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Thursday, 22 October 1914


Senator STEWART (Queensland) . - The only difference of opinion with regard to the amendment is as to handing over the powers of Parliament to some other body. As I read the amendment, nothing of the kind is contemplated. By accepting it, Parliament does not divest itself of one shred or tittle of its present power. It always controls the procedure in every Court, and if that is the ease, the only matter which ought to influence the minds of honorable senators is as to whether the Justices of the High Court or the Attorney-General are the better authority for framing the regulations. Our only interest is to get the work done in the best possible fashion. The next step is easy. Who are the men that know most about Court procedure? Of course, the Judges. They know how best a man's case can be presented in the Courts, and how litigants can have the most ample opportunity of saying what they want to say. They are in the Courts every day, and know every in and out of legal procedure. Surely, then, they are very much more competent in the matters laid down under clause 7 than the AttorneyGeneral or the men in his office. Probably the man who would draw out these regulations, if the clause were passed as it stands, would be some one who has never practised in the Courts, knows nothing about Court procedure, and is an absolute tyro in these matters. Surely, then, we ought to have recourse to the very best talent at our disposal, and that is undoubtedly to be found in the men who sit on the Bench in the High Court. They not only sit in the Courts now, but have had life-long experience in them. They are experts.


Senator Blakey - You have not always said that.


Senator STEWART - I have. Because a Judge decides a particular case against my ideas of it, I do not say that he is biased or incompetent. I believe the Justices of the High Court are the best men to frame these regulations, and for that reason the duty ought to be imposed upon them. It has been objected that they will not have time. So far as I am able to gather, the only High Court Judge who is hard worked is the Judge of the Arbitration Court. It seems to me that the other Judges are playing about three-fourths of their time, and would be very usefully occupied in doing the work which Senator Keating proposes that they shall do. What does a man sitting in the Attorney-General's office know about the practice and procedure of Courts? He can only know it, if he knows it at all, at second hand. He must go to some one who has had practice in the Courts. Why should we take this secondhand information, when we can go to the fountain head at once?.


Senator Blakey - If the AttorneyGeneral can build the frame, surely he can put in the limbs?


Senator STEWART - This does not deal only with procedure. It deals with the principles that govern the law of bankruptcy. We do not put the procedure in our Acts. The rules of procedure in our Courts, and in those of Great Britain, are drawn out, not by the civil authority, but by the Judges of the Courts, who are commonly recognised as being the most competent to do the work. They are appointed to do it, principally because they know more about it than any one else does, being brought into continual contact with it. Surely, then, the Government may accept the amendment. I know every Government wants to see its Bills passed without the alteration of a letter or word, or even a comma. That is one of the most unworthy ambitions that can animate either an individual or a body. If any proposal is capable of improvement, the man or the body who does not accept the improvement simply because it goes against some preconceived idea, is hardly worthy of a place in a civilized community. The summoning of meetings of creditors and regulating proceedings thereat are mentioned. I am sure that the Judges of the High Court would see that every creditor had ample opportunity of putting in his claim, and received notice of meetings.


Senator Blakey - Do you think the Attorney-General would do anything detrimental to the interests of creditors?


Senator STEWART - I do not think he would do anything detrimental to the interests of anybody if he knew he was doing it. I believe he and his officers would probably do the work well enough ; but I think the Judges of the High Court would do it better. They have plenty of time. They are not overburdened with work.


Senator Blakey - Why not allow the Judges of the High Court and the AttorneyGeneral to act in conjunction?


Senator STEWART - I think the Judges of the High Court would be much better pleased to act without the AttorneyGeneral's officials, and that the Attorney-General's office would be much better pleased to act without the High Court. The honorable senator has often heard the old adage that " Too many cooks spoil the broth," although there is another which says that " In the multitude of counsellors there is safety." Take which you like on the present occasion, but I prefer the one about too many cooks spoiling the broth. If I want a cook, I want one with some experienceIt has been urged that if we agree to the amendment we shall take power from the hands of this Parliament. But we shall do nothing of the kind. Parliament will still be at liberty to alter or annul every rule that may be framed, either by the office of the Attorney-General or by the Justices of the High Court.


Senator Gardiner - Parliament will, only be able to disallow them - it will not have power to amend them.


Senator STEWART - But we can alter that provision of the Bill. Whether the Attorney-General does the work or whether the Justices of the High Court do it, is, to my mind, immaterial.


Senator Mullan - If the High Court refused to amend rules of procedure prepared by its Justices, where should we be?


Senator STEWART - Parliament could amend them.


Senator Mullan - Not without an amending Bill.


Senator STEWART - The Justices of the High Court would merely act as draftsmen. The rules would not be the rules of the High Court, but those of this Parliament. I am aware that some honorable senators are prejudiced against that Court, and I have no doubt that we should all be prejudiced against a Court if we happened to come off second best in a case in which we were engaged. But we ought to be above that.


Senator Mullan - We ought to beabove attributing motives.


Senator STEWART - One honorable senator has admitted that he is biased against the High Court.


Senator Blakey - That is not correct. I gave the Justices of the High Court credit for their probity.


Senator Bakhap - But the honorable senator said that he did not want any more of their decisions.


Senator STEWART - That was broadly hinted, I think. The Government are anxious that this measure should be as well administered as possible, and that the rules should be such as will facilitate the business of persons appearing before the Court. For that reason I intend to support the amendment.







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