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Friday, 20 July 1906


Mr GLYNN (Angas) . - I regret that I missed the opportunity of hearing the Attorney-General move the second reading of this Bill, and that up to the present time I have not had an opportunity of reading his speech in Hansard, because, if a case can be made out for the appointment of two additional Justices to the High Court. I am anxious to vote for the measure, though I must confess that upon the figures presented such a case does not seem to have been established. Apparently a case has been made out for the appointment of an additional Justice. At the same time, I think we should hesitate before we add to the number of the High Court Bench so soon after the passing of our Judiciary Act, unless there is a clear necessity for doing so - a necessity which is likely to be continued. Looking hurriedly through the figures, I cannot regard them as altogether conclusive, so far as "the appointment of two additional Justices is concerned. To some extent, the alleged pressure upon the time of their Honours is directly due to our legislation. For example, the Australian Industries Preservation Bill may require the services of their Honours in a sphere in which judicial services have been seldom used, either here or elsewhere. Of course, that may entail a diminution of the available leisure of their Honours for other purposes. Then the Conciliation and Arbitration Act is one of the Statutes which might necessitate additional appointments ' to the High Court Bench. In the papers which have been circulated, however, I find only one case mentioned which will clearly come within the cognisance of the Arbitration Court.


Mr Isaacs - There is another very large case which is just being formulated.


Mr GLYNN - Does the AttorneyGeneral refer to the possibility of a dispute arising upon the shearing question?


Mr Isaacs - Yes.


Mr GLYNN - I do not think that there is likely to be a dispute, and I may mention that I have been consulted professionally in the matter. Up till a month ago theposition was that the shearers were anxious to have a dispute within the meaning of the Act.


Mr Isaacs - - No.


Mr GLYNN - I think that the AttorneyGeneral is mistaken. The men were apparently imbued with a perfectly proper de sire to have a dispute submitted to the Arbitration Court. At the sametime a dispute within the cognisance of the Court had not arisen. It is not at all clear that it can arise, except with the consent of both parties. If they do not agree to have a dispute the Arbitration Act is actually a bar to any amicable arrangement being arrived at.


Mr Isaacs - In the letter of the Registrar, dated 2nd May, 1906, the honorable and learned member will find a great deal of information upon this point.


Mr GLYNN - I do not refer to registrations. Of course all the unions will endeavour to get registered. Before a man engages in a fight he naturally endeavours to develop his muscles, and similarly every union wishes to obtain registration, so that when a dispute arises it shall be the first in the field. I do not heed the fact that the Registrar has had his time fairly occupied.


Mr Isaacs - Will the honorable and learned member look at the fifth paragraph of his letter? That is not confined to the. question of registration - it includes disputes.


Mr GLYNN - The Registrar mentions only two cases that are pending in the Arbitration Court. He refers first to the case in which the Merchant Service Guild, an organization of ships' officers, and the Commonwealth Steam-ship Owners' Association are concerned. Then, according to paragraph 3 he seems to think that the Shearers' Union and the Pastoralists are also likely to be engaged in a dispute. But in making that statement he is merely referring to newspaper rumours.


Mr Isaacs - To a great deal more than that.


Mr GLYNN - Up till now his work has chiefly been confined to receiving applications for registration and to deciding between the different organizations. I say that a case of the magnitude that is now awaiting the leisure ofthe President of the Arbitration Court is not likely to occur again for several years. That case may possibly extend over a month, but when judgment is given it will probably be conclusive for at least five years. Again, we are not likely to have another dispute in connexionwith shipping matters - which clearly come within the scope of the Conciliation and Arbitration Act - nor in other matters which do not clearly come within its purview. The fact has also been men- tioned that a good deal of work for the Court had been listed up to a certain date during the present year. But I would point out that in Queensland and Tasmania the Court apparently had very 'little to do, and there were two cases set down for hearing in Adelaide, neither of which came before it.


Mr Isaacs - There is business in Brisbane now. As the time for the sitting of the Court approaches the business is definitely set down.


Mr GLYNN - I think that we should have much more data to go upon.


Mr Isaacs - There is business for the Court to deal with in Adelaide now. The large case of Weingarten v. Wills has yet to be decided.


Mr GLYNN - We ought not to determine upon the expediency or otherwise of appointing additional Justices to the High Court Bench merely because one large case is likely to arise. We should have regard to what is likely to be the average. I hope that we shall not have a repetition of the Weingarten case, which occupied something like fifty-five days in Adelaide. Perhaps I ought not to say " I hope " ; but I am speaking as a member of Parliament, in which capacity one is expected, not being at a public meeting, to tell the truth. I do not think that a case like that of Weingarten' s is likely to fatten the lawyers for a year or two to come. I should like to have seen a comparison between the business done and disposed of by the Supreme Courts of the States in their appellate or bancojurisdiction, with that done by the High Court, in order that we might estimate the extent towhich the latter 'tribunal is being exceptionally pressed. I should like also, to see an analysis of the cases from the point of view of the magnitude of the issues raised. Some cases that have gone before the High Court might well not have been heard by it. In the case of Smith v. Norton, heard in Western Australia, the amount involved was and I do not know that any great question of importance was at issue. Western Australia seems to be particularly fertile in petty issues.


Mr Isaacs - The case must have been of sufficient importance to go before the High Court, or leave to appeal would not have been granted.


Mr GLYNN - That reply was, of course, patent ; but appeals are allowed in cases that do not appear to be of great importance. I know that the High Court has adopted the ruling of the Privy Council in the case of Prince v. Gagnon, in which it was held that, to warrant the granting of leave to appeal, the question at issue must be of considerable magnitude or involve matters ofimportance to the public.


Mr Isaacs - And in the Western Australian case to which the honorable and learned member has referred, the High Court must have come to the conclusion that the question at issue was of sufficient importance to warrant the granting of leave to appeal.


Mr GLYNN - On the assumption that Courts, 75 per cent, of whose decisions are wrong, according to the High Court, always act rightly. According to the latest statistics I have seen, the Divisional Courts of England give erroneous decisions in about half the cases decided by them, and the Court of Appeal is also often wrong. I believe that if we could bring down from heaven some of the jury who sit upon our folly, and appoint them to preside over the House of Lords, it would be declared that that tribunal was wrong in a still greater number of cases. Every Act of Parliament speaks with the wisdom of our united endeavours to get at cross purposes, but it is supposed to be all right as long as it is on the statute-book. If I attempted to impugn one of our Statutes, Mr. Speaker would call me to account for daring to challenge the omniscience of a Parliament which common sense teaches us is often in the wrong. I am simply complaining, however, of the defective information before us. This may be partly due to my incapacity to grasp the significance of the figures put before us ; but what I do assert with some degree of confidence is that, if the regular increase of business is such as to demand the appointment of two additional Justices, this necessity has arisen from our own legislation, and from some of the bungles made by the Federal Convention. Dealing first of all with the effect of our own legislation upon the volume of litigation, I would remind the House that I have already referred to two cases. Apart from the original jurisdiction prescribed by the Constitution as being in the High Court, we have vested some additional original jurisdiction in that tribunal. When the Judiciary Bill was introduced by the Government, of which the present

Prime Minister was a member, that honorable and learned gentleman, who was then Attorney-General, attempted practically to give all the jurisdiction possible to the High Court. Had that attempt been successful five Justices would have been clearlynecessary from the beginning. But we limited the number of Justices to three, because we cut down the proposed' original jurisdiction to a considerable extent. The House will recollect that by taking away the power of removal of causes from the States Courts, for which provision was made in the original Bill, and by narrowing down the jurisdiction of the Court to that vested in it by the Constitution, we did this'-


Mr Isaacs - And we did something more - we gave the High Court power to decide questions affecting the interpretation of the Constitution.


Mr GLYNN - That provision was inserted in the Bill after we had narrowed down the jurisdiction of the Court. With a certain degree of reluctance the House consented to embody in the Bill the then Attorney-General's pet clause as to the power of the Court to decide cases arising under the Constitution.


Mr Isaacs - The Court would still have had the appeals even if we had not taken that step.


Mr GLYNN - I am dealing with not the appellate but the original jurisdiction of the Court. I started with the proposition that our own legislation was responsible for the pressure of work in the High Court. Had greater attention been paid to the Opposition when it urged that the power of the High Court should be limited to its true functions as a Court of Appeal,

Ave probably should not have had this demand for the appointment of two additional Justices. That contention is sustained to some extent by the figures put before us. We have, in the official papers, the statement that thirty-five cases in the original jurisdiction of the Court have arisen. That, I presume, is up to a certain period in the current year. But, apart from our action in extending the original jurisdiction of the Court, a mistake was made by the Federal Convention which led to the decision of the Privy Council in the case of Parkin v. James. Honorable members may remember that the Convention in Melbourne decided by a majority of one to retain in the Constitution the right of appeal to the Privy Council, although at the Adelaide Convention it was decided, I think, by a majority of seventeen, that it should be abolished. When that was done, it seemed to me, at all events, that the appeal clauses of the Constitution were somewhat confused, and that if we were to retain the right of appeal to the Privy Council, it should be on the basis that all appeals from the States Courts to the Privy Council should be abolished. It appeared to me that, to justify the appointment of five Justices for the future, all appeals from the Supreme Courts, of the States should be only "to the High Court, and that if the right of appeal to the Privy Council were subject to special leave being granted in each case by the Privy Council itself, appeals would occur infrequently. The rule in Canada is not to allow an appeal from the Supreme Court of the Dominion, whose decisions, according to the Canadian Act, are to be final and conclusive, except in so far as leave is granted. As a matter of fact, leave to appeal is very seldom granted by the Privy Council unless the case in which that leave is sought, comes within the ruling laid down in Prince v. Gagnon. Had we followed those lines, the High Court of Appeal would have been a genuine Court of Appeal, and we should not have had the possibility pointed out in the case of Outtrim v. The Commissioner of Taxes - the possibility of a conflict between two Courts of Appeal with respect to the same matter. We should have preserved the dignity of Australia, because we should have had one Court of Appeal, subject to the power to go, in exceptional cases, to the Privy Council. We should have thus recognised the prerogative of the Crown, and the interests of Empire, because there may be cases in which our interests are not absolutely identical with those of the United Kingdom. In such a case, an appeal would have Iain to the Privy Council, by permission, and we should thus have had a symmetrical system, and the democratic feeling of Australia would have been recognised. My amendment was that, by one act of the Federal Parliament, wel should cut off all appeals to the Privy Council, but the legal leaders of the Convention opposed me. By a narrow majority of three that solution of the difficulty was rejected on the 16th of March, the day before we adjourned. The result is that there is now an appeal to the Privy Council from all decisions of the States Courts, and there is also an appeal from all decisions of Federal Courts, according te the decision qf the Privy Council in Outtrim v. The Commissioner of Taxes, which decided that, notwithstanding the Judiciary Act, an appeal did lie. The honorable and learned member for Northern Melbourne, as well as the honorable and learned member for Werriwa, and others, joined with me in pointing out time after time that the Judiciary Bill was wrong in this respect. Before we entered upon the consideration of that measure, I heard the opinion expressed by lawyers, one of whom is now a Justice, that in investing States Courts with Federal jurisdiction we could have the condition that there should be an appeal under that jurisdiction to the High Court only. The Privy Council has said that we were wrong.


Mr Isaacs - It has not decided that.


Mr GLYNN - It gave leave to appeal.


Mr Isaacs - Only tentatively.


Mr GLYNN - That leave exists. I think that in the case of the Colonial Sugar Refining Company, which went to the Privy Council, from Queensland, the same decision was also given.


Mr Isaacs - That was before the Judiciary Bill was passed.


Mr GLYNN - The point was raised both before and after the passing of that measure. Another blunder was made by the drafting committee of the Convention. When we had decided by a majority of one to retain the appeal to the PrivyCouncil, the Constitution still provided that the High Court should have jurisdiction with such exceptions and reservations as the Federal Parliament might prescribe. The use of the words "with such exceptions and reservations " in the Constitution of the United States enabled Congress to cut down the whole of the Federal jurisdiction of Courts created by it, but not the jurisdiction of the Supreme Court of America, which is provided for in the Constitution itself. In some cases, for political purposes, they actually abolished the whole of the Federal jurisdiction of the Circuit Courts, because the Executive knew that a decision which would not suit their political leanings was likely to be given by those tribunals. I pointed out at the time that this was a very wide power, and that when, eventually, as will be the case, the appeal to the Privy Council is abolished, and there is no appeal from the States Courts to that tribunal, it would include the power to deny the right' of appeal from the States Courts to the High Court. I pointed out that fact at the beginning of the Convention, but without avail. Even tually the position was recognised, and Sir Edmund - then Mr. - Barton, took the drafting of the amendment in his own hands. He did it in a way which, I think, was wrong, and it led to the decision in the case of Parkin v. James. I do not wish to be too personal, but the effect was that the principle of my objection was raised! in saying that the method of dealing with it should be this : It should have been provided that wherever an appeal lay to the Privy Council before the coming into force of the Constitution, there should be an appeal to the "High Court, so as to preserve the right to appeal in the event of the appeal to the Privy Council being ultimately abolished ; but power should have been given to the Legislatures of the States to cut down the right of appeal in State matters, and to the Commonwealth Parliament to cut down the right of appeal in Commonwealth matters. As the Constitution is drafted, however, the right of appeal to the High Court was stereotyped, and is now beyond the interference of either the Commonwealth or the States Parliaments, in all cases in which an appeal lay to the Privy Council prior to the establishment of Federation. Therefore, according to the decision in the case of Parkin v. James, an appeal now lies, as of right, from the decision of the Supreme Court of a State in all cases in which there was the right of appeal to the privy Council prior to the 1st day of January, 1901 Under that decision there mav be appeals to the High Court from the decisions of a single Judge.


Mr Watson - Is not that a good thing?


Mr GLYNN - Not altogether, though it mav be in some cases.


Mr Watson - Litigants prefer to be able to take the short cut.


Mr GLYNN - In a great many cases, in which the issue is small and petty, there should be no right of appeal to the High Court : but that Court has to allow appeals because of the unalterable provision of the Constitution. Under these circumstances, the Court mav have far more business than it was originally contemplated' that it should have.


Mr Conroy - The cost of litigation is being enormously increased.


Mr Watson - It is being reduced.


Mr GLYNN - 1 am not. dealing with that aspect of the case. I am pointing out the effect of the decision in the case which

I have mentioned. Nine of the twelve appeals made to the High Court when sitting in Melbourne recently were from the decisions of a single Judge. In many cases there should be no appeal from the decision of a single Judge, and, in some cases, not even the right to appeal from the judgment of the Supreme Court of a State. The Constitution, however, allows an appeal in every case, apart from the magnitude of the question involved, in which, prior to Federation, there would have been the right to appeal to the Privy Council. It is because of this state of affairs that we are being asked to increase the High Court Bench, and I recognise that a case has been made out for the appointment of at least one additional Judge. Before voting for the appointment of two additional Judges I> shall read with great care the speech of the AttorneyGeneral, to see if he has made out a really good case in favour of the proposal. Business like the Weingarten case and the Seamen's case is not likely to be continuous, and, that being so, it seems to me that only one additional Justice is needed. The present position has been created bv the Constitution and by the legislation of the States. It is also partly due to original jurisdiction vested in the High Court which is not altogether necessary, and parti v to the, fact that the Court is an ambulatory one, and time is lost in' proceeding from State to State. I do not object to the Court sitting in the centres of the various States, because I think that that popularizes the institution, and brines justice to the doors of the people. Senator Sir Josiah Symon, however, who is a man of ability and experience, has expressed the opinion that it is a mistake not to confine the sittings of the Court to one centre.


Mr Isaacs - It would be a serious thing to drag litigants from Perth to Melbourne.


Mr GLYNN - I agree with the AttorneyGeneral : and the Bar generally has expressed itself as favorable to the peregrinations of the Court. x I shall vote for the second reading of the Bill, but at present feel that only one Justice is needed.

Mr. KINGO'MALLEY (Darwin) [2.25L - It seems to me that this is a field d:iv for the legal members of the House. I have no desire to increase the expenses necessary to carry on the band waggon portion of the Judiciary Department of this country. But the more one looks into the matter, the more anomalous does the whole judicial circus appear.


Mr Lonsdale - Who is the clown?







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