power. I desire to say again that a State Attorney-General never exercises the power because there is the ordinary procedure for the prosecution of criminal offenders, and it is only in the most extraordinary emergency that he exercises the power of directly presenting an alleged criminal before the Court without a preliminary inquiry. I agree with all the Minister has said as to the necessity of the Commonwealth Attorney-General possessing the power to prosecute criminal offenders where a State Attorney-General or a State Government are not prepared to assist. But the remedy forovercoming the difficulty with which the Commonwealth Government may at some time be confronted is to have a proper criminal procedure, instead of perpetuating what was only adopted as a temporary war expedient. I trust the Senate will reject this particular clause, as, by doing so, it will not be saying that the Commonwealth shall not have the power to prosecute an alleged criminal offender in the High Court. It will merely provide that if we want to prosecute we shall have to adopt the proper procedure, which is not a difficult matter. The Minister has quoted from the Queensland Criminal Code and from a Victorian and South Australian Statute. He might also have quoted from the Tasmanian Act. He will find, however, that there is a regular form of procedure laid down, and that the subject being prosecuted in a State Court by State authorities for criminal offences has certain rights, privileges, and opportunities of defending himself. Why should he be denied these when he is being prosecuted for analleged criminal offence before the High Court? The Minister seems absolutely deaf to that phase of the question. He has not denied the fact that the power held by the States is a reserve power. What we are asked for is that it should he the whole power. Senator Crawford. - Has that power ever been exercised ?
– I am not sure, but, so far as my memory serves me, it has only once within my recollection been employed in the State of Tasmania. It is only used where Justices will not permit, or where it is impracticable or impossible to get Justices to have, a preliminary inquiry. The distinctive foundation of all British criminal jurisprudence is to regard an alleged offender as innocent until he is proved’ guilty, and, before he is brought before a Judge and jury, he has the opportunity of knowing the strength of the case that is to be presented against him, and of preparing his defence. Let the Attorney-General of the Commonwealth or the Government have the power to criminally prosecute an alleged Federal offender in the High Court, but let us follow the procedure which is adopted in connexion with criminal offences under State laws.
– As some honorable senators were not present when I replied to Senator Keating’s observations on the second reading of this measure, I desire to direct their attention to the fact that the point at issue is- that under the State procedure the State Attorney-General, in proceeding in criminal indictments against a person, has the alternative to go to the Police Court or to another Court, or to take the case direct to the Supreme Court. When the Commonwealth desires to criminally prosecute, the Commonwealth Attorney-General cannot approach the State Court direct, but has to do so through the medium of the State AttorneyGeneral. During the war period we took the power to prosecute direct in the High Court in cases of criminal indictment. When that measure was introduced it was not regarded as war legislation, but a permanent amendment of our Judiciary Act. It happened, however, to be brought forward in another place at a time when other war legislation was under consideration, and an amendment was embodied to make the provision operative for the period, of the war and for six months thereafter. That amendment was introduced because some enterprising individual discovered that these words, although in other measures, were not embodied in that particular amending Bill. The Government were anxious to get the Bill through, and the amendment was, therefore, accepted, because the Government realized that when the war was over they would have the opportunity of reviewing the position.
– It was passed at the same time as the High Court Procedure Bill and Crimes Bill. .
– That was in 1915, and I was a member of the Government that introduced the amending Judiciary Bill. I also stated in reply to Senator Keating’s speech that this is not a power that the Government intend to exercise, and that in all probability it will not be employed in one case out of 10,000. It is merely a reserve power, and during the war period it was amply demonstrated that we should have this authority. During the war. the War Precautions Act and the Unlawful Associations Act were passed, and the State Government of Queensland refused to allow its officers to enforce the provisions of the Unlawful Associations Act or to allow us to take any action through their State officers under the War Precautions Act. In dealing with aliens and Italians resident in the Commonwealth, the Queensland Government refused to allow us to have the assistance of their legal machinery, and that is a fact that cannot be controverted. We then had the power to criminally prosecute in the High Court, but by virtue of the amendment embodied in the Bill in another place when it was introduced, this provision will now cease to operate, and we are saying that we want to have that reserve power as part of our permanent authority. That is all I am asking the Committee to agree to.
– Why not provide the proper procedure that usually accompanies such legislation?
– I suppose the honorable ‘ senator means that we should establish a Federal Court of Criminal Jurisdiction.
– No. Let an offender go before a justice or a magistrate.
– That is, invest the Courts with Federal jurisdiction. If that is the contention of the honorable senator I am willing to bring the matter before the Attorney-General, but I am not prepared to say whether that can be done. As I have already stated, it is only under extraordinary conditions that the power will be exercised, as in nearly every case the service of a State Attorney-General will be used. ‘When we cannot have the assistance of State officers we should, have this reserve power.
– I have already said in Committee, and in the Senate, that I have no objection to the Commonwealth having the power to prosecute alleged criminal offenders in Commonwealth Courts. The only exception I take to perpetuating this particular provision is that we do not provide for the subject those safeguards which are afforded him under the criminal procedure in the States, and, in fact, in every British community. The -criminal procedure in existence in all the States, which is modelled on English procedure, provides a preliminary hearing before a magistrate or justice to determine whether a man should be committed for trial.
– But the Commonwealth has no magistrates.
– No, but it usually has the assistance of State magistrates in connexion with the administration of its laws. There is not a penal Act under which it is not competent for a Police Magistrate to hear a case and impose a penalty.
– Does not that mean that the Commonwealth uses the machinery of the States?
– Yes. Why should we not- provide that if the Commonwealth Attorney-General wishes to prosecute in the High Court he shall first have the alleged offender brought before magistrates, or a Court of petty sessions, where the charge against him shall either be dismissed or he shall be sent on for trial before the High Court?
– If the Bill be passed in its present form, will not the Attorney-General have that power?
– But we are asked to give him power to directly indict a man in the High Court without any previous inquiry.
– It is not proposed to take away his power to bring an accused person, through the medium of any State Attorney-General, before a lower Court.
– That is so. But it is proposed that the Commonwealth Attorney-General shall continue to have power to bring an alleged offender before the High Court without the intervention of Justices or of a grand jury. I ask that in regard to Commonwealth prosecutions a similar procedure shall be adopted to that which is adopted in regard to State prosecutions. I see no rea’son why, in respect to ‘offenders against Commonwealth laws, the Commonwealth AttorneyGeneral should not be given similar powers in relation to the High Court to those which the State Attorneys-General possess in relation to their Supreme Courts.
– Take, for example, cases involving offences against the Customs Act.
– Some of those cases are dealt with summarily, but there are others which are indictable. In such cases an alleged offender should know precisely the nature of the charge which is preferred against him.
– Offenders against the Customs Act are usually prosecuted in the State Courts.
– But under this Bill the Attorney-General of the Commonwealth may bring them direct before the High Court. I think that this particular power was exercised in South Australia in connexion with the Snow case. In one of the cases heard in that State, proceedings became very much “mucked up “ in respect of the calling of the jury.
– In the Snow case the accused was given plenty of notice, because the proceedings lasted about three years.
– Under the power which we conferred in the Judiciary Act of 1915 the jury know the whole of the case against any accused person, just as soon as does the accused himself. If the Minister will bring under the notice of his colleagues the desirableness of laying down some procedure dealing with criminal prosecutions under Commonwealth laws I shall be satisfied.
– I undertake to do that.
Clause agreed to.
Clauses 4 and 5 agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
In Committee (Consideration of House of Representatives’ amendments resumed from 14th October, vide page 5622):
Clause 8 -
Section C of the principal Act is amended -
House of Representatives’ amendment -
After “amended” and before paragraph (a) insert: - “ (aa) by omitting from the definition of limited coast-trade ship’ the words (not exceding a radius of four hundred miles)’ and inserting in their stead the words ‘ (not exceeding the limits for home-trade or coast-trade ships, as the case may be, fixed for the port, at the commencement of this section, by any State law) ‘; (ab) by adding at the end of the definition of’ River and bay ship ‘ the words ‘ and also includes any ship or class of ships, specified by the Minister by notice in the Gazette, which trades exclusively within the limits of a specified port, bay or river and within a radius of three nautical miles seaward from the entrance of the port, bay or river:’;”.
Upon which Senator Russell had moved -
That the amendment be agreed to.
– As honorable senators are aware, I have not been able to follow the amendments which have been made in this Bill very closely. Speaking generally, however, I am disposed to agree with them. But I take exception to the amendment made by another place in proposed now paragraph aa, which seeks to eliminate the words “ not exceeding a radius of 400 miles “ from thedefinition of a “ limited coast trade ship,” and to insert in lieu thereof the words “ not exceeding the limits for home trade or coast trade ships, as the case may be, fixed for the port, at the commencement of this section, by any State law.” The Royal Commission which investigated this Bill considered the definition of a limited coast trade ship very thoroughly, and decided upon a radius of 400 miles. For some years past,
Victoria has allowed this class of ship to trade even from Port Augusta to Newcastle.
– Does the honorable senator think that a Victorian boat should be debarred from trading in Australian waters?
– But under this Bill it is proposed to confine a South Australian vessel to South Australian waters. To my mind, the original proposition to limit the radius within which a limited coast trade ship might trade to 400 miles, was preferable to the amendment which we are now considering. At present, Victorian vessels are being given a benefit over vessels of other States. The VicePresident of the Executive Council will probably argue that the 400-miles radius for coastal ships would not permit of vessels trading from Adelaide to Melbourne, or from Melbourne to Sydney. But the laws which have been passed never intended that they should do so. Under the amendment, an injustice will be done to the other States for the benefit of Victoria.
. -The intention of the amendment is to strike out the radius of 400 miles, and to accept the limits for home trade or coast trade ships which are imposed by any State law. Senator Guthrie has been absent from South Australia for quite a long time, otherwise he would know that recently an amendment of the State law has been made, under which the South Australian border has been extended to Albany on the west, and to Melbourne on the east.
– Victoria drove South Australia into that.
– The Commonwealth is determined to impose its own definitions in respect of our navigation laws, after the fullest investigation. In my judgment, it would bea mistake for us to lay down arbitrary rules now. I do not think it is advisable to impose ‘any more restrictions upon coast trade ships than are absolutely necessary.
Motion agreed to.
Amendments to insert new clauses 9a, 19a, 20a, 20b, 21a and 21b and amendments in clauses 10 and 22 agreed to.
Clause 23 -
Section 88 of the principal Act is amended by inserting in sub-section ( 1 ) after the words “ otherwise than in accordance with the terms of his agreement “ the words “ or the provisions of this Act”.
House of Representatives’ Amendment. - Omit the clause and insert the following new clause: - “ 23. Section88 of the principal Act is repealed, and the following section inserted in its stead: -
( 1 ) If any seaman, employed on a ship registered in Australia, is discharged -
elsewhere than at the port of discharge specified in his agreement;
otherwise than in accordance with the terms of his agreement or the provisions of this Act;
without fault on his part justifying his discharge; and
without his consent, the provisions of sub-sections (5) and (6) of section 50 of this Act shall apply as if the seaman had been discharged in pursuance of sub-section (3) of that section.’ “
– I move -
That the amendment be disagreed to, and the following consequential amendments made in clause 23: -
Page 5, line 40, after “ amended “ insert “ - (a) “.
Page 5, at the end of clause add “ ; and
by omitting from sub-section (2) thereof the words the master or owner shall provide him with a passage to that port or such other port as is mutually agreed to with the approval of the proper authority ‘ and inserting in their stead the words the provisions of sub-sections (5) and (6) of section50 of this Act shall also apply as if the seaman had been discharged in pursuance of sub-section ( 3 ) of that section.’ “
The object of the amendment is to insure that owners of vessels shall be liable to pay the expense of transporting to their home ports any seamen discharged away from those ports.
Motion agreed to.
Amendment inserting new clause 28a agreed to.
House of Representatives’ Amendment. - After clause 33, insert the following new clause : - “ (33a.) Section 135 of the principal Act is amended by adding the following paragraph: -
– I move -
That the amendment be agreed to, with the following amend ments : -
the omission of the words “adding the following paragraph : - ’ e) ’ ” and the insertion in their stead of the words “inserting therein after- paragraph (a) the following paragraph: - ‘ (aa)”’; and
the insertion, after the word “prescribed” of the word “; and”.
This is another of the suggestions brought forward by the seamen. It was pointed out by them that, whilst the great majority of the steam-ships operating on the coast were equipped with a wheelhouse which protected the man at the wheel from the weather, certain shipowners had refused to make such provision. The new requirement is safeguarded, it will be observed, by a qualification that the wheelhouse can be required only where such can be provided without detriment to the safe navigation of the ship. If a permanent structure cannot be erected for this reason, temporary shelter in the form of canvas screens or the like must be provided, as will be required by the regulations. At the suggestion of the Parliamentary Draftsman, the position of the new paragraph in the section is being altered from the end, where it is among a number of alternatives, to follow paragraph a, where it will stand as a separate requirement. The alteration is purely a formal one.
Motion agreed to.
Amendments inserting new clauses 34, 53a, and 118a, and amendments in clauses 35, 64, and 96 agreed to.
House of Representatives’ Amendment. - After clause 123 insert the following new clause: - “ 123a. Section four hundred and twentythree of the principal Act is amended by inserting therein after the words ‘ apply to ‘ the words ‘ barges or other vessels not equipped with means of propulsion or to ‘.”
Motion (by Senator Russell) proposed -
That the amendment be agreed to.
– Apparently this is a suspension of the Act in order to exempt certain barges and other vessels not equipped with means of propul sion. I would like to know from the Minister whether the exemption will apply only to barges employed on the River Murray.
– In connexion with the recent proclamation of the coasting trade provisions of the Navigation Act requiring ships engaged in the coasting trade to obtain licences, the question arose as to whether barges on the River Murray would require to be provided with licences. These barges are large flatbottomed vessels without engines or other means of propulsion, which are loaded with wool and other goods, and towed, sometimes two oar three in a string, behind the paddle steamers engaged in the river traffic. The only man required aboard the barge is the helmsman, who forms portion of the crew of the towing steamer. As there was some doubt on the point as to whether these barges required licences, the matter was referred to the Crown Law Department for advice. The opinion of the SolicitorGeneral was somewhat startling. In his opinion, a barge such as those above referred to comes within the definition of “ ship “ in section 6 of the Navigation Act. It follows that the requirements of the’ Navigation Act in regard to ships would apply to these barges. I may mention just a few instances of the effect of this. Under section 14 each barge would be required to carry a certificated master and mate. ‘ They would also be subject to the sections in regard to provisions, accommodation for officers and men, and licences to engage in the coasting trade. Apart from these main provisions, quite ‘a number of other sections would apply. This, of course, was never intended, and if put into operation, would reduce the administration of the Act to an absurdity. As the Act stands, there is no power to exempt these barges from the requirements mentioned. As it is highly desirable that such power should be given and exercised, it is now proposed that section 423 of the Act, which gives the Minister power to suspend the application of the Act or any portion of the Act to fishing boats, yachts, missionary ships, &c, be amended by insert’ ing after the words “ shall not apply “ the words “ to barges not equipped with means of propulsion or “.
.- The exemption will apparently apply to barges employed on the open. sea. For instance, a small’ steamer often tows barges carrying 500 or 600 tons, of iron ore from Iron Knob to Port Pirie. This is the open sea, and the calling of a man employed on one of these barges is decidedly dan- .gerous.
– They do not carry crews on those barges ?
– They must carry crews, because they are frequently towed up the coast. On one occasion, in the Gulf, a steamer towed a. barge right under, and drowned the men on board. I am prepared to allow the provision to stand, so far as it concerns barges on inland waters of Australia, but I contend that, if barges are taken to sea, crews should be provided. Otherwise, in dirty weather one man on board could not let go a tow-line, or, if anything happened, could not take it on board again. It is cheaper, of course, for a ship-owner to send a barge and a tug-boat to Bea than to equip the barge for sails, steam, or oil, and supply a sea-going crew. If the Minister will confine the provision to island waters, I shall have no objection.
– The honorable senator is under some misapprehension. This provision does not exempt all barges. lt simply gives permission to the Minister’ to grant exemption, and, I take it, will apply to barges on such waters as the River Yarra, River Murray, and other inland waterways. The whole matter may safely be left to the discretion of the Minister. The spirit of the Act is to provide proper pro- tection to men on all sea-going vessels.
.- The Minister might reasonably give way. I have met him as far as possible. I want to make sure that when ships go to sea * there shall at least be adequate protection fort the men on board! 1 am not thinking of small barges on .the Yarra and other inland waters. I am thinking of barges carrying 500, 600, or 700 tons dead-weight cargo. If anything happens to the towing steamer, there would be absolutely no hope of getting the tow-line on board again without a proper crew.
It is all very well for the Minister to say that this matter may safely be left to the discretion of th« Minister. We have too much of that already. .We are legislating now for portion of the Northern Territory and Western Australia, and we know that if local officials, who will have charge of these matters, have to refer them to Melbourne, the damage will probably be done before any reply can be received.
– I cannot accept the amendment in its present form, as it would then be necessary to equip all these barges with the paraphernalia of big sea-going ships.
– Why not?
– Because it would be a ridiculous proposition in regard to these barges. I can give the honorable senator an assurance that the exemptions will apply to barges plying only on inland waters.
Motion agreed to.
Reported that the Committee had agreed to the amendments with the ex’ception of that for the substitution of a new clause for clause 23, to which it had disagreed, and in place thereof had made consequential amendments in the original clause, and to that inserting’ new clause 33a, to which it had agreed with amendments.
Senate adjourned at S.43 p.m.
Cite as: Australia, Senate, Debates, 20 October 1920, viewed 22 October 2017, <http://historichansard.net/senate/1920/19201020_senate_8_94/>.