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Wednesday, 17 June 1903


Mr THOMSON (North Sydney) - If anything were needed to convince me of the propriety of opposing this clause, it would be the speeches which have been delivered by the honorable and learned member for Darling Downs and the honorable and learned member for Northern Melbourne. The former has exhibited a vast vista of expense which we are called upon to face in establishing this court. He has indicated the enormous number of matters which it will be possible to bring before this tribunal in its original jurisdiction, and has emphasized the necessity for extending it throughout the whole of Australia. Honorable members must recognise the heavy expenditure which such a proposal would eventually involve.- The honorable and learned member for Northern Melbourne has shown how very inefficient the court would be under the proposal of the Attorney-General.


Mr Deakin - No.


Mr THOMSON - It would be inefficient, he said, because it would drag litigants who desire to appear before the Supreme Full Court to the Central High Court. If that is to be avoided the Supreme Courts of the States must practically be able to deal with everything with which the High Court is called upon to deal, except the few matters in which exclusive jurisdiction is -vested in the latter under the Constitution. I ask honorable members to pause before entering upon federation in the spirit which this Bil] displays. Surely by adopting federation we did not create two peoples.


Mr Deakin - We created one.


Mr THOMSON - We are supposed to have done so, but many of the proposals of the Ministry insist upon regarding the taxpayers of Australia as two different peoples. We are asked to establish two systems of adjudicature throughout the Commonwealth. We did riot-create new requirements amongst the people upon the inauguration of the Commonwealth. It is a false policy to neglect the existing institutions of the States in dealing with Federal matters. When we come to legislate on matters which have been placed under our jurisdiction, and many of these are mere transfers, is it not our duty to ask whether we can utilize the existing institutions and officials of the States 1 If the people could obtain satisfaction from their Judiciaries prior to federation, it is extraordinary that those institutions are to be cast aside by the Commonwealth in minor as well as in major matters, and that we are now to be told that they cannot give litigants satisfaction. If we adopt that attitude federation will not prove a blessing to the people of Australia. I desire that we shall not duplicate existing institutions where there is no absolute necessity for so doing. The honorable member for Darling Downs has asked why we should place the States at a disadvantage by requiring litigants and their witnesses to come t» Melbourne or the Federal capital when it is created, in order to have the cases in which they are interested, determined. But as I understand this matter, if we make the Federal High Court a Court of Appeal only except as to those original matters which are provided for in the Constitution, we shall not require to bring witnesses from the different States. The honorable and learned member for [Northern Melbourne has declared that if we limit the business of the court to appeals, and to those matters in which it is vested with original jurisdiction under the Constitution, the work which the court will be called upon to discharge will be very light indeed. That being so, what is to prevent the objection of the honorable and learned member for Darling Downs being met by the court of Appeal visiting the various States'?


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It would be more expensive to take the whole court than to take only one Judge.


Mr THOMSON - If we allow that these Judges will not otherwise find sufficient work to do, they will have ample opportunity for visiting the different States. Do not the Supreme Court Judges of the States go upon circuit? Why do they adopt that system ? Because it was contended that justice should be taken nearer to the homes of the people. If that argument is to carry weight, and if we insist that we should reserve all disputes in matters under the control of the Federal Government to the High Court, are we not bound to provide those that use that tribunal with facilities equal to those which have been provided by the Supreme Courts of the States ? That means that we must adopt the circuit system. It means that Newcastle, Goulburn, Wagga, Cobar, and other places will have as good a claim to have the High Court made accessible to them as have the States capitals and as the State Supreme Court is now. As a matter of geography, the court when sitting in some of the States capitals will be nearer to the litigants in another State than will be the court in the capital of that State itself .


Mr Higgins - At Broken Hill, for instance ?


Mr THOMSON - Yes, and Imightf urther instance Albury and places in the northern portion of New South Walesin thatconnexion. It appears to me that by establishing the High Court in the form proposed, we shall not increase the opportunities for people getting justice speedily and rapidly. We should increase those opportunities infinitely more if we conferred the jurisdiction on the States Courts, and allowed them to deal with the questions in the first place. There is a clause in the Bill providing that certain cases go from the States Courts to the High Court ; and, by that, the latter should be a court of appeal to regulate and make decisions uniform and of original jurisdiction in the matters provided by the Constitution. But we should not attempt to establish in every State a duplication of our present courts to deal with the same questions of trade and commerce, with matrimonial causes, Customs questions, and bankruptcies and other matters, which at the present time are efficiently dealt svith by the States Courts.


Mr Higgins - The honorable member would allow the States Supreme Courts to have all . the original jurisdiction which is vested compulsorily in the Federal Court.


Mr THOMSON - I would give the States Courts the fullest jurisdiction, and cases could go from the States Courts to the High Court, as they may now under the Bill.


Mr Deakin - The honorable member has been told that there is no appeal from a single Judge in one case out of ten.


Mr THOMSON - Then there would not be an appeal from the Supreme Court in one case out of ten. Are we to imagine that each of the High Court Judges on circuit would be men so much superior to the States Courts Judges that there would be no appeal from their decisions ? I cannot follow the argument that, because it is deemed well to establish a High Court, we should give the Judges plenty of work when that work is being well done by the State J udges. If suitors have the opportunity of going to either court it means that both must be prepared to deal with a larger amount of business than would otherwise be necessary, as each must be ready to handle almost the whole of the business if it chance to come to it ; whereas with one court there would be no need to provide for more than the average amount of work in the particular State. The honorable and learned member for Darling Downs has said that the proposal of the honorable and learned member for South. Australia, Mr. Glynn, is in favour of centralization and not of decentralization. The proposal is nothing of the sort. The object of the Bill is to centralize justice in each of the capitals at most, while the proposal of the honorable and learned member- is is not to centralize at all, but to give the jurisdiction the full reach - not only of the Supreme Courts, but to all the minor courts of each State.


Mr Higgins - Who will travel most tothe inland towns - the Supreme Court Judges or the High Court Judges ?


Mr THOMSON - I do not think it is intended that the High Court Judges shall travel to the inland towns.


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - If there be only three High Court Judges they will not be able to travel at all.


Mr THOMSON - We have it on theauthority of the honorable and learned member for Northern Melbourne that the time of three Judges will not be fully occupied if the court is an appellate court only.


Mr Isaacs - A good many honorablemembers agree with the honorable and learned member for Darling Downs, that the appellate jurisdiction of the High Court will keep it very busily occupied.


Mr THOMSON - In the face of such a difference of opinion between gentlemen high in the legal profession, the best course for laymen is to "go easy" and start on a small scale, because we can always enlarge, while we cannot always reduce. The United States and Canada have been quoted as authorities on both sides ; but to rae' those quotations have not the slightest weight. In the first place, the conditions of- the Constitution of the United States are different, and in the second place, we know what our Judiciary is at present, while we do not know what; the Judiciary of the United States or of Canada was at the particular time. We know our own circumstances and needs, and the amount of money we already spend in this direction. I admit that our present judicial system is an admirable one, and that it costs a large sum of money, but I would rather it should cost too much and be effective, than cost little and be (he reverse. It is- a great system which has met our needs thoroughly, and it would be utterly unwise to abandon it and set up rival courts, which, it appears, would have almost to tout for business. The AttorneyGeneral glories in the fact that the Federal Court will offer such superior facilities that it will, attract business, but we can still keep in our hands the power of the High Court to control the decisions of the States Judges, and by giving the latter' Federal jurisdiction, have, as at present, the advantage of their experience. The honorable and learned member for Darling Downs also alluded to the remarks of the honorable and learned member for Bendigo, whose speeches I heard with great interest and obtained much light from, as I did from those of other legal members, although I mav differ from some cf them in opinion. The honorable and learned member for Darling Downs asked whether the honorable and learned member for Bendigo would approve of the removal of the Supreme Court circuit from that city on the score of expense. The answer to that is that there is no Supreme Court at Bendigo, and as certain cases have to be tried in that court, it is naturally desired that f facilities should be provided on the spot. That argument, however, does not apply to the States, in each of which there is a Supreme Court which can be invested with Federal jurisdiction, and which has been doing the very work it is proposed to ask the High Court to do. Outside of the range which would be reached by the High Court, there are ' circuits ' of the States I

Supreme Courts which bring the jurisdiction nearer to the people than would the High Court. The honorable and learned member for Darling Downs also alluded to the large number of subjects that would come before the High Court, subjects entering into almost all the affairs of the people of the Commonwealth. Do honorable members conceive that when we have passed laws dealing with all these subjects under the Constitution, five Judges will ever be able to handle the business, and also go on circuit throughout the States 1 It is absolutely ridiculous to ask the meanest lay intelligence to entertain such an idea. In each of the larger State capitals there is a Judge occupied solely with bankruptcy matters, and such a Judge could not be removed when cases have been partially heard. Then, in each of the States of New South Wales and Victoria there is a Judge almost entirely occupied with matrimonial cases, and allowing one Judge for the remaining States, three Judges must devote themselves to that work alone.


Mr Deakin - I did not allude to that business.


Mr THOMSON - But it is proposed that the High Court shall deal with such business when we pass the necessary Acts under the Constitution.


Mr Deakin - Tes, when we pass the laws ; but not if we make no provision for the exercise of such jurisdiction.


Mr THOMSON - Then we are to go away from the High Court principle after all. Under the powers conferred upon us by the Constitution we pass certain laws, and the High Court is to have jurisdiction in cases arising under those laws, because they are cases arising under the Constitution, or under the laws passed by the Parliament of the Commonwealth. But the Attorney-General tells us by interjection " When you pass other laws, 3'ou need not put them under the jurisdiction of the High Court."


Mr Deakin - I pointed out in the course of my remarks that when the Commonwealth takes control of legislation affecting bankruptcy and insolvency, we shall need to make special provision to give the High Court jurisdiction in matters arising under the laws we may pass relating to those subjects.


Mr THOMSON - That statement supports my argument that five Judges will be altogether insufficient for the work of the court.


Mr Deakin - For the work then conferred.


Mr THOMSON - There is in that statement evidence that the step which we are' now taking will not be by any means the last step. We are now embarking upon an expense of which we cannot see the end, and in my opinion the only justification for it would be that it is unavoidable. But an excellent means for avoiding it already exists, a means which has met the needs of the people of Australia in the past, and of which it is ridiculous not to avail ourselves. The honorable and learned member for Northern Melbourne said that, not only would three Judges, if appointed as a Court of Appeal with the original jurisdiction provided for under the Constitution, have too little work to do, but their decisions would not carry weight, because in the State of Victoria it is not an uncommon thing - he does not say that it always happens - for six Judges to sit as a Court of Appeal. He regards it as a strange thing to accept the decision of three Judges as superior to that given by six. But if the superiority of a judgment depends upon the number of the Judges who decide the matter, we cannot stop at a court of five Judges ; we must appoint at least eight, because in one of the States there is now a Bench of seven Judges.


Mr Conroy - And inasmuch as eight is an even number, we ought to appoint nine, in order to provide for a majority where there. is a division of opinion.


Mr THOMSON - In my opinion it is not the number of the Judges upon, the Bench that gives weight to the decision of a court. It is not even the fact that the members of the Court of Appeal are abler than the members of the court from which the appeals are made. It is that the Judges of the Court of Appeal have the advantage of the decisions and opinions of the inferior Judges upon the matters which come before them, have a longer opportunity to study the cases which are to be brought before them, and have more experience in connexion with the particular questions upon which they adjudicate. When honorable and learned members refer to the decisions of the Supreme Court of the United States, what they do is to pick out the judgments of particular Justices. Any one of the men whose opinions they quote would probably - although in these matters it is well to have a discussion by different minds - have constituted a satisfactory Court of Appeal. I have no faith in numbers giving weight to the decision of a court. I think that a court of three would give as great satisfaction to the people as a court of twenty.


Mr Higgins - The honorable member would not provide for an appeal from a Bench of ten Judges to a single Judge1?


Mr THOMSON - It is not unusual to appeal from more than- ten persons to one umpire.


Mr Higgins - An umpire is not appointed until there is a difference of opinion. The honorable member would not provide for an appeal from ten unanimous Judges to a single Judge?


Mr THOMSON - larnnotadvocatingthe propriety of appointing only one Judge to the High Court, but if an appeal is not to be made from a large' Bench to a small Bench, we cannot constitute a High Court with fewer than eight Judges. But in appointing three Judges we gain these advantages. First of all, we do not incur so heavy an expense in creating what is not, in any case, a complete tribunal, if we appoint three, as if \ve appoint five Judges. Again, if the J udges appointed have a large amount of time to themselves, after they have performed their duties as conveniently to the public as they can, that perhaps will not be a disadvantage, because it will enable them to give more study to their cases, and will provide for speedy decisions, which the honorable and learned member for Northern Melbourne regards as one of the rights of the subject conferred by Magna Charta. If the arguments of those who support the Bill are right, we shall not lose the opportunity of ultimately carrying out their views. If for the present we start on more modest lines than they propose, we can enlarge the original jurisdiction of the court whenever the necessity arises, if it ever does, to establish a Federal Judiciary which will take the place of our present system. But once we step out on the lines laid down in the Bill, we are committed to the fullest extent. We establish the court, and try to attract to it the cases which arise under the measures passed by us. In doing so we make more work for it, and the fact that the court is in existence, and is attracting work, will mean that we shall have demands from the .people to bring its jurisdiction nearer to them. In this way we shall subsequently be required to enlarge its circuit, and an expenditure will be required the amount of which it is impossible now to name, but which will be infinitely beyond the estimate which has been given. For these reasons I support a limitation of the original jurisdiction of the court, and with such a limitation I cannot see any reason for the appointment of more than three Judges. In making this arrangement, we rob the people of nothing. They will still have that system of jurisdiction in which they have gained confidence, and which now deals with nearly all the matters for which it is proposed to ' establish High Courts in each State. Beyond the present judiciaries they will have, if they choose to avail themselves of it, the High Court as a Court of Appeal to equalize decisions, and to give a final Australian voice. The Privy Council will exist as a further Court of Appeal under either system. Under these circumstances we shall be neglecting the best interests of the Commonwealth, and giving ground for some of the attacks which have been made upon the. Federation, if we abandon the means of obtaining justice already established amongst us; which extend not merely to the capitals of the different States, but from end to end of this vast continent.

MV.   WILKS (Dalley).- The AttorneyGeneral must be able to see that the Bill is still out of favour with honorable members, and I trust that he will make up his mind to withdraw it. The whole principle of the Bill is being fought over and over again in connexion with this clause. The word " jurisdiction " has been ringing in our ears, and, as if in order to more 'thoroughly confuse the public mind, we have had the terms "original jurisdiction" and "compulsory original jurisdiction " hurled at us from all directions. The Government succeeded in passing the Bill at the second reading stage' by bringing an extraordinary amount of pressure to bear. The party for " the whole Bill and nothing but the Bill " was made up of Ministers themselves, whilst the majority of their loyal supporters belonged to what may be called the party of modification. The latter section of honorable members did not agree with the proposal to appoint five Judges, and expressed their intention to modify the Bill by reducing the strength of the proposed Bench. Surely in view of the way in which the debate has proceeded thus far, the Government must see that the Bill will probably emerge from Committee in such a mutilated form that it will be of little practical use, and that they will save the public time and money if the}7 withdraw it at the present stage. We find, in this case, that the lawyers are differing among themselves, and, to paraphrase an old proverb, it is to be hoped that "Where lawyers differ the public may hold their own." It is true that the great majority of the lawyers in this Chamber are fighting against the establishment of the High Court or the proposed extension of its jurisdiction.' The only honorable and learned members outside of the ranks of the Ministry who have supported the measure are the honorable and learned member for Indi . and the honorable and learned member for Darling Downs. The latter honorable and learned member may be considered the political god-father of the Government, whose dutv might very well have been considered at an end when he moved the adoption of the Address in Reply.


Mr Deakin - The honorable member for Illawarra is also a supporter of the Bill.







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