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Tuesday, 13 September 1904

Mr DEAKIN (Ballarat) - I notice that the first words of this clause, to which attention was drawn when the Bill was last discussed during the time of the late Government, have not been withdrawn. It was, I think, the honorable and learned member for Indi who first called attention to the fact that the words " Subject to the Constitution " might convey a very serious implication. The clause, without those words, is clear ; and I was able to inform honorable members, when the Bill was last before us, of the circumstances under which the words were introduced. The object was to satisfy the lay members of the Barton Cabinet that there was no intention to override' the Constitution. For .that purpose only were the words introduced ; and I pointed out at the time that the clause, as it stood, would suffice. In the subsequent discussion in Committee, it was stated that " subject to the Constitution ' ' having been introduced, the implication on the part of the Court probably would be that it was intended that, even if the Court created under this Bill were to override, to ignore, or to contravene some of the express provisions of the Act, its action could hot be called in question in any other Court whatever. In point of fact, from the insertion of these words the implication would be that the Court would not be subject to anything except the Constitution, not even to the Bill under which it was created. That was a very serious consideration, and I followed the honorable and learned member for Indi in asking that special attention should be given to the point. I presume that attention was given by the late Government; but their inaction seems to me sufficiently momentous to, at all events, call for explanation. I think it would require a good deal of argument to satisfy the Committee that,' when we are passing a Bill for the purpose of creating a Court with certain very large and definite powers, we, at the same time, intend that any illegal action of the Court, so far as that action would be made illegal by transcending or violating part of this Bill, shall not be called in question in any other Court. The additions which are to be proposed at the end of the clause are a decided improvement, and with them I entirely agree; but those additions appear to be called for quite independently of the words " Subject to the' Constitution." The proposal is to add two sub-clauses which allow the President, if he thinks fit, to obtain the opinion of the High Court, and' authorize the High Court to hear and determine the question and remit the opinion to the President. That is a very useful and proper provision, but it does not affect the prior issue. The question is whether we intend, by the insertion of the words, " Subject' tb the Constitution," to set the Court free from the obligations which we ourselves have so carefully and elaborately set out in the Bill, or whether we do not mean what the clause originally said, namely, that no decision of the Court is to be challenged, appealed against, or called in question by any other Court, unless the decision is contrary to the Constitution - a restriction which, even if we wished, we could not evade or disqualify - or contrary to this Bill. I take it that the intention was - I know it was my intention when the clause was drafted - that the Arbitration Court was to possess the powers set out in the Bill, and no others - just those powers for a specified purpose, and was not to be set free from any obligation, or to be allowed to create an authority for itself without the sanction of Parliament, as expressed in the Bill. I move -

That the words " Subject to the Constitution " be left out.

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