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Friday, 20 July 1906


Mr JOHNSON (Lang) . - I do not wish to give a vote upon this Bill without stating my reasons. In the first place, I do not altogether agree with the views put forward by the honorable member for Franklin with regard to the uneven distribution of the work of the High Court. The honorable member apparently lost sight of the fact that the other two. Justices could hardly be expected to concur in a judgment delivered by the Chief Justice, without seriously investigating all the circumstances of the case. I take it that they merely say " I concur," because they consider that the Chief Justice has set forth the case in such a way as to render it unnecessary for them to. amplify his remarks.


Mr Isaacs - Those who practise before their Honours, know that the two Justices other than the Chief Justice work very bard, and frequently deliver long and careful lv-reasoned judgments.


Mr JOHNSON - I believe, that to be the case. Any one who has watched the proceedings of the High Court must knowthat the Justices have their hands fairly well filled, and their minds fully occupiedGranting all that, however, it seems to me that the Attorney-General has failed tomake out a sufficiently strong case to justify additional appointments at the present time. I do not say that as time progresses - perhaps in the course of another twelve months - a further appointment, perhaps, may not be necessary. The principal difficulty seems to arise, not from the appellate work - because their Honours seem to be able to cope with that fairly well - but from the probable accumulation of other work,, principally in connexion with the Arbitration Act. It is feared that it may become necessary to reduce the strength of the High Court Bench for the time being,, inorder that one of the Justices may preside over the Arbitration Court. When the High Court was appointed, it was thought that it would be engaged principally upon work falling w"ithin its appellate jurisdiction. The work of the Arbitration Court was not then taken into account, because no Federal Arbitration Act was at the time in existence or projected'. I think that the suggestionof the honorable member for Franklin, that a Justice should be appointed temporarily to preside over the Arbitration Court is a very reasonable one.


Mr Bamford - Members of the Opposition are always complaining, that our legislationwill tend to increase litigation.


Mr JOHNSON - It will do so later on, but it has not had that result up to the present time. I contend that nothing hasbeen presented to us to justify us in making two further permanent appointments at the present time. If, after the appointment of a temporary Justice to preside over the Arbitration Court, and to transact other business outside of the appellate jurisdiction of the High Court, experience shows that the work is still accumulate ing, we can again consider the necessity for making further permanent appointments. The remarks of the honorable member for Laanecoorie are worthy of some consideration in this connexion. If it be true, as he pointed out, that considerable delay occurred before the Rules of Court necessary for the guidance of litigants were framed and issued, the accumulation of work which has been pressing upon the Justices may have been partly due to that fact. If the Rules of Court had been issued at an earlier stage, there might have been no serious congestion of business in the Court at any time. This is what I understood from the honorable member's remarks. It appears from the report of the Chief Justice that, so far as the appellate work is concerned, the Court has been fairly able to cope with it. He says -

Since the end of the summer vacation, the Full 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, with the result that all the business, which included some arrears from 1905, was disposed of, with the exception of one case.


Mr Isaacs - The Chief Justice is there speaking of the Melbourne business. There were cases pending at that time in other places.


Mr JOHNSON - The honorable and learned member for Angas has shown that two cases, which were likely to be very important, were subsequently settled.


Mr Isaacs - My remarks are made irrespective of those cases.


Mr JOHNSON - In the next paragraph His Honour the Chief Justice says -

A sitting of the Full Court is appointed to be held at Adelaide on 21st instant, at which some appeal business was set down to be heard, but

Ave are informed that it has now been withdrawn. But for this accident, the Court would certainly not have been able to dispose of the business still remaining to bc heard in Sydney before leaving for Melbourne for the sittings of the Full Court, appointed for the 28th instant. In the actual state of affairs, it is possible that we may do so.


Mr Isaacs - As it turned out, they did not do so.


Mr Watson - There are also a number of cases which have not yet been set down for hearing.


Mr JOHNSON - The honorable member refers to business outside of the appellate jurisdiction ?


Mr Watson - Yes ; I refer to business within the original jurisdiction of the Court.


Mr JOHNSON - My impression is that there is no reason to fear that the work of the Court will accumulate to such an extent in the immediate future that the Justices cannot cope with it.


Mr Isaacs - There is enough work in hand now to fully occupy the time of the Court for the rest of the year, irrespective of a number of other cases that will probably come forward.


Mr JOHNSON - As far as I can gather from the reports which have been submitted, the work in question is work which the Arbitration Court principally will have to perform.


Mr Isaacs - I am speaking of the ordinary judicial work of the Court. .There will be two suits set down for hearing in Perth in October next, and, at the rate at which cases are usually heard, they will extend over six or eight weeks.


Mr JOHNSON - The AttorneyGeneral is perhaps, speaking from some later information than is in our possession.


Mr Isaacs - I have already mentioned the case of Weingarten v. Wills, which will take several weeks to determine.


Mr JOHNSON - But the honorable and learned member for Angas pointed out that that was an exceptional case.


Mr Isaacs - It all goes to show that business for ' the Court is pouring in from all directions. Since these reports were made, there have been two cases in which I am personally concerned which will come before the Court.


Mr JOHNSON -But the Court will not divide itself into two sections for the purpose of hearing those cases.


Mr Isaacs - It is impossible for the Court, as at present constituted, to do the work that is required of it. Surely the honorable member does not wish the Justices to go on until they break down?


Mr JOHNSON - Certainly not. I approach this matter with a perfectly open mind. If it can be satisfactorily demonstrated that another Justice is necessary, I shall certainly not oppose the Bill, but so far the evidence supplied to honorable members has not established the necessity for the appointment of an additional permanent Justice.


Mr Isaacs - We cannot appoint a Justice to the High Court Bench temporarily. Under the Constitution, the appointment must be permanent.


Mr JOHNSON - In that case, I feel inclined to support the appointment of one additional Justice. Had it been possible for us to secure the services of a temporary Justice to deal with work of an extraneous nature - that is, work which is separated from the appellate jurisdiction of the Court - I should have favoured the adoption of that course.


Mr Isaacs - Unfortunately, those who framed the Constitution provided that 'the appointments must be for life.


Mr JOHNSON - In that case I am disposed to support the second reading of the Bill ; but in Committee I shall advocate the appointment of only one additional Justice for the present. If at a later period it is found that the services of still another Justice are necessary, no doubt Parliament will do what is right. I thoroughly agree with those who hold that appointments to high judicial positions should not be the reward of political services. I do not say that members of the legal profession who move in the political arena should be ineligible for such appointments, but I do say that the qualifications of others who are outside of Parliament should be taken into consideration, and that the only test applied should be that of personal fitness.


Mr Watson - So many smart lawyers get into Parliament that we can hardly' escape picking them sometimes.


Mr JOHNSON - I have no objection to their being selected for the post if others are placed upon the same plane. Hitherto a very unfortunate practice has been encouraged in all our Australian Legislatures - I refer to the appointment to the judicial Bench of legal gentlemen who have been prominently associated with one or other of the political parties, as a reward for services rendered.


Mr Watson - The same complaint is made in England.


Mr JOHNSON - I am aware of that. We should avoid! the practice as much as possible. I make this statement without any desire to reflect upon any of the legal gentlemen who are connected with politics. As I am assured by the Attorney-General that it is not possible to appoint a temporary Justice to the High Court Bench, I shall support the second reading of the Bill, reserving to myself the right to vote for its amendment in the direction of sanctioning the appointment for the present of only one extra Justice.







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