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Tuesday, 29 July 1902

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - Yes, that can be done under the Bill. And even when we have a High Court, it is to be hoped that we shall not have that body carrying on its functions only at the seat of government. If it is to be an Australian court, administering Australian law, I hope that it will be available to sit in States like Queensland and Western Australia, or, at any rate, that those States will be entitled to have a judge sitting within their borders to hear such matters as election petitions.

Mr Mahon - What is to prevent an elections and qualifications committee doing the same thing ?

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - According to the practice of the House of Commons, which has been adopted here, an elections and qualifications committee can sit only while the House itself is in session.

Mr Isaacs - We can alter that practice by Act of Parliament.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - I do not think that in the case of election petitions honorable members would desire that matters should stand over during a whole session, so that during the recess the committee might sit and adjudicate in some remote portion of Australia. The scheme of the Bill is much simpler and better, namely, that if, for instance, an election petition

Case arises in Herbert, which is the most remote constituency in Queensland, it will be quite possible for a Judge of the Supreme Court to sit at Townsville and hear it. That would mean a great saving of expense, and would meet the convenience of the parties.

Mr Isaacs - Suppose Parliament werenot sitting, and there was a decision of the court-what would happen?

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - In England, I believe, express power is given to the court to sit. The same point also came up in Queensland.

Mr Isaacs - What would happen if the court declared the election to be void, and Parliament was not sitting ?

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - I think that, in delegating this matter to the court, Parliament would give the court the power to sit continuously. It is the English practice that a committee of the House cannot sit after the prorogation. There is a case where the hearing of an election petition started during the sitting of the House and then the prorogation took place. At the beginning of the next session of Parliament it was necessary to elect another committee and start the trial de novo. I think it is much more advisable that we should take this matter of hearing election petitions completely Out of the control of Parliament, and allow the court to exercise what is really a judicial function. I would point out, however, that in the Bill itself an anomaly exists. It also exists in Great Britain. Under section 47 of the constitution it is provided that -

Until the Parliament otherwise provides any question respecting the qualification of a senator or a member of the House of Representatives or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be the House in which the question arises.

Under this Bill we are not delegating to the court the power to decide every case in which a question of disqualification or vacancy arises. We transfer to the court only the power to inquire into and adjudicate upon disputed election returns. That is to say, if an election is held, and its validity is disputed, the court has power to inquire into and adjudicate upon the petition. But let me put this case. Suppose a man holds an office of profit under the Crown, that being a ground disqualification. If he held the office of profit under the Crown at the time of his election, the matter would be one into which the court of disputed returns would have power to inquire. The court would decide whether the office held by the member elected was an office of profit under the Crown, and if they found that it was such an office his seat would be declared void. But if we pass the Bill as it stands it will have this peculiar effect - that supposing a member has been elected for twelve months, and then accepts an office of profit under the Crown, the tribunal to decide the case will not be the court of disputed returns, but a committee of the House itself, to which the function of inquiry will be delegated. It seems to me to be an unsatisfactory thing that we should have two tribunals to try practically the same question. In Queensland we had an election petition presented on the ground that the respondent held positions upon one of the rabbit boards and upon a stock board. The ground alleged against the respondent was that those were offices of profit under the Crown. The case came before the elections tribunal, which decided that the respondent held an office of profit, and the seat was avoided. But if a person were to accept an office like that during the currency of his tenure of a seat in this House, the court of disputed returns could not try the case, and it would have to go before a committee of this House.

Mr E SOLOMON (FREMANTLE, WESTERN AUSTRALIA) - Would not the rules of the State service prevent an occurrence of that kind?

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - In Queensland certain boards were constituted, and the question was whether a person who held a seat upon one of those boards held an office of profit under the Crown. Under this Bill the Court would have no power to try a case of that kind. The same rule applies in England, as is set out in May's Parliamentary Practice. Notwithstanding the existence of a court in England for the purpose of trying disputed elections, questions concerning disqualifications are still tried by select committees of the House of Commons. If we are to have a court for the purpose of trying matters of this kind, it is highly unsatisfactory that, where a member has accepted an office of profit under the Crown, and his light to continue to sit is disputed, the case should not be tried by the same tribunal as is appointed to try election petitions. Disputes might also arise where members had entered into contracts with the Crown. A case of that kind has arisen in Queensland. It was alleged against a Member of Parliament that he had entered into a contract with the Crown, and, notwithstanding his contention that the contract was really held by his wife, the court decided that, although as . a matter of form it was held by his wife, it was, in substance, held by the member ; and his seat was avoided. That case necessitated the calling of witnesses, and the finding by the court upon a great many questions of fact as well as of law. If a member, during the time he is in Parliament, enters into a contract with the Crown, there must be matters of fact as well as of law to be decided. Those matters of fact involve the calling of witnesses, the weighing of evidence, and the giving of a judicial decision ; and if we are to have such matters tried by a committee of this House, whilst election petitions are tried by the court, it will bea very unsatisfactory position. What we have done in this Bill is to provide a half-way house. One of the strong reasons why I support the Bill is that we can do justice to the people of this country only by having the Judges sent to the most remote constituencies, in order that the matters in dispute may be tried there. In a case where there are a great number of witnesses to be examined, how can a man bring those witnesses from a remote constituency down to Melbourne, or wherever the seat of government may be, in order that his case may be adjudicated upon? I know of a case where as many as ten or twelve witnesses were called to testify as to one vote.

Mr Isaacs - Where was that case heard 1

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - The case was heard in Brisbane. It concerned the Warrego election. Warrego is 400 or 500 miles from Brisbane.

Mr Isaacs - Then the expense was not avoided in that case.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It is true that there must be some expense in matters ofthis kind, but there is a great difference between bringing witnesses 400 or 500 miles to, say, Brisbane, and bringing them all the way from a constituency in the north of Queensland to Melbourne. If the tribunal to be constituted is to try Australian questions, it should be made available throughout the whole of the Commonwealth, so that in every part of Australia justice may be done.

Mr O'Malley - Justice depends upon the purse.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - In some instances the expenditure of money may be necessary. Notwithstanding what has been said, I believe that England and Australia alike have reason to be proud of their judiciary.

Mr Isaacs - And of their Parliaments too.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - And of their Parliaments also. But I do not believe that a Parliament is a proper tribunal to decide these questions. Our own Parliament -has been in existence a few months. We have every reason to be proud of it, notwithstanding the aspersions which are from time to time cast upon us. But although I am a member of this House, and am proud of it, I say that the House, as constituted, is purely a legislative body. It is constituted for the purpose of making laws, and I do not think that it is a proper body to constitute a court. In the first place, the members of .this House generally are not accustomed to weigh evidence ; they are not accustomed to discriminate between relevant and irrelevant issues, and, in many instances, they cannot possibly have had the training necessary for enabling them to come to judicial decisions.

Mr Mahon - The honorable member would say that we have not the common sense of a jury ?

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - I am not saying that for a moment. What I say is that this House as such has not been trained as a judicial body, and it would be infinitely better, to leave the decision of questions involving matters of law, and the weighing of evidence, to tribunals composed of men who, from their experience and training, are suited for the duty.

Mr Fowler - The honorable and learned member for Northern Melbourne hinted that Judges were too highly trained in that respect.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - That may be so, but the Judges, by their training, experience, and education, are better fitted to deal with these questions than are members of this House. When it has to be decided what is an office of profit under the Crown, or whether certain transactions are really, in law, contracts or not, are not those questions for Judges rather than for members of this House ? I am not denying that members of this House often come to correct conclusions, nor am I impugning their motives; but I say that their training and their political partisanship render them less fitted than are Judges to approach these questions in a judicial manner. There is another reason for supporting the proposal in the Bill. A court depends to a very great extent for its reputation in the eyes of the public upon the belief the public have that it is pure. We must have courts in which the public outside can believe. The public must believe that the court, in giving its decision, is guided by the principles of justice, and by the evidence before it. I will ask honorable members to consider the case of an election at a time when there is heated political discussion, and party issues are keenly divided. Take, for instance, a case in Queensland decided against the labour party. Would not the people outside say that the decision was due to the fact that it was tried by six members, four of whom were members of the Ministerial party, and only two, members of the labour party? We cannot afford to createthat kind of feeling, and our court must be constituted in such a way that every one will believe in the purity of its administration. So long as we have party politics, belief in the purity of the administration of justice by a parliamentary committee cannot exist in the minds of the people outside. I am not saying that any committee of this House has done or will do anything improper, but I say that the electors outside will not believe that any parliamentary body can decide such matters in a purely judicial way. They will always believe that party feeling will find its way into the decisions; It has been said that this Parliament has now been sitting fifteen months, and no grave abuse has arisen. We have had two election cases before us - one before the Senate and one before the House of Representatives. The honorable member for

Coolgardie said that if election petitions have to be brought before a court there will be infinite delay. I ask honorable members how long it took the Senate to give a decision in the case before it ?

Mr Fowler - That was because of the presence of two legal opponents on the committee.

Mr Watson - And they were political partisans as well as opponents.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - The honorable member for Coolgardie said that the system proposed by the Bill would lead to great delay, and I am showing that in one of the two cases of which we have had experience there was considerable delay.

Mr McDonald - What about the delay in Daniels' case?

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - That was not before a High Court.In Queensland we have a peculiarly constituted compromise court, but we have not found that there have been long delays in connexion with that court.

Mr McDonald - If the matter is likely to be decided in favour of the Government, the business is quickly transacted, but if it is likely to be against them, it takes a couple of years.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - That is not my experience. I appeared in one case on behalf of the labour party in Queensland, and when we went before Mr. Justice Real we got our directions at once, the time was fixed for the hearing of evidence, and the proceedings were got through quickly.

Mr McDonald - The proceedings in Bowman's case did not go through quickly.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It is to Bowman's case that I am referring. Any delay that there was in that case wasdue to the fact that the election was held in March, and Parliament did not meet until about July. That was a delay due to Parliament and not to the tribunal that decided the case. Under the provisions of the Bill there will not be any such delay as that, because the court can proceed with its work straight away, even bef ore Parliament meets. We have been constituted as a Parliament for so short a time that we have not had sufficient' experience to influence our opinions in one way or the other as regards the desirability of this Parliament settling these questions. I believe that members here would try to do what is fair and just, but in laying down legislation which is to be permanent, we should look at the experience of other countries, and see what they have done. If we take the case of England itself, we shall find that in the earliest times these cases were tried by a sort of elections and qualifications committee. Between1603 and 1623, the only time when that practice gave satisfaction, the elections and qualifications committees were formed of PrivyCouncillors and of legal members of the House. Some of the best decisions we have - decisions whichare still relied upon in the text-books - are decisions which were given during that time, when cases were heard by distinguished legal members, and when there were such men as Coke and Glanville on the elections and qualifications committees. But abuses crept in, and Granville's Act was passed providing foraselect committee, chosen by ballot. Abuses again crept in, and the experience on the whole was that cases were decided upon party considerations solely, and not upon considerationsof essential justice. The result was that in England these matters were, in 1868, referred to the Judges, and they have heard these cases ever since. The experience of Canada and Australia has been the same. We know that in Queensland these election cases were decided upon purely party considerations, and both parties there found from experience that the elections and qualifications committee was not a. satisfactory tribunal, and that it was absolutely necessary to constitute somedifferent tribunal. As a result there was introduced in Queensland a sort of compromise statute. Under the Act in force there now an elections Judge is assigned to the work every year. The Speaker at the beginning of everysession selects twelve members of the House who constitute a panel of assessors. Before an election trial comes oh the parties in the House have the right to challenge the assessors until only six are left, and the matter is then heard by the elections Judge andthe six assessors. Their functions are defined in this way : the Judge is supreme in matters of law, and theassessors are supreme in matters of fact.

Mr Deakin - A judge and jury.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It is not quite the same as a judge and jury, because the assessors have the right to decide whether certain evidence may be admitted or not.

Mr Isaacs - To overrule the Judge ?

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - They have the right to decide uponthe admission ofevidence, on theprinciple of considering the equityand goodconscience of the case. That may not bealtogether satisfactory, but, so far as regards the judicial part ofthe tribunal, as a rule the Judges rulings have given satisfaction. I may mention a particular case as illustrating the working of the statute. The case is the one to which I have already referred, Bowman v. Hood. In that case the petitioner alleged that the respondent occupied an office of profit under the Crown, and, further, that some of the voters were non-residential. The petitioner was amember of the labour party, and the respondent was a follower of the Ministry. When the matter came before the court, the question was raised as to whether a certain officewas an office of profit under theCrown, and the Judge permitted the assessors as a body to decide the question of law and fact.Counsel were heard on the point, and the Judge having directed the assessors, they decided on the question of law and fact that theoffice held was not an office of profit. The Judge was then appealed to on the question of law, and he set aside the findingof the assessors.He held that the office was an office of profit under the Crown, and a fresh election was held. I mention that to illustrate the working of the Queensland statute, and if honorable members are not desirous of giving up the whole of their functions in this matter, they may be prepared to adopt a systemwhich has acted fairly satisfactorily in Queensland. Personally, having seen the working of the Queensland system, I think it is better to leave the matter entirely to the Judges. The honorable member for Coolgardie objected tothe proposal in the Bill, first of all, on the ground of cost. He said that the cost of trying these cases in the Supreme Court would be excessive, but I say that if these matters are to be determined in Melbourne the cost of bringing them before a parliamentary committee will be very much greater than would be the cost of hearing them before the Supreme Court. It must not be forgotten that a great deal of the costs in connexion with these cases cannot be avoided. Whether they are heard before the Supreme Court or any other tribunal, they must be incurred, as they consist chiefly in the expenses of witnesses.

Mr McDonald - Why should nob the Crown pay them 1

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - That is quite another question, and I am at present answering the arguments of the honorable member for Coolgardie. The honorable member's second point was the law's delay.; but we shall have delays no matter what course we adopt, and if a Judge is set aside to try these cases there should not be the same delay under the system proposed in the Bill as under the system which the honorable member favours. His third point was that a man's fellow Members of Parliament can better deal with these cases than a court can. That is, of course, a matter of opinion. My own opinion is that, although honorable members may come to fairlyjust conclusions, on the whole we shall get better results if we hand these cases over to the court. For these reasons I shall support the Bill as proposed, with the exception that I believe that it would be dangerous to leave the whole of the decisions to any one Judge. I think that. the right of appeal should be allowed. Under the Queensland system we have that right of appeal, and it has been exercised.- It will give more satisfaction, if the right of appeal is allowed, should the system proposed in the Bill be adopted.

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