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Wednesday, 15 June 1904


Mr HIGGINS (Northern MelbourneAttorneyGeneral) - I think it is clear that the meaning of the clause is that unless an award transgresses the Constitution it must be held to be final. I tell the Committee candidly that that is its effect. If the Judge in making an award made a mistake, . and went beyond the terms of this measure, the award would nevertheless be final as long as it did not conflict with the Constitution. The position, however, is that we contemplate giving the Court tremendous responsibility, but that we intend to place it under the control of an eminent lawyer, a Judge of the High Court, than whom a higher authority on the law could not, in my opinion, be secured. We are simply proposing to give the Arbitration Court - consisting of a President- a power which is given over our persons, and our liberty, every day and every week. I do not know exactly what is the position in the other States, but in Victoria if a man is convicted of murder, and is sentenced to be hanged, there is no appeal.


Mr Ewing - There is the power of the Executive.


Mr HIGGINS - That is not in the nature of an appeal. The life and liberty of any one of us may be subject to the tremendous power wielded by a solitary Judge.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - But we have a very certain safeguard in the jury system.


Mr HIGGINS - I am speaking now of a decision going beyond the law. Honorable members know that a jury can deal only with facts, but the honorable and learned member for Indi is referring only to a mistake made by the President of the Court in regard to a matter of law.


Mr Isaacs - Certainly.


Mr HIGGINS - I am therefore confining myself to that point.


Mr McCay - But in the case suggested by the Attorney-General, it would be possible to have a special case stated.


Mr HIGGINS - That would be voluntary. A Judge who is trying a criminal charge may state a case.


Mr McCay - If he refuses to state a special case on conviction, application may be made to the Full Court for a mandamus to compel him to do so.


Mr HIGGINS - What I wish to convey is that in a case such as that which I have mentioned, there is at least no appeal, and that usually it is for the presiding Judge to say whether he should reserve a question for the opinion of the higher Court. I have a suggestion to make, which I should have made before the honorable and learned member for Indi raised this question. Before this matter was brought forward by the honorable and learned member I had the concurrence of the Prime Minister in a suggestion which I think will perhaps commend itself to a good many honorable members. My proposition is that we should provide that if the Court finds itself face to face with a grave question of law, the determination of which it does not care to take upon itself, it shall be at liberty to reserve a special case for a full bench to decide. In that way we should eliminate that class of case in respect of which we feel so much apprehension - those in which interested parties seek to -postpone the settlement of a dispute until the means of litigation have been exhausted, and to put the other side to all sorts of expense. I take it that every member of the Committee is anxious that, as far as possible, applications to other tribunals shall be avoided ; but our proposal is that no case shall be put before the High Court unless the President of the Arbitration Court, who will be a Judge, thinks it expedient to reserve it for the higher tribunal. Such a provision would, I think, meet all possible cases. But, to reassure honorable members, I must say that I do not think that many cases are likely to occur in which there will be danger of mistakes on the part of the President of the Court. The cases with which the Court will have to deal will be those in which mistakes as to law are not so apt to occur as are mistakes as to statements of fact. I regard with far more apprehension the tremendous power we propose to give a Judge to declare the conditions of any industry ; but still I am pleased and willing to confer it. It is far better to have peace, even at any price, than to have such strikes as have occurred in Colorado or Pennsylvania. I should risk almost anything in order to secure peace. The mistakes which we have to apprehend are mistakes of fact with regard to a particular industry. There is not much reason to apprehend mistakes as to law, especially when we remember that the Court will have the guidance of a trained Judge, such as a member of the High Court Bench must be. If honorable members think it well, I shall be willing to undertake to bring down an amendment thai will allow the President of the Court to state a case for the opinion of tha High Court, in regard to any question of difficulty. If the clause be. passed now, I shall be prepared to recommit it for thai purpose.







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