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Wednesday, 23 June 1926


Senator GARDINER (New South Wales) .- The Minister (Senator Pearce) endeavoured to convey the impression that I was anxious to prevent barristers or solicitors from being appointed to the position of judges of the court. I do not wish to do anything of the kind. I am only anxious to provide that the persons best fitted for the work shall be appointed, even though they may not be barristers or solicitors. I am not endeavouring to be logical, but am only using a little common sense. Senator Thomas said that if an amendment were moved to provide that the chief judge should be a legal man and the other two members of the court laymen he would support it, and I therefore submitted an amendment to suit his views. For many years the minor courts in New South Wales have been presided over by laymen. I do not say that there has not been instances in which their decisions have been upset.


Senator Cox - Many of the magistrates are lawyers.


Senator GARDINER - I do not admit anything of the kind. The honorable senator will agree that for every one who is a lawyer there are 100 who are not. Many of them are men of a fine type, some of whom, unfortunately, have not had very much education, but they possess a judicial mind.


Senator Cox - I was referring to stipendiary magistrates.


Senator GARDINER - All stipendiary magistrates are not trained lawyers. I remember a story told in my boyhood days of a magistrate who had to deal with the case of a man who had been brought before the court for stealing potatoes. He looked under the letter " T " in the index to the Magistrates' Guide, and finding something about turnips said " It is a good thing he did not steal turnips, because for that offence he would have got three months. There is no penalty for stealing " "taters." A few months ago a gentleman of high legal attainments informed this Government that a certain measure was constitutional, but, after the expenditure of a large sum of money and an appeal to the court, it was found that the advice then tendered was worthless. I do not think one layman in ten would make such a blunder. Are lawyers trained to weigh evidence or to cloud it? I have very great respect for lawyers. I realize that we joke about their honesty, but that is only because it will stand joking about. I recall the story of a lawyer named Strange on whose tombstone was inscribed these words, " Here lies an honest lawyer." Every one who read the inscription said " That is Strange." I question very much whether it is possible for many lawyers to put up a better case for a client than laymen could if they only applied themselves to the task. One half of the inmates of our prisons would be free to-day if it were not for the incompetence of lawyers. To merely place a halo round the head of a lawyer and appearing before him on bended knees is not to make him a great man. I recall another story which was often repeated in my boyhood. Many years ago we had in New South Wales a very good lawyer named David Buchanan, who in the old court house at Orange, with the snow beating upon the window pane, was often to be seen with perspiration pouring off his face, as he pleaded for a client, and very frequently got him off. We also had at Orange another lawyer named McLachlan, who appeared on one occasion for a Chinaman in the local police court. The case was sent by the magistrate to a higher court. The

Chinese did not wish to incur the cost of engaging legal advice, so he decided to defend the case himself. He obtained a copy of a local newspaper containing, every question which McLachlan put to the witnesses for the prosecution in the police court. When the case was tried in the higher court the Chinese repeated these questions word for word, and the judge, realizing the unfortunate position of the foreigner, helped him considerably, and eventually the jury acquitted him. Coming down the steps of the court Mr. McLachlan patted the man on the back and said, " John, you did your work well. I could not have done better." The man replied, " See me makee big fellow on bench think me innocent man just like Mr. Buchanan." He was not a trained man, and yet he used his ability to his own advantage. We are living in an age when more than the higher classes are educated. I have been in contact with men on committees at the Trades Hall and at other places who possess a judicial mind, and who, if appointed to the Arbitration Court bench, would deal out justice irrespective of the consequences. I have no desire to have representatives of different classes upon the bench of the Arbitration Court, although among the trade unionists, as among the employers, there are high-minded men who are fitted to fill any position, and would prove an ornament to the bench. I do not want the hands of the Government to be tied. I wish it to be at liberty to appoint the best men, whether they are lawyers or not.


Senator Sir HENRY BARWELL - Does the honorable senator think that a layman could fill the position of judge of the High Court?


Senator GARDINER - The chief function of the High Court is to interpret law, particularly constitutional law. Arbitration Court judges are principally concerned with bringing about peace between conflicting interests. I want to make the Arbitration Court a court of justice ; but honorable senators opposite, apparently, want to make it a court of law. There is a vast difference between the two. I can quite understand lawyers wishing it to be a court of law, because they understand very little except law. Their whole training is along the lines of showing points to their opponents and judges, and winning on points, if they can. The Arbitration Court can be made a useful institution. If it can be shown that lawyers are better qualified than laymen for appointment to these positions, my amendment will not prevent them from being so appointed. We have had a long list of very excellent judges. They have gained that reputation principally because the temperament of the people is such that judicial decisions are accepted without question, whether they are right or wrong. I give pride of place to no man in my esteem and respect for those gentlemen who have adorned the bench; but I could quote decisions that have been given in every State, which, to-day, would be laughed to scorn. Go back to the year 1890, and studythe decisions that were given in Queensland, New South Wales and Victoria. When a man was tried in. New South Wales for complicity in a riot, it was proved beyond doubt that, at the time of the alleged offence, he was 100 miles away from the place at which it was said to have occurred. The judge ruled that he had attended a strike meeting, which was an illegal gathering, and said that if he had been present for only ten minutes he was guilty of the offence. He was found guilty, and sentenced. I could quote a number of similar decisions that have been given by learned judges. I respect these men, when they discharge their functions worthily and well; but, until the contrary is proved, we must treat lawyers as merely the equal of other men. When a lawyer, on his merits, exhibits superior qualities, we can treat him with a little extra respect; but very rarely, outside his own profession, does he show himself even the equal of ordinary men. Of course, there are exceptions. Mr. R. E. - afterwards Mr. Justice - O'Connor, Sir Josiah Symon, and Mr Keating were prominent members of this Senate, and an ornament to the legal profession. The young lawyers who are now members of this chamber have not been here sufficiently long to enable me to form an opinion as to their greatness. Possibly in a few years' time we shall be able to compare them with those men who have made their reputations and departed from us. With the exceptions that I have mentioned; I have not been associated in this chamber with a lawyer by whom I should care to have my case judged. On the other hand, I should have no hesitation in allowing my fate to be decided by dozens of honorable senators who have not been trained in the law. If the amendment is agreed to, the Executive will be able to make its choice from the whole of the community, instead of being restricted to barristers and solicitors. I commend it to honorable senators.







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