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Wednesday, 22 August 1906

Debate resumed from 10th August (vide page- 2672) on motion by Senator Keating -

That the Bill be now read a second time.

Senator Sir JOSIAHSYMON (South Australia) [7.46]. - This is a Bill to make the High Court a Court of four Justices and a Chief Justice, instead of at present a Court of two Justices and a Chief Justice. The reasons which have been presented by the Government in its support, are chiefly if not wholly, based on the ground of the large increase of judicial work which the establishment of the Court has brought about, and the pressure to' which Senator Keating referred. In the few words I have to say, I do not propose to enter into that aspect of the ques tion, as he dealt with it fully. .1 propose to look at the subject from what I conceive to be the higher and broader aspect which I have always entertained. To the opinion which I expressed and sought to give effect to in 1903, when the Judiciary Bill was before the Senate, I still adhere. I still hold the view that the High Court of the Commonwealth should consist of not less than four Justices and a Chief Justice. When honorable senators look back on the history of the establishment of the Commonwealth, and the steps which throughout a considerable course of years were taken with a view to the framing of the Constitution, they will, I think, find that the volume of opinion, I believe I may say, probably the best opinion, on this momentous question in relation to the Federal Judiciary, has been consistently and uniformly in the direction of a Court of not less than five Justices. The Constitution framed by the Convention of 189 1, of which you, Mr. President, had the distinguished honour of being a member, provided for a Chief Justice, and not less than four Justices. In the Convention which assembled in Adelaide in 1897, the subject was dealt with. In the first instance, it was brought in the ordinary course under the consideration of the Judiciary Committee of which I had the honour to be chairman. We had before us the provision of the Constitution framed in 1891, and a suggestion was made for the reduction pf the number, so that the minimum should' be fixed at three .instead of at five. After the question had been most anxiously and earnestly discussed, the provision made in the Constitution Bill of 1891 was retained. In1 that shape, accompanied by the report of the Judiciary Committee, it was submitted to the Convention. On that occasion, Mr. Carruthers, who is now Premier of New South Wales, moved to strike out the minimum of four Justices, so' as. to leave the Parliament entirely at large in that regard. His amendment was defeated by a majority of three, the numbers being, if I recollect rightly, sixteen to thirteen. So that the Constitution, when it emerged from the Adelaide session, contained a provision with regard to the strength of the Judiciary as a Chief Justice and four Justices. No interference was made with the provision at the Sydney session in 1897, but at the last session, in Melbourne, the subject was revived, and a proposal was made that the minimum should be three, namely, a Chief

Justice and two Justices, instead of five, as originally provided. That was carried, but only by a majority of one vote. Honorable senators will therefore see that when I say that the volume of opinion was in favour of establishing the Court with that degree of numerical strength, it was so throughout, and that at the Melbourne session there was practically an even division. The amendment was made, not, I think I may safely say, because there was any change in the opinion of a majority of the members of the Convention, but because of what I might call prudential reasons in regard to presenting the Bill for the acceptance of the people at the referendum. That was the state of things up to the assembling of the first Parliament, and in 1903, the Judiciary Bill as it is now on the statutebook, was brought in. It was introduced, and I think properly introduced, by the Ministry, with a minimum of four Justices and a Chief Justice, and it so remained until the House of Representatives reduced the number to three. It then came here. Senator Stewart, who spoke immediately before I did, criticised the Bill adversely from certain stand-points. With some of his criticisms I agreed. He rested one of his criticisms on the ground that the Court ought to consist of five Justices and not of three. Speaking in the debate on the second reading, I said-

My honorable friend, Senator Stewart, said that he would vote for the Bill with reluctance, because it was a ragged measure, and that the High Court to be established under it would be a court which would not fill us with pride. Well, I cannot go quite that length with him I shall vote for the Bill, also with reluctance, because the Court will be one of three Judges; and I will give reasons why I think there ought to be five.

I may say that Senator Dobson said that if there was to be a Court at all, he Was strongly in favour of there being a Court of five Justices. Referring to that remark later on, I said -

I have not had the privilege of hearing the debate so far, but I will pledge Senator Dobson my uncompromising support if he will take steps in Committee to increase the number of Judges from three to five.

No effort was made in the Senate to increase the minimum from three to five, because there was a very strong feeling, in Parliament at the time in respect of cost, and so on. I believe I am correct in stating that no amendment was moved, because it was felt that in all probability it would not be successful. On the same, occasion, I said -

As to the number of Judges, I agree with Senator Dobson that there ought to be five. There is a numerical strength as well as an intellectual strength. . . Judges are human, and therefore I say that we ought to have a numerical strength as well as an intellectual strength. I understand that Senator Keating referred to the number of Judges in America, and to an intention there is of increasing them. I should like to tell honorable senators that when the United States were launched on their national career of union in 1789 with a population less than ours-, and with, as Mr. Higgins and others admit, less possibilities of work than are presented to pur High Court, five Judges and a Chief Justice were appointed. And not only so, but a large number of other courts were constituted at the same time for the purpose of doing work under the Federal Constitution.

Three years have elapsed since that time, and Senator Keating has alluded to additional consideration, but with that aspect of the question I shall not deal. I adhere emphatically to the view I expressed in the Convention in 1897-8, and in the Senate in 1903. I still think that we ought to have had 'from the beginning, and we ought certainly to have now, a Court of five Justives. The great reason by which I am influenced is that which I stated then, that there is a numerical] force, if I may so call it, as well as an intellectual strength. Whatever criticism may be offered to the view I venture to submit, there is this to be said : That we want our tribunal to be imposing in power and ability, and also imposing, within limits, in number. That is really all I have to say, except that, with the proposed numerical increase, we shall get increase of strength, increase of dignity, and increase of influence. I think that the dignity and power of the Court will certainly not be lessened, but will be augmented, by that numerical addition, the judgments will carry undoubtedly that greater weight which the number associated in them will give, and the stream of justice, will be none the less strong throughout this community by increased strength in the fountain from which it comes.

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