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Wednesday, 21 July 1926

Senator LYNCH (Western Australia) . - The discussion is rather interesting, because it has brought out a number of contradictory view-points. The bill provides for the payment of pensions to justices of the High Court within certain limits. It contains what appear to be two principles. Under one set of circumstances a justice of the High Court will be entitled to a pension; under another set of circumstances he will be entitled to a pension of a smaller amount, or, if he remains on the Bench for a certain stated term, no pension at all. Curiously enough, associated with those who may be regarded as the sponsors of the latter view, are honorable senators who for many years, in season and out of season, have proclaimed their firm belief in the principle of pensions for all. Their attitude towards this bill is not consistent, or in keeping with the modern spirit of democracy. I believe that the pension system is perfectly sound, and that it has the support of a very old tradition. It was never intended that any member of society should be flung upon the scrap heap when his period of usefulness came to an end. Pensions, therefore, have their roots deeply embedded in the practice of the past, and rightly have the backing of tradition. Where is the consistency of - those honorable senators who, whilst claiming that old-age pensions are a right, and that any one who objects to them has no generosity in his soul nor any of the elements of modern democracy in his being, yet at the same time would deny that right to the members of the highest court in the land ! It has been admitted over and over again that, in accepting a call to the High Court bench, a man suffers a good deal of pecuniary loss. Having accepted the call to this honoured office, and made that sacrifice, why should he be further penalized ? In my judgment the High Court has not been treated generously. It was constituted in the early days of federation, at a period when the Commonwealth was experiencing one of those curious visitations that sweep through every community, namely, an insane and unintelligible craze for economy. The Kyabram movement in this State is well remembered. This particular institution was brought into being, cradled, and nurtured in that atmosphere, which was calculated to cut expenditure to the bone, and withhold from the court any dignity that would be likely to cost money. It is well known that those who were called to the bench would have been very much better off financially if they had continued at their profession. Twenty years have elapsed since the court was created. Every other section of the community has, in a material sense, moved forward, but the court has stood still. - Is that right or just? I am astounded that opposition should be offered to the views which have been expressed from this side of the Senate. If honorable senators opposite are prepared to adopt a spirit of fair play towards one section of the community, let them display that quality towards every other section. If it is right to pay oldage pensions, it is equally right to make provision for pensions for the members of the High Court bench.

Senator Abbott - Their salaries have not now the purchasing power that they possessed at the time of their appointment.

Senator LYNCH - That is quite true; the purchasing power is now approximately one-half of what it formerly was. Although every other section of society has in various ways substantially improved its position through the action of this Parliament, it is argued that the High Court should be singled out for differential treatment. That is not fair. There is another point to be considered. The pension is to be assessed upon an emolument that now possesses only one-half of its original value. That is further injustice. Senator Barwell quite justifiably used, the phrase " circumventing the Constitution " in relation. to the proposal that' the pension should be reduced by a certain amount for every year that a High Court justice remained on the bench after he had- attained the age of 70 years. It is a well-known maxim that you cannot do indirectly what cannot be done directly.. The Commonwealth Constitution provides that High Court judges shall hold office during their natural life. Under this, measure they are virtually to be told that unless they vacate their office at a certain age they will suffer pecuniarily. Human nature, being what it is, how can we expect these gentlemen to submit tamely to treatment that up to the present neither this nor any other government or "parliament has. ventured to suggest that any other section of society should accept? The proposal is so lopsided, so unsymmetrical, that I cannot find an atom of justification for it. When the High Court was constituted, the members of this Parliament received a salary of £400- per annum. They are now on. a very much higher salary, but the justices of the high Court have remained at their original level. Yet some persons contend that they are well treated ! They are not. The bushel by which we measure our interests should be the bushel by which we measure the interests of the members of the High Court bench. I agree with Senator Barwell that this proposal aims at circumventing the Constitution. It might even have applied to it that burning phrase which was uttered by the late Chief Justice, Sir Samuel Griffith, who for so long adorned the High Court Bench, " a fraud on the Constitution." This is a circuitous' method of doing what cannot be done in a direct way. It is a subterfuge. We ought not to deal in a paltry manner with a court whose decisions have cast such a luminous light upon our laws, and which has proved to be the grand palladium of our liberties. Its decisions have reflected infinite wisdom.

Senator GREENE (NEW SOUTH WALES) - Sometimes it has told this Parliament that it did not know how to make laws.

Senator LYNCH - Its latest decision showed its' transparent impartiality. It has attracted to itself men who have been most skilled in legal lore. We should, therefore, treat it handsomely. My answer to those who compare it with other' branches of the Public Service is that it is quite apart from any other .department of government. We should see that it1 is so exalted that, it will attract the brightest brains in this young and vibrating nation. Our system of education is now a great deal freer than it was when, the High- Court was established. Under i't the brilliant, moneyless youth can proceed by steady stages until he achieves, the highest distinction. No longer is the legal profession the close preserve of the wealthy classes that it was in days gone by. To-day, under our more enlightened system of education, the brilliant youth, can, by dint of his own innate qualities, fit himself for a position on the bench of this, the highest, court in- the land. That being so-, we should make it more attractive than it is to-day, so that our youths will be imbued with a spirit of rivalry, and they will .give to the utmost of their capabilities. I support those honorable- senators who say that the amendment which the other place inserted in the measure, providing for the decrease of the pension, should be ' removed. An endeavour was made- in the other place, to. have a similar provision inserted in the Conciliation and Arbitration Bill, but it failed by one vote. We have thus the anomalous position that the members of a subordinate branch of the Commonwealth judiciary are to enjoy privileges that are to be denied to the justices of the High Court! How can we defend such a proposal as that? It will not mean a saving of the taxpayers' money. Supposing that the 70th birthday of a justice of the High Court were to fall to-morrow, and his mental faculties were as keen as they were when he was 60 years, 50 years, or even 40 years of age.

Senator Sir Henry Barwell - He would have more experience.

Senator LYNCH - Quite so. If he were asked to retire, and the people were thus denied the benefit of his vast store of knowledge, it would be a retrograde step. If there is one thing in the polity of this or any other country that is most pernicious and destructive of progress, it is the tendency to prevent a person from giving his best when he has the power to do so. Here we are saying to a justice who reaches the age of 70, " Get aside." By an arbitrary decision we say, " No longer are you capable of continuing to perform your duties." What perfect nonsense! Instances can be cited of men who are not at the pinnacle of their mental and physical perfection until they have reached the age of 70. Lord Halsbury, who wrote a great standard work, to which every lawyer refers, was still in harness when over 90 years of age ; but under this law he would have been told to stand aside at 70 years of age. Disraeli did not come into power until he was 70. Mr. Gladstone was in power when he was over 70. I could quote a long list of men of whom it might be said that the flower of their innate perfection did not reach full bloom until they were over 70 years of age. Yet in this progressive age we are asked to tell men in high and honoured positions that at 70 they have come to an end of their mental capacity, and should give way to younger men. We are not treating our High Court judges as they should be treated. If it is a High Court it should not be put on a low plane of national consideration. Therefore, as a humble member of this Senate I intend to support Senator Barwell in his proposal to place the justices of the High Court in a position of independence and dignity in keeping with the high importance of the offices they hold.

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