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Thursday, 25 June 1903


Mr WINTER COOKE (Wannon) - I quite agree with the honorable and learned member for Indi, and I think it is undesirable to make any amendments in the clause unless very good reasons are shown. It is to be assumed that the court will sit only when and where it may be necessary for it to transact business.

Mr. GLYNN(South Australia).- I was struck by the same point as the honorable and learned member for Indi, namely, that the effect of the proposed amendment would be to make it optional with the Governor- General to say whether the High Court should sit at a district registry or not; whereas under clause 10, it is provided that the court must sit a* required, wherever there is a district registry. The honorable and learned member for Northern Melbourne could effect his object by striking out all the words after the word " and " and adding at the end of the clause those which he proposes to insert.

Mr. HIGGINS(Northern Melbourne).Under the clause as it stands it is compulsory for the court to hold sittings not only at the principal seat, but at every place where there is a district registry, as required. The court would consider that they were bound to hold sittings in every place where was a district registry, and in the event of an appeal case arising in Perth, for instance, they would regard it as their duty to travel to that city in order to hold a court. We should not encourage this travelling about any more than we- can possibly help. Although I adhere to the position that we shall be imposing an obligation on the J Judges to hold sittings to no purpose, the Committee do not appear to agree with me, and therefore I shall withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. CONROY(Werriwa). - I think that this clause is worthy of more consideration than has been bestowed upon it. To my mind its provisions should be made more elastic. Perhaps in twelve months' time an argument will be founded upon it for the appointment of additional Judges. I could quite understand the honorable and learned member for Indi using it for that purpose if he were arguing against the view which he now indorses. The more I look at this provision, the more I can see the force of the contention of the honorable and learned member for Northern Melbourne.


Mr Higgins - It is an excuse for providing the Judges with work when there is none.


Mr CONROY - Exactly.


Mr Isaacs - Does the honorable and learned member suggest that the High court ought to sit at one place in Australia only ?


Mr CONROY - The places at which it shall sit should be determined by the Judges themselves, with the advice of the Executi ve. If a case does arise in a certain State, the court ought to be prepared to go there if necessary. But I would point out that in some instances its members would have to start travelling a week before they were aware that any cases were set down for hearing. Take the experience of the States Circuit Courts. Frequently up to almost the day prior to the holding of these courts no cases are listed. Then two or three are brought forward almost at the last moment. The fact is, that endeavours are usually made by both sides to effect a settlement so as to avoid the expense of the parties going into court. If we allow the clause to stand in its present form, who can say that the court will not be required to sit at any of the other State capitals?


Mr McCay - The court ought to determine where it should sit.


Mr CONROY - The court should only determine it subject to the consent of the Executive Council. 1 have not the slightest doubt that within the next two years this very clause will be used by certain honorable members to support an argument in favour of the appointment of additional J udges. I trust that the honorable and learned member for Northern Melbourne will press his amendment.

Mr. McCAY(Corinella).- Surely the Committee, having divided several times upon matters of grave importance in this Bill, is not going to vote upon a matter of this kind. I think that the clause is in proper form. The words " is required " cover all the contingencies feared, and if the High Court - irrespective of whether it is constituted of three J ustices or more - cannot be trusted to control its own business without abusing its powers, it certainly cannot be intrusted with the interpretation of the Constitution.

Clause agreed to.

Postponed clauses 12 to 15 agreed to. '

Postponed clause . 16 -

The jurisdiction of the High Court may be exercised by a Justice sitting in chambers in the cases following : -

(a)   Applications relating to the conduct of a cause or matter ;

(b)   Applications relating to the custody, management or preservation of property, or to the sale of property and the disposition of the purchase money ;

(c)   Applications for orders or directions as to any matter which by this Act or by rules of court is made subject to the direction of a Justice sitting in chambers ; {d) Any other applications which by this or any Act or by rules of court are authorized to be made to a Justice sitting in chambers.

But on the application of either party the Justice may order the application to be adjourned into court and heard in open court.

Mr. HIGGINS(Northern Melbourne). - This clause needs revision, owing to the changes which have been made in the Bill. It provides, amongst other things, that the High Court may exercise jurisdiction by a Justice sitting in chambers, in applications relating to the custody, management, or preservation of property, or to the sale of property and the disposition of the purchase money. That drags into the cognizance of the High Court ordinary equitable applications.


Mr Deakin - Only upon matters of Federal jurisdiction.


Mr HIGGINS - Suppose that in the course of a mortgage suit involving £100,000 there was a single question of £50 which was affected by the Federal law. The whole of that particular action could be dragged before the High Court. The original idea was thai; the High Court should have original jurisdiction in a host of matters in which it has been deprived of that jurisdiction. There are two kinds of functions which courts perform, first, the awarding of damages, and secondly the administration of property. This clause involves questions of the administration of property. I cannot conceive of any case being brought before the High Court-


Mr McCay - Supposing there is a suit between residents of different States?


Mr HIGGINS - These matters are not dealt with in chambers in the States Supreme Courts. They are dealt with in open court by petition or upon motion. To my mind we ought not to allow these applications, which may involve an infant's whole patrimony, to be entertained anywhere but in. open court. Why should this power be given to the High Court, seeing that that tribunal is now only a Court of Appeal. I fail to see any distinction between paragraphs (c) and (d) of this clause. To my mind they traverse the same ground. I think that this chamber jurisdiction might very well be allowed to stand over till we know what the other machinery of the court is to be. It has been suggested that this provision is intended to provide for suits between residents of different States, but I can hardly conceive of there being any need for an application for the custody or sale of property. Further, why should we allow the High court to do in chambers what the other courts have to do in the open ? There is no class of application in which so much hanky-panky can be played as that having reference to the property of helpless infants. As the High Court is endowed with only a very slight original jurisdiction, these matters might well be dealt with in the ordinary way upon motion.


Mr DEAKIN -The honorable and learned member for Northern Melbourne has correctly stated that the alteration in the jurisdiction which has been made will certainly deprive the High Court of the great bulk of the original jurisdiction work that would have been transacted there. I do not know that under any circumstances it was likely to have been large, but I confess that it Will now be much smaller. Although it may be rarely exercised, the power conferred by this clause is a convenient one to have, especially if it be read in conjunction with the provisions which I purpose asking the Committee to substitute for the next clause. It is the same in effect, though different in form, lt provides -

1.   The Supreme Court of a State shall, subject to any rules of court, be invested with Federal jurisdiction, to hear and determine at the request of the Chief Justice, any applications in matters pending in the High Court which may be made before a Justice of the High Court sitting in chambers.

2.   Such jurisdiction may be exercised by a single Judge of the Supreme Court sitting in chambers.

I have submitted this proposal as an alternative to the clause in the Bill. The object is, if it be possible, and I think it is, to provide that under certain circumstances a Judge of the Supreme Court of a State may undertake some subordinate or ancillary matters proper to be dealt with in chambers, and may be deputed to do so in order to avoid a visit to a particular district or capital of one of the Federal J Justices. I think the honorable and learned member will see that it would be a very convenient arrangement. I am willing to admit, however, that this power has necessarily been deprived of much of the value it would otherwise have had, by the extreme rarity of the necessity that is now likely to arise of making any such demands. Still the fact that the power may be required or exercised only on few occasions, is no reason why this provision should not be made. No additional jurisdiction is conferred; it is simply a convenient mode of dealing with minor interlocutory matters. Those questions are scarcely of the nature which the honorable and learned member has suggested that may hereafter arise' when Commonwealth legislation relates to infants, parental rights, and other subjects on which legislation is possible. Then this business may become of some importance ; but at the present time its intention is to provide for ancillary and minor matters.


Mr Higgins - The provision will compel the court to have a Chief ' Clerk or some officer qualified to sell property and apply purchase money - it means more officials.


Mr DEAKIN - I think not, though it means the use of more State officials.


Mr Isaacs - I doubt it very much. It is only doing in chambers what the court otherwise would do.


Mr DEAKIN - The fact that the power will . be little used, may be thought an argument in its favour. When it is used, it will mean a saving of expense and of time and travelling, even if it is only of a single Judge ; and these considerations are worth weighing.

Mr. HIGGINS(Northern Melbourne). - My idea is that the power will mean expense in the employment of more officials; and that is what we ought to try to avoid. I think I speak with more experience than any one here in regard to this particular class of work ; and I repeat that if we adopt more administrative machinery for the High Court it means more administrative officers. We cannot have applications for the sale and administration of property without having an officer qualified for the purpose. Of course, the Attorney-General will say that he intends to obtain the services of the Chief Clerk of a States Court.


Mr Deakin - Some such officer.


Mr HIGGINS - It may, or may not, be possible to obtain the offices of such an officer. The Chief Clerk of the States Court may say that he is busy with State work ; there may arise a conflict between his duty to the State and his duty to the Commonwealth, and eventually we shall be driven to employing such an officer.


Mr McCay - Would it make any difference in the number of officers if these matters were dealt with in chambers instead of in open court?


Mr HIGGINS - That is another point altogether. The proposal as to hearing these applications in chambers is a novelty to me, and I think it would be better to follow the ordinary course of hearing them in open court.

Mr. McCAY(Corinella). - It does not seem to me to make any difference, so far as the officials beyond the Judges are concerned, whether the applications are made in court or in chambers. The power will be in the court, consisting of either a single Judge or three Judges to make those orders, and if the power is there, the necessary officials beyond the J udges will be required. But there would be a saving of time and expense by allowing the applications to be made in chambers to the Judge, instead of to a court consisting of one or more Judges.


Mr Conroy - Does not paragraph (6) go further and give original jurisdiction?


Mr McCAY - No; the clause begins - "The jurisdiction of the High Court may be exercised ... in the cases following." If apart from clause 16 there was no jurisdiction to do what is mentioned in paragraph (b), the clause would not of itself give any additional jurisdiction, and consequently the abolition of the power to hear applicants in chambers would not save a single farthing or a single officer. I may point out that if there is any suspicion of " hanky-panky," the matter can be adjourned into open court.

Mr. GLYNN(South Australia).- Such cases as have been referred to will not very often arise, because the original jurisdiction has been cut down; but the power may be required under section 75 of the Constitution.


Mr Isaacs - It may be required in some appellate cases.


Mr GLYNN - It may be required in an application to a Judge for a new trial, and I do not know why we should not allow such applications, where new evidence has been discovered, without the necessity of bringing the matter before the Full Court of three Judges. In a question of law, three Judges would be necessary ; but in a case of mistake, or where more evidence had been obtained, a single Judge might be sufficient. A mandamus is not a matter which can be waited for, and if one is applied for under section 75 of the Constitution against the Commonwealth, it might be expedient to grant it in some cases in chambers. That can be done in some of the States, and I think it should be possible in all.

Mr. CONROY(Werriwa).- At first I was inclined to agree with the honorable and learned member for Northern Melbourne, but now I think that the distinction pointed out by the honorable and learned member for Corinella is sufficient. All that Justices sitting in chambers can do is merely that which can be done in the High Court in certain cases ; sub-paragraph (b) does not give any power beyond that which the Full Court has.


Mr Higgins - May I ask the AttorneyGeneral for an explanation of paragraphs (c) and (d) ?


Mr DEAKIN - Paragraph (c) applies to cases in which an. application may be made for an order or special direction. But there are cases in which applications of another sort may be made ; and to meet those cases paragraph (d) is inserted. No order or direction may be expected, but the court is made acquainted at some stage with interlocutory matter which arises, and of which it is desirable the court should be informed. Paragraph (d) is a drag-net proposal to cover any thingwhich is not embraced by other sub-clauses of an administrative nature, suitable to be mentioned' in chambers.

Clause agreed to.

Postponed clause 17 (Supreme Court Judges may be empowered to act as Justices of the High Court in chambers).


Mr DEAKIN - I propose to omit this clause with a view of substituting a new clause hereafter.

Clause negatived.

Postponed clauses 18 and 19 agreed to.

Postponed clause 20 -

(1)   The jurisdiction of the High Court to hear and determine appeals from judgments -

(a)   of a Justice of the High Court exercising the original jurisdiction of the High Court; or

(b)   of a Judge of the Supreme Court of a State exercising Federal jurisdiction ; or

(c)   of the Inter-State Commission ; and to hear and determine applications for a new trial of any cause or matter, after a trial before any such Justice or such Judge exercising Federal jurisdiction, shall be exercised by a Full Court consisting of not less than three Justices.

(2)   Appeals from judgments of any other court exercising Federal jurisdiction may be heard and determined by a Full Court consisting of two or Justices.


Mr DEAKIN - Honorable members will notice that the clause provides that appeals from the judgment of any other court exercising Federal jurisdiction may be heard and determined by the Full Court, consisting of two or more Justices ; and we have already made the quorum in sub-clause 2 two Justices. I suggest that we transpose this sub-clause, and insert it between paragraphs (6) and (c), and as sub-clause (62), make it read "of any other court exercising Federal jurisdiction."

Mr. ISAACS(Indi).- I desire the AttorneyGeneral to make an alteration, which, although it may appear small, involves a large principle. In paragraph (6) I suggest that we should strike out the first three words, " of a Judge." There is all the distinction between a Judge of the Supreme Court of a State and the Supreme Court of a State, because under the Constitution, we have only power to invest jurisdiction in a State Court. I draw attention to this because I think it is important.


Mr DEAKIN - In clause 20 we are dealing, or wish to deal, with the Supreme Court of a State only when its jurisdiction is exercised by a single Judge. In clause 21 we propose to deal with appeals from the Full. Court of a State, and to make the necessary distinction between them.


Mr Isaacs - That can be done if the Attorney-General uses the words " The Supreme Court of a State consisting of a single Judge exercising Federal jurisdiction.

Mr. McCAY(Corinella). - The provision for two Judges may be left out altogether, because clause 19 fixes two Judges as a minimum ; and we may make clause 21 provide three Judges. The AttorneyGeneral, now that we have only three Judges, desires to fix the cases in which all the three Judges must be sitting. Under clause 19, the Full Court, consisting of any two or more Judges, will be entitled to hear any - case which under subsequent clauses does not require the attendance of three J udges. Thehonorableandlearned member for Indi suggests that the clause does not say what the court so constituted may do, but I take it that it will be entitled to do whatever the Constitution authorizes it to do, subject to the restrictions of subsequent clauses.


Mr DEAKIN - It seems to me that we lose nothing in being specific, though I confess that if we had started as we are now starting, we might have condensed these clauses. I think it is better now to make them perfectly plain. I move -

That the words "of a Judge," paragraph (6), be omitted.

Amendment agreed to.

Amendments (by Mr. Deakin) agreed to-

That after the word "jurisdiction," line 7, the words "when such jurisdiction is exercised by a single Judge " be inserted.

That after the word " or," line 7, the following words be inserted : - "(b 2) of any other court exercising Federal jurisdiction."

Sir JOHNQUICK (Bendigo).- I think provision should be made here for appeals from the Full Court of a State. Clause 21 merely provides for a quorum of Justices on appeals from the Supreme Courts of the States.


Mr DEAKIN - The whole appellate power is dealt with in clauses 35 and 36. Here we are dealing simply with procedure.

Mr. GLYNN(South Australia). - I think it is inexpedient to require applications for a now trial to be made to two Judges. Of course, the original jurisdiction of the court will be important, but I cannot see why an application for a new trial should not be made to an ordinary Judge. I could understand it being made compulsory to apply to two Judges of the High Court where there was a mistake in law, but not where there was only a mistake in fact. The clause prevents a J udge of the Supreme Court of a State from hearing these applications, and thus may force suitors to go to the very heart of Australia to make their applications before the High Court. I think the Attorney-General might consider whether it is not possible to provide, as under clause 16, for the exercise of the jurisdiction of the High Court by Justices sitting in chambers in regard to such an application.


Mr DEAKIN - I have made a note of the honorable and learned member's suggestion. I move -

That the words "consisting of not less than three Justices," line 13, be omitted.

Amendment (by Mr.. Deakin) agreed to-

That sub-clause (2) be omitted.

Clause, as amended, agreed to.

Postponed clause 21 -

1.   The jurisdiction of the High Court to hear and determine appeals from judgments of the Supreme Court of a. State, or of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be exercised by a Full Court consisting of not less than four justices.

2.   The concurrence of three Justices at the least shall be necessary in a judgment of the High Court by which any such judgment is reversed set aside or varied.

Mr. ISAACS.(Indi).- Does not the Attorney-General consider it advisable to insert after the word "State," line 3, the words " sitting as a Full Court?" I think that a distinction should be made between the Supreme Court of a State sitting as a Full Court and a single Judge of the Supreme Court.

Mr. HIGGINS(Northern Melbourne).I understand that the intention is that appeals from judgmentsof a single Judge shall be heard by not less than two Justices of the High Court, and appeals from the Full Court of a State by three Justices. I agree with the honorable and learned member for Indi that the term "Supreme Court of a State" is too general, and that the words, " sitting in Full Court" should be inserted. I do not understand the words -

Or of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council.


Mr Deakin - Under statute a special appeal lies to the Queen in Council from the decisions of the Judge in Equity in New South Wales.


Mr HIGGINS - Does the Attorney General wish an appeal from that court to be heard by the Full Court?


Mr DEAKIN - Yes. I move-

That after the word " State," line 3, the words " sitting as a Full Court or Court of Appeal " be inserted.

Amendment agreed to.

Amendments (by Mr. Deakin) agreed bo-

That the word "four," line 7 be omitted with a view to the insertion of the word "three."

That sub-clause (2) be omitted.

Mr. CROUCH(Corio).- In Victoria, when a single Judge makes an order of review, his judgment is a judgment of a Supreme Court of a State sitting as a Court of Appeal, and the Bill provides that an appeal from such a judgment to the High Court can be heard only by the three Justices.


Mr Deakin - I will consider that point.

Clause, as amended, agreed to.

Postponed clause 22 -

1.   The concurrence of three Justices at the least shall be necessary in certifying that a question as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, which has been decided by the High Court, is one which ought to be determined by the King in Council.

2.   Applications for leave or special leave to appeal to the High Court from a judgment of the Supreme Court of a State, or of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen . in Council, shall be heard and determined by a Full Court consisting of not less than three Justices.

Amendment (by Mr. Deakin) agreed to -

That the words "The concurrence of three Justices at the least shall be necessary in certifying" be omitted with a view to insert the words " Applications to the High Court for a certificate."

Mr. HIGGINS(Northern Melbourne).- I should like to see if we can, in this clause, prevent an obscurity in the Constitution which arises from an amendment made by the Imperial Parliament at the instance of the Imperial Government. Section 74 of the Constitution provides that -

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question however arising as to the limits inter se of the constitutional powers of the Commonwealth, and those of any State.

That phraseology would be all very well if there were only one question involved in every case, but we can readilyconceive of a big suit imposing a host of issues. Supposing that there was only a small item, involving a question as to the limits inter se of the constitutional powers of the Commonwealth and those of a State, and that there were other issues in the same case involving perhaps £100,000. There is power to grant special leave to appeal without the consent of the High Court in regard to almost all points except the one to which I have referred. Is the appeal to go on to the Privy Council under special leave as to all points exceptone, unless the High Court gives its consent? Why should a man be allowed to appeal as to the main body of a case, and not with regard to a specific point involved in it. This seems to be a remarkable method of legislating and adjusting.


Mr McCay - The United States are experiencing a very similar trouble in connexion with Federal and State questions.


Mr HIGGINS - I have received a letter on this point from a very thoughtful man, who says that we are making confusion worse confounded. I confess that I have no definite proposal to make, but I was hoping that the Attorney-General would suggest some way in which litigants would-be able to deal with these matters.


Mr DEAKIN - I am afraid that I cannot help the honorable and learned member much further on the road which he desires to travel. The section of the Constitution as it stands is the result of a conflict of opinion between the law officers of the Crown in the mother country and the delegates from Australia. The desire on our part was to retain as far as possible the power of final decision for the High Court in all matters affecting the new Constitution or affecting States Constitutions, but we were unsuccessful. The proposal which the Imperial Government embodied in the measure submitted to the House of Commons would have swept away the autonomous power of the High Court, and what we now have is . the spar saved from the wreck of our ideals. It was intended that in spite of all its obvious difficulties and some disadvantages, the American practice should be followed here, and that a whole judgment should not necessarily be suspended because it involved a point affecting the distribution of constitutional powers as between the Commonwealth and a State, or between Stateand State ; the utmost concession we could obtain was that such a point should be separated and dealt with independently. That is to say if the parties to a suit were dissatisfied with a judgment of the High Court, they might, by special leave, be enabled to take the case further, but in regard to those constitutional matters of profound interest and importance to Australia, to which reference has been made, it should not be possible to take them beyond the High Court without the consent of that body. Where the High Court is satisfied with its own judgment, their decision cannot be questioned even on appeal to the King in Council. Whatever may be the defects of: construction of the clause, its intention is plain, and I have not been able to consider any method by which we might gain further ground, or to see any point upon which it would be desirable for us to make a sacrifice.


Mr Crouch - The proper course would be to avail ourselves of the power given in the latter part of section 74, and further limit the subject upon which appeals can be made to the Privy Council.


Mr DEAKIN - Yes ; that will probably have to be done sooner or later. In the meantime, we have taken the words of the Constitution and embodied them in this clause. We can only rely upon the test of time and experience to show how soon it will be necessary for a future Parliament to bring order out of the disorder which to some extent prevails. It is a matter of the greatest difficulty and the position at present is quite unsatisfactory. The Bill is only an approximation to what we desire, because the Constitution is defective here, and we must trust to the future to create better relations between the courts in this country and between our system and that of the mother country.

Mr. CROUCH(Corio).- The AttorneyGeneral desires to avoid the necessity for reserving the Bill for the Royal assent, and therefore he does not feel disposed to take advantage of the power conferred by section 74 of the Constitution to make laws limiting the matters in which leave to appeal to the Privy Council may be asked. I do not agree with him in this regard, because I should like to see the High Court clothed with the fullest possible power. What I submit is this : By section 1 4 it is possible that one Judge of. the High Court can exercise its powers, and that being so, section 74 of the Constitution provides that appeals from the High Court to the Privy Council can be ordered by the High Court, that is, by a single J udge ; and if any limitation of this power is made by the Parliament, the Governor-General has to reserve such legislation for the King's assent. I consider the requirement of the concurrence of three Judges is such a limitation, and would direct the AttorneyGeneral's attention to it.


Mr Deakin - I see the honorable members point, and will consider it.

Amendment (by Mr. Deakin) agreed to-

That the word's "shall be heard and determined by a Full Court consisting of not less than three Justices " be added tosub-clause (1).

Sir JOHNQUICK (Bendigo).- In the preceding clause we have drawn a distinction between a single Judge of the Supreme Court and the Full Court of the State sitting as a court of appeal. The express "judgment of the Supreme Court of the State " is used in this clause, and I would suggest to the Attorney-General whether some distiction ought not to be drawn between granting leave to appeal from a Supreme Court Judge sitting alone and from the Supreme Court Judges sitting as a Full Court.


Mr DEAKIN - I think we have provided for that, but I shall consider the point.

Amendment (by Mr. Deakin) agreed to-

That the words " consisting of not less than three Justices," line 16, be omitted.

Mr. GLYNN(South Australia). - I think it is rather a pity that we have not given more powers to the State Supreme Courts to grant appeals to the High Court. To my mind the States Courts might well be placed in the same relation to the High Court that they occupy to the Privy Council.


Mr Deakin - I have promised to consider that matter when clause 36 is under discussion.

Clause, as amended, agreed to.

Postponed clause 23 : -

No Justice of the High Court shall sit on the hearing of -

(a)   an appeal from a judgment or order made by himself ; or

(b)   a motion for a new trial of a cause tried before himself ; or

(c)   a question of law reserved on the trial befor e himself of a criminal case.

Mr. CONROY(Werriwa). - I suppose, in view of what has already occurred, the AttorneyGeneral will consent to the omission of this clause.


Mr Deakin - No ; I will retain it. I do not attach much importance to it, but the public never have the same confidence in a court upon which a Judge sits whose decision is under review that they have in a tribunal which is constituted differently.


Mr CONROY - I think that we should be acting wisely by omitting the clause. In certain cases it might be very necessary that a single Judge should be able to sit on appeal against his own decision with the other two Justices.

Sir JOHNQUICK (Bendigo).- In view of the limited number of Justices to be appointed to the High Court, and of its very limited primary jurisdiction, it seems to me there is no necessity for the retention of this disqualifying provision. At any rate, I think that paragraph (c) ought to be excised, because there is no criminal jurisdiction vested in the High Court. But even if it possessed criminal jurisdiction, there is no reason why we should disqualify a Judge, who has reserved a case for the Full Court, from sitting upon the Bench. Under our State laws the Judge of a Supreme Court, who reserves a case, says, in effect - " I do not give a final decision." He is, therefore, quite capable of taking an unbiased view of the case when it comes before the Full Court. I move -

That paragraph (c) be omitted.

Mr. GLYNN(South Australia).- I think it would be better to omit the clause. In South Australia it is the practice for Judges to sit in judgment from their own decisions in appeal cases, and experience shows that their assistance have been very useful. They have a knowledge of the evidence which has been previously given, and can explain points upon which there is no record. Time after time Judges have resented their own prima facie decisions, so that no danger exists of a Justice obstinately adhering to a hasty judgment, such as is necessarily given sometimes in nisi prius cases.

Mr. ISAACS(Indi). - I know that there is a diversity of opinion upon the matter which is dealt with under this clause. The later trend of opinion is that Judges should not sit upon appeals from their own decisions, and I can see advantages - even with a Bench composed of three Justices - in allowing two minds to come to a conclusion upon a case unhampered by the presence of a Judge whose decision is under review. After all, there is a lot of human nature even in Judges. Personally, I am inclined to leave the decision of this matter to the Attorney-General.


Mr Deakin - I considered it, and decided to allow the clause to stand.


Mr ISAACS - If the Attorney-General has no feeling in the matter, I would say that whilst there are advantages and disadvantages in both practices, with the very limited number of Judges constituting the High Court, we shall have to trust each Justice to bring an open mind to the review of his own decisions. Personally, I think that Judges can rise to the occasion of openly and frankly reconsidering their own decisions, and, if necessary, of reversing them.

Amendment, by leave, withdrawn.

Clause negatived.

Postponed clause 24 -

Subject to the requirements of this Act as to the concurrence of three Justices at the least in certaincases, when the Justices sitting as a Full Court are divided in opinion us to the decision to be given on any question, -

(a)   the question shall be decided according to the decision of the majority, if there is a majority ; but

(b)   if the court is equally divided in opinion; the opinion of the Chief Justice or if he is absent the opinion of the senior Justice present shall prevail, except in the case of an appeal from a decision of a Justice of the High Court or a Judge of the Supreme Court of a State exercising Federal jurisdiction, in which case the decision appealed from shall be affirmed :

Provided that in the last-mentioned case if the Justice or Judge whose decision is appealed from reports to the court that he desires that the matter shall be determined without reference to the fact that he has pronounced or given the decision, the opinion of the Chief Justice or senior Justice present shall prevail.

Amendments (by Mr. Deakin) agreed to-

That the words "Subject to the requirements of this Act as to the concurrence of three Justices at the least in certain cases" be omitted.

That the proviso be omitted.

Clause, as amended, agreed to.

Postponed clauses 25 and 26 agreed to.

Postponed clause 27 -

The High Court and every Justice thereof, sitting in chambers, shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction.

Mr. GLYNN(South Australia). - I suppose that the Attorney-General has considered the means of giving effect to the processes of the court throughout the Commonwealth? The matter, I believe, has caused some trouble in America.

Mr. CROUCH(Corio).- I would ask the Attorney- General whether it was intended to include criminal cases among those in which costs can be awarded ? The word " causes " covers criminal jurisdiction, but the word " matters " does not. Has the distinction been made designedly ?


Mr Deakin - Yes.


Mr CROUCH - If it has been done designedly, I have no more to say.

Clause agreed to.

Postponed clauses 28. to 30 agreed to.

Postponed clause 39 -

The judicial power of the Commonwealth shall be exercised by Federal Courts or by courts of the States which are by the law of the Commonwealth invested with Federal jurisdiction.

Amendment (by Mr. Deakin) agreed to -

That the words "Federal Courts" be omitted, with a view to insert in lieu the words " the High Court."

Mr. GLYNN(South Australia).- In this provision we proceed to confer a jurisdiction in express words that is specifically conferred under the Constitution. By using words which appear in the Constitution, I fear that it may be assumed that they have been used for the purpose of endowing the High Court with that original jurisdiction which we have already cut down.


Mr Deakin - It is exercised by the High court or the courts of the States. We have given the courts of the States practically the whole of the jurisdiction, so that there can be no supposition that we have endowed the High Court with more jurisdiction.


Mr GLYNN - I would point out one source of danger. It is declared in the Constitution that -

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court.

It is declared in this clause that the judicial power " shall be exercised " by the court. The word " exercised " not being the word used in. the Constitution may be held to mean something more than is meant by the Constitution. It is unnecessary ; and why put in a clause which leads to an ambiguity ? I can understand why it was put in originally. It was a general declaration that the Federal Courts or the States Courts invested with Federal jurisdiction might exercise this power.


Mr DEAKIN - The clause is a useful declaration. I fail to see how there can be any construction of it which would give the

High Court more power than the Constitution intends to confer. Although it is declaratory, the clause has a value of its own.

Sir JOHNQUICK (Bendigo).- It seems to me that this clause goes further than a mere declaration of what the Constitution provided. The words of the Constitution -

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court, and in such other Federal Courts as the Parliament creates, and in such other courts as it invests with Federal jurisdiction - should be examined very carefully. The words " shall be vested " mean, as I understand them, " shall be and is hereby vested" in the High Court. It is not necessary for this Bill to say that the judicial power shall be vested in the High Court. What is the meaning of " shall be exercised " by the High Court in this clause ? The Constitution says the High Court shall be' vested with judicial power. Why saythe judicial power shall be exercised when it is already vested by the Constitution itself? If we were creating other courts with a certain limited jurisdiction we should have to define that jurisdiction, but the High Court is invested with jurisdiction by the Constitution. We have not created other courts, and we do not need to say that the judicial power shall be exercised by the High Court. There is no necessity for the clause. . It is only introducing confusion, and may lead to unexpected results.

Mr. McCAY(Corinella).- So far as I understand the Attorney-General, he says that this is a placard in the Judiciary Bill.


Mr Deakin - Something more than that; but is the honorable and learned member opposing it ?


Mr McCAY - I do not see the necessity for it. I am always afraid of unnecessary clauses.


Mr Deakin - I will leave it to the Committee.

Clause negatived.

Postponed clause 46 agreed to.

Postponed clause 47 -

(1   ) If in any cause removed in whole or part from a court of a State into the High Court it appears to the satisfaction of the High' Court at any timeafter the removal -

(a)   that the cause does not really and substantially involve a matter of Federal jurisdiction ; or

(b)   that any parties to the cause have been improperly or collusively joined either as plaintiffs or defendants for the purpose of instituting a cause removable under this Act ; or

(c)   that the defendant was not entitled to remove the cause - the High Court shall proceed no further therein, but shall dismiss the cause or remit it to the court from which it was removed as justice requires, and shall make such order as to costs as is just.

(2)   Every such order of remitter shall be carried into execution forthwith, and the proceedings and documents shall be returned to the court from which they were received.


Mr DEAKIN - It will be necessary to alter this clause considerably. In the first place we shall have to strike out of paragraph (a) the words "involve a matter of Federal jurisdiction." When clause 45 was passed with an undertaking to recommit, I agreed that upon recommittal I would propose a series of limitations. When we return to clause 45, I propose to ask the Committee to limit its operation to cases involving questions arising under the Constitution, or involving its interpretation. That is the only class of case which I propose to ask powers of removal. I propose to limit that power of removal to the appellate jurisdiction ; so that it will not be extended to original jurisdiction. In accordance with that it will be necessary to amend clause 47, and I propose to amend it by making it read in paragraph (a) " that the cause does not really and substantially arise under the Constitution and involve its interpretation." Then I propose to strike out paragraphs (b) and (c). I move-

That the words "involve a matter of Federal jurisdiction or," lines 6 and 7, be omitted, with a view to insert in lieu thereof the words "arise under the Constitution or involve its interpretation."

Mr. GLYNN(South Australia).- That amendment does not carry out the scope of the amendment that was required in clause 45.


Mr Deakin - This is the power to send back.


Mr GLYNN - We have not given original jurisdiction in. matters involving the interpretation of the Constitution. Where is the necessity for omitting the words in question if such a case never gets to the High Court ?


Mr Deakin - It does get there in a matter of appellate jurisdiction. Clause 47 is a check upon that. The clause only affects appellate jurisdiction.


Mr GLYNN - That is all right.

Amendment agreed to.

Amendment (by Mr. Deakin) agreed to.

That paragraphs (b) and (c) be omitted.

Clause, as amended, agreed to.

Postponed clause 48 -

When a cause is or ought to be removed into the High Court under this Act, the High Court may-

(a)   issue a writ directed to the Judges of the court from which it is removed commanding them to make return of the records in the cause, and may enforce the writ according to law ; or

(b)   allow the party removing the cause, or entitled to remove it, to file in the High Court a sworn copy of the records in such other court, and may thereupon proceed upon that copy.


Mr DEAKIN - I propose to omit the words " or ought to be " in the first line of this clause, and in the second line to omit the words "under this Act." In paragraph (b) I shall propose the omission of the words "or entitled to remove it,"because no one will be entitled to remove now.


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - The word " certiorari" is used in the margin. Is it intended to take actions from such an inferior court as, for example, a police court, to the High Court - in a case of Customs prosecution for instance?


Mr DEAKIN - It will be impossible to remove any case except one arising under the Constitution, or under Federal legislation involving the interpretation of the Constitution. I move -

That the words "or ought to be," line 1, be omitted.

Amendment agreed to.

Amendment (by Mr. Deakin) proposed -

That the words " under this Act," line 2, be omitted.

Mr. ISAACS(Indi).- Does not the AttorneyGeneral intend to insert any words in place of the words " or ought to be " ?


Mr Deakin - No. The clause will read, " when a cause is removed," and so on.


Mr ISAACS - Do the words "is removed," mean " ordered to be removed "?


Mr Deakin - It will have to be ordered to be removed.

Amendment agreed to.

Amendment (by Mr. Deakin) agreed to -

That the words " or entitled to remove it," lines 9 and 10, be omitted.

Clause, as amended, agreed to.

Postponed clause 49 agreed to.

Postponed clause 50 -

Any matter of Federal jurisdiction which is at any time pending in the High Court .... may be remitted for trial to any court of a State which has Federal jurisdiction ....


Mr DEAKIN - There are three unnecessary words in the first line of this clause. They are the words " of Federal jurisdiction." If a case is not a matter of Federal jurisdiction we shall have no power over it. I move -

That the words "of Federal j urisdiction," line 1 , be omitted.

Amendment agreed to.

Clause, as amended, agreed to.

Postponed clause 51 agreed to.

Postponed clause 54 verbally amended and agreed to.

Postponed clause 55 -

Any person entitled to practise as a barrister or solicitor in any State shall have the like right to practise as a barrister or solicitor in any Federal Court.

(2)   Provided that before so doing he shall produce to the Principal Registrar evidence showing that he is so entitled and in what capacity, and shall procure his name to be entered in a Register of Practitioners to be kept at the Principal Registry.

Mr. McCAY(Corinella). - In some of the States there is what is known as the amalgamation of the legal profession, while in other States there is no such law. Amalgamation prevails in South Australia, Victoria, and Western Australia, but in New South Wales, Queensland, and Tasmania the two branches of the profession are distinct in law as well as in fact.


Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - In Queensland a barrister may practise as a solicitor or a solicitor as a barrister.


Mr McCAY - I - I am not sure that this clause will preserve in the Federal Courts the rights that legal practitioners have under amalgamation in the States Courts.


Mr Deakin - If a legal practitioner is entitled to practise either as a barrister or as a solicitor, he is entitled to practise in the Federal Court.


Mr McCAY - I think the clause ought to be made clearer, and that any person entitled to practise as a barrister or solicitor in any State should have the right to practise as a barrister and solicitor in any Federal Court. In Victoria there is a good deal of feeling in this connexion, and some members of the profession, in defiance of the law which they are supposed to expound, refuse to regard the amalgamation as any more than a legalfiction. The whole tendency in these days is towards the amalgamation of the legal profession, with the right of the practitioner to specialize if he so chooses. In some of the States the law in regard to lawyers is exactly 100 years behind the law in regard to medical practitioners. It is just about a century ago since apothecaries and surgeons became merged into the medical profession, in which each practitioner still specializes in his work. In the United States we have the amalgamation of the legal profession in its completeness and entirety. I think that the simplest way would be to omit the word " like " and insert after the word " solicitor " in the 3rd line the words " or both."


Mr Deakin - Why omit "like"?


Mr McCAY - Because in New South Wales, for example, a man can only practise as a barrister or solicitor, and the clause would not give a " like " right.


Mr Deakin - Why should we provide for an extra right? What I have done is to endeavour not to interfere with the practice in the States, so that if a State law allows a man to practise as both barrister and solicitor, he may be able to do so in the Federal Court.


Mr McCAY - I should prefer to have an amalgamation of the profession, or give the option of amalgamation, so far as the Federal Courts are concerned.


Mr Glynn - We cannot set the standard of education, but the States can.


Mr McCAY - I agree that we must preserve existing rights in the States. I move -

That, after the word "solicitor," line 2, the words "or both " be inserted.

Amendment agreed to.

Amendment (by Mr. McCay) agreed to-

That the words, line 3, "as a barrister or solicitor" be omitted.


Mr Deakin - I am leaving the words "Federal Court," although, strictly speaking, this clause ought to be limited to the High Court.

Mr. CROUCH(Corio).- Might I suggest that, at the end of the first sub-clause, the words, " or any court exercising Federal jurisdiction " should be added.


Mr Deakin - I think that will come in time, but I have not ventured to propose it here.

Amendment (by Mr. Deakin) agreed to-

That in sub-clause (2) the words "shall procure his name to be entered" be omitted, with a view to insert in lieu thereof the words " the principal registrar shall thereupon enter his name."

Clause, as amended, agreed to.

Postponed clause 56 agreed to.

Postponed clause 57 -

Any person entitled to practice as a barrister in any State, shall, when appearing on behalf of the Commonwealth, be entitled to practise as a barrister in any court exercising Federal jurisdiction in any part of theCommonwealth.

Sir JOHNQUICK (Bendigo). - Why should the operation of this clause be limited to a legal practitioner appearing on behalf of the Commonwealth 1 Why should not every legal practitioner be entitled to appear in any Federal Court ?


Mr DEAKIN - Every legal practitioner has the right to appear in any Federal Court, but not in every court exercising Federal jurisdiction. If that were allowed it would introduce into every State practitioners from another State ; and although I believe that right will be given in time to come, it is too big a stride to take at present.

Mr. CROUCH(Corio). - Unless the words " or solicitor " are inserted after " barrister " the clause will mean that the Crown Solicitor, who may be stationed at the seat of government, and perhaps not able to attend a court at a distance, will have to instruct a barrister. In many cases it has been the practice for the Crown to instruct a solicitor, who does the work in a simpler manner, and at a much cheaper rate.


Mr Deakin - It will be a barrister and solicitor who will be employed in some cases.


Mr CROUCH - But there are States in which there is no amalgamation of the profession, and I think there ought to be the right to instruct a solicitor in another State.


Mr Deakin - It is thought that the Crown Solicitor will act either by himself or by his representative in each State ; but. I will consider the point.

Mr. ISAACS(Indi).- I do not feel quite satisfied with the explanation of the Attorney-General. I quite agree that we should not interfere with the legal profession in the States, but I do not quite see why this privilege should be given only to the . barrister whom the Commonwealth selects.


Mr Deakin - There is a possibility that the barrister may have appeared in similar cases in a particular State, and to employ him again would save instructing another barrister.


Sir John Quick - If we have power to let a barrister, appearing on behalf of the Commonwealth, appear in any of the States Courts, why have we not power to let all legal practitioners do so?


Mr Deakin - I do notsay that we have not the power, but I think that it is inexpedient to exercise it at once.


Mr ISAACS - I do not see why we should invade the States jurisdiction even for this purpose. I can hardly conceive that it is impossible to get in any of the States a local practitioner capable of doing the work.


Mr Deakin - It is quite possible. This is merely a convenience. I do not attach much importance to the provision.


Sir John Quick - Why discriminate? Let us have all or none.

Mr. CROUCH(Corio).- Is the AttorneyGeneral prepared to give all? I think that this matter should have been dealt with in clause 55, when I suggested an amendment, but I then understood the AttorneyGeneral to say that it would be provided for in the future. That statement I took to be a promise that the matter would be attended to later on.


Mr Deakin - What I meant was that ultimately we may come to it, but that I do not think it wise to provide for it in this measure.


Sir John Quick - If the honorable and learned member moves the omission of the words " if appearing on behalf of the Commonwealth," I will support him.


Mr CROUCH - Will clause 55 be recommitted?


Mr Deakin - I will recommit any clause of that nature in regard to which there is really a request for a recommittal.

Clause negatived.

Postponed clauses 58 to 62 agreed to.

Progress reported.







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