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Tuesday, 12 December 1905


Mr HIGGINS - No; they had been done away with for thirty-two years. In reference to the United States,, to which the honorable member for Darwin referred, I would point out that the Constitution does not permit any tribunal, except a Committee of the House, to deal with electiondisputes. Public men. in the United States have repeatedly expressed their deep regret that disputed elections cannot be referred to a Court of Disputed Returns. They recognise the immense superiority of the system which is in vogue in England. Therefore, I am justified in claiming that it is not good logic to cite the procedure which is adopted in the United States. In Canada all disputed elections are referred to the Law Courts, and not to a Parliamentary Committee. I should be very sorry if, after the short experience that we have had of dealing with these matters, we took the retrograde step of referring disputed elections to a less qualified tribunal than that which adjudicates upon them at present. Why is the High Court a more competent authority to decide these questions th


Mr Groom - We might do what is done in Queensland - limit the cost to a fixed amount.


Mr HIGGINS - I hope that some means will be found by which the expenditure in this connexion can be reduced. I think that Ave might provide that only one counsel shall be retained upon either side.


Mr Watson - It would be better to prohibit the employment of counsel.


Mr HIGGINS - I should like to allow the Judge to decide whether he will hear counsel. There are certain cases in which he might very well dispense with the services of counsel, but there are others in which counsel can be of material assistance to him. It is like one squeezing both sides of a nut - both sides come out, and one gets the kernel ?


Mr Webster - Who gets the kernel ?


Mr HIGGINS - I understand that the honorable member's regret is that he does not -secure it. The nut-crackers do not enjoy the kernel. Under section 199 of the existing. Act, the Court, in deciding disputed elections, must be guided by the substantial merits and good conscience of each case, without regard to technicalities or the laws of evidence.


Mr Webster - Yet it took the High Court four months to decide one case.


Mr HIGGINS - The honorable member is scarcely just in his remark. There was a long interval between the sittings. The fundamental objection against the appointment of an Elections and Qualifications Committee is that men hot from the country are not qualified to decide such matters as would be remitted to them.


Mr Webster - That statement is opposed to modern experience.


Mr HIGGINS - Human nature is the same all the world over. When one feels that an opponent is pulling for his side, one naturally begins to pull for his own side. Our great aim should be to secure justice without regard to its bearing upon parties. I understand that the numbers are against me, but I would suggest that a Judge should be appointed chairman of the Committee, so that he might do what is done by the President of the New South Wales Arbitration Court - exclude what is unnecessary in the way of evidence.


Mr Watkins - We get more satisfaction from the Arbitration Courts in New South Wales in cases which are not heard by a Judge.


Mr HIGGINS - An Arbitration Court has to deal with the conditions relating to the carrying on of a trade, and I admit that oftentimes a Judge has not the economical or other experience necessary to enable him to decide what is a living wage for an artisan, or what is necessary from the point of view of an employer's business. But the Court to which electoral disputes are referred has to deal with findings of facts. It has to determine whether so and so was guilty of bribery, or indulged in any other illegitimate practice, and it has also to decide questions of law. I shall vote for the clause as it stands, but as a kind of via media, I would suggest that we might have a Judge -as Chairman of the Committee, and that he should have the right to exercise a discretion as to whether or not he will hear counsel. His decision in that respect would depend upon the nature of the case. I would further suggest that neither party should be allowed to retain more than one counsel, and that there should be a scale of charges subject to the control of the House. I understand that the Minister is prepared to move in that direction.


Mr Groom - Hear, hear ; a lower scale of charges.


Mr HIGGINS - This is a matter which opens up much debatable ground, and I am not surprised at the differences of opinion which have been expressed. I am sure that honorable members will at least give the lawyers the credit of desiring, to the best of their ability, to place their experience before the Committee. T feel strongly that the proposal to revert to an Elections and Qualifications Committee is a mistake, which will no doubt be rectified as the result of experience. I have put before the Committee the experience which Mr. Disraeli gave in r868, when he was bringing forward his Bill.


Mr Webster - That was practically forty years ago.


Mr HIGGINS - Rotten boroughs had disappeared over thirty-two years before that date. They were abolished in 1832, whilst 1848 saw the extreme refinement of House of Commons Committees. With all their care and experience, and notwithstanding that the most honorable men were named in Mr. Speaker's warrant, to act as

ACommittee, the system was still found to be unsatisfactory. There were all sorts of strainings at the leash by the members of the Committee when they were confronted with the question, " Shall this seat go to this party, or to that one?" I trust that honorable members will allow the clause to pass as it stands; but I would beg the 'Minister to meet the desire of honorable members to the fullest extent bv providing for a reduced scale of costs, by limiting the number of counsel to be engaged, and so limiting the costs of petitions. I am confident that proceedings bofore an Elections and Qualifications Committee would cost far more than thev would when brought before the High Court as a Court of Disputed Returns.







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