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Tuesday, 28 November 1905


Senator BEST (Victoria) - It appearsto me that the resolutions which were agreed to as a result of a lengthy Conference form a just basis upon which a settlement could be made. I do not Know that anything could be fairer than that there should be a valuation of the land as from the commencement of Federation. .


Senator Stewart - Has the honorable senator read Mr. Dugald Thomson's remarks ?


Senator BEST - Yes; he wanted the basis of the valuation to be t'he actual cost of the buildings and land. But the basis of the' resolutions of the Hobart Conference is that the value of the land and buildings shall be taken at the time Federation came into operation. Some of the build.ings transferred to "the States are obsolete. Various forts have been mentioned by Senator Clemons. A mint of money may have been expended by the States upon some buildings, which are now useless. It would be most unjust to the people of the Commonwealth to expect us to recoup the States which have wisely or unwisely expended large sums of money in building forts, and so forth - money which may have been wasted - on the basis of the expenditure actually incurred. It is impossible to attain any degree of accuracy in connexion with this matter. Consequently all that is attempted is to arrive at a fair and reasonable basis upon which a settlement of a complex question may be arranged. The sum of £600 in the schedule is.for the purpose of carrying out the resolutions of the Hobart Conference. The late Government most properly set to work to call together the representatives of the various States for the purpose of ascertaining the best means of arriving at a settlement. The present

Government is simply carrying out the same policy. We cannot secure any scientific basis of settlement, and consequently we must act on broad business lines. I think that the proposals made are fair and just. We also have the advantage of knowing that they have been discussed by both Commonwealth and States Ministries, and are mutually satisfactory.

Senator Sir JOSIAHSYMON (South Australia). - I shall be found voting with the Government on this subject. There has been some misconception about it. I do not regard this vote as amounting to a confirmation by the Senate of the resolutions with regard to the settlement of this very troublesome question arrived at by the Hobart Conference, nor do I regard it as settling the question of the basis of the expenditure. I take the view put forward by the Government that this amount of money is set down to cover the expense of inquiries that have already taken place, and will take place, with a view of seeing whether or not the resolutions' of the Hobart Conference can be carried out, and what is the best method to adopt for dealing with the question. If the basis of the settlement is to be discussed now, we shall have matter for debate for the next three months.

Request negatived.

Request (by Senator Dobson) negatived - r

That the House of Representatives be requested to reduce the item " Towards the establishment of a Statistical Bureau, £5,000," by £2,500.

Attorney-General - Economy in Administration : High Court Judges : Travelling Expenses : Associates : Tipstaffs.

Postponed divisions 6 to 19 (The AttorneyGeneral's Department), £8,969.

Senator Sir JOSIAHSYMON (South Australia). - It is not out of place for us to remember that in dealing with the Commonwealth Departments in connexion with lie Appropriation Bill we are practically in the same position as the House of Representatives in granting Supply. In some quarters it seems to be assumed that the Senate really deals with the Appropriation Bill as though we were in the position of a Legislative Council, and were not joining in the granting of Supply. That, however, is not our position. We cannot too emphatically reiterate our constitutional rights. Apart from questions of form, our rights are identical with those possessed by the House of Representatives. In discussing this schedule, we do exactly what the other Chamber Joes in making grants of Supply. We go into Committee of the Whole for that purpose. We have an opportunity of comparing the details of the schedules of the Appropriation Bill with the Estimates, to make a comparison between the appropriations of last year, the expenditure of last year, and the appropriations of the current year. So that one who, like myself, has been responsible for the administration of a Department is in a position to contrast the amounts of appropriation and expenditure of last year with what is proposed for the current year in the Estimates before us. That is a circumstance that ought not to be overlooked. The Senate may well expect a Minister who formerly had charge of "the business of the Senate and of a particular Department, to supply information or to answer criticism in relation to that Department with which he was formerly concerned. Indeed, I hope the day may come when the position of the Senate in respect of Ministers who are here representing the Government of the day may be strengthened. I should like to see the time come - as I hope it will - when the Senate will have a good deal to say as to the Ministers who represent the Executive here. I hore that some constitutional modification mav be possible by means of which the Senate will have a considerable voice in that regard ; and my belief is that if that could come about it may be the means of eliminating from this Chamber a good deal of ordinary party feeling which is, to some extent - I think most honorable senators will agree with me - out of place in a States House, and might verv well, on a great number of questions, at any rate, be moderated, if not altogether dispensed with. I intend to give, all the information in mv power relating to the Department with which we are dealing, and to submit mv administration to criticism. It is an obligation which rests on me, more particularly because last year, when in charge of these particular Estimates, on attention being called to the heavy expenditure under the various items, particularly those relating to travelling expenses


Senator Playford - We are not dealing with travelling expenses, but with salaries.


Senator Sir JOSIAH SYMON - This is the first item of the Department.


Senator Playford - I understood that we were dealing with subdivision No. 1.


Senator Sir JOSIAH SYMON - On the first item my observations may be addressed to the whole expenditure of the Department. On that occasion. I promised to give special and personal supervision to this expenditure, and to see whether some remedy could not be found. Honorable senators will see, in the summary preliminary to the figures with which we are now dealing, that 'last year's appropriation was £10,394. During the year the curtailed expenditure under the administration of the late Government was £8,543 - an actual saving of £1,851, in respect to which, whatever credit there may be, is due to the late Government. Of that £1,851. a sum of £1,122 is saved on the High Court contingencies - that very flexible, elastic item, to which so much criticism has been directed during the course of the day. The appropriation being £3,640, and the expenditure £2,518, the saving under the head of contingencies is, as I say, £1,122. Then, again, this year's estimate is £8,969, showing a reduction on last year's appropriation of £1,425; and I think honorable senators will agree that that is a substantial gain. Of that £1,425, the sum of £975 is under the heading of High Court contingencies, so that, notwithstanding the increase to which I shall presently call honorable senators' attention, there is a saving under the estimate with which we are now dealing of nearly £1,000 upon contingencies formerly charged under the heading of the. High Court. That is despite the fact that there is included the establishment of the new Court under the Conciliation and Arbitration Act of last year.


Senator Mulcahy - There is a separate item for the Conciliation and Arbitration Court.


Senator Sir JOSIAH SYMON - Under that head there- is the sum of £100, of which a small amount has been expended. As to the present year's estimate of £8,969, my honorable friend, with approximate accuracy, referred to it as substantially last year's expenditure. It is, however, not quite the same, being £426 more. I also desire to point out that the Government have adopted my estimate for the Secretary's office of £2.639, n saving on the previous year of £300. The Government have, to a penny, also adopted my estimate for the Crown Solici tor's branch, namely, £1,980, showing a saving of £100. In the case of these two branches, which are more or less the executive branches of the Attorney-General's Department, the Estimates of the late Government are adopted practically, with the saving so effected; and that I think is something, at any rate, to the credit of the late Government. The present Government, however, have raised my estimate for the High Court from £2,665 t0 ;£4j25o, or an increase of £1,585. In other words, the whole of the increases - that is the £426 and the £400 in the Secretary's and Crown Solicitor's branches, together £826 have been absorbed, with £900 more, by the provision made in respect of the High Court. These figures affecting the High Court represent the difference between the administration of the present Government and the administration of the late Government in respect of this Department. How did that come about? I propose to give the Committee the exact facts and figures, on which they will be able to arrive at a _ judgment on the items when these come to be considered.


Senator Givens - How shall we record our judgment?


Senator Sir JOSIAH SYMON - I propose to move one or two reductions, so as to give honorable senators the opportunity. Of course, it will not be necessary for me to move any amendment in regard to the Secretary's office or the Crown Solicitor's branch, and, therefore, the line of difference is in regard >to that portion of the Department which comes under the heading of the High Court. The late Government took office on the 18th August last year. I found a pile of papers of considerable magnitude, entitled " High Court expenditure and travelling expenses." That file of papers represented the result of an investigation to which the matter had been subjected by the Watson Government, before we took office. The matter was literally a legacy to us from the previous Government, who very properly had examined into the matter, with a result of which I shall inform honorable senators. The High Court had been established a little more than, six months, when, in July, the Watson Government began this investigation. That Government found, and communicated their finding to the learned Judges of the High Court, that the arrangements under which the establishment of the Court existed were not in accord with the Judiciary Act. The High Court, in its judicial capacity, is above all Executive interference and Executive criticism, as it ought to be ; but, in regard to its administrative position, as an executive body, which it is to a certain extent in relation to its own officers and all expenditure, except so far as regards the salaries of the Judges, which are fixed by Act of Parliament and unassailable, it is just as much subject to the control of the Executive, and ought to be so, as any other Department in the Public Service.' The High Court is not cut adrift from the Executive and all Executive control, and it cannot be. If it were, it might be a menace to the working of the Government and to the Constitution, instead of occupying the position which it ought to occupy as guardian of the rights of the States and of the Commonwealth, and the arbiter of the Constitution. As I say, the. Watson Government found that the arrangements in respect to the establishment were not >in accord with the Judiciary Act, and, following in their, footsteps, I came to the same conclusion, which to this day I hold. The arrangements as now carried out are not only, it seems to me, not in accordance with the Judiciary Act, but not in accordance with either the spirit or letter of the Constitution. This absence of accord with the Judiciary Act, which was pointed out by Mr. Higgins, the Attorney-General of trie Watson Government, need not have been unexpected under the circumstances, because we are establishing an entirely new# system. For instance, .in relation to the travelling expenses, which were the matters brought under the notice of the Watson Government, and were dealt with in the papers to which I have referred, there was no limit whatever as to amount; it was carta blanche iti regard to the sum which might be certified. Mr. Higgins pointed out that the Order in Council, which should, under the terms of the Judiciary Act, relate only to judicial expenses, w.as made to include the associates' expenses. It was not unnatural, I think, that these - I shall not call them abuses, but irregularities - crept in under the state of things that then existed, and to which attention was called. Mr. Higgins dealt with the matter in his letter of 20th July, 1904, which is on the printed file of papers. He endeavoured to do what I think we shall all agree was natural and proper, namely, fix a maximum allowance in respect of these travelling expenses. He also proposed to revoke the Order in Council, which fixed no maximum or limit, and included the associates, and to fix the expenses of the latter at 15s. a day, under the terms of the Public Service Act, outside any Order in Council. That proposal was not favorably received. Mr. Justice Barton wrote in somewhat strong terms, and spoke of the possible results of Mr. Higgins' proposal as w unseemly." All the Judges, in a letter of 19th August, the day after the late Government took office, very strongly opposed the proposal, and so far as regarded the 15s. provided for the associates'" daily expenses, the. attitude taken was described in this sentence -

If, however, it is proposed to fix a definite sum. for the daily expenses of the Associates, we are sure it will not be desired by the Government tofix it at a rate which will be insufficient to enable them to stay at the same lodgings without personal' pecuniary loss. The proposed allowance of 15s. per day would often lead to this result.

That letter came in reply to Mr. Higgins' proposal, the day after the new Government took office.


Senator Givens - Why should the associates have to stop at the same hotel as the Judges?


Senator Sir JOSIAH SYMON - I can see no objection to that, but what I felt then, and what I feel now, is that it is impossible to understand why 15s. per day was not ample to enable them to stay even at the same hotel as the Judges. I tried, on behalf of the late Government before we fixed, as I shall point out in a minute, the amount we thought a fair allowance, to get the vouchers to show how this expense was made up, but I was unsuccessful.


Senator Walker - It is very difficult to get these things.


Senator Sir JOSIAH SYMON - I found it very difficult to get these vouchers - indeed, they were refused. I should not myself have hesitated to supply any vouchers in respect of any expense I had incurred, and which had to be paid out of some one else's pocket. That is by the way, however. That- was the situation as it existed when the Watson Government left office. In consequence of our inability to get these vouchers with a view to settling on a fair basis what would be a right thing to allow for these expenses, which, of course, would best be shown by an inspection of the actual expense previously incurred - we were obliged to make inquiries as to the tariffs of the very best hotels, in order to see what might be done. The result was that we found that the highest tariff would have enabled the associates to live at these hotels with a sufficient margin from the 15s. per day which Mr. Higgins proposed to pay.


Senator Drake - Where ?


Senator Sir JOSIAH SYMON - In the cities.


Senator Drake - It might be more in some outside places.


Senator Sir JOSIAH SYMON - The visits of the High Court Judges are all paid to the capital cities of the different States. This was the information which the late Government had before them, and I am bound to say that I do not know why the 15s. per day should not have been considered enough. I .have always had verygreat difficulty in understanding how the amounts to which I shall now direct honorable senators' attention could have been reasonably spent. I have stated the situation as it came before me. As I say these matters ..were not gone into voluntarily except in so far as my promise to the Senate required. I have stated the situation in the month of August last, when the late Government took office. After the " Noconfidence" motion, which was concluded at the end of October, I investigated the matter, and this is the additional information I obtained. I found that from October, 1903, to the 30th June, 1904, a period of little more than six months, allowing for what we call the long vacation, the Chief Justice drew travelling allowances, in addition to all fares, to the" extent of £591 2s. 7d., or £328 2s. 6d. more than, £61 more than twice the amount drawn by Mr. Justice Barton, who drew £^63 os. id., and £238 more than Mr. Justice O'Connor, who drew £352 ns, 4d. There was also a difference, which was unexplained by the papers before me, of £89 between the amounts drawn by Mr. Justice Barton and Mr. Justice O'Connor for the same period.


Senator Best - Did each of the Judges do the same amount of travelling?


Senator Sir JOSIAH SYMON - Exactly the same, so far as I am aware, with the exception of some travelling in connexion with two election cases, which I am going to mention. I propose to tell Senator Best what the -result of that inquiry was. Making allowance for the travelling in connexion with the election cases, one of which was heard in Melbourne, and the other at Hobart, I could not understand how the money was spent, or why the Commonwealth should have to pay it. To the £591 2.s. 7d. it must always be remembered that we have to add the expense of a personal attendant, under the name of tipstaff, for 160 days - the period for which the Chief Justice's tipstaff was paid - at 10s. per day, with fares in addition, as against eighty days for two other tipstaffs. Such a state of things as that seemed to -me to call for an inquiry. Honorable senators will understand that it was not pleasant to make the discovery, nor was it pleasant to make the inquiry. However, on inquiry, the explanation appeared to be that the Chief Justice had his residence in Brisbane. He was seldom in Brisbane, and, of course, this practically amounted) to charging the Commonwealth his personal living expenses for the whole, or for the greater part of this period. Equally so, the personal living expenses of his associate and tipstaff, because during their absence from Brisbane they were all getting these travelling allowances out of the funds of the Commonwealth. I thought that wrong. I thought that it was on a wrong principle, as any one must see, and I expressly said that, while no one wished to interfere with the Judges choosing their place of residence wherever they thought most convenient, and most in accord with their happiness because of surroundings, associations, and so on, there should not be on that account any additional expense entailed upon the Commonwealth.


Senator Mulcahy - That is a fair principle.


Senator Sir JOSIAH SYMON - And for this reason - and,, of course,' we have an example of the result of the other principle in- the instance I have mentioned - we might have Judges having their homes in Western Australia-or in Tasmania. Of course a Judge would prefer to have his home in the place where he has lived the best part of his life ; but we might have Judges appointed who would not live in Sydney, or near that city. If such a principle were admitted, it was obvious to me, as it must be obvious to all men, that it would cause a very unjustifiable expense to the Commonwealth taxpayer, and really' it would be an indirect way of adding to the salaries paid, not only to the Judges but to their associates and other attendants.


Senator Givens - The honorable senator contended that the travelling allowances; should be computed from the seat of the Court.


Senator Sir JOSIAH SYMON - Certainly. I do not wish to go into that, or to delay the passing of the Estimates by referring to the lengthy correspondence in connexion with the matter, but I do desire to place the position clearly before the Senate. I am very glad that Senator Givens has asked that question, because I say advisedly that whatever side issues there may have been, and whatever trail may have been drawn across the matter, the entire struggle throughout the correspondence has been on the part ofl the Judges of the High Court, to secure the adoption of the principle of computing their travelling expenses from their place of residence. To that principle I hold an unalterable objection. It is not seriously' questioned in the correspondence that the universal rule is to compute travelling expenses from the seat of the Court. That is what lawyers call the domicile of the Court, and it is from the threshold of the seat of the Court that it moves on its journeys and takes its circuits. If we were to admit any other rule, such as that of computation from the residence of a Judge, then a Judge who might prefer to reside at Mount Macedon, supposing the Court sat always in Melbourne, would be able to charge travelling expenses for coming into Melbourne from Mount Macedon to his work. Without saying anything more about it, it seems to me that such a principle is indefensible. My contention is that universal principle is that of computing travelling expenses from the seat of the Court, and if there is any exceptional condition of things which would render a temporary deviation from that rule desirable or just, it ought to be dealt with only as an exception. When the Court is established at the Federal Capital, no one will contend for a moment that the computation, of the travelling expenses of the Judges should not be from there! No one will contend that Judges would be entitled to be paid travelling expenses from residences in Svdney to go to the Seat of the Capital at Dalgety in order to do the work of their own Court. I have said what I found, and I could find no minute, any more than Mr. Higgins could, of any kind to justify these extra and unwarranted travelling allowances. There was absolutely no note, minute, or anything establishing any rule of that kind. The allowance was simply drawn and paid. I thought that there must be some mistake, and I informed the Prime Minister that it ought not to go on, and he - no doubt with the best intention, but without my knowledge - communicated my views on the subject to the Chief Justice. " I was informed by the Prime Minister that the answer, of the Chief Justice was that he intended to change his residence to Sydney, and that Sydney, instead of Melbourne, should be made the seat of the Court, and that' then it might be an understood thing that the Judges should reside at the seat of the Court. I refused to be a party to making

Sydney the seat of the Court, and removing it from Melbourne. I emphatically, embodied that statement in the first letter which I wrote on the whole subject on 23rd December, 1904, and in which I pointed out my1 views, and asked the co-operation of the learned Judges, with a view to economy in these particulars. I shall just read one sentence, as it will shorten what I have to say -

It is not the Judge's residence, but the seat of the Court, which is the starting point in computing travelling expenses, and Sydney, if faith be kept with the Constitution as it is, can never be the principal seat of the Court.

That was my view on that subject. I declined, as I have always done, and always shall do, to be a party to moving the seat of the Court from Melbourne to Sydney, either as a sop, or to placate Sydney, or for any other reason.


Senator Givens - The honorable and learned senator will be in favour of moving the seat of the Court to the Federal Capital when it is established?


Senator Sir JOSIAH SYMON - Certainly, and no prejudice can be alleged against me in regard to Victoria. It is our duty to adhere to the spirit of the arrangement which was made and embodied in the Constitution, and to adhere to the proclamation which makes Melbourne by law just as much as the Federal Capital will be, when it is established, the seat of the High Court. I shall always raise my. voice against anything which would leave Melbourne simply a nominal seat of the Court, and make Sydney or any other_city the seat of the Court in fact That was not the remedy which occurred to me. The remedy was that the rule of computation from the seat of the Court should apply, no matter where the Judges might reside The Members of this Parliament are exactly in the same position. I choose to reside in Adelaide, and I have no intention of changing my residence. Much as the attractions of Melbourne m?y be

I have no intention of availing myself of them. Tt might be better for me, as others senators do, to take up my residence here; but I prefer not to do so. There is no more reason why the Judges of the High Court should be placed in a different position from that in which every Member of this Parliament is placed There is no reason why I should get paid for travelling from Adelaide to attend to my legislative duties, or get travelling expenses while I am here, except that which is provided for every Member of the Parliament - the train fares. That is the stage which the matter had reached when the Estimates were before the Senate, when the letter of the 23rd December was written, and up to which time I had not ascertained the exact total of the expens.es. I did not get the full amount, as I now know it, until February of this year, when I found that the total expense for twelve travelling months, eliminating the vacation, was £3,294. It has been put abroad in various ways, as though these matters were not open to any body who had the opportunity of seeing the figures for themselves, as, though they were explored by me quite irrespective of what had been done by the previous Government, or by the wish of the Senate. For some reason or other, the vouchers for October-November, 1904, or some of them, at any rate, had not been forthcoming; and when they came before me in February, they revealed how the expense was. swollen up. The Melbourne sittings began on the 26th October, 1904, and ended on the 9th November, but a day or two additional was occupied by, I think, Mr. Justice Barton, in trying a case in original jurisdiction. I shall quote, without comment, the figures which were supplied to me. The expenses of the Chief Justice for about sixteen days, at the rate of £4 5s. per day, came to £68. The expenses of Mr. Justice Barton, with the additional days up to the 13th November, came fo £84 3s. id'., at the rate of £5 per day. The expenses of Mr. Justice O'Connor from the 25th October to the 10th November - for about sixteen days, at £5 10s. per day - came to £88 12s. The total expenses of the three Judges and three clerks or associates, came to £241 os. id., being an average of nearly £15 a d:v. or over one hundred guineas a week. That seemed to me to be pretty good for three Judges and three clerks,, exclusive of fares, and in addition to travelling allowances of three tipstaffs, or, as I call them, personal attendants.


Senator Mulcahy - What do the travelling allowances of the three tipstaffs come to?


Senator Sir JOSIAH SYMON - Taking the average at sixteen days, their travelling allowances, at 10s. per day, would total £24. But that -is a separate matter. I think honorable senators will recognise that the figures which I have given, and which were before me, justified not only an inquiry, but the taking up of a fairly strong stand, with a view to some kind of modification.


Senator Givens - There is a maximum fixed now.


Senator Sir JOSIAH SYMON - Yes. After that sitting, ending in November, the Judges returned to Sydney. The Judges, who lived' in Sydney, had, of course, no travelling allowance ' after their return there to the 24th December, but the Chief Justice received a total sum of £96 during the time he was in Sydney. That took him to Christmas eve, and back to Brisbane - of course, with the tipstaff, or personal attendant - where the long vacation, extending over a period of six weeks, was spent. In February the Chief Justice removed his residence to Sydney, in accordance with the intimation I have mentioned, and his personal attendant sent in a voucher, including an item of £4 12s. 6d., for a first class train fare from Brisbane to Sydney and a sleeping berth, and also an item of irs. 8d., for a travelling allowance at the rate of 10s. per day for _the time occupied on the journey. The attendants calculated their travelling allowances to farthings. I could not understand how a claim for a travelling allowance by the Chief Justice's personal attendant, in accompanying him from Brisbane when he moved his residence to Sydney, could be made. I should have been verv sorry if I had been informed that the attendant had paid the money out of his pocket, relying ..upon getting it back. But on inquiry, I was informed that the Chief Justice had probably paid the money, and arranged with the tipstaff to «send in a voucher. I disallowed both items, and refused to pay them. The next thing which came before me was the question of employing ushers in addition to the tipstaffs, who, if officers of the Court, should have done the work. There were three associates and three tipstaffs, who were described sometimes as personal attendants - that is as valets - whose duty it ought to be, if they have any duty connected with the Court at a!T, for which they should be paid, to act as Court attendants* I found! that these gentlemen were not permitted to act as Court attendants.


Senator Mulcahy - In other words,, they were not tipstaffs?


Senator Sir JOSIAH SYMON - They were not tipstaffs, ushers, or criers. Tipstaff is an obsolete expression. It gives these gentlemen an air of being officers of the Court, but in reality they are not. Originally, they were officers of certain Courts, who used to arrest people committed to custody in court. I found ;that this matter had been questioned by the Watson Government. I am bound to say that that Government seemed uneasy about these irregularities, and took steps to cure them.


Senator Givens - They did not have a proper chance.


Senator Sir JOSIAH SYMON - I have given the Committee the date of one letter - the 29th July. This minute is dated 6th July. It will therefore be seen that it bears out what the honorable senator has said. It was within a few days of the time when the Watson Government had the misfortune to receive ain intimation that it was not required to remain in office any longer. On the 6th July, 1904, there was this minute in which Mr. Attorney-General Higgins queried whether there was any need for these additional officers - there being three tipstaffs who were doing nothing. If my recollection serves me aright, he intimated that representations should be made to the Chief Justice on the subject. But that was not done for the reason that has already been referred to. Therefore, the matter was left to the succeeding Government. But there was this inconvenience, which I want to point out to honorable senators : It is a very undesirable thing to correspond upon many matters. It is verv much better to adjust things bv word of mouth. There is less susceptibility to misunderstanding, and all the rest of it. One of the mischiefs that flows from the fact that the Court does not sit at the" Seat of Government is that you have not opportunities for conference, and that communications must take place bv correspondence. Probably that has something to do with the inability of Mr. Higgins, during the month of July, to get a personal interview with the

Chief Justice as to these ushers. But, at any rate, I knew nothing of that until the accounts came before me for payment. When I asked for the papers they were produced, and I approved and gave effect to Mr. Higgins' policy of questioning the need for these ushers. I did that on the 13th April, 1905. Honorable senators shall know everything that I did which has resulted in these savings and in the remodelled Estimates which are now before us. On the 13th April, 1905, I directed the duties of usher to be performed by one of the tipstaffs. But I expressly abstained from notifying the deputy marshals on the subject until I had first .of all communicated that intimation to the Judges. That I did on the 26th April by letter, in which a short paragraph was the following : -

Although there are three tipstaffs, I find it has been the practice to employ in Melbourne and Sydney an additional officer to attend the Court when sitting, in the capacity of usher, at 7s. and 8s. a day. Tt seems to me that the duties of officer may well be perforated by the tipstaffs, or one of them, and I trust it will for the present be so arranged. The deputy marshals are being instructed to discontinue the employment of additional and temporary officers to act as ushers.

I do not think that there was anything that was not perfectly courteous in that intimation. On the 1st May, the deputy marshals were informed in the ordinary way by the then acting secretary of the Department, Mr. Castle, that instructions had been issued that in future - this was nearly a week after the intimation had been conveyed to the Judges, who meanwhile had given no reason to the contrary- - no temporary or additional officers were to be employed as ushers, whose duties would in future be performed' by one of the tipstaffs. That was done by my instructions. Honorable senators will have an opportunity of saying whether they approve or disapprove. What I say now is that one would have thought that the Justices would have seen the propriety of that direction, or, at any rate, that they would not have done anything knowingly to thwart it. But this is what happened : On the 9th May. Mr. Justice O'Connor raised difficulties in Melbourne, and, it seems, directed the marshal to write to the Department, and through the executive officer to me. that the Court could not be conducted without this additional officer. Now, I have had a very long experience of courts - I am afraid almost too fong - and that rather astonished me.


Senator Givens - Is the marshal a Commonwealth, or a State officer?


Senator Sir JOSIAH SYMON - He is a Commonwealth officer. I was in Adelaide at the time, and it was difficult to deal with the matter, but a telegram which I received from Mr. Castle, who was the acting secretary of the Department, stated -

Marshal, High Court, asks for authority to employ an officer to look after the jury. Represents that in his opinion -

The deputy marshal is a most excellent officer for the Commonwealth, Mr.Bingie; but I do not think that he has had any experience in connexion with courts.

In his opinion impossible to properly conduct court without when jury cases being tried.

I replied at once -

Do not understand telegram. Why is another officer necessary ; what is the tipstaff doing ? He is to perform the duties of usher and crier. Report fullyto me.

I did not wish anything to occur which would delay the progress of business. I therefore added : -

Meanwhile, authorize Marshal to make whatever arrangements in his judgment are necessary for to-day, pending report by wire.

I authorized the continuance of that arrangement, but in the meantime I asked for a report from Mr. Castle, the principal Registrar of the Court, as to whether it was necessary, in his opinion, that this additional officer should be employed. Mr. Castle reported to me on the11th May. This is an extract from his report: -

I called Mr. Stewart, the Commonwealth Officer in the Deputy-Registrar's Office, the officer who usually represents the Registrar in the Full Court, and he informs me that, with the exception of returning the books to the Library, he has not, during his experience in the High Court, seen the second or temporary officer do any work which the tipstaff could not do. He excepted the returning of the books, because the Library authorities are very strict in requiring books to be returned immediately the Court rises, and the tipstaff is then engaged attending on the Judge. The work would only occupy a few minutes, and no difficulty ought to be experienced in getting it done. Counsel could arrange to return their own books. In my opinion -

(a)   The second officer is not necessary ; and

(b)   The tipstaff can perform all the duties needed. s

Gordon H. Castle, Principal Registrar.

I accordingly, as honorable senators are aware, did not depart from the instructions I had given. But that is not all. I particularly emphasize this because of a passage in a letter by the present AttorneyGeneral, to which I propose to refer. On the 26th June, as may be remembered by some honorable senators, there was a draught or a breeze in Court in Sydney. I received a telegram which stated that the Court required me to provide an usher, although' it had three tipstaffs in attendance. The message was sent to the secretary of the Attorney-General's Department, and concluded, "Kindly authorize expenditure by wire." That telegram was followed by a letter, from which the following is an extract. It is dated 12th June -

I have the honour to inform you that the Justices will not allow the tipstaffs to act as my officers, and to-day I was required by the Court to providean usher.

That did not strike me as being quite in accordance with what one would have ex- ' pected from eminent Judges. But I was enlightened when I found the following paragraph in the Sydney Morning Herald on the morning following the draught -

High Court Retrenchment. - A strong draught, caused by doors being left open, swept through the High Court at intervals yesterday morning. The Chief Justice became alive to the fact about noon. " Where's the Court attendant?" he suddenly exclaimed. " Why does he not keep the ' doors shut ? " There was no response, and Sir Samuel appealed to the Deputy Marshal. Then it was that Mr. Maybury explained to the Bench that no provision had been made by the Federal Attorney-General for a Court attendant. The Chief Justice looked amazed, but quickly concealing his surprise, he asked, "Can't we borrow one?" The Deputy Marshal promised to try to arrange the matter. He would try to get a policeman. It might be added that their Honors' tipstaffs were unofficially seated in Court, and enjoyed the situation.

That I can quite understand. What I do not understand is that there were tipstaffs everywhere, but not one to close a door, and to prevent this breeze getting into the court. I also did not understand a passage of Mr. Isaacs, in his letter No. 85, at page 40 of the correspondence. I am glad, however, to find that the course which I took, and the policy which I adopted, have been affirmed by the present Government, and the ushers forbidden, though in a very peculiar wav. The passage in the letter of 12th July is -

As, however, I observe from the correspondence, that there is no objection to the tipstaffs acting as Court criers and ushers, I shall be glad if an arrangement can be made for one of them to undertake the duty, so as to avoid the necessity for employing another man in that capacity.

That was not my, experience. Nor do I think any one else will gather from the correspondence that alacrity in acceding to the tipstaffs doing some work which Mr. Isaacs seems to have observed. Then there came before me the matter of the multiplicity of telephones, to which I have already alluded. My attention was next called by the Treasury to a matter which was not initiated by me in anv way whatever. This was in connexion with the steamer fares. Provision is made by means of passes for travelling by rail, in the way that is customary; but in February of this year my attention was called by a Treasury minute to steamer fares, which had been charged for travelling between Sydnev and Melbourne, and Sydney to Hobart, and back to Melbourne. In view of the fact that railway tickets are provided, and paid for by the Commonwealth, the Treasury minute questioned these fares ; and when the matter was referred to me I had it investigated, with the result that it appeared to me to be a duplication of the expenditure of the Commonwealth. No one can complain if it is more agreeable or convenient for the Judges to adopt one route rather than another; but I object, as I think any one would, to the Commonwealth having to pay twice - once for steamer fares, and once for railway fares.


Senator Staniforth Smith - Have the Judges annual tickets over the railways?


Senator Sir JOSIAH SYMON - Yes, in exactly the same way as honorable members have passes.


Senator Mulcahy - But in going to Hobart, thev had to cross the sea in any case, and there would not be much difference in the fares.


Senator Sir JOSIAH SYMON - There was, I think, a difference of about £20. However, the Treasury minute was to the effect that the Judges - but not the associates who have no annual passes - have railway passes for all lines, and asked whether they ought to use the steamer from Sydney to Hobart. On the 24th February, figures were supplied to me, showing that the difference in the fares, by reason of the sea route having been taken, amounted to about £1810s. The position then taken up by the Judges was that as the tipstaffs and associates had travelled by steamer, a saving had been made on their passages, and that that saving could' be used literally for the payment of the additional steamer fares incurred by the Judges. The following letter, which honorable senators will find on page 31 of the correspondence, was written by Mr. Garran by my direction: -

I have the honour to acknowledge your letter of 4th May, conveying reasons offered by His Honour for travelling by the round sea trip, Sydney vid Hobart, to Melbourne, instead of going, in discharge of his judicial duty, vid Melbourne and Launceston, and also of letter of 10th May, returning the vouchers without the particulars asked for or the receipted accounts, and in reply to both I am directed to say : -

1.   The Attorney-General desires me to assure the Justices that he does not take exception to the Justices travelling by any route they prefer, or think more agreeable to themselves, so long as it does not delay or interfere with the despatch of judicial duty. His objection simply is to the Commonwealth - having already paid fares by one route - being called upon to pay them over again by another.

2.   His Honour's first reason for choosing the sea trip is that " it was more convenient." The AttorneyGeneral appreciates that, but does not regard it as: an adequate reason for charging steamer passages to the Commonwealth, which had already paid railway fares.

3.   The second reason is made up of several parts, and the Attorney-General desires me to say he is scarcely able to follow it. In the first place, the Attorney-General is informed that the Chief Justice's staff did not travel with him from Sydney to Hobart.

In the next place, it is the duty of all public servants to travel by the most expeditious and economical route, and if travelling by sea to Hobart was for the staff more economical than by rail, it was their duty to travel by that route. Any saving in that way belongs to the Commonwealth, and the Attorney-General cannot recognise the right of the Justices to apply and use these Commonwealth savings in paying their own steamer fares, when their fares for the land route, to enable them to discharge judicial duty, have already been paid. The Attorney-General regards it as being too plain for argument' or doubt that the Commonwealth ought not to pay both.

This double charge to the Commonwealth is made specially obvious from the fact that Mr. Justice O'Connor, having returned by rail from Melbourne to Sydney, the Orient Company refunded to him £2 5s. for the return ticket to Sydney - the equivalent of the railway ticket - and for which he sent cheque now held by this Department. If, therefore, he had returned by steamer, the Commonwealth, having already paid the railway fare, would have paid the £2 5s. in addition. In other words, they would not have had the £2 5s. refunded. And so with the forward halves, Sydney, vid Hobart, to Melbourne ; but, as these were used, it is not the steam-ship company which should refund to the Commonwealth.

The Attorney-General does not assent to the statement that there " was a small saving effected," or any saving, but if it were so, the saving would clearly have been greater if the learned Justices had not charged their steamer fares to the Commonwealth.

The Attorney-General notes with regret that on two former occasions the Commonwealth have been called upon to pay similar twofold fares in connexion with judicial visits to Hobart ; but he cannot regard that circumstance as a precedent for the continuance of the practice.

I am to express the Attorney-General's regret that the Associates, by direction, returned the vouchers without any of the particulars or the receipted accounts asked for by me.

At any rate, the Treasurer took exception to these payments, and the matter was referred to me. I certainly agreed with the ' Treasurer that the saving, if any, 'belonged to the Commonwealth. There is only one other remark I wish to make on this point, and that is in reference to a statement made from the Bench in Sydney on the 26th May, quite unnecessarily it appears to me, by the Chief Justice, as follows: -

We were yesterday informed that the AttorneyGeneral had dishonoured one at least of the Associates' order, q

I wish to say now, as I said then, that, so far as I was concerned, there was no foundation for the statement. I immediately communicated with the Secretary to the Attorney-General's Department, Mr. Garran, who telegraphed a reply that he had no knowledge of any dishonored order, and did not know to what the Chief Justice alluded. Subsequently, a communication was received from the Associate df the Chief Justice, to the effect that some one from the steam-ship office had asked for payment of the fare to Hobart. I immediately directed that application should be made for the name of the person who had done so, in order that inquiry mi'ght be set afoot in regard to an action which was perfectly unauthorized. Up to the time I left office there was no reply to that request for the name of the person who had made the application. It was, in my judgment, highly improper that the statement referred to should have been made from the High Court Bench. The next matter that came under my notice was that of the railway voucher books. It has always been the practice that the head of the Department shall issue railway vouchers." It is not usual to distribute these voucher books amongst clerks of the Department, whoever they may be, thus placing them in a position to sign vouchers- for railway tickets., whenever they thought fit. That, however, was done in the case of the associates, and against the practice the - railway authorities in Sydney- protested so long ago as 13th May last. They regarded the practice as serious, as it made it difficult for them to deal with the matter, unless the rule were strictly observed that such vouchers should be issued only by the head of the Department, so that there might be as few official signatures as possible. Not merely was that protest not observed', but the practice was subject to . abuse. For instance, railway vouchers were used for steamer fares ; and it is a pity that was done. Probably vouchers were so used thoughtlessly; but the vouchers, as their name implies, are intended for railway travelling, and not to be altered and used as orders for steamer fares. Then one of the associates, when in Brisbane, lost his ticket somehow or other, and, 'instead, as one would have expected, paying his own fare, and subsequently making a claim if he thought he could show good ground for a refund, he used another voucher, in order to obtain a single ticket back to Sydney. The result was that, speaking from memory, I believe a correspondence extended over six or eight months on the question whether or not the associate should repay the amount which was charged for the ticket. That difficulty would never have arisen if this practice of handing the railway voucher books, not to one associate, but to each of the three, had never been initiated. In order to conform to the protest of the Railway Department in Sydney, I decided that the practice should be brought to an end, not as a reflection on the associates, but in order to bring the matter under proper official and Executive control. Accordingly, the letter of the 26th April, already referred to, was sent. The reply received from the Chief Justice's Associate was -

I have the honour by direction to say that the Chief Justice is of opinion that such an important change in practice, as indicated, should be communicated to the Justices through the Chief Justice.

I pass by that, merely pointing out that all the communications had been between Mr. Garran and the Chief Justice's associate. It was purely a matter which ought to have been communicated to the associate, because it was he who held the book of railway vouchers, and the Judges had no concern with them. That is what took place, but on the same day - and this is what I complain of - this is the way in which the matter was alluded to from the Bench. After referring to a number of other things, this statement was made : -

This was followed on Saturday by letters from the Attorney-General's Department, making a request compliance with which would have the effect that in future each Judge would be required to apply for the permission of the AttorneyGeneral on each occasion when he desired to take his associate or tipstaff with him on circuit.

Whatever might be said as to the communication to the Government in the form I have just read, that reference is certainly a flagrant misrepresentation of what was being done. It is a distorted way of describing the request for the returns of these railway vouchers under the circumstances which I have mentioned, in order to keep in proper shape and maintain proper control over the administration of the Department. Then honorable senators will find a number of references to law books. Law books were provided running into an expense of two or three hundred pounds, and it is obvious how abuses may creep in when I say that over £31 was paid for books which were procured absolutely with out authority. Under the circumstances, with the expense occasioned by three associates and three tipstaffs accompanying the Full Court wherever they went, naturally very heavy expense was incurred. In order to save that very heavy expense, on the 26 th April a direction was given that one associate and one tipstaff at the public expense was enough to accompany the Full Court on circuit when the Court went to any other of the States, and that this should apply to the "Brisbane sittings. Railway tickets were applied for and obtained for one associate and one tipstaff, but not one word was said as to the intention to disregard the request of the Government to discontinue this retinue; but the three associates and three tipstaffs were taken as before. No intimation was given that that was intended, and what was done was simply to send in about the time the late Government left office the vouchers for travelling expenses, one of which was about £15 higher than the others, and evidently included additional expediture incurred, not by using vouchers, but by paying the expenses of the associates and tipstaffs, in rather unworthy defiance of the directions given by the Ministry of the day. These' are the facts and figures upon which we acted. My course was perfectly clear. As I have already said, these irregularities were due to the looseness of the arrangements made. The High Court was set afloat practically without a rudder. It was cut adrift from all Executive control, and, so far as the matters to which I have referred, and on which I have given the Committee all the information in my possession, are concerned, it is still cut adrift from Executive control. I was very glad to see this morning, or yesterday, that in one respect the rule lo which I called attention as being disregarded is now being observed - that is in regard to the fixing of the sittings of the Court for the whole of the next twelve months. Until now that was not done. At the same time, it is amazing to me that it should not be done bv the Executive, and that it should be in the hands of the Judges, who would be in a very difficult ar.d anomalous position, and one from which I am sure most Judges would seek to be free, supposing any attack were made by any State because of the insufficiency of the sittings prescribed for that State. The administration of justice and the places at which sittings of the Court shall fake place are matters for the Executive. They must bear the responsibility and criticism if the administration of justice in any part of the Commonwealth is not sufficiently provided for. It is an anomalous and a disagreeable thing that that matter of policy and of Executive control should be assumed by the judicial Bench - quite inconsiderately, I feel, and at any rate, if not "inconsiderately, without a sufficient realization of what is involved. All these matters were referred to, and upon these figures, on the 25th December, I wrote suggesting the daily rate of £3 3s. as the maximum. I wish to point out that that daily rate of £3- 3s. which I suggested in December, 1904, and which was objected to, rejected, and fought against month after month, when offered by me, is exactly the same rate as that which is welcomed from the present Attorney-General, Mr. Isaacs, under the Order in Council referred to in his letter. The only difference is that he allows the £3 3s. as an average. I do not know whether that was intended to constitute a difference, but if it was, it really meant that by means of that average the provision for allowance might, in fact, be obtained when the Judges are travelling by sea, notwithstanding that the steamer fees cover subsistence. At any rate, that is the position so far as regards that allowance of 3s. per day, which is at the rate of .£3,000 a year. The amount is exactly the same as that which I proposed in the month of December, and which, as honorable senators will find from the figures and vouchers, was systematically exceeded. I can only express the hope that now that it is fixed at the same amount as that at which I unsuccessfully tried to fix it, it will in future be adhered to. Having communicated that information, it only remains for me to say what the result was. The result of my proposal in regard to the limitation, of travelling expenses was that in the first place, as 1 was informed, communications were made without my knowledge, and behind my back, to high personages, politicians and others, to whom no such communications ought to have been made. Communications were made to the Prime Minister, and influence, which ought never to have been exercised,, was brought to bear upon him in various ways. All these influences were unavailing, and the next step - taken on the 29th April - was to suspend duty in respect to the Court- fixed to be held in Melbourne on the 2nd May. This was done absolutely without warning, notice, or previous demand to me upon any matter in respect of which it was either before or subsequently suggested that any request was to be made. From the telegrams printed with the correspondence it will be seen that when that unfortunate incident took place, I endeavoured to ascertain the reason for this serious and unprecedented step, which I hope will never be repeated. But my request for reasons was first evaded and then refused. Honorable senators will find references throughout the letters- to my being well aware of this and of that; but I say emphatically, as I have stated in the correspondence, that no communication, no request, and no intimation of any desire or any grievance of any kind or description - not to justify, because nothing could justify that suspension of duty - but even to palate it, was communicated to me until what are known as the three requests which were embodied in the telegram to the Prime Minister at Moree were forwarded by that right honorable gentleman to me. Without going into further detail, I call attention to the fact that, when the resumption of duty took place, by an intimation in Court, on the 5th May, the Chief Justice sought improperly and publicly to cast the blame, in a fashion that is greatly to be deprecated, upon a most worthy officer, Mr. Castle, in respect of any want of notice as to the postponement of that Court, and the expense entailed upon suitors or those concerned in the cases to be -tried at that Court. I wish to take special exception, and this is the only opportunity I shall have of doing so, to a letter of the 23rd June, in which insinuations are made that I had knowledge of certain communications addressed by the

Chief Justice unwarrantably to the then Prime Minister. The reference is contained in this sentence -

That I had fully explained to the Prime Minister, in a letter which I believe he received in Adelaide, where he was reported to be your guest -

That is a nice sort of thing to be stated in an official letter. It scarcely conforms to the rules of propriety - the exact position which I took up in the matter. He replied by a telegram dated 27th April, in terms which leave no doubt as to his having communicated with you on the subject.

This is the sort of thing which long ago, amongst a certain class of attorneys, was described as "making evidence." I say emphatically that these insinuations as to my knowledge of communications passing between the then Prime Minister and the Chief Justice, which ought not to have been passing between them, are entirely baseless, and that no such communications were made known to me on the subject. Moreover, at the time of his receipt of both the letter and the telegram referred to, the Prime Minister was not my guest, and in the next place, whether he was or not, I regard the allusion to his being my guest, or to anybody being my guest, as entirely unjustifiable in an official letter. I know the laws of hospitality perfectly well. I never violate them. And I say that a gratuitous reference of that kind is an unpardonable intrusion on the part of the person1 making it, and is not consistent either with good manners or good taste. I deeply regret that any momentary forgetfulness of the proprieties should have permitted that passage to be written. I do not desire to say anything further. So' far as regards the amount which we fixed after these requests were made, the correspondence is before honorable senators.- We were requested to fix a definite daily rate. We fixed the rate for the Justices at £2 2s. a day, and for the Associates at 17s. 6d. a day under the Public Service Act, being half-a-crown a day more than had been previously fixed. When we communicated our decision, the learned Judges went back on their requests, and wanted a maximum of £4. They objected to the £5 5s. a day, "which seemed to us ample in respect of a. Full Court travelling together, and the curious reason that was given will be found on page 29 of the correspondence in these terms -

The proposal that a reduced lump sum shall be allowed to the three Justices when travelling together, now made for the first time, appears to my learned colleagues and myself quite inexplicable. It has fortunately happened that we are on terms of personal friendship, and have on most, but not all, occasions, been able to arrange to reside together while on circuit. But this is an accident which cannot be regarded as a permanent condition. It might easily happen that, for reasons which must be obvious, it might be desirable, or indeed necessary, that the Justices should occupy separate sitting rooms, or live in separate lodgings.

There is material for reflection in that. Then we went out of office, and now we find that £3 3s. a day has been allowed as a maximum, although as an average, I have no desire to disturb the arrangement. It means possibly an extra 3s. 6d. a day. I do not grudge that gain to .the Judges by the change of Government; at any rate, it is not sufficient to induce me to trouble the Committee with a request on the subject. The underlying principle by which I have been influenced throughout the whole matter of administration is, first, that we ought to keep down the expenditure as much as possible,, even on the present footing of the arrangement under which' the High Court is conducted. In the second place, we have ai right to expect - and it is not asking too much - that die Justices themselves should assist, as far as possible, in keeping down expenditure. In the third place, I quite recognise that while the existing system continues, there must be a verv much larger expenditure than that which I should like. On these Estimates, it would be folly, on my part to ask the Committee to determine the questions which must be settled, if at all, by means of some such Bill as that which I had the honour of introducing a few weeks ago. I should be only occupying time unnecessarily if I asked honorable senators to come to a vote on any item here, with the view of either asserting or dissenting from the existing method on which the business of the Court is conducted.


Senator Givens - But the honorable and learned senator said that he was going to move a request for a reduction.


Senator Sir JOSIAH SYMON - I am going to move for two or three reductions, but not with a view of asserting that principle, because I quite recognise that it would not be fair to ask the Government at this singe - I did intend to do so before, but I have decided not to do so now - because it would involve a long debate on matters which are better dealt with in the form of a Bill. I think that before long, in some shape or other, we shall have to revise the present method. I do not believe that there is . a lawyer in Australia who does not see that it cannot go on, but must break down of its own weight. But if it does go on - I refer to the full High Court, with three Justices, and all the retinue of tipstaffs and associates travelling throughout the Continent - the amount which is set down here will be vastly increased; it will be doubled or trebled. Honorable senators will realize the importance of turning over in their minds the principle to which I have drawn attention, namely, that the principal seat should be observed as the permanent seat of the High Court as a Full Court,, but if on the other hand they propose that this peripatetic system shall continue, we must look forward to the time when the Federal Capital is established, and make up our minds that it shall continue then, too, because the difficulty of breaking it off will be great if it continues until then, and we shall be faced with the question of largely increasing the personnel of the Court, of largely increasing the amount of the expenditure which we now contemplate, and which can only be liable to a comparatively small reduction. So far as the mere amount of the expense is concerned, I do not at present propose to move for any reduction. I would rather assist the Government in that respect, because to keep the vote within bounds is, as I have fully learned by experience, more a matter for the responsible Minister than it is for the Parliament. The latter could never do it. I shall say very little when we come to any of the items. There are only two items I know of at present in respect of which I shall move for a reduction, and after what I have said, with a view of putting the Committee in full possession of the facts so far as I know them, it will not be necessary for me to; ad'd many observations.







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