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Thursday, 24 November 1927


Mr LATHAM (Kooyong) (AttorneyGeneral) (7:29 AM) .- The Leader of the Opposition has challenged the appointment to the Arbitration Court of Judge Drake-Brockman, upon the ground that he was not qualified for the position at the time of his appointment, that he was a partisan, and that his was a political appointment. In the first place I suggest that little attention should be given to the opinions expressed in some newspapers, and that honorable members should not be influenced by the. headlines or by comments which are often supplied by ill-informed' persons. I do not intend to pay any regard to this aspect of the question, but I shall endeavour to answer the points raised by the Leader of the Opposition (Mr. Charlton). I know Judge DrakeBrockman very well, and can give my honest opinion of his capacity and character. 1 regard him as an able, fair-minded man, well qualified for the position which he now occupies. He had legal experience as a solicitor in Western Australia, and after the war practised at the bar in Victoria: I think honorable members as a whole will admit that, when a member of the Senate, he earned the general respect of members of both branches of the legislature. He rendered distinguished service at the war, and when he returned, in common with some other members of his profession, did not immediately establish a connexion on returning to the bar. -He is, however, a well qualified lawyer and has enjoyed the respect of the members of the profession.


Mr Makin - Had he a practice before he went overseas?


Mr LATHAM - He was practising his profession in Western Australia. As the Leader of the Opposition attacked a gentleman who is not here to defend himself, I wish to submit facts so that honorable members may form their own opinions. One statement made by the honorable member may, perhaps, carry a certain amount of weight, and that is that several years ago judge DrakeBrockman, when a private citizen, was president of the Employers' Federation of Victoria. He has never been an employer of labour, but, when his fatherinlaw died he was appointed executor to his estate, and in that capacity was responsible for winding up the business. So far as I am aware, that is the only way in which he has been associated with commerce or industry. The Employers' Federation, however, recognizing his ability and legal attainments, asked him to assist the organization, which he agreed to do, and eventually became president of the Federation. In that capacity he did a great deal towards liberalizing its ideals. We have now to consider whether that is to be a factor which must be regarded as a disqualification for a person otherwise fitted to occupy such an important position as that which Judge DrakeBrockman now holds. I submit that it should not be, and that everything depends upon ability, integrity and character. The Leader of the Opposition quoted a sentence of two from a speech delivered by Senator Drake-Brockman in 1922, as recorded in Hansard, but I should like to refer honorable members to a speech which that gentleman delivered in the Senate on the 18th June, .1926, and which appears on page 3269 of Hansard of 1926.


Mr McGrath - How long was that before he was appointed to his present position ?


Mr LATHAM - The appointment was made early this year, and I suggest that honorable members interested in the subject of arbitration should peruse this informative speech, a portion of which reads -

I cwn understand tlie honorable senator speaking feelingly and strongly on this subject when he tells us so frankly that he does not believe in arbitration. That is his view. I do not agree with him. He tells us that arbitration has been a failure in Australia, but he makes that statement in very broad and general terms, and produces no evidence in support of it.

Senator Kingsmill.Nor any reason to show why it has been a failure.

Senator DRAKE BROCKMAN.Precisely. Compulsory arbitration is an experiment. It is being carried on in Australia and New Zealand. So far the evidence does not prove that it is a success. Neither does it show that it is a failure. As a matter of fact I think the evidence points rather to its having been a success and that, consequently, we are justified in continuing it for the purpose oi determining finally whether it is a success or a failure.

It was unfair of the Leader of the Opposition to quote what Judge Drake Brockman said in 1922, when he very fully discussed the subject of arbitration in 1926. The fact that he was a member of the Senate, and a supporter of one of a political party, should' not disqualify him from occupying a position on the bench.


Mr Charlton - He should not have been closely associated with an industrial organization.


Mr LATHAM - I do not think that affects the position on this point. Surely we are not going to lay it down as a principle that a qualified person who devotes his energies to the service of his "Country shall on that account be considered incapable of occupying a judicial position. No such condition obtains in Great Britain or in the States of Australia, or in other dominions, and if it did many able men would be prevented from acting in such a capacity. There may be some honorable members who may say that, as I am a member of the legal profession, I have a remote degree of personal interest in the matter,, but I hope I have the respect of honorable members opposite sufficiently for them to believe me when I say that personal considerations do not affect this appointment in the slightest degree. It would be a great mistake to regard political experience or party allegiance as a disqualification for a position on the bench. It is very difficult indeed to get suitable persons to accept a seat on the Arbitration Court bench, principally, I suppose, because its judges are always in the line of fire, which affects the work of the court, and makes it more difficult for it to discharge its important functions. The Commonwealth, however, " has been very fortunate in securing the services of very able men as arbitration judges. The course followed in some of the States has been quite different, as in New South Wales recently 2S0 conciliation committees were appointed, 200 of which were presided over by the union secretaries. In Queensland men have been appointed to discharge judicial functions, although they did not possess the necessary qualifications. Reference has been made to the Mount Lyell case, concerning which the following heading appeared in a certain newspaper: - "Judge makes unguarded remark - Union advocate withdraws." 1 have obtained the file in connexion with this case, and am in a position to say that the Leader of the Opposition has been misinformed concerning highly relevant facts. The documents are not now before me, but I speak from a recollection of their contents, which I think is correct. He said that the learned judge decided the case against the union without hearing evidence, whereupon the union advocate withdrew. Anyone who has read the reports of the case and has even a meagre knowledge of legal practice and tactics would admit that on this occasion the representative of the men had no argument to submit, and, therefore, left the court. What were the facts of the case? Sworn evidence was before the court, in the form of affidavits, which showed that a union official, Mr. Hargraves, who was, I think, representing an engineering union, deliberately incited a strike. Sworn affidavits were presented by a representative of the Mount Lyell company showing that Mr. Hargreave3 had told him that the men were going on strike, or that he was going to " pull them out," or words to that- effect. There was the clearest evidence against the organization, and on the affidavits an order nisi was granted, on the return of which the incident to which the Leader of the Opposition referred occurred. Mr. Menzies appeared for the organization, and Mr. Hargreaves, who was with him in the court, had only to step into the box and give his evidence on a very simple issue. He did not, however, do this. No reply was made or sought to be made. A temporizing address was given by counsel, and the judge said that in a matter of great urgency - the holding up of the operations of the Mount Lyell mine was certainly a matter of great importance to Tasmania and to the Commonwealth - the defendants were playing for time. The judge used a discretion that he was entitled to exercise, and he acted on the evidence before him, which was uncontradicted and clearly established the things alleged. The newspaper reporter who referred to the judge's " unguarded remark " did not appreciate the fact that there were affidavits by which the judge had been guided, and that there was an individual in the court who could have answered these affidavits had he been in a position to do so. In circumstancessuch as that, should a judge allow every time-wasting device to prevail, when it was a matter of the working or the non-working of such a great enterprise as the Mr Lyell Mine? Looking at the facts, not first hand, but on statements that to the best of my belief are accurate. I put it to .honorable members that what the judge did .must reasonably be regarded as sensible and fair. A judge has to make up his . mind on many matters on which there is room for differences of opinion. That is a common occurrence in legal or quasi-legal proceedings. The losing party is often dissatisfied with a ruling, but the failure of one side to agree with it is not evidence of a lack of impartiality. This is the only public criticism of the judge that has been made since he has occupied a seat on the bench. I have placed the facts before honorable members, and I ask them to decide whether the remarks of the Leader of the Opposition were justified. It has also been suggested by him that Ministers had some personal object to serve in making the al)pointment. Bandying words upon such a subject as this is of little use. I can only assure honorable members that the Government had no object to serve except to make the best appointment it could to a position which demanded a high order of ability and integrity. It could have appointed an inconspicuous individual to the position had it chosen to do so.







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