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Wednesday, 10 April 1946


Mr BRENNAN (Batman) .- The bill proposes that section 4 of the Judiciary Act 3hall be amended. by omitting the word " five " and inserting in. its place the word " six ", thus increasing: the number of possible appointees to the High Court Bench from five to six, in. addition to' the Chief Justice. It is not a very extravagant increase, and does not even provide for the appointment of a& many judges as has been possible under legislation in force at various times. I rise merely for the purpose of pointing out that the party of which I am a member, and the Government of which I was a member, strove to take some action in regard to it. If we were to employ a unitary system of government - that question does not arisehere - it would be unnecessary, as the Minister for Transport (Mr. Ward) is credited with having argued, to have the High Court occupying its time and its somewhat expensive attention in determining the question as to how far thelegislature has transcended its proper- functions, how far it was right in it3 legislative activities and how far it waswrong, how far- it has strayed beyond theambit of its- constitutional authority. Whilst it is perfectly true that, under theConstitution, we must have some tribunal, as we have, to determine when the legislature transcends its proper functions, under the policy advocated by Labour and by the Government of which I was a member, it would be quite unnecessary to have this tribunal. Although the-

Judiciary Act contains a special provision applicable to constitutional questions, had the policy of the Scullin Government been adopted, it would not be necessary to have this tribunal constantly arguing - I almost said arguing its head off - as to whether the legislature had proceeded within its proper boundaries or not. The legislature could then go forward with perfect certainty, and with the knowledge that, like the mother of parliaments, the British Parliament could not go beyond its constitutional bounds. I venture to suggest that the proper way in which to deal with this subject is the way in which, the Government of which I was a member endeavoured to deal with it, unsuccessfully because of other considerations that I must not now discuss. What I say, shortly, is that if the full idea of the Labour party were given effect, and we had a. system of government under which the parties might legislate with perfect freedom, as governments may do in Great Britain, this bill would not be necessary. But, as the present suggestion is that the members of the High Court should be increased by the smallest possible number from five to six, I offer no objections to that not very radical proposition, though I regret that the House as a whole is not willing to adopt the much wiser and more reasonable and logical proposition made by the Labour party.







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