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Tuesday, 23 June 1903


Mr THOMSON (North Sydney) - The matter we are now discussing is of such importance that we cannot give it too careful attention. On the one hand, there is a natural desire, in which I fully sympathize, to prevent the system of pensions getting a footing in the Commonwealth service. On the other hand, there is a desire to keep British justice and Australian justice up to the high standard which it has hitherto maintained, and from which it would not be to the interests of the community to allow it to fall. In dealing with a question of this sort, we are more limited as to the manner of fixing remuneration than we should be in connexion with many positions in the public service of the Commonwealth. There are three ways in which remuneration is usually fixed. One way is to have regard to the importance of the work ; and I am quite sure we cannot get more important work in the community than that of the administration of justice. When the lives and liberties of the people are at stake we have every reason to avoid the risks attaching to maladministration, even if in doing so we have to expend a little money. I do not say that the mere height of the salary would be sufficient to enable us to escape the evil of maladministration ; but if we wish to get men in whom we have confiddence - whom we believe will administer justice capably and honestly - we must be prepared to give what has been fixed in these States as the remuneration for such services. Another method of fixing a salary is to estimate it according to the rate which applicants will accept. If we adopt that method we can get the work done for nothing, because there are men, one or two of whom might even be' accept- able, who would take the position for the simple honour attaching to it.


Mr Mauger - A very bad principle.


Mr THOMSON - It would be a very unsafe principle to act on in connexion with our Judiciary


Mr Mauger - Either partially or wholly.


Mr THOMSON - Either partially or wholly ; and no member of the Committee would for a moment consider the adoption of such a principle. Another way of estimating a salary is not to necessarily take the men who want the positions, but to offer a. rate at which we can get the men we want. We have heard a great deal about the High Court. I was, and I am still, very desirous' of limiting the expense of that court ; but I would rather limit the expense by curtailing the jurisdiction and reducing the number on the Bench than by any cheese-paring in connexion with the salaries of the Judges. If this is to be a court which will command the respect that the Attorney-General expects it to command, we shall have to pay the salaries which the men we want will require. We cannot expect only wealthy men or philanthropists to be called to this court ; we must expect men who are following their profession, and we ma)r perhaps have to ask some .of these to make a sacrifice when they take the position. If we say to the members of the Bar - "You are asked to do justice under all circumstances and all temptations, and we expect you to be so capable that the other Judges, from whose decisions there may be appeals to you, will never, whatever they may say of your judgments, venture to question your capacity," and if we further tell the members of the Bar that on their appointment to the Bench they must riot occupy certain positions of profit outside their office, which are open to many other men, so that the Bench may be kept clear of any imputation of injustice, bias or prejudice, we must be prepared to pay liberal salaries. And in fixing what is liberal we must have regard to the salaries which are paid to the States Judges in Australia at the present time. Indeed, I do not see any other standard to guide us ; and if the rate of remuneration were £2,000 in the States, I should be perfectly willing to adopt that sum for the Commonwealth, regarding it as an evidence of sufficiency to attract the best men.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The salary is £2,000 in some of the States.


Mr THOMSON - In one of the States, which contains a tenth of the population of Australia, the salary is £2,000 ; but I do not think that case affords any comparison.


Mr Wilks - Would the present rates be fixed in the other States to-day 1


Mr THOMSON - It was" in no boom year, but when things were worse in New South Wales than they are to-day, that some of the high salaries of Judges were fixed. It was in no boom time that a Bill was introduced in New South Wales to raise the salary of the Chief Justice to £3,500, as the only way of obtaining the man who was wanted.


Mr WILKS (DALLEY, NEW SOUTH WALES) - That Chief Justice there is Lieutenant-Governor as well.


Mr THOMSON - He got additional pay as Lieutenant-Governor, and there is a provision for similar circumstances under this Bill.


Mr Wilks - That is more salary still. Mr. THOMSON.- Some low rates have been quoted as prevailing in Canada and the United States, bub if the Commonwealth Courts are to give no better satisfaction than do some of the Canadian Courts, and some of the subordinate courts of the United States, we should be a great deal better without a High Court, seeing that we could get more justice from our present Judiciary.


Mr Mauger - There are always complaints about American justice.


Mr THOMSON - Those who suffer from it complain, and we know that the subordinate courts, at any rate, in the United States, where low judicial salaries are paid, are losing the country money owing to the class of men on the Bench. The honorable member for Bourke expressed the opinion that instead of providing in this way for pensions, we ought to have a fund devoted to paying, as allowances, any sums which Parliament might fix, though not more than half the salary. I do not agree with that idea for a moment.


Mr Watson - It is practically a pension, in any case.


Mr THOMSON - It is a pension given in the most objectionable way. Some retiring Judges would get the allowance, perhaps through parliamentary influence, while other men, equally deserving, would be denied it through lack of influence. The granting of the pension might be a matter of the whim or prejudice of the moment. If we have pensions the amounts should be fixed. I agree with the honorable member for Bland that there might be some amendment of the clause in regard to the rates of pensions. I would suggest that .after a service of five years the rate should be low, certainly not more than two-tenths of the salary, though I should be satisfied with one-tenth. Then the pension after ten years' service might be increased to three-tenths, and after fifteen years' service to five-tenths. I do not think that we need go beyond half the salary, and the suggestions I have made would reasonably support a Judge to whom circumstances had proved unfavorable, at a period of life at which he was unable to earn an income. It would be a most disastrous thing if after the liberties and lives of the subjects of the Commonwealth had been safe in the hands of a Judge for many years, through misfortune or possibly through not being allowed to do things in connexion with business which other persons could do, disaster came upon him and he was reduced to penury. Therefore, while as a rule I oppose pensions in the Commonwealth service as strongly as other members do, in the present case, entirely in the interests of justice, I cannot see mY way to abolish the system.


Mr DEAKIN - I hope that no honorable member will oppose this clause from a misunderstanding of the position. The clause contains a proposal which appears to the Government to be a proper one j but, of course, those who vote in favour of retaining it are not bound to accept the particular rates set forth. I thought that some of the suggestions of the honorable member who has just resumed his seat had a good deal to be said for them, and I am quite prepared to give consideration to such suggestions. If there are some honorable members who oppose the giving of any pensions whatever, of any kind, or of any amount no matter how small, we must, of course, have a division on the clause.


Mr Mauger - Could we not have it on the first line 1


Mr DEAKIN - We. could ; but I understood that practically the whole of the Committee were agreed upon some provision to meet possible contingencies that might arise. If that view be accepted, and it becomes a question of the amount and the time of the pension, I should be very glad to consider suggestions. Nothing definite has been, proposed as yet. I desire also to remark that in drawing the Bill I took the words " permanent infirmity " as probably covering the whole ground intended to be covered by the Constitution.

But it has been suggested to me that it is safer to use the precise words of the Constitution. Those words are " proved misbehaviour or incapacity." Proved misbehaviour would be dealt with in another way; and I should propose to make the clause read " permanent incapacity " instead of " permanent infirmity."


Mr Glynn - Ought we not to have both words?


Mr DEAKIN -We might have both, but it is decidedly desirable to include the words used in the Constitution. I therefore move -

That after the word "infirmity" the words "or by incapacity" be inserted.


Mr Crouch - What is meant by "permanent incapacity?"


Mr DEAKIN - Well, a Judge might become incapacitated for a day.







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