1907-07-24 3 2 0 SENATE 828 0 Senate. 1907-07-24 The President took the chair at 3 p.m., and read prayers. 828 Questions 828 828 JYX 0 0 FINDLEY, Edward Senator FINDLEY - I desire to ask the Vice-President of the Executive Council, without notice, whether, in accordance with the promise given to me on 12th July, the Government has taken any action in regard to the operations of the American Boot Machinery Trust, who are alleged to be carrying on business in contravention of section 87 of the Patents Act ? 828 JPC Protectionist 1 0 BEST, Robert Senator BEST - In accordance with my promise the matter was brought under the attention of the Minister of Trade and Customs, who, I believe, is taking action. If my honorable friend will give notice of the question, I shall be able to give him a definite reply to-morrow. 828 828 JYX 0 0 FINDLEY, Edward Senator FINDLEY - I desire to ask the Vice-President of the Executive Council, without notice, a question bearing on the following notification in the South Australian Government Cassette - NORTHERN TERRITORY. LAND SALE AT PALMERSTON. MONDAY, AUGUST 12th, 1907. TOWN LANDS PLAYFORD. Crown Lands Office, Palmerston, 3rd July, 1907. The following allotments of Crown lands will be offered for sale by public auction at the Land Office, Palmerston, on Monday, the 12th day of August, 1907, at11 a.m., at the upset price of £20 per acre, under the provision of the Northern Territory Crown Lands Act 1890, and the regulations thereunder, dated February 24th, 1891. Plans of the allotments can be seen and obtained at this office. CHARLES E. HERBERT, Government Resident. Allotments Above Referred to. 2, 4, 14, 16, 20, 22, 45, 47, 86, 87, 88, 89, 92, 93, 94, 95, 98, 99,100,101,104,105 and 107. THOMAS. J. WORGAN, Chief Clerk and Draughtsman. I desire to ask the Minister, whether he, acting for the Government, will respectfully request the Government of South Australia to withhold the sale of the advertised lands until the agreement provisionally entered into between that Government and the Commonwealth Government has been finally dealt with by the respective Parliaments? 828 JPC Protectionist 1 0 BEST, Robert Senator BEST - I shall bring the matter under the notice of the Cabinet. 828 JYX 0 0 FINDLEY, Edward Senator FINDLEY - Arising out of the answer, I desire to ask the Minister when the next meeting of the Cabinet is likely to be held, and whether, when it is held, he, as leader of the Government here, will use his best efforts to have the matter brought under the notice of the Government of South Australia, with a request that the lands be withheld from sale? 828 JPC 0 0 BEST, Robert Senator BEST - I am disposed to think that a Cabinet meeting will be held either on Wednesday or Thursday of next week, but if by any chance a meeting should not take place on either of those days, I shall bring the matter under the notice of the Acting Prime Minister, together with the representation made by my honorable friend. 828 828 K3G ALP 0 0 RUSSELL, William Senator W RUSSELL - I desire to ask the Vice-President of the Executive Council, without notice, whether any arrangements are being made to enable the members of the Senate, especially new members, to visit the proposed Federal Capital Site at Canberra? 828 KPE Protectionist 1 0 KEATING, John Senator KEATING - Yesterday I received from the Acting Prime Minister, a communication which had been forwarded to him by, I think, twelve new members of the House of Representatives requesting that arrangements be made to enable them at the end' of this week to visit the proposed Federal Capital Sites at Canberra and Dalgety. At the present time, arrangements are in course of progress, and inquiries are being made through the Government of New South Wales, in order that provision may be made for the travelling of those honorable members who desire to visit those localities. The same facilities will be afforded to any members of the Senate , who desire to visit the two sites at that time. I would earnestly ask those who desire to visit the sites, and can do so at the end of this week to supply their names as early as possible to the Government, because it is desirable that the exact number who intend to go should be made known as soon as possible in order that the necessary arrangements may be made. If the contemplated arrangements in progress are brought to a head, it is proposed that the party should leave Melbourne on Friday next by the ordinary express train for Svdney, and be brought back to Melbourne by the ordinary express train from Sydney reaching here on Tuesday next. If any honorable senators desire to be members of that party, I shall be very glad to have an intimation to that effect from them at the earliest possible moment. 829 JZC 0 0 O'LOGHLIN, James Senator O'LOGHLIN - Arising out of the question, I desire to ask the Minister whether, in view of the fact that a number of honorable senators left Melbourne on a trip at the end of last week, and that most of them desire to visit their homes at the end of this week, it will be possible to postpone the visit to the Federal Capital Sites until the following week, or, if not, whether those who may be unable to go at the end of this week will have a later opportunity of inspecting the sites? 829 KPE 0 0 KEATING, John Senator KEATING - Nothing definite has yet been arranged ; but if there is a number of honorable senators who desire to visit the sites, perhaps they may be able to meet the Government by arranging with the members of another .place to have the visit made on a date which would be convenient to them and the Government. We desire to place no obstacle in the way of any honorable senator who desires to inspect the sites, in order that he may be able to give a vote on any question which may arise concerning the location of the Federal Capital. 829 829 JXT 0 0 NEILD, John Senator Col NEILD - I desire to ask the Vice-President of the Executive Council, without notice, whether a communication has been received from the Premier of New South Wales with reference to not proceeding further at the present time with a measure relating to Federal Quarantine ; and, if so, whether the Government are prepared to accede to the request for a reasonable delay? 829 JPC Protectionist 1 0 BEST, Robert Senator BEST - I believe that some representation has been made, but it is not within my personal knowledge, and therefore I would suggest to my honorable friend that he should give notice of the question. 829 829 JVC 0 0 DOBSON, Henry Senator DOBSON - I desire to ask the Vice-President of the Executive Council, without notice, whether he can state, either now or when the Judiciary Bill is brought on, if the Government intend in that or any other Bill to take any step to prevent appeals from a single Justice of a State Supreme Court to the High Court? 829 JPC Protectionist 1 0 BEST, Robert Senator BEST - It is certainly not our present intention to include a proposal of that kind in the Judiciary Bill. The Government have not considered the subject-matter of my honorable friend's question, and I would suggest that he should give notice of it, so that I may have an opportunity to get a reply. 829 papers MINISTERS laid upon the table the following papers : - Notification of the acquisition of land at Singleton, New South Wales, for a rifle range. Defence Acts Regulations, Military Forces. Amendment of Regulations 516 and 526, Statutory Rules 1907, No. 78. Transfers under the Audit Acts in connexion with accounts of the financial year 1906-7. Approved 19th July, 1907. Information as to the character of the country adjacent to the proposed route for a railway from Kalgoorlie to Port Augusta. Judgment of the Lords of the Judicial Committee of the Privy Council on the appeal of Webb v. Outtrim. 829 KPE Tasmania Protectionist Minister for Home Affairs 1 0 KEATING, John Senator KEATING . - I propose to lay upon the table of the Library, as I intimated a few days ago, copies of the agreement for the carriage of mails between Launceston and Melbourne, and the agreement for the carriage of mails between Burnie and Melbourne. 829 KSH 0 0 MACFARLANE, James Senator Macfarlane - Do I understand that the papers are not to be printed? 829 KPE 0 0 KEATING, John Senator KEATING - The papers will be laid on the table of the Library. 829 KSH 0 0 MACFARLANE, James Senator Macfarlane - Then they are not the property of the Senate? 829 KPE 0 0 KEATING, John Senator KEATING - No. 829 Questions 829 829 K5F 0 0 SAYERS, Robert Senator SAYERS asked the Minister representing the Minister of Trade and Customs, upon notice - Whether cotton-ginning machinery will be admitted free of duty, as under Division VI. (*) of Supplement No. 1 of the official Tariff Guide? If so, will he cause instructions to be issued accordingly? 830 JPC Protectionist 1 0 BEST, Robert Senator BEST - The answers to the honorable senator's questions are as follow : - Cotton fins are admitted free of duty under Division VI.(g) - the driving power and all connexions are dutiable. Instructions have already been issued as above. 830 830 K6L 0 0 CHATAWAY, Thomas Senator CHATAWAY asked the Vice-President of the Executive Council, upon notice - Has he official information of the reported mining developments at Pine Creek, and other places in the Northern Territory? If not, will the Government procure same, and lay it before the Senate? 830 JPC Protectionist 1 0 BEST, Robert Senator BEST - The answer to the honorable senator's questions is as follows : - 1 and 2.The Government have no official information on the subject, but have inquired from the Government of South Australia. 830 830 JYX 0 0 FINDLEY, Edward Senator FINDLEY asked the Minister representing the Treasurer, upon notice - Whether any of the employes in the State Government Printing Office engaged on Federal work are employed over eight hours at any time without receiving overtime rates for such work ? If so, will the Government give an assurance that eight hours shall constitute a day's work, and that all work performed beyond that will be paid for at trades union overtime rates? 830 JPC Protectionist 1 0 BEST, Robert Senator BEST - The answer to the honorable senator's questions is as follows : - 1 and 2. The hours of the employes on the day staff are from 8 a.m. to 5.30 p.m. on Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays, and on Saturdays from8 a.m. to 1 p.m., aggregating 47½ hours per week. Any time worked after 5.30 p.m. or 1 p.m. is paid for at overtime rates. A week's work for the linotype operators constitutes 42 hours, whether worked by day or night. This is also the practice in private firms. Those engaged on night duty work more than eight hours per night, but any time over 42 hours is paid for at overtime rates. As compensation for night duty they are paid 10s. per week extra. Compositors and others on night duty also work more than eight hours each night, but these also receive compensating advantage, as their week's work consists of 42 hours instead of 47½ hours as worked by the day . staff. Any time, above 42 hours is paid for at overtime rates. These employes do not commence their work till 5.30 p.m. on Tuesday, and a large number of them prefer longer than eight hours to avoid coming in on Monday. 830 830 K0F 0 0 PEARCE, George Senator PEARCE asked the Vice-President of the Executive Council, upon notice - . In reference to the reply given by him to the questions asked on Thursday,18th July, concerning the method of dealing with tobacco waste under the Excise Tariff Act and Regulations - Will the Minister inform the Senate - Whether it was not a fact that the past practice has been to mix the waste with kerosene and burn the same in the presence of a Customs officer? If the new practice is to be a general rule applied to all firms? Is the Minister satisfied that under the new practice the revenue is fully protected? 830 JPC Protectionist 1 0 BEST, Robert Senator BEST - The answers to the honorable senator's questions are as follow : - No. The present practice is a continuance of State practice. The present practice applies to all firms. Yes. 830 830 JYX 0 0 FINDLEY, Edward Senator FINDLEY asked the Minister representing the Minister of External Affairs, upon notice - Whether the seven Spaniards who left their ships at Fremantle were under contract to the Colonial Sugar Refining Company? Whether four Spaniards alleged to have remained at Fremantle were under contract to the above company? If so, have they infringed the conditions: under which they were engaged or the Act under, which they were admitted to the Commonwealth ? 830 JPC Protectionist 1 0 BEST, Robert Senator BEST - The answers to the honorable senator's questions are as. follow : - Yes, Yes. They would appear to have broken their contract with the company. They have not contravened any provision of the Contract Immigrants Act. 830 bill Bill read a third time. 830 bill 830 Debate resumed from 17th July(vide. page 585) on motion by Senator Best - That the Bill be now read a second time. Senator Sir JOSIAH SYMON (South Australia) [3.17]. - I think it would have been better, if these two Bills - the Judiciary Bill and the one relating to income *ax on Commonwealth salaries and allowances - had been dealt with in the ordinary way, separately. I believe that honorable senators will agree with me in that respect when we come to consider them in detail. But as it is the wish of my honorable friend, the Vice-President of the Executive Council, to deal with both' at the same time, and in the same debate, I defer to that wish, and am glad on this occasion to follow his example. At the same time, I may as well mention to honorable senators why it appears to me that it would have been more convenient to deal with the measures :separately. The two Bills are not, it appears to me, correlated in any way whatever. They are not the complement the one of the other. Each is independent of the other. One of these Bills might be enacted or rejected without affecting the other in the slightest degree. 831 JPC 0 0 BEST, Robert Senator Best - I suggested dealing with them together for the purpose of convenience. 831 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - My honorable friend assents to what I say, but he adds that it is a matter of convenience to deal with them together, as though I were reflecting upon his own desire in that respect. I am not reflecting upon that at all. But I differ entirely from him in the matter of convenience. The one Bill - the Salaries Bill, as I may call it for shortness - is a Bill to impose taxation upon certain persons or classes of persons who have been declared under the Constitution to be exempt from that taxation. The other Bill is one, as I think, to take away powers from States Courts which they already under the Constitution enjoy, and which they were intended to enjoy ; and to that extent, in my view, to impair the status of the States Courts, which the framers of the Constitution were distinctly anxious to preserve. So that the two Bills are really for entirely different - in point of fact, entirely opposite - purposes. And I doubt very much - in fact, I do not suppose that it will be suggested - whether it will be possible, except as regards discussing the two Bills together in one speech instead of two, to deal with the two together in Committee. 831 JPC 0 0 BEST, Robert Senator Best - Hear, hear. 831 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Or to -deal with them contemporaneously. Therefore, it appears to me that we are dealing with two measures at the same time, which are entirely distinct in their nature and intention, and that .it will be necessary for us ,to apply our minds to each of them separately. Consequently, in the remarks which I propose to offer for the consideration of the Senate, I shall deal with the Bills separately, one following the other. But there are two points of similarity which I desire to indicate. The first is that they probably owe their origin to the same cause. That is to say, in all probability they come before us now in consequence of the same set of circumstances. Another point of similarity is that both of these Bills appear to be the outcome, according to a statement contained in the exceedingly interesting speech which Senator Best delivered, of advice or direction from the members, or some of the members, of the High Court, in consequence of whose decision - without reflecting upon the decision itself - this difficulty has arisen. My honorable friend, Senator Best, laid great stress upon that in introducing the Bills. In one place, after quoting the advice that was given by the learned Chief Justice in regard to the method of escape from the consequences of his own judgment, he said this- Thus it will be seen that when the power of the Parliament to deal with legislation of this kind is challenged - That is ' to say, my honorable friend considered, and the Government of which he is a member contemplated, and, I think, were wise in contemplating, that this kind of legislation, which amounts to putting patches upon the Constitution, might be challenged - would lead to litigation. But what did he rely upon in reference to that anticipated challenge? This - I am referring, of course, to the Commonwealth Salaries Bill. My first answer is that we have the authority of the High Court for enacting it. That is good enough for me, and I think it ought to be good enough for Parliament. Now, I beg leave to offer the very strongest objection to any such position as that being submitted to any Parliament, or being offered as a justification or excuse for the introduction of legislation into this Parliament which may 'be the subject of question and litigative action hereafter. It ought not to be good enough for the Government or for Parliament. It is an unusual thing, as, I think, every honorable senator, and certainly every lawyer, will agree, for any tribunal to suggest or advise particular legislation as an escape from the consequences of its own judgment. The duty of a Court is to expound and apply the law as it is. It has nothing to do with the consequences, whatever they may be. Its duty is solely to expound and apply the law. It is not its duty to recommend legislation to Parliament, to anticipate its own decisions in respect of that legislation, or to do that which may in time - I ask the serious attention of honorable senators to this - become a precedent, and may develop into a direction or a kind of dictation which Parliament would undoubtedly resent. But the great mischief is this : It is obvious that the statement of the Chief Justice is being relied upon by the Executive Government to diminish their own responsibility ; and not merely to diminish their own responsiblity, but it is being used as a prophetic judgment of the Court before whom that challenge of this legislation must, at least may, come to be heard. Now, I say that that sort of thing, if permitted, would be disastrous to our judicial system. I regret the suggestion for another reason also. My honorable friend, Senator Best, in another connexion used the expression obiter dictum. This is worse than any obiter dictum. It is a pronouncement which is not binding even upon the learned Judge who used the words, and took upon himself to give the advice. When even he himself has this challenge brought under the notice of the Court it will be for him, irrespective of what he has previously said, to consider the arguments that are addressed to him, and to come to a conclusion upon those arguments, and- upon the view submitted as to whether or not this measure infringes the Constitution - whether it is valid or whether it is not. Can he do that now with an open mind ? But we have another learned Judge saying most distinctly that as to one of these points he does not agree, and as to another point he reserves his opinion. What a position members of this Parliament are asked to put themselves in ! They are invited to disregard the constitutional objections which may arise in their own minds, and solve the doubt as to the authority of Parliament to legislate in this particular way, on the ground, as my honorable friend put it, that a Judge without argument and gratuitously, has already offered an opinion as to the validity of this prospective legislation. I deeply regret that suggestion. I shall not say that we ought to resent it, because I do not wish to use any words of that character, but it is a humiliating position for this Parliament to be placed in if the question arises for our solution, and we are to say that we can pass this proposed law, whatever doubts we may ourselves entertain, because a Judge or Judges, without argument, have expressed the opinion that we have authority whilst other Judges take the contrary view. On this, I would add that if there is one thing plainer than another in connexion with the Supreme Court of the United States, it is that that exalted tribunal will not give any abstract opinion, that it declines to give any prophetic opinion, and that it will not decide any question, constitutional or otherwise, unless it comes before it in a concrete shape, in the form of a lawsuit between parties who happen to be affected. I say that is a fine rule. Honorable senators and I are concerned in this matter. We may or may not 'feel that as we are immune from State taxation in respect of our allowances, they ought to be, by some such legislation as is now proposed, made subject to that taxation, and if so, are1 we to be prevented or intimidated from challenging this measure and claiming the right to argue the whole question before the Privy Council or the Judges of the High Court who may have to determine it, by reason of an anticipatory expression of opinion that was not called for in any way whatever by the circumstances of the case? The two points to which I have referred are the only points of similarity between the; two Bills now before the Senate - that they were the outcome, I shall not say probably, but without any doubt, of the same set of circumstances, although they relate to totally different matters, and that the doubts of Parliament as to our competence to pass valid Acts taking away this immunity from persons declared to be free of this particular taxation under the Constitution, are to be removed by an anticipatory judgment, without hearing, parties, without argument, and without that consideration which is essential to the adequate administration of justice, volunteered by one or more Judges who may hereafter have this very question before them for argument and decision. I do not think that many of the questions which have been alluded to, as to the powers of appeal and so on, arise for our consideration now. Senator Best discussed them at great length, and dealt with a multitude of citations relative to the! powers of appeal and so on, but with these, except in so far as they have a bearing, and no very important bearing, on matters involved in these two. Bills, I do not think it is necessary to deal. But I wish to make it clear that I do not at all assent to the proposition my honorable friend has put forward in his interesting address. The honorable and learned senator referred tq the question of the conflict of law. That there is a conflict no one can doubt, but I do not think it arises quite in the way which Senator Best supposes. The awkward, I will not say intolerable, position, is in my judgment not due to the Privy Council, but rather to the High Court. To whoever it may be due, I must say that I do not agree with the following statement made by Senator Best- This unfortunate and indeed ludicrous position is intolerable; and Parliament has the responsibility of relieving the community with the least possible delay. I venture to think that Parliament has not that responsibility at all. If Parliament could do it, that would be another matter, but we have the authority of the Chief Justice of the High Court himself, for saying that the powers of appeal to the High Court do not arise from or depend upon the Judiciary Act at all, which is the work of Parliament, but depend on and arise from the Constitution, with which Parliament cannot deal by means of an ordinary Act. My honorable and learned friend went on to say - The question is whether Parliament is content that we should have two final Courts of Appeal of co-ordinate jurisdiction, for the purpose of interpreting the Constitution and questions arising under it. That is not the question. I venture to say that there is no such conflict at all. I have seen no evidence in anything that has taken place of a conflict of that character. There is only one Court to interpret the Constitution when a question of that find comes before that Court. The one difficulty is as to which Court is the final judge as to what are questions between the Commonwealth and any State or States inter se.Senator Best said - We find that what we regarded as the High Court, whose duty it was to decide on the questions I have indicated is not the sole and final arbiter ; on the contrary, the Privy Council has asserted that it has certain powers, with the result that we have now . two final Courts of co-ordinate jurisdiction to deal with the same subjects. Now the Privy Council has not asserted anything of the kind. It has decided a matter brought before it in the ordinary way of litigation, and which was considered by the Judge who sent it there, and by the Privy Council, to be a matter within its competence, and on which it could decide - a matter which was not an appeal from the judgment of the High Court under section 74 of the Constitution at all. The Privy Council dealt with that matter, believing and declaring that it was - as I think it was, though that does not amount to anything except that we are all entitled to express our own opinion' - a matter as entirely within the competence of the Privy Council as any other question that might come before it. The Privy Council, without seeking to diminish by one iota the high status and functions of the High Court of Austria, decided that question, and if I may say so, decided it, in consonance, at any rate with the universal feeling of Australia that justice was done. 833 K0F 0 0 PEARCE, George Senator Pearce - But in doing so did not the Privy Council set themselves up as interpreters of the Constitution? 833 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - No, I think not. 833 JPC 0 0 BEST, Robert Senator Best - They overrode Australian1 law as laid down by the High Court. 833 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - What they did was to decide a question which was properly before them. The Privy Council is not to be subordinate to the High Court. Senator Best says that they overrode the law, but if the High Court gives an expression of opinion or a decision on a matter with which it is competent for the Privy Council to deal there is no overriding of the law if the Privy Council differs in opinion from the High Court. 833 K0F 0 0 PEARCE, George Senator Pearce - But does not the decision of the Privy Council show that in their judgment they are the final arbiters of constitutional questions ? 833 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Certainly not. They went in no way beyond the precise matter before them. All it shows is that the Privy Council considered that in that particular matter they were entitled to pronounce their judgment. 833 KUL 0 0 MILLEN, Edward Senator Millen - That it was not a constitutional matter? 833 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - That it was not an appeal upon a constitutional matter with which they were precluded from dealing. I agree with them on that point, though that may be of no consequence. 833 JPC 0 0 BEST, Robert Senator Best - Does the honorable and learned senator say that they decided that this was not a matter inter se. 834 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - In effect they did say that the subject of appeal was not a judgment of the High Court in a matter inter se. 834 JPC 0 0 BEST, Robert Senator Best - I shall be glad if the honorable and learned senator can show me anything in proof of that. 834 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I shall be glad to do so, but I should like to be allowed to go on in my own way. I do not wish to be long, but I do wish to put the matter as clearly as I possibly can. I say at present that I do not assent to Senator Best's proposition at all. I respectfully emphasize the statement that I do not consider that the status or dignity or any of the just and legitimate functions of the High Court of Australia, under the terms of the Constitution, are impaired or lessened by the judgment of the Privy Council in that case. I say that the question now before us is not as to whether the High Court is or is not the sole and final arbiter of the Constitution, or whether the judgment of the Privy Council has destroyed that position, in the words which Senator Best made use of in a later part of his speech, and which I think ought to be dissented from - I shall sum up by saying that the decision in the case of Webb v. Outtrim has destroyed the status of the High Court as an integral part of our Constitution, - I deny it. unsettled the respective powers of the Commonwealth and States and destroyed the finality of the High Court. I say it has done nothing of the kind, and if it did I say that the whole of that is irrelevant. It might influence or inflame our minds to deal with it as a relevant case, but even if that be so, neither of the Bills before us will alter the position. In fact the Bill with regard to salaries, as I hope to show in a word or two, is an affirmation of the judgment of the Privy Council. It declares, in effect, that the judgment of, the Privy Council is just, that there should be no exemption and no immunity. I do not say at present whether there ought or ought not to be, but is not that what the Bill says? Is not" that what we in this Parliament are called upon to do? It is not the judgment of the Privy Council that affects the status of the High Court. It is this Bill. It is this Bill which -says "You, the High Court, decline to follow the opinion of the' Privy Council, which is consonant with what the community as a whole believe to-' be just. Parliament says that it should* be followed." That is the effect of this' Salaries Bill, and, therefore, we may well ask what is it that, to use again the language of my honorable friend the Vice-' President of the Executive Council, " has destroyed the status of the High Court as-' an integral part of our Constitution, unsettled the respective powers of the Commonwealth and the States, and destroyed! the finality of the High Court" ? According to my honorable friend, it is the judgment which we now, by this Bill, are asked to affirm. It is the most novel situation; I have ever heard of. If the Government had asked us to pass a Bill to confirm* the judgment of the High Court, if such a thing had been possible, that in all probability would have been consistent. 834 K78 0 0 ST LEDGER, Anthony Senator St Ledger - Did not the Uni-. ted States Congress do over and over again exactly what we are doing? Did! they not do it in the case of the judgment of the United States Supreme Court> in the case of Dred Scott? 834 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I think we will leave Dred Scott out of it at: present. I do not want to import more ' American notions into this than I car* help. My honorable friend has rather' misunderstood the point which I have been, putting, and that is - I think he will agree with me - that the position as put to us by the Government is either that the High> Court is right and the Privy Council wrong, or that the High Court, having the power, has decided wrongly, and1 the Privy Council, not having the power, ' has done justice, and we are asked by an Act of this Parliament to adopt the decision of the Privy Council, and reject the decision of the High Court. If that be so, I venture to think that it is a very strong: argument for saying that instead of restricting the avenues of access to the Privy Council, we ought to widen them. Still,, that is not the question before us. I lis- 'tened with very great interest to the speech of my honorable friend, Senator St. Ledger, and to his account of the history of the appellate provisions of the Constitution. I shall give a short version of that history ' myself, which does not run quite together with the version which my honorable friend gave. History, 'of course, is very often' surrounded with a considerable haze, and the haze' lends enchantment at times to the_ history. My honorable friend's version of the history had a good deal of that poetical haze about it. This increased its attractiveness, but what it gained in attractiveness, I fear it rather lost in accuracy. [ will put the history very shortly, and I think my honorable friend will see from what I state as an actor in those events that the Convention at any rate proceeded upon principles which were a little different from those which he inferred from the actual results. 835 K78 0 0 ST LEDGER, Anthony Senator St Ledger - I shall bow to the honorable senator's version, of course. 835 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - In some features there is not very much difference between us. We need not dwell long upon that, because this proposed legislation is not to settle difficulties at all between the relative powers of the two Courts. Those powers are not in controversy before us now. I say these things as a kind of apology to honorable senators for not following in detail some of those matters with which they are quite as familiar as I am. We are not re-adjusting the powers of appeal. We are not asked here now for any reason to limit the powers of one tribunal or to extend the powers of the other. If we were asked, of course we could not do it, because those powers themselves depend upon the Constitution, and not upon any Act of this Parliament. It is of less moment again, because, as I have ventured to say already, the just and legitimate scope and status of the High Court under the Constitution is not, in my judgment, imperilled at all. The reason of that i's that the appellate jurisdiction of the High Court is given by the Constitution and not by the Judiciary Act, and is removed in that way from our interference. In very shortly stating the bit of history that may be material in connexion with these two Bills, I wish to say, first, that there is no sacred halo or mystery about the jurisdiction of the High Court. People are very often in the habit of using language in connexion with the High Court as though it were a mysterious or sacred body. It is nothing of the kind. Its functions; under the Constitution are simply those of a court of law to decide cases. Our Constitution is an Imperial Act of Parliament, assented to by the three Estates of the Realm - the King, the Lords, and the Commons - in the same way as the Acts of the Commonwealth are assented to by the King through his agent, the Governor-General, the Senate, and the House of Representatives, and in exactly the same way as the Acts of the States are assented to by the King, . through his representative, the House of Assembly and the Legislative Council. The High Court, under our Imperial Act of Parliament, which we rightly, describe as the Constitution, is simply a court of law created to decide cases, with certain limitations as to appeals to the superior tribunal of the Empire, the Privy Council, just as there are other limitations upon appeals, such as the limitation of amount, and the limitation that security, differing in kind according to the nature of the case, must be given. All those are limitations, and there are other limitations upon the power of appeal under our Constitution, but the Privy Council is still the ultimate Court of Appeal of the Empire. It is still the highest Court of the Empire. _ I wish to say here most emphatically that the Privy Council is a most august and learned tribunal, worthy of standing, as it does now, not even second to the House of Lords, in the foremost position among the tribunals of the Empire of which we are a part. There was undoubtedly a time, a good many years ago, when the position pf the Privy Council was different from what it is now. But the Privy Council to-day, so far as regards its -personnel for the adjudication of cases, is absolutely as great a Court as - I am not sure that it is not, for reasons which I need not enter into now, a greater Court than - the House of Lords. Whether we differ from it or not, I think we shall all agree that no Court need hesitate for a moment to follow, or think that its dignity is impaired or its usefulness lessened by following, the decision of such a tribunal. Most jealous as I am of the powers of our own Court - and I want to show that the provisions as they now stand in the Constitution are not those to which I assented - I think that the judgment delivered by Mr. Justice Higgins in the recent case of the Commissioner of Taxes of New South Wales v. Baxter, to which free allusion has been made, contained a sound, wise statement of the constitutional position of the High Court of Australia. It is a mistake, which is not calculated to strengthen its powers or to enlarge its capacity for exercising the great functions reposed in it, that efforts in any direction should be made to alter that: position or place it on the .same footing, which it does not occupy under the particular terms of our Constitution, as the Supreme Court of the United States. One radical difference - I do not know whether Mr. Justice Higgins referred to it or not, but I think we ought all to be indebted to him for his exposition of that particular point - is that the status of the High Court is simply that of a court of law, created by an Imperial Statute, and dispensing justice as any other court might, but with a further limitation of the rights of appeal to the higher and superior tribunal. There is a radical difference from the position of the United States Supreme Court under the Constitution in this respect : that that Court - and all of us who had to do with the framing of the Constitution recognised the fact - literally stands for the King under our system. It is not necessary to make a qualification for the purpose of the views I am submitting. As the Privy Council pointed out, and as is apparent to every one, the Congress of the United States legislate as they please, uncontrolled by the States, and the States legislate uncontrolled by the Federal authority. There is no King who is part of the system as there is under the British Constitution. The King is a part of the legislative authority under our system. No Bill of this Parliament, or of a State Parliament is worth the paper it is printed on without the assent of the King or his representative. That is not so in the United States, where each State legislates as it pleases. Owing to that gap, so to speak, there was no controlling power over the States, and the only power that could fill the gap was some such body as the Supreme Court of the United States with power to interfere as widely as it thought fit with the legislation of both the Federal Congress and the States. The essential radical difference is that, the one is a republic and the other is a monarchy. We are simply a part of a monarchy, and in the Convention we sought to the best of our ability to assimilate as far as we could the position, but as we recognised over and over again absolute assimilation was impossible, because we could not get absolute assimilation between republican and monarchical institutions. That is one radical and fundamental difference in the two situations which ought to be remembered, and which in one aspect was dwelt on by the Privy Council with regard to the doctrine of implied prohibitions which, as Mr. Justice Isaacs said when at the Bar in the earlier cases of Deakin and Lyne was invented - that is his expression - by the Supreme Court of the United States, because of the position I have pointed out, and to extend that controlling influence which did not otherwise exist under the American system, but which, of course, exists under our system. Let me anticipate for a moment another matter, which has been referred to more than once, and which, has been widely canvassed, and that is, the so-called interference by a State with the conduct of the Commonwealth Government. Such a thing could not be tolerated. We have first - it is like the adage to first catch the hare - to show that there is some interference. For example, if a Bill were passed by a State Parliament professing to take control of the fortifications within the State, of course it would not be assented to for a moment. With us it is a case of one King. That particular part of the legislative power of the whole of the British Empire is common to Commonwealth and to State. We must be sensible beings when Ave are dealing Avith these things, and we cannot assume for a moment that that particular part of the legislative power of the Commonwealth would assent to an interference Avith the power of a State Government 836 K0F 0 0 PEARCE, George Senator Pearce - But the question of assent would not rest Avith either the High Court or the Privy Council. It would rest with the State Governor. 836 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Certainly. 836 K0F 0 0 PEARCE, George Senator Pearce - Suppose that he exercised his power, and assented to the Bill ? 836 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Then there it would have to remain. 836 K0F 0 0 PEARCE, George Senator Pearce - That is where the High Court comes in. 836 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - That is, as I am venturing to point out, where the High Court does not come in. What I am pointing out is that under our Constitution, although there are implications from the words, of course, there is no scope, to such an extent, for such a doctrine as was invented in America. There is no need for it, and we must remember that that implied prohibition is not a prohibition implied from words in the Constitution. It is something altogether outside the Constitution. In the Constitution there are no words from which we are to imply - -that is one kind of implication. We get certain words which express something, and carry with them a certain implication, but this prohibition is a separate and independent doctrine which was framed or invented to meet a situation in the "United States, which is not paralleled under our Constitution. But it is not necessary to dwell upon it. I think it is a far-fetched and fantastic doctrine, certainly as applied here. Still, they have it in America, and have followed it. We do not need such a doctrine here. I do not wish to canvass the judgment of the High Court in that respect at all, but only desire to point out the difference between the two systems, and the two Constitutions, and to show that it does not follow that because it was thought necessary in America to create this doctrine of implied prohibitions- 837 K78 0 0 ST LEDGER, Anthony Senator St Ledger - Or implied powers. 837 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Yes, it does not follow that because it was thought necessary in America to create the doctrine of implied .prohibitions or implied powers to the extent which they did, it would be equally necessary or equally proper to introduce it under our quite different monarchical system of government. Remembering that radical difference, I now refer to the position of these provisions. First of all, the language of section 74 of the Constitution is not that of the Convention. I shall show what language it is. Whatever ambiguity or confusion, if any, or difficulty of application there may be in connexion with that language it is not due to the Convention. In the next place - remembering, as 'I have ventured to submit from my point of view, that the High Court is simply a Court of law under an Imperial Act of Parliament, with it may be an additional limitation on appeals; remembering that, what we strove to do in the Convention, and what I particularly wished, was to have a much stronger limitation on the appeals - it was never dreamt for a moment that owing" to the particular position of the Constitution we could deal with the High Court in any other way than as a Court of law created by an Imperial Act. But we desired very greatly to increase the limitations on the power of appeal to the superior court - the Privy Council - and we wished to do it to the entire exclusion of appeals in all domestic or Australian national affairs. 837 KUL 0 0 MILLEN, Edward Senator Millen - Irrespective of where they originated. 837 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Irrespective of everything. I shall show the extreme length to which I was prepared to go, and to .which we did go. I thought then, as now, that there were only two courses to prevent difficulty and trouble. One was to permit unrestricted appeals, or to practically end them. The view of the Judiciary Committee of the Convention, of which I had the honour to be chairman, was that any middle course was calculated to lead to trouble, that if we were to put in qualifications, the more we put in the more we should leave matters to be determined by some tribunal, and it was diK cult to distinguish which tribunal should determine them. Under section 74, as it now stands - without pronouncing a positive view one way or the other about it - it is difficult to see which Court, under the terms of the Constitution, is to determine the question of when a dispute is a dispute as to constitutional powers inter se between Commonwealth and State. That power is a preliminary matter. It has not been vested in the High Court, not in express terms. If a matter comes before the Privy Council, they take the view that it is not a dispute as to limits inter se, or that it is not a judgment of the High Court as to limits inter se, it is difficult to see why they should not. Or they may say it is a matter between the Commonwealth and a State as to limits inter se, or that only such disputes as these are precluded from going before the Privy Council when they arise on a judgment of the High Court. All these matters arise on language which has been used, and which, unlike the language which was used in the Convention, lends itself to differences and controversies in the way I have suggested. Therefore I think that honorable senators will agree with the Convention, at any rate will agree with its Judiciary Committee, that in dealing with this matter it was better either to have unrestricted appeals, subject only to special leave, which is a mere matter of regulation, or to practically put an end to them. I also wish to say that the broad ground upon which it was desired to do that - although discussion took place, and in the heat of the argument things were said and unsaid - was not because of any inferiority, or any suspicion of the kind, in respect of that great Imperial tribunal, the Privy Council as now constituted, but because we were endeavouring to take the first step in Australia towards union and nationhood, and we considered that it was right as an attribute of the nation which we were seeking to establish that it should dispense final justice to its own citizens. 838 JVC 0 0 DOBSON, Henry Senator Dobson - We did not all think that in the Convention. 838 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - My honorable friend quite rightly reminds me that the clause was carried against the views of some of the members of the Convention. But the broad ground upon which it was carried was that we were elevating ourselves - elevating Australia - into the position of a nation. That was the great inspiration we had; and one of the first things which we considered that we ought to try to do, was to dispense our own justice finally. I say that because of certain remarks which I regret should have been made by the Chief Justice of the High Court, reflecting upon the Privy Council, and attributing to us in the Convention reasons for the course that we took, which were not the real fundamental reasons upon which we. acted. Following out that plan, and on that basis, the Judiciary Committee of the Convention at Adelaide, and again at the beginning of the session in Melbourne, recommended a clause in the following form' - No appeal shall be allowed to the Queen in Council from any Court of any State, or from the High Court, or any other Federal Court. It will be seen that appeal to the Privy Council was to be absolutely put an end to from the Courts of the States as well as from the High Court. There was to be no appeal to the Privy Council at all - Except that the Queen may in any matter in which the public interests of the Commonwealth or of any State or of any other part of Her Majesty's Dominions are concerned - that is, Imperial interests which we were all agreed should be made an exception - grant leave to appeal to the Queen in Council from the High Court. Nothing could have been clearer, I venture to think, than that ; and that stamps what the sentiment of the Convention was. It meant literally that in all domestic concerns, if I may use that expression - in everything concerning the interests of the Australian Commonwealth, about to be created- there should be no appeal, but that we would settle such matters for good or ill for ourselves. The clause in that form was again passed at the beginning of the session in Melbourne. 838 K78 0 0 ST LEDGER, Anthony Senator St Ledger - Did it not provide that there was to be no appeal on constitutional matters only? 838 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - No; there was to be no appeal on any matter, with the one exception stated. My honorable friend, Senator Dobson,, was a most strenuous opponent of the clause. We* all respected his views, but they were not the views of the majority. The intention was, as I have said, that there should be no appeal, not merely from the High Court, but from any Court of a State. Indeed, appeals to the Privy Council were all swept away. 838 JPC 0 0 BEST, Robert Senator Best - Unless Imperial interests were involved. 838 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I have said again and again that in all domestic affairs of Australia - using that expression in the largest sense - there was to be no appeal. Then came an amendment. There was a strenuous fight - and rightly if the question was to be re-opened at all - to retain the power of appeal; and' accordingly towards the close of the Melbourne session our lamented and greatly esteemed friend, the late Sir Joseph Abbott, one of the representatives of New South Wales in the Convention, moved an amendment. That was after the clause as I have read it had been twice confirmed by the Convention. He moved the insertion in the clause which made the judgment of the High Court final and conclusive, of the words - Saving any right that Her Majesty may be pleased to exercise by virtue of her royal prerogative. As indicating the grounds upon which Sir Joseph Abbott moved that amendment, and as- evidencing the grounds upon which we rested our claim as Australians to dispense final justice, he took exception to my having said - We are creating a nation which is to be self-contained, self-sufficing in every possible respect. Those were my words, and Sir Joseph Abbott said, " I deny that," and so on. That amendment, of course, would have permitted appeals in every case. It would have been the exact opposite of what we intended. The amendment was debated, and ultimately was carried by a small majority - of. I think, four. At a later stage I moved a further amendment to insert the words - Not involving the interpretation of the Constitution of the Commonwealth or of a State. Now, honorable senators will see how much trouble would have been saved if those words had been adopted. What we had in mind was that we were formulating a written Constitution; and there could be no doubt whatever that what was being excluded from the power of appeal was the interpretation of the written instrument, not implied prohibitions, not fanciful things outside the Constitution, - and which depend upon the view that each Judge or each Court may take on any particular occasion. 839 KLS 0 0 GIVENS, Thomas Senator Givens - Which may depend upon the state of the Judge's liver, perhaps ! 839 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I will not say that; Judges are not supposed to have livers - at any rate not disturbing ones. That amendment was carried. It was embodied in a form which set out the various clauses as amended. It formed part, of clauses 73 and 75A, and, as amended, it read in this way - Notwithstanding anything in the last section, an appeal to the Queen in Council from a Court of a State, or from the High Court, or from any other Federal Court, shall not be allowed in any matter in which the interpretation of this Constitution or of the Constitution of a State is involved, unless in any such matter the public interests of any part of Her Majesty's Dominions other than the Commonwealth or a State are involved. That swept away the right of appeal from a Court of a State and from the High Court, in that particular class of matters. But then the clause passed on to the Drafting Committee, of which two of the present Justices of the High Court were members. Strangely enough, the Drafting Committee altered it so that it no longer extended to appeals from the Supreme Courts of the States1. It left appeals direct from the States Courts' to the Privy Council just as before. I think that was an accident. I will not say of the distinguished men who were members of that Committee that what they did was careless, or anything of that kind, but it was unfortunate. These matters only came before the Convention a day or two - if so much - before the Convention broke up. Then my honorable and learned friend, Mr. Glynn, rose to point out the grave alteration with a view to having it rectified. But at that stage, when a large number of the members of the Convention had departed, for their homes, to have re-opened the question on these so-called drafting amendments would probably have imperilled the work which the Convention had done. It might have imperilled the Bill altogether. An alteration was deprecated ; it was not made ; and so the clause appeared in the Bill as submitted to the referendum in this shape. It was the celebrated clause 74 - No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty's Dominions other than the Commonwealth or a State are involved. That left out the express words taking the right of appeal away in respect of the decisions of the States Courts. At the referendum it was adopted in that shape. If it had stood like that I venture to think we should never have had the trouble that has recently arisen. I cannot think that there would have been any difficulty in determining that the interpretation of the Constitution meant anything but-the interpretation of the written instrument. The section as it now stands is, I think, very different. It is- No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. Then there is the exception that - This Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave to appeal from the High Court to Her Majesty in Council. Honorable senators are aware that when that clause, as I have read it, and as it was carried at the referendum by the people of Australia, went to England, and the Bill containing that .provision went before the Imperial Executive and the Imperial Parliament, art attack was made upon* it. That attack was in order that it should be, if not struck out, at least so altered that an unrestricted power of appeal should be preserved. An alteration was made, and no one gave greater ' assistance to the attack that was made on that provision as assented to by the people of Australia, than the present Chief Justice of the High Court of Australia himself. It has to be remembered that, no doubt rightly, according to his judgment, every effort was made by him, occupying at the time a very elevated position, as he does now, in order, as many of us thought, to thwart the wishes and intention of the people of Australia in regard to this right of appeal, and to preserve the appeal to the Privy Council which has now apparently been found inconvenient. 840 K0F 0 0 PEARCE, George Senator Pearce - But he was not one of the delegates. 840 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - No, unhappily, or rather happily. He was not one of the delegates, and his efforts were made with those of others by methods which were not direct, but which had an influence with the authorities in England I think they ought not io have had, and which largely brought about the change in the phraseology of the section which has caused a great deal of the difficulty. 840 K78 0 0 ST LEDGER, Anthony Senator St Ledger - I think he was consulted unofficially, and also officially. 840 K8T 0 0 TRENWITH, William Senator Trenwith - By whom? 840 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I took a part which I do not regret in the defence, in a small way, of what I believed to be the right of the Australian people to settle their own Constitution! for themselves. I took up the position that I declined to admit that the Imperial Parliament or Government, or anybody else, had a right to alter one line or one sentiment in the Constitution as adopted bv the people of Australia. I deprecated and described the efforts which were made by those who were not delegates as intrigues behind the backs of the delegates. 840 K0F 0 0 PEARCE, George Senator Pearce - If they were not delegates, I should say they had no right to interfere. 840 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Certainly not. I do not wish to dwell upon that now. The efforts to which I refer were made, I am sure, in the belief that they were justified, and that the Privy Council was a great Court adequate to the determination of all these questions. I have no reason to doubt that they were made because of a belief that the Privy Council was an august and learned Court, more competent, in the judgment of the persons making these efforts, than any Court that could be constituted in Australia. _I did not agree with that view, but I attribute to those who made those efforts a belief that the Privy Council was a Court with sufficient knowledge of the laws of Australia and of the Empire, to do justice in respect of any such appeal. It is, therefore, with great pain, and with some astonishment, that I read the opinions that are now expressed by Sir Samuel Griffith about this tribunal to which he, seven years ago, thought all these appeals should go. I find, in the judgment which has been alluded to in Baxter's case, disparaging attacks made upon the Privy Council, which I think ought to have been avoided. At page 13 of the published judgment, I find this statement - It was common knowledge, not only that the decisions of the Judicial Committee in the Canadian cases had not given widespread satisfaction - 840 KUL 0 0 MILLEN, Edward Senator Millen - Is the honorable senator quoting Sir Samuel Griffith? 840 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Yes. I take exception to that statement, and I can speak from personal knowledge. I have lately been in Canada, and I found, because I made inquiries on the subject, that there is there the greatest satisfaction with the appellate jurisdiction of the Privy Council. That does not affect the principle for which I have always contended, that is to say, the principle bf a National Court. I know that Bourinot, the great constitutional writer in Canada, has eulogised the decisions of that Court over and over again, and has attributed to the decisions of the Privy Council - because we must be fair - a beneficent effect in soothing the susceptibilities and overcoming the racial differences, as I may call them for want of a better term, arising from legislation on different matters, between the two different races which inhabit Lower Canada.. There is, therefore, no warrant for the statement I have quoted. The Chief Justice of the High Court went on to say - but also that the Constitution of the United States was a subject entirely unfamiliar to English lawyers, while to Australian publicists it was almost as familiar as the British Constitution. It was known that even if there should be any members of the Judicial Committee familiar with the subject - What a condescension that is - it was quite uncertain whether they would form members of a Board that might be called upon to determine a question on appeal from an Australian Court, by which it must necessarily be dealt with in the first instance.. It could not be predicted of the Board which would sit to entertain an appeal that it would be constituted with any regard to the special familiarity of its members with the subject. And no disrespect is implied in saying that the eminent lawyers who constituted the Judicial Committee were not regarded - By whom, I wonder - either as being familiar with the history or conditions of the remoter portions of the Empire, or as having any sympathetic understanding of the aspirations of the younger communities which had long enjoyed ' the privilege of self government. When was this discovery made? Was this known when all those efforts were made to secure an unrestricted right of appeal to the Privy Council, or has this doubt arisen only now, when, to use the expression employed by Senator St. Ledger, there is a jealousy of the interference of the Privy Council with the jurisdiction of the High Court. 841 K78 0 0 ST LEDGER, Anthony Senator St Ledger - I used that expression in the legal, and not hi the ordinary, sense, because all Courts are jealous of their jurisdiction. 841 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Undoubtedly. At page 19 of the published judgment, I find this further statement - It is said that such a state of things as would follow from a difference of opinion between the Judicial Committee and the High Court would be intolerable. It would not perhaps have been extravagant to expect that the Judicial Committee would recognise the intention of the Imperial legislature to make the opinion of the High Court final in such matters. But that is their concern and not ours. Again - In our opinion the intention of the British legislature - It was not the intention of the British Legislature, but the intention of the people of Australia that was in question - was to substitute for a distant Court of uncertain composition imperfectly acquainted with Australian conditions, unlikely to be assisted by counsel familiar with those conditions, and whose decisions would be rendered many months, perhaps years, after its judgment had been invoked, an Australian Court, immediately available, constant in its composition, well versed in Australian history and conditions, Australian in its sympathies, and whose judgments, rendered as the occasion arose, would form a working code for the guidance of the Commonwealth. There are many similar references, but, later on, the Chief Justice speaks of the Privy Council as confessing a lack of familiarity with the subject, and speaks of the appeal as - setting up an official in London, subject to political accidents, in place of the High Court, as the guardian of the Constitution. I venture to think that it is undesirable that expressions of that sort should be used. They were not necessary in any way whatever in delivering a great judgment dealing with a great question. 841 JVC 0 0 DOBSON, Henry Senator Dobson - Besides, they are erroneous. 841 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - And at any rate, they do not come well from one who, seven years ago, sought to give unrestricted rights of appeal to that particular tribunal. 841 K0F 0 0 PEARCE, George Senator Pearce - They would have been perfectly in place in the Convention. 841 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Perfectly so in the Convention. The views of the Convention, which Senator Pearce's interjection reminds me were broad-based upon a national administration of justice, were sought, and sought successfully by Sir Samuel Griffith, to be undermined by views which could not' have been the views to which I have just referred if the efforts which were made were, as I am bound to believe they were, conscientiously undertaken. That is the short history of this provision. With its re- adjustment, its extension, or limitation, we are not now concerned. We have, as a result, several decisions of the High Court, and a decision of the Privy Council, and we are asked to do something, not to settle the possibility of a difference of that sort occurring again, but to give effect to judgments of a kind which are described as being not altogether in sympathy with Australian aspirations. We are asked to do something which shall give effect to the judgment of men who are described by the High Court as not being in sympathy with Australian aspirations, or with what I may call the sense of justice of Australia - and to legislatively declare it is the judgment of the Privy Council and not that of the High Court which is in conformity with the universal sense of justice in Australia that there shall be no privileged class in respect of this income taxation. It is certainly an extremely odd position, but that is where we are. How is it to be met ? This Bill says that a State cannot tax its own citizens or a certain class of them without the consent of the Federal Parliament, and it professes to give that consent. It is a very serious inroad, I venture to say upon - I do not want to use that much abused term " States rights " or anything like it, and in any case I do not think that defines what I mean - but upon what we have always regarded as a principle of self-government, that a State should be entitled to tax its own citizens. That is the plain simple way in which I view this question. One would expect to find something expressed in the Constitution to justify our assuming a right to interfere between the State and its citizens. We should, however, look for something expressed to enable this Parliament to make liable to taxation persons whom our High Court has said the Constitution exempts from liability. The situation itself is shortly this : The High Court decided in the cases of Deakin and Lyne that State citizens receiving salaries from the Commonwealth were exempt from State income tax in respect of such salaries; in fact, that the taxing power of a State over itS own citizens was paralyzed so far as regarded that portion of their property or income which consisted of salaries drawn from the sacred fountain of the Commonwealth Treasury. It was not denied that the Commonwealth servants are citizens' of the State in which they reside, receive the protection of the Government of that State, and share its benefits like all other citizens, yet, according to the judgment, they are to do so without paying one penny for it so far as the ' income tax is concerned. They pay for their food and their raiment, and there would seem to be no more reason in justice or principle why they should not pay their share for their police protection than for the other things they require in the State. The one is just as essential to the necessities of humane or civilized life as the other. 842 KLS 0 0 GIVENS, Thomas Senator Givens - They should also contribute towards the cost of the education of their children in the State. 842 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - My honorable friend reminds me of that. One of the expenses in our State is free education. I do not know whether it is so in other States. 842 KLS 0 0 GIVENS, Thomas Senator Givens - In all the States. 842 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - There is free education in all the States, and if there is only an income tax Federal public servants do not contribute towards the expenses of the education of .their own . children, if they send . them to the, State schools, simply because they happen to draw their salaries from the Commonwealth Treasury. I do not canvass these judgments at all ; we are not here for the purpose ; we are not a Court of Appeal, to say who is right or who is1 wrong; but we are here to look upon this matter as plain men, and I say that not merely is that the position to the plain man in the street, but it creates what I think, every one of us in these liberal days, detests - a privileged class set down in our midst. I do not wonder that at the time this decision caused considerable sensation. It shocked, as it might well do, the good sense and the sense of" justice of the community. There is another thing that the plain man in the street may remember in this connexion. The technical view that has been taken overlooks the fact that there is a dual citizenship ; that everyone of us is a citizen of the Commonwealth, but that we are also citizens of the particular State to which we belong. 842 KLS 0 0 GIVENS, Thomas Senator Givens - It is Victoria that wants to tax our salaries, because we happen to live here for a while. 842 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - There is a difference in regard to the allowances we receive, but I do not propose to differentiate at present. 842 JVC 0 0 DOBSON, Henry Senator Dobson - The fact of State citizenship seems to have been overlooked* absolutely. 842 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I agree with my honorable friend that it has been overlooked. The State citizenship is not taken away because we are citizens of the Commonwealth. It is by virtue of our State citizenship that we are liable to State taxation. If I chose to draw a salary, or it might be fees - but I do not suppose I could, as lawyers who are members of Parliament are not allowed to draw fees from the Commonwealth - or if some other member of the profession who is not in Parliament, and so is more fortunate than I am in that respect, were to draw fees from theCommonwealth,' would those fees be exempt from taxation ? It would be a most grateful' thing to the profession if they were, and' indeed that must be so, if ' they are to be exempt as emoluments, because such a man is, I suppose, a Federal instrumentality just as much as an ordinary Civil servant. These people are liable by virtue of their State citizenship, but then it is said that because their means of living come from the Commonwealth Treasury, they are not to be liable in respect of that money Without discussing the matter from the technical or legal point of view, with which we are not concerned, it is liberally making- the State Treasury pay for .what the citizen, whether in regard to education or anything else, should pay for himself. 843 KLS 0 0 GIVENS, Thomas Senator Givens - How would the honorable senator get over the inequalities that might exist in the emoluments of Federal servants- if they all paid income tax, and if that tax was heavier in one State than it was across an artificial line in another State ? 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - The inequality, if such existed, would be the fault of the States. If such a thing happened I should say it was so much the better for the Federal servant in a State where there was no income tax, or only a small one. 843 K8T 0 0 TRENWITH, William Senator Trenwith - There would probably be an equivalent tax in another direction. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - There might be, but even so, if the Commonwealth chose to take that into consideration, it would be one way of solving the difficulty to say, " Let the Commonwealth pay out of the Treasury this particular income tax." 843 KLS 0 0 GIVENS, Thomas Senator Givens - It would be deducted from the money returned to the States, and the States would be no better off. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - What- ever method is adopted, that one might probably be a solution of the difficulty. The Commonwealth, if it wanted to have the emoluments paid over undisturbed to its servants, might undertake to pay the income tax in the particular States for them. 843 KLS 0 0 GIVENS, Thomas Senator Givens - I think that is the correct solution. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - At present I do not say so finally at all. 843 KUL 0 0 MILLEN, Edward Senator Millen - Might there not be some other constitutional difficulty there? 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I do not know whether there would be. 843 KUL 0 0 MILLEN, Edward Senator Millen - Under the financial sections of the Constitution there seems to be a possibility of a constitutional difficulty in connexion with such a proposal. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - My honorable friend may be right. I am not saying whether it is so or not, but at any rate that occurs to me as a method which might be adopted with less obvious objections than the method that has been proposed by the Government. 843 JVC 0 0 DOBSON, Henry Senator Dobson - But still it would be very objectionable. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - It might or might not be so. It has also to be remembered that the tax is not placed upon the individual as a Federal officer. 843 K8T 0 0 TRENWITH, William Senator Trenwith - He is taxed as a State citizen. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Precisely so. He is taxed in respect of his income like any of the rest of us in the State, and it is an extraordinary thing to me that that income after it reaches his hands - he receiving the protection of the State in respect of his individuality - should be exempt from taxation simply because it comes but of the Commonwealth Treasury. 843 K0F 0 0 PEARCE, George Senator Pearce - If the States can tax part of his salary, does not that carry with it the further power to tax the whole of it? 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - There must be uniformity of tax. If a State attempted to appropriate the whole of the salary of a Federal officer-- 843 K8T 0 0 TRENWITH, William Senator Trenwith - Or to tax Federal officers as Federal officers. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Yes - such an act would be a violation, not so much of the Constitution, as of the highest principles of the common law. It would be a legislative fraud which could not endure for one instant, nor would it be assented to. 843 K0F 0 0 PEARCE, George Senator Pearce - Supposing the States said that all persons following the occupation of postmaster must pav a tax of £i$o a year? 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - They could not say it, and, if they did, no such Bill would be assented to. 843 JPC 0 0 BEST, Robert Senator Best - Why does the honorable and learned senator say that they could not do so as a matter of right if they chose? 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - One of the elements of the State Parliaments is the King. The King is also a factor in our legislation, and one could not attribute such an act to any Parliament which consists of the King, the House of Assembly, and the Legislative Council, any more than one could assert that assent would be given to a Bill of this Parliament to confiscate the property of a State. 843 JPC 0 0 BEST, Robert Senator Best - If the Parliament decided to do it, it is very unlikely that the King would refuse to assent to it. 843 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I am astonished to hear an honorable gentleman in the responsible position of Vice-President of the Executive Council make such a statement. The thing is utterly outrageous. 844 JPC 0 0 BEST, Robert Senator Best - I thank the honorable and learned senator. 844 K0F 0 0 PEARCE, George Senator Pearce - Would not the Governor of the State act on the advice of his responsible Ministers? 844 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - He would not be bound to do so in such a case, and he certainly would not be so weak as not to reserve a Bill of that kind for the assent of His Majesty himself. 844 K8T 0 0 TRENWITH, William Senator Trenwith - The discussion of such a possibility is fruitless. 844 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I am glad to have these objections raised, because we want to elucidate this problem as much as we can, but Senator Trenwith has put his finger on the fatal defect. You could not predicate it of any Legislature, or of that portion of the Legislature which is also a portion of our Legislature - the King. It is of no practical moment to us to imagine the possibility of a state of things happening which would lead to the entire disruption of the Empire. 844 K0F 0 0 PEARCE, George Senator Pearce - When we have the Premiers of some of the States talking of taking forcible possession of the post-offices we can predicate a good many things. 844 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I am sure the honorable senator does not take that threat seriously, any more than I do, and therefore, perhaps, he will forgive me for not dwelling upon it. 844 JVC 0 0 DOBSON, Henry Senator Dobson - The phrase, from the judgment of Chief Justice Marshall in McCulloch v. Maryland, " The power of taxation is the power of destruction," was applied to the State of Maryland taxing, not a Federal officer, but a bank the property of the Federal Government. 844 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I, as a lawyer, think that the decision in Mcculloch v. Maryland has been given undue weight in the consideration of these matters. The State having the power to tax its own citizens - a power undiminished and unaffected by the Constitution - and these persons being its own citizens and having an income, however derived, which gets into their hands and then loses the glamour attaching to Commonwealth money, we should expect something in. the Constitution to prevent their taxation if that were intended. In the Constitution there is nothing forbidding such taxation. All the State powers are conserved, except those which are expressly taken away. There is nothing, so far as I can see, to take away from a State its power to tax its own citizens. TIle Constitution is an Act of Parliament, and is to be construed like every other Act of Parliament. That is the view which was taken, and if I may say so with all deference, rightly taken by the Chief Justice in the Tasmanian case, in which, in answer to an argument which was being put by Mr. Glynn, he said - That would be all very well if the Constitution had said so. . . We have to decide what the Legislature means by what it has now said'. Mr. Glynn was contending for inferences, and so on, in connexion with a claim which was made by Tasmania to some Customs duties collected in Victoria, and the Court then supported the argument that there is no clear intention in the Constitution that duties shall go to the State of consumption. I hold that in the Constitution there is no expressed intention that the citizens of the States shall not be taxed in respect of moneys they receive from the Commonwealth as well as other moneys. Again, in giving judgment, the Chief Justice said - We were invited by Mr. Glynn to apply in construing the .Constitution some higher rule of construction, to look beyond the letter of the Constitution. The Court declined to look beyond the letter of the Constitution in that case. Why should it not have equally declined to look beyond it in such a case as the one under discussion ? The Court rejected the opinion that the ordinary rules for considering Acts of Parliament do not apply to the Constitution. Perhaps honorable senators will agree that that is a fairly sound view to take. But, instead of that being done, we had imported from America this doctrine described by Mr. Justice Isaacs, when at the Bar, as a doctrine of implied prohibitions invented by Chief Justice Marshall. I do not want to discuss that, except to say that it does not mean, as I gathered Senator St. Ledger thought, an implication derivable from the language of the Constitution. This is a doctrine invented, as Mr. Justice Isaacs said, at that time, or really evolved from the judicial consciousness, in order to meet what was considered to be a particular defect in relation to the American Constitution, which, otherwise it was supposed, and probably rightly so, could not be met. But it was a doctrine altogether outside the written Constitution, and it was exten'ded here to the Public Service as an instrumentality. I venture humbly to agree with what Mr. Justice Isaacs and Mr. Justice Higgins said - that this tax involved no interference in any respect with the efficiency in the discharge of their duties of the Commonwealth public servants. It was not directed against them in any way, and I cannot do better than read two or three words Mr. Justice Isaacs uttered near the end of his judgment, and to which I am unable to add anything better, taking the broad view which he did, which, I think, will commend itself to all of us - But the State Act touches no function of the officer, it intrudes its operations into no public act that he performs, it affixes no condition, and imposes no qualification upon the discharge of his duties, it makes no demand upon his public time, and seeks no service at his hands; it merely requires of him his just share of the ordinary burden of his fellow citizens in return for the protection and benefits the State affords him. If this be so, the Statute attacked in each case has not intruded into the exclusive domain of Commonwealth executive action, it has not invaded the powers, interfered with the means, or interrupted the operations of the central Government, and, therefore, should, in my judgment, be declared to stand as a valid exercise of State legislative authority. The questions as put by the learned Chief Justice seem to involve a little confusion. The first question was - Is the High Court the final arbiter of the law with respect to the special case mentioned in section 74 of the Constitution? The question as to that really is : Is this a subject-matter within section 74 of the Constitution ? There is no dispute that when we get a judgment, or whatever it may be, under section 74, the restriction on appeal lies. The question is : Is this such a judgment within the meaning of section 74? The second question which the Chief Justice put was - Could a State in the exercise of its legislative and Executive authority restrict the exercise of the similar authority of the Commonwealth, and viceversa That, I venture to submit, is not the question as it would commend itself to most of us. The question really is : Can the' Commonwealth, or is there anything to enable the Commonwealth to, without express power in the Constitution, give immunity to any individual or class of State citizens from the lawful taxation, by the State, of its citizens? Putting aside the law, with which we cannot deal; putting aside technical interpretations and the consideration of cases to which much reference has been made, and with which we cannot deal ; and looking at it from the broad point of view as citizens of the Commonwealth, and as citizens of our respective States, I venture to say that the answer to that question must be "No; the Commonwealth cannot do anything of the kind." 845 K0F 0 0 PEARCE, George Senator Pearce - Does the honorable and learned senator say that that is a question which the Court ought to have asked ? 845 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I say that is the real question in controversy. 845 K0F 0 0 PEARCE, George Senator Pearce - The reference to the Commonwealth giving an immunity seems to suggest legislation. 845 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - No, by the Constitution. If the Constitution authorizes it, the Parliament may legislate to define the immunity. If, however, the Constitution does give the immunity it cannot take it away. 845 K0F 0 0 PEARCE, George Senator Pearce - No, but we can define it. 845 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Let me point out that the immunity is not an immunity of the Commonwealth, but of the individual. It rests on the doctrine tr> which reference has been made that the Federal public servant is a Commonwealth instrumentality; but it is the individual who has the light, and it is he alone who can waive it if anybody can. 845 K78 0 0 ST LEDGER, Anthony Senator St Ledger - But who is to decide the question whether a citizen is or is not immune? That is the crucial point. 845 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - At present the Privy Council has decided that he is not immune. 845 K78 0 0 ST LEDGER, Anthony Senator St Ledger - And the High Court has decided that he is. 845 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - What are we asked to do? We are asked to adopt the decision of the Privy Council, and to say that the Federal public servant is not immune. 845 K0F 0 0 PEARCE, George Senator Pearce - That he is not to be immune in the future. 845 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - My honorable friend is always acute. That is so, and that is one of the defects of this-" particular measure. If the individual is not immune, then he is not immune as to the past, and as to the position up to the present date we are still left to face the difficulty which has arisen. There is this further point, that if the Bill is merely of that character - partial - the question is whether, from that point of view, it is one that we can safely pass. 846 K78 0 0 ST LEDGER, Anthony Senator St Ledger - Which 'Court is he to obey? That is another point. 846 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - !But we are not settling that. 846 K78 0 0 ST LEDGER, Anthony Senator St Ledger - It is a difficult question. 846 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - From my point of view, I see no difficulty. I think that the difficulty arose on the decision in the cases of Deakin and Lyne, when the High Court declined to give special leave to appeal to the Privy Council. Look.ing at the nature of the inquiry, and at the fact that every person in the Public Service of the Commonwealth, from the. Judges themselves - even the Governor-General, because I see that- he is to be expressly exempt under the Bill - down to the humblest official whose salary would come within the ambit of a State income tax, was affected, I venture to think that it would have been wise, on that wide ground alone, to have had the matter referred to a tribunal which was not in the Commonwealth, and which was altogether independent, for ultimate decision. I think that, probably, if that had been done it would have saved the whole of this trouble, and no question would have been raised as to the propriety or otherwise of the High Court bowing to the decision of the Privy Council. Of course, I am not prepared to say anything now as to the application for a certificate. I rather take the view, looking at what the two new Justices of the High Court have said - I allude to Mr. Justice Isaacs and Mr. Justice Higgins - that it might have been as well to have solved the difficulty by a reconsideration, uninfluenced by that jealousy to which reference has been made, but from the point of view of trying to secure a solution, by giving weight to what the Privy Council has said on the merits of the question, and by making some approach, at any rate, to die views of the eminent Judges who are the latest additions to the High Court Bench. I regret that course was not adopted, and it is not for me to say any more about it. 846 JVC 0 0 DOBSON, Henry Senator Dobson - Why should not that course be taken now? 846 JZC 0 0 O'LOGHLIN, James Senator O'loghlin - But the honorable senator has always contended that the High Court should be supreme on constitutional matters. 846 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I tried to secure that that should be so, but did not succeed in getting it. We now have to deal with things as they are. 846 K78 0 0 ST LEDGER, Anthony Senator St Ledger - I think that four of the Judges of the High Court said that they had not power to give leave to appeal to the Privy Council. 846 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I do not think that they went so far as that, but they said that they saw no reason why leave to appeal should be given. 846 JXT 0 0 NEILD, John Senator Col Neild - They unanimously refused. 846 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - They refused unanimously, but not because they had not the power. Leave had been refused before, and, as Mr. Justice Higgins said, to give a certificate would only have been a roundabout way of yielding to the judgment of the Privy Council. 846 JVC 0 0 DOBSON, Henry Senator Dobson - Is there any objection to our looking' to the High Court to get us out of the impasse to which they have brought us? 846 KUL 0 0 MILLEN, Edward Senator Millen - The High Court is the objection. 846 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Another matter to be considered is that what we are asked to do by this Bill is an act of justice, by making persons liable to income tax to which the High Court says they are not liable - to declare, in fact, that the Privy Council was right, and that these people ought to be subject to taxation. I entirely agree with the view that it is just that this immunity should be swept away, but I doubt whether this is the right way to do it, or whether this Bill will have the effect of doing it. The position would be no better if this were a Bill to declare that the Privy Council was right. If the judgment of the Privy Council is right, it stands for what it is. If the judgment of the High Court is right, it stands for what it is, and we must find the remedy in the Constitution itself. If an amendment of the Constitution were necessary, it would have to be made. 846 KTF 0 0 MCGREGOR, Gregor Senator McGregor - What is the position of a Commonwealth servant or a member of Parliament who is compelled, through circumstances, to spend a portion of his time in one State and a portion in another ? 846 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH' SYMON - That would be a matter of adjustment, I presume, between the States concerned. 846 KUL 0 0 MILLEN, Edward Senator Millen - Suppose that the State which a member of Parliament represents demands income tax, and that the State in which Parliament sits also demands it? 847 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Then there arises the question of how much is earned in each particular State. 847 KUL 0 0 MILLEN, Edward Senator Millen - And the member of Parliament has to fight both the States to find out. 847 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - He would have to fight them both under this Bill. The difficulty cannot be got over by such a measure as this. But my point is that this Bill would not make the position any better. Another matter to be considered is that this is a Bill to impose taxation upon those who are supposed to be not at present liable to pay the tax in question. The Bill does not fix the tax, but leaves it to be fixed by the States. We impose a liability by this Bill, and we refer it to the States' to say how much, within certain limits, should be paid. It is a matter for consideration, therefore, how far this Bill is one which is properly before us at the present time. It is undoubtedly a taxation Bill. It is a Bill to impose taxation. 847 KNB 0 0 GUTHRIE, Robert Senator Guthrie - And differential taxation at that. 847 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I mention that because it is a pity that we should go on with the measure if it is not properly before us. It would be very much better for us to discuss this point in all its bearings than to have it thrust upon us in some Other way by another place. Then, again, as has been suggested, the measure is partial and incomplete. If it is to be uniform, surely it ought to apply to all officers. But there is an exception in the case of the Governor-General. There may be constitutional reasons for that, but a measure of this kind ought to be made general, unless there is some overriding reason why it should not be. If the judgment of the Privy Council stood, it would be a question whether it applied to the Governor-General or not, and it would not be for us, and it would not be for the States, apart from constitutional questions, to declare that immunity. A State might declare immunity from its own taxes, but it is not for the Commonwealth Parliament to do so. 847 JXT 0 0 NEILD, John Senator Col Neild - Would the honorable and learned senator inform the Senate whether the salaries of officers of the Imperial fleet serving in' Australian waters would be subject to State income tax? 847 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I really do not know. It may be if they are resident in a State, and deriving income there, they should be just as much liable as other citizens, but, as I say, I do not know. 847 JXT 0 0 NEILD, John Senator Col Neild - They have never been taxed, I believe. 847 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - A State may exempt them, and, possibly, they are exempt from income tax on other grounds. 847 KAH 0 0 WALKER, James Senator Walker - Is the honorable senator aware that the New South Wales Government would not take income tax on the parliamentary allowances of Federal members? Some of us put the amount of the allowance in. our returns, and the Government exempted them. 847 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I am. glad to hear it. I do not know whether it. has been done in my State, but I will mention it to the authorities, and see whether they are prepared to follow so good, an example. There is another point worthy of consideration as to our powers.. It relates to the form of clause 2,. which, provides - That taxation by a State,, on common withe other salaries earned within the- State of, (a), the official salaries of officers of the Commonwealth earned in the State after the commencement of this Act; and (d) the allowances paid after the commencement of this Act. of members of the Parliament elected in the State shall' not, if the taxation is not at a higher rate or to~~ a greater extent than is imposed on other salaries of the same amount earned in the State,, be deemed [e) to be an interference with the exercise of any power of the Commonwealth. The High Court has said that to. tax the salaries of Federal officers is such an interference. Can we say that it is not? Because, if we can, and do, we shall certainly be flying in the face of all that we suppose that we can do under the Constitution, and; flying in the face also of the principle of the Constitution that the High Court is a co-ordinate factor in the Constitution with the Parliament. There are three bodies - the Executive, the Legislature, and the Judiciary ; and if we can by an Act of Parliament say that, although the High Court has pronounced a particular judgment, we declare that it shall be of no avail, we shall very seriously interfere with the position of the High Court. I invite honorable senators to consider the question from that point of view. 847 JXT 0 0 NEILD, John Senator Col Neild - This is a Bill to-. " bash " the High Court on the head ! 847 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I do not put it in that way, but it is a Bill to confirm the judgment of the Privy Council. That is one thing. It is also a Bill, in.< express terms, to overrule the decision of the High Court. 848 KUL 0 0 MILLEN, Edward Senator Millen - If the High Court is right in declaring that the matter involved is a constitutional one, can this Bill be of any avail ? 848 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I have indicated that, so far as my opinion goes, the Bill cannot be of any avail; but, still, holding the views that I do, if we could see a way to deal with the matter by an Act of this Parliament, I should be only too happy to join in it. In expressing these opinions in regard to the question, I am not speaking upon it for the first time. We had the question before us in 1905 ; and honorable senators will find, if "they look at the proceedings of the Hobart Conference, that when it then cropped up it was mentioned that I had expressed an opinion, in the Government of which I was the Attorney-General, that the matter could not be rectified by Parliament or in the way proposed by this Bill. I am, therefore, not expressing any new opinion on the subject. 848 K78 0 0 ST LEDGER, Anthony Senator St Ledger - Has not the High Court suggested to us a way out of the difficulty ? 848 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I have dealt with that. I have said that I think it was unwise that that suggestion should have been made. It is not binding upon the High Court. It is not binding upon the Judge who made it. It was dissented from by one of the Justices of the High Court, and nothing emanating from the High Court is binding upon themselves or binding upon the Parliament and people of this country unless it is a formal judgment upon a case presented to the Court by the parties concerned, and upon which they have an opportunity of being heard. I think it is a dangerous thing for members of this Parliament to jump at suggestions of that character which emanate from any Judiciary as ways of escape from a judgment they pronounce. 848 JVC 0 0 DOBSON, Henry Senator Dobson - Suppose we passed this Bill, and on a Federal officer refusing to pay taxation, the question goes before the High Court, are not the Judges of that Court bound to say that he has a constitutional right to be considered exempt from that taxation ? 848 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I do not see what else they could say, but I am not going to prophesy what they would say. I should be a very bold man if I did that. I conclude these remarks in reference to this particular matter by saying that we are not going to the root of it. The root of the matter lies in the Constitution. If the Constitution had been framed as those who thought with me desired, this difficulty would never have arisen. What does the Constitution say? That is the question. The Privy Council says that there is no prohibition against a State tax, and that there is liability unless there is an express prohibition. The High Court says that there must be an express authority to impose it. That is the position as it now exists. I should have thought that it would require an express prohibition to interfere with the right of a State to tax its own citizens. Under the Bill, it is sought to put an end to the difficulty by enacting the direct liability, and we immediately have by this measure a conflict between the Constitution and the Bill itself. I wish just to say one or two words on the Judiciary Bill, and they must be even more emphatic as to the undesirability of passing it. If there was one thing that the framers of the Constitution desired, it was to magnify the States Courts and to place them in the position of being Federal Courts exercising Federal jurisdiction wherever possible. We desired that the great and expensive system followed in the- United States should not be made applicable here. In the United States, immediately their Constitution was agreed to, they' had to establish, not merely their Supreme Court, but District Courts and Circuit Courts throughout the length and breadth of their then dominion. To prevent that expense and the necessity of having a network of Federal Courts all over Australia, the Judicial Committee recommended, and the Convention approved, that there should be power to vest the States Courts with Federal jurisdiction. That was provided for. We raised their status, and gave them that jurisdiction. We left with them a direct appeal to the Privy Council. That, I think, was not desirable, but it was done. We have since, by means of the Judiciary Act of 1903, interfered with that status to a very considerable extent. V'e have disfigured it in a manner that was certainly not contemplated by the framers of the Constitution. We did that, which I see is the subject of some discussion in this morning's newspaper - we enabled appeals to take place direct from single Judges, to the ignoring of the States Supreme Courts and from the States inferior Courts of Quarter Sessions or County Courts, I am not certain how they are termed, direct to the High Court. To my mind, that was exceedingly inadvisable. It was passing by the Supreme Courts of the States, placing them in an inferior position, and doing that which was certainly not in the contemplation either of the Constitution or the framers of the Constitution. 849 JXT 0 0 NEILD, John Senator Col Neild - Is. not the honorable and learned senator aware that for years in New South Wales equity appeals have gone from the Chief Judge in Equity to the Privy Council without the intervention of the State Supreme Court? 849 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I am perfectly aware that appeals have gone from the Chief Judge in Equity in New South Wales. I am also aware that attempts were made in South Australia to the same end, but the position of the High Court is entirely different from that of the Privy Council in this respect, and the view I take is that the special leave which has been used so freely was not intended to be used in that way at all. It is a totally different thing for leave to be given by the King in Council to any citizen anywhere in the King's Dominion to approach him through the Privy Council for redress of grievance and justice, and for the same power to be assumed by the High Court when it does not occupy the same position as the Privy Council and the King, whose direct instrument the Privy Council is. I venture to think that the Judiciary Bill will have the effect of still further humiliating the States Courts. What is proposed ? There is an appeal direct from them to the High Court. What is the object of this Bill ? It is to stop appeals direct from State Courts to the Privy Council by taking away from the Supreme Courts of the States the power to entertain or determine the matters referred to. I say that that ought not to be done. It is a circuitous way of preventing appeals direct from the Supreme Court of a State, as the Constitution enables them to go, to the Privy Council. I say that we cannot, and if we could, we ought not to do what is intended in that way. 849 KTF 0 0 MCGREGOR, Gregor Senator McGregor - It is not a straightforward way of doing it. ' 849 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Senator McGregor has expressed it exactly. It is not a straightforward way of doing it. The Constitution has- given these powers to the States Courts. The true inwardness and object of this Bill is to stop appeals such as that in the case of Webb v. Outtrim, which went direct from the Supreme Court of Victoria to the Privy Council. If such appeals should be stopped, let us stop them in some direct and straightforward way. If we think it just and proper to prohibit those appeals the direct and straightforward way in which to do it is by an amendment of the Constitution. Let us. not be parties to what is not a straightforward way. That is Senator McGregor's term, but it is not nearly strong enough, because it is not merely a circuitous method, but one which involves the humiliation of the States Courts, the withdrawal from them of jurisdiction which the Constitution gave them, and which they are competent to exercise. The men occupying seats on the States Courts Benches are as able as the men occupying positions on the High Court Bench, or, for the matter of that, in the 'Privy Council.. I should be sorry to assent to a Bill which gives the States Judges a slap in the face with a view to accomplish some other end, which, to my mind, will not be accomplished in the way proposed, and which, if it could be accomplished, should not be attempted in this way. The end in this case does not justify the means. Tha provision would be futile, and if not futile, it would be grossly unfair to the States Supreme Courts and the men who constitute them. Though I may be wrong, I think it would be futile even in such a case as that which has been referred to, because it was there held that the matter in question was not a constitutional one, or, at any rate, that it was one which could be entertained by the Supreme Court here, and on which there could be an appeal. Mr. Justice Hodges held that the matter did not involve a question of Federal jurisdiction in the sense that it precluded him from giving leave to appeal to the Privy Council. With deference. I am bound to say that, while thinking, that Mr. Justice Hodges was perfectly right, even if he were mistaken, seeing that there is no tribunal free from error, it would be better to let such mistakes continue, unless we amend - the Constitution, than to disparage our States Supreme Courts, and relegate them to the position of inferiority from which the framers of the Constitution intended they should be raised into what I might describe as the Federal hierarchy, and made Federal Courts, invested with Federal jurisdiction competent to deal with every matter with which the High Court can deal, subject to whatever appeal may lie in any particular case to the High Court itself, or to the Privy Council. 850 JZC 0 0 O'LOGHLIN, James Senator O'loghlin - The more appeals the more expense. 850 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I do not wish to multiply expense, but I admit that the more they are given the right to appeal the more litigants appear to desire to exercise it. Senator O'Loghlin, perhaps, speaks feelingly as the unfortunate victim of some litigation which he would very much rather had not taken place. 850 JZC 0 0 O'LOGHLIN, James Senator O'loghlin - No; I was not a party to it at all. 850 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - Does not the honorable senator's fate depend upon it? 850 JZC 0 0 O'LOGHLIN, James Senator O'loghlin - I may be concerned in it. 850 K7V 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - I am greatly indebted to honorable senators not merely for having so attentively listened to the observations I wished to make, but for their indulgence in enabling me to refer to the proceedings that took place before the Convention, and which, so far as they are material to the matters we are now dealing with, will, I hope, be of service, at any irate in ascertaining what was the original intention of the Convention, and how that intention was frustrated. They will show that the position that was taken up with respect to appeals to the Privy Council was not so taken up because of what may have been said in the Convention in the heat of debate, as to any inferiority, or any imputation, upon what is equally with the House of Lords, the foremost Court in the Empire, but because we desired to rest upon the principle that as we were seeking to create a nation self-sufficing in every respect, there ought to be as an attribute of that position power within ourselves to dispense final justice within our own boundaries. That unhappily was not carried out, not owing to any fault of the Convention, but to the circumstances to which I have alluded. I regret as much as any one that this situation has arisen. I do not wish to distribute the praise or the blame in any way. In the free exercise of my opinion I have indicated that the High Court itself might have found an easy way - a different way from that which is now proposed - out of this difficulty, without any lessening of their dignity, or any sacrifice of those great interests of which they may rightly be jealous. They might have taken, if I may so express it, a larger, wider, and wiser view of the situation, in the directions upon which I have offered a remark or two. As I say, I do not desire to apportion the credit or discredit one way or the other, but in that respect I agree to some extent with Senator Dobson, that the High Court held, and still hold, the solution in their own hands. I believe that most implicitly. I believe they hold that solution in the ca!]m and dispassionate application of what is probably the wisest of all doctrines - to do what is best for the cause of justice, and to let that course prevail which makes for the highest interests of the community. Senator Col. NEILD (New South Wales) [5.46]. - We seem to have got into rather a difficulty through discussing two measures at one time. I admit that in the earlier stages it seemed that this method would be a convenience, and was regarded as such, but now it seems to be an inconvenience. If the second Bill under discussion were sufficiently before the Chamber I should certainly ask your ruling, sir, upon it, and I cannot doubt what that ruling would be. I do not know that at present the alleged Salaries Bill is sufficiently before the Chamber to permit of your giving a ruling upon it, and therefore we are discussing a Bill which, if it were properly before the Chamber, might be found to be improperly before us, on the ground that it was entirely out of order and ultra vires of the Constitution. I wish to make a few remarks upon the Salaries Bill rather than upon .the one the second reading of which is immediately before us. I wish to raise no historical questions connected either with the framing of the Constitution or the wording of the Judiciary Act, but rather to point out a few plain and, I think, common-sense reasons why the Salaries Bill should not be adopted. My remarks will, of course, have some relation to the Judiciary Act, and therefore I take it that I shall be strictly in order. First and foremost, let me point out that I come with my colleagues from a State which for many years resisted tha. imposition of income "taxation, and which has very recently in the most emphatic manner announced its abolition. Therefore no representative of New South Wales can possibly be regarded as an interested party through this proposal affecting in any shape or way the munificent incomes that we are supposed to derive from the groaning taxpayers of the Commonwealth. One question that I submitted to the honorable and learned senator who has addressed the Chamber with so much eloquence and so much acceptance this afternoon, was whether the officers of the British Army or Fleet serving in the Australian States are subject to income tax. I believe they are not, but that is not because there is any section to the contrary in any Income Tax Act in Australia. They are not subjected to income tax for the very good reason that the lesser Government recognises its inability to tax the higher. In other words, the Colonies have all along recognised their inability to tax Imperial incomes, and in largely the same way the Commonwealth has as "much right to expect the incomes of its officials to be immune from State taxation as ;has the British Government to expect the salaries of its officials to be so immune. I do not see that there is any difference except, of course, the wide one between the magnitudes of the Governments in the two cases. It is proposed specially to exempt the emolument of His Excellency the Governor-General. I suppose that is because there is a statutory obligation to pay him a certain sum. If the Governor-General has a right to the fulfilment of his bargain and to receive unimpaired the salary that is stipulated to be his in the Constitution, then I submit that, in precisely the same manner, members of the Legislature are entitled to receive their little statutory allowances just as free from invasion by the States as His Excellency the Governor-General is to receive his very different sum. In the one case, it is a salary, in the other, an allowance, and an allowance, we ali know, is to cover expenses. This is one of the first proposals that has ever been made to require any man to pay income tax on his hotel bill and travelling expenses. I can confidently appeal to your knowledge of the matter, sir, for you had the honour of discharging the duties of a Minister of the Crown for many years in New South Wales, when I say that there, and also in the other States, it is customary for Ministers of the Crown to draw whatever sum is necessary to meet their travelling expenses when abroad about the country's business. Who ever heard of a Minister of the Crown paying income tax upon the amount of his allowance as travelling expenses ? 851 K7D 0 0 STEWART, James Senator Stewart - Or a commercial traveller. 851 JXT 0 0 NEILD, John Senator Col NEILD - I was just going to leave official life, and come to the humdrum of the business world. Was any commercial traveller ever required to pay income tax on the amount of his hotel bill ? That is what we are asked by that Bill to do. I am asked to pay income tax to Victoria, because every year I spend a considerable sum of money in hotel accommodation within her borders. Could any proposition be more radically absurd from a common-sense stand-point? I will go further, and say that, so far as I know, no Premier but the Premier of Victoria, who was the means of inviting us here - if it was not the present Premier, Mr. Thomas Bent, it was a previous Premier - would ask us to take up our abode in his State, and then submit us to the experience of finding, as soon as we got there, an official hand trying to get into our pockets. That is one way of serving one's guests, but I have always Thought that there never was: a more detestable piece of conduct on record than for a man to invite people to his house in order to borrow money from them, or to get at their pockets in some way. 851 K6L 0 0 CHATAWAY, Thomas Senator Chataway - To take them down. 851 JXT 0 0 NEILD, John Senator Col NEILD - To take them down, as my honorable friend says. I never heard that it was possible to invent in the pages of a novel any more dastardly character than that of a man who invites people to his house in order to take them clown, but that is what has happened to members of this Parliament in Victoria. I am not prepared to support a proposition of that kind. Somewhere or other, sooner or later, there will be a Federal Territory, and a Federal Capital, and the amount of money which is now being spent in Melbourne will be spent within the limits of that area to a very large extent. Al) the large salaries of Commonwealth Administration will be earned, and paid within that Territory. The parliamentary allow'ances and the Ministerial salaries will be' chiefly earned within that area. What,' then, are we proposing to do, but to enable' one State, more than all the other States put together half-a-dozen times over; to de-' rive a little revenue for a few years, and then to lose it for ever? Leaving aside, all questions of honorable senators' interests an the matter, I come to the question of' the salaries in the Commonwealth Departments. How can the Commonwealth Government and Parliament equitably adjust the salaries of its officials if those salaries are to be subject to unequal depletion in every State of the Commonwealth? We pay a certain salary for a certain class of work, and yet, because one man lives in New South Wales, he suffers no deduction for income tax, while another, who lives in Victoria, has a drain upon him which his colleague across the Murray knows nothing of. In' the other States, also, differing amounts will be deducted, according to the conditions of taxation in the separate divisions of the Commonwealth. Whatever may be the constitutional or legal position, the propositions I am submitting must appeal to every man possessed of any business knowledge, acumen, or experience. I do not know that I shall take up any more time in discussing this matter, because there may be an opportunity later on, when the second reading of the Bill is moved' - if it is moved. But, on the other hand, no such opportunity may offer, because a point of law might incontinently knock the little bantling on the head, and I might then have had no chance of uttering these few sentences. Although I do not intend to say anything regarding the legal aspect of the case, I may, perhaps, be forgiven for pointing out that we ought rather to conserve the authority and reputation of the High Court than to do anything to dimin-ish it. As Senator Symon said, we have not a perfect Court in the High Court. We never shall have a perfect Court anywhere in the world, because, so long as Courts consist of frail humanity, so long must there be frailty occasionally in the decisions given from the Bench. But if we are to diminish or destroy the prestige of our High Court in any way, what is to become of the Commonwealth ship ? We constitute a part of the crew ; but the hand that is on the helm of the Commonwealth ship is the hand of the High Court. We may set the sails ; but it is the High Court at the helm that determines a great deal of the navigation. It holds the chart. It studies the compass, and we, as a community - I am speaking now in a most general sense - are in a very large degree dependent on the wisdom, reputation, and distinction that surrounds the High Court for the interpretation of the Constitution and our laws. Honorable senators who were here prior to its establishment will remember how many hours and days were spent in laboriously endeavouring to come to a conclusion as to whether or not it was in our power to do this, that, or the other. All that has been saved to us in having an interpreter of our doings. ' It may seem that we ought to know what we intend to do, but, unfortunately, our process of lawmaking is such that very frequently it happens that the Legislature does not exactly know what it wants. Votes are given blindfold. Votes are given because somebody sits on one side of the Chamber or sits on the other side. I am not condemning the Chamber. 852 JXJ 0 0 NEEDHAM, Edward Senator Needham - Does the honorable senator vote blindfold occasionally? 852 JXT 0 0 NEILD, John Senator Col NEILD - I do not know that I have ever done so, but I think it is possible, because at times we are a little distant from the Chamber. We are outside being interviewed by some person who is anxious to see us ; we may be busy here or there, and at times, when suddenly the bell rings, we have to vote with great hurriedness. 852 JXJ 0 0 NEEDHAM, Edward Senator Needham - Not necessarily so. 852 JXT 0 0 NEILD, John Senator Col NEILD - When my honorable friend has spent twenty-five years in Parliament, as I have done, he will perhaps find that at times there are difficulties as to deliberate action such as . appear to him non-existent at the present juncture. I am not going to comment on the actions of the Chamber ; I am but only relating what any honorable senator, with experience, knows happens 'in every legislative chamber on the continent. Apart from haste, however, we are not all abstruse lawyers, and we may take an entirely different view of the meaning of certain words from that which it attached to them by minds trained in the interpretation of Statutes. There are these reasons why it is essential that there should be an authority at the helm of the Commonwealth ship with undiminished influence to carry out that which is the true intent of the laws which we pass. 852 JPC 0 0 BEST, Robert Senator Best - Hear, hear. 852 JXT 0 0 NEILD, John Senator Col ' NEILD - I am very pleased to find by his interjection that Senator Best is in agreement with what I am saying, because he is the Minister in charge of the Bill', and is a politician of sufficient experience - not only in the Legislature, but also in Ministerial office - to know the importance of the apparently simple views which I am expressing. I do not think that we should lightly take any Step which is calculated to diminish the feeling of authority and confidence which we repose in the High Court. Even supposing that there has been some difference of opinion - we should not have so many lawyers in the world if it were not for lawyers' differences of opinion - and eminent lawyers may be found to differ with the decision of the High Court on this taxing question, I suppose it will be just as easy to find equally eminent members of the profession to support for all they are worth the view of the High Court. Therefore are we, a small party, consisting, chiefly of laymen, who, of course, are not versed in the interpretation of Statutes - are we, because we have been elected here, to set vip our puny views against the erudite decision of men who have been selected and appointed to the highest judicial positions in the land by reason of their supposed capacity, ability, and experience? I, for one, do not feel disposed to take up that attitude. Whether all the good which isi sought to be achieved by the measure can possibly be of the value which the Acting Premier of Victoria seems to attach to it, I do not know. I doubt whether it is worth the time that we are spending upon it. For the reasons I have given, I do not feel disposed to lend any assistance in the direction of belittling either the High Court or the Supreme Court of a State to which Senator Symon has1 so eloquently referred. Certainly I am not disposed for one moment to give a vote that will aid in maintaining what I have always regarded as a pernicious method of taxation, one which gets at the pockets of the energetic and the industrious, whilst the sluggard is passed by the income tax collector. 853 KVD 0 0 MULCAHY, Edward Senator Mulcahy - I think that I have heard that before. 853 JXT 0 0 NEILD, John Senator Col NEILD - I do not know what the honorable gentleman's! source of information may be, but if he has heard it before, it is sufficiently common-sense for him not to regret hearing it a second time, and if it is a quotation - and I am not aware that it is - all I can say is that English-speaking peoples value good quotations. 853 KVD 0 0 MULCAHY, Edward Senator Mulcahy - English-speaking peoples also seem to value the income tax, because they stick to it very well. 853 JXT 0 0 NEILD, John Senator Col NEILD - I shall make only one remark in reply to the interjection. It was about this month in 1886 when I had the honour of moving in the New South Wales Legislative Assembly, an amendment which utterly destroyed the first income tax ever introduced there. I refer to the income tax of the Jennings- Dibbs' Administration. To show that my opposition to an income tax is no new thing, if the honorable senator will look up the New- South Wales Hansard of a few years later, when the Dibbs Administration introduced an Income Tax Bill, I think that in the index he will find against my name no less than sixty-five entries of speeches made in opposition to the Bill. 853 K3G ALP 0 0 RUSSELL, William Senator W RUSSELL - The honorable senator must have " stone-walled " it. 853 JXT 0 0 NEILD, John Senator Col NEILD - There was no " stone- walling. " The longest speech I made occupied only fifty minutes. I did not speak at any length, but I fought the Bill day and night, because I was opposed to the principle. I am still opposed to the principle, and it is not likely that I shall come here to assist in interfering with the salary of one man as against the salary of another. If the income tax were made equal throughout Australia there might be something in it, but so long as it is a differing quantity - differing in some States and not existing at all in others - I shall not assist in placing an unequal burden of taxation on public servants doing the same class of work, and supposed to receive the same emoluments. I shall not be a party to a method of making a man pay income tax on his hotel bill. For the reasons I have given, that seems to me to be absurd. An allowance is an allowance, and a salary is a salary. If it is a salary it may be taxable under certain conditions. If it is an allowance it is notoriously for the purpose of discharging the liabilities that a man incurs in the doing of his work. I shall not assist in any way to impose such an utterly unreasonable burden on any man. The State which sends me here only imposed an income tax to take the place of much more burdensome duties which had been repealed, and it is on the point of removing from the statute-book a tax which has been found a burden on industry, inquisitorial, unfair, and unreasonable in its incidence, and particularly costly to collect. 853 JVC Tasmania 0 0 DOBSON, Henry Senator DOBSON . - I had not the pleasure of hearing the Vice-President of the Executive Council deliver his speech, but I have had the advantage of perusing the official report, and I thank him for the very clear and ample way in which he stated the case. I believe that we must all now feel that we are better informed, after having heard the very interesting speech of Senator Symon. The matter at issue, though, is not so much an examination of the mistakes of the past as the finding of a way out of the very serious difficulty in which we are placed. So far as I can see, there are three ways out of the position. The first is to accept the two Bills with such amendments as may be suggested. But the Government Salaries Bill appears to me to be absolutely unconstitutional, and merely waste paper. The second way is to go into the whole matter, and then, when we have really made up our mind as to what we want, to express our meaning. But the third way, and the one which I rather favour, is that we should fall back on the very useful judgment of Mr. Justice Higgins, and see if we cannot prevail on the High Court to, or let it know that we desire that it should, follow the superior Court of the Empire, because the judgment of the Privy Council accords with our sense of justice and gives effect to our intention. But, instead of the High Court following the judgment of the Privy Council, we are asked to escape from the difficulty which has been created by passing two Bills, running the risk of their being unconstitutional. As one who has been a family solicitor all his life, settling other people's affairs and doing business of that kind, I do not profess to be much more competent to speak upon a matter of this kind than is any intelligent layman. I desire, therefore, to speak as a layman and a senator, and whatever I have to say will be said with the greatest deference to the Justices of the High Court. But still I am here to give reasons for my votes, and to express my views on the terrible constitutional muddle in which we find ourselves. I could understand the method proposed by the Government to get out of the present difficulty if the High Court had given a decision of which all of us approved as being in consonance with justice. But the reverse happens to be the case. The Privy Council have given a decision which we all believe to be in accordance with justice,, and with what the Constitution intended. It is the Privy Council that has told us that the fact that our public servants pay State income tax does not interfere in any way with the Federal authority. That, also, is what Mr. Justice Isaacs has said. It does not limit the Federal control over the officers of the Commonwealth, nor does it affect in any way the authority of the Federal Parliament. But our own High Court has given the decision which has got us into all the trouble. It is the decision of our Court which we do not believe to be in accordance with justice. It is its decision which absolutely ignores the fact that we are all citizens of States, as well as citizens of the Commonwealth. 854 JYX 0 0 FINDLEY, Edward Senator Findley - Surely the honorable senator pays more attention to the High Court than to the Privy Council? 854 JVC 0 0 DOBSON, Henry Senator DOBSON - I am pointing out that the Privy Council has given the decision of which we all approve, and my opinion is that, with the knowledge that the High Court has, and seeing that the Privy, Council is the highest Court in the Empire - a Court which no other Court ought to override - the High Court might have saved us from the impasse into which we have been landed by giving judgment in accordance with the Privy Council's decision. 854 JXJ 0 0 NEEDHAM, Edward Senator Needham - Why should the Privy Council have the final voice in matters relating to the Constitution ? 854 JVC 0 0 DOBSON, Henry Senator DOBSON - It is of no use to ask a question like that, because we have to deal with- the facts as they are. Rightly, or wrongly, the income-tax case went before the Privy Council. Mr. Justice Hodges, of the Supreme Court of Victoria, held that it was rightly sent there, and the Judges of the Privy Council itself held that it was rightly before them. They have decided it. Mr. Justice Higgins has pointed out in clear and lucid language that we belong to an Empire, and that the Privy Council is the fount of justice and the highest Court to which we can appeal. Nothing but trouble can result if we refuse, to follow its judgments. I should not, however, be inclined to do so if I thought that the Judges had done something foreign to the genius of . the Australian! people. But, as a matter of fact, they have done everything that we approve of. It is the High Court, in refusing to -follow the highest' Court in the Empire, that has done that of which our own people disapprove. It does not appear to me as ' if the Judges of the High Court really, saw the importance of trie decision which they gave* It does not seem that they had anxious discussions amongst themselves as to what should be done. On one point, Mr. Justice Isaacs differed from the majority of the Court, and on another point Mr. Justice Higgins differed from them. There were three Judges against two. The Court was not unanimous. 855 K8T 0 0 TRENWITH, William Senator Trenwith - What is the use of discussing that? The question is, can we remedy the present difficulty. 855 JVC 0 0 DOBSON, Henry Senator DOBSON - I think that I am entitled to point out that the judgment of the High Court was given by three Judges as against two, whereas on the Privy Council, Lord Halsbury, Lord Macnaghten, Sir Arthur Wilson, and Sir Alfred Wills gave a unanimous opinion on. the same side as that of the two dissentient Judges of the High Court. 855 JXT 0 0 NEILD, John Senator Col Neild - How does the honorable senator know that the Privy Council was unanimous? 855 JVC 0 0 DOBSON, Henry Senator DOBSON - Because there was no dissentient judgment. 855 JXT 0 0 NEILD, John Senator Col Neild - The Privy Council merely gives its decision, and nobody knows how it is arrived at. There may have been only a majority of one. Senate DOBSON. - The chances are twenty to one that the honorable senator is wrong. On an important question of this sort, if one of the four Judges had differed from the others his opinion would have been stated. 855 KPE 0 0 KEATING, John Senator Keating - That is not the procedure of the Privy Council. 855 JPC 0 0 BEST, Robert Senator Best - The Judicial Committee advises the King. 855 JVC 0 0 DOBSON, Henry Senator DOBSON - I venture to say that if one of the four Judges held a strong opinion in opposition to his colleagues there would in all probability have been a minority judgment. 855 JXT 0 0 NEILD, John Senator Col Neild - No. There are no such things as minority judgments in connexion with the Privy Council. 855 JVC 0 0 DOBSON, Henry Senator DOBSON - The fact remains that, added to the decision of Mr. Justice Higgins and Mr. Justice Isaacs, we have the Privy Council judgment, which is as clearly as possible contrary to that of the High Court. 855 K8T 0 0 TRENWITH, William Senator Trenwith - How does that help us ? 855 JVC 0 0 DOBSON, Henry Senator DOBSON - I fall back upon the judgments of Mr. Justice Higgins, Mr. Justice Isaacs, and the Privy Council, which are in accordance with our views of the justice of the case, and argue that instead of Parliament being compelled to resort to the roundabout way of passing two Bills, one of which is said to be illegal - although the Chief Justice has suggested that we should pass it - the High Court itself should have got rid of the difficulty. If, according to the judgment of the High Court, every Federal officer has a constitutional right to be exempt from the payment of State income tax, what is the use of one of the Judges of the High Court telling us that we should pass a Bill to put the matter right? We cannot pass such a Bill if Federal officers have the constitutional right to be exempt. I understand, from reading Senator Best's speech, that he quoted a large number of cases which all depend upon the maxim that the man who has a privilege or right conferred upon him can waive that privilege or right. But other authorities which my honorable friend quoted at the end of his speech were not, to my mind, in point. Let me tell the Senate why. The case of McCulloch v. Maryland was quoted. That case had relation to a bank set up by the Federal Government of the United States. 855 JPC 0 0 BEST, Robert Senator Best - I did not quote that case on that particular point, but on another matter altogether. 855 JVC 0 0 DOBSON, Henry Senator DOBSON - My honorable friend will see my point if he follows the argument. When the Federal Government in the United States set up a branch of its bank in Maryland, the State Government commenced, not to tax the Federal officers, but the notes issued by the bank. It was with regard to that note tax that Chief Justice Marshall said that the power of taxation might, or might not, mean the power of destruction. But there is all the difference in the world between a State taxing an institution of the Federal Government and taxing a Federal officer. That distinction runs clearly through the whole of the cases which my honorable friend quoted at the end of his speech. He contended, in accordance with the case of McCulloch v. Maryland, that a State cannot tax a Federal institution, and cannot do anything which would embarrass or control the Federal Parliament in carrying out its functions. But simply to tax the salary of a Federal officer after he has received it from the Treasury, . and has it in his pocket, is quite another matter. It appears to me that in the judgment of the High Court no attention whatever is paid to States rights, or to the fact that every citizen of the Commonwealth is also a citizen of an individual State, the rights of which have to be protected. I find that Lord Halsbury, in his judgment, alluded to this point, and quoted section 1 06 of the Constitution, which says - The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. If the Constitutions of the States are to continue, we cannot in any way limit their power to impose taxation thereunder. As Lord Halsbury pointed out, that power continues. He also quoted section 107 - Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be. What is there in the Federal Constitution that takes away the right of each State to tax its own citizens by an income tax? As Lord Halsbury puts it, we cannot take away the expressed principle of the States Constitutions by trying to read into the Federal Constitution some implied authority. The States Constitutions emanated from the Crown, and they remain with the States except so far as the Federal Constitution takes power away from them, or in some way limits or controls their power. As to the power of taxing by income tax in each State, nothing is taken away. There is no limit and no control. I do not find in any judgment of the High Court that it has considered the question of what are the rights of the citizens of each State, and what are the rights of the States under their Constitutions to tax the incomes of their citizens. But the High Court has gone out of its way to read into the Constitution implications which I do not see there. Even if there are implications in favour of the judgment of the Court, they cannot, I contend, be set up against the direct and positive powers given to each State over its own citizens. 856 JPC 0 0 BEST, Robert Senator Best - All the Judges have, in the most conclusive way, said that the principle of the McCulloch v. Maryland, judgment do apply. 856 JVC 0 0 DOBSON, Henry Senator DOBSON - The Privy Council has said that it does not apply. Let me put this position, which will make the matter clearer. We all know that Mr. Kidston has suggested that the States debts should be taken over as soon as possible by the Commonwealth, and that we should establish a Federal bank to deal with them. Suppose we established a Federal bank, with a branch in Queensland. We should have three factors, the Federal institution, the shares in the bank, and the Federal officers in charge of it. Now, I think that the case of McCulloch v. Maryland has nothing to do with the salaries of the officers after they have received them from the Commonwealth Treasury, although it may apply to the bank itself and to shares in the bank. Sitting suspended from 6.30 to 7.43 p.m. 856 JVC 0 0 DOBSON, Henry Senator DOBSON - The Vice-President of the Executive Council will see that I draw a distinction between three factors ; the Federal institution, the property in that institution, and the officers of that institution. The officer, being a citizen of a State, is subject to the Constitution of that State, and it, therefore, appears to me that the decision in the case of McCulloch v. Maryland cannot apply to the taxation of his salary. But it is of no use to take up time in arguing about the past. The question is how is the difficulty which has arisen to be overcome ? I feel that we need to come to close quarters with those who know something about this subject. We shall never settle technical matters of this kind by a debate; we require, rather, to sit around a table and have a discussion upon them. I find that the Criminal Appeal Bill was referred, in England, last year, to what is called there a Grand Committee. One of the members of the Imperial Parliament pointed out this year that that was not at all a proper tribunal to which to refer such a matter, and that it ought to go before a special Committee. We have provision only for Select Committees in connexion with the Senate, and I feel that this is a Bill which should be referred to a Select Committee, in order that we might get at close quarters with the facts, and be in a position to examine barristers who have practised in the Appeal Courts, and who know something about the matter with which the Bill deals. 856 KTF 0 0 MCGREGOR, Gregor Senator McGregor - Why not refer it to the ^300 a year expert to be appointed by the States? 856 JVC 0 0 DOBSON, Henry Senator DOBSON - I believe that Senator Best has not considered whether we should deal in this measure with the right of appeal from one Judge of a State direct to the High Court. Articles on this subject have appeared in the newspapers, and I think that most of us recognise that it involves a very important question. If the existing state of things is to be continued, it is quite certain that the High Court will have more work to do than it can accomplish. Additional Judges will have to be appointed, and even then the Court will not be able to overtake the work unless an arrangement be made by which three Judges would sit in Melbourne and three in Sydney, whilst two or three more were travelling about in the smaller States. If that plan were adopted, it has been properly pointed out that it would be open to the objection that there would probably be conflicting decisions given' by the different sections of the Court.' I think chat it is the bounden duty of the Government, whilst considering this important Bill, to review the whole question of appeals. We should not let this measure leave the hands of Parliament until it is so framed as to deal with the whole subject. I point out that there is still the question whether the present Judiciary Act ought not to be amended and made clear. Mr. Justice Hodges has said that the income tax case was rightly sent on appeal to the Privy Council. The Privy Council expressed the same opinion, but the High Court, with a great deal of justification, I think, decided that the case was not rightly before the Privy Council. That is another matter which must be set at rest. If I may use the expression, I think that a "botch " will be made of the business if this Bill is permitted to pass without dealing with the whole question of appeals, and the work to be done by the High Court and the States Courts. With regard to the Commonwealth Salaries Bill, we have the authority of the High Court for saying that it is unconstitutional. The High Court has in the clearest way, and by a full and ample judgment, shown us that there is embedded in the Constitution a right inherent in every Federal officer to be free from any State income tax. If that be so, how can it be suggested that the Federal Parliament, which cannot alter the Constitution, can pass a law taking away a right held by every Federal officer. I quite understand that a gift or privilege conferred upon a person or a body can be waived by that person or body. But what we are dealing with here is a gift inherent in each Federal officer. When we talk of the Federal Parliament waiving its right and consenting, if we had established a Federal bank, to the taxation of the shares in that bank by the States, that is very different from the giving up of rights vested in individual officers. They are citizens of the different States, and as such the High Court has decided that they are exempt from the income tax imposed by the States of which they are citizens. If we .pass the Commonwealth Salaries Bill exactly in the form in which it is before us, and a Federal officer disputes payment of the income tax of a State on the ground that this legislation is ultra vires, what on earth is the High Court to say to it? We have their answer already. They have decided that the right of Federal officers to be exempt from State income tax is embedded in the Constitution. It, therefore, seems to me that the proposed legislation must be regarded as ultra vires since the High Court will be bound by its own judgment. The difficulty cannot be got over in the way proposed. In connexion with the amendments suggested, [ am bound to say that I differ from Senator Neild on two points. First of all, I think it would be a fatal blunder for us to make any exception in our own favour, or to make any difference in the way in which the law shall be applied to a State as compared with a Federal officer. 857 JXT 0 0 NEILD, John Senator Col Neild - I did not make any such suggestion. 857 JVC 0 0 DOBSON, Henry Senator DOBSON - I understand that Senator Stewart proposes that such a distinction shall be made. Senator Neild has asked, "Whoever heard of a man paying income tax on his hotel' bill and travelling expenses?" That may be an ingenious but it is not a proper way in which to put the matter. I admit that the honorable senator possesses considerable knowledge of such taxation, not through paying it, but probably in trying to obstruct it. But I point out that it is one of the provisions of legislation imposing an income tax that the expense incurred in earning the income may be deducted in estimating it. But a man is not entitled to deduct hotel and living expenses. He must pay them out of his income minus the tax. 857 K7D 0 0 STEWART, James Senator Stewart - What do we come here for? 857 JVC 0 0 DOBSON, Henry Senator DOBSON - Senator Stewart is going back to the first point. We have not to consider what we come here for. The honorable senator, being a citizen of Queensland, ought to pay the same income tax as his fellow citizens of that State. 858 K7D 0 0 STEWART, James Senator Stewart - But they do not pay income tax on hotel bills. 858 JVC 0 0 DOBSON, Henry Senator DOBSON - The citizen of a State must pay income tax, and is expected to defray from what is left to him the cost of living, whether he lives at an hotel, a lodging house, or in a home of his own. 858 JXT 0 0 NEILD, John Senator Col Neild - The honorable senator does not understand the argument. 858 JVC 0 0 DOBSON, Henry Senator DOBSON - I understand something about income tax laws. I ask the Vice-President of the Executive Council to give us as much time as possible for the consideration of these Bills. We require more light on the subject, and we should have such an amendment of the Constitution as will set at rest every point which has been suggested by the income tax cases. 858 K7D Queensland 0 0 STEWART, James Senator STEWART - - I did not intend to intervene in this debate. We have heard opinions from different sides of the Chamber to the effect that the method proposed by the Government is the only one by which the difficulty which has arisen can be avoided, and on the other hand to exactly the opposite purport. In a matter of this kind, as a layman, I would not presume to offer an opinion at all. It seems to me that somehow we have got into a difficulty, but apparently the High Court as the interpreter of the Constitution holds the kev to the position for the present. Speaking with all due deference, it does seem to me that any legislation that we may pass will be what the lawyers call ultra vires if any one cares to contest it. Now, with regard to the Commonwealth Salaries Bill and the income tax, I submit that members of the Federal Parliament stand in quite a different position from any other section of the community, so far as this matter is concerned. Assuming for the time being that what we receive is a salary- 858 JXT 0 0 NEILD, John Senator Col Neild - Under the Constitution it is an allowance. 858 K7D 0 0 STEWART, James Senator STEWART - It is really an allowance for expenses, but assuming it to be payment for services rendered. I would put it that our allowance of ^400 a year- 858 JXT 0 0 NEILD, John Senator Col Neild - The honorable senator will perhaps permit me to remind him that the framers of the Constitution carefully drew £,600 a year at the rate of £2 2s. per day while they were considering it, and that that was considered payment for expenses. 858 K8T 0 0 TRENWITH, William Senator Trenwith - That is a very offensive way in which to put it, and it is not correct. 858 K7D 0 0 STEWART, James Senator STEWART - I put it that the sum we receive is our gross earnings, and that, in the performance of our duties, we have to expend a considerable proportion, or it may be the whole, of that amount. We are in exactly the same position as a tradesman whose gross income, we will say, is ^1,000 a year, but who is not called upon to pay income tax upon that amount, since he is permitted to deduct business expenses. "Senator Dobson. - But not his living expenses. 858 K7D 0 0 STEWART, James Senator STEWART - I submit that when I come to Melbourne from my residence in Queensland, at the call of the Commonwealth, and incur certain expenditure while living here, and attending to my business as a representative of Queensland, I am entitled to deduct those expenses from my allowance in any return I may make to the Income Tax Commissioner. 858 KNB 0 0 GUTHRIE, Robert Senator Guthrie - If a Melbourne merchant goes to Sydney he puts the expenses of his visit down as trade expenses. 858 K7D 0 0 STEWART, James Senator STEWART - I ask honorable senators to compare the position of a member of the Federal Parliament with that of an ordinary civil servant. If a civil servant is sent from Melbourne to Sydney on Commonwealth business he is allowed his train or steamer fare and a guinea or a couple of guineas per day,, according to to his class, as expenses. Contrast that with our position. We get a fixed allowance of £,A°° a year. Out of that we have to defray our expenses in attending the meetings of Parliament, and we are also expected to go up and down the country like roaring lions', or like cooing doves, as honorable senators please, giving an account of our stewardship to the people who elected us, and to whom we are responsible. The expense incurred in that way can be looked upon as incurred in attending to the business of the Commonwealth. For that also on every ground of equity we are entitled to claim an exemption. That way of looking at the matter cannot fairly be contradicted. Senator Dobson said that we ought not to differentiate between ourselves and other public servants. The honorable senator evidently wishes to place members of Parliament in a very much worse position than ordinary civil servants so far as the payment of income tax is concerned, and that is exactly what I am opposed to. I agree with every word that Senator Neild said on the subject. Why should we be called upon to pay income tax, not on our net income, but on our expenditure? In the case of a commercial traveller, with a salary of £500 a year and an allowance of a guinea a day for expenses, would the Income Tax Commissioner be entitled to ask him to pay tax upon ^500, plus 365 guineas? He would never dream of making such a demand, which would be scouted in any Court of justice. The traveller would undoubtedly be called upon to pay on the £$°o, but no one would ever think of asking him to pay taxation on the expenses incurred in the prosecution of his employer's business. When we come to Melbourne, we incur expenses in carrying out the work we are sent here to do, and I submit, with all deference, that we ought not to be called upon to pay taxation on the money paid us to meet those expenses. I do not wish to escape my liability as a citizen of the Commonwealth any more than Senator Dobson does, but I object to being treated unfairly. We ought to have fair play all round, and no man should be asked to pay more than in fairness and justice he ought to pay. My intention is to vote against the second reading of the Salaries Bill, and if the second reading is carried I shall attempt to amend it in the way I have given notice of. If members of Parliament are not treated in the way I have advocated, they will be compelled to submit to an extortion to which they ought not to be exposed. Consider the case of Queensland members. If I have to pay income tax on my full ^400 a year, it will mean a decrease of £10 in my salary. Senator Neild tells us that the income tax is to be abolished in New South Wales, so that the allowance of a New South Wales member would be ^400, and that of a Queensland member ,£390. I think the income tax in Victoria would amount to between £3 and £4. I do not know what it is in South Australia, while in Western Australia there is no income tax. 859 KUL 0 0 MILLEN, Edward Senator Millen - There is a danger of Victoria as well as his own State claiming tax on the honorable senator's income. 859 K7D 0 0 STEWART, James Senator STEWART - Yes, while we are here Victoria will make a claim on us, but I would much rather ;pay the tax demanded here than what I consider to be the extortionate one in force in Queensland. 859 KUL 0 0 MILLEN, Edward Senator Millen - The honorable senator does not want to pay both, surely? 859 K7D 0 0 STEWART, James Senator STEWART - I do not want to pay either if I can avoid it. I do not -want to pay anything more than I am morally called upon to pay. If my allowance for expenses is £400, and my expenses amount to £100, I am quite willing to pay on ^300, but if my expenses amount to £400, I consider that I should be allowed to escape scot free. I trust honorable senators will not be led away by the ideas put forward by Senator Dobson. Probably it is not a matter of very much concern to him whether he" pays income tax or not, but I can assure him that it is a matter of some consequence to me. My expenses as a representative of a very large State are already considerable, and if they are to be added to by another demand upon my purse for taxation, not upon my income but upon my expenditure, it will mean that I shall be asked to submit to an injustice. 859 K6M Tasmania 0 0 CLEMONS, John Senator CLEMONS . - I do not wish to address myself at any length to this Bill, but we are forced to the conclusion, not only by the Bill, but by the remarks of the Minister in introducing it, that the Government are going to make no serious effort to overcome what is recognised on all hands as a serious difficulty. I refer to the position which has arisen under the Judiciary Act and the Constitution, of appeals going direct from a single Judge of a State Court to the High Court. It is universally admitted that that position is regrettable. I believe it is not suggested by any one that the Full Courts of the various States should be relegated to what must be a most inferior position, but that is the position into which they are rapidly being forced as the practice extends. 859 KRZ 0 0 LYNCH, Patrick Senator Lynch - Cannot the States amend their Judiciary Acts to remedy that difficulty ? 859 K6M 0 0 CLEMONS, John Senator CLEMONS - The States cannot remedy it. When the matter has been discussed it has been said that it is outside the province and power of this Parliament to remedy such a state of things by such a Bill as we are now discussing. Apparently Ministers also hold that view, because I cannot believe that the Vice-President of the Executive Council, if he had seen the possibility of altering it, would have failed to indicate his ready desire to do so. I am assuming that the honorable senator will not for one moment defend, as a right and proper thing the decision that an appeal may go direct from one Judge of a State to the High Court. I should like the honorable senator to say so, if he will. I have not heard directly or indirectly that he regards such a state of things as desirable. I can quite understand that he might regard it as a difficult matter to get over, or that he might imagine, for instance, that before we can put it right we shall have to go through the cumbersome process of altering the Constitution. I shall be glad if the Vice-President of the Executive Council will indicate whether he is desirous of applying a remedy by legislation, if practicable. As the honorable senator will not give that indication, I should like to point out that section 73 of the Constitution says that the High Court - shall have jurisdiction with such exceptions and subject to such regulations as the Parliament prescribes to hear and determine appeals. . . . If I read that section rightly, it is quite within the province of Parliament to legislate so that appeals shall not go from one Judge of a State Court direct to the High Court, and that they shall- not go to the High Court until the Court of final resort in the State itself has been approached. 860 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - That is the position under the Dominion Act in Canada. 860 K6M 0 0 CLEMONS, John Senator CLEMONS - It seems to be a provision that would appeal to everybody, but if a majority of this Parliament does not feel disposed on the actual merits of the case to put such a provision in this Bill, I could suggest another way in which the difficulty might be got over: It is desirable that we should not belittle the States Courts. I do not think the Federation has anything to gain by trying to relegate every State Court, especially the Full Courts, to a most inferior position, or by taking from the States Full Courts most of their work, nor will it gain anything if we compel the High Court to deal with innumerable cases which ought never to come before it. I should decidedly -prefer that we should indicate at once, and definitely, that no appeal should lie to the High Court until the appeal to the Court of last resort in the State had been exhausted. The other way I was going to indicate out of the difficulty is this: I see no reason at all why we could not provide in our legislation that it shall bi necessary in the case of an appeal to the High Court from a single Judge of a State Court for special leave to be obtained from that Judge, and, if necessary, from the High Court itself. I do not wish to address myself to any other aspect of this Bill, but I do feel that the present position with regard to the Judicature demands our serious attention. If it is within the province and power of this Parliament, as I hold it is, to give redress, I certainly think we ought to give it. It is my intention, when this Bill gets into Committee, to move, if no one else does so, first in the direction I have indicated, that the appeal to the State Courts shall be exhausted before the High Court is approached, and next, if I cannot carry that, to provide for special leave to appeal. 860 KRZ Western Australia Australia. 0 0 LYNCH, Patrick Senator LYNCH . - I am not going to address myself at any length to this subject, because, after the lengthy remarks we have heard from a very learned senator, it is no wonder that an ordinary layman like myself should feel bewildered. I desire only to extract from the Minister in charge of the Bill an explanation of the position a litigant would be in if, when his case was being tried in a State Court, the Judge decided that it was not a matter affecting the limits inter se pf the constitutional powers of the Commonwealth and those o'f any State or States, or the limits inter se of the constitutional powers of any two or more States. Supposing that the matter was really in truth and in essence a case coming under those definitions, would such a litigant have any remedy to enable him to have his case bi ought before the High Court? I can easily conceive of a Judge of a State Court feeling that, under the amended section 40A of the Judiciary Act as set out in clause 5 of this Bill, he alone was called upon to decide whether or not a matter was one that came within the category I have mentioned. He would have full and absolute jurisdiction to decide that it was not a case affecting the limits inter se of the. powers of the Commonwealth or States, and he might do so even in face of the fact that in truth and in essence it was such a case. What would be the position of the litigant if the Judge of a State Court gave such a decision ? Would it arm a single Justice of the Supreme Court of a State with full power to decide the question when, at the same time, it is reserved exclusively for the jurisdiction of the High Court? 861 KQ4 Victoria 0 0 MCCOLL, James Senator McCOLL . - I am somewhat surprised that the weighty utterance of Senator Symon has not been answered by the Minister in charge of the Bill. 861 JPC 0 0 BEST, Robert Senator Best - My honorable friend must understand that if I were to speak it would close the debate. I am prepared to speak at any moment. 861 KQ4 0 0 MCCOLL, James Senator McCOLL - I beg the Minister's pardon. I thought that the President was going to put the question, and that the debate would then have closed. Like Senator Lynch, I feel very bewildered with regard to the Bill. I feel that it is an attempt to remedy a position which has been termed intolerable ; but I fear that if the Bill were allowed to go through as it is, the position would be even more intolerable afterwards. I agree with Senator Clemons that, if any thing is to be done at all, the Bill should not go through in its present skeleton shape, but should deal with other questions which have come up as regards appeals from a single Justice of the Supreme Court of a State, and thus be made a comprehensive measure. The speech of Senator Symon this afternoon seemed to me to riddle the Bill, and I fear that no good would result from its passage. I think that, before we can remedy a great injustice, we shall have to go to the fountain-head, and that is to the people. Therefore, unless the Minister, in his reply, can clear away the objections which have arisen in my mind, I shall certainly deem it my duty to vote against the Bill. Motion (by Senator McGregor) proposed - That the debate be now adjourned. 861 JPC 0 0 BEST, Robert Senator Best - Mr. President- 861 10000 0 0 PRESIDENT, The The PRESIDENT - There can be no discussion. 861 JPC 0 0 BEST, Robert Senator Best - I hope that my honorable friend will see his way not to press the motion. 861 10000 0 0 PRESIDENT, The The PRESIDENT -I would remind the Minister that, under standing order 416, there can be no debate on the motion. Question - That the debate be now adjourned - put. The Senate divided. 6 26 Majority ... ... 20 AYES NOES Question so resolved in the negative. Motion negatived. 861 KTF South Australia 0 0 MCGREGOR, Gregor Senator McGREGOR . - I was rather surprised at the attitude of the Government in connexion with my motion to adjourn after a very close debate on a Bill of such importance. On a previous occasion, an adjournment was allowed after there had been far less discussion than there has been to-day. In view of the very serious pronouncement of Senator Symon and the important speeches made by other honorable senators, I think it would have been only reasonable on the part of the Government to consent to an adjournment. When I saw what did happen, I was very sorry that I had not communicated my wish to a greater number of honorable senators, but the debate seemed to be collapsing so suddenly - not even the Minister made an attempt to rise - that I moved for an adjournment. 861 JPC 0 0 BEST, Robert Senator Best - That is incorrect. 861 K8T 0 0 TRENWITH, William Senator Trenwith - He got up twice to speak. 861 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - Then I beg the Minister's pardon. But, even if he was prepared to speak, I do not think that other honorable senators have had a fair opportunity of considering to-day's speeches. I have listened very carefully to the whole of the debate, with the exception of the Minister's very important speech, which I was prevented from having an opportunity to hear. I have endeavoured, however, to make myself acquainted with the position. From the time when Senator St. Ledger spoke until the present moment nothing has been said which has had a tendency to clear the minds of honorable senators. The discussion has all gone to make the confusion worse confounded. We have had those who declare themselves constitutional authorities differing widely in their views. We have had the Vice-President of the Executive Council, who is a lawyer of no mean standing, opposed by Senator Symon, who, as a constitutional authority, can scarcely be questioned; with Senator St. Ledger, Senator Clemons, and several other honorable senators of less importance coming in between, and all differing. 862 K8T 0 0 TRENWITH, William Senator Trenwith - That shows that the Bill must be right. ' 862 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - According to the honorable senator, when no one understands a measure it is bound to be right, but I do - not hold that view. If I do not understand a proposal perfectly, I like to prolong the discussion as long as I can, in the hope that some light may come to me and to others. We have heard the history of the sections in the Constitution relating to the Judiciary. The whole discussion has hinged on the meaning of section 74. I heard a great deal about that provision in South Australia seven years ago, when the whole country was agitated, and recriminations were thrown broadcast with respect to the attitude taken up by certain prominent men in Australia. I heard them called - well, I shall not say what they were called. I was very pleased to-day to see that Senator Symon had so cooled down that he was prepared to admit that they might think that they were right, but still those gentlemen who endeavoured to thwart the aspirations of the people of Australia in making the High Court, so far as the Constitution was concerned, the arbiter of their destinies, ought, I think, to be called names which would scarcely be allowed in the Senate, or anywhere else. We have heard all this history repeated to-day, as we have done on a previous occasion, but to-day's version might be called a revised version. We had the original version ; then we had it revised by Senator St. Ledger; and next we had a further revision by Senator Symon. I am prepared to adopt the revised edition of the revised version, and to take the opinions of the honorable and learned senator in contradistinction to the opinion of any other honorable senator, at least on this question. It must be remembered that this is a double-barrelled discussion. We have to discuss a Bill to amend the Judiciary Act, and also a Bill dealing with a matter with which I do not think this Parliament should attempt to deal at the present time.. It should be left to the Courts. We have been told by as good a constitutional! authority as we have in the Senate, that if we pass the Bills in the present form they will be practically no better than wastepaper. Consequently, the Commonwealth would find itself in no improved position* with respect to the interpretation of the Constitution, or the difficulties that have arisen in reference to the income tax, than it is in now. When I find that such is the case I am still more surprised that the Government should not allow more time for consideration. After all that we have heard* about the Australian Constitution being the best instrument of government in the world, it is rather disappointing to find* that there is something in it that has-' brought confusion both to the States and to the Commonwealth. I believe that the High Court of Australia should have full and complete control over all judicial matters in this country, and that there should" be no other Court to appeal to, unless the High Court itself determines that a particular case ought to be sent on to the Privy Council. 862 K7D 0 0 STEWART, James Senator Stewart - I would not- allow even that. 862 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - I would be liberal enough to allow the High Court itself to send on a case if it chose. 862 K7V 0 0 SYMON, Josiah Senator Sir Josiah' Symon - That is exactly what the people of Australia approved of. 862 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - That is what the people of Australia originally voted for, and wished to be the law, and that is what they would glory in to-day. Instead of bringing up two measures like those before us, it would be far better for the Government to take steps to amend the Constitution. Perhaps Ministers will reply,. " Look at the expense and delay that that would entail." Well, Australia has been living under the Federal Constitution for seven years, and nothing very serious has happened through Federal officers not paying income tax in the States. There is nothing in the circumstances that would not . justify a little further delay in order to-" enable the Constitution to be amended, so as to define clearly the position of our Courts and the relationship between the Commonwealth and the old country. Why should we not delay this matter, even by voting against the second reading of this Bill ? Why should we not delay it by doing everything possible to compel the Commonwealth Government to do what is straightforward And just? If what I suggest were carried out, it would simply mean a delay of three years, when, without any serious additional cost, the people of Australia would be able to say in what direction they required the Constitution to .be amended, and whether they were prepared to permit appeals, not only from the High Court, but from subordinate Courts in the States to the Privy Council. The people should have power 4o express their opinion on that point; and I am certain, in view of the feeling existing between Great Britain and the Commonwealth of Australia, that if the people of this country showed any desire in the direction of vesting their own High Court with complete powers, the Parliament and the Executive of Great Britain would willingly agree to it. They are beginning to see that Australia is capable not only of governing itself, but of governing itself independently; and for that and many other reasons if an amendment of the Constitution in this respect were submitted to the British people and the British Parliament, I have no doubt that their sanction would be given. Then we should remove doubts, and the difficulties that now exist would disappear with them. Suppose we carry the Bills now before us. In what position shall we then be? The Government is endeavouring to do something which will discredit the Supreme Courts of the different States, arid cause greater friction to arise than at present exists. It is proposed to allow appeals to be brought from almost any Court in a State to the High Court. At present, it appears, there is power to appeal to the Privy Council independently of the High Court, except in constitutional cases. Now, by a side wind, to mv way of thinking - honorable senators will pardon -me for using such an expression - the Government are endeavouring to do what ought to be done by an amendment of the Constitution. Whenever a proposal of that nature is submitted to the Senate, unless I am assured that very great benefit to the people of Australia will be derived from it, 1 shall not support it. I would rather have some amount of delay than assist in carrying a measure such as is now before us. How has this" question arisen ? We should never have heard of this amendment :in our Judiciary legislation had it not been for the unfortunate position first created by the State of Victoria, in endeavouring to levy income tax on everybody connected with the Commonwealth who resided, if only for five minutes, in Victoria. I myself got a wheelbarrow full of notices about the income tax in this State. 863 K6M 0 0 CLEMONS, John Senator Clemons - With interest accumulating thereon. 863 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - The interest has accumulated, and- can go on accumulating, for all I care. Now, I come from South Australia. All those who come from that State know very well that we generally spend two nights per week in the train, two nights in Victoria, and three in South Australia. How should the income tax be divided? Should liability to pay it begin at Serviceton, or at Adelaide, or at Melbourne? How is it to be equitably collected ? I cannot understand. A remarkable feature of the proposed legislation is that the Bill dealing with income tax on the salaries of public servants exempts the Governor-General. - That is a nice little dodge. Probably I should not use that word. I will say that it is one of those harmless little courtesies that are paid to great people. If we are going to make a provision of this kind in such a Bill, let us see what it means. The Governor-General comes to Australia to live in the Federal Capital - when we have one. Melbourne is the present Seat of Government. Well, the Seat of Government should be considered, so far as the Governor-General, members of the Federal Parliament and Federal officers are concerned, just in the same way as the Federal Capital will be considered when we get there. Now if the Governor-General were residing in Federal territory, he would say to himself, "I am in a funny position. If I go to Victoria to reside for three or four weeks, they will make me pay income tax. I had better stay where I am." Probably he would like to go to South Australia for a few weeks, as 'that country is very beautiful during some portions of the year. 863 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - All the year. 863 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - Well, it is more beautiful at some times than at others. The Governor-General would say, "If I go there for a few weeks they will charge me income tax. I will stay where I am." Senator Neild tells us that income tax is not demanded from Imperial officers in New South Wales. I do not know whether His Excellency the Governor-General is to be considered an Imperial officer. If so, New South Wales would be the only State in which he would be safe. The New South Wales senators ought to block this Bill because the Governor-General, if not able to go to any other State to reside, will always be welcome in Sydney. 864 KVD 0 0 MULCAHY, Edward Senator Mulcahy - We do not tax him in Tasmania either. 864 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - Oh, indeed ! We have heard so much howling on account of the poverty_of the Treasury of Tasmania for the last three or four years that it is remarkable that they do not levy income tax on everybody they can catch. Tasmania and New South Wales, it appears, are the only States in which His Excellency would be safe. 864 JPC 0 0 BEST, Robert Senator Best - He would not be taxed in Victoria. 864 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR -- -Then why did they want to tax me ? 864 KLS 0 0 GIVENS, Thomas Senator Givens - Why specially exempt the Governor-General under this Bill if he is not taxed now? 864 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - Why do the Government put in such a silly thing as the exemption in this Bill if His Excellency is not taxed now? 864 JPC 0 0 BEST, Robert Senator Best - It is the usual practice. 864 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - What is the exemption for? Does it not show the absurdity, the little pettiness of a measure of this description, when the Government put things into it simply .for purposes of padding? I refer to these things merely to show the absurdity of legislation of this description. If we consider the second Bill, I ask where is the guarantee that if we pass the Commonwealth Salaries Bill the High Court will not rule that it is ultra vires, and that we shall not have rules nisi, injunctions, mandamuses, and all those things flying about thicker than duck eggs n spring time. That is another reason why we should delay if it were only to give the subject further consideration. The Government appear now to be in a great hurry in this matter. In whose interests is this haste? Is it in the interests of Victoria ? I think it" must be because the Government of that State seem to be most eager to get hold of every possible penny they can secure from the unfortunate Commonwealth public servant or member of Parliament. I should be quite prepared to pay income tax in South Australia at any time if I had sufficient income for the purpose. I should be happy to pay £100 a year as income tax. But in South Australia the members of the Federal Parliament have never been asked to pay income tax on their salaries. I shall endeavour to show why the South Australian Government are sensible in making no such demand. I do not believe that there is a single representative of South Australia in either House of the Federal Parliament who would not be willing to pav income tax to the Government of that State. They are patriotic enough and love their own State sufficiently to be prepared to do what they can to advance its interests. But, as I -say, we have never been asked in South Australia to pay income tax, and why? I come back again to the Federal Capital and the Federal Territory, by which it is to be surrounded. 864 KNB 0 0 GUTHRIE, Robert Senator Guthrie - Where is it? 864 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - It is at Dalgety, undoubtedly. When we remove to the foot of the Snowy Mountains and are surrounded by the Snowy River, what State Treasurer can then ask us for any income tax? While there we shall be as free as the sheep and lambs in that part of the country. 864 KAH 0 0 WALKER, James Senator Walker - They are shorn every year. ;' 864 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - We have a certain number of public servants who would be permanently located in that Federal Capital or in the Federal Territory, and none of the States Treasurers would have any power to compel' them to contribute to the States revenue by way of income tax. They would in that Territory be exempt from any taxation except that which the Commonwealth Parliament itself proposed. I do not object to the Federal Parliament imposing .an income tax if it should be necessary. Despite what Senator Neild has said, if ever there is a proposal of that kind made, I shall probably support it. Our public servants, while in the Federal Territory, would have to pay no income tax. As I have already said, while the seat of the Federal Government is in Melbourne, those public servants should be as exempt as they would be if located in the Federal Capital or Federal Territory. 864 KVD 0 0 MULCAHY, Edward Senator Mulcahy - No. 864 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - They certainly should, because they are in a position equivalent to that in which they would be if located in the Federal Territory. 865 KVD 0 0 MULCAHY, Edward Senator Mulcahy - We would not have all our postmasters in the Federal Territory. 865 KTF 0 0 MCGREGOR, Gregor Senator McGREGOR - I am speaking of Federal servants who would be, from the nature of their \york, permanently located in the Federal Territory. I go a little further, and show the anomalies which would exist even under those circumstances. I do not object to income tax being imposed on the salary of a Commonwealth officer who is a permanent resident of any State. That may be his fortune or his misfortune. He may, by being compelled to live in a State where an income tax is levied, be relieved of disabilities to which he would be subject in the Federal Territory, and the relief from which would compensate him for the tax imposed on his salary. But I wish now to draw a comparison. Let us take the case of a public servant who, according to the Public Service Commissioner's classification is in class 5, and lives in the Federal Territory j he will be exempt from the income tax imposed in any of the States. , There as another gentleman in class 5, who may have a roving commission, against his will, and consequently be obliged to reside sometimes in one State and sometimes in another. He might sometimes have to pay income tax, and at other times would escape the tax, but would he not be placed in a position of disadvantage in the matter of salary as compared with his fellow servant in th; same class permanently located in the Federal Territory? That is an anomaly which should be considered when we are dealing with legislation such as that before the Senate at the present time. We should also ask ourselves whether it is right that Imperial officers coming to the different States should be exempt from income tax in those States whilst Commonwealth officers occupying very similar positions would be liable to the tax. I know that the public servants of the Commonwealth do not object to bear their fair share of the Government in any part of Australia in which they may be located, but they do object to be treated differently from officers in the same class occupying similar positions in other parts of the Commonwealth. It is for these reasons that I intend to vote against both of these Bills, In order that time may be allowed for further consideration of the matter, and that ultimately an amendment of the Constitution may be brought about which will' give the High Court of Australia an opportunity to decide between the States and the Public Service of the Commonwealth, and between the States and the Commonwealth itself. If, with the assistance of others, I can, by opposing this measure, secure that, I shall have done my duty, not only to the Commonwealth, but to the States, because I believe that if we pass these measures in , their present form we shall find that within the next three or four years they will have cost the States, the Commonwealth, and the Commonwealth public servants, a great deal more in litigation than the trifling amount of income tax that would be claimed by the States within the same number of years. I hope that the second reading of these Bills will not be carried, at all events, to-night. 865 KLS Queensland 0 0 GIVENS, Thomas Senator GIVENS . - Probably a layman like myself might be expected to approach the consideration of a Bill dealing with a grave constitutional question with a great deal of diffidence. But I do not approach this Bill with any such diffidence, nor do I offer any apology for the remarks I have to make upon it. Seeing the confused mess in which we have been landed by the greatest legal authorities of the Commonwealth, I think that the attitude of the layman to the lawyer in these matters should be one of the greatest disrespect. That is my attitude to the lawyers as a body when I consider that the highest legal talent, not only in this country, but in the old country, has landed us in our present position ; and now, after they have all dealt with the subject, we have only confusion worse confounded. We had the advantage at the Conventions of the combined wisdom of the highest legal authorities of the Commonwealth. Then all the legal talent in Australia offered advice, and in some instances impertinent advice, to the House of Commons and the British authorities when passing our Constitution Act, which, as we were properly reminded by Senator Symon, is an Imperial enactment. Then we had all the legal intellect of the Judges of the States Courts focussed upon the question for a considerable time. They arrived at one conclusion. The matter came before the High Court, who arrived at another, and then it went before the Privy Council, who arrived at a third. In the circumstances, what respect can any one have for the consistency or continuity of a legal opinion on this or any other question? I listened for three hours to a dissertation upon these Bills 'from another lawyer, in the person of Senator St. Ledger, and I have to confess that I was then in a greater fog than I was before, because the honorable and learned senator made the matter as- clear as mud. These are some reasons why 1 feel no diffidence as a layman in approaching the consideration of this question. I believe that an ordinary intelligent layman is as capable of offering a valuable opinion upon this or any other legal matter as is any lawyer. No matter what question is raised, we can find an equal array of legal talent on either side of it prepared to argue till all is blue that the other fellow is wrong. Divesting the question of all legal quibbles and technicalities, it will be admitted that this Parliament is not competent of itself to enact an amendment of the Constitution. If there is a defect in the Constitution, it is mere surplusage on the part of this Parliament to try to amend that defect in the way here proposed. We are being asked now merely to affirm what we think the Constitution ought to be, but that will not make the Constitution any different from what it is. I agree with Senator McGregor that, . instead of passing tinkering legislation of this kind, we should go straight to the point and amend the Constitution. It will be said that in order to do that we must wait for three years, until there is a general election, but we need not do so if we are prepared to pay the cost of a referendum this year, which would probably not amount to more than ,£40,000, and which I believe would be money well spent, since it would probably save us three times that amount in actual cash, by preventing the enormous litigation with which we are likely to be faced should the course proposed by the Government be adopted. It would also be of great value in putting an end to the heartburnings and jealousies arising between the Commonwealth and the different States. The Government recognise that in this matter they are in a hole, and the legal authorities of the Commonwealth are of the same opinion. While with the most cheerful lightheadedness they acknowledge that we can do nothing, they say, " Let us try to do something." I do not want to be placed in any such ridiculous position. When we are faced with a difficulty, we should grasp the nettle with courage, and it will not sting us at all, but if we go on tinkering with it in this manner, we shall be liable to get innumerable stings. It is proposed by these two Bills to do something which one at least of our judicial authorities has thrown a grave doubt upon our ability to do. Mr. Justice Higgins, of the High Court, in, delivering his judgment in the case of Flint v. Webb, as reported on page 86 of the Commonwealth Law Reports, vol. 4. {1907), said - As to the 'other suggestion, that the Federal Parliament may make its grants of salary subject to the rights of the States to tax them, I merely refer to it, because I do not at present: want to be committed to any definite view on the- Subject. At present I cannot see how, if an income tax upon the salary of a Federal servant is made invalid by the Constitution, the Federal Parliament can alter the Constitution by making, the income tax payable. That was the deliberate opinion of Mr. Justice Higgins, and is as much entitled to respect as that of any other man I know of in the Commonwealth. Yet the Commonwealth Government rush in where that Judge says he can see no light, crying- " Here is a ready-made remedy, apply the-' plaster in the shape of this Bill, and the ailment will disappear." 866 K8T 0 0 TRENWITH, William Senator Trenwith - Mr. Justice Higgins was. in the minority. The Chief Justice said that a Bill similar to this would be useful, so that there is a conflict, as the honorable senator very properly says.: 866 KLS 0 0 GIVENS, Thomas Senator GIVENS - Where are we to look for light among all these legal luminaries, who are turning their gigantic intellects upon this vexed question? 'They only land us in greater confusion than before. There is a simple way out of the difficulty, and the only objection to it is that it will cost a little money. We should not shrink from that if it is necessary. 866 KUL 0 0 MILLEN, Edward Senator Millen - Does it mean a little money or a little delay? 866 KLS 0 0 GIVENS, Thomas Senator GIVENS - The money will be well spent in avoiding delay iri removing the heart-burning and bickering now existing between the States and the Commonwealth. If we do pass this Bill and the supplementary measure dealing with Commonwealth salaries, we shall still be in as bad a hole as ever. 866 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - If this Bill' stood over for two years more there would be no collapse of the Commonwealth. 866 KLS 0 0 GIVENS, Thomas Senator GIVENS - If we did pass these Bills, and the States claimed that the collection of income tax was entirely within their province, the State, of Queensland might say, " Senator Givens has escaped long enough from the payment of income tax. We are entitled to a little from him now." Supposing then they proceeded to demand income tax from me and I objected, as most people do object when their pockets are touched, they would sue me in a 'local Court, claiming that it was entirely a State matter, and get a verdict. I would appeal to the High Court, who would support my contention that I should not pay. Then in another case the State might sue some other officer of the Federation in a State Court, which following the precedent set by the High Court in my case would give a decision against the State Government. They would then appeal to the Privy Council direct, and we should have the same confusion over and over again. I cannot see for the life of : me how these two Bills are going to alter the position. One tenth of the rOw would not- have been kicked up about this income tax question if it had not been that the State of Victoria, in her desire to get at. members of the Federal Parliament and Federal' public servants doing work for the other States wanted to tax their "screws " because they were here in Melbourne. The Seat of Government is situated in Melbourne for the time being, and will remain here for some time owing to a set of adventitious circumstances for which the Government of New South Wales are responsible, keeping us here against our will after we had selected a Capital site. Consequently, all the administrative officers have to live in Melbourne, and the members of the Commonwealth Parliament are located here for the greater portion of the year. The State of Victoria, egged on by some of the journals published here, wanted to make a grab while it bad the opportunity, and that was the cause of the outcry. I think, however, that there is an easy way out of the difficulty. I would first point out that the taxation of officers in the several States by means of income tax may be fraught with the greatest injustice. Two Federal officers of exactly the same status and classification, and performing the same work, may be stationed in adjoining States, which are divided by nothing more than an artificial line across a map. There is no division, between them in the Federal sense, but in one of those States there is a heavy income tax, and in the other none. The consequence is that the Federal officer in the one State is at a disadvantage, to the extent of the income tax he has to pay, as compared with the officer in the same class and doing the same work on the other side of that imaginary line. 867 K8T 0 0 TRENWITH, William Senator Trenwith - Will not the other officer have some other tax to pay ? 867 KLS 0 0 GIVENS, Thomas Senator GIVENS - I do not think so. As the Commonwealth is the authority which levies all duties of Customs and Excise, that form of taxation is- uniform in all the States. The principal taxation upon incomes of this kind is income-taxation, and taxation derived through duties, of Customs and Excise on what a man uses. 867 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - The Federal officer in the State where income tax is collected is in no different position from the other citizens of that State. 867 KLS 0 0 GIVENS, Thomas Senator GIVENS - That may be so, but he may be removed by the Commonwealth in the course of departmental arrangements to-morrow, and another officer may be sent to take his place. Thus there would be constant change and uncertainty, and a palpable injustice might be done. The remedy I would suggest is that the Commonwealth should make good out of the Consolidated Revenue the amount of each officer's income tax, and pay it to the State in which he lives. The States would then get that money practically into their hands, but it would be deducted out of the amount returnable to them by the Commonwealth, out of the surplus over and above the three-quarters of the Commonwealth revenue to which .the States are constitutionally entitled. 867 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Why? It would be a Commonwealth expenditure. 867 KLS 0 0 GIVENS, Thomas Senator GIVENS - It would not be- new expenditure, except in the case of officers appointed to new services. 867 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - That would depend upon circumstances. 867 KLS 0 0 GIVENS, Thomas Senator GIVENS - If I began to argue with a legal light on that point we might be here for a long time. We have ample surplus revenue over and above the three-fourths which we are compelled to return to the States to enable us to do what I suggest. It is a simple way out of the difficulty, and would remove all the heartburning. It is proposed to tax the allowances of members of this Parliament as if they were salaries. I am utterly opposed to such an iniquitous proposal. It is proposed bv the Government, in the other Bill, to allow the State represented by a member to levy income tax on the full amount of his allowance, and, so far as I can see, the Bill will not prevent him from being taxed by two States. Any man receiving, as a fixed salary, either from the Government or from a private firm, an income equal to the allowance provided for each Federal member, is granted almost as much more for travelling expenses if he has to do as much travelling as Federal members have to da The net income of a person, and not his gross income, is the amount that should be properly subject to income tax. If a man is to be taxed upon what he has to spend in order to earn his income it is an unfair discrimination between him and other people in the community. A Federal officer receiving a fixed salary of £400 a year, which is the amount of the allowance paid to a Federal member, would be allowed full travelling expenses for every inch of travelling he did from one year's end to the other. Even if he went from the Commonwealth offices in Spring-street to Spencer-street he would be allowed cab hire or tram fare, and if he had to be away from his home for a single day he would draw a guinea in expenses. But under this iniquitous proposal, even though a member of this Parliament may live 2,500 miles away from the Seat of Government, as I do, and have to leave his family there, or break up his home to bring them down here, it is proposed to treat his allowance for travelling expenses as if it was his net income, and make him " ante up " on the whole '^400 as! though he had not \o spend a single shilling in travelling. I never heard a more iniquitous proposal, and it was a cowardly surrender to an outcry by interested people outside for the Ministry to bring it down in that form. I do not object to pay income tax like any other individual in my State, but if I am compelled, in the interests of my State, and on its business, to be down here attending to mv duties, I object to pay it both in Victoria and in Queensland. I do not object to pay income tax upon ' my net allowance in Queensland, the State which I represent, but I object to paying it on an income which* I do not enjoy. 868 JVC 0 0 DOBSON, Henry Senator Dobson - All the Income Tax Acts take' those points into consideration. 868 KLS 0 0 GIVENS, Thomas Senator GIVENS - The honorable senator can speak for his own State, but' I doubt whether he has such a stupendous headpiece that he can remember every provision of every Income Tax Act in every State of the Commonwealth. In Queensland the income tax officer, if he is not satisfied with a man's statement, will tax him up to the full amount he thinks he ought to pay, and the only remedy of the citizen is to go to law. 868 JVC 0 0 DOBSON, Henry Senator Dobson - That is in every Income Tax Act in the Commonwealth. It was in the English Act years ago. 868 KLS 0 0 GIVENS, Thomas Senator GIVENS - Just as I have the greatest disrespect for lawyers as a body, so I hold in the greatest contempt all old and musty precedents. 'Because a thing is a thousand years old it may be no less; iniquitous. We are here, not to follow old and musty precedents, but to create precedents if we choose. I want a fair deal for everybody. If other people, such as Commonwealth servants or commercial' travellers, are not asked to return their expenses as income, why should I be compelled to have my whole allowance for expenses, which is only a decent allowance for travelling, treated as income? 868 JVC 0 0 DOBSON, Henry Senator Dobson - The Income Tax Commissioner will give the honorable senator a fair deal, if he will let him. 868 KLS 0 0 GIVENS, Thomas Senator GIVENS - I doubt it. ' 868 KVD 0 0 MULCAHY, Edward Senator Mulcahy - This is not an Income Tax Bill. ', 868 JVC 0 0 DOBSON, Henry Senator Dobson - It is all provided for in existing Acts. 868 KLS 0 0 GIVENS, Thomas Senator GIVENS - I am trying to give reasons why I think it should be provided for ; why it is our business to see that our officers get a fair deal. 868 JVC 0 0 DOBSON, Henry Senator Dobson - It cannot be done in a Federal Bill ; at any rate, it ought not to be done. 868 KLS 0 0 GIVENS, Thomas Senator GIVENS - The honorable senator is entitled to be the judge of what he ought or ought not to do, and I claim the liberty of judging as to what ought or ought not to be done. Inasmuch as the Constitution Act does not call our parliamentary allowance a salary or an income,, and as it really is not a salary or an income, I do not think that that portion which is essential for my travelling expenses, and which I must necessarily spend in order to fulfil my duties, should be taxable as income. Therefore, I am opposed to that proposal in the Bill, and will endeavour to defeat it. I am inclined to agree that we are merely engaged in a work of supererogation in dealing with these Bills ; if we are to take the testimony of the highest legal authorities in the land, amongst whom I include Senator Symon, we are assured that the Bills are not worth the paper on which they are written ; that, at the very utmost, the Judiciary Bill is only a reaffirmation of what we think the Constitution ought to provide, and, as I pointed out before, it will not assist one iota to alter the Constitution. It seems to me that the measure, if passed, will be ultra vires. For these reasons, I am in a quandary as to what I ought to do. I wish to see the States get a fair deal. I also want to see every citizen in a State pay his full quota to its Government, but, above all things, I desire to uphold the Commonwealth authority and the status and dignity of the High Court. If I can be assured that the passing of the Bill will assist in any way to uphold the honour, the dignity, the prestige, and the power of the High Court, I shall vote for it, but, at the present moment, I am not fully assured in that regard. In fact, I am rather assured that we cannot do that except by a referendum and an alteration of the Constitution. I regret more than I can express that the original proposals made at the Convention by Senator Symon, and which I know from personal knowledge he did his very utmost to defend when the Constitution Bill was being enacted by the Imperial Parliament, were not adopted. I think that all Australia has cause to regret that those proposals were not adopted. If they were the law, we should not be in the mess in which we are to-day. I hope that something will be done which will get us back to that position, enable us to follow out our destiny without having reference to a Court beyond the water, and assist us to build up a High Court which will be satisfactory to the people throughout the Commonwealth, and fully capable of adjusting all differences between the Commonwealth and the States. 869 JPC Victoria Protectionist Vice-President of the Executive Council 1 0 BEST, Robert Senator BEST . - I am sorry that any little misunderstanding should have occurred to cause a degree of friction in regard to an adjournment of the debate. Senator McGregor must know that at all times I am anxious as far as possible to yield - as it is my duty to do - to any general expression of opinion when honorable senators desire further time for the consideration of a measure. The Bill before the Senate was introduced on the 12th July. In the meantime, there have been several adjournments of the debate, and these were all protested against. I was aware that there was, as the division list shows, a number of honorable senators who were desirous of going on this evening, and who, like my honorable friend, were ready to speak. In the circumstances, I had no alternative but to call for a division. Perhaps my honorable friend does not know that when Senator Symon resumed his seat shortly before the dinner adjournment, the motion for the second reading of the Bill would have been put but for an honorable senator rising to speak. I hope that the various speeches which have been delivered have assisted towards an elucidation of the question at issue. I do not deny its complexity. But I say that every care has been exercised in regard to the provisions embodied in the measure and in establishing, so far as research can do, their validity if passed. I want my honorable friends to realize that the two Bills have not been introduced in a haphazard way. Apart from the Attorney-General, we have in his Department officers of great experience, who, with other members of the Government, have given thoughtful consideration to nearly every objection, certainly to every fundamental objection, which 'has been taken by my honorable friends. I am prepared to acknowledge that we are indebted to Senator Symon for a very informative speech, and also for the interesting way in which he disclosed to us some of the more historical aspects of the case. Of course, it is with the greatest respect that I differ from my honorable and learned friend. He will recognise at once that there is the most ample room for a variety of opinions. 869 KTF 0 0 MCGREGOR, Gregor Senator McGregor - There is no doubt about that. 869 JPC 0 0 BEST, Robert Senator BEST - We have introduced the Judiciary Bill on no light authority. I have been reproached by Senator Symon - 869 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - No, not reproached. 869 JPC 0 0 BEST, Robert Senator BEST - I have been taken to task by my honorable and learned friend for pointing out that we have the authority of the High Court for introducing the measure. 869 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - No, the Government have only an obiter dictum. 869 JPC 0 0 BEST, Robert Senator BEST - I admit that we have the authority of an obiter dictum. But when gentlemen of great responsibility, such as the members of the High Court Bench, through the Chief Justice, with one Justice dissenting, suggest this proposed legislation as a way out of the difficulty, that in itself, I contend, is a guide to Parliament in its action. I have also another authority, to which I regret that my honorable and learned friend did not refer, and to which I shall be obliged to refer a little more fully. I have pointed out that to all intents and purposes the United States were practically met with the same complex problem at the outset of their national life. 870 KTF 0 0 MCGREGOR, Gregor Senator McGregor - How could they have been so met when they never had a Privy Council ? 870 JPC 0 0 BEST, Robert Senator BEST - I am talking about general principles. 870 KTF 0 0 MCGREGOR, Gregor Senator McGregor - There is no analogy. 870 JPC 0 0 BEST, Robert Senator BEST - In that country, when the States were met with an adverse decision in the case of McCulloch v. Maryland, in which the same principles were involved, the Congress resorted to exactly the same method as we are proposing. In my opening speech I quoted the legislation which was introduced and passed to meet the difficulty. It has been tested in several cases from time to time, and held to be perfectly valid. 870 KTF 0 0 MCGREGOR, Gregor Senator McGregor - But we shall still have the Privy Council to deal with. 870 JPC 0 0 BEST, Robert Senator BEST - My honorable friend fs making a mistake. Senator Symon and other speakers have said that the Judiciary Bill is futile. Perhaps, so far as some of my honorable friends are concerned, the attempt may be unsuccessful ; but, nevertheless, I shall try to show that we are acting carefully and within the powers of the Constitution. 870 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Does not the Minister think that this will depreciate the States Courts? 870 JPC 0 0 BEST, Robert Senator BEST - I shall try to deal with the points one after another if I can. My honorable and learned friend suggests that the Commonwealth Salaries Bill is ultra vires. Of course, if his contention is true, we are wasting time ; but I hope to show my honorable friends that there is a very valid constitutional reason for the exercise of our powers under the Constitution as we propose. Senator Symon suggests that the only alternative is an amendment of the Constitution. There is no doubt about that being a complete way of dealing with the question. There is no doubt that if there were no other way available that would be the proper course to follow. But I do not think that we are justified in resorting co that step when we have the right under the Constitution to do what we are now attempting to do. My honorable friends cannot get away from the fact that an alteration of the Constitution is a serious matter. It is serious from the stand-point of the expense, the delay, and the friction which will have been caused within the States by reason of the decision of the High Court. 870 KUL 0 0 MILLEN, Edward Senator Millen - But in the session of 1906 the Government did not think so, for they tried to pass three amendments of the Constitution. 870 K0F 0 0 PEARCE, George Senator Pearce - That was prior to a general election. 870 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - The Government acted then with a light heart. 870 JPC 0 0 BEST, Robert Senator BEST - My honorable and learned friend can hardly make that reproach against us, when I remind him that the Judiciary Bill is practically the first measure of this session. It must be remembered, too, that, during the session of 1906 there were very grave and important matters which occupied the close attention of Parliament. In those circumstances this measure was crowded out. 870 K0F 0 0 PEARCE, George Senator Pearce - Besides, I do not think that at that time the Privy Council had given its judgment. 870 JPC 0 0 BEST, Robert Senator BEST - For the moment, I do not remember the date of the judgment. I shall now try to deal with some of the main points which have been raised. I have pointed out that, as against an amendment of the Constitution, we have to consider the question of the expense, the delay, the irritation, and the loss of revenue to the States. Senator Symon said that in exercising our powers under the Constitution, as Parliament had the right to do, in a Judiciary Bill, it thereby disfigured the Constitution Act. 870 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - No, it disfigured the status which was intended to be given to the States Courts under the Constitution. 870 JPC 0 0 BEST, Robert Senator BEST - I shall take it in that way. The Judiciary Act was the subject of very careful research and consideration. What was done was done after great deliberation. By virtue of our constitutional powers we have the right to create, first, the High Court, which we have done. We have also the right to create our own Federal Courts. But we have the additional right, according to the terms of the Constitution, of utilizing the various States Courts as part of the Federal Judicature, for the purpose of exercising Federal jurisdiction. What we did by the Judiciary Act was, in terms of section 77 of the Constitution, to divest them of jurisdiction, so far as Federal matters were contained in the Constitution itself - namely, contained in sections 75 and 76 - and to invest them with Federal jurisdiction. In doing that, what we said was that when we were investing the States Courts with Federal jurisdiction we had the right to invest them with it upon our own terms, namely, that there should be a right of appeal only to the High Court itself. 871 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - From the Supreme Courts of the States. That is the provision which Mr. Justice Hodges said was ultra vires. 871 JPC 0 0 BEST, Robert Senator BEST - Yes. By section 38 of the Judiciary Act we gave exclusive jurisdiction to the High Court in certain matters. As regards the balance of matters contained in sections 75 and 76 of the Constitution, by the 39th section of the Judiciary Act we gave Federal jurisdiction to the States Courts, subject to the limitations as to appeal to which I have referred. The manner in which we did that was no doubt the subject of consideration by Mr. Justice Hodges, who held that we had no right, first of' all, to divest the States Courts of jurisdiction, and then practically to invest them with new jurisdiction. The Privy Council appeared to take the same view. I hope later on to refer to that point more fully. But I point out that when we -passed our ' Judiciary Act we had no idea whatever, and no one ever suggested, that we were attempting to humiliate the States Courts. I do not think that my honorable and learned friend Senator Symon, who gave us the benefit of his assistance, suggested that at any time. 871 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - I introduced a Bill two years ago to rectify it. 871 JPC 0 0 BEST, Robert Senator BEST - I am referring now to the discussions on the Judiciary Act when it was before the Senate. 871 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - The Bill which I introduced was one to amend -the Judiciary Act. 871 JPC 0 0 BEST, Robert Senator BEST - My honorable friend did introduce a Bill as a private senator two years ago. 871 K0F 0 0 PEARCE, George Senator Pearce - To prevent the High Court from perambulating. 871 JPC 0 0 BEST, Robert Senator BEST - That was one of the effects of the measure. The point that I am arguing is that it has been suggested that we have attempted by our Judiciary Act to humiliate the States Courts. I claim that we have done nothing of the kind. In the exercise of our Federal jurisdiction, we have done with the Slates Courts only what we were justified by the Constitution itself in doing, and never by the States Courts themselves, and never - speaking subject to correction - by any honorable senator when the Bill was before Parliament, was it suggested that we were humiliating the States Courts. I am verv sorry indeed that my honorable and learned friend saw fit to accept certain incautious words used by my honorable friend Senator McGregor to the effect that we were seeking to secure the supremacy of the High Court in a manner that was not straightforward. . I ask, " What advantage is it to the Government to do anything in this connexion to achieve the great end in view by anything but a straightforward method ? 871 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - What I meant was that the object of the Government is to render the decisions of the High Court final, and to prevent appeals from the Supreme Courts of the States. If that be the object, do it directly by an amendment of the Constitution, restoring the Constitution tq the position in which it was when it left the Convention, and do not do it by depriving the Supreme Courts of the States of their right to adjudicate in these matters. 871 JPC 0 0 BEST, Robert Senator BEST - I ask the Senate to do. nothing whatever but what we are authorized to do by the Constitution itself ; and if honorable senators will bear with me for a little longer, I will try to show them that the Constitution enables us to secure that finality that we all seek to achieve, and to rehabilitate and reestablish the High Court. We are called upon to exercise every power which the Constitution confers, and it is unreasonable to suggest that when we are only exercising the powers of the Constitution our doing so will cause humiliation to any other body. We are simply doing what we are authorized to do. 871 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Why take this jurisdiction away from the States Courts ? 871 JPC 0 0 BEST, Robert Senator BEST - Because the Constitution says that we can do it. 871 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - It does not say that we must do it. Why do it? 871 JPC 0 0 BEST, Robert Senator BEST - As it is the aim and spirit of the Constitution to secure finality in our own High Court, if the Constitution can, as I have pointed out, provide -a means whereby that can be done, why should we not exercise it? Are we not justified in exercising every power committed to us by the Constitution? In section 76 of the Constitution it is provided that - The Parliament may make laws conferring original jurisdiction on the High Court in any matter (i) arising under this Constitution or involving its interpretation. I hope honorable senators follow that. We have been given, by section 76, power to make laws conferring original jurisdiction upon the High Court in any matter arising under it or involving its interpretation. By the section 30 of the Judiciary Act we exercised that power, and conferred on the High Court original jurisdiction in regard to matters arising tinder the Constitution or involving its interpretation. We are given power by the Constitution expressly to make laws conferring original jurisdiction upon the High Court. The next thing that we did in our Judiciary Act was to exercise certain other powers which were conferred by section 77 of the Constitution. According to that section - . With respect to any of the matters mentioned in the last two sections the Parliament may make laws. The last two sections referred to are sections 75 and 76, one of which - section 75 - confers original jurisdiction in regard to five important matters upon the High Court. In pursuance of that section, and of paragraph II. of section 77, we, by section 38 of the Judiciary Act, gave exclusive jurisdiction to the High Court in regard to some of the matters mentioned in section 75 of the Constitution. Then, as regards the balance of the matters contained -in sections 75 and 76, we, by section 39 of the Judiciary Act, took away from the States Courts jurisdiction and 'substituted in its stead Federal jurisdiction. Now what are we doing by this Bill? Honorable senators will see that by clause 2 we simply provide that - In matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States;- so tha,t the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of appeal from an inferior Court. We give exclusive jurisdiction to our own High Court in regard to matters arising under section 74 of the Constitution - that is, constitutional matters inter se. 872 KUL 0 0 MILLEN, Edward Senator Millen - Who is going to determine when a constit'utional matter arises ? 872 JPC 0 0 BEST, Robert Senator BEST - I will come to that point by-and-by, but I must proceed step bv step with my argument. By clause 2 of the Bill before us we propose to give exclusive jurisdiction to the High Court in all matters coming under section 74 of the Constitution ; and we exercise that power in pursuance of section 77, paragraph II., which says that, with respect to any matters mentioned in the last two sections, the Parliament may make laws - Defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States. I hope that my honorable friends realize that, so far, we have simply followed the wording of the Constitution itself in carrying out the powers conferred upon us. But then it may be said that difficulties may arise, as in the case of Webb v. Outtrim. We meet them by clause 5 of the Bill providing that - After section 40 of the principal Act the following section is inserted - 40A (1) When in any cause pending in the Supreme Court of a State there arises any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, it shall be the duty of the Court to proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed to the High Court. 872 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - But suppose the Court decides to proceed with the case? 872 JPC 0 0 BEST, Robert Senator BEST - In other words, if any question arises in the course of any procedure under section 74 of the Constitution, then, by virtue of this measure, that question will be at once removed to the High Court. 872 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - How can it -be? Who is to decide that such a question has arisen? It cannot automatically decide itself. 872 JPC 0 0 BEST, Robert Senator BEST - Undoubtedly. If as in many other cases which may be brought to mind a question is bond fide raised as to constitutional powers, then automatically ' a removal takes place. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Then it is left to the defendant to remove any case he likes by simply pleading that it is a constitutional case? 873 JPC 0 0 BEST, Robert Senator BEST - Take the procedure in an inferior Court when a question of title arises. If that question of title is bond fide raised the jurisdiction of the Court at once ends. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Somebody must decide the 'bona fides first. 873 JPC 0 0 BEST, Robert Senator BEST - Undoubtedly. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - The inferior Court must decide that. 873 JPC 0 0 BEST, Robert Senator BEST - If it is bond fide raised. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Suppose the inferior Court says that it is not bond fide raised. What becomes of the case then ? It would not be removed. 873 JPC 0 0 BEST, Robert Senator BEST - Section 5 of the Constitution provides - and honorable senators will remember that the responsibility, is thrown on the States Courts of observing the Constitution - 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - They have nothing to do with it. It is automatically removed. 873 JPC 0 0 BEST, Robert Senator BEST - Perhaps the honorable and learned senator will permit me to continue. Section 5 of the Constitution provides that - This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of the Commonwealth, notwithstanding anything in the laws of any State ; and the laws of the Commonwealth shall be enforced on all British ships - and so on. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - I think we shall have tb amend that section. 873 JPC 0 0 BEST, Robert Senator BEST - My honorable friends will see that' unless they are going to attribute mala fides to our 'Judges- 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - No, no. 873 JPC 0 0 BEST, Robert Senator BEST - Unless they are going to attribute mala fides to our Judges, there can be no doubt that those Judges, if a question of constitutional powers was raised bond fide in a case, would observe the Commonwealth law which would automatically remove the action to the jurisdiction of the High Court. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Suppose the defendant raises the question of mala fides t 873 JPC 0 0 BEST, Robert Senator BEST - Then it would be for the Court to say. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Which Court ? 873 JPC 0 0 BEST, Robert Senator BEST - If the Judge of a Supreme Court is not satisfied that the question is raised bond fide, I have a sufficiently high opinion of the Judges of our Supreme Court-- 873 K7V FT; ANTI-SOC from 1906 0 0 SYMON, Josiah Senator Sir JOSIAH SYMON - That is not my point. I suppose that the defendant raises the question of mala fides. 873 JPC 0 0 BEST, Robert Senator BEST - If he did, no doubt the case would go on. But my honorable and learned friend must leave it to the Judges of the Court, who will exercise an honest, and, I trust, a judicial judgment in a matter of this kind. 873 KUL 0 0 MILLEN, Edward Senator Millen - As the Victorian Court did? 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - As Mr. Justice Hodges did. 873 JPC 0 0 BEST, Robert Senator BEST - I am not for a moment imputing anything to Mr. Justice Hodges in this connexion, but I repeat that if a question is raised bona fide, as to the constitutional powers, then at once the case must go to the High Court. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - It cannot go automatically because, as the honorable and learned senator admits, some one must say whether the question is raised bond fide or not. 873 JPC 0 0 BEST, Robert Senator BEST - By virtue of this Bill, it would go to the High Court. 873 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Only if the inferior Court decided that it was bond fide raised. 873 JVC 0 0 DOBSON, Henry Senator Dobson - Only if the State Court so decided. 873 JPC 0 0 BEST, Robert Senator BEST - I also point this out as something which must be borne very carefully in mind. If the Attorney-General of the Commonwealth or the Attorney-General of a State makes an application for the removal of any pending action to the High Court, an order may be made by the High Court for its removal. I will go further and say that if any person makes out a just case, and shows special reasons why a case should be removed to the High Court, it is competent for the High Court to order that it shall be so removed. 873 K78 0 0 ST LEDGER, Anthony Senator St Ledger - In those circumstances the High Court is constituted the judge of both bona fides and mala fides. 873 JPC 0 0 BEST, Robert Senator BEST - In those circumstances it undoubtedly is. So that there is first of all to be considered the honesty of the Supreme Court Judge, and secondly, if there is any doubt in the matter there is the power of the Attorney-General of the Commonwealth, or the Attorney-General of a State, or any person upon showing good cause, to secure an order from the High Court to have a case removed. This power of removal is simply incidental to the appellate jurisdiction. It is incidental to our exclusive jurisdiction given by section 77 of the Constitution. My honorable friends will see the complete manner in which we provide that cases invoking the Constitution shall go to the tribunal to which it was originally intended they should go, namely, the High Court. 874 JVC 0 0 DOBSON, Henry Senator Dobson - Might 1 ask the honorable and learned senator if he has said anything to show that what has already happened may not happen again? Mr. Justice Hodges may again find that a case before him does not raise the constitutional question, the Privy Council may agree with him, and the High Court may differ from the Privy Council. 874 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - That might happen. 874 JPC 0 0 BEST, Robert Senator BEST - I have already pointed out first of all that if a question of the constitutional powers inter se is bond fide raised, the Judge of the Supreme Court would himself order it to be removed to the High Court. 874 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Suppose he differs from the High Court, and says that the question raised is not a constitutional question, as Mr. Justice Hodges did? 874 JPC 0 0 BEST, Robert Senator BEST - Then I have already told my honorable friend that it would be competent for the Attorney-General of the Commonwealth or of a State to make an application to the High Court and secure an order for its removal, and it would also be competent for any party to the action, or any other person, on showing good cause, to secure such an order for removal. 874 JVC 0 0 DOBSON, Henry Senator Dobson - Is the Attorney-General then to be the judge of the matter? 874 JPC 0 0 BEST, Robert Senator BEST - No ; it is the High Court that is to be the judge, and that i« the object we have in view. 874 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - That would not prevent the appeal going on to the Supreme Court of the State. 874 JPC 0 0 BEST, Robert Senator BEST - Certainly it would, where a question of constitutional powers was raised. 874 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - But if the State Court decided that no such question had been raised, the appeal would go to the Privy Council, and an application to the High Court would not prevent that happening. 874 JPC 0 0 BEST, Robert Senator BEST - My honorable and learned friend is assuming thai Parliament having by this new legislation made provision in the terms of the Constitution for the removal of these particular cases in the circumstances I have referred to, the Supreme Courts of the States will not observe the law, although they are commanded to do so by the terms of the Constitution. 874 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - I quite agree that that is so where it is decided that a constitutional question is bond fide raised > but what happened before may happen again. 874 JPC 0 0 BEST, Robert Senator BEST - My answer is the one I have already given, that by the terms of this Bill that cannot happen again. 874 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Certainly it can. I wish only to assist the honorable and learned senator, in view of the Bill going into Committee. He has himself admitted that the constitutional question must be bond fide raised. If it is raised, somebody must decide whether it isbond fide or not, and if Mr. Justice Hodges, or any other Judge, decides that it is not bond fide raised, we shall be ir» exactly the same position as before. Senator BEST. - Not at all; that is where my honorable and learned friend is. wrong, if he will forgive me for saying so. I say that if the question is bona fide raised, the Judge of the Supreme Court must, and will, see that the case is sent on to the High Court. 874 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - I agree with that statement. 874 JPC 0 0 BEST, Robert Senator BEST - If it is not bond fide raised, it will be competent for the Attorney-General of the Commonwealth or of a State to secure an order, as of course, for its removal, or it will be competent for any party to the suit to make application to the -High Court for such an order, and on good cause shown, an order will be made by the High Court commanding that the case shall be removed to the High Court. 874 K0F 0 0 PEARCE, George Senator Pearce - Notwithstanding the decision of the Judge of the State Court ? 874 JPC 0 0 BEST, Robert Senator BEST - Undoubtedly. ' It is in the exercise of the terms of the Constitution, which gives us exclusive power if we choose to exercise it, and I say that if we. had exercised this exclusive power in section 38 of the Judiciary Act, the case of? Webb v. Outtrim could not have been sent to the Privy Council at all. Senator Millen was the first on the other side to raise the question as to who was to decide what are questions inter se. In this matter, I think that my honorable friends opposite are magnifying the difficulty unconsciously, because the answer is so obvious. 875 KUL 0 0 MILLEN, Edward Senator Millen - Does the honorable and learned senator say that it is obvious ? 875 JPC 0 0 BEST, Robert Senator BEST - Yes. 875 KUL 0 0 MILLEN, Edward Senator Millen - Then either the Privy Council or the High Court must be very dense. One tribunal said that it was obvious that a certain matter was a constitutional matter, and the other said that obviously it was not. 875 JPC 0 0 BEST, Robert Senator BEST - The honorable senator will pardon me. The High Court did hold that in the case Webb v. Outturn, questions inter se were involved, but, although I have looked carefully through the judgment of the Privy Council, I find no evidence whatever that they decided anything of the kind. 875 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - They must have held that the case was rightly before them under section 74. 875 JPC 0 0 BEST, Robert Senator BEST - I do not think that they held anything of the kind. All that they decided was that Mr. Justice Hodges had held that the Commonwealth Parliament had not the power to take away the jurisdiction under sections 75 and 76, and substitute Federal jurisdiction in its stead, with the right of appeal. In that case, an appeal was permitted from the State Court to the Privy Council, and all that the Privy Council held was that Mr. Justice Hodges was right in the view he took that the Federal Parliament had not the power of divesting and then investing; but not one word appears in the judgment of the Privy Council to show that they decided that these were not questions inter se. That is the position which my honorable friends opposite must face. In this connexion, I point out as to section 39 of the Judiciary Act, limiting the right of appeal so far as the exercise of Federal jurisdiction is concerned, that four of the Judges of the High Court held that the exercise by Parliament of that power of limiting the right of appeal was absolutely sound and good in law. I am at a loss to understand why honorable senators should be anxious to get away from the judgment of men in whom we have confidence, and who, by their legal erudition and research, have upheld the dignity of Australia and the best traditions of the English Bench in our own High Court. These men held, as I have explained, that this Parliament was right in exercising its right of limiting appeals in the way it has done. The Privy Council thought otherwise, but as to questions inter se arising the point was not dealt with by the Privy Council at all. I have already expressed the disappointment I feel in this matter that the High Court, having decided that in these income tax cases questions of constitutional powers inter se did arise, their judgment should not have been accepted as the Australian law, and respected accordingly. In leaving this Bill for the present, I will only say that we have not attempted to touch section 39 of the Judiciary Act, because it was not necessary for our purpose to do so, since we are quite content with the High Court judgment in that regard. But what we have done is to exercise other powers, and secure exclusive jurisdiction, which we are enabled to secure under section 76 of the Constitution, to which I have already referred. I ask my honorable friends opposite to look for a moment at section 74 of the Constitution. 875 K6M 0 0 CLEMONS, John Senator Clemons - Is the honorable and learned senator going to deal with the question of appeals from a single Judge? 875 JPC 0 0 BEST, Robert Senator BEST - I have not come to that yet. 875 K6M 0 0 CLEMONS, John Senator Clemons - I ask the question because the honorable and learned senator proposes to refer to section 74 of the Constitution. 875 JPC 0 0 BEST, Robert Senator BEST - I ask my honorable friends opposite to read that section. They will have no difficulty in gathering from its spirit, at all events, that the anxiety of Parliament was to secure the finality of our own High Court. The section reads - No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question - I ask my honorable and learned friends opposite to mark the word "decision." It has been the subject of very great contention, and also of a judicial interpretation. I point out that a decision does not mean a mere judgment in a case, but means any judgment which has taken place on any particular question. 875 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Surely it means the judgment on the point? 875 JPC 0 0 BEST, Robert Senator BEST - No, if my honorable and learned friends will pardon me. I refer them to page 52 of the published judgments of the High Court. I have not had an opportunity to very carefully read those judgments, but in glancing through them in the limited time at my disposal I came across this important passage in the judgment delivered by Mr. Justice Isaacs - The decision of the High Court upon any question - Honorable senators will observe that His Honour was quoting the words which appear in section 74 of the Constitution - in that section means in my .opinion what the Court decides to be the law with regard to that question. So that any decision on any particular question which may be regarded as a preu cedent laying down the case law on the subject comes within the meaning of the word " decision " in section 74 of the Constitution. Consequently., with that interpretation honorable senators will see that section 74 says - No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question - mark these words - howsoever arising - Senator Symon will see, in the light of what I have already said, that if it was a question "howsoever arising" - a mere question that occurred in any case - it would inevitably, by the terms of this Bill, if it came before the Supreme Court, find itself ultimately removed to the High Court. Section 74 goes on - as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. Then the certificate has to follow. In this connexion Senator SymOn sought to differentiate between our High Court and the Supreme Court of the "United States. There may be differences, but there is no difference i'n this connexion. While it is possible that the High Court does not possess the whole of the powers of the Supreme Court of the United States, although it does possess nearly all of them, it is clearly appointed by this section as the Court to interpret questions as to the limits inter se of the constitutional powers of the Commonwealth and the States, or of the States as between themselves. That is the important factor that we want to make absolutely certain of. Those are the terms of the Constitution which I have already referred to, which enable us to carry out section 74 in its full meaning and in accordance with its spirit. I come now to the Commonwealth Salaries Bill, which my honorable friend Senator Symon said would be held to be ultra vires. That was his general criticism of the measure, but he also went on to doubt the capacity of the Senate to entertain it at all, because he suggested that it was a taxing measure. I submit with, great respect, that there is not one trace of a taxing measure about it. It is a declaratory measure. All that it attempts to say is that if the States choose to exercise their rights of taxation under certain circumstances, then they are at liberty to do so ; in other words, that we are not going to interfere. But as for putting a tax on anybody by this Bill, we do not attempt anything of the kind. We simply say that if the States choose to exercise taxation on the salaries of officers of the Commonwealth, it shall not be taken - To be an interference with the exercise of any power of the Commonwealth, or to be inconsistent with any Act by or in pursuance of which the salary is fixed or made payable. 876 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Without that Bill would they be liable or not? 876 JPC 0 0 BEST, Robert Senator BEST - My honorable and learned friend knows that as the law now stands - I want to impress this upon honorable senators, because it will show them their responsibilities - if the Commissioner of Taxes of Victoria were to sue an officer of the Commonwealth, and the Supreme Court followed the Privy Council, as no doubt it would, it would then be competent for the officer to appeal to the High Court, when he would be held to be immune from taxation. If, on the other hand, the Supreme Court followed the High Court, it would-be competent for the Commissioner of Taxes to go to the Privy Council, which would declare that the officer was subject to taxation. That is the difficulty which we are in, and which we have to overcome with the least possible delay. It is with that object that the Commonwealth Salaries' Bill is submitted. 876 K78 0 0 ST LEDGER, Anthony Senator St Ledger - The Bill, as it stands, simply asserts a negative. 876 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Does it not impose a liability? 876 JPC 0 0 BEST, Robert Senator BEST - If that Bill is passed the States will be at liberty, subject to certain restrictions, to impose taxes Upon. Federal officers. My honorable friend also raised to that Bill the objection that it humiliates the High Court by declaring the Privy Council decision to be right. I submit that it does nothing of the kind. All that it says is that we acknowledge the law' as laid down by the High Court that the State has no right to tax, but we claim, as Senator Symon well argued, that that would create a privileged class. Therefore, so that a privileged class may not be created, we bring in a Bill, which practically foregoes or waives the Commonwealth exemption which was established by the High Court. 877 JVC 0 0 DOBSON, Henry Senator Dobson - It is not a Commonwealth exemption. It is an individual exemption. 877 JPC 0 0 BEST, Robert Senator BEST - No, it is a Commonwealth exemption, because the High Court, in their anxiety to protect all Commonwealth agencies, were fearful that this particular taxation by the State might interfere with the transaction of Commonwealth business and the free exercise of Commonwealth powers, and, in their jealous regard for those powers, they held that Commonwealth officers could not be so taxed. We are not disputing their law at all, but we are waiving the Commonwealth exemption which was thereby created. I have pointed out, first of all, that we have the direct authority.-, of, and, indeed, the suggestion, of the High Court" for this legislation. I am sure honorable senators will not lightly disregard that feature. What we seek to declare by the terms of the Salaries Bill is that . where the Federal Legislature authorizes or permits State legislation it cannot be fettered or controlled by it. I do not feel justified at this late hour in quoting passages at length, as I did in my opening remarks on the 12th instant, to show the difficulties that the people of America were met with in this connexion, and to point out that, when by the decision of Chief Justice Marshall, in McCulloch v. Maryland, certain Commonwealth agencies were relieved of taxation in precisely the same circumstances as exist here now, the Congress of America enacted a law similar to what we are now proposing. My authority for this Bill is, first of all, the authority of our own High Court, and, secondly, what was done under the American Constitution, which, to all intents and purposes, is the same as ours. That- same law as enacted by Congress has been tested year after year in the- Courts, and I have set forth various authorities showing where it has been tested. The last case cited by me was in 190 1. It was there referred teas sound and good law, on the general principles then laid down. Senator Millen said that it would still be competent for the Victorian Commissioner of Taxes to tax Federal members under that Bill. Of course honorable senators know the limitations of the Bill. I know that it is a. controversial question whether the allowances of members of this Parliament should be taxed, but it will no doubt be fully discussed in Committee, and possibly amendments may have to be considered in that connexion. The point that Senator Millen made was, that .it would still be competent for the Commissioner of Taxes for Victoria to seek to recover from Federal members taxation on the income earned in Victoria. I have already pointed out that if that was attempted the Supreme Court of Victoria would, no doubt, follow the decision of the Privy Council, and then, by going to the High Court, we should be relieved. 877 KUL 0 0 MILLEN, Edward Senator Millen - The honorable senator admits the prospect of further litigation, then ? 877 JPC 0 0 BEST, Robert Senator BEST - It is quite impossible to pass an Act of Parliament to say that there shall be no litigation, but persons are not going to litigate without some reasonable expectation of success. The answer to Senator Millen's contention is that if any attempt of the kind is made this -Bill automatically removes the case to the High Court, and protection is thereby given. I should have liked to deal more fully with the question of implied power. Senator Symon referred to the implied powers of America, as established by case law, the value of which no one can deny. 877 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - That question is not in issue now. 877 JPC 0 0 BEST, Robert Senator BEST - It is hardly in issue, and therefore I shall not deal with it at this stage, further than to say that there can be no reasonable doubt within this Senate as to the implied powers under the Constitution, which are essential to its effective carrying out. I have endeavoured to show honorable senators that, in this Bill, we are simply exercising constitutional powers. We are called upon to exhaust our Constitution before attempting any amendment of it. 877 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Will the honorable senator be disposed to introduce any amendment with regard to the question of appeals from a single Judge of a State Court direct to the High Court? 878 JPC 0 0 BEST, Robert Senator BEST - I shall be perfectly frank with my honorable friend. That question has not been considered by the Cabinet, and in those circumstances I do not feel justified in making any statement on it. But, of course, I cannot ignore the fact that it has been referred to so strongly and ably by several honorable senators. I submit that the Bills now before the Chamber have for their object the establishment of finality on the part of the High Court, that we are doing this in terms of the Constitution, and that we are called upon to exhaust our Constitution first. 878 JXJ 0 0 NEEDHAM, Edward Senator Needham - Knock the Privy Council out - that is all we want. 878 JPC 0 0 BEST, Robert Senator BEST - I contend that we can do that in terms of the Constitution, and we do it by this Bill. I have shown the authority that we have for waiving the Commonwealth exemption, to which I have already referred, and in those circumstances I commend these Bills to honorable senators in the performance of a grave and important public duty for favorable consideration, feeling conscious that they will carry out their object. 878 K7V 0 0 SYMON, Josiah Senator Sir Josiah Symon - Before the question is put, may I ask whether we shall divide upon the Bills together or separately ? 878 JPC 0 0 BEST, Robert Senator BEST - We shall take the division on the Judiciary Bill first, and then go into Committee on it. After that, of course, the other Bill will come on in the usual way. Question - That the Bill be now read a second time - put. The Senate divided. 18 14 Majority ... ... 4 AYES NOES Question so resolved in the affirmative. Bill read a second time. In Committee : Clause 1 agreed to. Progress reported. 878 bill Order of the Day called for the resumption of the debate, adjourned from 12th July (vide page 500) on motion by Senator Best - That the Bill be now read a second time. Question put. The Senate divided. 19 13 Majority ... ... 6 AYES NOES Question so resolved in the affirmative. Bill read a second time. Clause 1 agreed to. Progress reported. 879 adjournment 879 Motion (by Senator Best) proposed - That the Senate do now adjourn. 879 KUL New South Wales 0 0 MILLEN, Edward Senator MILLEN . - I desire to ask the Vice-President of the Executive Council a question in regard to a measure in which most honorable senators have taken considerable interest, and that is whether he can fix a date that will be convenient to him on which a determination may be arrived at regarding the Kalgoorlie to Port Augusta Railway Survey Bill? 879 JPC Victoria Protectionist Vice-President of the Executive Council 1 0 BEST, Robert Senator BEST . - I very willingly fall in with my honorable friend's suggestion - which, of course, can Only be carried out with the good-will of honorable senators - that a date should be fixed for taking a division on the Bill. I would suggest that the division should take place not later than 3 o'clock on Friday week. 879 K6M 0 0 CLEMONS, John Senator Clemons - Not before Friday week? 879 JPC 0 0 BEST, Robert Senator BEST - Not before Friday week, but not later than 3 o'clock on that day. 879 K6M 0 0 CLEMONS, John Senator Clemons - On the Friday ? 879 JPC 0 0 BEST, Robert Senator BEST - At any time between half-past 10 o'clock and 3 o'clock on that day. Question resolved in the affirmative. 879 22:30:00 Senate adjourned at10.30 p.m.