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


Mr DEAKIN (Ballarat) (AttorneyGeneral) . - The weight deservedly attached to the words of my honorable and learned friend, and the points which he has put forward, are such that I claim honorable members' attention in order that I may, with the characteristic equity of my profession, show how an entirely opposite conclusion can be drawn from the facts which my honorable friend has cited to support his argument. I do not doubt for a moment my honorable friend's sincerity, and am sure he does not doubt mine ; but I am about to show that the particular clause to which he referred in his opening remarks, and which, in his opinion, placed the Judges in a position of peculiar disadvantage, is, to my mind, one of the principal considerations which should commend to the committee the proposal to substitute a judicial tribunal for one which is sometimes judicial and sometimes otherwise, according as it may happen to be constituted, and according to the nature of the question submitted to it. I have had considerable experience of cases submitted to elections and qualifications committees, at times when party feeling has run high, and venture to say that it was scarcely fair to subject the members of those committees to the strain to which they were exposed. It was remarkable,under all the circumstances, that they discharged the duties devolving upon them as well as they did. The results, however, were entirely unsatisfactory to both the parties concerned. The victorious side wasuniversally challenged as having won on political grounds, without regard to the merits of the case, and on the other side there was more than a suspicion that the treatment metedout had been dealt to a politicalopponent, rather than in the interests of pure justice. It isdifficult for men who constitute such a tribunal to dismiss from their minds all considerations bearing upon the merits and strength of their own party, and to deal with the issues submitted to them as something different from the political issues they are accustomed to support upon the floor of the House as party against party.


Mr Fowler - Does the Minister think that it is impossible for honorablemembers to dissociate their minds from party considerations ?


Mr DEAKIN - I think it is rare for them to be able to do so for any length of time. Left as they are with insufficient guidance upon the technical issues raised before them, they are extremely apt to be led aside by ingenious advocates in adopting a course, upon technical grounds, which they can scarcely reconcile to their own consciences as strict acts of justice. I decline to look upon this provision as a reflection either upon Parliament or upon this Chamber, and any criticism I have to offerwill be directed rather to other political bodies with whichI have been associated. They are of the past, and can be judged upon what they have done; but this Parliament has yet to show what it will do. So far, we have only one illustration of what we may look for from the settlement of election disputes by tribunals connected with this Parliament.


Mr Fowler - We had two cases in. this House.


Mr DEAKIN - They were of the simplest possible character, and the wonder is that the second case occupied such a long time as it did. The delay in coming to a decision was certainly not due to the complexity of the question.


Sir Edward Braddon - It was due to the adjournment of the House.


Mr DEAKIN - The case that occurred inconnexion with anotherChamber offers a far less satisfactory indication of what is possible; If I may say so without disrespect, the verdict in that case appeared to have been givenfor purely political reasons. The clause to which I look forward with the most confidence is that which raised the greatest alarmin the mind of thehonorable and learned member for Indi. It is provided that-

The court shall be guided by the substantial merits and goodconscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

My honorable and learned friend asks why the judges, who have had life-long experience in administering justice in accordance with certain forms, should be placed in the painful position of having to decide without regard to such forms. It appears to me that what this clause is intended to do is to set the Judge free from the limitations imposed upon him by legal forms when he feels that it is necessary that he should be guided by the substantial merits, and deal with each case in good conscience - not otherwise. It stands to reason that the man whose habits of mind have been formed during years of judicial experience, and who has been accustomed to dispense justice according to ordinary legal forms, will be able to retain the essential guidance which they afford to the trained mind, whilst dismissing all consideration for the mere technicalities of the law. He will not necessarily brush aside all his experience and all his knowledge of the law, but only such parts of it as conflict with good conscience, or debar him from doing substantial justice.


Mr Isaacs - He is to be guided by his ownsweet will.


Mr DEAKIN - On the contrary, he will beguided asmy honorable friend would be. If the honorable and learned member endeavoured to divest himself of all that his legaltraining has given tohim in addition to his natural ability he would be unable to do so. Even if he did set aside those forms, sofar asthey hamper him unduly, he would be unable to discard the judicial habit of mindwhichhe has acquired, and which is of inestimable valuein a case of this kind. I am far from desiring to unduly exalt outside courts. The former are open to the same dangers as committees, though it appears to me that they are less open to them. In the first place they are not composed of keen partisans. Members of Parliament are naturally - even if unconsciously - biased by their political principles. But an independent tribunal will be much less biased than a parliamentary committee, whose members, lackinga judicial habit of mindare called upon to decide whether a seat shall be given to their own political party, or to another.


Mr V L SOLOMON (SOUTH AUSTRALIA, SOUTH AUSTRALIA) - That is not necessarily the issue.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Neither does the committee decide finally.


Mr DEAKIN - I have known cases in which the House has referred a report back to a committee, but that course was adopted only when a majority of the House did not agree with the representation of the committee, and thought that its claim to consideration should be more respected. Without claiming that the tribunal, which it is proposed to establish under this Bill, is infallible, I hold that the members who would constitute it, by reason of their training, and of their absence from the political sphere, would obviously occupya better position than would members engaged in active political life. It seems to me, therefore, that the embarrassment which a justice would encounter would not be of the serious character to which my honorable friend referred.On the contrary, I believe that such a man would do justice, as well as he could, fearlessly, and certainly under much better conditions than could any parliamentary committee. When we have a better tribunaloffered to us, why should we not accept it? It is notnecessary to reflect unduly upon decisions given by Elections and Qualifications Committees. Some have done their duty in a fearless manner in the face of great difficulties. But we must look at the average man, exposed to the average temptations of his position, trying an average case. I have seen instances in which the absence of judicial knowledge and of some technical acquaintance with the rules of evidence has caused these committees to be led astray by the advocacy of counsel.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Does the AttorneyGeneral know of any case in which injustice has been done ?


Mr DEAKIN - Yes. I have in my mind one case of which I was a witness, and in which the committee were hoodwinked in the most audacious manner - so much so, that every professional man connected with it admitted that the proceedings were a mere travesty ofjustice. The committee were anxious to decide in a particular way, but on the merits of the case could not do so. A technical point was taken; they atonce seized it, and found upon that technical plea. That will occur at times.


Mr Thomson - Yes, even in courts.


Mr DEAKIN - Yes. But the honorable member has a sense of proportion, and will admit that where it would occur once in a court it would happen a hundred times in a miscellaneous and untrained tribunal.


Mr Fowler - What is the meaning of the words - "The court shall be guided by the substantial merits and good . conscience of each case without regard to legal forms or technicalities " ?


Mr DEAKIN - They mean that evidence which a Judge would be bound in the ordinary administration of justice to exclude need not be excluded. Such evidence might be admitted and given its due value. If aJ udge were trammelled by legal forms and technicalities there would be a danger of a verdict beinggiven upon a purely technical issue, and I am sure that the committee do not desire that. They wish to see substantial justice done. Upon the whole, having regard to our daily experience, I submit that it would be wiser to leave these disputes to be settled by trained men, rather than by half-a-dozen untrained men who are unquestionably partisans. I confess that better opportunities for dealing with cases locally seem to be presented by this clause than would be offered by an Elections and Qualifications. Committee. On these grounds it appears to me that greater economy is possible under this Bill than under the system of allowing election disputes to be determined by an Elections and Qualifications Committee. If this committee chooses to require that whereever possible cases shall be dealt with locally, that will be a very reasonable provision to insert. It would be cheaper to send a Judge or Judges to determine an election dispute upon the spot, than to bring a large number of witnesses to the capital of a State. If honorable members desire economy in connexion with trials of Parliamentary offences, they have an opportunity of securing it by insuring that wherever possible disputes shall be heard by theJudges as near as possible to the place from which the witnesses are drawn.


Mr A McLEAN (GIPPSLAND, VICTORIA) - The Government would not order the State Judges to try these cases.


Mr DEAKIN - The States Judges are bound by the laws of the Commonwealth. As a matter of fact, however, I do not think it would be necessary to adopt any attitude which might be considered discourteous. If these offences are tried as near as possible to the place where the witnesses reside, and as soon as possible, by men who are judicially trained, what system can be better ?


Sir Edward Braddon - The different States Judges have their work cut out for them for weeks and months ahead.


Mr DEAKIN - They have; but political cases, the hearing of which occupy more than two or three weeks, are extremely rare.


Mr A McLEAN (GIPPSLAND, VICTORIA) - I know of a case which was referred to the courts ten months ago, and, so far, it has not been heard of. There are a number of other cases hinging upon it.


Mr DEAKIN - If it is desired- as it ought to be - that expedition shall be secured, why not provide for it? I have not the least doubt that all the States would be ready to meet us by allowing their J udges to take up disputes of this nature, and deal with them till they are out of hand. Surely that is the easiest way to secure economy and expedition. We can promise neither of those good results from the appointment of an Elections and Qualifications Committee, whose sittings will be determined by those of the House.One other point made by the honorable and learned member for Indi was that if we allowed the State Judges to act in different parts of the Commonwealth, we should get different decisions, clashing with one another. That may be so, but I am quite sure that they will not clash more than would the decisions given by an Elections and Qualifications Committee. I could cite cases in which it would be most difficult to reconcile the findings of the same tribunal. I admit the force of the comments made by thehonorable and learned member, but hold that they tell with greater effect against the system of allowing these disputes to be settled by a Parliamentary committee than they do against the method proposed under this Bill. I do not regard the Government proposal as perfect. I believe that it might be improved by making greater provision for expedition and economy. When, however, the choice lies between a tribunal consisting of one or more trained men and a number of untrained men, or between one disinterested man and a number ofkeenly interested individuals, I have no hesitation in preferring the former. I believe that these disputes should be decided by men who are trained in the work of arriving at the truth.

My. V. L. Solomon. - What a terribly low valuation the Attorney-General puts upon honorable members !


Mr DEAKIN - Not in the least.


Mr V L SOLOMON (SOUTH AUSTRALIA, SOUTH AUSTRALIA) - We do not want a lawyer to deal with simple facts.


Mr DEAKIN - No ; and the Bill provides for disregarding the technicalities of the law. But we want men whose lives have been spent in deciding between conflicting statements and in arriving at the truth. If there be a better process in existence for arriving at the truth than that which we find in the law courts to-day it has yet to be discovered. That process will stand an immense amount of perfecting, but a better has not yet been devised by the wit of man, nor has any body of men been found to whom we should be more prepared to trust our lives and fortunes than those who have been specially trained to deal with all matters in an absolutely judicial manner.







Suggest corrections