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Wednesday, 10 June 1903


Mr CONROY (Werriwa) - The hour is rather late for me to commence my address, and perhaps it would be a convenient time to adjourn.


Mr DEAKIN (BALLAARAT, VICTORIA) (Attorney-General) -The honorable and learned member should allow the second reading to be carried. He will not lose his right to speak. Practically the first clause refers to the power to appoint five Judges, and raises the whole question again.


Mr CONROY - I think I should speak on the second-reading stage.


Mr SPEAKER - The honorable and learned member must either proceed with his speech or resume his seat.


Mr CONROY -I was asking for the adjournment of the House, and I think time would be saved by consenting to my request.


Mr Deakin - Some honorable members have come back to-night in order to vote on the second reading.


Mr CONROY - It would be a considerable advantage to the Government if ray request for an adjournment were allowed.


Mr SPEAKER - Order. This procedure is quite disorderly. The honorable and learned member must either proceed with his speech or some other step must be taken.


Mr CONROY - I think, that in a matter of this kind, it is unnecessary that the debate should be closed with any undue haste. In similar circumstances an adjournment has been granted to many other honorable members, but that privilege is denied to me. We are asked to give power under this Bill to establish a High Court, and we have" the statement of the honorable and learned member for Indi on the one side, that that court is the natural corollary of the Constitution. I am one of those who assert that, at the present time at all events, it is not necessary for us to establish a High Court, and, if it were, the manner in which it is proposed under this Bill to establish it is open to serious criticism. I think that we are undertaking an unnecessary expense in proceeding in the way proposed. If a Bill had been brought in to establish a court of three Judges, with appellate jurisdiction, one might have been disposed to listen to the arguments advanced in favour of the proposal. If the immediate establishment of the High Court is absolutely required by the Constitution, and that were clearly proved, no doubt honorable members would accept the situation, and, regardless of the present financial position of the States, would say - " We must establish this court because the Constitution requires us to do so." But the position is very different. We have been told that the provision in our Constitution is similar to that in the Constitution of the United States, and the honorable and learned member for Indi very clearly and forcibly laid before the House his reasons for that assertion. But it seemed to me that he entirely overlooked an essential difference between the two Constitutions. Although he quoted the opinion of Mr. Justice Story, he did not quote the statement of that excellent Judge in which are given the reasons why it was absolutely necessary to establish a Federal Supreme Court in America. Mr. Justice Story points out that Congress could not vest any portion of the judicial power of the United States in any courts but those ordained and established by itself. We are in a very different position because we have power, not only to constitute a Federal High Court, and such other Federal Courts as we may think fit, but to invest State courts with Federal jurisdiction. As a proof of that statement I need only refer to clause 71 of the Bill, under which certain powers are given to the States courts. Mr. Justice Story points out that if in any of the cases enumerated in the Constitution, the States courts did not possess jurisdiction, the appellate jurisdiction of the Supreme Court could not reach them, and consequently the injunction of the Constitution that the judicial power should be vested would be disobeyed. There, again, is a marked difference between the position of the two countries. Here we have an absolute appellate jurisdiction over all the States courts, and can invest any one of them with Federal jurisdiction. The attitude of the honorable and learned member for Iudi" in regard to this matter was not that of a legally trained mind trying to consider it judicially, since, while he quoted one part of Mr. Justice Story's opinion, he did not quote another part which told against his argument. Mr. Justice Story goes on to show that Congress was bound to establish inferior courts in which to vest jurisdiction which, under the Constitution, was exclusively vested in the United States, and of which the Supreme Courts of the States could not take cognisance. It is true that the Government are quite within their rights in proposing to establish a Federal. High Court consisting of five Judges. Section 71 of the Constitution says that the High Court shall consist of a Chief Justice and not less than two other Justices, so that they could propose the appointment of as many other Judges, in addition to the Chief Justice, as they might think fit. One of the objections I have to the Bill is that the number of Judges it is sought to appoint cannot be sufficient for both appellate and original jurisdiction. If it were proposed merely to set up an appellate court, no doubt five Judges would be sufficient ; indeed, I should have been prepared to reduce the number to three. That would ' have brought about a saving of £6,000 per annum in the first instance, and a further saving of the salaries of two associates. We know that every Judge must travel around, not only with his associate, but with his tipstaff, and that there will be attendants with all the officials. Therefore, it will be incumbent upon us to limit the number to the lowest that will be consistent with the requirements of justice. Unless the Government can clearly show that the larger number of Judges is necessary in the case of appellate jurisdiction, we can take the opportunity of expressing our disapproval when the clause is before us. Then the honorable and learned member for Indi did not think we could appoint Judges from the Supreme Courts of the States to be Justices of the High Court - that they would not be qualified to sit. I do not know under what section of the Constitution he attempted to fortify himself in making that assertion, because he did not mention it. But the idea of the framers of this Bill was very different from that. We find in clauses 4 and 7 of the Bill that the qualifications of the Judges of the High Court are to be as follows : - Either a Judge of the Supreme Court of a State or a practising barrister or solicitor of a State Supreme Court of not less than five years' standing. The Government recognise in clause 4 that a Judge of the High Court could be appointed from the Supreme Court of a State. But when we come to clause 7 we find them stating that a Justice of the High Court shall not be capable of accepting or holding any other office or place of profit within the Commonwealth except such as may be granted to him under the King's sign-manual. If that clause is to be carried out in its entirety, what does it mean 1 In clause 4 the Government recognise that any Judge of a Supreme Court may be appointed a Justice of tho High Court, and therefore the contention of the honorable and learned member for Indi was not recognised by the AttorneyGeneral in the framing of this Bill. If a Justice of the High Court is not capable of holding any other place of profit within the Commonwealth, it would prevent any appointment whatever being made to the High Court of any Judge of a Supreme Court, even temporarily. I do not think that the words following - "except such as is granted to him under the King's signmanual," would get over the difficulty, because the Judges of the various Supreme Courts are not appointed in that way. Under section 72 of the Constitution it is provided that J ustices of the High Court, and of other courts established by the Federal Parliament -

Shall not be removed, except by the GovernorGeneral in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

When we remember that the Judges are to be appointed in that way, and that they are so irremovable, I trust that we have heard the last on behalf of the Ministry of the contention that we are to place upon the High Court Bench a body of men who will amplify or extend the law. Because, if the assertions of the Attorney-General meant anything at all, they meant that in construing the law which they were called upon to interpret the Judges would absolutely make law. There can have been no other meaning, when it was asserted that the Judges appointed would be more in accord with the Federal spirit than State Judges - that is to say that the Government would appoint only such men in the first place as would amplify the law. I consider that what we want is not a body of Judges who are willing to do that, because it is not their place. We are here to legislate, it is the function of the Executive to carry out the legislation, and it is for the Judiciary to construe the law only. The Attorney-General says that these Judges are to be a body of men whom we are to reverence and esteem. A nice thing indeed if we are to be called upon to appoint such a high body of men to make the law say what it really does not mean ! A pretty thing if we are to have a tribunal of that sort! The Government have a fine idea of the duty of Judges, if they consider that it is their duty to amplify the law and to stretch it. No other meaning can be assigned to the statement of the Attorney-General except that the Judges are to expand the law to suit the Federal authorities. What about the State authorities ? Where do they come in?

Have they no rights? In many respects their rights are entirely sovereign. Yet we are to have a court constituted which, in the opinion of the Attorney-General in charge of this Bill - and consequently in the opinion of the Cabinet itself, which will have the making of these appointments - will act in such a Federal spirit that they will be able, perhaps, to take away from the States rights which they at present enjoy. Can any man look at that position with calmness ? Is that the way in which we are called upon to legislate? Is that the reason why the Federal Parliament was called into being ? Nothing of the sort. I say distinctly that the mere statement on behalf of the Ministry that there would be found in this Commonwealth a body of men who would be likely to act in such a fashion, is in itself sufficient to show that there will not be that wise and just discretion exercised in choosing the occupants of these high positions, should this Bill pass, that we should like to see.


Sir Edward Braddon - I ask the Attorney-General to allow the debate tobe adjourned until to-morrow, with a view to allowing the honorable and learned member for Werriwa tocontinue his speech.We have reached a late hour, and honorable members desire to catch their trains.


Mr Deakin - This being only the second night of the debate on an important Bill, I should have felt it a matter of course to grant the request preferred by the right honorable member for Tasmania, Sir Edward Braddon. But the honorable and learned member for Werriwa is perfectly well aware that, under the impression that there was tobe no further speaking before the vote was taken, an impression arrived at in consultation with that honorable member, a number of honorable members have been detained or brought back to the House. If there had been shown any indication of a desire to prolong the debate to-morrow, so reasonable a request could not have been refused for one instant. It is unfortunate that a number of honorable members have been greatly inconvenienced by this request, at the last moment, for an adjournment ; but now that the request has been made by the acting leader of the Opposition, as well as by the honorable and learned member for Werriwa, I have no objection.


Mr SPEAKER - I wish to point out that interpositions to debate, such as those just made by the right honorable member for Tasmania, Sir Edward Braddon, and the Attorney-General, are not provided for in any way by the standing orders. I perceive it is the desire of the House that if possible the sitting should not be prolonged, and so I did not prohibit the remarks ; but it must be understood that no interpositions of the kind can be permitted under the standing orders except by leave.

Debate (on motion by Mr. Conroy) adjourned.







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