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Wednesday, 6 May 1942


Mr FALSTEIN (Watson) .- I oppose the bill, because it constitutes a departure from the recognized traditions of the Bench in its relationship to the Executive. The passing of a bill to be cited as the Judiciary (Diplomatic Representation) Act 1942 is such a departure as would warrant serious consideration by Parliament. Some honorable members are not aware that one of the principal functions of the High Court of Australia is to determine constitutional issues that may arise .between the Commonwealth and the States. In this sphere, the High Court is the final arbiter. In the near future, a number of constitutional problems will arise, particularly matters relating to the introduction by the Commonwealth of a uniform income tax. The position is such that well-informed opinion at the New South Wales bar believes that, as the result of the departure of Mr. Justice Evatt, a world authority on constitutional matters, and Sir Owen Dixon, the capacity of the High Court to determine constitutional matters has sunk to the level of a minor magistracy.


Mr Abbott - Is the honorable member representative of the " well-informed opinion of the New South Wales bar " ?


Mr FALSTEIN - I am not expressing my own opinion.


Mr Spender - The honorable member has made an amazing statement, in view of the eminence of certain judges.


Mr FALSTEIN - The honorable member for Warringah was a candidate for the position to which Sir Owen Dixon will be appointed.


Mr Spender - That is an unpardonable statement.


Mr FALSTEIN - I take exception to the fact that a justice of the High Court, learned in constitutional matters, has been sent away, because he would carry out perhaps more important work in Australia towards the prosecution of the war than he may do in the United States of America. As an admirer of Sir Owen Dixon's ability I, nevertheless, feel that he was not the most suitable person who could have been appointed to do this work. I say that because for many years be ha3 lived in the rarefied atmosphere of the High Court. His general outlook is too transcendental to enable him to do with good effect for the Commonwealth the work with which he has been entrusted. Away from the High Court Bench are many men qualified for this appointment. Indeed, there are some members of this House who might have been chosen. Members of the Commonwealth Parliament are debarred by the Constitution, and High Court judges by section 8 of the Judiciary Act, from holding any office of profit under the Crown. But this bill abrogates that prohibition so far as it concerns Sir Owen Dixon. If it is possible for a justice of the High Court to be released from the provisions of the Judiciary Act in order to permit him to fill two Crown positions at the same time, it should be possible for a member of this Parliament to be treated similarly. A member of this

Parliament might be released for a term in order to do the work which Sir Owen Dixon has been appointed to do.


Mr Menzies - If the honorable member obtains legal opinion on the Constitution he will find that that cannot be done.

Mr.FALSTEIN.- I believe that that is so, but, at the same time, since Parliament took the precaution of inserting a section in the Judiciary Act to impose the same restrictions on High Court judges as are imposed on federal members by the Constitution, that section should not be varied or modified in any way.

I also take exception to the fact that under this bill the pension rights of Sir Owen Dixon are to be preserved. No one in this House will deny that the honorable member for Barton (Dr. Evatt) is doing more important work than Sir Owen Dixon will do. Yet, when he was considering whether he would contest the Barton seat, he was informed that be would be obliged to resign his seat on the bench in the event of his deciding to be a candidate. This legislation, if it is to be passed by Parliament, should contain a provision for the restoration of pension rights to the honorable member for Barton, who lost substantial pension rights when he came into Parliament to do a better job than he was doing on the High Court bench.

The appointment of Sir Owen Dixon to represent Australia in Washington is not a happy choice for the reason that aman with wider experience in diplomatic matters would put a better case for Australia and a more sympathetic case for this Govern- ment than he. This bill establishes the principle that Justices of the High Court may be appointed to a number of other positions and still retain their positions on the Bench. That is most unfair to leading members of the bar in the different States, who have a right to expect that their careers may he crowned by appointment to the highest court in Australia, Acceptance by Sir Owen Dixon or any other judge of an appointment of lengthy duration should carry with it automatic forfeiture of his posi tion on the Bench, and his substitution by some other person, who could do the job. perhaps not so capably as Sir Owen Dixon, but as capably as it can be done by the remaining judges on the High Court.







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