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Wednesday, 10 April 1946

Mr MENZIES (Kooyong) (Leader of the Opposition) . - I do not want to undertake the difficult task of discussing in advance a judicial appointment of which I know nothing except that it will be made. When the appointment has been made, the Attorney-General (Dr. Evatt) will agree with me, practising lawyers in this country will at once have a. perfectly clear idea in their minds as to whether the man appointed is or is not of the calibre suitable to the Bench that he has to occupy. I have no reason to anticipate who will be appointed to the office, but I have heard rumours of- a proposed appointment which to me, as a lawyer, would be disturbing if it were made. I rose not to canvass possible appointees, but to say something on a point of considerable importance that has arisen although not exactly in relation to the bill. Some one like myself who is not only a politician but also a lawyer of some experience, should say something about it. It is the problem of how far those who have engaged in politics in or out of parliament are disqualified or qualified for judicial , office. When we are dealing with the High Court of Australia we are dealing with a court which first and foremost ought to contain the finest judicial minds in the country. There is the temptation on the part of some people outside this chamber to think that all appointments to the High Court have been in some mysterious way associated with politics. That is not so. Of the six justices on the High Court Bench, four have never had, 30 far as I know, the slightest association with politics. Two of them were associated with politics.

Mr Brennan - It is questionablewhether their association with politics is not on the whole a good thing.

Mr MENZIES - That is another matter, and, in certain cases, I see the point of the honorable gentleman's interjection; but of the six justices, four have had no known association at any time with politics. The other two did sit in this House on opposing sides. They are the learned Chief Justice, Sir John Latham, and Mr. Justice McTiernan, and, though it is an invidious thing to refer to individuals, and though I am reluctant to do so when discussing the judiciary, i t must be admitted by every one that both are men of unimpeachable integrity. The qualifications for a seat on the High Court Bench are qualifications that go far beyond the entertainment of certain political views. A Justice of the High Court, I remind the committee, will deal occasionally, with a constitutional matter. He will on the whole deal more frequently with some matter of common law or equity, some matter which arises from the pure technique of the law and has no association with constitutional problems. I say by way of warning to every one that there is a certain temptation in the minds of all to believe that the constitutional problem is the problem par excellence engaging the High Court and that therefore a somewhat broader approach te the problem to be determined is permissible. There is no question that what we call constitutional law is only half law and half philosophy, political philosophy, and therefore it, more than any' other branch of the law, changes according to the philosophical current in the minds of people from time to time. I do not quarrel with that. I have been the most humble instrument of -providence on one or two occasions that induced the High Court to change its decision after many years; but, for the ordinary judicial work of the High Court, which in normal times represents the bulk of its work, no one is qualified unless he has a first-class grasp of the technical problems of law. Therefore we* must look for people who have great technical skill, great learning, width of experience, not excluding political experience, wisdom, character, and balanced judgment. Assuming that we have a man who answers that description, I make it clear that I for one would not regard his political activity as any disqualification at all. But I equally make it clear that I would not regard his political experience as a qualification which served as a substitute for any one or more of the other attributes which I have described. What we must beware of, in the heated state of politics which we encounter occasionally in Australia, is thinking that we do a real honor to the appointee or the Bench by saying, " If we appoint him, he is much more likely to give a decision in our favour ". That is an insult to him. It assumes a disqualification on his part, because .no man who considered that, he .was under any obligation on the Bench to those who appointed him could be rightly described as qualified to be a judge.

Once more, I shall refer to the present Chief Justice, and again I do so with reluctance, because it is not agreeable to a man occupying his position, to have his qualifications canvassed in the Parliament. I contend that, even if Sir John Latham had never been a member of this Parliament, he- would have been such an outstanding lawyer in this country that his qualifications for' the Bench would have been obvious.. If it can be said of any man that, but for his political activity he would not have been ranked for judicial appointment by informed opinion in his- profession, that would, be a political appointment. But if a man is, by virture of- his own character, attainments, and experience qualified for the judicial office, I say,. " Let us forget the notion that he loses his qualification because he has thought fit to serve his country in the Parliament in a cause in which he honestly believed, and has associated himself with, political activities outside the Parliament." Those are matters to which most active-minded men at some time or other will find themselves drawnThere is nothing novel about what I have said. I have merely stated what most of us believe. In reality, what I have said is, to my mind, the most severe condemnation of what I would, call a " political appointment to the Bench ". I have risen merely to say that it does not follow that an appointment to the Bench is political because the appointee has been in politics. As for individual instances, those of us whohave practiced in the courts for many years, just as others have practised in other professions or occupations, are well aware of the qualifications - the relative qualifications - of most of the leaders of our profession. I shall form my own opinion about the appointment which will in due course be made, not in the light of my own knowledge as a politician, but in the light of my own knowledge as a lawyer.

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