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Tuesday, 12 December 1905


Mr CHANTER (Riverina) - I intend to move that this clause be omitted, with a view to inserting another clause, which will be followed by others, of which I have given notice. The question involved is whether it is desirable to continue to refer election disputes to the High Court, or whether we should revert to the practice of appointing an Election and Qualifications Committee.


Mr McWilliams - Trust the Court.


Mr CHANTER - It is not a question of trusting the Court. I think I can show that, where elections are disputed, it is not in the interests of candidates to force them to appear before one of the most costly tribunals in the Commonwealth. When this matter was previously under consideration, Parliament deliberately determined, for the purposes of the Act, to convert the High Court from a court of law to a court of equity. In section 199 of the principal Act the intention of the Legislature is apparent. That provision declares that, in dealing with disputed elections, the Court shall have regard only to equity and good conscience, and shall ignore legal technicalities and the laws of evidence. With all due deference to the High Court of Australia, I say that it is absolutely impossible for its members to dissociate themselves from their' legal training, and to control the proceedings in connexion with disputed elections in the homely manner which was intended by this Parliament. When the principal Act was passed, I thought it would be possible for any candidate to approach that tribunal and to secure speedy and cheap justice. But I found, at a later stage, that it was impossible to take a single step towards the High Court without being called upon to employ certain legal gentlemen, who would insist upon going through all the forms provided by law, as if hundreds of thousands of pounds were involved in the dispute. If my own experience in this connexion, and that of the honorable member for Melbourne, are not sufficient to induce the Committee to revert to the old order of things, I shall be grievously disappointed.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Has the honorable member thought of the alternative of retaining the present tribunal, but of disallowing costs?


Mr CHANTER - I can scarcely conceive of costs being disallowed. Where would the honorable and learned member and his colleagues be under such circumstances? In inviting the Committee to omit this clause, I propose to retain all the penalties at present provided by the Act, but to vest the power to inflict them in a tribunal appointed by this House, and nominated by Mr. Speaker.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - That is the old scheme.


Mr CHANTER - It is partly the old scheme.


Mr McWilliams - Under such a system we should have men sitting upon the Committee who had taken an active part in elections.


Mr CHANTER - My experience in the State of New South Wales, where a similar tribunal is in existence, was that, although party feeling ran very high upon several occasions, not a single case occurred in which that body failed to mete out justice to the parties interested at a reasonable cost.


Mr Thomas - I can recall one instance. In the case of Willis v. McDonnell, I do not think that the latter received justice.


Mr CHANTER - At the last general election I felt it to be my duty, both to my constituents and myself, to lodge a petition against the return of the successful candidate. That petition was prepared for a considerable time before the High Court or one of its officers was ready to receive it. A registrar had been appointed - a very estimable gentleman - but there were no rules of Court, and consequently I had to wait week after week before I could lodge it. After its lodgment a considerable time elapsed before the hearing was commenced. That was nevercontemplated by Parliament. Further, despite the fact that I did not call a single witness, and that I employed the services of only one professional gentleman, the costs which I had to pay totalled more than £400. I have already exhibited the bill to several honorable members. The candidate whose seat I challenged engaged three of the leading barristers of this city, and also three solicitors, and his expenses, I am satisfied, must have aggregated thousands of pounds. In such circumstances, is the Committee prepared to continue a practice under which the man possessed of the most means is nearly sure to win ? I repeat that Idid not call a single witness, or enter the witnessbox myself. I merely submitted a petition in which I made certain allegations, which were considered by the Court, and yet my own costs aggregated more than £400.


Mr Spence -Was a large sum expended in advertising the petition?


Mr CHANTER - No. The sum of £50 had to be deposited with the petition. I may further inform honorable members that at one period of the proceedings an application was made for a recount of the votes. If anElections and Qualifications Committee had been in existence, that recount would have taken place in the parliamentary buildings, and the parties to the action would have been able to attend it. But in my own case the recount extended over a number of days. Upon the Friday prior to leaving for Sydney, the Chief Justice ordered the recount, expecting that it would be completed by the following Monday. Accordingly he instructed those representing the partiesin the Court, to mention the case to him in Sydney upon the succeeding Tuesday. That was done at a considerable expenditure.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - What did it cost ?


Mr CHANTER - The gentleman who was acting for me, communicated with another professional man in Sydney, asking him to mention to the Chief Justice on the Tuesday that the recount had not been completed. In reply, the barrister in Sydney telegraphed that he could not comply with the request unless he was instructed by a solicitor. As a matter of fact, the case had to be thrice " mentioned " in the High Court in Sydney.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - What did it cost ?


Mr CHANTER - I have already given the total cost of the proceedings. I have no desire to expose the charges made by professional men in this Chamber.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - If costs were not allowed, those professional gentlemen would not be engaged.


Mr CHANTER - The abolition of costs would remove one objection in the shape of the expenditure which has to be incurred by the parties to a disputed election, but it would not obviate the delay which now takes place. On the other hand, when a petition is presented to Parliament against the return of a candidate, the usual practice is to refer it to a Committee, which deals with it immediately, and presents a report upon which the House, having the whole of the facts of the case before it, is able, without delay, to come to a decision.


Mr McWilliams - Does the honorable member remember the trouble which occurred in this House, because the late Sir Edward Braddon sat on Whitelaw's case?


Mr CHANTER - I have no recollection of it, but the Parliament can always provide against such difficulties arising.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The honorable member admits that the High Court, as the Court of Disputed Returns, dealt with his case justly and satisfactorily, and he ought, therefore, to consider whether it would not be a good tribunal, provided that costs were abolished.


Mr CHANTER - I shall be prepared to listen to any suggestion in favour of retaining the High Court as the Court of Disputed Returns, and providing for the abolition of costs in connexion with proceedings before it.


Mr King O'Malley - Where would a man be if the other side employed a barrister ?


Mr CHANTER - I take it that the proposal of the honorable and learned member for Parkes is that neither side should be able to secure professional costs.


Mr Groom - In other words, if a dissatisfied candidate employed a barrister before the Court, he would be personally responsible for his fees.


Mr CHANTER - That would not remove the present difficulty. It is because I am not in a position - andI am not ashamed to admit it - to employ professional gentlemen in such cases, and because I feel that many others are similarly situated that I wish to have disputed returns dealt with by a tribunal which will be as just and expeditious as is the present one, whilst the cost of conducting a case before it would be much less. I have known petitions to be dealt with by Elections and Qualifications Committees without professional assistance being engaged on either side. The interested parties have produced their evidence, and the Committee has without delay pronounced its decision.


Mr Henry Willis - The honorable member has made out a strong case.


Mr CHANTER - I have no desire to speak disrespectfully of members of the legal profession, either inside or outside this Parliament. I presume that if I were a lawyer, I should be anxious to obtain as many fees as I could honestly earn. But that is not the position that I take up. Whilst I hope that I may never have to appeal again to the High Court or to any other tribunal, Ihold that it is the bounden duty of the honorable member for Melbourne and myself to place our experience before the Committee, in order that honorable members may take steps to prevent the recurrence of such difficulties as we encountered in our efforts to secure justice. There is an old saying, and a very true one, that " money talks " ; in the language of the American, " the almighty dollar is always on top."


Mr McWilliams - The honorable member won his case. Surely he does not mean to suggest that that was due to the fact that he had money?


Mr CHANTER - Certainly not; that is not the point. What I wish to put before the Committee is that if I had not won my case, I should not only have been subjected to injustice, but mulcted in costs to the extent of thousands of pounds.


Mr McCay - The honorable member could have lost his claim only on the ground that it was not a just one.


Mr CHANTER - In some law suits it is considered quite justifiable, and, indeed, good tactics, to pile up the costs against the other side as much as possible.


Mr McCay - There are not many clients of that kind.


Mr CHANTER - The honorable and learned member for Parkes knows of a case in which costs were piled up, in the hope that I should be called upon to pay them; but fortunately, that anticipation was not realized. I do not wish to labour this question, because I think my proposal speaks for itself. I have good reason to fear that if the present expensive system be retained, those who have the most money will avail themselves of it to defeat their opponents.


Mr Henry Willis - And even a wealthy man might be ruined in the end. The honorable member says that his opponent in the case in question, incurred costs amounting, perhaps, to thousands of pounds.


Mr CHANTER - But some men have a far greater capacity than have others to endure a financial strain.


Mr Henry Willis - Why should even a rich man be put to unnecessary expense in this regard?


Mr CHANTER - To attain a seat in this Parliament is an honorable ambition, and every man should Have a right to seek to gratify it. Let us take the case of two men, the one being a rich man, and the other having but slender means, who contest an election. In the event of the latter being returned, the wealthy man, if dissatisfied with the result, may appeal to the Court of Disputed Returns, and use his money, not only to have his opponent unseated, but to ruin him financially.


Mr Henry Willis - The honorable member's opponent thought that he had a just case.


Mr CHANTER - I do not propose to discuss that point. It is well known that in all branches of the law litigants who have little money can obtain but little justice. A man of means is able to utilize all the machinery available to protract litigation, until he eventually breaks down the opposition of the man whohas nothing.

When the existing Act was under consideration in this House, it was considered that the Court of Disputed Returns, for which provision was then made, would be divested of all legal technicalities and forms of procedure. But I call upon any honorable member who witnessed the proceedings in which the honorable member for Melbourne and I were interested, or who read the reports of those proceedings, to say whether they differed in any respect from those associated with an ordinary lawsuit. I wish it to be distinctly understood that I am not seeking to reflect in the slightest degree upon the members of that Court. I believe that they did everything which honorable and just men could "have done; but the fact remains that lawyers, by reason of their training, have an unconscious bias, and cannot get away from the ordinary forms of legal procedure to which they have become accustomed. On the other hand, an Elections and Qualifications Committee, appointed by this Parliament, would act in equity and good conscience-


Mr Henry Willis - Does the honorable member believe that he would have won his case before such a Committee?


Mr CHANTER - I am certain that I should have done so. I invite honorable members, who have held seats in the States Parliaments, to put their experience before the Committee. When the Act was under consideration in this House, the honorable member for North Sydney, who had read of the costliness of the proceedings in connexion with disputed elections to the British House of Commons, specially warned honorable members against constituting the High Court a Court of Disputed Returns. He pointed out that it would be a very costly tribunal, whereas an Elections and Qualifications Committee would provide a homely, but just and economical, means of dealing with disputed returns. The deputy leader of the Opposition uttered a similar warning, and as those warnings were disregarded', it remains for the honorable member for' Melbourne and myself to give the Committee another one, based on our own experience. The honorable member for Melbourne and myself have had to pay for the interpretation of the law which this Parliament passed to regulate the conduct of elections. Notwithstanding that the Act says that legal technicalities are not to be observed, the Court put a legal interpretation upon the homely 'phrase "officers of the police force." Parliament meant by that phrase the members of the police force, just as the employes of the Customs Department are meant by the term " officers of the Customs Department." The Court, however, held that a police constable is not an officer, and on that point *he elections of both myself and the honorable member for Melbourne were invalidated. Would such a point have been considered for five minutes by any Committee of Parliament? I might give other instances to prove that the Court is unconsciously guided in its decisions by legal technicalities and the laws of evidence, and that this makes its expenditure too costly to allow an ordinary person to avail himself of it. I therefore intend to move the omission of clause 48, with a view to insert in its place the following clauses-







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