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Wednesday, 10 April 1946


Mr ANTHONY (Richmond) .- Like many of the appointments made by the Attorney-General (Dr. Evatt), the proposal in this bill requires thorough examination. In my opinion, it raises matters which are not altogether in accord with the professed objective of the measure, namely, to increase the number of justices of the High Court from six to seven so that, in the event of a difference of opinion, one view will always be that of the majority. The Leader of the Opposition (Mr. Menzies) exposed the hollowness of that pretence. He showed clearly that the matter can be adjusted, if that is the desire, by other means, but we should look more closely at the significance of this legislation. A few days ago, the Minister for Transport (Mr. Ward) declared at a meeting in Melbourne that the Parliament of the Commonwealth should not be in any way subservient to the judiciary, that the High Court was an obstacle to legislation, and that so far as he and the section he represents are concerned, the High Court would not obstruct the legislature. The Attorney-General made a more subtle approach to the problem than that.

In 1936, President Roosevelt, encountering similar obstruction by the Supreme Court of the United States of America, which declared invalid vital points of the New Deal programme, devised a means of overcoming the difficulty, not by an alteration of the Constitution, but by altering the personnel of the court which interpreted the Constitution. He submitted to Congress a suggestion that the Supreme Court should be reconstituted and re-organized by the addition of new appointees. President Roosevelt made it very plain at the time that the new appointees would probably uphold the New Deal legislation.


Mr Pollard - President Roosevelt's action conferred great benefit on the people of the United States of America.


Mr ANTHONY - The people of the United States of America were so roused by this attempt to tamper with the Supreme Court that they rejected the whole proposal, and nothing came of it. The Supreme Court was not " packed ". I use the word "packed", because the term was employed in the United States of America at that time. I suggest that the constitution of the High Court of Australia is such thatit can be tampered with, and if the Attorney-General's referendum proposals be defeated, it would be possible for him to obtain his objectives in another way, provided a High Court favorable to his policy could be constituted. I am not making a charge against the probity of the court, but the decisions of judges are largely influenced by their previous history and prejudices over many years. There is more in this suggestion to appoint an additional justice to the High Court than the pretence by the Attorney-General that it is essential to have an unequal number of justices. The Leader of the Opposition exposed that contention. When we find the Attorney-General so very anxious to have this bill passed, and remember that he is trying to secure an alteration to the Constitution, we have every reason to believe that the new appointee, whose decision can be the vital one in determining whether the court should uphold legislation of doubtful validity, will be favorably disposed towards the Government's policy. If it had been established that an additional justice was needed in order to enable the court to deal with the business before it, there might be some substance in the claim made by the AttorneyGeneral.. However, in the United States of America there are nine justices of the Supreme Court. Yet the AttorneyGeneral has the temerity to say that in Australia, with a population of 7,000,000, the High Court, with an infinitely less volume of business to deal with than must arise in a country with a population of 1.30,000,000, requires seven justices. The vital point in this legislation is that one appointee of the Government at this particular juncture can put the Government in a winning position in determining the validity of legislation. One vote on the High Court Bench can do all those things which the Government must now hold referendums to achieve. In view of the Government's previous record in these matters, I have no doubt that the justice who will be appointed will be somebody who is aligned in some form- or other with the Labour party and is to receive a. reward for services rendered to the party. Tin-; appointee might be, for instance, Mr. !. V. Barry, K.C. I am not questioning Mr. Barry's probity, but does anybody suggest that should Mr. Barry be the appointee he would not be prejudiced, apart from questions of fact, when legislation came forward? On previous occasions I have heard the right honorable member for Yarra (Mr. Scullin) make some excellent speeches in this Parliament in which he pointed out that the constitutionality of legislation very often depended on the personnel of the High Court; that a decision might be given one way by the court, and a year or two later, after a new judge had been appointed, a completely different decision might be given.


Dr Gaha - And he might be right.


Mr ANTHONY - He is perfectly right. It has been shown clearly that there is no occasion to appoint an additional justice to the High Court, in view of the volume of the court's business, and that the only reason for making the appointment, in the words of the Attorney-General, is to make an odd number of justices. I repeat that that odd justice can be used in such a way as to enable the court to uphold legislation embodying proposals which have been rejected by the people at a referendum, and which, consequently is against the will of the people although passed by u temporary majority in this Parliament. We should remember that under the Constitution the purpose of the judiciary is to protect the rights of a minority against a transient majority in the legislature. It is the purpose of the Constitution itself that a sudden splurge of emotion, or sentiment, which brings into power a government of a certain complexion, shall not override fundamental individual rights. That is why we have a Constitution. If we were to accept the will of a majority of members of the Parliament, and say that whatever that majority did must be considered to be right, there would be no need to have the Constitution at all. But we have the Constitution for the purpose of protecting the rights of the individual; and the High Court is established for the purpose of interpreting those rights. The real crux, of the Government's proposal is revealed in the statement by the Minister for Transport' in an address recently . at the Trades Hall, Melbourne, that he considered that the power of the High Court must be curbed, that a. successful referendum was essential to curb the power of the High Court to upset the attempts by a Labour government to legislate on a democratic basis. The Attorney-General could have taken his colleague aside and told him to be silent, and could have said to him, in effect, " If you wait for me, I can achieve that purpose through the medium of a small bill which is likely to be passed through Parliament without objection. Nobody will notice it, because it seems so innocuous. But all we have to do is to get the odd justice on the High Court Bench ". The attempt made by President Roosevelt to do the same thing in the United States of America aroused such indignation throughout that country that he was not game to proceed with the proposal, with the result that the only appointments which were made to the Supreme Court of the United States of America were those to fill vacancies caused through the resignation, or death, of justices. The ' object of President Roosevelt's attempt was to evade the Constitution of the United States of America. Unless the Attorney-General can give us better evidence of the bona fides of the Government in this matter than he has yet given, I shall vote against the bill.







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