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Friday, 10 August 1906


Senator KEATING (Tasmania) (Honorary Minister) - - I move -

That the Bill be now read a second time.

At this hour of the sitting it would not be possible for me to occupy the attention of honorable senators at very great length. The< object of the Ball, which has been in their hands since the 25th 'July, is to provide for an increase of the numerical strength of the High Court of the Commonwealth, and also to enable that body to regulate the admission of persons to practise as barristers or solicitors in any Federal Court, and to prescribe the conditions and qualifications for admission, and the continuance of the right to practise. The latter is, of course, the minor portion of the Bill. It is nearly three years since the Parliament created the High Court as the tribunal to exercise in many respects the judicial power of the Commonwealth. I say "in many respects" because it was not to exclusively exercise that power. Both directly and in general terms we have invested States Courts with Federal jurisdiction. By the provisions of certain Acts of Parliament we have also indirectly invested different States Courts with jurisdiction to determine matters arising thereunder. When the Judiciary Bill was introduced into the other House in 1903 it contained a provision for the appointment of five Justices. In their wisdom the members of that House decided to reduce the number from five to three. When the Bill arrived in the Senate there was some disposition to reconsider the question of establishing the High Court with five Justices at the beginning. However, no action was taken in that direction here, although certain honorable senators !had so expressed themselves. It was also stated by some honorable senators that three was quite a sufficient number, and considerable doubt was expressed as to whether there would be any work for them to do, at any rate for a considerable time. As honorable senators are aware, the High Court occupies a unique place in connexion with our political organization - a place which is in some respects analogous to that occupied by the Supreme Court of the United States. In other respects it differs from that very high and august tribunal. But apart altogether from the position which is assured to the High Court by the provisions of. the Constitution, I venture to say, without fear of contradiction, that it has npt only warranted its establishment^ but has commanded the confidence of the people of the Commonwealth to such a degree that there can be no doubt lingering in the minds of any member of the Senate as to whether we were right or wrong in establishing that body as far back as 1003. The work which it has done has been verv great in point of volume. It has also been verv important and very far-reaching in its consequences, and of the first order, so far as its quality is concerned. I venture to say that those who are best competent to judge are quite convinced that the Justices apply themselves to' the consideration of the questions which are submitted to them, and to the discharge of their functions, in a way which leaves little, if any, room for adverse comment. I might occupy the time of honorable senators at great length in pointing out how far the jurisdiction of the Court extends, and remembering how extensive it is they would realize how, with a tribunal commanding the confidence which it does, the work must be ever increasing. But as mv time is necessarily very limited, I would invite the attention of honorable senators to an excellent table, which is contained in the last volume of our Statutes, and which sets out rather succinctly the jurisdiction of the High Court. In the fable of Commonwealth legislation from 1901 to 1905, on page 19, appears a reference to the Judicature; in the lefthand column of the table appear in order the sectional of the Constitution dealing with the High Court; and then opposite each section appears a reference to the jurisdiction exercised by the High Court. On referring to sections 71 and 72 of the Constitution, which respectively provide for the number of Justices, and for the appointment and remuneration of the Justices; and section 73, which makes provision with regard to the appellate jurisdiction of the High Court, we find that that appellate jurisdiction is provided for in the Judiciary Act 1903, sections 34, 37, 39, and 43; in the Papua Act 1905, section 43 ; and in the Copyright Act 1905, section 73, sub-section 2. Then, of course, reference is made to section 76 of the Constitution, which confers original jurisdiction on the High Court. That is the section which deals with jurisdiction in matters relating to treaties, the representatives of foreign countries, and so on. Then we have a section of the Constitution which provides for the jurisdiction of the High Court in cases arising under .the Constitution, or involving its interpretation with the supplementary provision of the Judiciary Act of 1903, section 30. And next, dealing with the second portion of the constitutional provision in section 76, with regard to the Parliament conferring jurisdiction upon the High Court, we find that it has passed quite a number of Acts in which jurisdiction is conferred upon the High Court to deal with matters arising thereunder. These are enumerated here as the Customs Act 190-1, Excise Act 1901, Post and Telegraph Act 190T, Property for Public Purposes Acquisition Act 1901, Commonwealth Electoral Act 1902, Defence Act 1903, Patents Act 1903, Commonwealth Conciliation and Arbitration Act 1904, and Trade Marks Act 1905. I am inviting the attention of honorable senators to this table, because I think that if they desire to consider what jurisdiction the High Court is capable of exercising, thev can most readily find it by reference to this very handy document. Dealing with section 77 of the Constitution, so far as it bears upon the jurisdiction of the High Court, we find that it is one exclud ing the jurisdiction of States Courts, and we are referred to the Judiciary Act 1903-4, sections 38, 39. 57, and 59. Further on, this table deals with the genera.1 judicial powers of the Commonwealth, and the judicial power that is exercised and vested in the High Court, and in States Courts that may be vested with federal jurisdiction. Honorable senators will see., therefore, that, apart altogether from its appellate jurisdiction and its original jurisdiction, which are directly conferred upon it by the Constitution, the High Court enjoys further the original jurisdiction that this Parliament has conferred upon it in exercising the powers given us by the Constitution. Further than that, it exercises in many matters that jurisdiction concurrently with States Courts, and exercises other jurisdiction! to which I have just made reference.


Senator Dobson - Where is the power given to hear appeals from one Judge of a State Court?


Senator KEATING - That has been decided in Parkin v. James. I think that this table will considerably facilitate any reference which honorable senators may choose to make to the powers that mav be exercised by the High Court, I am dealing, of course, in the main, with, the jurisdiction that the Court enjoys, apart altogether from its appellate jurisdiction, and for that purpose I have made reference to this table, and suggested to honorable senators' that it may be a fruitful source of information if thev desire to consult it for the purpose of ascertaining how far the High Court is invested with jurisdiction. Having stated these facts as to the powers of the High Court, I may now point out that since it's establishment it has been engaged in the exercise of its appellate jurisdiction in visiting at least more than once each of the States. In the case of Victoria and New South Wales, it has been so engaged very frequently. It has been so occupied for a considerable portion of each year. We have to consider the amount of time that the Justices of the Court can actually -devote to sitting in the Court and listening to the arguments presented to them, upon which they have to form judgments that have to be published, not only for the guidance of the legal profession, but of the community generally. By consulting the papers that have been tabled containing the correspondence that has passed between the Department of theAttorney -Genera] and the High Court, honorable senators will learn that the work done bv the Court must necessarily have involved a severe strain' upon the gentlemen who occupy seats upon the bench. Mr. Castle, the Registrar, in his letter of the 2nd May, points out that the Court was established on the 6th October, 3 903 ; and he goes on to say -

Before the close of the year the Court had sat on 12 days, and had heard 2 appeals and 8 motions and applications.

In igo4, the Full Court sat on 112 days, and heard ?g appeals and 40 motions and applications. In that year, 37 original proceedings were instituted, and in actions or cases were heard by single Justices. These included several election petitions, disputing elections or returns.

In 1905, the Full Court sat on 150 days, and heard 64 appeals and 72 motions and applications. Iri that year, the number of original proceedings instituted was only 16, but the increase in the appellate work was most marked.

In 1906, the High Court commenced its sittings by sitting at Hobart on the 19th of February. The sitting there occupied 5 days. From Hobart the Court caine to- Melbourne, and commenced a sitting on the 27th February, which occupied 25 days. The Court then proceeded to Sydney, and commenced -a sitting there on the 2nd April, and after sitting some days proceeded to Brisbane, and held a sitting there on the 17th April, and after finishing its sitting, returned to Sydney, and resumed the sitting there. This sitting theCourt was unable to complete before it had to leave for Melbourne, to commence a sitting on the 28th May, where a long list was awaiting it. The Court continued sitting until the 29th June, when it adjourned for the winter vacation, leaving several cases undisposed of. Up to the 30th June, the Full Court had, in 1906, sat on in Melbourne for 50 days, Sydnev 31 days, Brisbane 4 days, and Hobart 5 days, making in all 90 days, and heard 42 appeals, and a large number of motions.

In 1906, the High Court has continuously been engaged from the close of the summer vacation until the commencement of the winter vacation, either in holding sittings or travelling to hold sittings. As the greater part of the business before the Court had to be dealt with by a Full Court of three Justices, no Justice has been available to try original jurisdiction cases, or cases in the Court of Conciliation and Arbitration. Notwithstanding the continuous work, the Court has been unable to dispose of all the business on the lists, .and certain cases have had to stand over until the next half-year. In Sydney, there are 8 cases now awaiting hearing, in Melbourne 5, in Brisbane r, and in Perth several more. The Registrar at Perth expects that there will be quite 20 cases for hearing by the time the Court sits there in October next. The Deputy-Registrar in Melbourne expects that 2 or 3 additional cases will be set down within the next few days.

In addition, one of the Judges of the High Court is, under our legislation, President of the Court of Conciliation and Arbitration. So far no work of any kind, has been done by the President of the Arbitration Court, except, as honorable senators will see from a perusal of the correspondence, to adjourn a matter which was brought before him, and in which he was asked to determine the time and place for The hearing of a dispute. So far there is nothing to indicate that that dispute can be taken by the President of the Court at any time during the current year. It was in consequence of this fact being brought to the notice of the Government, spontaneously by the President of the Arbitration Court, in a letter which appears in the published correspondence dated the 25th April, 1906, that action was taken. He pointed out the reasons for this delay in proceeding with the business, and a report was called for from the Chief Justice of the High Court, after consultation with his colleagues. That report appears in the form of a letter dated the 8th May, 1906. In the first letter from the. President of the Arbitration Court he sets out that a dispute had arisen between the Merchants Service Guild of Australia employes and the Commonwealth Steam-ship Owners' Association, and that, on the 5th April, the parties 'came before him'' to fix a time and place for hearing. He realized that the matters involved were-!-

Issues of vital interest to both parties, and of vast importance to the public - and stated that - a month's continuous sittings of the Court at least, in my opinion, would be necessary for the hearing.

But he states that it is impossible to find even two or three days much less a month, which would not be fully occupied, consequently he. had to adjourn the application until August -

In the hope that some change might before then leave an interval in the High Court appeal business, but I see at present no prospect whatever of such an interval.

He points out that this condition of things has arisen through the steady growth of the appeal business of the High Court, and that the indications are that this increase will continue. He goes on to say -

Unfortunately, therefore, a delay amounting to practically a denial of justice to the parties in this dispute has become inevitable.

He adds -

In other words, so long as the High Court consists of three Judges only, it is .impossible that one of those three Judges can adequately discharge the duties of President of the Com- 'monwealth Court of Conciliation and Arbitration.

In consequence of that communication, which, as I have said, was spontaneously forwarded by the President of the 'Court, a request was sent to the Chief Justice that he and his colleagues would furnish a report upon the business and prospects of the High Court. I need not read the whole of the papers appearing in the published correspondence. It is sufficient for me to direct attention to the fact that the learned Chief Justice says in paragraph 2 of his letter -

From the end of the winter vacation of 1905 to the summer vacation, with the exception of one day in Perth (when I tried a case with a jury), and one week in November, the High Court was continuously engaged, when the mcm- bers were not actually travelling, in hearing business requiring the presence of three Justices (except a very few cases' which two Justices had formal jurisdiction to hear, but which it was desirable should be heard before the Full Court of three). During the one week referred to, I sat in Melbourne for the trial, with a jury, of an action pending in the original jurisdiction of the Court. During the same week Mr. Justice O'Connor sat in Sydney for the trial of an action, and sittings at which Mr. Justice Barton was to have presided were appointed to bc held in Adelaide for the trial of other actions, which at the last moment were settled.

Later on he says -

Since the end of the summer vacation, the Full Court has been continuously sitting in Hobart, Melbourne, Sydney, and Brisbane, and again in Sydney. The Melbourne sittings were extended for a week longer than the period first allotted, with the result that all the business, which included some arrears from 1905, was disposed of, with the exception of one case.

So far as it is possible to form an estimate for the future, we think that the appellate business of the High Court is likely to keep it engaged almost continuously throughout the year. We are at present unable to fix any day before the end of this year for the hearing of a case before a single Judge.

Later still he says -

It has fortunately happened that hitherto ill of us have enjoyed good health, and the business of the Court has not been interrupted for mere than two or three days in all from temporary indisposition of the Justice.

Since Mav one of the learned Judges of the High Court has been ill. I do not know whether his illness continues, but I noticed that quite recently it was necessary for the High Court to postpone the consideration of matters that required the attendance of three Judges, and to take up at the Sydney sittings only those matters that could be dealt with by two. That is always a possibility at present in relation to cases that require the attendance of three Judges. We must always contemplate the possibility of illness on the part of one of them, and, in the event of that occurring, there must be a suspension of the business of the Court, at all events, s» far as concerns that business which, requires the attention of three Judges. The learned Chief Justice says - and this fs the last passage which I shall quote -

The present continuous pressure of work leaves us very little time for research, and for the preparation of written or even oral judgments. We do not think it desirable that a Court of final appeal should work at such constantly high pressure, from which, however, there is no prospect of escape so long as the number of Justices is limited to three.

Those honorable senators who are members of the legal profession know very well that when the High Court or any Court of Appeal proceeds to the determination of mat.ters in its appellate jurisdiction it must carefully and cautiously weigh every argument presented to it ; it must recognise the fact that its decision involves either sustaining a judgment that has been given after careful deliberation, or reversing it. Consequently, the care and attention required from a Court of Appeal can never be less than that required from a Court of lower jurisdiction; and if the Justices are constantly kept sitting or engaged in travelling from one sitting place to another, and are not afforded a reasonable time for the discussion of arguments that may be presented to them, and for the preparation in proper form of their.ultimate decisions upon these important questions, the result must be to very seriously impair the efficiency and quality of their work. The Chief Justice was asked to what strength he would recommend that the High Court should be brought. In a short communication of the 20th January, which also appears in the papers, he states -

We are of opinion that the strength of the bench should be increased by the appointment of two additional Justices.

In consequence of that expression of opinion this Bill has been introduced. All the fact's are succinctly set forth, in the correspondence, a perusal of which will convey to honorable senators, far better then the words of myself or any other honorable senator, the absolute necessity for this august institution being numerically strengthened if it is to maintain" the high position it has hitherto occupied. I know that some members of this Parliament are of opinion that the circumstances might be met by increasing the number of Judges by one. However, that is a matter that mav be dealt with later in the consideration of the measure ; but I point out that, it may, and possibly very often will, prove desirable and advantageous that a full Bench, as distinguished from a Full Court, technically understood, should sit in determination of very important constitutional questions. Under the circumstances, 1 think that the least number of Judges we should have is five. I can add nothing to the pertinent remarks contained in the letter of Mr. Castle, who summarizes the work that has been done by the High Court, and sets forth the work that is expected to be completed by the end of the year ; nor can I add to the remarks of the Chief Justice himself, in the report as to the present and future business, supplied in compliance with the request of the Prime Minister. These communications in themselves should be sufficient to satisfy honorable senators that the present occupants of the Bench are working at very high pressure. Although we may admire their industry and the quality of their work, we cannot expect flesh and blood to long stand the severe mental and physical strain to which they are subjected. I, therefore, hope honorable senators will receive this Bill in anything but a party spirit, and will assist in the endeavour to establish this institution on a firm and solid foundation, so that it may continue to be, as it has been since its creation, a credit to the Commonwealth.

Debate (on motion by Senator Clemons) adjourned.







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