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Thursday, 8 December 1960


Mr WHITLAM (Werriwa) .- If the Attorney-General (Sir Garfield Barwick) behaves himself with parliamentary propriety during the debate on this bill there will be only one division in the course of the debate, and that on the second reading. The justification for the previous bill was that it established adequate margins between the salaries of the Chief Justice and judges of the Supreme Court of New South Wales and Victoria, on the one hand, and those of the Chief Justice and puisne judges of the High Court, on the other. The justification for this bill is that it will provide salaries for other federal judges commensurate with the salaries paid to judges of the Supreme Courts of New South Wales and Victoria, and provide salaries for the President and presidential members of the Commonwealth Conciliation and Arbitration Commission, commensurate with the salaries paid to the president and members of the Industrial Commission of New South Wales.

The increase in margins involved is somewhere about 23 per cent, or 24 per cent., which is a larger increase in margins than has been granted to any persons in receipt of more than about £2,000 a year under Commonwealth legislation in the last five years. There are no persons other than High Court judges who receive, under Commonwealth legislation, salaries as high as those provided for under this bill. The ones who receive salaries nearest to those provided under this bill have received a marginal increase of 15 per cent, above the salaries granted five years ago. Under this measure the federal judges concerned will receive a marginal increase of 23 per cent. or 24 per cent. above the salaries that they received five years ago.

The Opposition's objections to the bill are largely the same as its objections to the previous measure. First, the Opposition objects to the bill because it was introduced, as was the previous measure, clandestinely. Secondly, the Opposition objects to the bill because judicial salaries are being treated once again in isolation from the other incomes provided for by legislation of this Parliament. Thirdly, the Opposition objects to the increases under this bill in federal judicial salaries because, once again, they are necessitated by the failure of the Commonwealth Government to take the steps which it, of all Australian governments, can most properly take, namely, to co-ordinate judicial and arbitral salaries set by all Australian governments.

This amendment is necessitated by the leap-frogging in the salaries of New South Wales Supreme Court judges and members of the Industrial Commission of New South Wales and judges of the Supreme Court of Victoria. The other State courts have not indulged in this process of leap-frogging. Quite clearly it is illogical that the President and presidential members of the Commonwealth Conciliation and Arbitration Commission should receive lower salaries than are now paid to the President and members of the Industrial Commission of New South Wales. The members of the Industrial Commission of New South Wales deal with matters of lesser economic and social significance than those which are entrusted to the members of the Commonwealth Conciliation and Arbitration Commission, yet they receive larger salaries. This is clearly an anomaly which should be corrected, and which, still more clearly, should have been anticipated. We propose to vote against this bill for this further reason that the Government is still showing no intention of avoiding such anomalies in the future.

The remaining reason why we propose to vote against the bill is that it takes no steps to co-ordinate all federal judicial salaries outside those of High Court judges, to whom, of course, appeals lie from all federal judges and, in most cases, from the State judges. A consideration of all federal judges' salaries was forecast by the Prime Minister (Mr. Menzies) in the statement he released to the Australian public on 29th September last, a few hours after he left for the celebrated meeting of the General Assembly of the United Nations. I am indebted to the Attorney-General for having, since the second-reading of the last bill dealt with by the House, provided me with a copy of the press announcement released by the Prime Minister on that occasion. The right honorable gentleman forecast that bills would be introduced during the present sitting to increase the salaries of the judges of the High Court - that has now been done - and of the federal courts created by the Australian Parliament.

The bill with which we are now dealing increases the salaries of the judges of the Supreme Court of the Australian Capital Territory, the Commonwealth Conciliation and Arbitration Commission and the Bankruptcy Court. It does not deal, and we have not yet been given legislation which does deal, with the salaries of the judges of other federal courts created by this Parliament, namely, the Supreme Courts of the Territory of Papua and New Guinea, of Norfolk Island and of Christmas Island. I have not mentioned the Supreme Court of the Northern Territory or, for that matter, the Supreme Court of Cocos Island and the courts of Nauru, because they were not set up by this Parliament, but by ordinances of those territories. Nevertheless, I will deal with the general position of the salaries payable to judges of federal courts with jurisdictions commensurate with those of the State Supreme Courts and the State arbitration tribunals.

I hope that there will be no occasion for honorable members to interject, as they did on both sides of the House during the debate on the preceeding bill, with remarks concerning individual members of the judiciary. It is true that Government supporters took the opportunity at various times to take points of order, so that improper remarks which were made on the Opposition side about some specific members of the judiciary and about members of the judiciary in general would be read into " Hansard ". I want to make it plain that no honorable member on this side made such remarks while he was on his feet and making a speech, and I would dissociate myself from the remarks that were made by way of interjection. It is also true, however, that many Government supporters interjected with remarks concerning members of the judiciary and, in particular, concerning a recent member of the Parliament on this side of the House who is now a judge. But we forbore from taking spurious and synthetic points of order which would result only in opprobrious remarks being read into " Hansard ". I hope that responsible members on the Government side who spoke during the debate on the previous bill, and who may speak on this bill, will dissociate themselves from remarks that have been made about judges, by interjection, on their side, just as I dissociate myself from such remarks made by interjection on this side of the House.

I have summarized, and I do not propose further to develop, the reasons which prompted us to vote against the previous bill, and which also prompt us to vote against this bill. I propose to address myself solely to the fourth reason I gave, namely, the Commonwealth Government's continuing failure to co-ordinate judicial salaries in all the federal courts which it has created, apart from the High Court, which is a court of appeal from decisions of all federal courts and of State courts.

The Attorney-General gave me information on the salaries paid to all such judges on 20th October last, in answer to a question I put on the notice-paper. This bill, unfortunately, leaves some of the federal judges in receipt of salaries which are utterly inadequate for the positions which they occupy, having regard, especially, to the very difficult circumstances in which they have to operate.


Mr Peters - What are these salaries?


Mr WHITLAM - The most flagrant example is in the case of the Supreme Court judges - the only judges - in the Territory of Papua and New Guinea. The three puisne judges of that Supreme Court receive £3,500 a year, while the Chief Justice receives £4,000. Those are the lowest salaries paid to any judges in Australia of any status - Supreme, county, local or district courts, let alone arbitration tribunals.


Mr Peters - What about taxation?


Mr WHITLAM - It is true that they pay taxation at only half the rate which applies to any other federal or State judge. It is also true that they are provided with furnished homes free of charge. Nevertheless, there can be no doubt that judges in the territories, and particularly in the Territory of Papua and New Guinea, are required to operate in an unusual state of legal and social isolation. I hope that this Parliament will soon be given an opportunity to amend their salaries.

The Parliament must act quickly in this matter. Mr. Justice Kelly has recently retired. Mr. Justice Gore, after a very long period of service in the Territory, and Mr. Justice Bignold are soon to retire. The only remaining judge of the Supreme Court of Papua and New Guinea who will continue in office is the Chief Justice. If I may express a respectful view, the Commonwealth was very fortunate to obtain a man of his professional attainments and his associations in the law.


Mr Chaney - Do you think he is adequately recompensed for the job he has been doing?


Mr WHITLAM - No, I do not.


Mr Chaney - How do you reconcile that view with the argument you propounded in relation to the previous bill?


Mr WHITLAM - I thought the honorable gentleman heard me - and I have done him the courtesy of listening to his interjections, thinking he was genuinely wanting information - point out that the judges of the Supreme Court of Papua and New Guinea receive lower salaries than the judges of any court receive from any Australian government. I point out that we must act promptly to increase their salaries, because there will soon be only one of the four judges of that court who will be continuing to serve, the Chief Justice himself. He is, I believe, the only senior counsel who has ever accepted an appointment to that court. He is, in fact, one of the few practising counsel who have accepted appointments to it.

I have referred to the legal and social isolation in which members of that court have to operate. The same remarks apply in the case of the late judge of the Supreme Court of the Northern Territory. The Commonwealth was singularly fortunate in having for some ten years the services of the late Mr. Justice Kriewaldt. He was a scholar and a jurist, and he was an extraordinarily humane, dedicated and able man. He also worked in the same condition of legal and social isolation, as do the judges of the Supreme Court of Papua and New Guinea. Such judges have had to pioneer ideological and juridical frontiers. The courts of the Northern Territory, where half the population are aborigines, and of Papua and New Guinea, where practically the whole permanent population are indigenous inhabitants, are operating in circumstances where Australia is judged by all its neighbours and by the world. We saw the circumstances in which the decision of one of the judges of the Supreme Court of Papua and New Guinea in the Sear case had repercussions in the United Nations, and this decision required a considerable amount of dexterity to justify.

The members of those courts have to work in circumstances where there are not only no other judges or few other judges; they have also sometimes to make decisions hundreds of miles from other lawyers and from law libraries. I make no reflection on members of the legal profession in the Territories, but we must face the fact that the judges do not have the same degree of assistance from members of the profession appearing before them as quite obviously is available in State capitals. It would be true to say that few people have refused appointments to State Supreme Courts or to Federal Courts because of the salaries offered and it would be true to say that nobody has refused appointment as Chief Justice of Australia because of the salary attaching to the position. Only the late A. B. Piddington ever declined appointment as a puisne justice of the High Court and that was not because of the salary offered. Yet it is true that the salaries available to the judges of the Supreme Courts of the Northern Territory and of Papua and New Guinea are rarely sufficient to attract persons who have normal family responsibilities and who have the normal professional openings available to them and who would ordinarily be considered for Supreme Court appointments.

It is true that the judges in the territories have never resorted to the irregular procedure which the Chief Justice of Victoria followed six years ago to-day in making a statement from the bench asking for an increase of salary. Nevertheless, every one knows the circumstances in which judges have operated in those territories. A man acceptsan appointment. He accordingly breaks his professional connexions. It is no longer possible for him to come back to practice in the southern States where he formerly practised. We have up to now taken advantage of the people who have accepted appointment to the Supreme Courts of the Northern Territory and of Papua and New Guinea. There is a vacancy in the Northern Territory. The three puisne positions are now vacant in Papua and New Guinea.


Mr Hasluck - How do you connect this with the bill?


Mr WHITLAM - I stated that I connected it because the Prime Minister outside the House on 29th September released a statement, after he had left for New York, that bills would be introduced during the present sitting of Parliament to increase the salaries of the judges of the federal courts created by the Australian Parliament. I pointed out that the Supreme Court of Papua and New Guinea was created by this Parliament and the salaries of the judges are not being determined in any legislation we have yet been given. I pointed out, furthermore, as the Minister for Territories knows quite well, that the three puisne positions in the court are now vacant. If we are to get first-rate men to accept appointments in the legal and social isolation and the ideological and juridical frontiers that there apply, we will have to put up their salaries to a rate comparable with those fixed by the bill. As I said earlier when speaking on the other bill and as I brieflymentioned earlier in my speech on this bill, we have failed as a Parliament to co-ordinate judicial salaries throughout Australia. We are here failing to co-ordinate the judicial salaries which are fixed by this Parliament itself. For that reason also, we will vote against this bill.

Question put -

That the bill be now read a second time.







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