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Tuesday, 23 June 1903


Mr GLYNN (South Australia) - I think that the clause should be struck out altogether, though, of course, I agree with the honorable member for Corinella that it should be amended in the direction which he suggests. But I fail to see that it is required.


Mr Deakin - A stage will be saved if we provide for removal before appeal.


Mr GLYNN - A stage may be saved.


Mr Deakin - Then why not give an opportunity for the saving?


Mr GLYNN - By the last clause we passed we added a stage, so that I suppose the Attorney-General now wants to save a stage by way of counterbalance. But the clause is unnecessary. The power of removal was regarded in the case of Martin v. Hunter as inherent in the American Supreme Court under the implied powers of the Constitution, because otherwise the decision of the State Court might have been final. In that case it was laid down, not only that there is a power of removal to prevent States Courts from giving decisions upon questions of jurisdiction which could not be checked, but that the Federal Parliament was obliged to create Federal Courts in which to vest Federal jurisdiction. If a removal from an American State Court were not allowed, there would be no possibility under the American system of checking its decisions, because there is no Privy Council to appeal to. But here there is the right to appeal from the States Courts to the High Court in all matters, and there is the check of the Privy Council as well. Therefore, our need for a provision like this is nothing like so great as the need for the power under the American Constitution. But this clause is far more comprehensive than the American provision. In America there is no power of removal - except in one or two cases in which justice might otherwise be denied in small matters arising in the district courts, or where a public officer is concerned - unless the amount in dispute exceeds 2,000 dollars. Under the clause, however, a constitutional question might arise during the hearing of an action upon a bill of exchange, because the clause does not apply only to constitutional questions arising under section 74, and affecting the mutual rights of the Parliaments of the States and of the Commonwealth to pass laws, but to all Federal matters. That is the meaning of " Federal jurisdiction."


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It will depend upon the meaning placed upon the words "for sufficient cause shown."


Mr GLYNN - That is a matter for the discretion of the court; but a litigant would have the power to put his opponent to the expense of an application, even though the case was only one upon a bill of exchange in which £5 was in dispute. About 90 per cent, of the cases which would come under the clause are such as occur at the present time - State cases. The chief end which the AttorneyGeneral has in view is to provide for the removal of cases where decisions are given on constitutional matters, but to do that he asks us to give the power of removal in all cases, sweeping into one net all the cases which may arise under section 51 of the Constitution. That is bad legislation. We should confine the operation of the clause to the necessities of the case. The honorable and learned gentleman, however, seems to act upon the principle that if we want to do a little we must do all. With regard to the power of intervention given to the Attorney-General, I think it is provided for in the. wrong place. I quite understand that where as important constitutional matter has arisen on the judgment of a State Court or of the High Court in original jurisdiction, and the litigant does not wish to take his case on to the Court of Appeal, the AttorneyGeneral of the Commonwealth should be allowed to do so. I go further, and say that in certain cases the Attorney-General of the State should be allowed to intervene, and bring a matter on appeal to the High Court, or to the Privy Council, whichever Parliament likes to fix upon. Suppose that in a small matter in a District Court the question of the rights of the Commonwealth Parliament and a State Parliament inter se arose, and a decision was given affecting the constitutional powers of one of those bodies, and the litigants' had not sufficient funds to conduct an appeal. In such a case the Attorney-General of the Commonwealth, if the Commonwealth was concerned, and the Attorney-General of the State if the validity of a State law was affected, should be allowed to intervene, and have the question authoritatively settled once and for all. That might be done at the expense of the, Commonwealth or of the State, whichever was affected. I think there is some power of that sort in the Canadian Constitution.' At all events there is a power of, reference. If a constitutional point is raised in any of the lower courts in Canada, it can be carried on to the Supreme Court or to the Privy Council, by the Attorney-General raising a point by way of opinion, and that is a much more independent way of dealing with the matter than the method provided for here, because the actual issue between the litigants is not decided, but only the constitutional point involved. Under the method provided here, the rights of the parties may be affected, both as to the amount of the judgment given and the costs. In Canada, however, the judgment is not affected. All that is done is to carry the constitutional point on to the Supreme Court or to the Privy Council. No such power exists under our Constitution, though some of us did our best to have provision made for it. We can, however, provide that where an important constitutional point arises in connexion with appellate cases - and I think that the provision might be limited to matters of constitutionality arising under section 74 - and is left undecided by the litigants, the Attorney-General of the Commonwealth, or the Attorney-General of the State, may step in and have it dealt 4 i 2 with by way of appeal. But that power should not be given in this clause, because it has relation only to appellate jurisdiction. But, under this clause, power is given to the Attorney-General of the Commonwealth, though not to an Attorney-General of the State, instead of waiting until a decision is given, to intervene at any stage, either in the beginning, or after judgment has been given. But if it is right that the AttorneyGeneral of the Commonwealth should have that power, it is right that it should be given also to the Attorneys-General of the States, because not only may the powers of the Commonwealth be challenged, but the powers of the States may also be challenged, and provision should be made for such an occurrence. Honorable members will therefore see that the clause is imperfect even from the point of view of the Government, because it gives to one party only a remedy to which both are entitled, and which ought to belong to the appellate jurisdiction of the High Court. Under these circumstances I think the Attorney-General should not continue his opposition to the wish of honorable members to have the clause omitted. If he amends the appellate clauses with a view to allowing the intervention of a State or the Commonwealth after judgment has been given, there are many reasons why such a provision should be supported, and then the omission of this clause will not destroy the whole object that he has in view.


Mr Deakin - But if this provision is retained we can miss a stage.


Mr GLYNN - Possibly. I do not see much objection to that, but all the honorable and learned member wants to accomplish is accomplished at the present time. I think that he should adopt the suggestion of the' honorable and learned member for Corinella, and even go further, and make the clause apply only under section 74 of the Constitution Act, where the constitutionality of a statute is affected. I would, therefore, suggest the insertion, after the word " jurisdiction," in line 2, of the words " under section 74 of the Constitution." That may cover cases in which it is desirable that the High Court should have the first and only say. They are partly provided for already, but if the Attorney-General wishes to have a subsidiary provision, and amends the clause in that direction, I shall not vote against it, though without such an amendment I must do so.

Sir JOHNQUICK (Bendigo).- I believe that the power of removal is part of the appellate power, and, consequently, I cannot object to that portion of the clause which provides that in special cases the High Court may remove a cause pending in a State Court upon the application of one pf the parties. So far, I am with the honorable and learned member in charge of the Bill, on the grounds which I have previously stated, but I take strong objection to the power reserved to the AttorneyGeneral to remove. I do not see why he should intervene to remove a private suit during its hearing in a State Court which is exercising Federal jurisdiction. Why should he remove a case during its progress through a State Court? Let the parties fight it out, and let it be determined by the State Court first.


Mr Deakin - I shall not press that part of the clause.


Sir JOHN QUICK - I am glad to hear the honorable and learned gentleman say that. If that part of the clause is omitted, my objection to the clause will be removed. It may be, however, that provision should be made in some other part of the Bill for special cases where the decision of a Supreme Court has been given upon a Federal question.


Mr Deakin - And the matter is not taken further?


Sir JOHN QUICK - And the matter is not taken further. .The interests of the Commonwealth may in some indirect way be related to, or determined by, a decision in a State Court, or a State right or a Federal right might be left in doubt. It might be desirable in such a case to allow the Attorney-General to cause an appeal to be made, so that the matter might be dealt with by the High Court in its appellate jurisdiction.


Mr Higgins - If there is no power to remove while a case is pending before the State Court, the removal will be practically an appeal.


Sir JOHN QUICK - It would be an appeal after determination. If that portion of the clause to which I object is removed I shall support the clause.







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