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Tuesday, 12 December 1905


Mr HUTCHISON (Hindmarsh) - I have had the greatest difficulty in making, up my mind how to vote on this situation, because I have the highest confidence in the Court of Disputed Returns as at present constituted. I do not, however, agree with the honorable and learned member for Parkes, that the only question to consider now is whether we shall substitute a Committee of this House for that Court. The real question is - What should it cost candidates to contest a disputed election? Sad to say, there is very little justice for the man who cannot afford to buy it. When you have to buy justice it always pays you to employ not the fledgling barrister, but the very best counsel that can be obtained. That means that the poor man is practically placed out of Court. The expenses of the honorable member for Riverina and the honorable member for Melbourne in connexion with their cases before the High Court amounted to a great deal more than the cost of returning the whole of the representatives of South Australia at the last election. No poor man can afford to incur expense of that kind. If the Minister could show me that there was any way in which election disputes could be referred to the High Court without involving the litigants in undue expense. I should prefer to allow the law to remain as if is. But I recognise that whilst the High Court can grant costs against the petitioner-


Mr Groom - Even before an Elections and Qualifications Committee, the successful party might incur considerable loss if the Court had no power to reimburse him.


Mr HUTCHISON - I consider that where ai candidate is rejected through no fault of his own, he should! not be called upon to incur any expense in connexion with the adjudication upon his case. After listening to the discussion, I have come to the conclusion that if counsel are allowed to appear before the Court of Disputed Returns the expenses will be enormous. If lawyers .-we permitted to appear before an

Elections and Qualifications Committee hundreds of technicalities will be raised and many days will be occupied in explaining matters to the lay members of the Committee. Therefore, it would be far better to retain the High' Court as a Court of Disputed Returns, if lawyers are to be permitted to take part in the proceedings. I see no better way of meeting the necessities of the case than by supporting the amendment of the honorable member for Riverina. If the Minister can show me that it will cost a poor man nothing to go before the High Court-


Mr Higgins - The poor man suffers in everything.


Mr HUTCHISON - I recognise that it will be a long time before we can realize the anticipation of Lord Brougham, who spoke about finding law dear, and leaving it cheap - finding it the patrimony of the rich, and making it the inheritance of the poor. But I think that we should do everything that lies in our power to simplify legal procedure, and to reduce the cost to litigants. I do not propose to show, any consideration to the lawyers. If I had to appeal to the Court, I should engage the very best counsel ; but if I lost my suit I should probably not be able to pay them. I have had a somewhat extended and verysad experience of the law during the last fifteen years, and I have always enlisted the services of the best men I could secure. I have obtained justice, but I have had to buy it. If the honorable member for Riverina, or the honorable member for Melbourne had to fight another case before the High Court they would probably not be able to afford to employ counsel, and would find themselves at a disadvantage, for the reason that barristers would, in all likelihood be engaged by the other side. The best thing that we can do under all the circumstances is -to provide for a Court constituted of members of this House, to limit the expenses to £50, and to provide that counsel shall not appear before the Court.

Mr. HIGGINS(Northern Melbourne).The wheel appears to have made another revolution. My thoughts go1 back to the time when it was thought to be a great reform to do (away with Elections and Qualifications Committees. It was then held that expense would thus be decreased and justice insured. The honorable member for Hindmarsh has approached this matter with a perfectly fair mind1, and with a desire to deal justly with even 'the lawyers. He, at least, has not accused the honorable and learned member for Parkes of speaking from a self-interested point of view. The honorable and learned gentleman tells me that he had appeared in only two parliamentary election cases in his life. I have not been engaged in even one. I hope that members of the muchhated legal profession will receive credit for communicating the results of their experience without regard to self-interest. Election disputes occur so infrequently that one could scarcely be influenced in his view of such a matter as that now before us by the hope that he would be called upon to conduct an election suit. I have looked up the debates which took place in the House of Commons when Mr. Disraeli, then Chancellor of the Exchequer,, brought forward his proposal for the establishment of a Court of Disputed Returns. Until Walpole's time the whole House voted upon election disputes, and there was a precious party scrimmage in every case. Under Greville's Act an Elections Committee was chosen by lot. Afterwards, in 1848, a Committee of six was appointed under the Speaker's warrant. A similar proposal is now being made by the honorable member for Riverina. Great precautions were adopted, and a tribunal was formed of an odd number of members, chosen from the six appointed by the Speaker, to decide upon each election dispute. Now, what was the result of the experience gained from 1848 to 1868? I shall quote the words of Mr. Disraeli, whose Bill was supported by his great opponent, Mr. Gladstone. At page 695, vol. 190 of Hansard,Mr. Disraeli gives the result of the experience gained in the previous twenty years. The members of the Committee to which I have referred were solemnly sworn to execute justice and maintain the truth. They were empowered to call witnesses, and every care was taken to arrive at a just decision. Yet Mr. Disraeli says: -

Yet that tribunal has not proved satisfactory, and at no time perhaps have there been, more than recently, greater complaints and charges against the inefficiency and unsatisfactory character of that tribunal. Every one will admit that, notwithstanding all the precautions we have availed ourselves of, as exemplified in the existing Act, the expenditure -

I hope honorable members will bear this in mind - upon these election petitions has not diminished, but I believe I may say it has been considerably increased ; that the decisions of the Committees have been uncertain, and, therefore, un satisfactory, and that they have offered no obstacle whatever to the growing practice of corrupt compromise, by which, in the process of withdrawing petitions, a veil is often thrown over more flagrant transactions than any which are submitted to scrutiny and investigation.

He refers there to the practice that was followed at one time in England. If a petition were presented charging A, a Conservative, with bribery and, another petition was presented charging B, a Liberal, with bribery, the party managers would set to work and bring about the withdrawal of both charges. The result was that the most scandalous cases of bribery were never proceeded with. Of course, pressure was brought to bear to prevent such petitions from being prosecuted. It was found that members who were still hot with the excitement arising from a recent election were the most unfit persons in the world to decide whether or not the electoral law had been complied with. Mr. Disraeli continues: -

I think, then, that after the experience we have had of the existing law, the opinion of the House has been gradually, but surely, formed, that there is something in the principle upon which the jurisdiction of the House in regard to controverted elections rests, which is essentially vicious, and which has hitherto prevented, and will prevent, any satisfactory solution of the difficulty, and injurious consequences which all recognise, and which many have felt. And what is that principle? It is that the House has hitherto insisted1 - and I grant that it is natural, and that in a certain sense it has been wise and salutary that they should have insisted - on retaining the privilege of deciding on those questions which are so interesting to every member of the House, as forming in fact the elements of which it is to consist. But public opinion and the opinion of this House have in a- great degree of late years come to the conviction that it is only by the transfer of this, jurisdiction with respect to controverted elections from the House to some other and competent tribunal, that we can arrive at more satisfactoryresults than we have hitherto experienced.


Mr King O'Malley - Was that at the time of the rotten pocket-boroughs?







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