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Thursday, 18 June 1903

Mr SAWERS (New England) - As I was absent from the House during the second-reading debate upon this Bill, I desire to say that I am quite in sympathy -with those who are in opposition to the clause under discussion. At the same time, I cannot avoid expressing my amazement that the second reading of the measure should have been imperilled. If ever there was a question which I thought would receive the almost unanimous approval of Parliament it was the proposal to establish a High Court. The statement which was made by the honorable member for Macquarie, that honorable members were justified in opposing the second reading of the Bill, simply because they are in antagonism to some of its details, is one which I never expected to emanate from any one possessed of parliamentary experience. I have always understood that the vote upon the second reading of any measure simply determines whether its introduction is necessary. It is left to honorable members to arrange the details of Bills in Committee. I should have no sense of parliamentary duty . if I had voted against the second reading of the Bill simply because I was opposed to this clause.

Mr A McLEAN (GIPPSLAND, VICTORIA) - The honorable member is very young in politics.

Mr SAWERS - I hope thatI shall always remain young. Upon a question of this kind I was quite prepared to trust the legal members of this House. But I find that they are absolutely opposed to each other. For example, the Attorney-General is opposed to the honorable and learned member for South Australia, Mr. Glynn, and the honorable and learned member for Indi to the honorable and learned member for Bendigo. Similarly, the honorable and learned member for Northern Melbourne entertains one view and the honorable and learned member for Darling Downs another. When we find the legal members of the House so diametrically opposed to each other, the ordinary layman is forced to bring his own common sense to bear. I think that every one will admit that the establishment of a High Court is obligatory under the Constitution. The obligation to establish a High Court is even stronger than the obligation to establish a Federal capital ; yet the honorable members for New South Wales will use very different arguments in regard to the latter matter. What will these honorable members say when they hear Victorian members observe - " Yes, we admit the obligation to establish a Federal capital, but there is no hurry." In the Constitution a c ontract was entered into by the various States for the establishment of a High Court, and even if only one State asked t hat such a Court should be provided, and t he other five States were against the pro- posal, the request would have to be granted. The citizens of Australia voted for the Con- s titution in which the 'promise of a High Court was embodied; and if such a Courtis not established, they will feel thatthey have been falsely dealt with. The question before us now is that of the restriction of the j urisdiction of the High Court.I listened with great attention to the speech of the Attorney-General, and one argument of his struck me very forcibly. That argument was that there would be Federal Judges throughout Australia, and that a litigant in any part would havethe choice of the Court to which he preferred to go - the State Court or a Federal Court. But if that should prove to be the case, it will not be a ques- tion of three or five Judges, but a question of eight or nine Judges, in order to deal with the enormous amount of work which will be provided throughout this great continent. I shrink, as other honorable members shrink, from adding unnecessary bur- dens on the people, and I give my full assent to such restriction of the powers of the Court as will be carried out by the rejection of this clause. It had been my intentionto vote for sub-clause (a), and reject the other sub-clauses ; but as the Attorney-General has already carried the rejection of sub-clause (c), I am debarred by the rules of the House from taking that step. I call the attention of the AttorneyGeneral, however, to sub-clause (a), which refers to questions arising under the Constitution or involving its interpretation. I hope that the Attorney-General, if the Committee do reject this proposal, will be able to tell us that the Bill will not be passed without its being specified that the Federal Court alone shall have the power to interpret the Constitution.

Sir John Quick - On appeal, certainly.

Mr SAWERS - I am not satisfied with that, because I would allow no State Court to interpret the Constitution.

Mr Deakin - Unless we pass sub-clause (a) the High Court will not be able to deal with such cases except on appeal. Subclause (a) must be passed to begin with, and then a further sub-clause added, if we wish to make the jurisdiction exclusive. All that sub-clause (a) does is to allow the Judges of the High Court to deal with questions arising out of the Constitution or i ts i nterpretation .

Mr SAWERS - The AttorneyGeneral has cut a plank from underneath his feet by securing the rejection of sub-clause (c). Had we allowed that sub-clause to remain until the end of the discussion, I should have been ready to move that subclauses (b) (c) and (d) be rejected, while retaining sub-clause (a). Of course, the AttorneyGeneral may recommit the Bill before it is finally dealt with, and embody in it sub-clause (a). There will be appeals, no doubt, but, as I say, I should not give the States Courts the right to interpret the Constitution. I think the suggestion of the honorable and learned member for Northern Melbourne was an excellent one if, as it seems, the motive for objecting to this clause is to curtail the work of the Federal Judges, and to keep their number down to three at the start. It is quite manifest that the members of an Appeal Court of three Judges cannot travel all over Australia to hear all sorts of appeals. If a litigant goes before a single State Judge, and is not satisfied with the judgment, he ought to be permitted to appeal to the State Full Court, which will sit in the same building and decide the matter in a very short time, instead of keeping him waiting, perhaps, for months. We often seem to forget that we are not dealing with a single State, but with a vast continent, and that it is impossible for the people to go to this Appeal Court on minor cases from all parts of Australia. My object is to keep the number of Judges as low as possible, thoughat the same time I should be preparedtovotefor anynumber which is deemed necessary. I can onlyhope,however, that the Government willsee their way to be content with three Judges until it is proved that more are absolutely indispensible.

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