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Thursday, 25 July 1912


Senator GIVENS (Queensland) . - During the debate on the second reading of this Bill considerable argument arose in regard to one portion of it. T should like to fake the present opportunity of making a few remarks on what was then said. A most important portion of this Bill, it will be readily conceded, is that which repeals a part of the principal Act dealing with trade marks intended to protect working men engaged in various industrial occupations in the Commonwealth. In due course, after sections having that object in view were embodied in the principal Act, they came before the High Court. The High Court, rightly or wrongly - I am not going to express an opinion upon their decision - ruled the sections to be ultra vires. The Vice-President of the Executive Council, in moving the second reading of the Bill, criticised, as he had a perfect right to do, that decision of the High Court. In doing so, he happened to make the remark that some of the Judges, at any rate, if not all of them, were in the habit of putting the narrowest construction upon the Constitution, and that their decisions had the effect of confining us within the severest limits that could be read. into it. For that statement, and one or two others of a cognate character, Senator McGregor has been severely taken to task by several honorable senators opposite - notably by Senator Symon. That honorable senator elevated himself upon a pedestal - or to vary the simile, rode his high horse - looking down with the utmost disdain upon any one who even dared to criticise the High Court at all. While listening with a great deal of interest to Senator Symon, and admiring the noble indignation with which he seemed to be fired, I was forcibly reminded of a previous occasion when the same honorable senator made use of his position in this Chamber for the purpose of criticising in scathing terms the same High Court that he denounces Senator McGregor for having dared to mention. The honorable senator, if he did not actually say, certainly insinuated - as I will show by reading a portion of his speech - that the High Court Judges not only disobeyed the Commonwealth Judiciary Act, but' actually disobeyed the Constitution, flouted it, and in one or two instances were practically dishonest. I should not have mentioned this matter at all, except for the very high and mighty attitude assumed by Senator Symon last night. His observations should not be allowed to go forth to the country without a reference to what he himself said on a previous occasion. After the lapse of seven years people are -inclined to forget things of thi? kind, and perhaps not many, even amongst honorable senators, recollect that this very same gentleman, who occupied such a lofty pedestal last night, used his influential position in this Senate to criticise the High Court far more severely than Senator McGregor ventured to do in the observations to which so much attention has been called. Before proceeding to read extracts from the speech I have mentioned, I desire to controvert, as far as I can, one statement made by Senator Symon. It was that the very fact that the Bill which we are now considering repealed a portion of the principal Act was proof positive that the High Court was right in declaring that portion to be ultra vires. But, sir, it did not prove anything of the kind; and with all due respect for the trained judicial mind of Senator Symon, I will venture to remark that I should not have much respect for his judgment if he were to enunciate an opinion of that kind from any Bench to which he might in the future be elevated. Merely to propose to repeal a portion of a principal Act because to retain it might be fatal to the whole measure does not prove whether the High Court was right or wrong.


Senator Pearce - Nor that we think they were right.


Senator GIVENS - Nor does it prove whether we think them right or wrong. I do not wish to labour the matter, but I do think that it is rather late in the day for any one to come along now and endeavour to establish the proposition that any individual or any human institution is infallible. I have never heard it claimed for any Court that it is infallible, and that its Judges must necessarily be right when they give a 'decision. In fact, in quite a number of cases the decisions of Judges are reversed, which is proof positive that Judges themselves do not regard each other as infallible. I am now about to quote from volume 29 of the Commonwealth Hansard, page 5836, for the 28th November, 1905. On that occasion Senator Symon took occasion to speak on the Estimates of the Attorney-General's Department. It was a very long speech, occupying several pages. I do not propose to read more than one or two extracts from it. But I want to show what sort of criticism Senator Symon indulged in in respect to the High Court on that occasion. I may say, quite frankly, that I agree with a great deal of what he said. I am not quarrelling or cavilling at anything in his speech. But I ann justified in quoting from it now, in view of the honorable senator's attitude last night, when he appeared to deprecate the idea of any one venturing to say a word against the High Court. It is just as well to remind him that on this occasion he was one of the most severe of its critics. It appears to- me, sir, that these lawyers are like a family who, amongst themselves, are ever ready to squabble and abuse each other ; but immediately any one else dares to say a word against them they are all up in arms, and with tooth and claw proceed to rend them. In the course of his speech, Senator Symon said that under our Constitution there are three co-ordinate and distinct bodies - first the Parliament, secondly the Executive Government, and thirdly the Judiciary, each of which is absolutely independent of the other two. I asked last night whether the Executive is independent of Parliament, and the honorable senator said that it was in regard to the carrying out of its functions, although it might be removed by Parliament. But he said it was independent of Parliament, and the Judiciary was independent of the other two. With regard to that point, this is what the honorable senator said in November, 1905 -

The High Court is not cut adrift from the Executive and all Executive control, and it cannot be. If it were it might be a menace to the working of the Government and to the Constitution, instead of occupying the position which it ought to occupy as guardian of the rights of the States and of the Commonwealth, and the arbiter of the Constitution. As I say, the Watson Government found that the arrangements in respect to the establishment were not in accord with the Judiciary Act, and, following their footsteps, I came to the same conclusion, which to this day I hold. The arrangements as now carried out are not only, it seems to me, not in accordance with the Judiciary Act, but not in accordance with either the spirit or letter of the Constitution.

That was his opinion of the way the High Court was carrying on its business at that time. Did Senator McGregor say anything nearly so severe about the High Court as that? Mr. Garran, secretary of the Attorney-General's Department, by direction of the honorable senator, wrote to the Judges, and practically charged them with dishonesty.


Senator St Ledger - Was not that about a domestic matter between the AttorneyGeneral and the High Court?


Senator GIVENS - It was a criticism, uttered in the Senate by Senator Symon, of the High Court Bench, and its arrangements.


Senator St Ledger - On its domestic side; not on its judicial side.


Senator GIVENS - If there is any domestic side to a public official like the At- - corney- General charging the Judges of the :.High Court with trying to defraud the

Commonwealth, I want to know what " domestic " means. Does the honorable senator say that it would be domestic for me to charge a member of his family with fraud? It would be a very undomestic act if I did that.


Senator Millen - Was not the dispute over a matter of high finance, not of law?


Senator GIVENS - I have already quoted the passage in which Senator Symon pointed out that the Judges were acting contrary to the Judicature Act, and contrary to the spirit and the letter of the Constitution. Mr. Garran wrote the following letter -

The second reason is made up of several parts, and the Attorney-General desires me to say he is scarcely able to follow it. In the first place, the Attorney-General is informed that the Chief Justice's staff did' not travel with him from Sydney to Hobart.

Further on he said -

In the next place, it is the duty of all public servants to travel by' the most expeditious and economical route, and if travelling bv sea to Hobart was for the staff more economical than by rail, it was their duty to travel by that route. Any saving in that way belongs to the Commonwealth, and the Attorney-General cannot Tecognise the right of the Justices to apply and use these Commonwealth savings in paying their own steamer fares, when their fares for the land route, to enable them to discharge judicial duty, have already been paid. The AttorneyGeneral regards it as being too plain for argument or doubt that the Commonwealth ought not to pay both.

It will be seen that the then AttorneyGeneral practically charged the Judges with trying to defraud the Commonwealth of the amount paid for their associates and other officials of the Court travelling by sea, trying to apply that money to their own purpose, and he said that the Commonwealth should be protected against fraud of -that kind. In one portion of the speech the word " fraud " is actually used.


Senator St Ledger - I thought that the dispute was not in connexion with a matter of law.


Senator GIVENS - For the benefit of the honorable senator I will read Senator Symon's opinion of the way in which they conducted the High Court, which is a purely judicial matter. On page 5843, he said of the Judges -

It was, in my judgment, highly improper that the statement referred to should have been made from the High Court Bench.

He criticised their action on the bench.


Senator St Ledger - Not in connexion with a matter of law.


Senator GIVENS - With regard to the travelling expenses of tipstaffs, this is what Senator Symon had to say -

In order to save that very heavy expense, on the 26th April a direction was given that one associate and one tipstaff at the public expense was enough to accompany the Full Court on circuit when the Court went to any other of the States, and that this should apply to the Brisbane sittings. Railway tickets were applied for and obtained for one associate and one tipstaff, but not one word was said as to the intention to' disregard the request of the Government to discontinue this retinue; but the three associates and three tipstaffs were taken as before.


Senator St Ledger - By the way, this is very enlightening on the Trade Marks Bill.


Senator GIVENS - I am not a transgressor in this case, as the honorable senator should know. I would be the very last to introduce a subject of this kind were it not necessary to do it in order to take down Senator Symon from his very high pedestal and place him in the position which he occupied here seven years ago. He continued -

No intimation was given that that was intended, and what was done was simply to send in, about the time the late Government left office, the vouchers for travelling expenses, one of which was about £15 higher than the others, and evidently included additional expenditure incurred, not by using vouchers, but bv paying the expenses of the associates and tipstaffs, in rather unworthy defiance of the directions given by the Ministry of the day.

Senator McGregornever used the word " unworthy " in reference to the Judges ; he never used language nearly so strong as that. Will it be astounding to the Senate to find that this very Court, according to Senator Symon - these very people who are continually denouncing workmen for all their trade disturbances, who are continually holding forth against industrial strife - went on strike itself ? Why ? Was it because the Judges were not getting enough wages ? No ; but because, as Senator Symon said, they were not allowed a sufficient retinue to maintain their dignity and importance - a lot of useless tipstaffs and others who were of no earthly use to the Commonwealth, whom it did not require, and who were merely personal attendants. On page 5845, Senator Symon went on to say -

The result of my proposal in regard to the limitation of travelling expenses was that in the first place, as I was informed, communications were made without my knowledge, and behind my back, to high personages, politicians and others, to whom no such communications ought to have been made. Communications were made to the Prime Minister, and influence, which ought never to have been exercised, was brought to bear upon him in various ways. All these influences were unavailing, and the next step - taken on the 29th April - was to suspend duty in respect to the Court fixed to be held in Melbourne on the 2nd May. This was done absolutely without warning, notice, or previous demand to me upon any matter in respect of which it was either before or subsequently suggested that any request was to be made. From the telegrams printed with the correspondence, it will be seen that when that unfortunate incident took place I endeavoured to ascertain the reason for this serious and unprecedented step, which I hope will never be repeated. But my request for reasons was first evaded and then refused.

He charged the Court with going on strike without notice, and without warrant, and when he, the official head of the Department, asked for reasons for their conduct, he said that his request was first evaded and then refused. I could go on reading very interesting matter out of this speech for a very long time, and show that Senator Symon has been a far severer critic of the High Court than the Vice-President of the Executive Council attempted to be. I fail to see why he should have adopted such a superior attitude last night in rebuking the Minister for his very pertinent and cogent remarks in regard to the action of the High Court. I do not desire to weary the Senate by further discussing the Bill. I think it is patent to everybody why the Government have taken the wise course of dropping from the Act certain provisions which, in the circumstances, and in view of the decision of the High Court, must be absolutely futile, and, therefore, surplusage. We did not know that this particular portion of the Act was unconstitutional ; we do not know it yet, but we do know that the High Court has declared that it is.


Senator Pearce - A majority of the Judges.


Senator GIVENS - That is the High Court, as the Minister knows.


Senator Pearce - Some of the _ Judges have declared this portion constitutional.


Senator GIVENS - It is a very arguable matter yet. We know that the High Court, or a majority of the High Court, have declared this portion of the Act unconstitutional, and as they are the final arbiters, we have to bow to their decision; but it is to be hoped that the day is not far distant when the Commonwealth will find itself freed from the shackles which bind it in that way, and able to protect the workman as well as the trader, to protect the artisan as well as the manufacturer. Until it does so it is not, and cannot be, in a position to give that fair deal all round which every Parliament ought to be able to mete out to every one of the citizens.

Question resolved in the affirmative.

Report adopted.







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