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Wednesday, 17 June 1903


Mr WILKS - The honorable and learned member's support was only half-hearted.


Mr Mauger - Then there is the leader of the Opposition.


Mr WILKS - The honorable and learned member for East Sydney is such a warm supporter of the Bill that he has felt constrained to absent himself from the Chamber for a fortnight. Perhaps his conscience is pricking him, and he cannot see his way to venture here. The honorable member for Melbourne Ports has asked most pathetically - "When lawyers differ, what is a poor layman to do 1 " My answer is - " Remain poor - if you pass this Bill." I desire to direct the attention of the Committee to some opinions which were expressed by the Minister for Trade and Customs in opposition to a Bill of the character now before us. The right honorable gentleman, when speaking at the Convention at Melbourne, in 1898, said -

We should, above all in the early stages of the Constitution of this Federation, be careful lest we involve the Commonwealth in an unnecessary expense - in expense which is altogether out of proportion to the necessities of the case. It seems to me that, although this Bill is in a preferable shape to that in which it originally saw the light, in that it contains no appropriation, within the four corners of the Constitution, of any huge sums for Judicial salaries, j'et, if we do not carry an amendment, such as is now suggested (by Mr. Glynn), we shall takeaway from the Commonwealth a facile means of providing all that is required at least in the earliest period of the history of the Constitution, at the least possible expense.

The honorable and learned member for Indi has drawn a very pretty picture of what might take place in the High Court, but he has not shown the necessity for the tribunal. I will again quote from the speech of the Minister for Trade and Customs, who was then a lawyer in full practice, an eminent constitutional authority, and the President of the Convention.


Mr Isaacs - Cannot the honorable member see the difference between framing a Constitution and acting upon the Constitution?


Mr WILKS - 1 fully understand that I am now quoting the opinions held by Mr. Kingston, which should stand good even to-day. Mr. Kingston is reported to have said -

The fitting solution, I think, is found in the proposition of my friend, Mr. Glynn, which is that there shall be a representation of both the Chief Justice of Australia, the highest officer in the Commonwealth responsible to the Federation, and the other Judges, more numerous, and selected on account of the positions which they occupy in respect to the provinces. I would like, further, to say that I think there is nothing in the contention that the Chief Justices of the different provinces would be unwilling to accept positions of the description suggested. I know of no higher position in the gift of the Federal authority than the position of Judge of the High Court in Australia.


Mr Isaacs - What did the Convention decide ?


Mr WILKS - I have not had time to go through the whole of the report, but I am simply giving honorable members the benefit of the remarks made by the Minister for Trade and Customs. Most of the people of Australia hope never to have to go beyond the police court, or even to reach that place, and they must be appalled at the idea that still another court is to be added to the already formidable array of tribunals at present in existence in Australia. I find that the salaries paid to the Supreme Court Judges in New South Wales amount to £21,700 per annum, whilst the annual appropriations for a similar purpose in the other States are as follow : - Victoria £18,500, Queensland £11,500, South Australia £5,4-00, Western Australia £5,900, and Tasmania £3,900, making a total of £66,900 for salaries alone. The list of States Judges includes 6 Chief Justices, and 22 Puisne Judges : and over and above these it is now proposed to erect a marvellous Federal combination of 5, 10, or 20 Judges. The Attorney-General apparently desires that the High Court should have extended jurisdiction, and that the Judges should tout for business against the various courts now established. They are to expose their wares like shopkeepers in. order to entice litigants to leave the States Courts and intrust their business to the Federal tribunal. In view of the feeling which has been evinced towards the Bill both inside this Chamber and out of it, I shall consider it my duty to endeavour to so whittle its provisions as to make it useless. The cry for economy has been described . by the Prime Minister as a miserable one, but it is miserable only to those who would like tosecure a seat on the High Court Bench. All the predictions of the anti-Billites are being absolutely fulfilled.


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - As a federalist the honorable member knew that a High Court would be established.


Mr WILKS - Yes, at the proper timeDoes the honorable and learned memberimagine that people voted in favour of federation simply because the Constitution provided for the establishment of a High Court? I find that the total amount represented by associates' salaries, travellingexpenses, &c, throughout the Commonwealth is £35,989. These figures are compiled from the States Governments Estimatesfor the year ended 30th June, 1902.


Mr Isaacs - By whom?


Mr WILKS - By a most zealous man in the interests of the public. If the honorable and learned member for Indi werepossessed of half as much zeal as is that gentleman, he would be on the side of the opponents of this measure.


Mr Isaacs - The honorable member must have his joke.


Mr WILKS - It is no joke for the people who have to pay this money. The District and County Court Judges throughout Australia absorb. £22,000, and the law officers £118,431, of which Victoria pays £20,440. The sheriffs receive £51,062. Of course, we are told that the High Court can utilize theservicesof thesheriffs of thevariousStates, together with buildings which areowned by the States Governments. But I cannot accept that statement. If the High Court is to be such an exalted tribunal, how can it use second-hand officers. Are we to have a High Court, the officers of which are to be dressed up in second-hand clothes % The Masters-in-Equity throughout Australia receive £16,342, of which New South Wales contributes £7,G50, and Victoria £8,692. The stipendiary magistrates draw £63,920 ; the expenses of petty sessions aggregate £128,024, and "miscellaneous" covers an outlay of £68,638, making a total of £571,306. That is the amount which about 700,000 adults pay for the administration of justice, exclusive of police protection. I predict that upon the establishment of this tribunal the courts will be found to overlap in their jurisdiction. Moreover, the full number of Judges constituting the High Court will not be able to go upon circuit, and will the Justices who can do so be any better qualified to. give decisions upon cases which come before them than are the Supreme Court Judges of the States'? I intend upon every possible occasion to oppose this Bill, with the object of destroying its efficacy. I trust that the arguments which have been advanced in favour of economy will not be again characterized as " miserable." Those ardent federalists who desire the Commonwealth to be respected, and who wish it to acquire further powers from the States, ought to remember that every extravagant act in which we indulge will be an obstacle to our progress in that direction. One reason why the High Court should not be invested with additional jurisdiction is that before fi. man can appeal to it his claim must exceed £300. Consequently, admis sion to that tribunal is not open to the masses. It is all very well to say that the Federation should be properly plumed. It sounds very exalted to say so, but the public who have to bear the expense ought to be considered. I would further point out that the Minister for Trade and Customs, when a member of the Federal Convention, advocated practically everything which the opponents of this Bill have urged to-night. "If ever there was a vote recorded in this House which was uninfluenced by party considerations, it was that cast upon the second reading of this Bill, and I trust that the same feeling will prevail throughout its discussion in Committee. Now that honorable members have been released from the power of the whip-


Mr Austin Chapman - Nonsense.

Mr- WILKS.- It is not nonsense. They were squirming like scorpions, and Ministers themselves were openly whipping for the measure. It is well that the public should be informed of this fact. The honorable and learned member for Corinella, with a tremor in his voice, declared thatfor the first time in his life he was compelled to vote against his party.


Mr McCay - I stated that I voted against the Bill without any reluctance, aswill be seen by a reference to Hi.vn.sard.


Mr WILKS - I must accept the honorable and learned member's denial, as it is theparliamentary practice to do so. I am sorry that it is the parliamentary practice.

An Honorable Member. - Is this a stone- wall 1


Mr WILKS - If I thought that the Bill would be passed as it stands, I would ." stonewall ". it for a fortnight. I notice that the Government whip is anxious to get the measure through. Will he be as anxious to tell his constituents that it will involve the appointment of ten, twenty, or 25 Judges ? It is of no use saying that somany Judges will not be appointed. The legal members themselves, who are impartial on the subject, have exposed the whole business. They say that the cry is for more and more legal machinery, and more and more courts and Judges. So it will be in the case of the High Court. The Attorney-General himself admitted at the second reading stage that it was intended to appoint five Judges "for a start." When we give them more jurisdiction more will be wanted. The honorable member for North Sydney has stated that eight or ten will be required, and the Attorney-General did not deny it. There are so many out of the 25 I have mentioned. The honorable and learned member for South Australia, Mr. Glynn, has quoted a number of eminent authorities on this question. He quoted, amongst others, that eminent American writer, Cooley. There is no better authority. The honorable and learned member for Indi, who is so well acquainted with the constitutional writers, must have had many of his opinions shattered when Cooley was quoted. Some one interjected that Mr. Dooley ought to be quoted. Mr. Dooley, who is an excellent judge of human nature, would be a good authority to quote on the present occasion. It is a . pity in the interests of the

Commonwealth that we have not got a Dooley here. Under cover of his humour Mr. Dooley exposes many abuses and absurdities, and he would be a powerful and useful member of this Chamber in exposing such abuses as will arise in connexion with the High Court. It was said by those who opposed federation that it was merely a game for the benefit of a gang of lawyers. I would not use such a phrase in this Chamber, but it almost deserves to be used, particularly as we have reason for believing that the appointees to the High Court will be chosen from what are called men of Parliamentary experience, acquainted with the Federal idea. What right have we to give jurisdiction to men of that character? Am I to understand that the Chief Justices of Australia - men like Sir Samuel Griffith, Sir Samuel Way, and Chief J ustice Darley, who are of the very highest repute in their States - are not competent to carry out judicial duties for the Commonwealth.? Am I to understand that those men are not head and shoulders above the persons alluded to as possessing parliamentary experience and acquaintance with the Federal idea? The most disinterested Judge, and one of the greatest federalists in Australia, Sir Samuel Griffith, has told us that no High Court is required yet. That is a very excellent reason for opposing the extension of this jurisdiction. The legal members of the House who have opposed this Bill are entitled to the thanks of the community. \ especially allude to the honorable and learned member for Northern Melbourne, the honorable and learned member for Corinella, and the honorable and learned member for South Australia, Mr. Glynn. Some of them have voted

Against their party because they knew there was no necessity for the measure. I deeply regret that I have not the legal training which will enable me to oppose it as effectively as I should like to do. Why have the labour party been so significantly silent 1 All I have heard from them was an interjection from their leader, who said that for constitutional reasons, constitutional questions ought to be settled by the High Court. Surely we have a right to expect a more definite expression of opinion on the subject from them. Probably the honorable member for Bland is possessed of information to the effect that this High Court would confer benefits upon the section of the community which he represents.


Mr Watson - Will the honorable member ask the leader of the Opposition what is his opinion on the matter ?


Mr WILKS - I believe that the leader of the Opposition, being a busy man, did not look into the question sufficiently carefully. Now that he sees the enormous expense that will be imposed upon the public by the constitution of the High Court, he may take a different view. But why do not the labour party express themselves more clearly?


Mr O'Malley - Individual members of the party are in favour of the Bill, but not the whole party.


Mr WILKS - How many of the members of the party favour the measure ?


Mr O'Malley - Six are against it and ten are for it.


Mr WILKS - When they are so equally divided, before extending the jurisdiction of the High Court, the benefit of the doubt ought to be given to so strong a minority.


Mr Spence - I expect that they will all vote for the Bill after the honorable member has finished !


Mr WILKS - Out of deference to the honorable member for Darling, who expresses his opinion of my speech in such a nice manner, I think I shall conclude, the argument. I believe that the honorable member voted for the Bill. Now, perhaps, he is prepared to vote against it. If I have changed his opinion I have done good work.

Amendment (by Mr. Deakin) agreed to-

That the words, " (c) Admiralty and maritime jurisdiction," be omitted.







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