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Wednesday, 23 June 1926


Senator LYNCH (Western Australia) .-I move-

That after the word " Council " the words "but no appointment shall be made if either House of Parliament by resolution disapproves of such appointment " be inserted.

The clause would then read -

Sections 12, 13, and 14 of the principal act are repealed and the following sections inserted in their stead: - " 12. The chief judge and the other judges -

(a)   shall be appointed by the GovernorGeneral in Council, but no appointment shall be made if either House of Parliament by resolution disapproves of such appointment. . . . "

The object of this amendment is to give Parliament an opportunity to express its opinion on such appointments. This is very necessary for a number of reasons. In this instance, we are about to establish a court, the functions of. which, in my opinion, are of more importance than those of any other court or institution in this country, not even excepting the H igh Court.


Senator Thompson - Were the judges of the High Court appointed by Parliament ?


Senator LYNCH - They were appointed by the Governor-General in Council.


Senator Thompson - Why make a different provision in regard to the judges of this court ?


Senator LYNCH - I was about to give my reasons. So far as it affects the wel fare of this country, the Arbitration Court is far superior to the High Court. Any one who has noticed the absence of judgment, good feeling, common sense, and discernment from the settlement of industrial disputes, must realize that an authority whose function it is to provide a remedy must exceed in importance the High Court of Australia. Therefore, when appointments to the Arbitration Court are to be made Parliament should be consulted. I apprehend opposition to this proposal because it is a departure from a practice that has existed for years, and has become hallowed by custom.


Senator Andrew - Has not that practice worked well ?


Senator LYNCH - It has in some cases, but 'in others it has not. I do not want to have appointed to this court any person who has political leanings. I believe that my amendment will prevent that from happening.


Senator Kingsmill - It will cause it to happen.


Senator LYNCH - It may, or it may not.


Senator Thompson - Can the person be found who has not political leanings in one direction or another ?


Senator LYNCH - It may be a difficult task, but I believe that such a man can be found. The traditional practice is to give to the executive the exclusive prerogative of appointing judges and other high officers ; but a departure was made from that practice when the contract was entered into for the oversea carriage of mails, because that contract was made subject to the approval of Parliament.


Senator Thompson - That is not a parallel case.


Senator LYNCH - It is not exactly parallel, but the two are closely related. Either the executive authority did not consider itself competent, or it believed that it was inadvisable, to complete that contract without consulting Parliament. The Judiciary Act, the Interstate Commission Act, and the High Commissioner Act, gave to the Parliament the power to cause the removal of the occupants of those offices for certain well-defined reasons. The High Commissioner Act has a special proviso under which the Parliament may intervene independently of any action that may be taken by the GovernorGeneral.


Senator Pearce - The office of High Commissioner is not a judicial one.


Senator LYNCH - But it is a high appointment under the Crown. In his case it was thought right to reserve to Parliament the prerogative, which it alone should possess, of having high offices filled by the most competent persons. I could imagine political circumstances arising in this country which would render the adoption of such a course absolutely necessary. At present there are three parties in politics, and that number might very easily be increased.


Senator Thompson - Each party under the honorable senator's proposal might nominate its own judge.


Senator LYNCH - The executive for the time being would fill the traditional role of making the appointment, and Parliament would be powerless to prevent it. Ifmy amendment is accepted that practice will be altered, and no person will be appointed unless Parliament has first been consulted. If one House objects to any proposed appointee it will be a clear proof that in the opinion of that House he is an unsuitable person. Parliament is superior to the executive or to any other authority in this country.


Senator Reid - Except the High Court, because it defines the powers of Parliament.


Senator LYNCH - The High Court is only a creature of Parliament; therefore it cannot be above Parliament.


Senator Reid - It interprets the Constitution, and Parliament is bound by its decisions.


Senator LYNCH - That is a subordinate function. Let me return to my main point. The Arbitration Court is more closely concerned with the social and economic welfare of Australia than any other authority. The social and economic fate of this country reposes in the hollow of its hand, and unless we have upon it the best men who can be found, and the approved of Parliament, we shall run the risk of bringing into severe contempt this method of settling our industrial troubles. I do not want that to occur. We must ask ourselves whether we are to continue to be guided by precedent. When the question of appointing a High Commissioner was first raised the Senate discussed the matter, and at the instance of Senator Higgs it was resolved that the appointment should be decided by a vote of both branches of the Parliament. Fifteen honorable senators voted in favour of the motion, and ten voted against it.


Senator Thompson - Has a High Commissioner ever been appointed by Parliament ?


Senator LYNCH - No.


Senator THOMAS (NEW SOUTH WALES) - I presume that there was a majority of Labour men in the Senate at that time, and a majority of Liberals in the other place.


Senator LYNCH - Senators Fraser, Gray, and SirWilliam Zeal were not Labour men, butthey voted for the motion.







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