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Wednesday, 10 April 1946

Dr EVATT (Barton) (Attorney-General and Minister for External Affairs) . - I regret that it is necessary for me to speak again on this subject, but the attitude adopted by the honorable member for Richmond (Mr. Anthony) compels me to do so. The honorable member's observations have been hardly germane to the question whether or not an additional justice should be appointed, for he has made suggestions and insinuations about a possible appointee. He has also misconstrued some of my remarks and made statements that are quite untrue. He has said, for example, that it is my prerogative to make an appointment to the High Court. Surely the honorable member knows enough about Cabinet procedure to realize that all I shall do is to make a recommendation to Cabinet. The decision on that matter will rest with the full Cabinet. The honorable member has not, done good service to the High Court in discussing this subject as he has done. He may not be satisfied that a need exists for an additional appointment, but he should have withheld the criticism' he ha"s uttered until the Executive had made an appointment. He could have issued his challenge when that was done.

Mr Anthony - The time to do that is before an appointment is made.

Dr EVATT - The speech of the Minister for Transport (Mr. Ward), to which reference has been made, was made well after the introduction of this hill, and had no connexion with it. The suggestion is that with six justices the appointment of an additional justice represents an attempt to obtain control of the court in the interest of a particular political philosophy. That is quite untrue." The honorable member for Richmond drew a comparison with the American proposal to increase the number of Supreme Court judges from nine to no fewer than fifteen. That was criticized as a most extraordinary proposal, and was not persevered with. There is some truth- in the honorable member's contention that the approach to some constitutional questions is determined by whether an individual takes what may be described as a liberal or broad view of the Constitution rather than a. narrow view. I do not regard that as having anything to do with party politics. Throughout the history of the High Court in this country, it has been found that two points of view are possible. What the honorable member read from Justice Jackson's book is to that degree right. But it should be said that that is not determined by the fact that a particular person had been actively engaged in politics. Honorable members know that there are people not actively engaged in polities who are narrow and biased in their political views. A judge does not cease to be a man. The law compels him' to vote at elections; therefore, he holds political opinions. The sharp distinction that is drawn between men who have been associated with politics and men who have not, is a narrowone and is prejudicial to those who are engaged in the service of their country in public life. It is not in accordance with practice in any State of the Commonwealth or in relation to High Court appointments. Therefore, it is the more regrettable that the honorable member should have mentioned the name of a possible candidate for appointment. It is most embarrassing to the Government that a name- should be canvassed before there is legally a vacancy to fill. It is now for the committee to determine one matter : Is there a case for an increase from six justices to seven? The Leader of the Opposition (Mr. Menzies) has denied that there is; but, in stating the position, he did not make any suggestion such as was made by the honorable member for Richmond. His contention that there should be a Full Court of five justices in constitutional cases is, as I have shown, untenable, because six justices always sit on such cases unless one justice is ill or is absent from any other cause. There has been not merely a nominal but a substantial increase of the business of the court. I ask the committee to reserve judgment about any appointment that may be made, and to consider only whether it is not proper now that the number of justices should bo restored to that which existed in 1933.

Clause agreed to.

Title agreed to.

Bill reported without amendment; report adopted.

Bill - by leave - read a third time.

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