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Wednesday, 10 June 1903


Mr CROUCH (Corio) - I did not intend to speak during the second reading debate on this Bill, but I have arranged to pair with another honorable member, and as my name will not appear in the division list, if it comes on to-night, I feel that I should very clearly express the reasons which actuate me in supporting the Government. I sincerely trust that they will cany the second reading of the Bill. I shall support this measure for the reason that I believe that the sooner the Privy Council, as a court exercising authority over Australian Courts - as a final court of appeal for the Australian States - is abolished, the better it will be for the Commonwealth.I very much regret that during the negotiations, prior to theacceptance of the Constitution by the British Parliament with Mr. Chamberlain, amendments were made in the Constitution which, while perhaps assisting the passage of the measure through the Imperial. Parliament, were certainly contrary to the wishes of those who brought the Bill through the Convention, and of those who sent the delegates to England to facilitate its passage into law.


Sir Edmund Barton - We had a very hard fight to obtain what we did.


Mr CROUCH - I am certain that the Prime Minister and those associated with him fought very hard, and I very much regret that their efforts in the direction of making the Australian Court the final court of appeal were not entirely successful. Any one who studies the recent history of the Privy Council will see that there is need for the creation of a High Court. Residents of the United Kingdom have a right of appeal to the House of Lords ; but only those who reside outside the United Kingdom, except in regard to ecclesiastical matters, have to appeal to the King in Council. As a consequence, the Privy Council is inferior in authority to the House of Lords, and its decisions are quoted and regarded in that light in our own courts. This also largely arises from the inferior status of Privy Council Judges.


Mr Conroy - But the Bill does not take away the right of appeal to the Privy Council.


Mr CROUCH - I object to the right of appeal to the Privy Council, and to that right of appeal remaining in full force, as it undoubtedly will, unless we create the Australian High Court.


Mr Conroy - But we cannot take away that right of appeal.


Mr CROUCH - I am aware that to a very limited extent we are compelled to allow an appeal to the Crown ; but our Parliament can regulate and almost entirely abolish that right, and if we have a half-way house, and particularly if that half-wayhouse comprises the best legal ability obtainable in the States, it is far more likely that the decisions obtained in that Court will satisfy litigants, and that they will have no desire to go to the Privy Council.


Mr Conroy -Why should they go to a half-way Court when they can go direct to the ultimate Court of Appeal?


Mr CROUCH - I believe that most of those who go to the Privy Council are dissatisfied with the Supreme Courts of the States, but that they would accept the decision of a Supreme Court consisting of Judges coming from States other than those in which their cases were originally determined. I think that the creation of an Australian court would largely help to do away with the necessity for the Privy Council, just as in consequence of the creation of the Federal Court in Canada the number of appeals from that State was largely reduced. I think it is to be regretted that when the Privy Council made an attack, and a very insulting attack upon the Supreme Court of New Zealand, tins Parliament did not show its sympathy for the institution of a sister colony by reprobating the language used by the home tribunal. I protest against the use of language of that kind towards any of the Supreme Courts of the States by Judges who do not appreciate Australian legal ability, and do not understand Australian legislation or local conditions. In the New Zealand case, the language used was so outrageous that it was necessary for the Chief Justicce of that State to protest against it. Cases have also occurred in which the Privy Council has used objectionable language in reference to the Victorian courts. The sooner the High Court is established the sooner we shall have the complement of the Australian Constitution. The necessity, for an Australian Appellate Court has been brought home very vividly to one of my own constituents by the recent decision of the Supreme Court of New South Wales, that the imports of a State government are not liable to pay duty. Shortly before the decision was given the gentleman in question placed an order in England for some £50,000 or £60,000 worth of machinery which is protected under the Tariff, but as the result of that judgment the order has been cancelled until it is known what the Government propose to do in regard to it. If the Government finds it necessary to appeal to the Privy Council, it has no means, such as would exist in the Australian court, of bringing its case on promptly for hearing in cases of urgency affecting many business arrangements.


Mr Conroy - Why should not the Government have provided for simply an Appellate Court 1


Mr CROUCH - The High Court which will be Created under this Bill will enable the Government, or any other litigant, to appeal immediately from the State Court to the Federal tribunal, and to have its case speedily determined. The honorable and learned member for Northern Melbourne urged that because we have the Privy Council, and because the Court proposed in this Bill will not be a final court of appeal, we should not have a High Court. He might have .said, with equal force, that as the Parliament of the United Kingdom has, unfortunately, the final control of our legislation, we should not have any Australian Parliament. As it is, the legislation of the Australian Parliament can be over-ridden by an Imperial Act, and the honorable and learned member for Northern Melbourne, together with others who argue that because the High Court is to be only a half-way house to the Privy Council it should not be created, might just as well take up the position that we should not have a Federal legislative body because we have some 10,000 miles away one which could do all the legislation necessary for us. I desire Australia to be self - contained in every direction. When the Privy Council ceases to work, the Australian High Court will be complete, and will bo able immediately to take over the work of hearing all judicial appeals. I think that the real question relates to the Commonwealth itself. The honorable member for Gippsland has spoken against the proposed High Court, while the honorable member for Laanecoorie asserts that there are many of the public who do not favour its creation. In this matter, however, I think that those outside Parliament are the last of whom we should think.


Mr A McLEAN (GIPPSLAND, VICTORIA) - They are the people who ha ve to pay.


Mr CROUCH - Certainly, they have to pay, but they and the press are considering this matter purely as a question of ' economy ; and there are times when public opinion is really the last thing which should be considered by honorable members. "" That is more especially the case when public opinion is being misled by the press, and when the people themselves have not had time to really study the question at issue. I venture to say that of the thousands with whom the honorable member for Laanecoorie professes to have discussed this matter, not 10 out of every 100 have read the Bill nor the speech delivered by the AttorneyGeneral in moving its second reading. We are here as the leaders of the community. We are chosen as its most intelligent representatives, and in a matter of this sort should have regard to our own opinions, and if we think it is best for the Commonwealth "that a certain course should be followed we should stand up against public opinion - we should do what is best for the Australian nation.


Mr Conroy - Or the best thing for the lawyers.


Mr CROUCH - If the honorable and learned member insinuates that this Bill will be a good thing for the lawyers I think he would insinuate anything.


Mr Wilks - Is it not a good thing for the lawyers ?


Mr Deakin - No.


Mr CROUCH - I come now to the question of economy. It is not by any means certain that members of the Supreme Courts of the States will not be chosen to fill positions on the High Court. They certainly could be chosen, although I think it would be far better to have the position filled by politicians. A lawyer, who is also a politician, knows the constitutional points which are likely to come before this court. I had the pleasure of hearing the AttorneyGeneral arguing before the .Full Court in Victoria a few days ago, and I was glad to see that he succeeded in winning his case. But he had the greatest difficulty in making the Judges grasp certain constitutional points, from the fact that they had had no political experience. The only member of the Victorian Supreme Court Bench who has had political experience is the Chief Justice, and when we remember the questions which will be argued before the High Court and the constitutional matters with which they will have to deal, we must recognise that next to being a good lawyer it is essential that a gentleman chosen to act as a High Court Judge should have had parliamentary experience. The only other point I desire to touch upon is that of the salaries to be paid. It appears to me that the salaries proposed in the Bill are too high, and that they are really on the scale of the Victorian Supreme Court. We should not take the State expenditures as a precedent, but should economize on them.

There is a popular impression that a Judge suffers considerable monetary loss in leaving the bar for the Bench. On this point I should like to make the following quotation from the Memoir of the late Chief Justice Higinbotham, written by his son-in-law, Professor Morris : -

The profession of barrister was not by any means so lucrative to Mr. Higinbotham as to others in a leading position. It has often been said that he made a patriotic sacrifice in taking a judgeship. As a matter of fact it was no sacrifice at all. The salary of a Judge of the Supreme Court is £3,000 a year ; and only in one year had his practice at the bar brought in as much.


Mr Conroy - He mixed himself up too much in political matters.


Mr CROUCH - For some years Chief Justice Higinbotham did not figure in politics.


Mr Conroy - He lost a great deal owing to his association with political matters. -


Mr CROUCH - For a considerable time he was not mixed up in politics. He was a leading barrister when he left the bar for the Bench, and yet his Memoir shows that his elevation to the Bench involved no monetary loss to him. I think this Bill will be of great value to every citizen, and I trust the House will accept it.







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