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Tuesday, 12 December 1905


Mr WEBSTER (Gwydir) - It is rarely that the honorable and learned member for Parkes favours us with his attendance, and he is therefore entitled, when he speaks, to claim the attention of the Committee. The honorable and learned member seems to hold a brief for the legal profession. He has sought to show that if the Minister will agree to render it impossible for the Court to throw the costs of the successful candidate upon the unsuccessful one, the difficulty will be solved. His manner would lead one to believe that as soon, as he has spoken, the matter should be taken as settled ; but the figures quoted by the honorable member for Melbourne and the honorable member for Riverina are startling, and are of themselves sufficient to warrant the acceptance of the amendment. The honorable and learned member for Parkes commenced by seeking to discredit the quotation made by the honorable member for Melbourne with regard to the procedure followed in Denmark; but he had to make the admission, for the first time within my knowledge, that he had not read something appertaining to the social progress of the world. I am satisfied that the quotation and the arguments used by the honorable member for Melbourne strongly supported the position which he set up, and that whatever may have been the costs incurred by the honorable member for Riverina, his experience must have been a bitter one. I believe that all electoral disputes should be settled by an Elections and Qualifications Committee. The honorable and learned member for Parkes objects to such a tribunal, because he holds that Members of this 'Parliament should be called upon to perform no other duty than that of legislating for the Commonwealth ; but the fairest tribunal that could be constituted to deal with matters of this kind is one consisting of Members of Parliament, who are familiar with the intricacies of an electioneering campaign, and can bring to bear a knowledge which is not possessed by anr legal luminary who has no political experience. So far as I am aware, there has been little room for complaint as to the decisions of the Elections and Qualifications Committee of the State Parliament of New South Wales, or as to the cost of conducting proceedings before it. That Committee has dealt with dozens of disputes, but I know of only one case in which an aspersion has been cast upon it - and cast, upon it, I believe, with some justification. I have known the Committee to declare void the election of a supporter of the dominant party in the State Legislature, and we must not lose sight of the fact that we have an additional safeguard in the power of Parliament to override the decision of the Committee. The members of the legal profession are fighting for their own hand. In every matter relating to the High Court which has been dealt with by this Parliament, a solid phalanx of the legal members of the House has supported the point of view of the lawyers, and. when they have not been able to get their own way, they have sought to build a bridge to carry them over the objections, of the other side. The proposal that the Court shall not have power to mulct the unsuccessful man in the costs of the successful party would not grant any relief. The honorable and learned member for Parkes said that Mr. Blackwood was called upon to pay costs amounting to £692, and he spoke of the amount as if it were a mere bagatelle. Although a candidate may have contested an election fairly and honorably, and be returned1, his opponent, if a rich man, can practically drive him out of Parliament by entering an action against him before the Court of Disputed Returns. Is that justice? If the honorable member for Melbourne had not had the courage to -fight a second contest, rather than be mulcted in the costs involved in an appeal to the Court,, the people of Melbourne would not have had the man of their choice to represent them. Not many men would have done what he, did on that occasion. I am surprised that the Minister of Home Affairs is opposing the amendment. He must unwittingly be influenced by his environment. I do hot agree with the suggestion that the difficulty would be met by limiting the expenses of litigants appearing before the Court of Disputed Returns, because I know that, however one may get into a Court, he will not leave it until he has lost pretty well all that he possessed, unless he is a very rich man indeed. " Walk into my parlour," said the spider to the fly; but once a litigant gets into Court, he has to pay for his experience there. What is taking place in connexion with the Arbitration Court of New South Wales, shows the abuses which arise from the employment of lawyers. Had the Labour Party of New

South Wales had1 their way, and had lawyers been prevented from appearing before that Court, cases which have been awaiting a hearing for a long time would have been dealt with satisfactorily before this. But every lawyer appearing before that Court stretches out his case as long as his conscience will permit him to do so, and there is hardly any length to which their consciences will not permit them to go. It is said that the employment of lawyers shortens the hearing of cases, because evidence is placed systematically before the Judges. As a matter of fact, however, the contending lawyers enter upon a battle royal, each intent upon proving that he is right, and when the case is disposed, of, the clients are ruined men, not having a feather to fly with. If we wish to do justice to future members, let us refer disputed elections to a Committee of Elections and Qualifications, and prevent lawyers from appearing before that Committee. The Prime Minister spoke of a case before the Victorian Committee which cost a great sum of money, but that case may have occurred in the dim distant past, when elections themselves cost £6,000 or £7,000. Is any one better qualified to deal with an- election dispute than an experienced Member of Parliament, such as would be appointed by Mr. Speaker to this Committee?


Mr Deakin - As a rule, an independent Judge would be the best man to try such a case.


Mr WEBSTER - I do not agree with the honorable and learned gentleman. There are no legal questions involved in these cases; the questions at issue are merely questions of fact. Any man of ordinary common sense would be better qualified to decide such cases than a Judge, who would be inclined to give technical legal decisions. If one wants a technical legal decision, in accordance with the strict letter of the law, he should go to a tribunal like the High Court. But if he wants a decision on the merits of the case, without the introduction of any technicalities, he will get one in accordance with equity and good conscience from men of common sense rather than from Judges'. I admit that I have a strong prejudice against the legal profession. There are rare exceptions upon whom I look with admiration, but I think that if the legal body did not exist, and our Taws were administered in accordance with equity and good conscience, we should be better off than we are." In Denmark they do not allow lawyers to appear in the Courts, leaving it to qualified lawyers to decide according to the merits of the cases submitted to them.


Mr Hutchison - Litigants very seldom ap'peal in Denmark.


Mr WEBSTER - That is because the verdicts are in accordance with common sense, and commend themselves to the parties concerned. I have had some experience of Courts, and had I been guided by the advice of lawyers in a case in which I was interested some years ago, I should simply have had my pockets picked. Instead of taking that advice - because I felt that it was opposed to justice and equity - I brought my case before the Full Court of New South Wales. Any layman of ordinary intelligence should be capable of bringing a case before a Court as well as if he had a barrister to do the work for him. No doubt if the cost of taking a case before the Court of Disputed Returns were limited strictly to we should get justice from that Court.


Mr Groom - I have promised to see in what way the costs can be reduced and the procedure of the Court simplified.


Mr WEBSTER - Will the Minister tell us that he is prepared to strictly limit the expense of appearing before the Court, and to provide that no further sum than that fixed shall be recoverable from either petitioner or respondent?


Mr Groom - Does the honorable member mean that the amount payable to counsel by either party should be fixed beforehand ?


Mr WEBSTER - I would prevent counsel from appearing, before the Court, and would strictly limit the expense of proceedings there. If that were done, we might possibly retain the present procedure. No doubt if we abolished the lawyers the Judges would decide matters on their merits. I trust that the Committee will see that members are protected from having to pay heavy law expenses in connexion with disputed elections, and will indorse the principle of referring election disputes to a Committee of Elections and Qualifications. Who will say that such a Committee would not do justice to those appearing before it? Even the most unpopular man in the House need have no fear that he would not get justice from such a Committee. I ask the Committee not to be led away by the speech of the honorable and learned member for

Parkes, who thought that it would be a great thing merely to relieve the unsuccessful litigant of the costs of the successful litigant. Unless we get a clear and substantial promise that a change will be made in the present procedure, which will be a distinct gain, it will be our duty to substitute for the Court of Disputed Returns a Committee of Elections and Qualifications.







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