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Thursday, 2 November 1905


Senator Sir JOSIAH SYMON (South Australia) - I move- -

That the Bill be now read a second time.

The Federal Judicature is of deep interest and concern to all of us, but there is a. mistaken impression that it means the High Court. That is not so. The High Courtis a part, and a most important part, of the Federal Judicature - it is the apex "of the structure, but it is not the structure itself. The .States Courts, being vested with Federal jurisdiction, are to that extent a part of the Federal Judicature equally with the High Court. Unhappily, the character of the States Courts in this respect has very frequently been forgotten or overlooked. Toinvest _ the States Courts with Federal jurisdiction would have been an empty form, -unless it was intended to be exercised, and the Courts were encouraged in its exercise. Therefore, the States Courts of Australia have a double claim to consideration and regard, first as Courts exercising a very high and important jurisdic- tion of their own; and, secondly, as, in fact, Federal Courts, inasmuch as they are vested with Federal jurisdiction. I shall not say it is notorious, but, at any rate, it is, I think, a subject of remark that the States Courts, vested with' Federal jurisdiction, have not had those opportunities for acquiring that additional prestige which it was anticipated by the framers of the Constitution would attach to them. These opportunities, somehow or other, do not * come to them. On the other hand there seems to be rather a tendency, or, at any rate, a result tending to discount the States Courts, and to stamp them, to some extent, as regards Federal jurisdiction, with inferiority. That certainly was not contemplated by the framers of the Constitution. On the contrary, it was intended to maintain, and, I might say, to exalt the status of the Supreme Courts of the States, and to enlarge the distinguished usefulness which previously belonged to them.


Senator Givens - Which should be the superior Court in Australia?


Senator Sir JOSIAH SYMON - The High Court of Australia.


Senator Givens - Then the other Courts must be inferior.


Senator Sir JOSIAH SYMON - Certainly, as being subject to appeal, but not inferior to what they were before. The High Court of Australia is the appellate Court, and if Senator Givens will bear with me a few minutes, I shall show exactly the position which I wish to make clear to the Senate. For the reasons I have indicated, it is well we should review the situation, especially in the Senate, which is repository, and charged with the guardianship of States interests. We can inflict no more serious, perhaps fatal, wound .upon the States than by consciously or unconsciously countenancing anything tending to depreciate the States Courts- to depreciate the justice administered by those Courts - or to weaken the confidence which has hitherto been reposed in them. In the next place, our Judiciary Act, passed in 1903, was legislation establishing an entirely new system, and, in regard to such legislation, whether dealing with the Judicature or any other matter, opportunities of revision are to be welcomed. _ We all remember the Judicature Act, which was passed in England some thirty years ago, and which entirely changed the judiciary system, particularly as to procedure, of the mother country. A very distinguished con stitutional writer, Sir Frederick Pollock, is worth quoting in this connexion, and when we read his words we feel that, without any disparagement to the work which we did in 1903, we may fairly, and I think beneficially to the Commonwealth, revise the law then adopted, with a view to its being made more perfect. Sir Frederick Pollock said -

Twenty years ago the authors of our Judicature Acts in England, men of the highest eminence, but trained exclusively in the Chancery system, went about to engraft considerable parts of that system on the practice of the Courts of Common Law. What came of their good intentions? Instead of the simplicity and substantial equity which they looked for, the new birth of justice was found to be perplexed practice, vexatious interlocutory proceedings, and multiplication of appeals -

I.   impress that observation on the attention of honorable senators - and costs, so that for several years the latter state of the suitor was worse than the former. Repeated revision of the Rules of Court, and some fresh legislation, was needed before the reconstructed machine would work smoothly.

A good deal of what I have read applies, I think, very forcibly to the present situation in regard to our judiciary system, even with the experience of the two years which have passed since the Act was brought into force. Moreover, I am convinced that as to organization to some extent, and as to method and procedure, the spirit and intention of the Constitution have been departed from, and, I think, unwisely. Believing that as I do, it is my duty to lay my views before the Senate and the country, and to suggest a remedy. If there is no remedy, or there is a remedy and it has not been applied, then I think that before long we shall have great reason to regret the fact, and we shall have a Judicature which, in relation to its numbers and its cost, we shall be unable to contemplate with any equanimity. Weshall find that the work cannot be done, if it be on the footing which, as I think, inconsistently with the Constitution, has already been' adopted, and I hope to carry honorable senators with me when I explain the basis of mv views in that respect. Finally, in desiring to explain my views, I am' most anxious that my own attitude and aims shall be clearly understood. I hope to submit to honorable senators what I know and believe the Constitution demands. This is not a question of majority or minority, but a question of whether we are in the first place to abide by the Constitution, and whether it is right that the true view of the Constitution shall or shall not be accepted. I move the second reading of this Bill with great satisfaction. It is a Bill which I promised to introduce when in office, and which was prepared before Parliament met; and my only regret on retiring from office a few months ago was that I should not be able to introduce it with that aid to its early success which, as honorable senators know, office gives. When Senator Keating asked me what I took leave to regard as a sympathetic question on the first day Parliament met, I felt a sense of disappointment that I was unable to give him the assurance that I should introduce a Bill, having for one of its purposes the making of the High Court as an appellate tribunal, a stationary, and not a perambulating, Court. I wish to say, also by way of preliminary, that, although I quite recognise that the time for private business is extremely fragmentary, and that I can only share it with my fellowmembers in this Chamber, I shall endeavour as far as I can to press this Bill through. I desire as soon as possible to have on the statute-book a definite expression of the intention and desire of Parliament in regard to the question which this Bill raises. If time and fortune are against me this session, I pledge myself to take the Bill up again, and again, and again. I shall never rest until the Federal Judiciary, in all its branches and divisions, is placed on the great and high plane designed for it by the Constitution, and1 by those who framed the Constitution, freed from all temptations to go outside that magnificent area. Honorable senators are aware that when I was in office matters affecting the Judiciary forced themselves on my attention and the attention of the Government, and attracted some public notice. These matters received our anxious consideration from a twofold point of view. One was in respect of what I thought, and think still, to have been the immoderate and reducible expenditure - a subject which was alluded to more or less directly before the prorogation of Parliament last year. That is not the subject with which we are now concerned. I wish honorable senators to understand that that matter is not affected, except indirectly, by the Bill. When the Estimates are before us we shall have an opportunity to deal with that subject, and I hope I shall be able to lay before honorable senators a good deal of information which may assist them. The second' branch, embraced in the subject of this Bill, is on an entirely different plane, involving a grave constitutional aspect, affecting the Commonwealth, the States, and the general administration of justice. That this is no party question I need not say. I am propounding my views entirely as an individual senator. Honorable senators who usually sit with me may possibly disagree with me on some points, but the motive I have is simply that of a senator who desires to abide by the Constitution, and is, of course, solicitous that he should have the support of those whom he may succeed in convincing that the views which he ventures to submit are right. The principles and purpose of the Bill I may summarize in this way : The States Courts first of all are invested with Federal jurisdiction. Secondly, invested with Federal jurisdiction, they should exercise the original Federal jurisdiction of the Commonwealth, with rare, if any, exceptions. Thirdly, the High Court is essentially, and was intended to be, a Court of Appeal. It was intended to be stationary ; not itinerant or to go ora circuit. It was intended to exercise its appellate jurisdiction at the seat of the Court. Fourthly, the power of appellate interference with the States Courts is too wide, is not on the footing upon which it should rest, the provisions contained in the existing Judiciary Act, with regard to special leave, are inappropriate and undesirable, and appeals should not be entertained from single' ' State Judges, to the disparagement of the State Appeal Courts. And fifthly, the Parliament and the Executive are responsible, and ought to be responsible, for providing for the full administration of justice throughout the States, for establishing circuits directly, if there be any, and for making provision for the exercise of the original jurisdiction, if necessary, by circuits for that purpose, if that is to be done by Judges of the High Court. Honorable senators will follow me if I first of .all ask them to bear in mind that the judicial power of the Commonwealth means the whole ambit of Commonwealth jurisdiction, and that section 71 of the Constitution provides -

The judicial powers of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction.

The first thing that strikes one is that the Federal power is not vested solely in the High Court, but in all the Courts which are established by the Commonwealth Parliament or empowered to exercise Federal jurisdiction. A State Court exercising Federal jurisdiction is in every respect as much vested with the judicial power of the Commonwealth within the limits of its jurisdiction as is the High Court itself, the summit of the system. The section investing the State Courts with Federal jurisdiction is an entire departure from anything known in the establishment of any other Federal system. It is new, and it is therefore important to know what was intended by it. We desire that this Constitution, as a noble instrument of government, shall be effectively carried out. We desire that not merely the letter, but the spirit of the instrument shall be given effect. It is our ambition, as well as our duty, to see that we follow in every, way the letter and spirit of the Constitution, and unless in some extraordinary or unavoidable emergency, do not depart from it. It is, therefore, necessary to have regard, not merely to the language - which is plain in that respect - but to the intention and spirit of the framers of the Constitution. It is very useful to look at the genesis of a provision. If we do so in this case we shall ascertain that these words were put into the Constitution - departing in this respect from every other - in order, in the first place, to elevate the States Courts, to exalt them, if honorable senators please, to a higher judicial position than they possessed before making them part of the great Commonwealth judicial system j in the second place, to prevent the necessity of a travelling High Court, certainly as an appellate Court, but also as a Court, exercising - unless in exceptional and rare cases - original jurisdiction ; and, thirdly, it was put in to provide greater facilities for the exercise of the original jurisdiction within the judicial power of the Commonwealth by bringing it to every man's- door through the instrumentality of the States Courts exercising Federal jurisdiction. That was the intention. The Convention sat in its first session in 1897 at Adelaide. This particular portion of the Constitution came before what was known- as the Judiciary Committee of that Convention. I am glad to know that in this Senate we have in my honorable friends, Senators Dobson and Walker, two honorable senators who were, with myself, members of that Judiciary Committee. Mr. Walter James was also a member of it. The judicial power, as I have said, means all that is embraced in the national administration of justice. It is another way of describing the judicial scope of our powers, just as there are other sections of the Constitution which describe the legislative scope. What we had to do 1 was to determine how, by whom, and where that judicial power should be exercised. We had before us the example of the United States of America. We had before us the Acf of Congress passed in 1789 under the American Constitution, and which is similar to our Judiciary Act, to provide for the exercise of the judicial power of that great Commonwealth. We found, as is undoubted, that the system established by that Act of Congress of 1789 was complex, costly, and involved a network of new Courts. Congress under the American Constitution can only create new Courts. It cannot vest any portion of the judicial power of the United States, except in Courts ordained and established by itself. There was no power in the American Constitution to' utilize States Courts. The States Courts of America never were, and are not now, part of the judicial system of that country. Honorable senators are aware that the organization in the United States began with a Supreme Court, comprising a Chief Justice and five Justices, with some thirteen districts, each with its Judges - a district being usually synonomous with a State - and with circuit Courts which embraced one or more districts. Even! then under that system the Supreme Court of Appeal in the United States never travelled.


Senator Mulcahy - There were too many States. '


Senator Sir JOSIAH SYMON - There were only thirteen at that stage. Its Judges, after the appellate sessions were over, travelled in the exercise of original jurisdiction, because they exercised the functions in the earlier stages of circuit Judges. Individual Justices did travel in the exercise of original jurisdiction, but the supreme appellate tribunal never left, in the first instance, Philadelphia, and subsequently Washington. We know that Marshall, afterwards the great Chief Justice of the United States, travelled from where he resided to Philadelphia in order to argue cases in which he was engaged as counsel. We found that state of things. We were impressed in the first place in order, if honorable senators please, to recommend Federation to the States, and to remove one possible source of apprehension, with the desirability of magnifying the jurisdiction of the States Courts, utilizing them, and making them parts of the Federal system. We were impressed with it from the point of view of the States Courts themselves, and also from the point of view of economy, in- order to save the cost involved in introducing the system that existed in the United States of districts and circuits, and so on, with a large number of Judges. We determined to utilize the States Courts as a means of avoiding that difficulty.. We were unanimous upon that point. We were unanimous that by so doing we should maintain the dignity of the States Courts, and magnify them as vested with Federal jurisdiction. We were unanimous that it would contribute to economy, and would recommend the proposed Federation to the people of Australia, perhaps, more readily. Has that been realized? If not, why has it not? Why was this provision inserted in the Constitution? Why were States Courts made part of the Federal Judiciary if they are to be ignored ? We said, and the Constitution says, that we should allow the States Courts to hear everything, subject, of course, to appeal. We said, " Let them undertake all the original jurisdiction possible, with rare exceptions."


Senator Guthrie - What are those rare exceptions ?


Senator Sir JOSIAH SYMON - I shall tell the honorable senator later on. We allowed them to undertake all original jurisdiction, subject to rare exceptions ; and, of course, the Constitution itself contains no provision with regard to making any part of the original jurisdiction vested in the High Court itself exclusive. That was to be left to Parliament. These provisions were carefully discussed. They were, as I have said, a new departure. But before we adopted the recommendation, Sir Samuel Griffith, then Chief Justice of Queensland, was consulted on the subject by my honorable friend Senator Walker, in conjunction with Mr. Walter James, now Agent-General for Western Australia in London. They sent a telegram to Sir Samuel, which, I think, states the position as well as it can be stated. The telegram was this - .

In connexion with the judicial power, it has been suggested in Committee that as there is a Federal Court of Appeal exercising control over all States Courts, the analogy to America is not exact, and that the States Courts should exercise original jurisdiction over Federal matters, reserving to the Federal Parliament power to appoint Federal Courts more by way of reserve, if any State should close its Courts, or obstruct the determination of Federal matters; the object being to avoid the needless creation of Federal Courts in all the States, and the consequent degradation of the States Courts, and avoid the difficulties of litigation which exists in America. Kindly wire your views for Committee's respectful consideration.

Honorable senators will observe that the view which we desired to give effect to, mnc which we eventually did give effect to, was in respect of the vesting of States Courts with Federal jurisdiction. It was put that the object was to avoid the multiplication of Federal Courts in the States, and the "consequent degradation" of States Courts. Sir Samuel Griffith concurred in that. His reply to Senator Walker was -

Disposed to think it necessary to give Federal original jurisdiction in cases against officers of federation and between States. In other cases, see no objection to suggestion, Parliament having power to legislate if necessary. Suggest insertion in section g of " in such place."

I will call attention to the significance of those words in a moment. Of course, honorable senators 'Will understand that I do not suggest that the view of even so eminent a man in regard to a constitutional matter is final, or even authoritative. But this approbation was communicated to the Judiciary Committee. It was comforting. And, of course, it gave a solid assurance to my honorable friend, Senator Walker, who naturally was not very familiar with these matters, and who was desirous of being fortified before giving his individual consent to so important a departure as that to which I have directed attention. The States Courts were to exercise original jurisdiction on Federal matters. The degradation of the States Courts was- to be avoided. Economy was to be subserved. Consequently, the clause was framed as we mow find it. The object of the Committee was clear. ' The meaning of the language used, I think honorable senators will agree, was also perfectly clear. A print of the Constitution as it emerged from the Adelaide session in 1897 was made and was circulated. It will be recollected that an interval took place between that session and the session held in Sydney. During that interval the matter was the subject of public criticism, as was intended. The Convention was desirous that every opportunity for discussion should take place, and that all matters that required review should be reconsidered and rectified. The Bill was the subject of criticism more or less friendly from Sir Samuel Griffith in a pamphlet which' was published during the course of that year. But one clause of the Constitution was the subject of his unqualified eulogy, and that was the provision to which I have called the attention of the Senate. I think they will agree with me that there could be no douLt of its intention, or of what the Judiciary Committee desired. Referring to that provision, Sir Samuel writes in this pamphlet, at page 12 -

An important and valuable alteration in?" substance is contained in section 76 - which is at present section 71 - which provides that the Parliament may invest States Courts with Federal jurisdiction. This will obviate the immediate necessity of establishing Federal Circuit Courts.

Of course, no one could doubt that that was a just and true exposition of the intention of the provision. Why, then, have we these Federal circuits and by the High Court? I have shown that the Judiciary Committee made this departure and inserted this 'clause for the very purpose mentioned in the quotation which I have read. I have shown that the language of the clause itself was susceptible of no other meaning than that which Sir Samuel Griffith gave to it. * And I have shown, upon his eminent authority, that it was one of the most beneficial departures in the framing of the Federal Constitution. But more than that. I direct the attention of honorable senators to the suggestion that there should be inserted in clause 78 of the draft Bill a provision that the judicial power of the High Court should be exercised "by such number of Judges as the Parliament prescribes." That was the clause as it originally stood. But Sir Samuel Griffith suggested the amendment that after the word " Judges " the words " and in such places " should be inserted. What was the object of that ? It was plain that, as the earlier clause stood, investing States Courts with Federal jurisdiction, the intention was that the original jurisdiction should 'be exercised by those Courts, and not bv the High Court Judges on circuit. It was plain, also, of course, that that meant that the appellate Court should not travel, because, if there were to be no circuits for original jurisdiction, it was quite obvious that there could be no circuits contemplated. It was suggested that the words " and at such places " should be inserted in the Constitution, lest the Parliament should otherwise be unable to prescribe that the Judges should sit, for example, in exclusive original jurisdiction at other places than the Seat of Government. And so in the same pamphlet, it is said -

Unless ' it is intended that the High Court should sit in the capital only, some provision should be made for the exercise of jurisdiction by the Federal Judges in other places. A proposal to this effect made in the Convention was apparently misunderstood.

In accordance with my duty as chairman of the Judiciary Committee, it was I who moved iri the Convention - not that I thought it was desirable, or in any way necessary, but in deference to the view which Sir Samuel Griffith had expressed - that these words should be inserted. I expressly said that I did so in courtesy to his suggestion. But the Convention did not insert them in the Constitution, and therefore the inference would be that in Sir Samuel Griffith's opinion, quite apart from the provision to which I have called the attention of honorable senators in section 71, it was not contemplated in the Convention that even the Parliament should give power for sittings of the High Court to 'be held at other places than the Seat of Government. I do not say whether that is so or not. but that is the result. At any rate, am I not justified in saying, in the first place, that the Constitution contemplated no circuits? Am I not justified in saying that the States Courts were intended to exercise all the original Federal jurisdiction, perhaps with one or two rare exceptions, as is the case in America - exceptions, by the by, which are more academical than practical - and that the States Courts were placed under our Constitution in exactly the same position as the Circuit Courts and the District Courts in the United States, these Courts being part of the Federal judicial system ? What does it mean ? It means that district registries are altogether unnecessary. It means that, if these States Courts are Federal Courts, as they are in reality and in substance - they have their own personnel and their own staffs - there will be no travelling in the exercise of the original jurisdiction, and certainly no travelling in the exercise of the appellate jurisdiction. If, of course, there was a duty or an obligation to travel, expense would be a subordinate matter. But if the Constitution contemplated the exercise of this jurisdiction by another set of Federal Courts, why are they to be ignored and expenses incurred which, from that point of view, would be altogether unpardonable? For example, in the United States a case involving a constitutional question, if it goes before a State Court, may be removed into a District Court or a Circuit Court, or the Supreme Court - under machinery of a very elaborate character. But there is no need for anything of that sort here. Why ? Because our States Courts are Federal Courts. That is what I am afraid is usually overlooked. The difference between the judiciary system of the Commonwealth and that of the United States is that our States Courts, for the reasons I have mentioned, are Federal Courts, and are clothed with Federal jurisdiction, which they are not merely entitled to exercise, but which they should exercise. We ought to take care that they have as full an opportunity* of exercising it as the Circuit Courts and the District Courts in the United States. It is quite obvious that if nothing is done we shall soon drift into an extraordinary position. I warn honorable senators of what this will mean. I ask them to recollect the example of the United States of America, with their complicated judicial system - their net-work of Courts - at the time of their establishment. In 1840 they had nine Supreme Court Judges, as they have now. They had twenty-nine or thirty District Court Judges ; later they also appointed Circuit Judges; and since then they have been compelled by pressure of work to establish nine of what are called appellate circuits, differing from the other circuits which previously existed. It is impossible that any three men, however eminent, able, and energetic, can undertake and carry out the system which is now being gradually entered upon in this Commonwealth. If we are going to ignore the provision in the Constitution which makes the States Courts Federal Courts, and invest them with Federal jurisdiction _; if we are going to degrade them, instead of exalting them ; if we are going to take away that jurisdiction, which they have, by simply ignoring them, then we shall be called upon, before many months are over, to add largely to the personnel of the High Court, and to face an expenditure which, I think, we may regard later on as appalling. We have no right to expect three men to do all the work - original, appellate, and everything else - and, in addition, to multiply the number of appeals in the unlooked for way it is being done ; it is impossible. They cannot do it, the Constitution does not require them to do it, and in my humble opinion it is violated in the doing of it. There is not the slightest reason in the world why every single case of Federal jurisdiction, involving constitutional or other points, should not go before the Supreme Courts of the States for determination. It is there that they ought to be determined. The Judiciary Bill was introduced, and the Parliament was asked to give effect to that provision in the Constitution. When moving its second reading, in 1902, Mr. Deakin was good enough to mention that he had submitted the original print to me, and to thank me for some suggestions I had made. I did make suggestions, and in order that honorable senators may see that I have never diverged from the view which I took, which the Judiciary Committee took, and which the Constitution carried into effect by its language, I shall read one or two of them. Of course, a Bill of that character - even more so than a Copyright Bill - is not one which the general run of honorable senators, quite naturally, would be interested in, or, perhaps, if they will forgive me for saying so, care to minutely follow. On a Bill of that description, just as on a much less vital Bill, although a technical one - the Copyright Bill - where honorable senators are in doubt, there is one very excellent axiom, and that is to follow the Government. Owing to confusion of language in the Judiciary Bill - which is not as perfect in draftsmanship as it might be - the loopholes were left through which the existing state of things has been brought about.


Senator Best - But did this escape the honorable and learned senator's attention at the time?


Senator Sir JOSIAH SYMON - No. My first suggestion to the then AttorneyGeneral was made in these terms -

The provisions for expenses should, i think, be struck out. Such allowance is undesirable, unless for circuit purposes, and it should be provided for in the clauses, if any -

There were no such clauses - dealing with circuits. Clause11 -

That is the clause to which reference, has been made, and which says that the High Court may sit at such times and places as may be required.

Clause ii, like many other Glauses, proceeds upon a misconception of what the High Court is. It is not meant to be migratory or peripatetic, although the individual Judges may be under circuit arrangements. The High Court must have a permanent seat just as the High Court of Justice in England or the Supreme Court of the United States has.


Senator Best - And this suggestion was forwarded to Mr. Deakin?


Senator Sir JOSIAH SYMON - Yes, in 1 901, with another suggestion which, although it has not a direct bearing on this point, is interesting from another aspect. I also forwarded a clause, which I framed under the appellate provisions, to this effect : -

The Governor-General may refer to the High Court in its appellate jurisdiction for hearing and determination -

(a)   Any question as to the constitutional validity of any enactment or proposed enactment of the Parliament, but a reference of such question shall only take place upon a joint address of the Senate and House of Representatives desiring the same, and the judgment of the High Court thereon shall be final and conclusive and binding upon every citizen of the Commonwealth, and the validity or otherwise of such enactment or proposed enactment shall not afterwards be, or be liable to be, called in question except by the Parliament for the purposes of repeal, amendment, or otherwise.

(b)   Any other matter which he may think fit to refer, and thereupon the Court shall hear the same and certify its opinion thereon to the GovernorGeneral.

(c)   The procedure, including the mode in which the question shall be argued upon any such reference, shall be as prescribed, and until prescribed, as the High Court or any Judge shall order and direct in each case.

The provision to which I refer as clause 11, which seemed to me susceptible of being construed to be inconsistent with the intention of the Constitution that the High Court, as an appellate Court, should not be migratory but stationary, that there should be no circuits, unless those of an individual Justice, in any original jurisdiction, is the one which has been relied upon to show that there is a possibility of the Parliament having contemplated the High Court travelling about as a Full Court, because it uses the words " the High Court shall sit." Undoubtedly, the clause contains an ambiguity, but when we refer to subsequent sections of the JudiciaryAct the ambiguity is removed, and it is as plain as possible that the term, as used there, does not necessarily mean the Full Court of Appeal. It is satisfied by anysingle Justice. A single Justice in the original jurisdiction constitutes the High Court just as completely as the three Justices in appellate jurisdiction constitute the Full Court. But, passing that by for a moment, there is no doubt as to what I thought on the subject. The position I take up is in accordance with what the Judiciary Committee determined, what the Convention adopted, and what I have always held. I think I may say that the present Prime Minister, who was then Attorney-General, did not differ from me, so far as regards the travelling of the High Court as a Court of Appeal. In March, 1902, I had the pleasure of listening to him when he moved the second reading of the Judiciary Bill, and I then felt assured that he was of the same opinion as myself, namely, that the only travelling contemplated was the travelling of a single Judge in any original jurisdiction it might be desired that the Judge should exercise. Of course, Mr. Deakin is gifted with what we all greatly admire and envy - an overflowing eloquence. But, making all due allowance for the wealth of language with which my honorable and learned friend expressed himself, I think he was reasonably clear, and that what was in his mind was simply that if there had to be any travelling it was travelling in original jurisdiction, and not the travelling of the full appellate Court, with all its associates, tipstaffs, and so forth.


Senator Best - Then the travelling was deliberately resolved onby Parliament?


Senator Sir JOSIAH SYMON - Parliament did not resolve on the travelling at all.


Senator Best - Then where is the occasion for the proposed alteration in the Act?


Senator Sir JOSIAH SYMON - The language of the Act remains as it was adopted then. The speech of Mr. Deakin was published in pamphlet form, and on page 11 there is the following: -

Therefore, so far from having failed to utilize the State courts, we are utilizing them to the full extent of out power. ... In the first session of this Parliament we have passed measures conferring upon them practically all the authority which the Constitution enables us to grant. We have reason to be proud of the learning, the capacity, and the integrity which have been exhibited by the Judges of the various State benches. The community relies upon them. We are proud that upon comparatively few occasions have their deliberate judgments been reversed or varied by the court of final appeal.

I think we shall all agree with that eulogium of the States Courts. At page 23, dealing with the matter of travelling on circuit, Mr. Deakin is thus reported -

When I speak of a High Court I mean a High Court for the people of Australia. I do not mean a High Court that is to sit at the Federal Capital alone, or at a State capital, never to be seen outside it, and only known by the people of the Slates by report and hearsay. I mean a court whose Judges will undertake circuits, and be able to visit every State in the union. If we have a Federal court at all, it must be a court sitting at State capitals, and, if possible, in other parts of the States, in order that the whole continent may be brought within touch. That is what the United States did. The six first Judges of their Supreme Court undertook the circuit themselves.

That was, individual, circuits in the exercise of original jurisdiction -

They have long ago abandoned that practice, because of the growth of business, but at the establishment of the union they not only commenced with six Judges, but they did what we propose to do with only live Judges, asked them to undertake circuits in Ihe several States, so that the High Court shall be a reality to every State in the union, and not merely a name.

Mr. Deakin,discussing the question particularly in connexion with the number of Judges, said -

It would be very difficult to undertake any circuits at all with three Judges, except, perhaps, in Victoria and New South Wales.


Senator Walker - Is that not a recognition of the principle of going on circuit?


Senator Sir JOSIAH SYMON - Yes, by individual Judges.

Although five Judges are to be appointed, any one Judge may try cases, and with a Bench of live there will be four Judges to whom an appeal can be made from the decision of a single Judge. Honorable members will now see that five Judges is the lowest possible number that will permit of their going on circuit in the different States, and will furnish a sufficient number to 'act as a Court of Appeal from the State Courts, and from the judgments given by a single High Court Judge.


Senator Best - Mr. Deakin apparently contemplated the Court being peripatetic.


Senator Sir JOSIAH SYMON - Not the Full Court of Appeal. In the passage I have quoted, Mr. Deakin was alluding to the cir cuits of individual Judges, and pointing out that if there were no more than three Judges, which number constitutes a quorum, it would be impossible to have circuits - that circuits would only be possible in Victoria and New South Wales, where the Judges could easily be reached in order to constitute a quorum of the Full Court. The report of Mr. Deakin' s speech went on -

Mr.Cameron. Supposing that a case involving a constitutional point were to arise in Tasmania, would that be tried in the first instance by one Judge of the High Court?

Mr. DEAKIN.It could be. Cases involving constitutional questions may arise in any court.. It is conceivable that a case, involving a constitutional point, might originate in a police court in Tasmania. It would probably come before a Judge of the High Court on circuit in Tasmania, and there would be an appeal from him to the High Court, and then to the Privy Council, if it were thought necessary. Not only are five Judges required to enable the States to be visited -

That is, visited by single Judges, still leaving a quorum - but to allow of a proper quorum being fixed in every case. We propose to fix the quorum of Judges for the trial of appeals from the State Courts at four.

The argument that was used to induce Parliament to agree to a larger number of Judges was that, with a quorum of three to constitute an appellate Court, there would not be left any Judge, except" in Victoria and New South Wales, to take individual circuits in original jurisdiction. In June, 1903, Mr. Deakin is reported in Hansard as using very similar language. The report is as follows : -

SirJohn Quick. Will not the circuit courts involve great expense? They will be part of the paraphernalia.

Mr. Deakinwent on to make some remarks about the word " paraphernalia," and the report proceeds -

SirJohn Quick. For sending Judges all over the Continent to exercise primary jurisdiction.

Mr. DEAKIN.That depends on the number of Justices. If honorable members desire to cut down the number, the original jurisdiction of the High Court will be available only to a limited extent, because three Judges cannot go on circuit as often as five.

In the course of debate, where there are interjections, the language is not, perhaps, so clear as it 'might be, but there can be no doubt . that what Mr. Deakin conveyed at that moment was the inconvenience which would result if there were only three Judges instead of five, because the circuit arrangements in original jurisdiction would be greatly interfered with. Mr. Deakin went on -

The circuits and their extent will be determined by the number of Judges and not by the jurisdiction of the Court.

That is, original jurisdiction.

By conferring this original jurisdiction upon the High Court honorable members will not necessarily increase the expense, but they will increase the opportunities enabling litigants to avail themselves of the Courts.

That is, in the Court's original jurisdiction.

Very few opportunities will, however, be afforded in the more distant States for the exercise of the original jurisdiction of the High Court if the number of Judges is reduced.

Mr. McCay.That is to say, if we appoint fewer Judges than is proposed the original jurisdiction conferred on the Court will be practically a dead letter.

Mr. DEAKIN.No. I do not mean that; but the original jurisdiction can only be exercised to a limited degree, because the Judges cannot visit the various States with the same frequency as if the Bench were stronger, and, therefore, fewer opportunities will be presented to local litigants.

The report proceeds, on the following page-

At certain dates there will be regular visitations by a Justice of the High Court. If occasion requires, there may be visitations at other times, but there will be certain fixed dates upon which a Justice of the High Court will visit different States.

That, of course, contemplates ordinary periodical circuits -which have never been established at all -

If you wish to commence an action involving a constitutional question, which is pre-eminently a Federal question, you must do so in a State Court.


Senator Dobson - Is there not some discrepancy there? Senator Symon's main argument is that we have ignored the power in the Constitution to give Federal jurisdiction to the States Courts, whereas Mr. Deakin is reported as saying that we have made most ample use of the States Courts.


Senator Sir JOSIAH SYMON - We have made no use of the States Courts. My object, first of all, is to lay before the Senate a narrative of the processes by which this part of the Constitution has been evolved, what it means, and what Parliament has done under it.


Senator Dobson - Then Mr. Deakin's Statement, that we have made the fullest use of the States Courts, is contrary to facts ?


Senator Sir JOSIAH SYMON - I think we are making no use of the States Courts, although Parliament intended that the fullest use should be made of them. Mr. Deakin, at that time, was dealing with the Bill, and speaking of what was intended.


Senator Dobson - In the Judiciary Bill, as originally drafted, was full Federal jurisdiction conferred on the States Courts ?


Senator Sir JOSIAH SYMON - Yes.


Senator Dobson - And the provision was struck out ?


Senator Sir JOSIAH SYMON - No. It is rather departing from the line I intended to pursue, but perhaps it may be convenient to inform honorable senators that when the Bill was first submitted, original jurisdiction was conferred on the High Court in some matters, in addition to those referred to in the Constitution. The debate from which I have last quoted had reference to an amendment moved to reduce that original jurisdiction. That amendment was made, and the original jurisdiction was thus very largely cut down by the House of Representatives on the ground that such jurisdiction ought to be exercised by the States Courts. But in the section there were left the sweeping and all-embracing words, " all matters arising under the Constitution, or involving its interpretation."


Senator Dobson - That is why the High Court has so much to do.


Senator Sir JOSIAH SYMON - No, it is not. I do not speak from the point of view of capacity, but the High Court is taking upon itself a great deal of work which, on the ground of public convenience, saving heavy expense, and speedy administration of justice, could be very much better done by the States Courts.


Senator Dobson - If that be so, we have invested the States Courts with some Federal jurisdiction.


Senator Sir JOSIAH SYMON - We have invested the States Courts with all Federal jurisdiction, except certain exclusive matters.


Senator Dobson - I understood the honorable and learned senator to say that we had ignored the States Courts?


Senator Sir JOSIAH SYMON - We are ignoring their exercise of it in practice.


Senator Dobson - Is it not the litigants who are ignoring it?


Senator Sir JOSIAH SYMON - No.


Senator Best - It must be the litigants who are ignoring it.


Senator Sir JOSIAH SYMON - It is rather anticipating what I was about to say, but, so far as regards the appeals, there is provision in the Act for special leave, and appeals are multiplied by that means, and also by permitting appeals from single Judges sitting to try cases with juries. That is the first thing. The second is that, with regard to the original jurisdiction, what ought to be provided is that that original jurisdiction should be exercised as by District and Circuit Courts in America, by the States Courts exercising Federal jurisdiction, unless it may be, in any particular cases the High Court should direct otherwise. My object is to make amendments which will bring about that result. If we are going to hand over the whole of the original jurisdiction in respect of Federal matters to the High Court, we shall be putting upon them a duty which it was never intended that they should discharge.


Senator Best - But both the States Courts and the Federal Courts have that jurisdiction at present.


Senator Sir JOSIAH SYMON - That is so.


Senator Best - And litigants can choose one or the other.


Senator Sir JOSIAH SYMON - I say that they should not be permitted to do so.


Senator Best - The honorable and learned senator desires to cut down their option, and to compel them to resort to the States Courts.


Senator Sir JOSIAH SYMON - I am seeking to amend the Judiciary Act, in order to prevent the present inconvenient, costly, and, as I think, unconstitutional course of proceeding.


Senator Best - Litigants select that course with all its disadvantages.


Senator Sir JOSIAH SYMON - I am endeavouring to inform the honorable and learned senator that I am seeking to amend the Act, with a view to put a stop to that.


Senator Best - In other words, the honorable and learned senator contends that he knows thebusiness of litigants better than they know it themselves.


Senator Sir JOSIAH SYMON - I should prefer that the honorable and learned senator would allow me to go on. An interjection of that sort is not calculated to assist discussion.


Senator Best - I did not make it offensively.


Senator Sir JOSIAH SYMON - I do not suggest that for a moment. Senator Best was not present when I commenced my speech, and I appear to have failed altogether to make it clear to him that what I desire is that we should have our judiciary system consistent with the Constitution. By the Constitution we have provided that States Courts shall exercise Federal jurisdiction, but we do not give them that Federal jurisdiction to exercise. Instead of compelling litigants, as is done in the United States, to take their cases in original jurisdiction to the Circuit Courts and District Courts - unless in exceptional cases which are ordered to be removed, and so on - we give them the opportunity to take them to the High Court, which shortly will not be able to deal with them, even if it is now. We know that perfectly well, no matter what their power may be. We ought not to permit that. If the state of things exists to which Senator Best has referred - and I admit that it does - the sooner we alter it the better, by carrying out the intention' of the Constitution, and directing all that jurisdiction into the channel which the Constitution intended,namely, the Supreme Courts of the States.


Senator Dobson - The present practice may be due to some extent to objections urged when the High Court was established, that the Judges would' not have enough work to do for years.


Senator Sir JOSIAH SYMON - Senator Dobsonis suggesting that the High Court Judges adopt the practice in order to make work for themselves. That may be so, but we must still adhere to the Constitution.


Senator O'Keefe - Is it not, after all, due to the choice of the litigant, and to the fact that he prefers to go direct to the High Court.


Senator Sir JOSIAH SYMON - We have created our States Courts Federal Courts. Does not Senator O'Keefe think that it is derogatory to the States Courts that we should not send to them the business that ought to be transacted by them ?


Senator O'Keefe - I have more sympathy with the litigants than with the States Courts.


Senator Sir JOSIAH SYMON - I remind Senator O'Keefe that the Constitu-' tion says that the States Courts shall be invested with Federal jurisdiction. We have made them Federal Courts, and have placed them in the position of. the Circuit and District Courts of the United States. All this jurisdiction is in the United States sent to the Circuit and District Courts compulsorily. Why should not our States Supreme Courts be placed in the same position?


Senator O'Keefe - Does not the present practice enable the litigant to save money? If he were to go to a State Court invested with Federal jurisdiction would there not be the chance of an appeal to the High Court?


Senator Sir JOSIAH SYMON - Of course there would, but there would be exactly the same chance of appeal if he went before a Judge of the High Court.


Senator O'Keefe - If he goes direct to the High Court rather than to a State Court, is not that calculated to save him a lot of expense and time?


Senator Sir JOSIAH SYMON - I think not. If we are to send the whole of our judicial business to the High Court we should change the judicial system established by the Constitution. Honorable senators must see that the work could not be done by three Judges. I am again rather anticipating what I desired to say, but I suggest to honorable senators that if we have the three Judges of the High Court going to Western Australia they may be detained there by a prolongation of the sitting, by the non-departure of the boat on the day appointed, or by bad weather on returning ; and they may be a few days late in getting back, with the result that cases must be postponed, jurymen and litigants inconvenienced, and the whole business disarranged. Members of the legal profession know the expense and inconvenience caused in that way. There is a further difficulty. Suppose a case is set down for trial in Western Australia or in Queensland, if it is impossible for the Judges to be there, it must stand over, although we have so many Judges in each State always available to try cases, that there need be no delay in the administration of justice. When Judges of the High Court were required to try a case of original jurisdiction, they might be engaged in appellate business in a remote State of the Commonwealth. _


Senator Best - Apart from the question of expense, is not this the position : There may be an appeal from a primary Judge to the' State Full Court, and from the State Full Court again to the High Court, and the litigant says, "I prefer to go direct to the High Court to avoid the risk of an appeal from a Judge of the Supreme Court of a State to the Full Court of the State."


Senator Sir JOSIAH SYMON - Senator Bestknows perfectly well that if we have a judicial system, as we have under our Constitution, we should adhere to what the Constitution prescribes.


Senator Best - But have I not described the actual state of affairs?


Senator Sir JOSIAH SYMON - Senator Bestmust see that we have established not only a High Court, but also Federal Courts in each State by investing States Courts with Federal jurisdiction. The object of that was to lessen expense and to magnify the jurisdiction of the States Courts. Why should we undo what the Constitution contemplated by adopting the system now in vogue, which unnecessarily loads up, first of all the High Court with work which it will very soon be impossible for it to discharge, and, in the second place takes away from the States Courts the jurisdiction which they are fitted and authorized to exercise? In the next place, why should we run the risk of delaying and impeding justice in consequence of the small personnel of the High Court, which, as Mr. Deakin pointed out, renders it impossible to have cases tried as speedily as they would be if the appellate jurisdiction of the High Court were to be adequately discharged ? Does not Senator Best admit that position?


Senator Best - I can hardly do so. What I contend is that the Judiciary, Act] is strictly in the terms of the Constitution.


Senator Sir JOSIAH SYMON - Perhaps it would be more convenient if I were to proceed with my exposition in the way I proposed. I venture to think that certainly the intention of the Constitution was that original jurisdiction! should be exercised by the States Courts as Federal Courts. It seems to me also that in the exercise of the appellate jurisdiction the High Court of Appeal should be a fixed and stationary tribunal. That it was so intended is, I think, plain from the rules in regard to appellate jurisdiction provided for in the High Court Procedure Act, which were adopted by Parliament. Without going into them in too much detail, honorable senators will find that by these rules, in section i, rules 13 and 25 ; section 2, rule 3 ; section 4. rules 11 and 12, and elsewhere in various places, it was intended that the appellate jurisdiction should be exercised at the principal seat of the Court. Without troubling to read them those rules provided that upon any appeal being entered at any district registry anywhere throughout the States, all the papers should be immediately forwarded to the principal registry. The whole of the procedure laid down byl these rules contemplated the hearing of appeals at the principal registry, and at the principal registry only. It is a very curious thing that even in regard to the original jurisdiction - and honorable senators who are members of the legal profession will understand this - they were all to be " tested," as the expression is, at the principal registry of the High Court. I do not trouble to read these rules, or to lay special stress upon them, because the learned Chief Justice himself admits the scheme of procedure contemplated by Parliament was that appeals should be heard at the principal seat of the Court. On the occasion of a public congratulatory address on the first visit of the High Court to Adelaide, the Chief Justice, in replying, said this-

The scheme of procedure as passed by Parliament was that the Court should sit in Melbourne or the capital city of the Commonwealth.

Subsequently, as I shall show in a moment, the departure made from that was a departure in point of policy, but made, not by Parliament and not by the Executive, but by the Judges of the High Court themselves. Honorable senators may recollect, in that connexion, that when the Estimates for 1903 were passed, the sum set down for travelling expenses was £200. Of course, we know that all that was contemplated then, was that there were to be visits of ceremony to the different States capitals by the newlyconstituted High Court. I do not think that anybody expected at that time that the £200 would swell into £3,294 in about twelve months. The first visit of the High Court was, as every one recognised, formal, and it was so expressed by the learned Judges both at Adelaide and at Melbourne. The Chief Justice said at Melbourne that the Judges thought it desirable they should not be - a mere abstract body, a figment of the brain, but real live human beings, not only willing to be looked at, but desirous of making ourselves acquainted with the different parts of Australia.

What was contemplated by Parliament was evidenced as strongly as it could be by the amount put down in the Estimates in regard to travelling expenses. Therefore, I ven- ture to ask honorable senators to say whether it can be doubted that on the establishment of the Federal Judiciary, wh'ich consists of the High Court and the States Courts exercising Federal jurisdiction, it was intended that no High Court circuits - no appellate circuits - should take place, and that the Constitution and the will of Parliament were entirely opposed to anything of the kind. It was also evident that there was no example or precedent for an itinerary appellate Court. The Chief Justice, in certain letters which have been laid before Parliament, page 11, says frankly enough -

It was recognised that there was no precedent for the proposal ; that is, for the proposal of an itinerating appellate Court. We know quite well also that the High Court of Australia was intended to be what Mr. Bryce so well describes in his Studies in History and Jurisprudence -

Broadly speaking, the Australian High Court will have to follow such steps and discharge such functions as have been followed and discharged in America by that exalted tribunal which Chief Justice John Marshall and other great legal luminaries have made illustrious.

The Supreme Court of the United States, as an appellate tribunal, never travels and never did. In the next place, in Canada, the Supreme Court, which is an appellate tribunal, standing substantially in the same relation to the Canadian Dominion as our High Court does to the Commonwealth, sits at Ottawa, and the Judges are under an obligation to reside within five miles of the city of Ottawa. In England, we know that the House of Lords, the Privy Council, and the Lords Justices of Appeal - the highest Courts of appeal in the Empire - sit in one place, and are not itinerating or peripatetic. So it is with every Court of appeal. It is a stationary tribunal. The action of the High Court of Australia is, therefore, a departure from an invariable and universal precedent throughout the British Dominions - in fact, throughout the whole world. We have also an example in the Supreme Courts of the States themselves. They remain, as appellate tribunals, in the States capitals. They do not travel. I am sure that no honorable senator has ever heard of an appellate tribunal in any country going upon what I call circuit. How was all this reversed? It came about in this way. To me it seems that it came about in the face of the Constitution, in the face of what I think was the will of Parliament, and in ,the face of precedent. On the 30th June, 1903, the Age newspaper wrote: -

The High Court should have sat in the capital of the Commonwealth. There the Judges preside, the officers carry on their duties, and the records are kept.

That, I think, is a very excellent statement of what we should expect in the case of our Judiciary.


Senator Walker - That is a strong argument in favour of the Capital being settled as soon as possible.


Senator Sir JOSIAH SYMON - It is a strong argument for objecting to what is being done at present. Melbourne is the capital and the Seat of Government of this Commonwealth. I do not wish to say one word that could arouse any feeling on the part of my friends from New South Wales, but I call the attention of the Senate to this : That when the Judiciary Act was assented to in 1903, the first thing done immediately afterwards was to proclaim Melbourne the principal seat of the High Court. That was done on the 2nd October. The learned Justices were appointed on 5th October. And it is a remarkable thing that in the other House of Parliament, Mr. Crouch - as honorable senators will find from the 14th volume of Hansard, page 141 1 - wanted to have Melbourne named in the Act specifically, instead of leaving the clause as it stood, and as it still stands, namely, that until the Seat of Government is established the principal seat of the Court shall be at such place as the Governor-General shall by proclamation appoint. Melbourne was appointed. That was just as effective as though 'Melbourne had been' named in the Act as Mr. Crouch desired. From my point of view, Melbourne must have been appointed by proclamation the principal seat of the Court. It would have been an absurd anomaly to decide that with our Parliament here, with our Executive here, and with our Administration here, we should have the seat of the High Court in some other place. The Court is part of the machinery of the Federation, and accordingly Melbourne was rightly proclaimed by the Deakin Government as the seat of the Court. By right and by law Melbourne is the capital and the seat of the Court.


Senator Walker - The temporary capital.


Senator Sir JOSIAH SYMON - It is the home of the Court. It is the Federal

Capital at this moment. It is the Seat of Government' at this moment. It is not denied for an instant that the Court, as a Court of Appeal, ought to sit at the capital. It is not denied that that is the intention. To alter that state of things and to provide for a travelling appellate Court is, of course, a question of policy.


Senator Walker - Hear, hear.


Senator Sir JOSIAH SYMON - That was admitted, and there are two letters in which the learned Chief Justice - on page 4, and' again on page 10 of the correspondence - describes it as a question of policy. He says it " involves a question of policy of great importance." In my view, if it is a question of policy that is a matter for Parliament, or for the Executive, to deal with.


Senator Best - Parliament confirmed it by providing the money.


Senator Sir JOSIAH SYMON - That was after the act was done. Parliament may provide the money, but so far as the policy is concerned, it is dangerous for Judges to interfere in matters of policy. It exposes them to attack if the States complain. If the Judges of any Court have thrown upon their shoulders, or assume the responsibility of dealing with a matter of policy as to the necessities of the administration of justice in a particular part of a State, and those facilities are found to be insufficient, it is the Judges who make the arrangements who will be attacked. The Executive 'is responsible for giving opportunities for the administration of justice. If justice is delayed who should be condemned? Not the Judges. They should be removed from the possibility of complaint. Nothing should be more foreign to the aspiration of Judges than that anything they do should be dependent in any way whatever upon public approval or public opinion; because if in one case Judges proclaim their disregard of public opinion when it is unfavorable to their determination, they are expected to be equally uninfluenced by it when thev imagine it to be favorable. But how are thev to ascertain, in any case, what that public opinion is? How are thev to ascertain whether the policy which thev may adopt is supported by the community or not? Of course, one need not, in this Senate, deal in any detail with the principle that Judges ought not to assume to interfere in any way whatever with 'questions of policy.

I do not wish, to detain honorable senators by reading passages from the correspondence which has been tabled, but they will find that it is quite candidly admitted by the learned Chief Justice that the scheme of procedure, as adopted by Parliament, was that these appeals should be heard at the seat of the Court, and that the alteration was made by rules of Court, and the question to which I invite their consideration by means of this Bill, as far as that particular branch is concerned is : " Ought the alteration to be made by Parliament " ?


Senator Walker - Does the honorable and learned senator think that the High Court has exceeded its constitutional power by adopting a perambulating system ?


Senator Sir JOSIAH SYMON - I think it was never contemplated by the Constitution.


Senator Givens - The honorable and learned senator thinks that it would be more properly done by Parliament?


Senator Sir JOSIAH SYMON - Yes. I contend that Parliament never intended to abdicate its function of controlling, if I may put it in that way, the opportunities of getting justice given to the people of the country. The duty of the High Court is to hear, and try cases, and give judgment upon them. Its duty is not to determine whether in a particular State there shall be appellate or original jurisdiction circuits - that is for the Executive and the Parliament. Parliament has never abdicated, and I hope never will abdicate, its obligation in that respect, and if iti did it would be a very dangerous thing for the Court itself. No Justice would lightly accept such a responsibility, because, as I have said, if a complaint were made that the Court did not sit in a State frequently enough, that the interval between its sittings was too long, or too short, the whole burden of a criticism of that kind would rest upon the Justices, which would be highly inconvenient. They should not lav themselves 0Den to criticism in respect of matters which involve the application of public opinion, whether it takes the form of censure or praise. That should be entirely left to the Executive Government, with the sanction, and under the control of Parliament.


Senator Drake - That course was entirely approved by the Executive. I think the Chief Justice said so.


Senator Sir JOSIAH SYMON - I do not want to enter into that matter, because it is; a little controversial. I do not deny that in the correspondence the Chief Justice says that the Justices adopted the policy, and he believed - so he expressed it - with the concurrence of the Executive Government. I do not want even to use the word " complaint," because, so far as this stage is concerned, I desire to preserve this matter entirely free from anything which would be controversial or polemical from that point of view.


Senator Best - But the fact remains that the Parliament accepted the rules of Court which created the policy, and then provided the money to enable the Justices to go from State to State.


Senator Sir JOSIAH SYMON - I differ from my honorable and learned friend. I submit that Parliament never did, by accepting rules, or in any other way, accept the change of policy.


Senator Best - The rules were laid before both Houses, and they provided the necessary money.


Senator Sir JOSIAH SYMON - I do not wish to occupy too much time; but I should be discourteous to my honorable and learned friend if. I did not correct the erroneous impression under which he seems to be labouring. If the scheme of procedure adopted by Parliament was supposed to be wrong or inconvenient, it ought to have been directly asked, as I now ask iti by means of this Bill, to declare, in definite and precise terms, whether these appellates circuits shall take place. I know what my honorable and learned friend really alludes to. I hope it will be distinctly understood that I am not using language of condemnation, but merely stating what the law is, and what the position is. In the Judiciary Act we made a provision which is practically set at nought. We provided that the rules of Court should be laid upon the table of the Senate within forty days if Parliament were sitting, and that they should remain there forforty 'days - that is, making altogether a period of eighty days - in order that it should have an opportunity of saying whether it adopted the rules or not. What happened ? These rules were made on the 1 2th October, the Parliament sat until the 22nd October, and the proper course for the Government to take was to lay the rules .upon the table of each House within those ten days before the close of the Parliament which had passed the Judiciary, Act, and which could, if it had wished, have said whether or not it adopted the alteration of policy made by the learned Judges. But that was not done. Therules were brought into operation, the circuits were taking place, the expense was incurred, and the rules were not laid upon the table until there had come into existence in 1904 a new Parliament, which knew nothing about the subject. We all know how rules are laid upon the table. I was a member of both Parliaments, and it never entered my head that rules , would be made altering policy. I expected rules to be made by the Justices to deal with matters of procedure and the ordinary sittings of the Court, and not to deal with, what was a matter of policy, and to repeal an Act of Parliament. This is indeed a new way to repeal an Act.


Senator Guthrie - But had the Justices the power to repeal an Act?


Senator Sir JOSIAH SYMON - I hold the view that the rules were ultra vires, but I do not wish to go into the matter now. I, as a member of this Parliament, disclaim all responsibility for the rules, and decline to be held as assenting to this change of policy, simply by the fact that a body of rules, laid before a different Parliament in the ordinary way, passed unnoticed. It is a perfectly legitimate, but very slender argument, I think, to say that the Parliamentmust be taken to have assented to this change of policy, simply because the rules of Court, which are usually taken as read, were allowed to pass unnoticed. Senator Best very truly says that Parliament subsequently footed a bill, but he will recollect that it would be very unusual for Parliament to refuse to foot a bill, especially a bill for judicial expenses, which has been paid. What a position we should have been in if we had refused our consent !


Senator Best - As a matter of fact, these expenses were not paid.


Senator Sir JOSIAH SYMON - They were paid.


Senator Best - Not in 1903. The whole question was placed before the Senate by the Government, who said, " If you want the Justices to go from one State to the other, you must provide so much money for the purpose."


Senator Sir JOSIAH SYMON - I never heard anything of the kind. All I know is that when the total amount was brought forward in the Estimates at the end of the year, and by me brought under the notice of honorable senators; attention was called to the extravagant amount of these expenses. I was quite unable at that timeto account for them. I do not wishto go into the question of expensesnow, further than to say that, although on taking office the papers in connexion with what had been done by the Watson Government came before me in August or September, their consideration was postponed in consequence of a vote of want of" confidence, and the subsequent pressure of parliamentary business, and it was impossible to go into them. When attention was drawn to the amount, I promised to thoroughly investigate thematter, and ascertain how it could be best dealt with. This, however, is a question with which I hope to deal when the Estimates are before us ; it has no direct bearing on the amendments which I desire to make in the Act.


Senator Dobson - I call the attention of the honorable and learned senator tosection 12 of the Judiciary Act which is as follows: -

Sittings of the High Court shall be held from time to time as may be required at the principal seat of the Court, and at each place at which thereis a district registry.


Senator Sir JOSIAH SYMON - I am aware of that section.


Senator Dobson - Does it not justify the regulation?


Senator Sir JOSIAH SYMON - That: is the section to which I alluded earlier in the evening, and on which the discussion took place in the House of Representatives, when Mr. Higgins drew attention to theposition, and submitted an amendment. I thought at the time that the amendmentsuggested by Mr. Higgins was unnecessary, because the section is satisfied by one Judge sitting in original jurisdiction. OneJudge on circuit constitutes the High Court, and if Senator Dobson looks at subsequent sections he will see that that isexpressly specified. If I had not been of that opinion when the Bill was passing through the Senate, I should have moved in the same direction as did Mr. Higgins. I frankly admit that I never imagined for a moment that the ambiguous language of the section would have been made use of by some peculiar mind to bring about what I regard as an evasion of the principles of the Constitution. I should havehad no part in passing the Bill if I had anticipated that provision would have beers so twisted.


Senator Dobson - At any rate, the section makes it clear that the regulations are in order.


Senator Sir JOSIAH SYMON - No ; if we have to interpret the Act according to the principles of the Constitution, there is no difficulty whatever. I shall, however, refer, though briefly, to that matter in a moment. I am free to admit that there is a looseness of draftsmanship, which may have brought about the position which I deeply regret, and which I desire to rectify. Having directed attention to the constitutional position, and to the position of Parliament, I desire that Parliament shall have the opportunity by this Bill to clearly say what it wishes to be done. If Parliament chooses to place on 'the statute-book its judgment, that the present arrangement shall be made permanent, that can be done. What I regard as objectionable, and inconsistent with the Federal Judicature in all its branches, is that the existing arrangements are hand-to-mouth and haphazard. The circuits and sittings are left to be fixed by rules of Court made to-day, and revocable to-morrow. The sittings are not periodical, and litigants =never know when; their cases will come on until a rule of Court is made announcing a particular sitting. As Mr. Deakin said* in the speech from which I have already quoted, if there are to be sittings in the different States, they ought to be periodical. There has1, not been a sitting of the High Court in Adelaide for two years until the present time.


Senator Keating - There has been no business.


Senator Sir JOSIAH SYMON - I know; but one reason advanced for a peripatetic High Court is that it will promote Federal unity- that it is the Federal -spirit which is to be benefited by the expenditure. What has become of the Federal spirit in Adelaide for the last two years? How many cases are to determine whether there shall be a sitting of the Court? If there is only one appellate -case awaiting trial in Western Australia, "has the whole Court to go to that State, or have the parties to be kept from justice for a year until some other case is set down ? On the other hand, are the parties to be placed at a disadvantage - though I recognise no disadvantage - in having to retain other counsel at the seat «of the Court or somewhere else?


Senator Mulcahy - Might not appellants be debarred by the expense of coming to Melbourne?


Senator Sir JOSIAH SYMON - I think not. In my opinion, if the question is to be put on that low ground, it would pay the Commonwealth better to provide the expense of bringing counsel to the seat of the Court rather than send the entire Court on circuit to determine one case. However, that is a matter of detail. If Parliament wishes to change the policy which was adopted consciously or unconsciously," and, indirectly, if honorable senators please, by the fact that the rules of Court passed unnoticed, let it be done by Act of Parliament. I have embodied' in this Bill provisions which I believe to be in conformity with the Constitution, and with the design of the great Judicature which we erected. I am not speaking of the High Court alone, but of the whole Judicature ; and I say that we ought to carry out that design to its fullest extent. If honorable senators prefer, for local or State reasons, that the sittings should take place, no matter at what cost, it will inevitably mean an increase in the personnel of the Court. The Judges themselves admit the present system or practice cannot continue. It must end. At page 11 of the correspondence the Chief Justice says -

It was recognised that there was no precedent for the proposal . . . and further that after a time, and as the business of the Court increased, it would probably be found impossible to continue it to its full extent.

On the same page, in paragraph 7, the Chief Justice says -

It is not unlikely that it will in time be found impracticable to carry out the present system in its entirety.

I thoroughly agree with that statement. If we carry out the present system we shall require, not three Judges, but five times that number. Judges are only human beings, and are not gifted with superhuman strength, or the power of being in two or three places at once. At page 1.6 of the correspondence, in reply to the Chief Justice, I expressed a view which will commend itself to honorable senators. I wrote -

You admit that the system of Full Court circuits cannot be expected to continue, but every day it does continue, it will become more firmly established and more difficult to change. Vested rights are set up and strengthened by time. If the business increased, we might want not three Judges but thirty, to provide a full Court of

Appeal for each State. Increasing pressure of work on the Court, which you think would lead to discontinuance, would more likely be used as a lever to increase the number of Judges, to which Parliament is at present unalterably opposed. If discontinuance must come, the prudent thing is' obviously to let it come at once.

If continued, the present system must break down by its own weight, and the sooner we calmly and quietly face the situation the better. In my belief, if these appellate circuits had never! been begun, they would never have been asked for. .Original jurisdiction is the next point with- which the Bill deals. I am endeavouring, instead of confining myself narrowly to the words of particular clauses, to offer for consideration the principles which underlie them. It has often been said that in the United States the field of activity is divided between the States and the Federal Courts on broad and intelligible lines, each recognising their limitations. That remark, owing to circumstances to which I have referred, does not apply to Australia. Certainly, on one side the Courts are not recognised as they should be. Senator Best, earlier in the evening, very properly pointed out that under the present system there is a choice to the litigant. I am seeking to alter that. Just as jurisdiction is given to ordinary Courts, so it is given to the High Court, and to the Supreme Courts of the States, as quasi Federal Courts. Every litigant is not permitted to bring his case in the Supreme Court of a State. If we made a concurrent jurisdiction we might have the same state of things happening. Every man, for a five-pound note, might go to the Supreme Court of a State.


Senator Best - He would soon be discouraged if he attempted that.


Senator Sir JOSIAH SYMON - Why?


Senator Best - Because the Supreme Court would not allow him costs if he went there for a five-pound note.


Senator Sir JOSIAH SYMON - Why does not the High Court do the same thing ?


Senator Best - The High Court has more or less concurrent jurisdiction.


Senator Sir JOSIAH SYMON - So has the other Court. In Victoria it is provided that cases under a certain amount shall be tried in the County Court, just as in South Australia we provide that cases under a certain amount shall be tried in our Local Courts. I think that what we desire to do is sufficiently expressed in the Judiciary Act, but apparently we were mistaken,, and its language is loose enough to enable what I think ought to be remedied to go on. But in the Judiciary Act we should have said, as has been said in the legislation of the States, " You shall bring certain cases to the original and exclusive jurisdiction of the High Court, and all the rest - as is the practice in the United States - shall Le taken to the States Courts exercising Federal jurisdiction."


Senator Best - But that does not apply, because we know that inferior Courts are cheap, and there is a summary means of proceeding. In those other cases the litigants go to the High Court, because it ischeapest in the long run to do so.


Senator Sir JOSIAH SYMON - It isnot any more than it is in the case of the States Supreme Courts.


Senator Best - They think so.


Senator Sir JOSIAH SYMON - Surely. Senator Best must see that the situation is exactly the same as if there were concurrent jurisdiction between the Supreme Court of a State and an inferior Court of a State. Under the Judiciary Act, as Senator Best is aware, there is a provision for what is called remitting cases. That was taken from the 1789 Act of Congress, and it related, not to Federal Courts' like our States Courts, vested with Federal jurisdiction, but to States Courts with ordinary and non-Federal jurisdiction. That is to say, an action might -be brought in a State Court of 'ordinary jurisdiction, and therewas a procedure for removal on the one hand; and, on the other hand, if a case were brought in a Federal Court, not the Supreme Court, because no cases of original jurisdiction are ever brought in that Court, with the exception of the rare cases affecting State and State, or ambassadors and consuls, but a Federal Circuit Court, or District Court, there was a power to remit it to a State Court for trial. That, however, is altogether inapplicable to our position, because? our States Courts are Federal Courts. We shall be reducing our system to a perfect farce if we permit litigants to go past our States Courts, invested with Federal jurisdiction, to burden the High Court with business which it ought not to undertake^ or if we permit them to ignore the StatesFederal Courts altogether.


Senator Best - They prefer to go direct to the final tribunal.


Senator Sir JOSIAH SYMON - My honorable friend must see that they are not going to the final tribunal when they go to a single Judge of the High Court from whom there is still an appeal to the High. Court. It is, after all, its appellate jurisdiction, which here, as in America, clothes the High Court with most of its dignity and most ofl its .usefulness. I think that the practice to which I have referred ought to be remedied. The matter ought to be placed on the same footing as the ordinary jurisdiction of the inferior Courts of the States. We say that cases within a certain limit, or dealing with a certain subject-matter, shall be brought in a County Court, or in the Local Courts, as we calf them in South Australia, but that cases above a certain amount, or involving matters which should come under the jurisdiction, for example, of a Court of Equity, shall be brought, in the first instance, in the Supreme Court. I shall give honorable senators a few examples to show the sort of thing which I say will ultimately break down the High Court, however constituted. There were two land cases in respect of the taking of land at Largs Bay. We provided in the Property for Public Purposes Acquisition Act that in case of a dispute as to the amount of compensation, such cases should be heard in the High Court. We had previously ah Act which enabled them to be dealt with in the Supreme Court of a State which, I should say, is perfectly competent to determine a matter of that kind. However, we said that that power given to the Supreme Court of a State should cease, and that the High Court should deal with such cases. Two cases were brought in the High Court - one for .£254, and another for ^177 ros. - for the value of land and compensation.


Senator Dobson - That is not an example of the mischief of which the honorable and learned senator has been speaking. That is the result of a direct act of the Parliament.


Senator Sir JOSIAH SYMON - I desire to amend it. I say that it is perfectly monstrous that cases of that description should be kept dangling on for months, or for a year, as these cases were.


Senator Dobson - They were cases under the Property for Public Purposes Acquisition Act.


Senator Sir JOSIAH SYMON - My honorable and learned friend must see that I am seeking to alter that.


Senator Dobson - It may be the same question, but it is certainly a different branch' of it.


Senator Best - The honorable and learned senator is not proposing to amend . the Property for Public Purposes Acquisition Act?


Senator Sir JOSIAH SYMON - I am. I may tell Senator Best that I prepared a Bill, with a view to amend the Property for Public Purposes Acquisition Act, in order to prevent these cases being tried in the High Court.


Senator Best - This Bill does not do that.


Senator Sir JOSIAH SYMON - This is -a part of the. system. I desire that every matter of Federal jurisdiction shall be dealt with by the States Courts, and this is one such matter. When stating their policy, the Government intimated that they intended to introduce the Bill to which I have referred. They have not yet done so, but I am sure they recognise the absurdity of sending these cases to the High Court to be tried. Then again, why should not the fish cases, which were tried in Melbourne, have been tried before the Supreme Court of Victoria? No one would for a moment doubt the competence of that Court. It is comprised of men of the greatest possible experience, independence, integrity, and every quality that constitutes great Judges. We have had one example of how an extremely complicated case, arising from an evasion of the Customs Act, was tried by a Judge of the Supreme Court at Brisbane. I refer to the Robert Reid case. I observe that some Customs case is about to be tried here before a Judge of the High Court. Why should it not be tried before the Supreme Court of the State?


Senator Best - Litigants prefer the High Court.


Senator Sir JOSIAH SYMON - I desire to prevent that, otherwise the Federal jurisdiction vested in the States Courts is a perfect farce. I notice that a case, was tried in Perth before the Chief Justice of the High Court and a jury of six the other day, in which a Mrs. Sims Reeves recovered ^75 damages from a gentleman of the name of Norton, who, it was said, had libelled her in Sydney. Honorable senators laugh, but whatever Norton may or may not be, it seems very hard that he should be dragged all the way from Sydney to Perth to defend a case tried there. Surely these cases should not be tried before a Judge of the High Court? This was a case of ordinary juris-' diction, although it was between citizens of different States. But should we not say by

Our legislation that cases of that description shall be tried before a Judge of a Supreme Court of a State?


Senator Best - Up to the present, only a few such' cases have been tried before the High Court.


Senator Sir JOSIAH SYMON - I am merely giving examples. I do not know how many have been so tried, but I remind Senator Best that the Judiciary has only existed for two years. If there is a remedy, should we not alter this kind of thing as .soon as we can? If we intend that the States Courts shall be invested with Federal jurisdiction, and that that shall not be a fiction, we should take care that that jurisdiction shall be exercised by them, and that the High Court shall be a Court of Appeal dealing with everything within appellate limits, in order to keep control and secure uniformity. I do not like to see the Supreme Courts of the States given the go-by, and I entirely deprecate the system of special leave which is permitted by the Judiciary Act. I deprecate these appeals by special leave and appeals from single Judges, especially in ordinary and non-Federal cases. It seems to me a monstrous thing. The sooner we stop that the better. To use the phrase of a very old and learned jurist in England, the Court by this means put their sickle too freely into another man's crop. What does it mean ? It means that in every case it is in the discretion of the High Court to permit an appeal, not in Federal cases involving Federal jurisdiction, or a constitutional question, but in every case that comes under the ordinary jurisdiction of the Supreme Court of a State. I say that' that was never contemplated. There can be no greater curse in this world than too great a facility for appeals. It is to the interest of the State to make an end of litigation. It cannot be denied that by this system, exercised with whatever care we please, appeals are fostered and encouraged.


Senator Dobson - If both sides are determined to appeal, will it not save a step if they go to the High Court direct?


Senator Sir JOSIAH SYMON - I have passed that point for the moment. What I am dealing with now is the appeal fixed by the Judiciary Act. I ask honorable senators to say that the appeal by special leave ought to be stopped. It was objected to when theBill was before the Senate. Senator Gould- - as honorable members will find if they refer to the fifteenth volume of Hansard - objected to it, and pointed out themischief which might arise from it, and which experience shows has arisen from itMr. O'Connor then replied that it only applied to Federal jurisdiction. Well, asapplied to Federal jurisdiction, I do not think that it is a very desirable thing that there should be unrestricted discretion of that kind. But it may not be out of place that it should apply to Federal jurisdiction, because that might involve, in a small case, a constitutional point which? would otherwise be unappealable. But it was never expected to apply to ordinary cases, such as I will give examples of.. It is now being stretched to an extent undreamt of. For instance, special leave was granted in a criminal case in Sydney - the case of Slattery.


Senator Millen - -Lucky for him !


Senator Sir JOSIA'H SYMON - I do not say anything about that; I do not wish to express an opinion one way or the other. There was no appeal in that case except by special leave. In criminal cases there is very seldom power to appeal anywhere, though there is a power to reserve points of law for the opinion of the Court. ' That is so in my own' State.


Senator Dobson - Nor is there in Tasmania.


Senator Sir JOSIAH SYMON - -But the learned Judge who tries the case may reserve a point of law for the consideration of the Full Court. If he reserves such a point of law the Full Court gives judgment. And then, forsooth, the High Court might by the fiction of special leave give an appeal from that judgment. TheY may give special leave to appeal from the judgment of the Full Court, and may reverse the finding of the Full Court and upset the verdict of the jury.


Senator Dobson - The section which permitted that to be done was put in the Act advisedly.


Senator Sir JOSIAH SYMON - No. I have just shown the contrary by reference to Senator Gould's objection, and; how it was met.


Senator Best - Is noi the appeal to the High Court limited to those cases in which ' appeals lie to the King in Counsel ?


Senator Sir JOSIAH SYMON - No. I am stating the exact position. It is not limited in that way. Section 35 of the Judiciary Act provides that -

The appellate jurisdiction of the High Court with respect to 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 extend to the following judgments whether given or pronounced in the exercise of Federal jurisdiction or otherwise.

And then paragraph b of the same section says - any judgment, whether final or interlocutory, and whether in a civil or criminal matter, with respect to which the High Court thinks fit to give special leave to appeal.

So that, as I say, there is unrestricted jurisdiction to grant special leave; and but for that there would have been no appeal in Slattery's case. Then, also in Sydney, special leave was granted in two other cases. One was an application on behalf of the Phoenix Insurance Company, on the 59th September, in an action in which the plaintiff obtained a verdict for ^246 14s. In that case, of course there would be no appeal to the Privy Council against the company. Can any one say there was any great question of public importance justifying special leave in a case of that kind and for that amount? Special leave was also granted in a rating case between a municipality in New South Wales and the Agricultural Society of New South "Wales. Why? Is there to be no finality to State Supreme Court judgments? It was not contemplated or intended that there should be a power on the part of the High Court to literally invite appeals - no matter what amount was involved, no matter what the case was - in any case which was brought before a State" Court. As honorable senators will recollect, we imposed a limit of £300 instead of £500, which was the ordinary limit in respect of Privy Council appeals. But while we reduced the amount to ^300, we also put in those paragraphs to which I have referred, enabling special leave to be given. Unfortunately the enacting or first part of the section said it was to be exercised in case of " Federal " "jurisdiction or otherwise." And although Senator O'Connor, as I have said, when objection was "taken to the provision, said that it only applied to Federal jurisdiction, the power has been enlarged, and, if I may say so, strained, to the extent to which I have referred. I think that everybody who has any desire to see our States Courts maintained in the position of dignity and of usefulness which has brought them distinction ever since the States were founded, will seek to prevent the hand of the High Court being extended to take from those States Courts, by way of appeal, cases which the High Court may in its discretion think it would determine, or might have determined, otherwise. We know perfectly well that we do not allow an appeal from the High Court to the Privy Council in regard to the constitutional relations inter se of the States, or between the States and the Commonwealth, without the High Court itself certifying. I should have no objection whatever to the Supreme Courts of the States having a like power. That is, let them certify in any case, irrespective of the amount affected, that the case may be taken to the High Court if they desire to have the decision of that tribunal upon it. But I think it is a monstrous thing to put it in the power of the High Court to say that it will take this case, that case, or any other case - every case if it chooses - under its appellate jurisdiction from the Courts of the States, to which we have been attached for so long, and whose powers we value so highly. That is all I desire to say upon that. " There is one other matter to which I wish to refer, and that is, as to appeal from single State Judges. Of course one does not criticise - and I have no wish to do so from any technical point of view - judgments delivered by any tribunal. But, so far as they deal with matters of public interest, I think we are bound to deal with them if we intend to propose some remedy. And there are two judgments with which I have never hesitated to express my own individual disagreement - one relating to the exemption of Commonwealth servants from State income tax, and the other the case which is known by the name of Parkin v. James. The former startled the community. The latter, asserting the power of the High Court to entertain an appeal from a single Judge in chambers, shocked the profession. It seems to me that that power ought to be taken away. The difficulty simply is as to making it clear. The language of the Judiciary Act, so far as I can gather, never contemplated anything of the kind. But if it is to be read in that way, I suggest that we should make it plain that that state of things shall not continue. Now, I think I have gone over the principles affecting the main points in the Bill. The details with regard to the various clauses, and their operation, will, I frankly admit, bear a very great deal of discussion. But I think we are all animated by the same desire, and that is to place our Federal Judicature - understanding by that all the Courts .which are comprised within its ambit - on a fair and proper footing, if they do not occupy that position already. I think also that we are all animated by a desire to maintain the great status already acquired by the States Courts, and not in any way to lessen their dignity or their importance. I think, for my own part, that it is right for Judges to magnify their office, and to amplify their jurisdiction; but care should be taken in doing so not even to seem to disparage other tribunals. The dignity of a great Court of Appeal is not affected by a wise view of questions of that character, and' I think myself that if the principles to which I have alluded were carried out in relation to each of the States Courts and the administration of Federal justice we should be able to place our Federal Judicature upon an exalted footing - worthy to stand on a level with the highest Courts of either England or America.

Debate (on motion by Senator Keating) adjourned.







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