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Thursday, 30 August 1973
Page: 712


Mr Donald Cameron (GRIFFITH, QUEENSLAND) - It is unfortunate that the honourable member for Blaxland (Mr Keating) has left the chamber and not stayed to hear some criticism of his comments. One would almost think that we had elements of the Irish Republic Army in the Australian Labor Party. As a Protestant, I do not apologise for being a member of the Liberal Party. When I look around I see many people of many faiths and views represented in both the Country and Liberal Parties.

The Labor Party has brought down its first Budget in more than 2 decades. Without spending very much time on this question, because many speakers prior to me have done so and many after me will do so too, I would like to draw to the attention of Labor members present that they may as well take the smiles from their faces because gallup polls taken immediately after the Budget showed what the public thought of what the Government had done. Its engineering feat was an electorate failure. It all boils down to this: In this day and age, with inflation continuing at the rate it is, the value of the pension is less than it has ever been. We are just about leading the world when it comes to inflation. The Labor Party is destroying the homes savings grants scheme which was introduced to encourage young people to buy their own homes. We have seen a cut in defence expenditure and the brazen demolition of the nation's defences.

We have had nothing but increases in taxation, albeit indirectly, to cover some of the grandiose schemes which the honourable member for Blaxland outlined. There is no getting away from the fact that the previous Government in recent years lowered the taxation rate. Honourable members opposite know that by allowing inflation to continue the average income is increasing and therefore the average contribution in taxation is increasing. It is through taxation that the Government is financing its schemes. Let no Australian be fooled. The people of Australia are financing everything any government, whether it be Labor or Liberal, does. If honourable members opposite are really concerned they might look at the taxation contribution of a person earning $3,000, which is now in excess of $600, a large contribution for people they describe as being well and truly within the bounds of the poverty survey. We have had enough of their carping and talk about what they have done for the people of Australia. They have done very little. Most people are saying: 'It is their first Budget. Let us see what they do next time'. But the Parramatta by-election will probably tell the story. I know that the Prime Minister (Mr Whitlam) himself has already conceded victory in that seat. That is his own personal assessment of how this new Government is going.

On a quieter subject, I would like to canvas the implications of the social doctrines which are being brought into this House per medium of legislation. We see more than ever before the States on the run from a Commonwealth Government that is determined, through the financial system, to impose upon the States the Commonwealth Government's every whim by dictating to them how money will be spent. In answer to questions we have heard Ministers on a number of times state that if a particular State is not prepared to accept the terms laid down by the Federal Government for money it was making available the money could quite easily be given to some other State. We have reached the stage where the States have been told: 'Either you spend it our way or you do not get the money'. When the Constitution was originally drawn up and the 6 States agreed to become the Commonwealth it was hoped that the Constitution was so devised as to prevent this ever happening. Next week we have the historic Constitutional Convention, a much awaited event. I sincerely hope that the delegates from the various States and the Commonwealth go to that Convention with an open mind. Might I state here and now that in my view the Convention on the Constitution should not be a time for the States to go along to take or the Commonwealth to go along to take; it is a time when all governments must carefully consider giving and taking to ensure a better run Australia which in the long term will make a better way of life for each and every citizen of this country.

I wish to refer specifically to section 72 of the Constitution which relates to the judiciary. I realise that by speaking about the judiciary I am about to step upon hallowed ground. I hope that I will not be misunderstood or, more significantly, that my views will not fall upon ears entranced by the enchantment of quaint tradition which despises questioning and criticism, no matter how well motivated or deserved. I want to refer to 2 aspects in particular. The first is our system of appointing judges to the High Court of Australia. I want to refer to the historical background of section 72 of our Constitution which states:

The Justices of the High Court and of the other courts created by the Parliament - (i.) shall be appointed by the Governor-General in Council: (ii.) Shall not be removed except by the GovernorGeneral in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity: (iri.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

Originally, in the United Kingdom, judges held their commissions during the King's pleasure. The Stuart kings chose their judges with a view to their support of the Crown. It was not until the Act of Settlement in 1702 that judges were given statutory security of tenure in office. The independence of the bench was guaranteed in that Act. The second enactment which operated to secure the dignity and independence of the bench was in 1760, Act 1, George III C.23, which provided further that judges' commissions should continue notwithstanding the death of any particular monarch, and their salaries were secured to them during the continuance of their commissions.

These constitutional provisions were the basis of the tenure of the judiciary in the Australian colonies before Federation; that is, judges held office during good behaviour and could be removed by the Crown for misbehaviour without an address from Parliament, subject to appeal to the Privy Council. Furthermore, they could be removed from office by the Crown on an address from both Houses of Parliament for reasons other than misbehaviour. Therefore section 72 (ii.) of our Constitution departed from this historical position in Great Britain and the former Australian colonies. A justice of the High Court could be removed from office only if there was an address from both Houses of Parliament in the same session praying for his removal, and the grounds for his removal were limited to proved misbehaviour' or incapacity. Therefore the tenure of a High Court justice is not dependent on the Crown in any case including misbehaviour except when the Crown acts on an address from both Houses of the Parliament; and furthermore it is not open to the Parliament to present an address for the removal of a justice on any other grounds than for proved misbehaviour or incapacity, and that is under section 72 (ii.) of the Constitution.

I am making particular reference to the life appoinment of judges. It should be noted that, in the context of life tenure operating to guarantee integrity in justices, State Supreme Court justices all hold tenure for a term of years. Justices of the Supreme Court of each State except Victoria are all compulsorily retired at 70 years of age. In Victoria they are retired at 72 years of age. I should like to look at the present composition of the High Court of Australia. We have a number of young justices. Mr Justice Mason is 48 and Mr Justice Stephen is aged 50. But the position does not stop there. Continuing up the ladder we find a most respected gentleman, Mr Justice McTiernan, who was born on 16 February 1892. At that time the nation's population was much the same as the present population of Sydney. I cast no reflections on this elderly gentleman's ability to make decisions, but I point to the fact that he is an elderly man.

In 1950 two very elderly distinguished gentlemen retired from the High Court. They were the Right Honourable Sir George Edward Rich, K.C.M.G., and the Hon. Sir Hayden Erskine Starke, K.C.M.G. The first gentleman was appointed at the age of 50 years and retired at the age of 87 years, and the second gentleman was appointed at 49 years of age and retired at 79 years of age. As I have said, those 2 gentlemen retired in 1950, and honourable members opposite do not need to be reminded of the fact that this was just after the Liberals returned to power. One of those gentlemen had been appointed in 1913 and the other a few years later - my arithmetic is not quick enough to enable me to calculate that date at this moment.


Mr James - What are you trying to say about it? What is your point?


Mr Donald Cameron (GRIFFITH, QUEENSLAND) - The honourable member for Hunter interjects. I respectfully suggest that there is a possibility that our judicial system is being used for political purposes. Judges are reluctant to retire until such time as the party of their political persuasion - if they have a political persuasion - is in power because they know that the person who is appointed to replace a retiring judge could be a person who is favoured by the government. I am not the only person who holds this view. On 1 June 1955 the present Prime Minister (Mr Whitlam) read into Hansard a section of a paper which he had delivered at a seminar of the Australian Institute of Political Science. It is reported at page 1296 of Hansard of that date. It reads:

Mr Blandbelieves that the High Court provides some safeguards for our liberties; I doubt it. The Court is less representative of the Australian people than are their elected parliamentary representatives. Judges are irresponsible in that they hold office for life, which is sometimes a very long life.

That was an understatement. It continues:

Some have used that asset for a political purpose.

I think someone asked me who said that. It was the present Prime Minister. The paper continues:

I recall 2 flagrant examples where resignations were withheld until there was a change of government Early in 1950 one judge retired in the last month of his 80th year and another retired on his 87th birthday.

I consider that life appointments are a wrong concept, and this view has the endorsement of the Prime Minister. In most States judges retire at 70 years of age; in Victoria they retire at 72 years of age. I ask the Prime Minister to put this question to the Australian people at a referendum. It is something that must be decided by. a referendum. This question was before the High Court in, I think, 1918 in a case between the Waterside Workers Federation and Fitzpatrick. I have no doubt that 75 years should be the maximum age for a High Court judge to continue on the bench.

The reasons for life appointments have changed drastically. Judges now receive pensions and their widows receive pensions. While they are in office they are the highest paid servants in the nation. We in Australia inherited our judicial system from England.' However, in Australia, through no fault of our judges, they are asked to make political judgments in the constitutional sense and in industrial matters, and at times they are asked to act as royal commissioners. I do not believe that we can rightly attribute to any of our judges, except the Chief Justice, any godly gift of acumen in relation to political interpretations. Even the Prime Minister stated in 1955 that the system of appointments was open to manipulation. Therefore it is not unreasonable for the State Premiers to be apprehensive about the abolition of the States' right to appeal to the Privy Council.

As a Queenslander I am sick and tired of listening to Labor members from Queensland so frequently denigrating the Queensland Premier. I do not stand behind him on every issue, but when it comes to the rights of the people I believe that he has a particular gift in recognising what is going on in this country today. In my mind there is reason to be concerned about the composition of the High Court, We have no greater authority on this than the Prime Minister. I refer to page 1296 of Hansard of 1 June 1955, where the Prime Minister is reported as saying:

If counsel has to advise if a certain action is constitutional, he is less concerned with the Constitution than with the composition of the Court.

He goes along wondering which judges will be on the bench. It does not matter about the case he is going to present; he is wondering about how the judges think. Surely, if a man who is now a Prime Minister says this, we all have reason to worry about what goes on. I do not claim that we are able to point to any decision in a case in Australia where there has been blatant intrusion of political thought; but decisions have been reversed. I draw the attention of the House to the fact that in the United States of America there is an inbuilt safeguard in that the President nominates the Supreme Court judges and the States' House - the Senate - must confirm the appointments in a majority vote. This not only guards against the possibility of someone who thinks as the President does being appointed but also gives the States a say in their firmly established federal system.

I am not saying that any of our judges are corrupt, but each and every person has a philosophical approach to life and one philosophical approach will suit a particular government and not others. It is ridiculous to think that a judge's decision is always right. This aspect frequently is highlighted when a group of judges sits and there is a minority viewpoint. There have been cases in which the minority viewpoint of a particular judge has later been proved correct. I cite the example that in 1937 Mr Justice Evatt, who later became Leader of the Opposition, delivered the sole dissenting judgment in the case of Cowell v. Rosehill Racecourse Co. Ltd and 10 years later the House of Lords, in the case of the Wintergarden Theatre v. Millennium Productions Ltd, adopted the Evatt rule of law. Yet our Prime Minister now states that the Australian High Court has all the wisdom.

Like politicians and other people, judges are not infallible. Their way of thinking can play a part in their decision-making processes. The Full Court decided in 1918, in the case I mentioned earlier, that a judge appointed under the Constitution has a life tenure. (Extension of time granted.) I thank the Leader of the House (Mr Daly), for a change. It is for the reasons I have mentioned that I take up the cudgels on behalf of the States. In conclusion, as there is a Constitutional Convention next week, I suggest that delegates from the State and Commonwealth Parliaments give consideration to the system which is used to appoint judges to our High Court. Consideration should be given to ways and means whereby the States can have some say in the appointment of a judge to our High Court. Perhaps it could be by a majority vote among the States. If four out of the six States agree to an appointment that could be enough. At a time when we are seeking to abandon the right of the people and the States to appeal to the Privy Council I do not agree that we should accept our present High Court system. It has been denounced in the past by no other authority than our present Prime Minister, when he was very much younger and perhaps a little quieter, but no doubt with his experience even then as a barrister and as an associate to various judges he had knowledge and was fully equipped to speak on this particular subject. Again I sincerely thank the Leader of the House for allowing me an extension of time.


Mr DEPUTY SPEAKER (Mr Scholes - I call the honourable member for Hunter.







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