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Friday, 20 July 1906


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) . - Referring to the matter last alluded to bv the honorable member for Corangamite, it appears to me that if we rely upon the States and the Commonwealth Justices conferring, with a view to reducing expenses, we shall have to wait a very long time.


Mr Wilson - I did not refer to the Justices, but to the legal authorities other than the Justices.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am afraid that the case would be equally hopeless in any event. At the same time I fully sympathize with the views of the honorable member. The outstanding feature of our Federal evolution is the multiplication, rather than the substitution of functions. Instead of the Commonwealth performing substitutional functions, it appears only to multiply the number of officials and to increase the outlay involved in performing a given amount of work. This is becoming a verv serious matter. We already have three Justices. who are reported to be working at full speed. Yet no one has heard a whisper of a suggestion that the States could get along with any smaller number of Judges. The work of the States Courts seems to be congested as of old, and there is no prospect of relief for the States or the Commonwealth whilst the present conditions exist. Something will have to be done, because at the rate at which we are going on under our Federal jurisdiction, we shall soon take over the hulk of the law business of the Commonwealth. I submit that that was not the original intention with which the !High Court was set up. It was intended to exercise Federal, as distinguished from State, jurisdiction. It was contemplated that ordinary mercantile cases would be dealt with bv the States Courts, except where an appeal would lie from the States Courts to the High Court.


Mr Isaacs - That is all that is being done now.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Oh, no; very much more is being done. All the matters that are dealt with by the High Court do not come under that head. Complaints have arisen as the result of the 100* legal framework that we have set up. We shall have to delimit our functions very much more severely than we have done, unless the High Court is to scoop up the whole of the law work of the Commonwealth.


Mr Page - Many persons now appeal to the High Court who would never think of taking a case to the Privy Council.


Mr Isaacs - Hear, hear.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am not disputing that. I contend, however, that in the degree that we set up additional Federal facilities, the States facilities should be decreased, and the expense diminished. One should be the measure of the other. Otherwise we shall multiply judgments without - and I say it with very great respect, and hope that I shall not be misunderstood - any guarantee that we are placing at the disposal of the citizens greater ability, greater research, and greater finality, so far as the quality of the judgments is concerned.


Mr Wilkinson - Why should we not have an honorary magistracy in the Commonwealth ?


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am not dealing with that point at present. I am pointing out the serious extent to which we are multiplying legal functions. The public expect, and will sooner or later demand, some savings in the States Courts which will, at least, counter-balance the great expense entailed in maintaining the High Court. I am afraid that the means suggested by the honorable member for Corangamite will not bring us any nearer to a solution of the difficulty. We shall have to commence here.


Mr Mcwilliams - We are piling up expenses and at the same time asking the States to cut down expenses.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - We are bound to pile up all justifiable Federal expenditure, and, so far as that is concerned, we are justified in asking the States to cut down their expenses in proportion. It is quite another question, however, whether the States Courts are likely to do so. One does not surrender one's status and dignity without some slight struggle. That is human nature. What the final solution will be I do not know. But, perhaps, after all, it will be for the taxpayers to deal with the matter when they are electing their representatives. I am one of those who did not vote for the establishment of the High Court. I thought that it was a tribunal, the setting up of which might well have been deferred for a few years, and that the States Supreme Courts might have done all the work required by us. But the tribunal has been established, and I atn bound to say that six years' experience of Federal legislation has shown the necessity for it. Our legislation requires that there shall be some tribunal high above party politics, which will decide the constitutionality of our actions, and which will safeguard the States from what I fear are imminent Federal encroachments upon their rights. To me that is the chief argument for the maintenance of the High Court in its fullest possible efficiency and dignity. It is a very important tribunal. One part of it has been specially constituted for the purpose of testing the validity of the actions of this Parliament. That, perhaps, is the side which will ultimately appeal with the greatest force to the taxpayers of the Commonwealth. I am: not quite sure that the High Court is not going to save the Constitution and the Federation from the friction which is looming all along the horizon.


Mr Mauger - What friction ?


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The constant friction between the Federation and the States. Can the honorable member shut his eyes to the seriousness of the position in most of the States? To-day people are gravely talking - and not irresponsibly either - of taking extreme action to defend the rights of the States against the Commonwealth Parliament.


Mr Mcwilliams - There is a motion before the Western Australian Parliament in favour of secession.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - And there have been discussions upon similar motions in other States Parliaments. This fact merely indicates the growing friction which is being occasioned by the exercise of our Federal functions,, and by our Federal legislation.


Mr Frazer - Evidently the people of Western Australia desire to see the pro mise which was made regarding the construction of the Transcontinental Railway respected.


Mr Mauger - Does the deputy-leader of the Opposition really think that there is anything of a serious character threatened in the States?


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I certainly do, otherwise I should not say so.


Mr Salmon - The delayed construction of the Transcontinental Railway is the cause of the irritation in Western Australia, and the questions connected, with the Federal Capital Site are responsible for the friction in New South Wales.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The honorablemember will find that it is a good deal more than that. The one outstanding element of friction', in my judgment, is the enormous additional cost which Federation is involving, not so much by reason of the exercise of our Federal functions as by the multiplying of functions. Our expenditure is piling up and the State expenditure is not proportionately decreasing.


Mr Frazer - The chief cause of irritation is the desire of members of the States Parliaments to hide their own deficiencies by blaming somebody else.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I do not say what is the cause of it. I am merely pointing out the fact. It occurs to me that the only tribunal which can guard both the Federation and the States: is the High Court itself. Therefore, whatever objections I originally entertained regarding its premature establishment have vanished. I believe that a number of things which we have done, and which we contemplate doing, are in their very nature unconstitutional. Here I should like to point out another defect in our Constitution. Before we begin to frame Federal laws we do not pause to consider whether we have jurisdiction. Take some of our current legislation as an example. Nobody has taken the trouble to inquire whether the proposed land tax which would fall upon some persons, and not upon others, and which in that way would create class distinctions throughout the length and breadth of Australia, would come within the four corners of our Constitution. Then a Commission was appointed at great cost to investigate a certain matter, and now' we are told upon the best authority that this Parliament has not the constitutional right to legislate upon it. Then there are such measures as the Australian Industries Preservation Bill, and the Trade Marks Act - also the question of the extension of preference to unionists - about the constitutionality of all of which there appears to be grave doubt entertained in the best informed quarters. In Canada they do things very differently. There the Government test the validity of a proposition before embodying it in an Act of Parliament.


Mr Watkins - What course do thev take ?


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The Government are at liberty to submit any proposition they choose to the High Court, and to obtain a decision upon it.


Mr Isaacs - We have not that power under the Constitution.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - But we ought to have it.


Mr Isaacs - The matter was mentioned in the Convention, but the proposition was not accepted.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It is absurd for us to pass legislation, hoping that it will be constitutional ; but not knowing whether it is so or not. That seems to me a political and legislative speculation, in which we ought not to indulge. Our operations here are too costly for us to act in that way, and the sooner we obtain some amendment of the Constitution to permit of the practice to which I have referred being adopted, the sooner we shall know exactly what our powers are. Such a constitutional amendment would in every way minister to the dignity and status of this Parliament as a whole. Besides saving expense, time, and trouble, it would tend to remove the- increasing friction between the Slates and the Commonwealth. Reference has been made to the constitution of the High Court. I entirely subscribe to the dictum of the honorable member for Corangamite with regard to the method of appointing Justices to that tribunal. I certainly think - having regard to the functions which it is their prime object to discharge^ - that there ought to be no test applied to their selection, except that of fitness. I have already stated that in a little time there is bound to occur a clash of opinion of a very serious character between the States and the Commonwealth, and I believe that the High Court will ultimately be found to be the guardian of the Federation itself. Therefore, the quality, character, and general status of that Bench is a matter of supreme importance to all who wish to see the continuance of harmonious relations between the States and the Commonwealth. If this Bill be passed' it seems to me that we could not do better, in connexion with the appointments which will have to be made, than to make an excursion into purely legal rather than into political circles. The whole arena should be absolutely open, and the best possible selection should be made, irrespective of whether a man is a politician, a member of the Government, or a member of the Opposition, or whether he is merely a legal, practitioner outside of Parliament. This brings me naturally to the question asked by the honorable member for Melbourne Ports as to whether we ought to appoint a Supreme Court Judge from any State to the High Court. I think that, in making a selection, we could scarcely go to a better quarter than to the States Supreme Court Benches. The present Chief Justice of the High Court himself was the Chief Justice of the Supreme Court of Queensland, and I have yet to learn that his occupancy of that high position in the State has in the slightest degree militated against the efficient discharge of his present important functions. On the contrary, there seems to be a unanimous opinion in respect of the quality of his judgments, the immense skill, and the veryhigh abilities - indeed, every other attribute befitting a. great Chief Justice - which he brings to the performance of his duties. That 'is the best answer to the honorable member for Melbourne Ports, who suggests a doubt as to whether we ought to select, as Justices of the Federal tribunal, Judges from the Supreme Court Bench of the States.


Mr Frazer - It is an emphatic answer to the statements of the honorable member for Wilmot.


Mr Mauger - I did not make any observations against the Judges personally.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am aware of that. I should like to point out that hitherto the Justices of the High Court have been selected from the Government of the day. If the best men for the position are to be found in the Government, by all means let us appoint them ; but if they are not, we most assuredly ought not to appoint them. The qualifications of the individual ought to be the supreme and only test applied. I say that advisedly, because I have in my mind's eye a man of commanding ability, who, I am afraid, will have a very poor chance of being selected, although 1 do not think that his qualifications would be questioned throughout the whole of Australia. I hope that we shall let the public see that in the constitution of our High Court we have regard only to the qualifications of- the men whom we appoint. What are the facts connected with the congestion of work in the High Court? That is really our only practical consideration. Looking through the papers which have been submitted to us, I confess that I do not think they quite make out the case put by the AttorneyGeneral. To begin with, no mention of any congestion in the work of the Court was made until a case occurred which should have been heard by the Arbitration Court. Then we find that an application was made for some relief by Mr. - Justice O'Connor. Looking broadly at these papers, one is driven to the conclusion that but for the creation of the Commonwealth Conciliation and Arbitration Court there probably would have been no application for further assistance for a. long time to come. In the establishment of that Court, we have the genesis of this claim for an increased number of Justices. It began with this single case in the Arbitration Court. It has been suggested - I do not know with what truth- - that Mr. Justice O'Connor was not very kindly disposed to the proposal that he should take up the work of the Arbitration Court. To out it plainly, it is said that he " jibbed at it.:' When asked in the first place to take up the arbitration case he raised an objection.


Mr Isaacs - He does not raise any objection to take the case - he merely asks for time and opportunity to deal with it.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I think it is clear from the papers that Mr. Justice O'Connor did not care very much about entering upon the work of that Court. I make this statement without the slightest desire to speak in derogation pf the learned Justice. One can naturally understand a man shrinking from the peculiar duties and functions of such a tribunal, unless he feels that he has the qualifications and experience necessary for discharging them. The functions of the Arbitration Court are not those of the High Court, or, at all events, I hope that they are not. We have set up the Arbitration Court with the intention that it shall be not a Court of law, but a Court of equity and good conscience. The trouble is that such tribunals invariably become ordinary Courts of law. It remains to be seen whether the Conciliation and Arbitration Court of Australia will be an exception to the rule. Very much will depend on the character of the Justice appointed to preside over it. Whether Mr. Justice O'Connor objected, or did not object, to take the case, the fact remains that he wrote a very strong letter, setting forth that a delay amounting to a denial of justice was occurring. There seems to be no foundation in his letter for that statement, with the exception of his reference to the one case in the Arbitration Court. He states that all the other work can be overcome by the end of the year, and he suggests nothing further than that some provision should be made for dealing with the one case in the Arbitration Court.


Mr Isaacs - No; not in that letter.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I do not say that His Honour makes that suggestion directly, but he refers only to the one cass.


Mr Isaacs - He signed the letter in question only as President of the Arbitration Court.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - That reminds me of another point. Whenever the work of our States Courts becomes congested, the practice is to appoint an Acting- Justice

I wonder whether the Attorney-General sees any great objection to the adoption of the same course in regard to the High Court?


Mr Isaacs - The Constitution does not permit of that being done. Any appointment must be as a Justice. It was pointed out when the Judiciary Bill was before the House that that was the position.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Is the AttorneyGeneral speaking of the Judiciary Act or of the Constitution?


Mr Isaacs - Of the Constitution, which forbids the appointment of an ActingJustice.


Mr McLean - Does that apply to the Arbitration Court as well as to the High Court ?


Mr Isaacs - No, but if we say that -the president of the Arbitration Court shall be a Justice of the High Court we cannot appoint an acting Justice of the High Court to act in that capacity.

Air. JOSEPH COOK. - That is rather unfortunate. It means that, if the work of the Court is to be kept up-to-date, so that there shall be no delay, amounting as the Justices say, to a denial of justice, there will be no work for the members of the High Court Bench during certain periods.


Mr Isaacs - No; the appeal work alone necessitates an increase.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am not speaking of the proposed increase, but of> the continuity, of the work of the Court. As the honorable and learned member is aware, legal work ebbs and flows. Sometimes there is a busy and sometimes a slack season, and if we are going to maintain the Court at such a pitch of efficiency as to enable it to overtake the work allotted to it, the result will be that slack periods will occur, during which some of the Justices will, have nothing to do. The practice of the States of appointing acting Judges to clear up arrears of work is a sensible one, and is preferable to the appointment of permanent Justices. As the Attorney-General has pointed out, there is, after all, a way out of the Constitutional difficulty to which he has referred, since we may appoint am' acting Justice of lower status to deal with the work of the Arbitration Court.


Mr Isaacs - We cannot say that the President of the Arbitration Court shall be a Justice of the High Court, and then appoint an acting Justice for that purpose.


Mr Mcwilliams - But we could amend the Conciliation and Arbitration Act.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - That is so. A simple amendment of that Act would overcome the difficulty.


Mr Isaacs - We could provide that the President of Arbitration Court shall not be a Justice of the High Court, but I do not think that any Parliament would agree to do so.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am not sr> sure of that. The best Judges in the Arbitration Courts of the old country are not lawyers.


Mr Isaacs - Even the amendment of the Conciliation and Arbitration Act which has been suggested would not obviate the necessity for this Bill.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - In that part of the old country from which I hail Sir Rupert Kettle sat for forty years as the President of Arbitration Courts, and, although not a legal man, he acquired sucha degree of efficiency and fair-mindedness, that, so far as I can recollect, not one of his judgments was questioned.


Mr Isaacs - There is no compulsory arbitration in England.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It is voluntary, but it is none the less arbitration. It does not follow, therefore, that a High Court Justice is necessarily the best president of an arbitration Court. That is a point yet to be determined, and perhaps the process of evolution will make it plainer to Australia than it is. The outstanding fact is that when the Court of five Justices becomes busy, we may have a further requisition with the same statement that there is a delay amounting to a denial of justice. Then there will come a slack period when the Court will have nothing to do. That is the experience of the States Courts, and there is no reason to believe that it will not be the experience of the High Court.


Mr Deakin - It is not so much the quantity as it is the extreme importance of some of the business, which, in any case, should receive the attention of five Justices .


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am not overlooking that fact. It is the side of this question that most strongly appeals to me. The position in regard to the overworking of the Justices is not so serious as sought to be made out in the official papers, or by the Attorney-General himself. Take the letter of the Chief Justice. He pointed out that at the time of writing there were no arrears. Here is his statement: -

Since the end of the summer vacation, theFull Court has been continuously sitting in Hobart, Melbourne, Sydney, and Brisbane, and again in Sydney. The Melbourne sittings were extended for a week longer than the period first allotted, wilh the result that all the business, which included some arrears from 1905, was disposed of, with the exception of one case.


Mr Isaacs - I thought the honorable member was referring to a later letter.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The Chief Justice went on to forecast the work of the rest of the year, saying that the Justices were likely to be very busy, but hoped to overtake the work by the end of the year.


Mr Isaacs - I do not think he says that, but at any rate the Justices have teen busier than they anticipated.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - He points out that in the present congested state of business their judgments must suffer from want of deliberation and reflection.


Mr Isaacs - Thev cannot long endure the present strain.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I have no doubt that 'that statement is worthy of all the consideration we can give it. Anything that detracts from the quality of the decisions of the High Court is a matter that ought not to be lightly passed over by us. These ave the aspects of the case that appeal to me more strongly than does the suggestion as to the congestion of business. The Chief Justice in the last paragraph of hi S letter writes as follows : -

Apart, therefore, from the question of the Commonwealth Court of Conciliation and Arbitration, we are of opinion thai - if suitors desiring to have recourse to the original jurisdiction of the Court are to have a fair opportunity of . doing so, and if the imminent risk of dislocation of the appellate work of the Court is to be provided for - it is absolutely necessary that some addition should be made to the number of the Bench. We think, further, that it is very improbable that Mr. Justice O'Connor will be free at any time during the present year to discharge his functions as President of the Arbitration Court.

All that he says is that those who desire to have recourse to the original jurisdiction of the Court may not otherwise have a fair opportunity to do so. Is that desirable? If litigants find that their business in the Federal Court is being delayed they still have the option of going into the Supreme Courts of the States.


Mr Isaacs - One party has the option, but not the other. The defendant has no option.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I dare say that there is something in that; but-, speaking generally, lit cants have the option of appealing to the States Courts. The consideration that weighs with me relates to the quality of the appellate work of the Court. I do not care much about the original jurisdiction of the High Court; the OUt.standing feature is the importance of its appellate jurisdiction. That is the chief and primary function of the Court, and nothing in my judgment, ought to interfere with the efficient discharge of its functions iti that regard: A more important question is the relative status of the High Court, and the Supreme Courts of the States. At the present time, the three Justices of the High Court hear appeals from the decisions, of Supreme Courts, each constituted of three Judges of, perhaps, equal ability and more experience, and. although, as has been affirmed by the Attorney-General and the honorable member for Wentworth, the determinations of the High Court are generally received without question, now and again it is asked why the Supreme Court Judges should be always wrong and the High Court Justices always right.


Mr Isaacs - Sometimes the three Justices of the High Court have to deal with appeals from the decision of five Judges of the Supreme Court.


Mr Bamford - That is an argument for increasing the strength of the High Court Bench.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - In my opinion, it is the strongest argument for doing so. Still, having regard to the fact that the State facilities for the administration of original jurisdiction have been kept intact, I think that we should not be too hasty in increasing the High Court Bench, and, unless I am convinced by the Attorney-General that two additional appointments are necessary, I shall not agree to the appointment of more than one more Justice. The appointment of another Justice would, according to the statements made in the papers put before us, allow the Court to overtake its work.


Mr Mcwilliams - If the High Court Bench consisted of four Justices, two of them might be of one opinion and two of another opinion.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I do not think that all four Justices would sit as a Court of Appeal. Probably three would do the appellate work, and the fourth other work.


Mr Mcwilliams - Then the additional Justice is to be appointed solely for the transaction of the arbitration work.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - As I read the papers, that is mainly what is required and is asked for. Other considerations have been brought forward in the" course of the correspondence which at the beginning were not thought of.


Mr Isaacs - The Justices did not complain of their own accord:. The President of the Arbitration Court pointed out that the work allotted to him could not be undertaken while he had appellate work to do, and when we asked the Chief Justice to speak about the ordinary work of the Court, he gave it as his opinion that even the appellate work could not be properly done as the Court is now constituted. He did not start complaining.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Why should he not complain if the work is too heavy, seeing that he is responsible for the proper transaction of the business of the Court?


Mr Isaacs - The Chief Justice says that the continuous pressure of work gives very little time for research and the preparation of written or even oral judgments.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - He said that only after he had been requested to make a statement in writing. Had it not been for the passing of the Arbitration Act, no application would have been made by the High Court for assistance for some time to come.


Mr Isaacs - The necessity for additional Justices would still exist.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - We know that Ministers do not ordinarily ask the Judges, "Do you want assistance?" They naturall v wait for complaints about the congestion of work, and representations as to the need for relief.


Mr Isaacs - I do not think that the Justices are in the habit of complaining.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The Judges are quite within their rights in making representations. I desire that the High Court shall have all the effectiveness that we can provide for. But it has been my duty to make the criticism, to which I have given utterance on behalf of the Opposition. The consideration which weighs with me most is the need for doing something to increase the status of the High Court - I do not mean the dignity of its units, but the status which the Court as a body would gain by an increase in the number of Justices. Therefore I shall not oppose the Bill, but I wish to know from the Attorney-General why one. instead of two, additional Justices would not meet the requirements of the position?







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