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Friday, 3 October 1902


The CHAIRMAN - I shall follow the ordinary precedent, and vote with the Noes.

Question so resolved in the negative.

Mr. REID(East Sydney). - I regret that the clause is to be left as it stands in the Bill. It justifies, not by its intention or design, but as an evidence of the inherent clumsiness of the manner in which the Government manage the affairs of the Commonwealth, what is being said all round Australia about the way in which they deal with the rights of individuals.


Mr DEAKIN - The right honorable member is, of course, at liberty to overlook any aspect of this question if he. chooses to do so. Small as the matter is, an important principle is involved in the form adopted. The Government are willing to submit to the judgment of the State courts, but we propose to do so by our own act, not to be dragged before them under compulsion.


Mr SYDNEY SMITH (MACQUARIE, NEW SOUTH WALES) - That is a very nice arrangement for the public.


Mr DEAKIN - The public will not suffer by it. The purpose of the Bill is to give every citizen the right to bring actions against the Commonwealth, but the Commonwealth will submit to the decisions of the court by its own act, and not under coercion.

Mr. SYDNEYSMITH (Macquarie).I regret that the amendment just moved was defeated. The proposal of the Government is a most unbusiness-like one, though it is quite in accord with what has been done under the Customs Act. To require a man who has a claim against the Commonwealth to go, cap in hand; to the Governor-General, asking that he may be allowed to prosecute it, is monstrous, and an infringement of. the rights of the individual. I hope that tlie clause will be amended in the other Chamber.

Clause agreed to.

Clause 3 agreed to.

Clause 4 (Nominal defendant not/ to; be individually liable).

Mr. REID(East Sydney).- This- clause is on a. piece with the peculiar old-fashioned Tory ideas which seem to actuate the Government. It is clearly provided that the nominal defendant on behalf of the Commonwealth shall not be individually liable for any verdict which may be entered against him, and there is an omission of any provision under which a claimant could recover a single penny from the Commonwealth for the grossest wrong done to him by its officers.


Mr DEAKIN - If the right honorable member will refer to clause 5, he will see that, although the Commonwealth is not to be subject to coercion, there is a practical obligation upon the GovernorGeneral to cause to be paid out of the consolidated revenue fund the amount of any damages and costs awarded.

Mr. GLYNN(South Australia).- In the case of Evans versus O'Connor, where an application was made to prevent the PostmasterGeneral from stopping the passage of newspapers through the post, it was in 1891 decided by the New South Wales court that they could not grant an injunction, since the section of the local Act under which proceedings were taken, the effect of which is similar to that of the clause under discussion, gave them no power to do so. Under that decision, a claimant could not make the Minister for Customs deliver up goods, which, in some cases, have been detained for as much as nine months. If a collector refused to make an entry, application could be made to the courts to compel him to discharge his statutory obligation, but no injunction or mandamus would be granted against the Minister. As a nominal defendant, he would not be individually liable, and as the representative of the Crown* no action could be taken against him.


Mr DEAKIN - I doubt whether the case referred to by the honorable and learned member is analogous to those which would be affected' by this clause. The Commonwealth will name a nominal defendant, and will' stand behind him. The. nominal defendant will not be the person whom* the plaintiff chooses to sue. The Commonwealth will pick any Minister or officer it may choose, and it is necessary that the person so chosen should be protected from individual liability; The Commonwealth itself will accept responsibility for any judgment.


Mr Glynn - Why should not the Minister for Trade andi Customs be arrested, if he refuses to deliver up goods.


Mr DEAKIN - This clause has nothing to do with a case of that kind. It relates only to the liability of a nominal defendant appointed under clause 2.

Clause agreed- to.

Clause 5 agreed to.

Clause 6 (Supreme Courts invested with Federal jurisdiction).

Mr. GLYNN(South Australia). - I think that this clause should go much further. Until we create the High Court we should invest the State courts with ample Federal jurisdiction. We are at present in a grudging fashion giving them jurisdiction under special Acts, to decide questions arising under those Acts ; but why should we not allow them, to deal with every case arising under the Constitution, or under any Act passed by the Commonwealth Parliament, with, if necessary, an appeal to the Privy Council 1 Only yesterday, according to the newspapers, a resolution was passed by the Chamber of Commerce of Adelaide in these terms : -

This committee is of opinion that steps should be taken at once by the general council to urge on the Commonwealth Parliament the carrying; through of legislation for vesting in the State courts the necessary, jurisdiction; pending the construction o£ the High Court.


Mr Isaacs - That is what this Bill is doing.


Mr GLYNN - It vests the State courts with jurisdiction only in respect to claims in contract and in tort against the Crown.


Mr Isaacs - In what way does the honorable and learned member want that jurisdiction enlarged ?


Mr GLYNN - I wish it to cover all cases arising under the Constitution, or under Acts of the Commonwealth Parliament.


Sir William Lyne - Would that give South Australia the right to refer to a State court questions relating, to the use- of the waters of the River Murray ?


Mr GLYNN - No ; that would not be possible.


Sir William Lyne - Tes ; it would.


Mr GLYNN - No ; we have not given tile State of South Australia power to- sue.


Sir WILLIAM LYNE (HUME, NEW SOUTH WALES) - LYNE - We should, if the honorable1 member's ideas were carried out.

Ma-. GLYNN. - I have withdrawn the proposal to which the honorable- gentleman is referring: Some such power, however, will have to be- given, or the Constitution will not be- worth the paper on which it is written. Surely the Minister does- not suppose that the State of South Australia is to be for all time deprived of the power to prevent other States from interfering with the river waters?


Sir William Lyne - No ; but I would not give a State the right to appeal to a State court.


Mr GLYNN - That question is not raised now. I fear that it is too late to press my point, and, under the circumstances, I shall not move an amendment.

Clause agreed to=

Clause 7 -

In any action or suit brought under this Act, any appeal, or application for leave to appeal, from a decision of the Supreme Court of a State, which in the opinion of the Attorney-General involves u constitutional question, or a question of importance to the Commonwealth, shall on the application of the Attorney-General be postponed until a time not later than the date of expiration of this Act.







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