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Tuesday, 30 June 1903


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - I intend to support the insertion of the proposed new clause, and I think that the Attorney-General - in view of his attitude throughout the discussion of this measure - ought to adopt a similar course. It seems to me that the honorable and learned member for Werriwa has quite misunderstood the scope and effect of the proposal. It is all very well for him to say that this Parliament has power to enact legislation which would absolve us from the effect of any judgment by the Privy Council which did not accord with our own ideas. But I would point out that the proposed new clause aims at securing the interpretation of our Constitution by the High Court. We know from American experience that it requires many years to effect an alteration in the Constitution, even when a majority of the people are in favour of its amendment. But, apart from that consideration, the proposed new clause coincides with my own ideas as to the way in which we should deal with the High Court and with our Constitution. If we are to create a High Court, I hold that that tribunal, and no other, should determine all matters affecting our Constitution. 1 I shall support the "honorable and learned member for Corio, unless it' can be shown by legal luminaries ; that his proposal contains some defect.


Mr DEAKIN - I trust that the Committee will not agree to the proposed new clause. I am not deterred from saying this by the fact that - as the honorable and learned member for Corio correctly supposed - it reflects my own ideas of what the High Court ought to be. But I do not assume that it represents the views of a majority of the people of Australia who approved of our Constitution. They approved of that Constitution with a greater limitation upon the appeal to the Judicial Committee than the Constitution Act now imposes. I doubt if a majority of the people at any time were sufficiently informed upon this, question to adopt the view which was entertained by the Convention until its very last sitting. The members of the Convention desired that the High Court of the future should be the sole Court of Appeal in all matters arising in litigation in Australia. But, as representations were received from State after State, the conviction was forced upon the delegates in England that if they insisted upon embodying the views contained in the Bill as submitted to the country, they would lose a large measure of support and probably imperil its acceptance. It was in obedience to what they believed to be the wish of the people that modified proposals were inserted in the Constitution. That was the reason why the original proposition of the Convention which abolished all appeals to the Privy Council was whittled down to the form in which it appears in this amendment. I have just been refreshing my recollection by a perusal of the report of the proceedings in the House of Commons and the House of Lords when the Constitution Bill, as it was indorsed by the people of Australia, was submitted to those august bodies. The proposal which our Bill contained when amended by the Imperial Government was to sweep away every restriction imposed upon the right of appeal to the Privy Council. It was only after a long struggle, to which reference has already been made, and at considerable peril,, and after a division amongst the Australian Federal delegates .in England, that we were obliged to accept section 74 of the Constitution in its present form, rather than an absolute and unlimited right of appeal embodied in the Constitution Bill.

We obtained that section only upon condition that there should be placed at the end of it the words to which the honorable and learned member for Corio has referred, and which require that, though this Parliament may make laws limiting the matters in which the right of appeal may be asked, such laws shall be reserved by the GovernorGeneral for His Majesty's pleasure. I have two doubts as to this proposal. First, I doubt whether the people of Australia as a whole, or a majority of them, are in favour of the proposal, and, having that doubt, am of opinion that they should have an opportunity of expressing their views on a clause of the kind before it is embodied in an Act.


Mr CROUCH - The people have had several opportunities apart from this proposal.


Mr DEAKIN - I think not. A proposition of the kind, would, I think, require to be specifically submitted - along with other propositions undoubtedly - at a general election in order to obtain a satisfactory verdict. At any rate, there is very little evidence to show that the majority of the people have ' changed the opinion which we believed them to entertain in 1900. Then there is the second consideration that to introduce this new clause would be, certainly, to require the reservation of the Bill for the Royal assent, for, it might be, two years - a period of uncertainty which would be in the highest degree undesirable. Whether honorable members have opposed or have supported the establishment of a High Court, they will unite in agreeing that it would be in the highest degree unwise to have a measure of such importance "hung up "for a year or two.


Mr A McLEAN (GIPPSLAND, VICTORIA) - That is the only redeeming feature of the proposal.


Mr DEAKIN - Although the honorable member for Gippsland retains his opposition to the measure, he will agree that it ought to be either passed or defeated - that a Bill of the kind ought .not to be left in such a position for months that no one can say whether it has been accepted or rejected.


Mr CROUCH - Would there not be an opportunity given to the people of expressing their opinion at a general election ?


Mr DEAKIN - That would be too late to determine the matter.


Sir William McMillan - And it might be dangerous.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - It would be of no use reserving the question for a general election, seeing that no referendum would be taken.


Mr DEAKIN - Exactly ; moreover, when this or a similiar provision is proposed, I dare say the clause now before us - although, perhaps, the best we can get up to the present - could be improved on. The way to educate the people on the question is, first of all, to establish a court to which they may - transfer the confidence which many of them now repose in the Judicial Committee of the Privy Council. Not until we have a court of repute, of standing, and of manifest capacity, shall we be able to .satisfy the great body of the people as to the judicial decisions which they may obtain in their own country. There is a proverb in several languages to the effect that far fields always look the best, and, no doubt, " distance lends enchantment to the view," even in judicial matters. Not until the public of Australia have had an opportunity of witnessing directly the working of a High Court amongst ourselves, so that their confidence may be reposed in that court, would it, in my opinion, be judicious to submit to them a proposal to further limit appeals to the Judicial Committee of the Privy Council. At present there is no doubt that the great body of the people of Australia have confidence in that body; and it appears to me unwise, even on the part of those who desire to see appeals limited, to press a proposition of the kind until a High Court has been established, and has justified its establishment by creating its own reputation. Under the circumstances, I hope the honorable and learned member for Corio will not press his amendment, because, if he does so, I shall be compelled to vote against it inorderthat this measure may not be left in a condition of suspended animation - in order that we may know definitely whether the Bill is to be accepted or rejected, and in order that we may not run any risk of adopting a proposal to which the people are opposed. The new clause, even if adopted, would not destroy the Bill, because, in my opinion, "-to this complexion must we come at last." This proposal, or some similar proposal will, in my view, be adopted within the next few years. The present proposal may be premature - possibly it is - but it appears to me that the High Court of the future, when once it is well grounded in the confidence of the people, will be trusted in Australia whether or not the appeals to the Privy Council are limited. A right of appeal will still be possessed either to the presentJudicial Committee of the Privy Council, or, let us hope, to the one Imperial Court of Appeal which we. all desire to seeestablished. But when demonstration can be afforded that litigants can obtain from a court of the first class in Australia, at less expense and at less delay, judgments which may be relied on ; when litigants are satisfied that they have at their own doors a court as trustworthy - perhaps in Australian matters more trustworthy than a distant court however eminent - weshall find that the practice of appealing, oversea will gradually fall into disuse, and that, without any new restriction of this kind, the High Court will draw to itself theappeal business of Australia. But beyond, that, when it has been so demonstrated, if Parliament thinks fit, it will still be possibleto alter the law in this direction with theconsent of the people here, and without creating any difficulty in the mother country.







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