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Wednesday, 10 April 1946


Mr ANTHONY (Richmond) .- In my previous remarks I referred to the provision in the Constitution for the protection of the' judiciary in connexion with the discharge of its functions. I utterly disown the intention, attributed to me by the honorable member for Denison (Dr. Gaha), of imputing corruption in respect of any member of the High Court Bench or any possible appointee. I said clearly that an appointee to the High Court, or to a magistrate's court, or to any other position for that matter, could not possibly divest himself of his previous experience and hackground, and of opinions that he had held throughout a lifetime. Whatever he did must be coloured by his previous experience. Men cannot possibly throw off their accumulated experience in a moment. The best example of the truth of that statement is the AttorneyGeneral (Dr. Evatt), who, for more than a decade, was a distinguished member of the High Court Bench. That he had not divested himself during that period of his earlier views and associations was shown clearly by the fact that on his retirement from the Bench he rejoined the political party with which he had been associated previously. What better evidence could we have of the truth of my statement? If, by death or resignation, there had been a vacancy on the High Court Bench, I would not have spoken as I have done this afternoon; but the proposal to make a new appointment has come "out of the blue". No representations or demands for a new appointment have been made, so far as 1 know, by the Law Society or any other organization. Possibly the AttorneyGeneral, while lying awake in the small hours of the morning, may have said to himself, " We should have another judge on the High Court ". But. we must also consider the statement made by the Minister for Transport (Mr. Ward) in Melbourne last week-end. If the Prime Minister (Mr. Chifley) will not discipline in embers of his Cabinet, he and hiscolleagues must accept responsibility for their statements, whether they be made inside or outside of the Parliament. Unless the Prime Minister is prepared flatly to deny the statement of the Minister for Transport it must stand as a government declaration. That is in accord with parliamentary practice throughout the British Empire. The Minister for Transport is reported to have said -

I am not a lawyer and cannot argue about' the lcga.1 basis of High Court judges' decisions, but .1 can say that many of them have been contrary to common sense and to, the will of the majority of the people of Australia.

I also quote the following paragraph from the same report: -

Unless the Commonwealth Government was given the power to legislate for the people of Australia on a national basis, certain judges would continue to upset all attempts by federal Labour to effect its policy, Mr. Ward said.

The Attorney-General introduced this bill for the appointment of an additional justice to the High Court about the time those statements were made.


Dr Evatt - I gave notice of this bill a fortnight ago.


Mr ANTHONY - But I have not the slightest doubt that the matter was discussed in Cabinet more than a fortnight ago, and that reasons for the making of such an appointment we're submitted to Ministers. . If the Cabinet colleagues of the Minister for Transport disagree with the statements I have quoted they should repudiate them. I am not alleging any corruption in regard to High Court appointments, but I consider that this Parliament is in duty bound to ensure that appointments shall be made under proper conditions, and not under conditions which may be construed as an attempt to "get round " the Constitution by means other than a referendum.

Appointments to supreme courts have been the sub ject of a good deal of agitation in the United States of America recently. In this connexion I direct the attention of honorable members to a volume entitled The Struggle for Judicial Supremacy, by Robert II. Jackson. Mr. Jackson is the prosecutor in the- Nuremburg trials of war criminals and was one of the protagonists of the late President Roosevelt in connexion with proposed alteration of the constitution of the Supreme Court of America. Mr. Jackson writes -

The ultimate function of the Supreme Court is nothing less than the arbitration between fundamental and ever-present rival forces or trends in our organized society.

Later he stated -

The student of our times will nowhere find the deeper conflicts of American political philosophy and economic policy more authentically and intelligently portrayed than in the opinions and dissents of members of the Supreme Court. 1 also direct attention to the following extract from his book : -

The Constitution, in making the balancebetween different parts of our Government a legal rather than a political question, easts- the court as the most philosophical of our political departments, lt keeps the most fundamental equilibriums of our society, such as that between centralization and localism, between liberty and authority, and between stability and progress. These issues underlie nearly every movement in an organized society.

Our High. Court will have to decide between unification and State rights. My final extract reads -

The court has as its highest responsibility the duty to hold every such movement, in its legislative and executive phases, within all express bounds 'of the Constitution.

If the Attorney-General had been able to show that any reason or demand existed for an increase of the number of justices of the High Court I should not have made my remarks, but he has not done so. He mentioned that an increase of 21 per cent, of sittings of the Full Bench of the court and an increase of 54 per cent, of sittings of single justices had occurred between 1933 and 1946, but what do those percentages" represent? Do they represent 10 days, or 20 days, or 50 days? Such percentages mean nothing to us. A case cannot be made out for an additional appointment unless it can be shown that the justices have been asked to do more work than they are capable of doing. The Attorney-General has suggested that we should- withhold criticism until an appointment has been made; but I consider that the right time to. speak is before such an appointment is authorized. If a person be appointed in respect of whose views there can be no charge of bias constitutionally or politically, my remarks will have been unjustified; but if a supporter of the Labour party be appointed whose , political and general philosophy is such as to lead to an expectation that his findings will be acceptable to the Labour party, what I have said will have been justified. I have not alleged any corruption. What I have said, in effect, is that it is impossible for persons appointed to judicial positions on the High Court or on other tribunals to divest themselves of their previous views. Such views must necessarily colour their judgments. We must remember that most of the judgments of the High Court are majority decisions. Justices who dissent from the majority no doubt do so in. good faith and give what they regard as. substantial reasons for their dissent. In all the circumstances I submit that it is the duty of this legislature to watch vigilantly any move that may be made, the effect of which may be to "get round" the Constitution by means other than those laid down in the Constitution. It is. also our duty to protect the rights and liberties of citizens against the power of a temporary majority in this Parliament. I_ shall await with the greatest interest the announcement of the name of the person to be appointed to the High Court in the terms of this measure. If he should be a person in respect of whose political views no criticism may justly be uttered, my remarks, as I have said, will be proved to have been unnecessary, but if a person should be appointed who may be suspected of political bais, what I have said will have been justified.







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