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Wednesday, 22 August 1906


Senator KEATING (Tasmania) (Honorary Minister) . - I should have thought that the papers circulated amongst honorable senators, apart from their own personal knowledge of what has taken place, would have convinced them that it is desirable that the High Court should be numerically increased to the extent proposed by this Bill. My honorable friend Senator O'Keefe, in moving his amendment, seemed to think that the whole object of the increase in the strength of the High, Court was to enable a member of the Bench to devote some time to the consideration of matters arising in connexion with the Conciliation and Arbitration Act. He did not refer at all to the difficulties with which the High Court is confronted in other respects - to its practical inability to deal with' matters of original jurisdiction, for instance. The Court, as I pointed out in moving the second reading, is constituted under the Judiciary Act, and invested with jurisdiction under it. But, apart altogether from the provisions of the Judiciary Act, many of the Federal Statutes directly invest the CoUrt with original jurisdiction. I made special reference to that in my second-read^ ing speech. What bulks large in the public eye in regard to the work" of the Court is entirely its appellate work, and honorable senators who will peruse the papers wall see that it has had practically to relegate its original jurisdiction work to the background. In the last memorandum appearing in the papers, that from the Principal Registrar of the High Court, Mr. Gordon Castle, under date 10th July, it is stated -

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.

That refers to cases in original jurisdiction -

In Sydney, there are 8 cases now awaiting hearing, in Melbourne 5, in Brisbane 1, 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.

Later on in the same memorandum Mr. Castle states -

In my opinion, there is no reason to expect any falling off in business in the future. The increase in business has been continuous, and, although perhaps the business will not continue to increase at the same rate as it has in the past two years, I believe that it will continue to increase, especially in the States of Western Australia and Queensland.

Mr. Castleconcludes

The original jurisdiction work of the High Court has been substantial, if not large. Apart from matters which have been dealt with before the Full Court, sittings before single Justices have occupied 33 days. Judging from the amount of business during the past half-year, and the amount of business already waiting for the present half-year, I do not see how, with the Court as at present constituted, the original jurisdiction work could receive attention without delaying the appellate work.


Senator O'Keefe - - As at present constituted.


Senator KEATING - That is the opinion of the Principal Registrar, who is in touch with the different district registrars, and knows the work that has been done, and has means of ascertaining the prospects of work in the various States. Mr. Castle is speaking of the work of the High Court pure and simple, exercising the jurisdiction with which it is invested under the Judiciary and other

Acts, excluding for a moment the Arbitration and Conciliation Act. In those papers there is also a memorandum by the same officer in his capacity as Industrial Registrar. This is a report on the work of the Commonwealth Court of Conciliation and Arbitration, and the prospects of the business likely to engage the attention of the Court. After referring to the Merchants Service Guild dispute, which brought prominently under the notice of the Government the necessity for increasing the strength of the Court, Mr. Castle goes on to say -

Already, three actions and four appeals are awaiting a sitting in Perth, and the Registrar of the High Court there expects that a good many more cases will be set down before October.

In paragraph 2 Mr. Castle says -

There are two appeals from the Registrar to the President pending in Sydney. These have been postponed until the decision of the High Court on a special case, referred to it by the President, has been given.

It has been interjected and stated that there is no reason to anticipate any large amount of work for the Court of Conciliation and Arbitration. After referring to the work that is actually in prospect before the Court. Mr. Castle in paragraph 3, proceeds to anticipate - and no one should be in a better position to do so - the work of this Court -

I have heard from the representatives of the organizations concerned that there is a probability of disputes in relation to the woodworking timber yard and saw-milling industry, and in relation to the Butchering industry, including the frozen meat trade, being submitted to the Court.


Senator O'Keefe - Has it been proved that such cases can be constitutionally brought before the Federal Court?


Senator KEATING - I presume; that Mr. Castle, who is well acquainted with the constitutional aspect of the matter, and was asked to report on the prospective work, would not commit himself to such a statement without foundation.


Senator O'Keefe - It is possible there may be a desire to bring such cases before the Court.


Senator KEATING - I am not going to anticipate the decision as to whether- or not such cases mav constitutionally come within the jurisdiction of the Court.


Senator O'Keefe - It has an important bearing.


Senator KEATING - I am not going to determine either the merits or the con.stitutionality of the cases.


Senator de Largie - Has the union referred to been registered?


Senator KEATING - I am not in a position to say. Mr. Castle is Registrar, and he was asked to furnish a report on the business, and the prospects of business in the several registries under the Act. Mr. Castle, by virtue of his position, naturally knows the constitutional bearing of the cases which may possibly come before the Court, and that is the report he made.


Senator Dobson - Does Mr. Castle mean to say that the disputes referred to will extend beyond one State?


Senator KEATING - Mr. Castle simply says that he understands disputes regarding these industries will be submitted to the Court?


Senator Dobson - Does- the Minister really believe that the Arbitration Court will keep one Judge employed?


Senator KEATING - I do not suppose that it is possible Mr. Castle would submit fictitious cases.


Senator Dobson - T do not suppose so either ; but does the Minister believe that the Federal Conciliation and Arbitration Court will employ one Judge all the year round ?


Senator KEATING - I am not in a position to say.


Senator Dobson - I do not believe it will.


Senator KEATING - The honorable senator's predictions with regard to the work of the Judiciary have been falsified in every minutest detail. I have the honorable senator's speeches here, and I perhaps will give him the benefit of them, and then honorable senators will be in a position* to estimate the value of his predictions. When it was proposed to establish the Judiciary Senator Dobson said there would be absolutely nothing for the Judges to do, and that the Court would be the third1 in the Commonwealth, ranking after the Courts of New South Wales and Victoria. Mr. Castle goes on to say -

I have noticed lately, paragraphs in the newspapers which indicate that a dispute between the Shearers' Union and the pastoralists might arise at any time. All the industries affected1 are large and increasing industries, and disputes, should they arise and be referred to the Court, would almost certainly take a long time to settle.


Senator Dobson - Why not wait until the probability is a certainty?


Senator KEATING - That is the same argument the honorable senator brought before us previously. The honorable senator then, asserted dogmatically that there was not a case awaiting the attention of the High Court, but four honorable senators interjected to the effect that there were cases waiting in their own States. Every one of those cases has since been tried, and the work of the High Court has multiplied considerably. As Senator Best has pointed out, the work to which the members of the High Court have applied themselves has been done with expedition, but the reports show that the whole of the work cannot be dealt with. It is stated that some of the work will have to be left over until next half year - that is stated in a memorandum written as far back as July last. . With all these circumstances before them, the Government asked the Justices of the High Court to fully consider the matter, and report what increase in strength, in their opinion, the High Court should receive. The Chief Justice, speaking on behalf of himself and colleagues, expresses the opinion that the strength of the Bench should be increased bv the appointment of two additional Justices. I do not think that any honorable senator will imagine for a moment that the request preferred by the learned Chief Justice for two additional colleagues is based on any belief or desire that he or his colleagues will be relieved of work which they legitimately and "reasonably might do. The reputation of the hon- 01 able and learned Chief Justice for industry in his profession, both before he was elevated to the Bench and since, is so great that no honorable senator will imagine that he is going to waste any of his time or devote it to other purposes when he might be performing the judicial work of the Commonwealth. We may reasonably infer that when, after full consideration, he recommends that the strength of the Bench should be increased by the appointment of two additional Judges, there is ample work to keep the whole of the five Judges employed - that five is the minimum number, if we are to have regard to the individual rights of the members of the community and expedition in the administration of justice. Unless honorable senators are absolutely satisfied that the Chief Justice has made a recommendation which he, intimate as he necessarily is with all the circumstances, knows to be extravagant, I ask them to support the Government in carrying out the recommendation made by him on behalf of himself and colleagues.







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