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Wednesday, 23 June 1926


Senator PEARCE (Western Australia) (Vice-President of the Executive Council) . - I hope, with Senator Gardiner, that the matter will be considered calmly. At one time I shared the view expressed by the honorable senator, but I confess that riper experience and further consideration of the subject have caused me to change my opinion entirely. We must remember that the court is to be a body of three judges; it is not to be composed of one judge and two advocates.


Senator Thompson - Why does the honorable senator say "two advocates"?


Senator PEARCE - Because, if Senator Gardiner's amendment were adopted, the- court would be composed in that way. These are to be judicial appointments in each case. Lawyers are trained to interpret the law, to weigh the evidence presented, and to take an impartial view.

Industrial cases will be presented to the Arbitration Court in exactly the same way as that in which cases are submitted in a civil court. Evidence will be adduced by each party, and the judge should be a man capable of impartially sifting that evidence and coming to a right conclusion. The place for the practical business man and the worker with a technical knowledge is not the bench, but the witness-box. No other class of individual in the community is so competent to take a position on the bench as the lawyer. I have known mining cases of an intensely technical character which would be quite beyond the understanding of the average citizen. In one instance, mining men told me, after the judge's summing-up, that they were astonished that any person, other than a technicallytrained mining man, could have such a grasp of the case as that judge did. The life training of judges qualifies them for this class of work. "Moreover, very few barristers are employers, and no other section could be less suspected of partisanship. Barristers, like doctors and clergymen, are not as a rule either employers or employees, although a lawyer may employ one or two clerks.


Senator Ogden - They may be interested in industry.


Senator PEARCE - Yes ; but in many cases are they not. They have the great essential of trained minds that enable them to sift and weigh evidence, and they are not directly concerned in industry as employers or employees. The average layman is influenced largely by his predilection for or against an individual, but the lawyer is trained to brush aside such considerations and merely considers the merits of the case. Senator Gardiner unconsciously admits that lawyers are more fitted for judicial positions than any other class of individuals, since he agrees that the chief judge should be a lawyer. I point out, however, that thp three members of the bench are in a sense to have equal authority. It is true that they will sit together to determine such questions as the basic wage and standard hours; but in other matters, they will adjudicate individually, and matters decided by the junior judges may be just as important as those dealt with by the chief judge.


Senator Findley - Senator Gardiner did not say that they are not ordinary judges.


Senator PEARCE - He has moved to leave out the words, " and of each other judge," which would make proposed new section 13 read: -

The qualifications of the chief judge shall be as follows : -

He must be a barrister or solicitor of the High Court, or of the Supreme Court of a State of not less than five years' . standing.

If the amendment were carried, it would be necessary to appoint two judges who were not barristers or solicitors.


Senator Gardiner - I do not say that.


Senator PEARCE - That is in the mind of the honorable senator, judging by his amendment. In Western Australia the Arbitration Court is presided over by Judge Dwyer, who is assisted by two laymen. Mr. Bloxome, as soon as he was appointed, was looked upon as the representative of the employers, and Mr. Somerville was immediately regarded as the representative of the employees.


Senator Sir Henry Barwell - They are advocates ?


Senator PEARCE - Yes. Both are honorable men, and as good as could be obtained for those positions; but nobody inWestern Australia regards them as other than advocates for their respective sides. Nor do they pretend to be anything else.


Senator THOMAS (NEW SOUTH WALES) - Has that court been successful ?


Senator PEARCE - Not so successful as it might have been. All its judgments are those of Judge Dwyer, the other two members being always on opposite sides. Recently, an important judgment was delivered in connexion with the basic wage. The judge found that the basic wage should be £4 3s. a week.


Senator Needham - That was the finding of the court.


Senator PEARCE - It was the finding of one man; I have seen the summing up of the three men. Mr. Somerville said that, in his opinion, the rate should have been £4 5s. a week, but that, in order to obtain a judgment, he had agreed to £4 3s. Mr. Bloxome said that it should have been £4 ls.


Senator Needham - Does the honorable senator suggest that, if the other two men were lawyers, there would always be unanimous decisions ?


Senator PEARCE - No; butI do suggest that each of them would be re- garded as judges and not as advocates, and that, because of their training as barristers and solicitors, they would be better fitted to decide the matters that came before them. A layman is always allied with one side or the other.


Senator Thompson - Is it not possible to get independent laymen?


Senator PEARCE - It is very difficult to do so, because they are nearly always connected with industry, and are regarded as partisans. Senator Gardiner said that we placed lawyers on a pedestal. I do not regard lawyers as being better than other men; but I hold that men who are trained in interpreting the laws arc better fitted for judicial positions than are politicians whose duty it is to make the laws.


Senator Sir Henry Barwell - The legal mind is trained to weigh evidence.


Senator PEARCE - A lawyer may not be a better man than a layman, but his training makes him better fitted to act as a judge. A lawyer's whole training has the effect of giving him a judicial mind, and of making him impartial. No other occupation in the community does so to the same extent. Judges may hold strong opinions on various subjects, political and otherwise; but that these opinions do not weigh with them when dealing with the matters that come before them in the courts a case which came before the High .Court 'recently, and which did not end satisfactorily from the Government's point of view, is sufficient to show. Will honorable senators say that the personal political opinions of the judges of the High Court were not in accord with the Government's proposals in that case? Yet they interpreted the law impartially, and the decision went against the Government. They weighed the evidence without regard to their political predilections or 'the political predilections of others. The whole community, whatever their view of the Government's action, was of one mind regarding the court's impartiality.


Senator THOMAS (NEW SOUTH WALES) - -How many different decisions were given? I understand that there were five different decisions delivered by six men.


Senator PEARCE - I do not know how many different decisions they gave, but I do know that no one attributed partiality to any of them. I ask the

Senate to remember that the three judges of the Arbitration Court will have to decide great industrial questions, such as the basic wage and a uniform working week. We do not want the advocate, but the judge, when decisions are being framed. The function of the advocate is to present evidence and plead his cause, but a judge is wanted to sift that evidence and make a decision.


Senator THOMAS (NEW SOUTH WALES) - Is not the position the same in the case of the Tariff Board ? Does it not sift evidence?


Senator PEARCE - The honorable senator is obsessed with tariff matters. Let us concern ourselves with what is before us. For the Arbitration Court, we want three men, who will be judges, not advocates. We want men who will weigh the evidence, and give impartial decisions, unaffected by their personal industrial or political predilections. Above everything else, we want a tribunal in which the people will have confidence. They have confidence in the judiciary of this country both Federal and State, whose decisions they accept without a murmur. While litigants may not always consider that they have received mercy at the hands of our judges, they believe that they have obtained justice.


Senator THOMAS (NEW SOUTH WALES) - Yet they sometimes appeal to the Privy Council!


Senator PEARCE - In the appointment of the men to comprise the Arbitration Court, it would be unwise to make a departure from the established practice.







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