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Thursday, 11 June 1903


Mr SPEAKER - I have no hesitation in ruling that the reading of this letter by the Attorney-General as part of his reply is perfectly in accordance with the standing orders.


Mr DEAKIN - I might have expressed the honorable and learned member's views in my own words, butI thought it better to adhere to his own. His letter continues -

I think the House should be told before the Bill goes to a vote, and I should be glad if you would do it in your reply, that it is my opinion a court of law would, in accordance with established practice and precedent, struggle and strive if reasonably possible to uphold the validity of any Act of Parliament, and would strain so to construe section 71 as to enable Parliament if that construction be at all possible to confer jurisdiction on the State Courts even though no High Court be established. Of course the Courts in deciding the question would be confronted with the seriousconsideration presented by the manifest intention of the clause as above indicated, and with the principles enunciated in Martin v. Hunter quoted by me last evening. But still the canons of construction adopted by both English and American tribunals would tend to give every fair chance to uphold the investiture of State Courts even though no High Court be organised, on the ground that the exercise of Judicial power may be severed and distributed subject to the express limitation of the Constitution.

This result would be, I repeat, quite opposed to what was intended, and we as a Parliament ought to feel bound by the intention and to act on it. But the House must understandmy view as a lawyer also, that if the Parliament refuses to act on it, the disposition of the Courts in the first instance will be to uphold the validity of the Act if they can, and to follow the view taken by Parliament, though they may feel eventually coerced by the intention to hold otherwise.

The honorable and learned member found himself very seriously misconstrued upon this point, andhe thought it onlyjust tohonorable members who might have been affected by his arguments that he should state exactly the limitation by which he found himself bound - the limitation which the Prime Minister, who was quite unaware of this letter, expressed to-day in almost identical terms. I regret the absence of the honorable member for Gippsland, whose attention I wish to call to a financial comparison instituted by him that cannot be sustained. He pointed out that the estimate of the cost of the Common weal th officially supplied before the referendum, and criticized from nearly every platform during the Federal campaign, fixed that cost at a maximum of £300,000. He then proceeded to quote on the other side as evidence that the estimate had' been already exceeded, the loss which he stated would result from the action of Parliament in granting a rebate of £2 per ton upon white-grown sugar. The honorable member in adding this amount to the cost of the Commonwealth, quite ignored the fact that the £300,000 estimate, as its details show, related simply to the cost of the machinery of the Constitution, and to nothing else. It in no way pretended to foreshadow the probable cost of any policy that Parliament might choose to follow in regard to black labour or white labour, the transcontinental railway, public works, old-age pensions, or the hundred-and-one other enterprises in which this Parliament might engage.


Mr Wilkinson - That estimate of the cost of federation was made before Queensland had consented to join.


Mr DEAKIN - Yes, the £300,000. Items such as I have indicated cannot be taken into account in any comparison of the actual with the estimated cost of the Commonwealth, because the estimate was made with regard to the cost of working the Commonwealth, and had no reference to any matter arising out of possible policies pursued by Parliament. If the comparison adopted by the honorable member is to be employed, the revenue which has been derived by the Commonwealth and the savings it has effected must also be taken into account,' and we shall be at once launched upon an unending sea of financial controversy. I would, therefore, suggest to the honorable member that the comparison which he instituted was' one which, on further consideration, he will not attempt to sustain. The honorable member for Capricornia, whose apt and humorous criticisms we were pleased to hear, has directed my attention to section 67 of the Constitution, but he has unfortunately overlooked section 64, which prescribes that Ministers of State shall be also members of the Federal Executive Council. There are only seven Queen's Ministers of State for the Commonwealth. The other two gentlemen who have so generously and handsomely lent their valued assistance to the Government, are Federal Executive Councillors - to whose number there is no limit - but they are not the Queen's Ministers of State for the Commonwealth ; so that there has been no breach of the section to which the honorable member has been good enough to call attention. He also wishes to know where any indication has been given that the High Court is required. I may inform the honorable member that, beginning in Queensland, he will find it expressed in the chief metropolitan organ of that State, also in the greatest provincial newspaper in Queensland, namely, the Toowoomba Chronicle, a recent issue of which contains the very best analysis of this measure I have seen published. Both the leading Sydney newspapers, and many newspapers published in the country districts of New South Wales, support the Bill, and, in Tasmania, the Launceston Daily Telegraph recently published the keenest critical article upon the Bill that I have read. In South Australia, an attitude generally favorable to the Court has been taken up by the daily paper which has the greatest circulation in that State, and the same applies to Western Australia. In fact, everywhere except in Victoria, the High Court has found staunch advocates.


Mr Crouch - The Geelong Advertiser favours the Bill.


Mr DEAKIN - That, in itself, should be regarded as conclusive evidence as to the necessity for passing the measure. The only thing required to clinch it is the support of the Ballarat Courier. There is one error which I wish to correct. The President of the Victorian Reform League, Mr. Palmer, is reported in one of the newspapers to have quoted me as having spoken of the J udges of the States Courts as being " tainted with local prejudice." I felt sure that I did not use any such words, and after having undergone the pain and suffering "of reading through the official report of my speech, X find that no such words occur. No intention was further from my thoughts than to pass such an imputation upon the Judges. I made' none directly or indirectly. What I did point out was that cases in which the interests of the States were directly involved could not be properly remitted to such Courts. One of the closest and most able attacks upon the Bill proceeded from the honorable and learned member for Bendigo', who is also a vigilant student of contemporary legal proceedings. I am the more surprised, therefore, to find that the list of cases which he presented to the House as representing the amount of litigation in which the Commonwealth was engaged, or in which Federal legislation was directly affected, before the Supreme Courts of the States was by no means complete. That list contains 22 cases. Even if it were complete, it would tell a tale in favour of the view which I have advocated, rather than of that for which the honorable and learned member is contending. According to him, in the first year there were four cases, in the second, ten, and in the four or five months of the present year there have been eight. It is undeniable, therefore, that Federal litigation is being rapidly multiplied But in addition to the 22 cases which, have been mentioned, I have been able, since the honorable and learned member gave the House the benefit of his list, to add 24 more, all of which have come before the States Supreme Courts, four in Chambers, and the remainder before the Full Court or a Supreme Court in some form or other. Of these I find that four occurred in the first year, ten in the second, and the balance in the portion of this year which has. already expired. There are other cases of which I know, not included in this list.


Sir John Quick - How many Full Court cases are there 1


Mr DEAKIN - I see there was a case that came before the Full Court of Tasmania, which my honorable and learned friend has not mentioned, and another which came before the Full Court in Queensland. What do thesefigures show taken together ? That there were six cases in 1901, twenty in 1902, and that there have been eighteen in the four months of the present year. Yet honorable members criticise this Bill on the assumption that only twenty cases have been tried since the inception of the Commonwealth. I would further point out that there have been scores of cases heard in the minor Courts, and in addition to these a number of others now in progress, but which have not yet reached the Full Courts. I could compile a much longer list if I chose, but merely mention these facts to combat the statement that cases arising out of Federal legislation do not exist in a great number. I hold that they do exist in a great number, and are multiplying with rapidity. I have but one comment to odd, and that I owe to a leading member of the Victorian Bar. This gentleman has pointed out to me that honorable members appear to overlook the important results certain to be realized in the fulfilment of the Federal movement so far as it makes towards unity by the operation of an Australian Court of Appeal. At the present time there is a great divergence amongst the laws passed by the several States, and the greatest ignorance prevails on the part of the people of one State regarding the form and character of the legislation enacted by neighbouring States upon important matters. If these laws are challenged in any respect before a local tribunal, the case arouses no more than local interest, and no news of it passes beyond the borders of the State in which it is tried. Consequently the public never hear of it. On the other hand, if appeals be taken from the Supreme Courts to the Privy Council, what echoes from the proceedings of that body find their way to this country ? Only professional men note the result and apply it in their own particular States. An Australian tribunal would assist the education of the people in regard to the operation of the laws under which they live, when studied in the light of the contrasts which exist in the various States. When an Australian tribunal is created, and all such matters are considered within the sight and hearing of the people, the divergences at present existing will be brought under notice, and many of them will disappear. A Federal Court would contribute in no inconsiderable measure to Australian unity of State law, and this would prove in the future an invaluable factor in securing uniformity of legal interpretation within the bounds of the Commonwealth.







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