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Wednesday, 17 June 1903


Mr A McLEAN (GIPPSLAND, VICTORIA) - Like the honorable and learned member for Bendigo, I did all I could to prevent the second reading of this Bill, and having, -failed in that, the next best thing is to make the measure as little oppressive as we possibly can on the taxpayers of the Commonwealth. If we are to look for any consistency in public life, I think we are entitled to claim the votes of the AttorneyGeneral and the honorable and learned member for Indi in confining the jurisdiction of this Court to appellate work. During the second reading of- the Bill those honorable and learned gentlemen spoke in very forcible and eloquent terms, and almost persuaded us - in fact I think they did persuade some honorable members - that they were bound in conscience to obey the Constitution. Their interpretation of the Constitution was that they should create this Court?, not when, it was absolutely required, but on the earliest possible occasion on which we were afforded an opportunity of voting on the question. I am sorry to observe from the subsequent speeches of those honorable and learned gentlemen that their conscience must have been considerably seared and cauterized, because last night it certainly appeared to me that they wanted to depart from the letter of the Constitution, and from the manifest intention of those who framed it. The Attorney-General knows that the Constitution states specifically that the number of Judges shall not be less than three, and he Kas told us that the High Court is the very keystone of the Constitution. Surely it is reasonable to assume that the gentlemen who were intrusted with the framing of the Constitution would give some attention to what we .are told is the keystone of the arch. Are we to assume for a moment that the framers of the Constitution mentioned three Judges, knowing perfectly well that such a number could not do the work? They either mentioned three Judges in good faith, believing that they could do the work which was to be intrusted to- the High Court, or they deliberately intended to mislead the people of the Commonwealth, by naming a number which they knew to be inadequate.I am sure the Attorney-General will not contend for a moment that, if the Constitution intended to vest this Court with general original jurisdiction, the framers of the Constitution would have been guilty of the farce of naming three Judges to do the whole of the work. We know that to do - similar work in any one State would take at least three Judges, and certainly more than three in some of the States ; and, surely, to do the work of the whole Commonwealth would require a great many more. The Attorney-General, when he was speaking of the expenses of the proposed Federation, and advising people to adopt the Constitution, always spoke of three Judges for the High Court. If any further proof were needed of the intention of the Convention in this direction, I think it is furnished by the estimate of expenses set down for the High Court. Is it to be imagined for a moment that the members of the Convention could seriously assume that a court invested with original, as well as with appellate jurisdiction for the whole of the Commonwealth, :;ould be conducted at an annual expenditure of £23,000 ? I am sure that no one would seriously contend that that could be done. The Attorney-General tells us now that he believes the High Court could be conducted at something like that expense, by transferring a large portion of the work to the States. But that is only a recent thought on the part of the AttorneyGeneral.


Mr Deakin - No.


Mr A McLEAN (GIPPSLAND, VICTORIA) - The AttorneyGeneral had no such thought in his mind when he introduced the Bill last session.


Mr Deakin - Yes; it all appears in Hansard, and I can show the honorable member the passage.


Mr A McLEAN (GIPPSLAND, VICTORIA) - Not only did the members of the Convention contemplate the appointment of only three Judges in the first instance, but the estimate of the cost of the High Court was based upon the assumption that only three Judges would be appointed. Surely the members of the Convention would not have contemplated the appointment of only three Judges, in the first instance, if they had intended that the Court should be vested with jurisdiction which three men could not satisfactorily exercise. It is clear to me, therefore, that the intention of the Constitution is that we shall commence with a Court of three Judges : and as the second reading was carried largely because of the argument that the Constitution requires the establishment of a High Court at the earliest moment possible, it is not desirable or necessary that we should go beyond our immediate needs. If we commence with an elaborate court and a large number of Judges, and give an extensive original jurisdiction, we cannot, if we afterwards find that we have gone too far, retrace our steps ; but if we commence on a moderate scale, with a court of only appellate jurisdiction and the original jurisdiction given by the Constitution, and appoint only three Judges, we can at any time that we think necessary extend the jurisdiction of the court, and increase

* the number of the Judges. I know that the Attorney-General is not indifferent to the condition of the people, and therefore I ask him to take the present circumstances of the Commonwealth into his consideration. We have just passed through a drought which is unparalleled in the history of Australia, and because of extravagance in administration the credit of the Australian States has been reduced to a level of which we should be ashamed. When I speak of extravagance in 'this connexion, I do not refer to Commonwealth extravagance. I do not, however, assert that the' Commonwealth administration has not been extravagant, because I regard this proposal as an extravagant one. lt must be remembered that we have not yet done anything to improve the condition of any one person in the Commonwealth, with the exception of those for whom we have provided remunerative positions. We have done nothing to develop the resources of the country, or to increase the expansion of our industries.


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - Have we not im- posed duties to protect Australian industries ?


Mr A McLEAN (GIPPSLAND, VICTORIA) - We had higher duties, and a much larger degree of protection under the Tariffs of the States.- '


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - I am speaking of Australia as a whole.


Mr A McLEAN (GIPPSLAND, VICTORIA) - There is only one State which did not enjoy the benefits of protection before the Commonwealth was established, and we cannot take much credit for extending those benefits to it. The condition of the people is such that we should not impose upon them unnecessary taxation to the extent of even a shilling, and it would be a piece of wanton extravagance to establish a High Court upon a larger scale than is required at the present time. It is surely more prudent, and more iri accordance with the rules of commonsense, to commence on a moderate scale, and' to enlarge the jurisdiction of the Court, and increase the number of Judges, as occasion may require. The Attorney-General cannotbe indifferent to the wishes of the people, and I do not think any one could doubt but" that if a vote of the electors were taken on the question a High Court would not be established for many years to come. Of course, I recognise that by a majority honorable members have decided to establish a High Court, but we have not decided to create an unnecessarily large court, and I hope that honorable members will set their faces against that. I was so strongly opposed to the establishment of a High Court at the present time that, if I had voted for the second reading of the Bill, I should have been ashamed of ' my vote as long as I lived. But I know that many other honorable members, who are of my own way of thinking, but donot feel so strongly on the matter, voted for the Bill because they did not wish to' embarrass the Government. I think it is the general wish of the Committee, however,, and the almost universal desire of the people, that we should commence on as moderate a scale as possible. If we merely vest the Court with appellate jurisdiction and the original jurisdiction given to it by the Constitution, we shall meet all the requirements of the case. I hope that theGovernment will not press this matter to a division. Why should they place themselves in opposition to what they must recognise as the desire of the great majority of the people 1 I ask the Attorney-General, who, I am sure, is keenly alive to the present condition of the people, to save them from unnecessary burdens.







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