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Wednesday, 24 June 1903


Mr KINGSTON (SOUTH AUSTRALIA, SOUTH AUSTRALIA) (Minister for Trade and Customs) - I put that as a reasonable estimate. Reduce the numbers by two, and you will put it in the power of the Federal Parliament to save ?6,000 a year. This saving in two salaries of ?6,000 is worthy of consideration, and if we cannot trust the Federal Parliament altogether, it will be just as well to provide that there is an official High Court of Appeal, and you can constitute that with a Chief Justice and two Judges.

That is precisely what is proposed to-night. The Attorney-General argues that there will be no saving, but I submit that the Minister for Trade and Customs is a far better authority upon a question of law than upon a question of Customs administration. At any rate, I subscribe to his doctrine ; and the speech of the AttorneyGeneral has brushed away from my mind the last long, lingering doubt which pervaded it, in that he has shown that the Judges will have practically nothing to do unless the Court enters into swift and keen competition with the States Courts, and attracts business from them, or they accept other functions in connexion with the InterState Commission and the Arbitration Court. That was my argument this afternoon when I declared that, in my opinion, a smaller salary than that proposed in the Bill would attract sufficiently able men, because of the small amount of work which, in the beginning, at any rate, would have to be done. Now that the question of salary is disposed of, the Attorney-General finds himself compelled to admit that there will not be very much work for a Court of five Judges, and he suggests an additional occupation for them. But the work which he proposes to add to their duties could be done at less cost and in a better way by others than Judges possessed of only a legal training.

I think that the Committee will be quite safe, on the statement of the AttorneyGeneral, in voting for the amendment.

Mr. HUGHES(West Sydney).- This is a question which we may well consider carefully, but I am bound to say that the arguments which I have heard do not predispose me to accept the amendment. The position taken is that the High Court is now practically an Appellate Court. Now a Court cannot hear appeals unless it is composed of three Judges. It will be impossible under the Constitution to appoint an acting Judge if one of the three happens to fall sick, or becomes injured when on a journey. Judging by what we see in our own courts, it rarely happens that the whole Bench is able to go on hearing appeals throughout the full term. From the moment that one Judge of the High Court of three proved to be unable to sit, the whole of the appeal business would be at an end. We could not appoint an acting-judge, because all the appointments must be permanent. The honorable member for Parramatta has quoted the opinions of the Minister for Trade and Customs, and no doubt the right honorable gentleman is an excellent authority. We have heard of the devil quoting scripture, and, although I should be doing an injustice by comparing the honorable member for Parramatta with the devil, or by suggesting that there is any resemblance between the opinions of the Minister for Trade and Customs and scripture, it is exceedingly funny to hear the honorable member for Parramatta quoting the opinions of the Minister for Trade and Customs, and it certainly constitutes no argument. If it could be shown that the High Court could carry on its business with three Judges, I should be delighted to vote for that proposition, but otherwise I shall vote for five Judges, because it will be of no use to set up a Court and ask it to do what no court could humanly be expected to do. If we could have a Court of only three Judges, it might be absolutely necessary to apply the physical test suggested by the honorable member for Coolgardie, because the Judges would then have to be always fit to carry out their duties as members of an appellate court. Much as I dislike to add one penny to the burdens of the people, and bitterly as I was opposed to the second reading of the Bill, I shall not aid in rendering the whole measure contemptible and absurd by depriving the Court not only of its original jurisdiction, but also of the power of exercising its appellate jurisdiction.

Mr. G.B. EDWARDS (South Sydney). - I think that the Attorney-General, by his frankness and honest)', has exposed himself to greater criticism than he would otherwise have received ; but, at the same time, I commend the attitude he has adopted in grappling with the difficulties which have occurred to the Committee. He has no doubt laboured under great disadvantages owing to the way in which 'the Constitution deals with the creation of the High Court, and also in consequence of the amendments made by the Imperial authorities. I sympathize with his view that tlie Court should be so constituted that it will gradually develop and command more and more respect throughout the Commonwealth. I agree with him that we may look in this direction for ultimate savings in the administration of justice. I do not mean that economy is to be effected by reducing the expenses of the High Court so much as by limiting the expense involved in the administration of justice in the States Courts. Some of the arguments used against the appointment of five Judges seemed to me to be so dangerous that although I have previously directed attention to the risks we should run, I should like to again refer to them. The honorable member for Wentworth has admitted that it would be far better to have a Court constituted of five Judges, but at the same time he considers that we should start with three, and subsequently appoint additional Judges if we find it necessary. We might find it indispensable to have more than three Judges in connexion with certain cases at the very outset, and as I have previously pointed out, it would be in the power of the Ministry to appoint two other Judges entirely because of certain opinions which they might hold regarding certain constitutional matters.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - That would be an act of corruption.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Yes, it would be ; and it is just that kind of corruption that has occurred in America, and against which we ought to guard here. We should look forward to the creation of a Court that will fulfil the purposes of the Constitution, not only to its last letter, but in its full spirit ; and we have no right to consider the little extra expense that may be involved in our securing a thoroughly competent tribunal. I think that the Attorney-General was justified in pointing out that the services of Judges who -will not be required to sit every day, but who will at the same time be required to constitute a Court of sufficient strength to deal with appeal cases, might be made use of in connexion with other Federal institutions, and in suggesting that one of them might be a member of the Inter-State Commission. We could not expect to create a satisfactory Court of Appeal constituted of less than three Judges. If we look at the circumstances of the United States when the Federal union was established, we shall find that although they had less population than we have and less trade, and although their Supreme Court was not vested with such a wide jurisdiction as the proposed High Court, yet they started with a Bench of six Judges, and their Bench has since been further strengthened. I think, therefore, that the necessity for more than three Judges at the outset must be admitted. Then again we may look at the case of Switzerland. I do not pretend to say that the circumstances of Switzerland are precisely analogous to our own. It is notorious that in such countries salaries are much lower than those which prevail here. The Federal High Court of Switzerland is constituted of nine J Judges, and the people who, through their democratic institutions, have every means of imposing a check upon the actions of the administration, have consented to the appointment of nine substitutes, in order that the Bench may be kept up to its full strength.


Mr Deakin - Switzerland is perhaps the most economical country in Europe.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Yes, and yet they find it necessary to appoint nine substitutes to assist nine Judges constituting a court, with no greater jurisdiction than is proposed to be conferred upon the High Court under the Bill as amended. The Federal High Court of Switzerland deals with constitutional questions and suits affecting the cantons, or between parties and the cantons.


Mr Wilks - They must go to law for the fun of the thing.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Indeed, they do not. The Swiss have displayed much common sense by providing a magistrate who is appointed to prevent litigation ' by acting as a mediator.


Mr A McLEAN (GIPPSLAND, VICTORIA) - Do they pay him £3,500 per annum 1


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - No; nor do they pay any one else such salaries as, thank God, we can afford to pay in Australia. Honorable members who complain about the allowances made to them as Members of Parliament would be very sorry indeed to put up with the honorarium which is paid to the members of the Swiss Legislature. The Swiss nation has about the same population as our own, and it is in many respects, perhaps, the purest democracy in the world, because its legislation has the direct sanction of a democratic referendum, and yet they not only have nine Judges, but also nine substitutes, in order that they may keep their appellate court up to its full strength. The jurisdiction of the Swiss Court extends beyond that proposed to be given to the High Court in so far as it is empowered to deal with cases of treason, and it seems to me that that should have been included among the subjects to be dealt with by the High Court. Perhaps that power is implied, but I certainly think that none but the High Court should have any power to try cases of that description. I think we shall be studying economy if we provide for the full number of Judges and that we shall derive from a strongly constituted court the greatest satisfaction in future years.







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