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Thursday, 11 June 1903


Mr KENNEDY (Moira) - After the very able and eloquent addresses which have been delivered upon this question, I do not propose to deal with it at length. There are, however, one or two phases which appeal to me, and impel me to publicly avow my attitude towards this Bill. It has been insinuated by the Prime Minister that those Victorian representatives who oppose the measure take their views from the morning newspapers.


Mr Deakin - The Prime Minister said they might mistake the morning newspapers for public opinion.


Mr KENNEDY - The insinuation was there all the same, and on that account I propose to say a few words upon the attitude which I take up. The Prime Minister commenced his speech this afternoon by declaring that he had formulated four propositions which he intended to establish. The first of these had reference to the mandate embodied in the Constitution for the creation of the High Court forthwith. To the second and third propositions I do not propose to refer. To me the fourth proposition seemed to be the most essential. But after getting into the clouds for a considerable time, where I could not follow him, the right honorable gentleman, in dealing with that proposition, got down to solid earth- again without assigning the slightest reason for the creation of the proposed tribunal at the present time. He simply appealed to the sentiments and aspirations of the Australian people. I am not going to say that the national life of Australia is not influenced to a very appreciable extent by sentiment. The right honorable gentleman told us also that the Constitution had the imprimatur of the people of Australia as a whole - that their representatives in the Convention had framed it, and that the electors had subsequently adopted it. I ventured to remark, by way of interjection, that it was not the whole of the principles embodied in. the Constitution which induced the people of Australia to accept it, but rather its good qualities. In Victoria, I know that considerable difference of opinion arose regarding the respective merits of the provisions of the Commonwealth Bill. It was during my advocacy of the acceptance of that Bill that my attention was directed particularly to the clauses under which it is now proposed to constitute the High Court. I might refer to the different conditions that existed when those machinery clauses were inserted as compared with the conditions which obtain to-day. My attention was particularly directed to the matter last night when the honorable and learned member for Illawarra quoted from the reports of the Convention debates certain remarks made by the honorable and learned member for Northern Melbourne with the view of showing that his opposition to the Bill was inconsistent with the attitude taken up by him at the Adelaide Convention. I pointed out at the time that the position was altogether different. What was the position then 1 The Convention Bill, as drafted at Adelaide, made provision for a Commonwealth Judiciary that would have satisfied the aspirations and ambitions of the people of Australia. Under those provisions it would have been possible to create an Australian Court of Appeal to determine all Australian matters without encroaching upon the prerogative of the Crown to deal with questions of an international character. At the Adelaide Convention, power was taken for the High Court to deal, not only with appeals involving constitutional or Inter-State questions, but with all appeals from the Supreme Courts of the States, and the honorable and learned member for Northern Melbourne was speaking of the Constitution as it then stood, when he then supported the creation of the High Court. In the draft of the Constitution agreed to at the Adelaide Convention, it was provided, under clause 74, that -

No appeal shall be allowed to the Queen in Council from a-ny Court of an3' State, or from the High Court, or any other Federal Court except that the Queen ma3' in any matter in which the public interests of the Commonwealth, or of any State, or of an3' other part of Her Dominions, ave concerned, grant leave to appeal to the Queen in Council from the High Court.

We are told by the Prime Minister that it was the Imperial Parliament that whittled clown that provision. Nothing of the sort. The Convention, in the first instance, whittled away the whole of the rights of appeal to the High Court in respect of all matters coming within the purview of the States Courts, and decided that they should remain as they were. That fact is clearly shown in the memorandum that was submitted by the delegates sent to England to confer with the Imperial authorities when the Constitution Bill was before the British Parliament. In that memorandum it is set forth that the Constitution, as submitted to Imperial Parliament, provided that -

No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State unless the public interest of some part of Her Majesty's Dominions otherwise than the Commonwealth or a State are involved.

Except as provided in this section this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of HerRoyal prerogative to grant special leave to appeal from the High Court to Her Majesty in Council.

Then the memorandum set forth that -

It does not abolish appeals to the Queen in Council with respect to State Courts, and as there is no enactment elsewhere that appeals from them are to cease, the prerogative remains, and the appellant may take his case either to the High Court or to the Privy Council. But when, and only when, he goes to the High Court in one of the limited class of cases set forth in the first part of clause 74, he must abide by the decision of that Court.

That proves beyond a shadow of doubt that the anxiety which existed for the creation of the High Court according to the Adelaide draft of the Convention Bill - to which the members had given their adherence, had entirely disappeared. The position was entirely different when the Constitution Bill was submitted to the Imperial Parliament. When it was ratified by the Imperial Parliament the powers of the prospective High Court were still further whittled away, and further powers of appeal to the Privy Council were given. We are told that the desire f or thecreation of this Court wasuppermost in the minds of the people when they accepted the Constitution. I admit that it was then the wish of the great majority of the people of Australia that we should have a High Court, provided that the conditions to which the Adelaide Convention had given its support remained. But they do not remain, and therefore the necessity for the creation of the High Court does not now exist to the same extent as before. That view was very much in evidence when I, in common with others, was urging the people of Victoria to accept the Constitution as it then stood, and it was also a prominent one during the first Federal election campaign. I found then that the electors were anxious to know whether it was desirable under the conditions then prevailing to create a High Court. What have we been told by the Prime Minister as to the necessity of establishing this tribunal? We have been told that it may be that the reputation which the Court will make for itself by its learned judgments will attract business to it. But is there any necessity to create a High Court in order that it may make a reputation for itself? The necessity exists only if there is work for the Court to do. Those who have spoken during this debate have not questioned the ability of the States Courts to deal with the matters submitted to them. There can be no bias on the part of those tribunals, and as a matter of fact the few Federal matters with which our States Courts have dealt bear no evidence of any such bias. I quite agree that it is practically impossible for us to requisition the services of the Chief Justices of the several States, and to place them in the position of being the Judges of the High Court.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - That proposition has never been made.


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It has been suggested.


Mr KENNEDY - I do not think that it has been seriously suggested during this debate. We have a power to create a High Court and other Federal Courts, but I hold that we shall satisfy our presentrequirements by exercising the right to invest the superior States Courts which now exist with Federal jurisdiction ; we have the harmonizing power of the Privy Council to reconcile any conflicting judgments which may arise. That is the view I take of the situation, and I am very much surprised that the Prime Minister did not submit to the House some evidence of what is said to be the absolute necessity for the immediate creation of this Court. Those who oppose this measure may be accused of looking at the matter from a mercenary point of view ; but I contend that we should at least regard it from a practical" stand-point. Even the AttorneyGeneral urged that the High Court was proposed to be established from motives of economy, but we know that this miniature Court of Appeal, as we may term it, will not meet the necessities of the situation. If the provisions for a Judiciary which were first laid down in the Constitution Bill still remained, I should not hesitate to support to the full the creation of the Court as proposed in this measure. But I am dealing with the situation as it exists, and I do not therefore feel justified in supporting it. I feel that our States Courts, with the Privy Council as a Court of Appeal, will be able to deal with all matters which are likely to arise for a very considerable time. I have heard honorable members say in this House - just as I have heard the statement made in other Legislatures - that they will support the second reading of a certain Bill, and attempt to mould it according to their views in Committee. I have had some experience of what is possible in that direction, and I consider it desirable for one to take the first opportunity of fighting against a principle to which he is opposed, rather than to run any risk of the combinations or many little influences which may subsequently be at work. It is that "experience which will impel me to vote against the second reading of this Bill.







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