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Wednesday, 10 April 1946

Mr WILLIAMS (Robertson) .- This bill proposes to increase the number of justices of the High Court. The Leader of the Opposition (Mr. Menzies) has warned us that he is opposed to it. The Attorney-General (Dr. Evatt) has said that the Government's view is that there are not enough justices of the High Court properly to perform their functions. The judicature is an essential part of the Constitution. It is dealt with in sections 71 and 72 of the Constitution of Australia Act. Before proceeding, I will read to the House those two sections in order that it may have a. full understanding of the judicial - position in the Commonwealth.

Section 71 reads-

The judicial power of the Commonwealth shall lie vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice and so many other justices, not less than two, as the Parliament prescribes.

Section 72 reads -

The Justices of the High Court and of the other courts created by the Parliament -

(i)   Shall be appointed by tho GovernorGeneral in Council.

(ii)   Shallnot , be removed except by the Governor-General in Council; on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity :

(iii)   Shall receive such remuneration as the Parliament may fix; but the renu meration shall not be diminished during their continuance in office.

The subsequent sections set out the jurisdiction of the High Court. It will be noted that section 72 says nothing in expressed words about the term for which justices are tobe appointed. I put it to the House that, onthe construction of the words in section 72, it would seem that this Parliament could appoint a J ustice of the High Court to serve until he reached the age of 70 years. However, as the Constitution of Australia can be interpreted only by the Justices of the High Court, those Justices have held that appointment to the High Court or any other federal court means appointment for life. The construction of that section came up for consideration in Alexander's case, which was heard in the High Court in 1918. Chief Justice Griffiths, Mr. Justice Isaacs, Mr. Justice Powers and Mr. Justice Rich, with Mr. Justice Higgins and Mr. Justice Gavin Duffy dissenting, held that, under section 72, justices of the High Court and all federal courts were appointed for life. It is worth noting t hat one of the present judges of the High Court, Sir Owen Dixon, was a counsel in that case and he contended that section 72 had nothing to dp with the length of tenure in office of a judge of the court. That, I suggest, would be the ordinary interpretation that any honorable member would attach to the section. However, the High Court has decided that the tenure of office is for life and although it is conceivable that the matter may be taken to the Privy Council, there is very little chance of. that decision being altered.

Mr Menzies - It is unlikely that the High Court would reconsider its decision, because it has been acted upon by the Parliament, which has proceeded on the assumption that the decision in A lexander's case was right.

Mr WILLIAMS - I agree. That being so, it appears that the High Courtis decision will stand the test of time. That is most unfortunate. This Parliament might get over the difficulty by amending the Constitution to provide for theretirement of judges at a specific age. However, this would seem impracticable, hut we might, as South Australia, and some other countries have done, make revisionunder the Judges' Pension Act for the payment of pensions which will induce judges to retire at the age of 70 or 72 years. The question of theretirement of judges at the age of 7.0 years has exercised the minds of intelligent people in every State in the Commonwealth. In 1918 legislation was passed by the Parliament of New South Wales, providing for the retirement of all judges in that State on the attainment of 70 years of age. That legislation has met with the approbation of all people, and no parliament in New South Wales would dare to alter it.

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