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Tuesday, 12 December 1905


Mr KING O'MALLEY (Darwin) - I trust that the Committee will agree to the proposal made by the honorable member for Riverina, that all petitions against the return of a member shall be referred to an Elections and Qualifications Committee. When that system was in force in connexion with this Parliament it worked satisfactorily. It is hardly necessary to say that whilst the High Court is founded upon principles of absolute justice, the vast majority of the people are not in a position to have their disputes settled by that tribunal. It is from that stand-point that I wish to address myself to the question.


Mr Maloney - I think that we ought to have a quorum. [Quorum formed.]


Mr KING O'MALLEY - The poor men in this House have not the slightest objection to the High Court acting as a Court of Disputed Returns, except that the presentation of a petition to that tribunal involves enormous expenditure. We hold that every candidate, no matter how poor he may be, is just as much entitled as is the richest man in the community to secure justice. But under the present system that is not possible. A wealthy man is able to secure the best counsel, whilst the poor man on the other side, who has to speak for himself, is doubled up by rules and regulations, tipstaffs, dog-fences, crows' feet, and all other essentials to the working of a great Court of Justice. It is to enable the poorest candidate, who feels dissatisfied with the result of an election, to obtain justice, that we desire that the High Court as a Court of Disputed Returns shall give place to an Elections and Qualifications Committee. It was prophesied' for over a month, after the last general election, that my return would be contested, not because I had done anything that was not straightforward, but because hope sees the star within, and " listening love ' ' can hear the rustling of a " parliamentary wing." I approached some members of the legal profession in regard to the matter, and a nice, kind, sympathetic lawyer told me he would be prepared to start with a fee of fifty guineas ; but he could not tell me where Justice lived, and when I went home that night I could not sleep. I have made up my mind, after the experience of the honorable member for Riverina and the honorable member for Melbourne, that if ever my return be disputed I shall abandon my case, no matter how just it may be, and let my opponent take my seat. I have arrived at that determination, because if either of the honorable members to whom I have referred had losthis case, he would have been called upon to bear the whole cost of the proceedings. In the case of a poor man, that would mean bankruptcy and financial desolation. Mr. Whitelaw, a labour man from the west coast of Tasmania, lodged a petition against the return of Mr. Hartnoll, and the dispute was referred to the Elections and Qualifications Committee. Sir Edward Braddon was Chairman of that Committee, whilst the honorable member for Boothby was also a member of it. I have been informed that the honorable member for Boothby, who is a member of the Labour Party, voted against the labour man, because he considered that Mr. Hartnoll was absolutely entitled to theseat.I am satisfied that if that case had come before a tribunal in which able barristers, prompted by learned solicitors, were employed, and various forms and ceremonies observed, difficulty would have been experienced in securing a decision. The lawyers say that the Committee ought to have declared that another election should take place, but it wisely viewed the matter from another stand-point. Had I been a member of that Committee I think I should have said: "What chance has Mr. Whitelaw of winning this seat against Mr. Hartnoll? It seems to me that he has none, and therefore it would be useless to put the country to the expense of another election."


Mr Bamford - That has nothing to do with the question.


Mr KING O'MALLEY - But there is sound common sense behind it. I am so satisfied that the proper tribunal to deal with an electoral dispute is an Elections and Qualifications Committee that if a petition were presented against my return I should be prepared to submit my case to a Committee consisting of three of the greatest Tories on the Opposition benches. On the other hand, if the case were dealt with by the High Court, and I were unable to secure a first-class barrister, whilst the other side had five or six eminent counsel, I should feel, in the event of my return being declared void, that I had not received justice. It is not the business of the Judges to plead a man's case ; it is the business of the party bringing his dispute before the Court to have enough money to secure justice. We have now an opportunity to revert to the old system. If honorable members fear that it might lead to the giving of partisan decisions, let us provide that a case in which a member of the Labour Party is concerned shall be dealt with by a Committee consisting of nine members of the Opposition, that a case concerning a member of the Opposition shall be dealt with by a Committee consisting of Government supporters, and that one affecting the return of a. Government supporter shall be dealt with by a Committee consisting of members of the other two parties in the House. Is it reasonable to believe that a man who, by sheer force of ability, has won a seat in this House, would be guilty, as a member of such a Committee, of giving a partisan decision? Members of this Parliament have too much respect for themselves to do anything of the kind. There is a great deal of individual, as well as collective, pride in this Chamber, and I am glad that it is so. Unless we desire to make it possible that threefourths of the members of the House may become bankrupt, we should refer disputed elections to a Committee of honorable members. I shall vote for the amendment.


Mr Hutchison - Would the honorable member allow counsel to appear before the Committee ?


Mr KING O'MALLEY - No. Each candidate should come before the Committee, and state his case in his own way. If a case arose on the west coast of Tasmania, the Committee should go to Queenstown, instead of bringing witnesses to Melbourne. The Committee should conduct its inquiries wherever the dispute arose.


Mr Frazer - What about the expense?


Mr DAVID THOMSON (CAPRICORNIA, QUEENSLAND) - Why should not counsel be employed?


Mr KING O'MALLEY - The Commonwealth could stand the expense. What we desire to getat is the truth, and lawyers are paid, not to bring out the truth, but to prevent witnesses from telling the truth, and to bewilder and hinder them until they do not know where they are. I have no ill-feeling against the members of the legalprofession, and regret that I do not belong to that body. As a matter of fact, I have the profoundest regard for their abilities, and flyto them whenever I am in trouble. A Committee of this House, however, could deal with election disputes without the aid of lawyers. The expense of conducting a suit before the High Court is terrible. One has to wire to Sydney, to fee a solicitor, to notify a barrister, merely to mention a case to the Judges. I am afraid that the Minister of Home Affairs is, by reason of his environment, becoming a Conservative. I expected to see him fight for the manhood and womanhood of this democracy, but he is unconsciously contending for the accumulated wealth of the community. I remember that the honorable member for North Sydney was originally opposed to the establishment of the High Court as the Court of Disputed Returns.

We have before us living victims of the present system. The honorable member for Riverina was a rich man when he brought his case before the Court, but now he is a poor man. I remember once, out on the Brazos River, in Texas, there were three farmers who had a quarrel, and there were three poor lawyers in Columbus city. The farmers went to law, and when the case was settled, there were three rich lawyers, and three poor farmers. So it is with those who go before the High Court. I ask honorable members opposite to help us to rescue our fellows from the thraldom of the legal profession.

Mr. HENRYWILLIS (Robertson).The honorable member for Riverina is deserving of the thanks of the Committee for having moved the amendment. The High Court was popular with honorable members generally when this matter was under consideration a few years ago, and it was thought better to allow the High Court to deal with election petitions than to permit honorable members to try the case of a fellow member. The Court has given justice, but its procedure is very expensive. It probably cost £40 to mention the case of the honorable member for Riverina to the Court in Sydney. I understand that it cost him about £400 to fight that case, while.it cost his opponent anything from £2,000 to£3,000. That is a very expensive way of testing the validity of an election, and if there is a cheaper and equally effective procedure possible, it should be taken. We have been told by honorable members who were members of the Parliament of New South Wales that the Committee of Elections and Qualifications there gives full justice, while the expense to parties appearing before it is nominal, so I think that we might very well establish a similar body here.


Mr Deakin - The Victorian experience is different.







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