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Tuesday, 9 June 1903


Mr DEAKIN (Ballarat) (AttorneyGeneral) . - I move -

That the Bill be now read a second time.

When I moved the second reading of this measure in March of last year its principles and details were exhaustively explained. There is practically nothing to be taken away from what was then urged, because the Bill remains substantially the same, and it is now necessary for me only to call attention to a few minor changes, and to address myself to the criticisms offered during the 'debate upon the address in reply to the Governor-General's speech. A full understanding of the Bill in all its details will, no doubt, be assisted by the consideration of the measure which accompanies it, and of which the first reading has just been agreed to. That Bill provides all the necessary mechanism to enable the High Court, if established, to enter upon the discharge of its duties. It deals with the registers proposed to be established in every State, the method of the trial of issues, the taking of evidence, and the security to be furnished upon appeal, and it has attached to it, in the form' of a schedule, a' very full set of rules of court dealing with questions of practice, and similar matters which are usually provided for by that means. The two measures taken together would provide for the creation of a High Court of a high character, and at the same time fully equip it with all the necessary powers for exercising the jurisdiction which it is proposed to confer upon it. The first will be supplemented in the Procedure Bill and its appendix, by all the necessary provisions to enable suitors to commence without delay and prosecute without difficulty any and every case which they may wish to submit to its judgment. These measures appear to us to absolutely complete the equipment of the proposed High Court of Australia. I ask honorable members to be good enough to takeas read the remarks made by me last year in expounding the general principles of this measure, and in endeavouring to properly estimate both historically and by comparison with other Constitutions the functions of the High Court. Since that time events have marched, and I find that the greater portion of the scrutiny which the measure now receives at the hands of honorable members leads them to question the urgency of the creation of a High Court, and to further question whether, if a High Court is established, the most economical means have been adopted to give effect to that design. While admitting that at any time questions of expense merit the most careful attention of honorable members, and paying due regard to the untoward circumstances in which many of the States of the Commonwealth have been placed owing to the physical circumstances and climatic conditions of the last few years, I submit that in connexion with this measure there are some considerations preliminary even to these. I admit to the utmost extent not only the right, but the duty of all honorable members to criticise this and every other proposal from the stand-point of the expense likely to be involved, but conceive it to be my first duty to call attention to the fact that we have first to look to our duty under the Constitution and the obligations therein specifically imposed upon us. The provisions of our Constitution with regard to the High Court differ from those relating to the High Court of Canada, to which attention was called during the recent debate. In Canada the appointment of the High Court was a comparatively subsidiary matter. The time and manner of appointment were both left wholly to the discretion of the Canadian Parliament. The provision was "The Parliament of Canada ' may' appoint a High Court." But in the Constitution sanctioned by the people of Australia, the form of words occurring in the Constitution of the United States was adopted deliberately and with set purpose, that the judicial powers of the Commonwealth " shall" be vested in a High Court.

This has been held by judicial decision and by universal interpretation to imply a mandate - not simply the choice of Parliament to create or not to create, but a direction from the people from whom the Constitution came that the Federal Judiciary shall be created. In point of fact, if we look at the sections of the Constitution relating to the three great powers of the Federation, we shall find them significantly framed in the same words. In the first section of the Constitution proper, it is provided -

The legislative power of the Commonwealth shall be vested in a Federal Parliament, and a Federal Parliament has been created accordingly. There was no choice, no option, but it was mandatory that the legislative power should be vested in the Federal Parliament. If we turn to sections 61 and 62 we shall find similar language employed with regard to the Executive, which in point of time preceded the creation of the legislative power. According to section 61-

The Executive power of the Commonwealth is vested in the Queen, and is exercised by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.

Section 62 provides -

There shall be a Federal Executive Council to advise the Governor-General.

Therefore it is provided that there shall be a Legislature, and that there shall be an Executive, and exactly the same form of words is applied to the Judiciary. Section 71 provides -

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts, &c.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Two years have already elapsed since the Commonwealth was established.


Mr DEAKIN -Yes. The Legislature was not brought into existence until five months after the establishment of the Commonwealth ; whereas the Executive was created on the very first day. Surely it is high time that the third co-ordinate and complementary power of the Commonwealth, the Federal Judiciary, should be established in obedience to the mandate contained in the Constitution ?


Mr Conroy - Should we not practically make our Supreme Courts a High Court if we gave them the necessary jurisdiction?


Mr DEAKIN - Not in the sense in which the words are employed in the Constitution, because if the honorable and learned member will look at the section he will see that it is provided -

The judicial power of the Commonwealth shall be vested in u Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts ns Parliament creates, and in such other courts, as it invests with federal jurisdiction.

Therefore we have three classes of court to provide for. First, the High Court, supreme over all ; secondly, the .Federal Courts, which may be invested with local jurisdiction under the High Court ; and then the courts of the States, to which the honorable and learned member has referred, which may be invested with federal jurisdiction within the discretion of Parliament. The three great powers to which I have referred are provided for in exactly the same terms, and stand upon exactly the same footing, thereby representing complete federa-tion. Honorable members require to look at the words of the Constitution very closely and to weigh their import very seriously, because it is not possible that the Legislature and the Executivecalled into existence under the same set of words should now proceed to hold that the third great power provided for in exactly the same way should be created in a different fashion. The creation of the High Court occupied no inconsiderable portion of the time of the .Federal Convention in 1891, and when the Constitution was submitted to the people - particularly in the less populous States - it was continually pointed out from the platform that one of the guarantees afforded by the Constitution for the fulfilment of - the many business compacts contained in it was embodied in the provision for the appointment of a High Court. It was represented that this tribunal would secure the full performance of the obligations imposed upon the Commonwealth Parliament, and thus safeguard the interests of the less populous States, which might find themselves in a minority in the legislative body. That aspect of the matter was, to my own knowledge, placed before the public in Victoria from the inception to 'the close of - the struggle, and as far as I was able to follow the course of the electoral campaign, it was represented to the citizens of the other States with equal fullness. When the people of Australia accepted the Constitution, they did so, not only with the provision for the High Court writ large across its face, but on the assurance that the guarantee and security afforded by the J Judiciary would be provided for, as well as the Legislature and Executive which they were about to call into being. It would, therefore, be a very grave departure from the Constitution submitted to the people if we either sought to escape or attempted to postpone that fulfilment of our obligation beyond that reasonable time necessary to call the High Court into existence. In the third year of our federal existence we have certainly reached a period at which the third power of the Constitution, the only remaining great power not yet organized and established, should be launched on its career. Under these circumstances I am relieved from the necessity of making that apology which might, under other conditions, be called for in bringing forward a measure involving public expenditure at such a time as this. The Constitution, irrespective of all vicissitudes or events which may follow, contains what are practicallyinstructions to Parliament. The creation of the judicial power was not made conditional, as it might easily have been. No time was mentioned, no conditions were imposed such as abound in other portions of the Constitution. The High Court was regarded as one of the paramount parts of the Constitution, and as one of those which it would be necessary in the very first stages of the Federation to call into existence. Since that is the case, the burden lies upon the opponents of this measure, if they propose to evade the Constitution, to satisfy this House and the country that the mandate, as I read it, in section 71, is capable of being escaped from without a breach of faith, and without a disregard of our obligations. From a practical stand-point it must be admitted, even by those whose knowledge is gained only from the news columns of the daily press, that- Federal issues, to the legal decision of which much importance attaches, are multiplying. Under these circumstances we have to ask ourselves how long it is right or reasonable that these issues should be dealt with by purely local courts, and how long it is desirable that the Federal Constitution should be interpreted by the local courts. The law, as it is interpreted by the State Courts, requires to be acted upon in their territory. Should any question be. pressed further to a Court of Appeal, decisions from that quarter cannot be ignored. At the same time we are faced with the very serious responsibility of allowing questions relating to the construction of the Constitution, in regard to some of its most important principles, to be prepared for that oversea tribunal upon arguments perhaps of a relatively casual .and incomplete character in some State court. Under these circumstances can we afford to rely upon these Courts supported by an oversea appeal ? But before dealing with that aspect of the question, I should have called attention to the few alterations which have been effected in the measure before us. The provisions contained in clauses 20 and 24 have been transferred from a later portion of the Bill, and now appear a little earlier than they did previously. Upon examining the Practice and Procedure Bill, honorable members will find that it is proposed to add to this Bill four of the clauses which it was intended to embody in that measure. They will also notice that clauses 17, 40, and 41, whilst remaining the same in substance, have, been recast. Clauses 40 and 41 - perhaps the two most important in the measure - have been recast in the Bill, whilst clause 17 has been redrafted in the sheet of amendments which has been circulated. Honorable members will further observe that clauses 12 and 13 are new. additions to procedure. Clauses 56 and 57 are also new, whilst the last portion of clause 36 from line 30 to the bottom of the page has been added. The sheet of amendments shows that in clause 7 we propose to omit the last three lines referring to the avoidance of the office of Justice of the High Court, as this method of discharging the office does not appear to be consistent with a reading of the Constitution. Another amendment is proposed to clause 44, under which an order for removal can be obtained as a matter of right. With this short list, I think I have directed the attention of honorable members to every alteration that has been ma'de in the Bill that is more than verbal in character. In this connexion I have to express my indebtedness to the Chief Justice of Queensland Sir Samuel Griffith, the honorable and learned member for Indi, and the honorable and learned member for Darling Downs, who have been good enough to call attention to questions of phraseology and of power, and some of whose suggestions have been embodied in these amendments. This little list should have been introduced earlier. I interposed it while submitting to the House that the proper discharge of our obligations under the Constitution required the immediate establishment of this court. If honorable members will look at the Constitution, or recall it, they will notice how much this view is supported by the very nature of the chapter relating to the Judiciary. It has not been left to Parliament, as it was in Canada, to establish some court after its own mind and according to its own will. The main lines upon which this tribunal is to be erected are contained in the Constitution itself. Parliament is allowed to fix the time of its initiation, and to exercise certain options which are left .to it under the Constitution, but speaking broadly the High Court, as it is intended to be, is already all but created. Its powers and its nature are strictly defined. If honorable members will look at the Constitution they will see that section 71, in addition to containing the direction that the judicial power shall be vested in the High Court, adds that there shall not be less than three Judges appointed for that Court - two, besides the Chief Justice. If they examine section 72 they will find it provided that these Justices shall be appointed by the Governor-General, that they shall not be removed except under certain conditions, and that they shall receive such remuneration as Parliament ma,v fix, without reduction during their, continuance in office. It will also be noticed that under section 73 the Court is to have jurisdiction as a Court of Appeal over the whole range of jurisdiction covered by the States Courts, and that the hands of Parliament are tied so that no exception or regulation prescribed by it shall prevent the High Court from hearing and determining appeals from the States Supreme Courts in any matters, in which an appeal lies from those courts to the Privy Council at the time of the passing of the Constitution. In the next section it is provided that no appeal shall be permitted from the High Court upon constitutional questions arising between the Commonwealth and the States. Special reason has to be advanced to permit of such appeals being taken to the Judicial Committee of the Privy Council, and a special leave of appeal is required in order that any other questions may be taken on appeal from the High Court to the mother country. The following section provides that, in all the matters enumerated therein, the High Court shall have original jurisdiction. Under Section SO it will be found that the trial on indictment of offences against , any law of the Commonwealth shall be by jury, so that the same form of words - peremptory and mandatory - runs through the whole of this chapter. Parliamentis directed both as to the character of the original jurisdiction, and the appellate powers of this court. The options which are left are important, but they are only- such as enable the bold design of the court - for it is much more than an outline - to be completely filled up. I have already directed attention to the first option that is left to Parliament. There must be three Judges, but there may be more. The next option is to be found in the fact that while the Judges must have a fixed remuneration, Parliament has to determine what that remuneration shall be. Under section 73 the High Court may make exceptions and regulations as to the hearing of appeals from the States Courts generally, and in section 74 there is an option that Parliament may make laws limiting the matters in which leave to appeal to the Judicial Committee of the Privy Council may be asked - a very important option indeed.


Mr Henry Willis - Is that provided for in this Bill ?


Mr DEAKIN - We are not taking advantage of that power in this measure. The next option is contained in section 75, which confers the original jurisdiction which must belong to the High Court. Under section 76 a further jurisdiction may attach to it, and this Bill proposes that the whole of that jurisdiction- shall attach to it. Section 77 contains three very important options indeed. This Parliament may define the jurisdiction of any Federal Court other than the High Court. It is not proposed to exercise that option, because, for economical reasons, we do not intend to ask authority for the establishment of any Federal Courts other than the High Court. When the proper time comes such tribunals may be created, and under this section their jurisdiction may be defined. Under the next sub-section this Parliament has power to define the matters in connexion with which the jurisdiction of any Federal Court may be exclusive. The third option is that this Parliament has ample opportunity of investing any court of a State with federal jurisdiction. Of that advantage has been taken. This Parliament may authorize suits to be brought against the Commonwealth, or against any State, in respect of matters within the limits of the judicial power. The federal jurisdiction of any court may be exercised by the number of Judges which this Parliament chooses to fix. Advantage is also taken of these. Honorable members, therefore, will see that there remain practically only two options of which it is not proposed to take advantage. It is not proposed under section 73 to restrict - as Parliament may, if it thinks fit - the appeals from the Supreme Courts of the States to the High Court in matters of their ordinary jurisdiction : nor is it proposed to ask the House to curtail the right of appeal which is created from the High Court to the J Judicial Committee of the Privy Council in England. Neither of these appeals is sought to be restricted by this Bill, but practically every other power which the Constitution presents is accepted. Advantage is taken riot only of that part of it which says that jurisdiction shall be vested under these conditions, but also of those portions which provide that the Parliament may exercise the powers conferred upon it by the Constitution. Iri point of fact, nothing has been omitted which could add to the dignity, scope, or influence of the High Court. The whole range covered by the jurisdiction of the States Courts prior to the accomplishment of federation, or at the present time, in matters which are altogether outside of Federal affairs, are made subject to appeal to the High Court, at the discretion, of course, of the litigants. In addition to that, the whole of the federal jurisdiction which this Parliament is authorized to confer upon the High Court is here conferred upon it. Consequently it is, in the amplest sense, all that the Constitution designed that it ought to be or might be - an Australian Court of Appeal for the whole of the courts of the States, and a Federal Court fully exercising the whole of the jurisdiction which the people have placed within its power. How would its creation alter the existing state of .affairs, and what is the prevailing condition of affairs in the -various States in respect of their reliance upon their judicial tribunals? Honorable members do not require to be reminded that each of the six States of the Commonwealth has its own Supreme Court. They do not require to be told that the jurisdiction of those courts extends over the area of each State and no further. They do not need to be informed that each of these courts is at perfect liberty to pursue its own line of interpretation, its own reading of Commonwealth legislation, or of the legislation of its own State, subject only to the fact that from each and all of these six separate and independent courts an appeal lies to the Judicial Committee of the Privy Council in London, whose judgments are binding upon all. But except in regard to matters in which that appeal is taken, the Supreme Courts remain free. Of course, as a matter of fact, they do in practice follow to a very large extent the decisions of the English tribunals, and particularly those of the House of Lords, the final court of appeal for the citzens of the Empire who are resident in Great Britain, but not for her citzens over-sea. And they do so far as the}' choose, follow judgments which have been given in neighbouring States. Here we have six separate and independent tribunals whose recognition of each other's judgments, or of any others except those of the Privy Council, is purely a matter of their own choice. It is a matter in which they are free to exercise their discretion. They are in point of fact absolutely, unfederated at present; and unfederated they must remain - as unfederated as the six States were, or as any of their powers were, before this Constitution came into force - unless in this, as in the political sphere, federation is brought about by the creation, not only of an Australian Parliament and an Australian Executive, but of an Australian Judiciary. As a matter of fact, this condition of affairs has been unsatisfactory enough for the last 30 years, since it led to a proposal for the establishment of an Australian Court of Appeal, which, .even if no federation took place, should undertake to do, in a large measure, for the Australian people themselves what at present the Judicial Committee of the Privy Council is often left to do if it is done at all. As long ago as 1870 a commission in this State reported strongly in favour of the creation of what would then have been called an Intercolonial Court of Appeal. While laying stress on the change which has been brought about by the passing of the Federal Constitution, and all it. implies, it must not be forgotten that long before federation came within the sphere of practical politics, and quite independently of the whole federal movement, looked at simply from the stand-point of the States themselves, and the litigants in those States, it was proposed, and has been generally supported by high authority, that a Court of Appeal should be established, because it was seen that some kind of legal federation was necessary, even if political federation were ignored.


Mr Glynn - That was to be a Court of Appeal from the States Courts.


Mr DEAKIN - There was to be a Court of Appeal from the States Courts, and the proposal made in Victoria was, that it should consist of Judges taken from the different States.


Mr Glynn - As it is in New Zealand now.


Mr DEAKIN - Yes. The Prime Minister reminds me that a conference of the Chief Justices of the States was held in this State some ten or eleven years ago, and that this project was then set aside by the Chief Justices -themselves for reasons which at the moment I do not recall. But at all events the need had been felt, and the proposal had been. made before federation, and therefore those who deal with this question, strong as is the case from the federal standpoint, alone, cannot ignore that fact.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - It was discussed by the Federal Council.


Mr DEAKIN - Yes, but nothing followed. If such a Court were established it would naturally deprive the States Courts of a portion of that independence which they now enjoy, and would make their jurisdiction subject to another tribunal which would be created between them and the Judicial Committee of the Privy Council. In the same way now that federation has taken place, now that' the Federal Constitution has become the supreme law of the land, and contains upon its face a mandate for the creation of a High Court, it becomes peremptorily necessary to undertake a step which previously was one merely of convenience or opportunity. The High Court now proposed to be created is not by any means to exercise a wholly new jurisdiction. A large proportion of its authority will be carved out of the jurisdictions of the States Courts on the one side, and to a smaller extent, from the Privy Council on the other. The High Court which is to be created between the Supreme Courts of the States and the

Privy Council will be debtor to both, and it will relieve both of some of the duties and responsibilities which they now have.


Mr Henry Willis - Will five Judges be able to do all that work?


Mr DEAKIN - I shall consider that aspect of the question in a moment. But what the five Judges or any other number that may be appointed will do will be work of which the Supreme Courts and the Privy Council will be to an extent relieved, and that is an important consideration, as honorable members will see at a later stage. For the present, however, I wish to point out that this does not imply a reflection upon the Supreme Courts as unqualified to deal with the bulk of the tasks which they have been discharging. Some of these courts have been more fortunate than others in having a smaller proportion of their judgments overruled. Some of our Supreme Courts have been remarkably fortunate. Others have not because all State Benches are not upon the same level, nor are the Benches of the same State maintained invariably at the same standard. The fact that it would be possible and profitable to have an Australian Court of Appeal above them does not necessarily imply a reflection upon the States Courts so far as they are States courts. But it offers a very obvious contrast between the kind of tribunal which will be necessary in order to discharge what, so far as they are concerned, may be termed extra territorial duties and the tribunals purely local in character and constitution, if they were called upon to deal with matters outside their own boundaries. Nor do I wish it to be taken as a reflection upon the Privy Council that the desirableness of aHigh Court now being embodied in the Constitution, its creation is being pressed forward. The honorable and learned member for Darling Downs reminded us how much the Judicial Committee of the Privy Council, and particularly Lord Watson, had contributed to the interpretation of the Constitution of Canada. That debt may freely be acknowledged. But it is also to be remembered that the High Court under our Constitution has a different position and a higher authority than the Supreme Court of Canada. The provisions contained in section 74, if no others, place it distinctly above and beyond it, and outside the category in which the great Supreme Court of Canada is placed. Because the

Privy Council is sought to be retained as the sole tribunal of appeal, and because its great services toCanada may be admitted, it does not necessarily follow that the Privy Council, as constituted, is beyond improvement. In the first year of the existence of the Union a conference was held in London, at which the Commonwealth was represented, and admirably represented, by Mr. Justice Hodges, of the Victorian Supreme Court Bench. The conference, by a majority of voices, decided that they would notaskforany present change in the constitution of the Privy Council, and Mr. Justice Hodges, on behalf of Australia, entered a strong but respectful protest. This may serve to indicate some of the matters in respect of which the Privy Council, even as strengthened of recent years, is not an entirely ideal body. Twenty or thirty years ago it was very much less so, but it is not necessary to speak of that time. Mr. Justice Hodges sent in a protest against the present practice of maintaining two courts of final appeal, one for India and the self-governing colonies - the Judicial Committee of the Privy Council - and another for the citizens of Great Britain - the House of Lords - for these reasons -

1.   Because of the danger of inconsistent and conflicting decisions by two tribunals each final, and the uncertain and unsatisfactory state of the law that would result therefrom.

2.   Because there is a feeling that the home tribunal is favoured at the expense of the Indian and colonial one, and because the legislation on this subject to some extent justifies the feeling.

3.   Because, even if legislation left perfect equality, the Lords of Appeal in Ordinary would naturally be more interested in questions arising in the United Kingdom than in those arising abroad, and would decide any doubt as to which court required their presence in favour of the home tribunal.

4.   Because even if there could exist absolute impartiality in this respect, there is likely to be some distrust, and possibly there will be some suspicion that the home tribunal is getting most attendances from the best men.

5.   Because as long as these tribunals remain separate it is difficut, if not impossible, to provide satisfactorily for the appointment of Indian and colonial experts.

6.   Because thePrivy Council is a board, and not a court. I should further add , that as legislation is desired and expected by the majority on this subject, care should be taken that the legislative rights or judicial power of the Commonwealth of Australia are in no way impaired thereby.

What Mr. Justice Hodges was advocating was the substitution of one Imperial Court of Appeal for the two Courts of Appeal which at present exist in the mother country, and for myself I heartily concur with his representations on the subject. But I wish to point out that these considerations not only suggest certain imperfections which necessarily attach to the Privy Council as it now stands, but also indicate certain imperfections which must necessarily attach to any Imperial tribunal when it is established in London, gathering into one all the different kinds of law from all parts of the Empire - the Roman-Dutch law at the Cape, the French-Canadian law of Canada, the Hindoo law, and many other systems. In such circumstances honorable members will realize that frequent appeals, even to a single tribunal in London, will not be sought after ; that English legal authorities do not call for that frequency of appeal. What is sought is to establish a single Court of Appeal for the whole Empire, which shall be moved only in respect of cases suitable for the consideration of such an exalted tribunal. Those, it is unnecessary to say, will in our case be few and far between, since the bulk of the work undertaken by the Privy Council at the present time would be far better transacted in the interests of litigants by an Australian Court of Appeal than it could ever hope to be by any oversea tribunal. The class of cases to which I allude are those which are more particularly based, not upon those general principles of law which are common to us and to the mother country, but those special to the development of Australia on its own lines, and in particular directions. Law is only the reflection of the community from which it springs, and especially is it so in a democratic community. In Australia not only do we live under different conditions of social growth, of national development and of climate, not only have we differences of political conditions, but different problems. The laws which we pass possess an Australian atmosphere, and require to be interpreted with a knowledge of the circumstances under which they are passed and applied.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - The Church lands case of New Zealand, for example.


Mr DEAKIN - It is no reflection upon a great Court like the Judicial Committee of the Privy Council to say that it must necessarily labour at a disadvantage in some respects when compared with competent courts nearer home or on the spot. One of the first considerations which we have to face is that its distance involves delay, and what those delays are I have taken the opportunity of ascertaining. Having taken out all the appeals sent from New South Wales to the Privy Council during the last five years, I have noted the time which has elapsed between the judgment in Sydney and the judgment in London. The shortest - and they are only two - are just under one year; the longest is only two months under four years.


Mr Higgins - Has the honorable learned gentleman ascertained how much of the delay was owing to the inaction of .the apellant?


Mr DEAKIN - No, but I consider that I am relieved from the necessity for that investigation, because I have taken cases for the last five years, and am going to rely on the average.


Mr Higgins - But that does not answer my question.


Mr DEAKIN - Practically not one of these cases has been tried in less than one year ; the longest case has taken all but four years, and the average time taken has been just under one year and nine months.


Mr Glynn - How many cases have been set down for hearing and not proceeded with 1 I think that point was mentioned in the Convention.


Mr DEAKIN - That does not apply. I have taken the cases which have been decided. I have not followed those which have not been pushed to a hearing.


Mr Glynn - Some were not set down at an early date by the litigant.


Mr DEAKIN - As to that I am unable to speak.


Mr Glynn - It was -mentioned in the Convention, but the argument was not conclusive.


Mr DEAKIN - Of course it is not conclusive. The only case we have - I believe part of the delay has been owing to the substitution of another defendant - of which we have any experience as a Commonwealth is the case of Kingston against Gadd. The judgment was given on. the 9th December, 1901 ; an appeal went to the Privy Council, and, as far as I know, , it has not yet been heard. I believe that Mr. Gadd is deceased, and that the company of which he was an officer has been substituted as defendant, and that may be the cause of a very short delay.

Here is a case which left us on the 9th December, 1901, and of which I have heard nothing.


Mr Conroy - Is it still going on ?


Mr DEAKIN - The case is still going on, so far as we know. Take the next difficulty under which a court oversea must always labour, and that arises out of its remoteness. Of this we have a very striking illustration immediately to hand. From the Times of the 29th April, which has just arrived, I find that the Chief Justice of New Zealand had cabled to London, by means of Reuter, a precis of the important pronouncements recently made by himself and his fellow-Judges on the decision of the Privy Council in the case of Wallace against the Solicitor-General of New Zealand. Sir Robert Stout, who was not one of the Judges whose judgment was appealed against, and who, therefore, was quite dispassionate, sums up the case as follows : -

1.   The Council makes the cardinal blunder of assuming that the Maories could dispose of their lands, but Royal charter and instructions of 1846, issued by authority of 9 and 10 Vic, c. 103, as well as 3 N. Z. Statutes, clearly prohibited the disposition of even Maories' occupancy titles.

2.   The Council shows its ignorance of the fact that the title was in the Crown, and that only by a grant could the bishop in question obtain the land, and that the Crown was for the foregoing reasons a donor.

3.   The charge of misconduct made by the Council against our Solicitor-General was made in ignorance of the fact that, by our procedure, the Solicitor-General, being defendant, had a right to show, in any suit to settle a scheme, that the land had reverted to the donor, and was not a bequest of general charity.

4.   The amendment in the pleadings asked by the Solicitor-General, which the Council so severely condemned, was made by the court with the consent of both parties.

5.   The Council rely, in aid of its conclusion, upon a Maori war where a war never existed, and on the absence inEngland of Bishop Selwyn when,in fact, he did not leave New Zealand for nine years after he had given up the trust.

6.   That the colonial court, in this case, is charged with grave misconduct, although this alleged misconduct consists only in its own numerous precedents extending beyond . 1847, and treatedunquestioningly by the courts and legal profession as settled law.

7.   That the court did not, as the Council declares, decline jurisdiction, but determined that the land had reverted to the Crown.

Reuter's report goes on to say -

The Chief Justice then, in proof of the Privy Council's ignorance of our laws, gives a series of blunders they have made, most of them in recent years, in deciding other New Zealand appeals. One case, that of Plimmers, is cited, in which the

Council, in ignorance of a colonial statute of 1854, expressly forbidding the making of a certain class of contract, decided that such a contract could be made.

The report concludes with some general observations. That shows what errors are possible in a court removed by many thousands of miles from the scene of litigation, when the subject-matter, is peculiar to the country in which it arises.


Mr A McLEAN (GIPPSLAND, VICTORIA) - It shows also how imperfectly the barristers did their work.


Mr Glynn - They must have been very badly briefed.


Mr DEAKIN - I can only speak of that which I know. Take the famous New South Wales case, McLeod versus the Attorney-General of New South Wales. That went, on a question relating to bigamy committed abroad, from the Supreme Court to the Privy Council. The Privy Council chose to decide the case, not on any of the points raised before them in argument, but on a question of jurisdiction. They turned up the Criminal Law Amendment Act of New South Wales ; they took the jurisdiction laid down in that Act as being the whole jurisdiction claimed in New South Wales, and gave their judgment accordingly. As a matter of fact, the point had never been taken in Sydney, and, therefore, the question could not have been argued ; but if it had been taken, it would have been known at once that the jurisdiction was claimed under an unrepealed section of a British Act - an Act which had been repealed and re-enacted in Great Britain, but was still held to be in force in New South Wales. Consequently, inlooking only to the local Act and ignoring an Imperial Act, probably because it had been repealed and re-enacted in Great Britain - the Privy Council chose to give judgment on a point never raised before them, and gave it in entire ignorance of the local law, which would otherwise have determined it. I shall not labour these points, because to do so, unduly would make it appear as if I were endeavouring to base my argument on an attack upon the Judicial Committee. I have already said that I have no such intention, but we cannot forget the risks to which all litigants expose themselves when dealing at such a distance with intricate questions of purely local law, or determining any right under purely local law.


Mr A McLEAN (GIPPSLAND, VICTORIA) - Or any other law.


Mr DEAKIN - They must take the same risks that we all take in our business or other pursuits when they enter a court ; but they take a special risk when they allow questions of this sort to be decided over-sea. I admit that a great part of the danger can be removed if each question' is first thoroughly thrashed out before a competent court of high standing in Australia, so that every point which can be discovered on either side is carefully taken, so that all the over-sea body is asked to do is to review data which are not disputed. That is a 'different state of affairs, and to that I do not address myself.


Mr Conroy - The Bill will still allow an appeal from the High Court to the Privy Council.


Mr DEAKIN - Yes. What I am concerned to point out is that, even allowing for the high prestige of the Judicial Committee in certain matters, it is an undesirable tribunal without a preliminary investigation of the case, which requires to be of a broader and more thorough character than, that which has sometimes obtained in all the Supreme Courts of the States. With an Australian Court we should have local judgments sifted more rapidly and more cheaply, a smaller number of cases would go to the Privy Council, and the cases that did. go would be better prepared for inquiry and investigation. Honorable members will recollect that in answer to the interjection just made - that, we do not propose to abolish the appeal to the Privy Council - I have already called attention to the last part of section 74 of the Constitution, under which -

The Parliament may make laws limiting the matters in which such leave may be asked.

When the High Court is established ; when it has felt its feet, so to speak, in its new jurisdiction; when we are fully informed as to the character and class of cases that come before it, to what extent it, of itself, by the inducements it holds out to suitors, is able to attract appeals which would otherwise go to the Privy Council; then weshall know not only the extent, but the manner in which it .is desirable to exercise the power intrusted to the Parliament under that section. How far it will be desirable for vis to limit appeals from .the High Court to the Privy Council has to be determined. The power of limitation rests in our hands. It is not sought to be exercised at this stage, because it is felt that there should be some practical experience of the working of the court about to be established, and some better idea of the standing it will- acquire before we take advantage of it. That is a power of which no doubt Parliament will take advantage hereafter. It is to be remembered also that- the power as of right to appeal to the Privy Council has gone under the Constitution. The only appeal that remains is the appeal by special leave - what is sometimes termed the appeal as of grace.


Mr Higgins - Does the honorable and learned gentleman say the appeal has gone 1


Mr DEAKIN - The appeal as of right from the High Court. I am speaking only of the. High Court. The appeal as of right has gone, but the appeal as of grace remains. This appeal is what remains in Canada ; and, in regard to Canada, the Privy Council itself has already declined to be made the channel for every suit which Canadian litigants wish to send to it. I do not wish to take up the time of honorable members by labouring this point, but the legal community know the cases which are quoted in Wheeler's Confederation of Canada. Honorable members will find there cases in which the Privy Council, without being moved from Canada has sought to restrict the area within which it will grant special leave, to appeal. There is not the least doubt that the same principle will apply with an even greater force in regard to appeals from the High Court of Australia. Even before the establishment of the High Court, we have this guarantee that the Privy Council itself, so far from lending itself to the multiplication and encouragement of our appeals, desires to restrict them. If the High Court of Australia be a body of the standing and reputation which this Bill supposes, that tendency on the part of the Privy Council will be strengthened more and more. The consequence is that, what between our legal power of restriction - by legislation - and the restriction which the

Privy Council itself imposes, crowded as it is with business from all parts of the Empire, we have every reason to believe that within a very few years a High Court of Australia established on this scale would be practically the final court of appeal in ninety-nine out of every hundred cases arising in Australia, and that a great number of those cases which are now taken to the Privy Council will stop short in Australia. As I have said, the High Court is partly built up by the jurisdiction which it will acquire from the Privy Council. There are first of all the appeals on constitutional questions which cannot go to the Privy Council without the consent of the High Court. Theconsentof three Judges is required. Then there is the special leave to which litigants are limited ; and then there are a large numof cases which will prove to be too precarious when they have been examined by the High Court to justify litigants in going to the large expense of further appeal. These cases, coupled with the power of restriction which we possess, should make this High Court the final court of appeal for Australia within a few years, and should secure to it sure cases except important issues involving points of general law in which it may be desirable to have a Privy Council decision. The Supreme Courts of the States are the other judicial bodies which are asked to part with a portion of their jurisdiction under the Constitution. By the creation of the High Court - under clause 41 of the Bill - which gives the courts of the States federal jurisdiction - but only as courts of first instance - they part, first of all, with some of their appellate jurisdiction. They may also part with power in suits between residents of different States, such as those relating to matters of admiralty or maritime jurisdiction ; suits which are brought under the Constitution for its interpretation ; or suits which depend upon the interpretation of federal law. If honorable members look at clause 40 of the Bill they will see the matters in which the Federal Courts will have exclusive jurisdiction. They are matters relating to States arising under any treaties ; matters affecting consuls in their representative capacity ; matters between States and Commonwealth, or of State against Commonwealth, or in which officers of the Commonwealth are concerned.


Mr Conroy - " Suits against the Commonwealth," that is very sweeping.


Mr DEAKIN - If the honorable and learned member turns to the previous Bill, he will see that this provision has been curtailed, buthe must not ask me to discuss details at this stage. With regard to the whole of this original jurisdiction, it is to be remembered that if litigants so desire, they may pass by the Supreme Courts of the States altogether, and begin their suits before the High Court. They are enabled to do this by clauses 40 and 41 of this Bill. Under these provisions they may commence their cases in a Federal Court without touching the Supreme Courts of the States at all. The States Supreme Courts may now lose the jurisdiction they have exercised over appeals from a single Judge. These appeals may be taken direct to the High Court. The jurisdiction which the States courts part with will be taken up by the High Court of Australia, in addition to that jurisdiction which it possesses under the Constitution. We have power to take over matters relating to bankruptcy and insolvency, and also divorce and matrimonial causes. As honorable members know those are branches of the law in which our courts are kept pretty busily occupied ; and their transfer to the High Court would mean another large body of business taken from the Supreme Courts and attached to the High Court. The new business of the High Court is extremely important. But it is this existing business to which I desire to first of all call attention ; because there cannot be the least doubt that, if this High Court possesses the strength which we desire it to possess, it will by the attraction of its reputation and standing more and more divert business from the Supreme Courts of the States, particularly from any State in which the Bench of Judges at the time may notbe thought to be equal in standing and ability to a Bench such as the Federation will supply.


Mr Conroy - I should think that the High Court will attract the greater part of the cases.


Mr DEAKIN - The greater part. We come to the question of economy, that is an aspect which I ask the House to consider. If we look at section 73 of the Constitution, we find that the High Court is to be a body capable of hearing appeals from the Inter-State Commission on questions of law. It needs verylittle reflection on the part of honorable members to realize how difficult it would be either to send questions of law, such as would arise from the Inter-State Commission, either to the Supreme Court of any one State - and probably more States than one would be interested in such a decision - or to the interpretation which the Judicial Committee of the Privy Council would give upon questions requiring the

Australian stand-point and knowledge of the peculiar physical, climatic, and other conditions of Australia. What alternative is suggested to the creation of this High Court? If honorable members look at the exclusive jurisdiction mentioned, and at the other appellate work from the States, it will be clear to them that a High Court of the standing which our Constitution contemplates, is a body in which there would be entire confidence throughout the Commonwealth, and to which both people and States would turn with complete satisfaction in the knowledge that they would receive justice from it - which they would receive, from other courts - impartial treatment, which would also be meted out to them by other courts ; but that they would receive that justice from a body of high standing, far removed from all possibility of suspicion. The probabilities are that there would be no hesitation in submitting to it the most important issues that could arise. I ask again - What is the alternative? One suggestion is that we should be content with things as they are - that we should take the existing courts, with their varying decisions, and be satisfied, in case of any doubt, to abide by the ultimate decision, of the Privy Council.


Mr Higgins - That is for the first few years, until the proper organization of the High Court.


Mr DEAKIN - My honorable and learned friend says we should' abide by 'that state of things for the first few years. I do not know how long a " few years " may be ; but I believe that in the whole of the Convention debates when this question was threshed out, as the honorable and learned member knows, with great thoroughness - because he took a conspicuous part in the discussions - no such proposal was put forth as that we should wait for years until we established the High Court. As far as I know no such suggestion was ever made at the Convention.


Mr Higgins - But the Constitution has been changed since then by Downing-street, and also by the blunder of the draftsman at the final revision.


Mr DEAKIN - If I were to grant all that it would not remove the remarkable fact that at the time when the Commonwealth Bill was under consideration and when all courses for its amendment were open no member of the Convention urged that while these States should be federated in every other respect we should leave our Courts unfederated. And what is suggested even by the most economical or the most unfederal


Sir Edward Braddon - I think some suggestion of the kind was made at the Convention.


Mr DEAKIN - No. The only alternative proposal, was that made by the honorable and learned member for South Australia; Mr. Glynn, who proposed the creation of a High Court, composed of State Judges, with a Federal Chief Justice presiding over it.


Mr Glynn - But I also proposed to abolish the appeal to the Privy Council, and so give the Judges of the High Court something to do.


Mr DEAKIN - There was a proposal for the creation of a kind of High Court which I shall presently consider - a High Court built up out of the State Judiciaries. That was a nominal High Court. But no one proposed that there should not be even the simulacrum shadow or phantom of a High Court.


Mr Higgins - No one thought that you would leave an optional appeal to the Privy Council.


Mr DEAKIN - The Convention consisted of federalists who were desirous of uniting these Australian States and they did not fail to realize that legal unity was one of the most important directions in which federal unity could occur.


Mr Glynn - It was stated that if we did not abolish the appeal to the Privy Council a Federal High Court was unnecessary.


Mr DEAKIN - No one contemplated that we should be asked to rely on our unfederated courts, and that we were to take advantage of State tribunals without any bond of union except that derived from their common subjection to the Privy Council. For us to do, as now recommended would be almost a violation of the Constitution ; it would be an intimation that we did not intend to give effect to its mandate ; and it would be imposing upon the States courts an obligation which might mean a serious loss to litigants, and a grave injury to the Commonwealth.


Sir John Quick - State courts have not complained of federal jurisdiction being imposed upon them.


Mr DEAKIN - The federal jurisdiction will impose upon them a liability to appeal in Federal cases. There are cases in which it seems to me highly improper to impose such duties upon the States Courts, though those courts would, no one doubt, decide them judiciously.


Mr Higgins - They were imposed upon the Canadian courts.


Mr DEAKIN - But the Canadian courts consist of Judges appointed by the Federal Government, not by the States Governments as in Australia. The State Judges of Canada are under the High Court of the Dominion. The Canadian legal system differs from ours.


Mr Conroy - What is the position of the courts in Germany ?


Mr DEAKIN - I should be led too far afield, if I were to contrast the conditions of things in Germany. The proposal here is that for the time being, until we get the decision of the Privy Council, we should continue under these different sets of courts each with its territorial obligations and limits, though no decision of any one of them being binding outside the State in which it was given. My honorable and learned friend the member for Northern Melbourne interjected a little earlier this evening that the Supreme Courts of the States pay regard to each other's judgments.


Sir Edward Braddon - Is not that in the Constitution 1


Mr DEAKIN - No. They do pay regard to each other's judgments, that is perfectly true, but in what position does this place us ? We are subject to the possibility that the first court to deal with an important question might be the weakest or one of the weakest in Australia. That court gives a lead to all the rest, and they will be extremely unwilling to disturb the judgment arrived at. In answer to the interjection of the honorable and learned member for Bendigo that the Supreme Courts have not complained, I am reminded that the honorable and learned member is in error. I think that the Supreme Court of New South Wales has complained on two different occasions that a High Court has not been constituted to relieve them of the responsibilities cast upon them.


Sir John Quick - They have not complained of the work.


Mr DEAKIN - They have complained that no High Court exists.


Mr Glynn - They have complained that they have not been invested with Federal jurisdiction.


Sir John Quick - That is the point. They have complained that no jurisdiction has been conferred upon any of them."


Mr Higgins - And we could give them that jurisdiction.


Mr DEAKIN - I should be very sorry to do so. That is the very thing to avoid. I say that the jurisdiction given them under this Bill is ample. That is their jurisdiction as courts of first instance, dealing with matters in their first stage. That involves a Federal appellate jurisdiction, and I venture to say the Federation will not be complete unless the Bill gives it. I was speaking of the difficulty of having six different courts, and my learned friends cannot but admit that if an important point is first raised before the weakest court in the Commonwealth, any decision given by that court may be followed by the other courts, or else we shall have varying decisions.


Mr Higgins - The other courts will simply look at the decision carefully before they decide to reverse it.


Mr DEAKIN - Exactly. I venture to think they would look at it carefully before they refused to follow it. But what will follow if they do decide to reverse it? We may have four, five, or even six different interpretations of the same section of the Constitution.


Mr Higgins - We have the same thing with regard to commercial matters now. We have six different courts and no great inconvenience.


Mr DEAKIN - We have six different courts and a very great deal of inconvenience. Why was a Federal Court of Appeal proposed, quite independently of federation, if not because of the difficulty arising from varying decisions in the different States Courts ? Besides, in the matter of commercial and mercantile law we have in the Privy Council one of the highest tribunals in the world. Its members have been dealing almost daily with questions of mercantile law, and have given decisions of great value, of light and leading. In dealing with a question arising under our Constitution, we might, until a decision of the Privy Council is registered upon it, be at the mercy of any one of six States Courts. My esteemed friend the honorable member for Gippsland, in his powerful speech the other night, was good enough to refer sarcastically to myself as having thrown a halo over Hades. That I take it would be a great strain upon my capacity; but to throw a halo over six Hades at once is certainly beyond my capacity.


Mr Batchelor - The difference is between six and seven. There will still be six.


Mr DEAKIN - I gather from the interjections of honorable members that in their judgment there are no cases in which the Supreme Courts of the States could not deal with the issues submitted to them as well as could a High Court. Let us take the matters which we propose for that very reason, under clause 40 of this Bill, to make exclusively federal, and ask whether the States Courts could, deal with these questions in any manner that could be comparable to that in which they could be dealt with by a Federal High Court, no matter how excellent the States Supreme Courts may be. First of all there are matters arising under any treaty. They arise very rarely, but there is one of them above the horizon already. It has arisen in regard to the Vondel case.


Sir John Quick - There has been no litigation about that.


Mr DEAKIN - There has been no litigation about that yet, but it has been threatened. I wish to ask the honorable and learned member whether he thinks that such litigation should be brought before the the State Court of South Australia? The Government of South Australia advance the doctrine that the only executive power vested in the Commonwealth Government is to administer the laws passed by this Parliament. Although we claim an endowment of executive power under this Constitution, direct from the King himself through the Governor-General, it is suggested that we have no authority whatever, except as a committee to enforce laws passed by this Parliament. Are we to be deprived of that executive power, which every State possesses direct from the Sovereign, and every Governmentin Australia possesses? Are we to be a helpless Executive, incapable of any action until there has been legislation upon the subject? Is a question of that sort to be decided by any State Court in Australia, or even by he Privy Council, until it has been threshed out before an Australian Federal Court capable of weighing the issues.


Mr Glynn - Does the honorable and learned gentleman think that theVondel case is a judicial question at all ?


Mr DEAKIN - I know that the State Government of South Australia expressed an intention to make it a judicial question.


Mr Glynn - But does the honorable and learned gentleman think it is a judicial question?


Mr DEAKIN - That is a different question. I do not think it can be settled in that way, but the South Australian Government believe it can be so settled, and pay them the compliment of referring to the case as an illustration.


Mr Glynn - Good men as they are they cannot settle everything.


Mr DEAKIN - Next we have cases affecting consuls in their representative capacity. I shall not trouble about them, as few cases are likely to occur. But take the next matter of cases between States. It may be said that these have not occurred. They have not occurred yet, because they were not provided for. But they are provided for in our Constitution and in this measure. Where are these cases to be tried? There is the possibility of a difference of opinion between the Victorian and Tasmanian Governments with regard to a certain revenue.


Mr Higgins - Could not one of the other State Supreme Courts decide that?


Mr DEAKIN - I agree with the honorable and learned member that we could not ask either a Victorian or a Tasmanian court to decide such a question, while we could ask a Federal Court.


Mr Higgins - I should ask either a Victorian or a Tasmanian court. I have not the least doubt that either would do justice iu the matter.


Mr DEAKIN - I have not the least doubt that either court would intend to do justice. But I do say that it would be an entirely improper matter to submit to a State Court, and that it is One which ought to be recognised as improper for decision by a State Court. Otherwise why should not a Judge sit in his own cause? What foundation principle is there more sacred than that which says that no Judge shall sit in his own cause.


Mr Higgins - Our Judges in this State are as much Australians as Victorians.


Mr DEAKIN - I believe they are, but it does notfollow that with their territorial jurisdiction and limited experience in these matters they are the proper parties before whom to bring a neighbouring State. Whether we are dealing with the profession or not, and, in fact, even leaving the profession aside, I take it that the majority of the people would feel that that was not a proper question to submit to either of those tribunals.


Mr Conroy - The case would go on to the Privy Council if that were done.


Mr DEAKIN - Exactly, it would go on to the Privy Council.


Mr A McLEAN (GIPPSLAND, VICTORIA) - Where is the honorable gentleman going to get men of more extended experience?


Mr DEAKIN - We propose, under this Bill, to select the best men from the benches and bars of the States and to put them in a position to do impartial justice to all Australia.


Mr A McLEAN (GIPPSLAND, VICTORIA) - The Bill will not make different men of them.


Mr DEAKIN - No, it will not make different men of them, but it will put them in a higher position. Amongst the different State benches there are some distinctly weaker than others, and there are some members of every State Bench distinctly weaker than other Judges upon the same bench. The object of this Bill is to get five of the strongest men picked, from all the benches and the bar, so to make up the strongest court Australia has ever seen. No such court exists to-day in Australia as could be created from all the benches of Australia.


Mr A McLEAN (GIPPSLAND, VICTORIA) - It will after all be only a matter of the opinion of those who select them.


Mr DEAKIN - But sentiment moves the world, and opinion moves the world.


Sir John Quick - There are very few disputes between the States.


Mr DEAKIN - I am very glad to know that, but there are some already on the carpet, and others are foreshadowed.


Mr Fowler - Western Australia may have a big case against South Australia over the rail way shortly.


Mr DEAKIN - I shall not deal with that, but refer honorable members to. a question in connexion with which litigation is threatened between some of the States, and that is as to the disposal of the waters of the River Murray. The three States of South Australia,Victoria, and New South Wales are concerned.


Mr Conroy - We could not appoint a court in any one of those States to decide that case.


Mr DEAKIN - The question of the disposal of the Murray waters would not be a proper one to submit to a tribunal in any one of those States.


Mr Tudor - The Chief Justices of the remaining three States could perhaps settle it.


Mr DEAKIN - I shall deal with that proposal later on, but that is not a High Court.


Mr Conroy - What about actions by the States against the Commonwealth?


Mr DEAKIN - If honorable members have any doubt upon this question, I hope they will take the opportunity of reading as they may in the library what Story in his famous work upon the American Constitution has to say in regard to cases between States. The passages are too numerous and too lengthy to read, but I shall take one or two of them.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - They are written after 100 years' experience.


Mr DEAKIN - Yes, they are written in the light of experience. In Volume 2, page 492, dealing with controversies between citizens of different States, Story says -

Although the necessity of this power may not stand upon grounds quite as strong as some of the preceding, and I have been dealing with some of the preceding here, there are high motives of State policy and public justice by which it can be clearly vindicated. There are many cases in which such a power may be indispensable, or in the highest degree expedient, to carry into effect some of the privileges and immunities conferred, and some of the prohibitions upon States expressly declared in the Constitution. For example: It is declared that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. Suppose an attempt is made to evade or withhold these privileges and immunities, would it not be right to allow the party aggrieved an opportunity of claiming them, in a contest with a citizen of the State, before a tribunal at once national and impartial ?

An Honorable Member. - In some of the States the Judges are elected.


Mr DEAKIN - In some of them. In different States there are differentpractices. Story goes on to say -

These cases are not purely imaginary. They have actually occurred, and may again occur, under peculiar circumstances in the course of State legislation.

Our Constitution contains prohibitions upon the States themselves. It contains also immunities of citizens which may require to be enforced upon the States, and are these questions to be tried before States Courts 1 Are such courts proper tribunals for the trial of such cases ?


Mr O'Malley - In many of the courts of America the Judges hold office at the will of the Legislatures of the States.


Mr DEAKIN - Story goes on to point that out, but to my mind the objection applies equally, whether the States Judges are elected or appointed.


Mr A McLEAN (GIPPSLAND, VICTORIA) - Cannot the honorable and learned gentleman trust them 1


Mr DEAKIN - I say that the request is an improper one to make to them. The honorable member seems to forget that the Federal Court will represent the whole of the States.


Mr A McLEAN (GIPPSLAND, VICTORIA) - They are the same people.


Mr DEAKIN - Of course they are the same people, but this is the essence of the matter : That instead of having a tribunal, which, in the public opinion, will be exercising its jurisdiction under a possible bias, we shall create a national and impartial tribunal, national and impartial in every man's eyes. Little thinking that there would be so much discussion upon this particular point, which is taking much more of my time than I anticipated, I consulted Story's book on the- subject to-day, and could refer honorable members to a dozen passages in which, taking those very particulars which we propose for exclusive Federal- jurisdiction, lie gives the strongest reasons, gained by experience in the United States, for the necessity of having them dealt' with by a national' and impartial court. Every court is impartial, but a Federal High Court would be national and impartial by the very circumstances of its creation. If we take the next class of cases, those of the Commonwealth against a State, we shall see that if we are to remain subject to the jurisdiction of the States Courts, whatever protection we have gained under section 74 against the determination of constitutional questions by any other than an Australian tribunal goes by the board at once. The only power we were able to gain over appeals to the Judicial Committee was this. The British Parliament has carefully exempted all questions as to the constitutional powers between the Commonwealth and the States or between the States themselves. It has given to the High Court the power to pronounce an absolutely final decision upon all these questions, and that itself limits the matters which can be taken to the Judicial Committee.


Mr Glynn - Is not the honorable and learned member making too large a statement ? Is not the matter only a question of constitutionality between the States 1


Mr DEAKIN - I used the words "constitutional powers." T was referring to their limits inter se. From the federal point of view those are the most important and vital questions of all, and they are already occurring. We have in our Constitution the right to finally decide such cases ourselves by a national tribunal, and unless that tribunal is created, section 74 will become a dead-letter. It might as well not have been passed. The great effort made to secure it will have been made in vain. If I am told that we may go forward in a few years, my reply is that in a few years many of these cases will have been decided, and decided against us, in defiance of the Constitution. Take the very important judgment which has-been given in the Supreme Court of New South Wales, that the Commonwealth has no power to collect 1 duties upon goods imported by any State. Will honorable members say that a most important and vital matter is not affected by that judgment, quite apart from the amount of revenue involved ? At present the loss of revenue is immaterial, because the money collected goes to the States in any case, but in the future it will be of importance.


Mr McCay - The Tariff, as originally proposed, decided the question straightaway in favour of the States, because the Government put State imports under the head of special exemptions.


Mr DEAKIN - Our original intention was to make the special exemption applying to State importations of temporary effect. But it came to be seen that to do so would be to create a dangerous precedent, and the proposal was withdrawn. For the first five years, and possibly for a longer period, duties upon State importations could have practically no effect upon their revenue, and it therefore at first seemed to -us a safe and courteous thing to provide that the Governments of the States should be allowed to import goods free of duty. But when the seriousness of the precedentwhich would be set was observed, the Government, on their own initiative, withdrew the proposal. That is one case in which theCommonwealth and the States are at issue, and upon which it will be of the highest value to have the verdict of an impartial national tribunal.


Mr Higgins - The question is whether the High Court will be more impartial than the Privy Council.


Mr DEAKIN - I believe that the High Court will be as impartial as the Privy Council.


Mr Higgins - Will it be more so ?


Mr DEAKIN - All these courts are impartial. A justice of the peace is impartial to the extent of his ability and conscience.


Sir Edward Braddon - Is not the honorable and learned member questioning the impartiality of the States Courts?


Mr DEAKIN - No ; but Iquestion the public faith in their impartiality when they come to decide questions arising between the Commonwealth and the States, or between the States. Take the difference which has arisen in Western Australia in regard to the interpretation of its Tariff, and which is about to be decided by the courts there. If any case should be decided by a federal tribunal, that is one. Then take the case which occurred in New South Wales, and to meet which we passed Act No. 21 of 1902, temporarily endowing the States Courts with federal jurisdiction. We passed that Act with great reluctance, to meet a temporary emergency, and we have no particularreason to be satisfied with the result. The Act, perhaps, created a bridge necessary to carry us over, but the case to provide for which it was passed is now the subject of an appeal. As it is sub judice, I shall not speak of it further.


Mr Conroy - Unless the States Courts are given jurisdiction, claims against the Commonwealth for an amount of only £5 will have to be prosecuted in the High Court.


Mr DEAKIN - Yes. But when the honorable and learned member learns how the High Court is to work, he will have no alarm. Take the latest case which has occurred in Sydney, that of Goldring, which I do not propose to allude to at length, because, if it is not sub judice now, it will probably be so. It comes under the last heading to which I referred, being one of those cases in which an officer of the Commonwealth is being sued. In that case the State court held that it had no jurisdiction to issue a mandamus against a federal officer. I am of opinion that in cases of that kind the proper tribunal is Federal. I have now given honorable members two or three instances of recent disputes under each head of the proposed exclusive jurisdiction of the High Court. The cases I have cited will, I think, commend themselves as those which can be dealt with more satisfactorily by a Federal High Court than by tribunals of the States. Some honorable members have indicated that they will not look with favorable eyes upon any proposal to allow or to encourage the interpretation of the Constitution by the courts. They would rather see Parliament left to provide for amendments from time to time when necessary. But such a position ignores the fact that a precise and reliable interpretation, which means a judicial interpretation, is necessary before Parliament can tell what amendment is needed. Before we can rely absolutely on our reading of the Constitution it must have been submitted to the courts. Little satisfaction would be gained by asking Parliament to amend the Constitution if we could be told by those who held a different view that the amendment was not necessary, because, by a proper interpretation, the power that was sought would be seen to be already there. What we need before endeavouring to obtain an amendment is a final interpretation. Such an interpretation would come, as a rule, under section 74, defining the constitutional powers of the Commonwealth and the States respectively, or of the States in relation to each other, and should be obtained from an Australian tribunal whose decision would be absolutely final.


Mr Thomson - What about the cost ?


Mr DEAKIN - I am coming to the question of cost, but first it was necessary to explain what the jurisdiction of the High Court willbe. I have endeavoured to sho w how much will be taken from the Supreme Courts of the States and from the Privy Council. I have indicated the provisions which are more or less 'new, and have called attention to certain classes of cases which, while dealt with by a Federal Judiciary with particular appropriateness, would be inappropriately dealt with by the State courts. I have alluded to the importance, from the Parliamentary stand-point, of obtaining interpretations of the Constitution which will be consistent. If we rely, upon the courts of the six States, it may happen that one part of the Constitution will be questioned in one State, another part in in a second State, another part in a third State, and so we shall have' perhaps six interpretations by courts whose experience in dealing with federal issues will depend upon the number of such issues arising within the States in which they have jurisdiction. There will not be such a body of federal business in each State as will suffice to give to its courts that breadth of experience and knowledge which must come to a body of men, the greater part of whose time will be taken up in dealing with federal issues arising in all the States. Each State will pour into the Federal Court its flood of problems, and thus the Judges of that Court will become practised in dealing with federal questions, and will be able to deal with them consistently. Let federal issues come from what State they may, and impinge upon what provision of the Constitution they may, they must all come to the High Court, whose J Judges will be able to lay down lines of consistent interpretation which will establish an authoritative decision upon its dubious passages. For that purpose alone the creation of a High Court is largely justified. If we wish to see all their scattered strings drawn together and twisted into a rope of interpretation which will stand any strain, it must be done by able men whose energies are specially devoted to that end. I come now very close to the question of cost. Honorable members who have done me the honour to follow me so far will have no doubt but that the High Court will have an extensive jurisdiction, which will be taken largely from that of the Supreme Courts of the States. It will relieve them of work which they are now doing, and of some of the work which they did before federation was established.


Mr Higgins - That is very questionable.


Sir Langdon Bonython - Will the result be economy in the administration of the States courts '(


Mr DEAKIN - I think so.


Sir Langdon Bonython - How?


Mr DEAKIN - In the same way as economies have been effected in other departments affected by the Constitution.


Mr A McLEAN (GIPPSLAND, VICTORIA) - The economy effected by the proposed arrangement will be just about the same as the economy which has been effected in other directions !


Mr DEAKIN --- When the jurisdiction which has been conferred upon the State courts is transferred to the High Court, the Governments of the States will, to the extent which they think necessary, make curtailments and retrenchments.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - They should do so now, but they do not.


Sir Edward Braddon - The Judges cannot be retrenched.


Mr DEAKIN - Within the last few days Victoria has lost one' of the members of her Supreme Court Bench, and the Government of this State has announced that it is not intended to fill the vacancy. In every State there are Judges of advanced years who will shortly have to .retire. There is therefore an opportunity to retrench, not by removing Judges, but by taking advantage of the termination of the services of those who retire.


Sir Edward Braddon - These retirements are often long deferred.


Mr DEAKIN - In one of the States two-thirds of the Bench are expected to retire within the next twelve months or two years. Honorable members keep too constantly before their eyes the circumstances of the State from which they come. If they cast their eyes over the whole Commonwealth they will see abundant opportunities - if the increase of population or the return of prosperity does not bring- more work to the Supreme Courts of the States - for a liberal reduction in the expenditure upon those courts.


Sir Langdon Bonython - Does the Minister suppose that in the case to which he kas just referred there will not be three Judges in the future ?


Mr DEAKIN - I presume that there will always be three, but I do not know that the State concerned may not take advantage of the example set by the Parliament of Victoria a few years ago in passing a measure altering the remuneration of future Judges because of the changed circumstances of the State, and the work which the courts were attracting. I have to deal with this subject gently and delicately, because it is a matter which affects the responsibilities of other representative bodies. It is not for me to dictate to them what they should do. They will do what they think right; but it is for me to indicate the opportunities that will be open to them if the}' choose to take them when work that is now being done by their Supreme Courts is transferred to the High Court. If the whole of the Federal business which will undoubtedly be of great volume before very long, has to be performed by the States Courts, the States judiciaries will have to be enlarged, and the increase in the cost of legal administration in all the States may easily be so great that it will exceed the amount required for the High Court. I am reminded that the people of Australia will have to pay in either case. That is perfectly true, but the argument cuts both ways. The people will act wisely if they pay to the Federal Judges the money which they would otherwise have to pay to extra State Judges. I know that the same people pay the money in either case.


Mr Kennedy - But we do not want them to pay twice over.


Mr DEAKIN - No. But when it is seen that the Federal High Court is the proper body, and that its work should be done only through federal channels, the way will be left open for those who are charged with the local administration of justice to make savings if they choose. The people of Australia are now insisting upon economy in all affairs of State, and properly so, too.


Mr A McLEAN (GIPPSLAND, VICTORIA) - I venture to say that nineteen out of every twenty of the citizens of the Commonwealth would declare themselves against the creation of the High Court on the ground of economy.


Mr DEAKIN - I am confident that the)' would not do any such thing. In the first place, provision for the creation of the High Court was deliberately placed in the Constitution, and in some of the States that provision was used as an important argument in favour of entering the federal compact. I have very little doubt that many persons were induced to cast their votes in favour of adopting the Federal Constitution, because of the reliance they felt in the national tribunal which it was proposed to appoint to deal with national questions. I believe, further, that if they were now appealed to upon the subject they would regard the proposal to appoint the High Court as wise and judicious from an economical standpoint. Here let me say a few words as to the cost of the High Court. Honorable members, in directing their criticism to the expense involved, have taken the figures which I gave last year without paying regard to the explanation which accompanied them. I shall now quote for the first time from the remarks which I made last year as to the estimated cost of the High Court. After going into considerable detail I said -

Honorable members will notice that we put down only the sum of £6,000 per year to provide for all its officers, say £7,000, including the salary of the Crown Solicitor.

I allowed £1,000 for the salary of the Crown Solicitor, but I advertised for applicants for the position at a salary of £800, and hope to receive the nominations of the Public Service Commissioner in the course of a day or two. I went on to say :-

That, added to the .-£15,000 paid as salaries to the Judges, after allowing for their travelling expenses, associates, &c, will bring the amount up to £30,000 as a maximum.

Every gentleman who has done me the honour to quote my remarks, has left out the words " as a maximum."


Mr A McLEAN (GIPPSLAND, VICTORIA) - We have known one maximum of £300,000 to be increased to £700,000.


Mr DEAKIN - As Rudyard Kipling says - " That is another story." What I am pointing out is that my estimate of £30,000 was given as a maximum. I do not expect that for the first few years the cost of the High Court will nearly approach that figure, but as the result of some experience make a point, when using figures, of stating the case against myself. I named a sum that would be ample for several years, but have already pointed out that while £30,000 provides for a comparatively full equipment in every way, the actual proposal of the Government is to take advantage of State officials and local judicial administrations, to utilize the State buildings, and to avail of ' existing legal machinery in every possible way. As a consequence, for the first two or three years at all events, the cost of the High Court will not much exceed £20,000.


Mr A McLEAN (GIPPSLAND, VICTORIA) - It is a pity the Government do not propose to use the existing Judges as well.


Mr DEAKIN -I will give reasons for not following that course. I have referred to the estimate which you, Mr. Speaker, laid before the Federal Convention at Adelaide, which was the subject of many con- flicts during the federal campaign. There the sum set down for the cost of the High Court, excluding the Bankruptcy and Patents administration, for which another £12,000 is provided, is £23,715.


Mr A McLEAN (GIPPSLAND, VICTORIA) - That was for three Judges, and now it is proposed to appoint five.


Mr DEAKIN - I beg the honorable member's pardon. That estimate was for a minimum of three Judges.


Mr Conroy - A Bill could be drawn in such a way that the expenses of the proposed High Court would not exceed that sum. The Bill which is now before us does not meet that requirement.


Mr DEAKIN - I am now confident that we shall not exceed the sum named in the estimate given by Mr. Speaker. If we have five Judges instead of three, so much more economical we are now in providing for their necessities. After having carefully considered the whole of the surroundings, I can see my way to assure honorable members that I do not anticipate that the expenses of the High Court will exceed £23,715. Having said so much I would ask honorable members what they suppose is the amount spent upon the administration of justice in the six States of the Commonwealth. It totals £1,750,000 per annum, taking into account all branches of that administration.


Mr A McLEAN (GIPPSLAND, VICTORIA) - That is surely enough to spend. Why add the expense of a High Court'?


Mr DEAKIN - But when I am told that a proposal which involves £20,000 a year is the height of extravagance, by what standard am I to measure it - by the cost for the whole of Australia or by the cost for a single State ? Even little Tasmania, which spends the least of all the States upon the administration of justice, devotes to that purpose a sum little less than that which it is proposed to spend upon the judiciary of the Commonwealth. Reducing the amount which I have mentioned for the whole of Australia by £1,000,000, the amount spent upon the police, there is £750,000 left.From that I deduct the cost of maintaining the gaols, which brings the amount down to £446,000 per annum. After also deducting the cost of the minor courts, I find that the Supreme Courts of Australia cost £186,000 per annum. Now when a proposal to spend £23,000 upon the Federal Judiciary is denounced as gross extravagance, I want to know whether the combined States standard of £186,000 is kept in view.


Mr A McLEAN (GIPPSLAND, VICTORIA) - The proposed Federal expenditure would be an addition to that enormous cost.


Mr DEAKIN - It will not. £186,000 is now spent upon the existing Supreme Courts, and the total cost of the Federal Judiciary will not exceed £23,000 per annum, the greater portion of which sum could certainly be saved by reducing the expenditure upon the States courts.


Mr O'Malley - What is the cost of the Victorian Supreme Court ?


Mr DEAKIN - The expenditure upon the Supreme Courts of the States is as follows : - Victoria, £43,000 per annum ; New South Wales, £79,000 ; Queensland, £27,000; Western Australia, £19,000; South Australia, £10,000 ; and Tasmania, £8,000 . Included in the Tasmanian expenditure, to which I referred some little time before, is the cost of the minor courts and the gaols, the total being £21,000, as against the proposed expenditure of £23000 upon the Federal Judiciary.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The Minister said that the effect of establishing the High Court would be to relieve the Supreme Courts of half their work.


Mr DEAKIN - I did not say any such thing. I did not say that the Supreme Courts would be relieved of a half or a quarter or any other proportion of their work.


Sir Edward Braddon - The AttorneyGeneral's statement with regard to Tasmania includes the cost of the gaols, and that does not afford a fair comparison.







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