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Wednesday, 10 April 1946


Mr HOLT (Fawkner) .- After hearing the second-reading speech of the Leader of the Opposition (Mr. Menzies"), honorable members must entertain the gravest doubts 'as to the necessity for appointing an additional justice to the High Court. Therefore, the honorable member for Richmond (Mr. Anthony) ought not to be condemned for having invited discussion of an aspect of the matter which cannot be shirked. The Government has nobody except itself to blame for the initiation of the present, discussion. If it allows ' one of its senior Ministers to declare that the High Court should be abolished, or should not be allowed by its .judgments to override decisions of this Parliament, as the Minister for Transport (Mr. Ward) has done repeatedly, then we are entitled to analyse the motives which underlie its decision to appoint an additional justice to the High Court Bench. The latest outburst by the Minister for Transport was by no means his first. We have read repeatedly the same declaration that the High Court should not stand in the way of this Parliament. Consequently, when the Attorney-General (Dr. Evatt) submits a proposal which, according to the careful and temperate analysis of the Leader of the Opposition (Mr. Menzies), is not soundly based, we must examine the underlying motive. The honorable member for Richmond was attacked by the honorable member for Denison (Dr. Gaha) on the ground that he had implied corruption. The implication of corruption, namely, wilful distortion of the law with a view to suiting a particular political purpose, is very different from implying, as I understood the honorable member for Richmond did, that men who go on to the Bench after a long association with one political group or another almost inevitably have their judgment coloured when they are dealing with cases that have a political flavour. Without wishing to charge any member of the High Court, or of any other court, with corruption, I say that it is undoubtedly a fact that the political associations of judges have been revealed in their judgments. Indeed, this i3 unavoidable. No matter how fairly a man may try to approach the problem placed before him, he cannot entirely forget the political training and associations of a life-time. The honorable member for East Sydney has made only a. general attack upon the High Court, but certain .members of the Government have not hesitated, when they felt that the occasion called for it, to criticize members of the High Court Bench in a particular way. For instance, in 1944, when commenting on the Censorship case, the Minister .for Information (Mr. Calwell) said -

I believe that the law was undeniably on the side of the Government in the action taken and that, if it hod been taken by another government, the High Court's judgment would have been considerably different. At any rate, a rather disgraceful spectacle was presented to the people of Australia by the conduct of two justices in that case when the matter was mentioned to them on the Monday morning. Mr. Justice Starke and Mr'. Justice Rich threw away their wigs when they took their seats on the High Court Bench and openly barracked for the press.


Mr Menzies - The transcript showed that Mr. Justice Rich had not said a word during the whole course of the argument.


Mr HOLT - I understand that that is so. Therefore, the attack of the Minister was not merely intemperate, but also wholly unwarranted. Although such statements have been made by two Ministers, who are presumably not without influence in ' the Cabinet, and certainly not without influence in caucus, they have not been rebuked by their leader. Indeed, the Prime Minister (Mr. Chifley) has contented himself with saying that they were speaking only in their own behalf.

Seeing that the case made out by the Attorney-General was completely destroyed by the Leader of the Opposition, we are entitled to search for the motive which underlies the proposal of the Government. Any lawyer with experience of our courts will recognize this motive when he learns the name of the person who is to be appointed. He will know whether the person ig one who, in the view of members of the profession, would be a suitable selection for elevation to the High Court Bench. I remind the Government, and the committee of the danger of making political appointments to the High Court Bench, the members of which are called upon to decide constitutional issues. The danger of appointing persons with extreme political views are only too obvious.

I have another comment to make which is relative to the issue; because it has been suggested that the present justices of the High Court are overworked. There has been a growth in recent times of the practice of appointing members of the High Court, to perform administrative functions and to fill diplomatic posts. This has also been done by governments supported by parties on any own side of the House; therefore, my ' criticism is not inspired by party motives. I believe that . such a. practice is unsatisfactory and open to abuse, besides which it tends to weaken the confidence of the people in the impartiality and independence of the judiciary. A judge appointed to a diplomatic post must receive instructions from the government of the day regarding matters of policy, lt may happen that he has his own views on such matters, views which differ from those of the government which instructs him. For that reason, it is undesirable that the person filling a diplomatic post should be one who will, eventually return to the Bench, and give judgments on constitutional issues. One can never tell what kind of friction may develop in such circumstances. In the case of judges appointed to perform administrative functions, the danger is even more evident. Some time ago the Chief Judge of the Arbitration Court resigned from the chairmanship of the Stevedoring Commission because, it was stated, there had been a difference of opinion between him and the government of the day. The Chief Judge denied this, but the impression certainly gol abroad that he resigned because of differences arising out of a conflict between the findings of the commission and the directions given by the Government. Whatever doubt there may have been as to the facts of that case, there was certainly no doubt in the case of the chairman of the Maritime Industries Commission, a justice of a Supreme Court, who disagreed with the Government regarding the policy to be followed as to the. continuance of war risk bonus payments to seamen. I therefore suggest to the Government that a practice which is fraught with such danger ought to be abandoned.







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