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Wednesday, 22 August 1906


Senator STEWART (Queensland) . - I intend to support the second reading of the Bill. When the original measure was passing through the Senate, I said that three Judges would be found insufficient, and I think that forecast has been abundantly proved. The question we have to consider is whether the case for two additional Justices has been sufficiently made out. Reading the correspondence which has been tabled, I find the. following passage in a communication from the Chief Justice to the Attorney-General : -

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.

The appellate business of the Court is of very onerous and responsible character. Tn the large majority of cases, it is expedient, if not necessary, to reserve judgment. 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.

A great many persons imagine that the work of a Justice consists of sitting on a chair, wearing his wig, looking as wise as he possibly can, and them saying ditto to the Justice by whom the decision is given. But I take a very different view of the matter. I believe that a great deal of the best work pf our Justices is done, not uponthe Bench, but after the arguments in the case have been heard. Again, the High Court is a Court of final appeal, and we all know what that means. An ordinary District Court Judge, or even a Supreme Court Justice, knows that somebody else will come after him. and, if necessary, take the kinks out of his judgment, but the Justices of the High Court know that their statement of a law must be accepted by the public until that law is changed. Therefore, the, responsibility upon them for giving an accurate judgment legally, and a wise judgment from the common-sense point of view, is all the greater. We find that for months yet Mr. Justice O'Connor, as President of the Arbitration Court, cannot possibly grant a hearing to a case which has been filed, owing to the fact that there are only three Justices on the High Court Bench. I do not think it is desirable that the working of an Act with which we took considerable pains here, and from which we hoped so very much, ought to be suspended simply because we have not a Justice to sit on any case which may be brought up. It seems to me to be a very unwise kind of economy which denies justice in that fashion. With respect to the objection raised by Senator Higgs, I believe that there are too many local luminaries on the pounce for these positions for any outsider to have the ghost of a chance. No foreigner need apply where members of the Bar are concerned We may go to the other end of the world.' for a Governor or a LieutenantGovernor, but we certainly will not go outside the Commonwealth for any Judges. I do not think that we ought to go outside the Commonwealth, or that there is any need to do so. I have no fear that a foreigner will be appointed to either position. But, apparently, Senator Gould looks upon the measure as one designed to place patronage in the hands of a dying Government. If a case for the appointment of two Justices has been made out, and I believe it has, then some Government will have the making of the appointments in its hands. I would just as soon trust the present Government in that respect as any Government that we are likely to have during the next few years.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. Gould. - They are all alike.


Senator STEWART - Yes. I believe that the present Government is just as bad or as good as any other Government we could possibly have.


Senator Gray - Even a Labour Government.


Senator STEWART - Even a Labour Government would not be perfect, although, perhaps, it would be very much nearer perfection than would any other Government. I do not see that we are at all likely to see perfection on the Government bench or in the ranks of ordinary members of the Senate during our time. The standard is very high, no doubt, but there are peaks of achievement which even we have not' reached, and which, probably, our descendants will not reach. I should like the Bill to be amended with regard to the making of rules for the admission of solicitors and barristers, because I think that Parliament should have a voice in that respect.


Senator Pearce - The rules will- have to be laid before Parliament.


Senator STEWART - I do not think it is desirable that what is neither more nor less than a mere common trade union should have the power and the privilege of saying -who shall be admitted into its ranks, and on what terms the admission shall be.


Senator Sir Josiah Symon - Why does the honorable senator call it a trade union ?


Senator STEWART - What else is it?


Senator Sir Josiah Symon - The honorable senator can be admitted if he can pass the examination required to show his qualifications.


Senator STEWART - Yes, but the trade union officials can make the examination so stiff-


Senator Sir Josiah Symon - Indeed, they cannot.


Senator STEWART - They can, and they do.


Senator Sir Josiah Symon - The honorable senator's complaint is that they do not make the examination easy enough for him.


Senator STEWART - 1 am certain that the examination is much stiffer to-day than it was when Senator Symon was admitted to the Bar. A few days ago I was reading the history of President Lincoln, who, as everybody knows, was a lawyer. It is stated in the book that it was very doubtful whether he had ever passed an examination. We all know that he became a famous lawyer, and a still more famous statesman; but the fact remains that the legal union is yearly raising the height of the barrier between itself and the public, so that only young men who have plenty of money and, of course, some brains, are able to get inside the charmed circle. I shall try to get an amendment of clause 4.







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