Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Tuesday, 29 July 1902


Mr O'MALLEY (Tasmania) - I am glad to have an opportunity of opposing this clause. I listened very attentively to the honorable member for Bland, whose utterances, no doubt, are the product of New South Wales parochial bigotry, and I am sorry to say that, in this respect, the Minister is his twin brother. Experience is the unerring test of all human undertakings, and both the right honorable member for Tasmania, Sir Edward Braddon, and myself know something of election petitions in courts of law. In Tasmania a few years ago, the costs in the Aikenhead case amounted not to £1,500, but to nearly £3,000, and in the caseof Dillon and Dobson, the former was ruined by the expenditure entailed. What a pity it isthat honorable members, who come fromthe various States saturated with local prejudice and bigotry, should have the fear that no justice can be obtained from a tribunal of this House. In the case of the petition presented against the honorable member for Western Australia, Mr. E. Solomon, and also the petition presented against the return of the honorable member for Tasmania, Mr. Hartnoll, absolute justice was done. Had those cases gone before the Supreme Court, lawyers would have argued for weeks and weeks, with the result, perhaps, of upsetting the election, and costing the Commonwealth £2,000 or £3,000, in order to bring about exactly the same result as that achieved by the committee. Why are honorable members afraid to trust this House ? It may be said by honorable members that the United States Congress is a corrupt body ; but, so far as I have read or heard, the justice rendered there in the case of disputed elections has not been questioned for 100 years. Turning once more to the cases which have arisen in the House of Representatives, no one has ever said that Mr. Whitelaw, the labour candidate, who petitioned against the return of the present member for Tasmania, Mr. Hartnoll, did not get justice, although the. chairman of the committee, which heard the petition, was the right honorable member for Tasmania, Sir Edward Braddon, and, in politics, diametrically opposed to the petitioner's. I am not one of the poorest members in the House, but if my election were disputed to-morrow, and the case had to go to the Supreme Court, I should, if my opponent were a man with a long purse, tell him to pay me my expenses and take the seat. I am determined that so long as I am a candidate, or -a prospective candidate in the Commonwealth of Australia, I shall not hand over my hard-earned savings to a few lawyers merely in order to secure an election. There is no hope for a man who has to take a disputed election to the Supreme Court, as is well illustrated in the case of Mr. Tucker, in South Australia. No doubt we get justice at the Supreme Court, but it is justice based on the length of the purse. If there be an insignificant lawyer, and a great lawyer, justice is always on the side of the latter - at least court justice.


Mr Watson - Lawyers are employed before Elections and Qualifications Committees.


Mr O'MALLEY - If cases are taken to the Supreme Court, the parties ought to " face the music " themselves, and the lawyers be shut out.


Mr Watson - There is something in that suggestion.


Mr O'MALLEY - Under any condition I shall fight to the "last ditch" for the principle that this House shall be the tribunal ; I refuse to throw away my democratic rights. Honorable members have known each other now for the last fourteen months, and yet we hear the parrot cry that a committee of this House cannot be trusted to do justice. Such an opinion, expressed by the honorable member for Bland, is only a symptom of the conditions under which he has evolved in his political life ; it does not do justice to his head. I am of the labour party ; but I know that in the case of a disputed election, any labour representative would go against the interests of his own party ten times over in order that justice might be done. Though the honor able member for Bland is the leader of the party to which I belong, if his election were disputed, to-morrow, and the members of the labour party ran the risk of losing the honorable member's services, and we might keep him in by working one little trick, I doubt whether there is a member of the party who, notwithstanding all his prejudices, would not be willing to do absolute justice to the petitioning candidate. It is a great pity to hear honorable members talking against their own House. Honorable members should regard themselves" as belonging to one family ; and to throw any doubt upon the honour of the House is like abusing the members of one's own household. I shall fight against this clause to the last ditch.

Mr. V.L. SOLOMON (South Australia). - Our experience of the working of courts of disputed returns in the other States should be our guide in the Federal Parliament. It is an old maxim that the Parliament of a country is the highest Court qf Appeal, to which every citizen has recourse. Parliament is above and beyond the Supreme Court. The Parliament of a country is its supreme court of equity, and should be a court which could always be relied upon to do justice. If this has been recognised to be the case in the State Parliaments, surely, now that the Federal Parliament has been established - composed of men trusted by every individual State in the Commonwealth - it should be a court to which its own members at least ought to have no hesitation in submitting themselves in the case of a disputed election. Whether we are free-traders or protectionists, and whether we sit on the right or the left of the Chair, there ought to be no doubt about trusting to Parliament to decide any question where the sole matter in dispute is that of doing right and justice between the person who has been returned and the man opposed to him. "Unless we can trust our fellow members to do that justice, we admit something that I, indeed, should be sorry to admit - that the code of honour amongst members of the great Parliament of Australia is lower and less to be relied upon than is the code of honour in a little State Parliament. There is not a member of this Parliament - no matter on what side he sits, and in spite of the little differences that occur in regard to political questions - whom I would not trust absolutely to do even-handed justice in any case that was brought before him. In South Australia we had a court of disputed returns, composed of four members elected by each House of Parliament, and presided over by a Supreme Court Judge. Those four members', in every instance, were men who, irrespective of the side of the House upon which they sat, had earned the good-will, high opinion, and confidence of their fellow members. They were selected because every man in the Parliament trusted them implicitly, and relied upon their sense of justice. .During my twelve years' career in the South Australian Parliament, the fathers of the House in which I sat were on every occasion elected as members of the court of disputed returns. What a confession of incompetency, doubt, and absolute mistrust of our fellow members it would be to say, "We cannot trust ourselves, or trust the best men selected from amongst us, to decide cases of disputed elections, and we must send them to the court." That is a confession that no member of this House should dare to make, and that any -member who made it should -be ashamed of. I should be perfectly willing, if a petition were presented next week disputing my return, to trust myself to four members selected, not merely from each side of the House, but from the side opposite to which I sit. I would trust them entirely and implicitly to do me justice. And surely every honorable member, notwithstanding our little troubles and disputes and differences on party questions, is ready to believe that four members can bc selected haphazard from this House who could be relied upon to do absolute justice in such a case?

Suspicion must "haunt the guilty mind", if there be a member who has a doubt on that point. I fully believe that any committee selected by this House could be absolutely trusted to do justice. Speaking for myself, if I were a member of a court of disputed returns, and had any leaning at all, I should be likely to lean towards the man who was opposed to me in polities rather than that there should be a suspicion of my leaning towards my own side. I believe that I express the inclination of most honorable members when I say that. Our leaning, if any, would be in the direction of justice to the man who was not on our own side in politics. To take the matter out of the hands of Parliament would be a mistake, and a confession that we do not trust ourselves. And if we confess that we are unfit to decide a case of this kind, and admit that there is a suspicion that we may be biased by party feeling, how fit are we to rule the destinies of Australia in the larger and much more important issues of national life 1

Mr. HIGGINS(Northern Melbourne).I have not had the advantage of hearing the speech of the mover of the amendment, but I have listened to the impassioned speeches that have followed. I wish to say a few words about the subject, and I feel all the freer to speak because I have not heard used that claptrap argument which is frequently employed in such matters : that the lawyers are trying to keep these affairs in the courts for their own pecuniary benefit. It is not, as the last speaker seems to suppose, out of any want of confidence in ourselves, or in our honesty, that it is proposed to submit cases of disputed election returns to the court. It is a mistake also to say that this House is the highest court of the realm: It is not a court at all, except in the sense that it is a court of policy. It is the highest court in the realm foi" purposes of dictating the policy of the country ; but when once you have- made your law, this House is by no means a fit body to decide what is the effect of that law.


Mr Fowler - Is not the maker of the law greater than the interpreter of it ?







Suggest corrections