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Wednesday, 10 April 1946

Mr MENZIES (Kooyong) (Leader of the Opposition) -The Judiciary Bill is. one which, in elf.ect, increases the number of justices of the High Court from six to seven. The position is now, and has been for a number of years, that the High Court consists of the Chief Justice and five other justices. Under this bill it is to consist of the Chief Justice and six other justices. Consequently, the one question which arises for consideration is whether there is a case for increasing the number of justices. If there is not a case for increasing the number, the only function of any additional appointment would be to affect in . some way the. course of decision, and not in reality to affect the efficiency of the court. I have given some consideration to this matter, and I find myself opposed to the proposal. I desire very briefly to indicate my reasons for that opposition. There is no evidence, 1 suggest, that the lists of the High Court are overcrowded or that the work is getting into arrears. Indeed, for reasons to which" I shall refer in a moment, there are grounds for believing that the work ought to be less in arrears, or less potentially in arrears, than it has been. The argument that has been advanced by the AttorneyGeneral (Dr. Evatt) is really this: That for Full Bench purposes there should be an odd number of justices rather than an even number. If there are six justices,' and all of them are sitting in Full Bench, there is always the risk of an equal divi-sion of opinion.. The Attorney-General has pointed out, very truly, that with constitutional matters a court which is equally divided loses some of the authority that would normally attach to its decision's. I entirely agree with what the right honorable gentleman has said by way of technical comment on that aspect. But section 23 of the Judiciary Act deals with derision? in the event of a difference of opinion and it begins bv .saying that a Full. Court consisting of fewer than' all the justices shall not give a decision on a question affecting the constitutional powers of the Commonwealth unless at least three justices- concur in the decision. The effect of that provision is that for the purpose of cases- which affect the constitutional powers of the Common: wealth, which are undoubtedly the most important cases that come before the High Court, a Full Bench of five is required. With a Full Bench of five, if there be agreement on the part of three -of the five justices, the requirements of section 23 are met. There is no reason at all why six justices of the High Court should sit in such cases. If only five sat, there would be no risk of an equal division of opinion; and the requirements of section 23 would be satisfied. I remind honorable members that the Judicial Committee of the Privy Council, which exercises the greatest jurisdiction in the British Empire, consists normally of either three or five members. In the case of what are known to lawyers as the Indian Appeals, it is common for the Judicial Committee of the Privy Council to sit with three members, one of whom is occasionally an Indian judge, or a former Indian judge. In the case of ordinary appeals from the High Court of Australia it is, I think, a very sound rule - if the Judicial Committee could be persuaded to follow it - that five Lords of Appeal should sit; but it has not been uncommon for appeals from the High Court of Australia to be heard by three members of the Judicial Committee. But for all practical purposes, all cases of moment, and in particular all constitutional cases that might come up from the High Court of Australia' are heard bv the Judicial Committee sitting with five members. If that tribunal, which is the ultimate court of appeal, and by either special leave or certificate the final court of appeal on Australian constitutional cases, can work with five judges, I see no reason why the High Court of Australia also should not exercise its jurisdiction with five mem- hers on the bench. That means that with six justices of the High Court, five would be available for Full Bench, matters, and the sixth justice would be available to exercise the original jurisdiction of the High Court, jurisdiction in cases' in which litigation in what may be described as in the ordinary form occurs. In such cases one judge sits and gives Iris decision, with an appeal in certain instances against that decision. If it should be argued that seven justices would be a useful number to have, because one could be sitting in original jurisdiction while the other six were divided into two full courts of three justice.0 each, which could sit concurrently. I remind the Attorney-General, who I know is conscious of the problem, that there are doubts whether under the Constitution, the High Court can be divided in that way. He will perhaps recall an article, a very carefully written article, by a member of the Bar in Victoria, M'r. F. D. Cumbrae-Stewart. The article is headed " High Court - Sitting in Two Divisions ", and it appears in Volume 11 of the Australian Law Journal at page 278. I do not propose to inflict upon the House what is purely a technical consideration of a legal problem. That would do nothing but weary the House. I content myself by saying that at the end of the article the learned writer says -

The conclusion, therefore, is that it is unsafe for the High Court to hear appeals in two divisions sitting at the same time, if not clearly unlawful, and that this position is probably not remediable by the Federal Parliament.

By that, of course, he means that his comment upon it is based upon an examination of the Constitution, not merely an examination of the Judiciary Act, and, if he be right, and there is a good deal of reason to think he may be, in his belief that, under the Constitution, the High Court cannot sit in two divisions concurrently, the argument that seven justices would enable us to have two courts of three justices and a seventh justice doing the original jurisdiction work would fall to the ground. As the Attorney-General knows, it is not uncommon to have two divisions of a court. The Judicial Committee sits in two divisions and the Court of Appeal in England is entitled to sit in two divisions; but, in both cases, there is expressed legal provision for that to be done, whereas, in our case, it is nol possible to find any provision that would enable the High Court to sit in two divisions. I refer to that not merely as a question of law, but because I believe that it bears on the question of what the numbers of the justices of the High Court should be.

There are four other matters that I want to refer to, each of which bears on this bill. The first is that it would n01 be to the point to say that one or two justices have reached an advanced age, as they undoubtedly have, unless it were further suggested that they are not performing their full work, and the AttorneyGeneral himself has been careful to disclaim any such allegation. I am sure that he will agree very properly, as anybody familiar with the working of the court will agree, that it cannot be said for one moment about the two oldest members of the court that they have shown reluctance to attend to their judicial duties and move from place to place on the work, of the court. The second comment is that during the period when the High Court had seven justices, as it had for a time - it began with three justices, which then became five, then seve.n. and subsequently six - one of them, for most of the time, at any rate, was President of the Commonwealth Court of Conciliation and Arbitration. The President was Mr. Justice Higgins, and subsequently, Mr. Justice Powers. Indeed, for a time, if I remember correctly, both of them were engaged on arbitration work. That state of affairs no longer exists, because the constitution of the Arbitration Court, as we have seen from the bill we have just dealt with, is entirely distinct now from the constitution of the High Court. Consequently, no justice of the High Court is drawn off on to the continuous labours of the Arbitration Court. The third point that T make, is that it is not the case in the High Court, as it is in the State Supreme Courts, or some of them, that justices are taken away from their judicial duties to sit for considerable periods on royal commissions or inquiries, because the High Court has long since, certainly for many years, adopted the rule that members will not act as royal commissioners. I know that one or two exceptions arose to that in the case of certain special inquiries during the war, but, as - the Attorney-General knows, the practice of the High Court is to say that its members will attend to their judicial duties and not serve as royal commissioners. Therefore, there is no subtraction from the Bench on that account. Finally, during this war, fir- 1, the learned Chief Justice, Sir John Latham, and, subsequently, Sir Owen Dixon, were absent from the High Court for substantial periods on diplomatic duties, but those duties have ended, and each has returned to his judicial work, and every member of the court is there now continuously available to attend to the normal functioning of the High Court and for the normal purposes of its business. Wo longer, therefore, have we a subtraction from the High Court for Arbitration Court work, for royal commission work, or for diplomatic work, and, in those circumstances, I venture to say that the work of the High Court can be efficiently performed by the Chief Justice and five justices, those cases that demand a statutory majority under the Judiciary Act being heard by five justices and the sixth being available for original jurisdiction work. The Attorney-General knows that the original jurisdiction work of the High Court though it occasionally produces lengthy litigation, has never represented a major part of the work done by the High Court. For those reasons, I believe that a case for increasing the number of members of the High Court is not made out and, in those circumstances, I oppose the bill.

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