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Wednesday, 21 July 1926

Senator MCLACHLAN (South Australia) . - I congratulate the Leader of the Opposition (Senator Needham) upon the tone of his speech. I wish to deal briefly with the ques tion of judicial pensions, and to endeavour to distinguish them from those to 'which the honorable senator has referred. Great Britain and the dominions have reason to be proud of their judicial system, which is the envy of other countries. The parliaments and the people have at all times supported its absolute independence. The judiciary has always been on a separate plane, but it became the fashion a few years ago to endeavour to ignore, in the matter of pensions, the distinction between the judiciary and the ordinary individual - a policy I have always regarded as unsound. Parliament has decided that the judiciary should be removed from the ordinary sphere of activity to the higher plane which I hope it will always occupy. The members of the judiciary are unable to augment their incomes outside their profession as do the members of the bar. On that ground alone the system of judicial pensions stands on an entirely different basis from that of any other pensions system. I approve of what the Leader of the Opposition said concerning the desirability of pensions being provided on a contributory basis, but that system has never been suggested in the case of judges who, because of the exalted positions they occupy in every British community, are on a higher plane. Apart altogether from the cogent reasons submitted by the Leader of the Opposition and Senator Barwell for the exclusion of the limitation of 70 years, there is another very important reason why we should not lay down any hard and fast rule in determining the age at which a judge should retire. The history of the British and Australian judiciaries shows that some of the finest judgments evergiven were those of justices of 70 years of age or over. Some of the finest judgments and clearest possible expositions of the law were delivered by Lord Halsbury after he had attained that age. He retained his mental and physical faculties in an inordinate way for a long time, and there are many other striking instances which could also be quoted. In discussing this subject it is difficult for one, particularly a member of the profession, to mention specific cases, but I think it will be admitted that, frequently judges have retained a wonderful grasp of the law which they have interpreted in a most illuminating way after reaching the allotted span of three score years and ten. On the other hand, I could cite cases where judges have remained on the bench after their periods of usefulness have passed owing largely to the fact that no provision has been made for the payment of pensions on their retirement. In these circumstances the bill as originally introduced in another place was preferable to the form in which it is now before the Senate.

Senator Lynch - Can the honorable senator recall many instances where judges have remained in office in the circumstances he mentions?

Senator MCLACHLAN - I know of one or two such cases. The position will not be remedied by the provision inserted in another place. The bill, as originally introduced, is more desirable from the viewpoint of the Commonwealth than as presented for the acceptance of the Senate. Whilst I think that the honorable gentleman who submitted the amendments referred to had no unworthy motive, and repudiates altogether the suggestion that any violation of the Constitution was intended, nevertheless, the result is the same. His. purpose was to ensure the retirement of justices of the High Court willy-nilly, when they reached the age of 70 years. As Senator Needham has pointed out, that cannot be done under the Constitution, and obviously if the provision is retained, the constitutionality of the bill may be challenged. It seems to me desirable that we should, if possible, get back to the position that existed when the bill was introduced in another place, and, with this object in view, when the bill reaches the committee stage, I shall move certain requests, which I hope honorable senators will agree to and stand by, to restore the measure to its original form. My proposal is to delete the words, " subject to the next following subsection", in proposed new sub-section 48

Al; to delete proposed new sub-section 2, and the words " before reaching the age of 70 years" in proposed new subsection 3.

Senator GREENE (NEW SOUTH WALES) - I take it that the honorable senators wishes to eliminate those provisions which, if retained, 'would defeat the real object of the bill?

Senator McLACHLAN - That is so. They were inserted as amendments in another place to ensure the earlier re tirement of justices of the High Court without regard to their ability to continue on the Bench, and apparently 70 years was fixed upon as the age at which justices should retire. But, as has been shown, those provisions violate the spirit of the Constitution, and are selfdestructive, because, if a justice remained on the Bench until he reached the age of 75 years, he would receive a pension of only £750 a year instead of £1,500 a year, to which he would be entitled if he retired at 70 years. I trust that the suggested amendments which I have indicated will be accepted by the Leader of the Opposition and other members of the committee.

Senator Needham - I am opposed to the bill in toto.

Senator McLACHLAN - I can understand the reason for the honorable senator's attitude; it is political rather than mental, if I may say so. I am confident, however, that the bill trill pass its second reading, and therefore I hope that the honorable senator will support my requests.

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