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Wednesday, 23 June 1926

Senator PEARCE (Western Australia) (Vice-President of the Executive Council) . - I am quite sure that Senator Lynch is actuated by the highest motives, but I point out to him that the Constitution presents an insuperable barrier to the acceptance of his amendment. Section 72 of the Constitution reads as follows : -

The judges of the HighCourt and of the other courts created by the Parliament shall be appointed by the Governor-General in Council.

No law that we pass can either add to or take from that provision. If Senator Lynch will study the Judiciary Act he will find that it does not provide for the appointment of judges by the Parliament, the reason being that the Constitution forbids it. If we in this measure made such a provision it would beultra vires the Constitution.

Senator Lynch - The amendment would not take from the executive the power to appoint judges.

Senator PEARCE -Most decidedly it would. The amendment reads -

But no appointment shall be made if either House of Parliament by resolution disapproves of such appointment.

There is a contradiction in terms. How could Parliament disapprove of an appointment that had not been made? The amendment is intended, no doubt, to provide for disapproval of an appointment that has already been made; but the words employed do not express what is intended. At what stage would the Executive know that it could make the appointment? Obviously, it could not make it on the chance that by resolution either House might nullify it, because once an appointment is made it will stand for life. Therefore, the' only way in which Senator Lynch's object could be achieved would be by a subterfuge; that is, by the Executive, before appointing the judges, submitting their names to both Houses. Then a vote of Parliament would have to. be taken upon the matter. But what would follow? Senator Lynch said that the Arbitration Court is a tribunal of great importance. I think we shall agree with him, but we may not endorse his statement that it is of greater importance than the High Court. If it is advisable that the Executive should have the appointment of the judges of the High Court, and that there should be no preselection by Parliament, I contend that the same procedure should be adopted in regard to the appointment of judges to the Arbitration Court.

Senator THOMAS (NEW SOUTH WALES) - If we agreed to the amendment, the matter of the appointment pf High Court judges could be dealt with in the same way on another occasion, although I do not say that I favour the adoption of the course suggested so far as the High Court is concerned.

Senator PEARCE - I am glad that my thoughts are running in the same direction as those of such an astute member of the committee as Senator Thomas. I am pleased that he appreciates the point that if we adopted this course in appointing judges of the Arbitration Court, then, to be logical, we should have to do so in the case of the judges of the High Court.

Senator THOMAS (NEW SOUTH WALES) - What harm would there be in that?

Senator PEARCE - It would mean the election of our judges by the Parliament. Their names would then be canvassed in the Parliament, because I have never known any election for the filling of positions by Parliament in which canvassing has not taken place. Canvassing is going on now in connexion with certain positions in this chamber; and it would take place in regard to the appointment of judges of the High Court and the Arbitration Court.

Senator THOMAS (NEW SOUTH WALES) - Does the Minister suggest that no canvassing takes place at the present time in connexion with judicial appointments?

Senator PEARCE - I am not aware of any. I have never been approached in such a matter, although I have been associated with governments that have made many judicial appointments. Those governments have had to approach certain gentlemen, and, on account of the low salaries offered, they have had great difficulty in inducing them to accept appointment; that is the only form of canvassing that I have noticed. Surely such appointments should not be the subject of political canvassing. Once we allowed judges to be elected by Parliament, the positions would become the subject of party canvassing; and I ask whether that would be desirable. Senator Lynch remarked that his amendment involved a departure from existing practice. It does not. It would be a departure from existing practice in British communities, but not in the United States of America, where judges are elected. In the circumstances, it would be wise to consider what has happened in the United States of America in connexion with the election of judges. I spent five or six months in that country, and everybody who has been there, or has read of the system in vogue, agrees that the Federal judiciary, which is appointed by the Executive, compares favorably with the judiciary of any other country. But the State judiciaries, which are elected, are the subject of contumely even in their own country. They are not respected, because they are party and biased tribunals.

Senator THOMAS (NEW SOUTH WALES) - By whom are they elected? Not by the State Parliaments'.

Senator PEARCE - By the people, on party tickets. Once wc adopt the system of electing judges in this Parliament, where we have parties, they will be elected on party tickets. The state judiciaries of the United States cf America are beneath contempt, and deservedly so. They are the mere tools of party organizations.

Senator Lynch - Is there not a world of difference between the power of veto sought under my amendment and the mandatory power exercised in the United States of America?

Senator PEARCE - No executive could proceed to make an appointment if the next day it might be faced with a resolution of Parliament disapproving of it. The appointments are to be for life, and no government would dare make them unless it could be assured of the approval of both branches of the legislature. An election by Parliament is not an election by the people, but the inevitable result wouldbe a party election. No better test could be applied than that of the result of two systemsworking side by side in the United States of America, one - that of appointment by the Executive - showing good results, and the other the terrible results of popular election. Then, again, the system for which the amendment provides might not mean an election by Parliament, but an election by one House of the Parliament. Let us assume that we had a government in power, as we have had in the past, that had a majority in the popular House, and was unable to command a majority in the Senate. If that Government proceeded to make an appointment, the Senate, which would be of a different political complexion, could nullify it. It would mean that the popular House by itself would be impotent, and that the Senate would have the making of the appointment. What happened a few years ago might easily occur again. If Labour won the next election it would then have a majority in the popular House, but it would not have a majority in this chamber.

Senator Needham - It might have a majority in both branches of the legislature.

Senator PEARCE - Not unless death came to its assistance. It would then be in the position that it could not make an appointment. We should not drag the appointment of the judiciary down into the arena of party strife. If the Executive makes a wrong appointment, Parliament has its remedy by punishing the Executive. I appeal to honorable senators not to mix up the judiciary with the legislature. Under the Constitution the legislature, the Executive, and the judiciary have their respective functions, and to make the judiciary the tool of the legislature would be unwise and wrong. I ask Senator Lynch not to press his amendment.

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