THE FEDERAL JUDICATURE

Evening Star, Issue 11251, 26 May 1900, Page 1

THE FEDERAL JUDICATURE

’ #ul amount of balderdash ha ß *beeh spi md written concerning the supposed effc'r ...the judicial provisions of the Fcderetmn Jeme upon the Imperial relationship. We are sorry to say that an undue proportion of this Unsound- argumentative stuff has emanated from Ne* Zealand, where it has largely been the result of a jealous and irritable -feeling relative to the prospective final success of the Australian Federation movement, in regard to which this Colony has made such a deplorable mistake. Under..,, these circumstances Sir Robert Stout has '; done a public service by exposing the fallacy of the timorous or prejudiced argument* that have been advanced by those who affect to have such a sacred respect for the Imperial union that they cannot trust the colonial Judges with the task of settling colonial disputes. The Chief Justice’s lucid and valuable paper on ‘ The Judicature Proposals of the Australian Commonwealth Bill’ appeartd in the Christchurch ‘Press’ of Wednesday last—a day after the arrival of the news of the agreement between th? Home Government and the Federal delegates; but it bears the date of five days earlier, and evidently it was not altered on receipt of the news. We shall have a word to say about the agreement later on: meanwhile we wish to' draw attention to some of the principles laid down in the Chief Justice’s paper. After explaining the nature of the. present right of appeal to the Privy Council Sir Robert truly observes that “this right of appeal is slow and costly, and it is not surprising that tho Australian people desire the right to be much restricted.” He holds that the proposed limitation of appeals in commercial cases is practically more important than that in constitutional cases, because in these latter cases the Federation Bill does not really give the High Court of Australia as much power as it seems to give. . A* the Queen, on the advice of her Advisors m Britain, may veto Acts passed byboththe Commonwealth and the States, the full power of declaring . State laws or Commonwealth Acts ultra vires does not rest with the High Court. If the High Court was to be the sole guardian of the Constitution there should have been no power of veto in the Queen on the advice of her Home Ministers. Sir Robert regrets that this large question was not fought by the Federalists, rather than the lesser one whether the Privy Council should be allowed to decide as to the constitutionality of a law. He has more confidence in the judgment of the Privy Council on such matters than in that of the Queen’s politic! advisers. In fact, our Chief Justice is more radical in his general view of the subject than tho most thorough-going Aus- ■ tralian Federalists.

I think the Australians should have been bold enough to hare claimed that none of their laws could be vetoed by Her Majesty unless Imperial interests were directly involved. Ibis would have been logical. As the proposal stood when he wrote, Sir Robert, therefore, did not think the limitation of constitutional appeals likely to bo of much avail; and we may remark that the settlement, as reported by cable, appears to lessen still further the Imperial power. In regard to that portion of section 74 of the Enabling Bill which gives the Federal Parliament power to limit, the matters 'in which leave to appeal to the Privy Council may be allowed, Sir Robert ipakos very little of the protests that have been entered. He pooh-poohs tho notion that mercantile men, bankers, companies, etc., have anything to fear from the proposal, and pertinently asks why commercial cases should be hung up for twelve mouths to be retried by Judges in England. The following words are very much to the point, and (it seems to us) absolutely incontrovertible: If the colonies can be trusted to make laws, having unlimited, power to put an end to private contracts, and to deal with private property, why should then the Judges not be trusted to decide cases between the citizens of the Commonwealth? Are the Judges less able than the politicians to act justly? This is really the most important point of the whole controversy this question whether the colonial Judges are to be duly honored and trusted or slighted and belittled. To us it seems simply preposterous that capable, experienced, and trustworthy Australian Judges—for tho most part every whit as able and accomplished as their English contemporaries—should be told that their decision on an ordinary Australian lawsuit need not necessarily be taken as final, if the amount involved be over £SOO and the parly against whom judgment has gone chooses to take hia case to London. Again to quote Sir Robert Stout: The Commonwealth must fed that it is a nation, and can perform all the high duties belonging to a Commonwealth. Its Judges should be, and would be, as able to administer justice as the members of the Judicial Committee,

It is said that the limitation, of appeals would tend to divide Australia from the Mother Countiy and impair the Imperial unity. The Chief Justice of New Zealand ridicules this . contention with merited severity. He waxes almost eloquent in exposing its absurdity. Who has ever in New Zealand been affected in his love for the Empire by the fact that about two appeal cases in a year from New Zealand are heard by the Judicial Committee of the Privy Council? That is not what makes-us remember that we are citizens of the Empire. There are silken cords that bind us to our Motherland that are stronger than any such links. . . . Our patriotism is not kept alive by appeals to the Privy Council. There is a love for our Empire and our race that needs no such links to preserve and maintain it. This is the irrefutable answer to make to those futile complainants who ask Australians why they choose this great season of Imperial solidarity and enthusiasm for the presentation of their “ separative ” demands! The Imperial union that depended on a few appeals to the Privy Council would not be worth preserving Many other judicial matters are treated in Sir Robert Stout’s paper (of which we do not pretend to have given a summary), and it may bo that his contentions are not invariably as sound as in the instance just discussed. For instance, wc are not at all sure as to the wisdom of his recommendation that New Zealand should have the “advantage” of having appeals from its Appeal Court heard by the High Court of Australia—that is, while New Zealand is outside the Federation. Sir Robert thinks that such an arrangement would keep this Colony in touch with tht Australian. Continent, “ even if we are not ready for federation ”; but the practicability of the idea is open to question. From a general point of view it is, of course, a good thing that the Home Government and the Federal delegates have arrived

afe .a settlement regarding the points in dispute, but that the settlement itself is satisfactory, or likely to be permanent, we are far from being convinced. The import of the changes appears to be the taking of power from the Judges and giving it-to the politicians—the Very tendency which Sir Robert Stout deplores in regard to the original provisions of the Bill, According to the cabled account of the accepted amendments: All are now willing to. remodel clause 74, making the Federal Court’s decision final in cases involving the constitutional powers of tho Commonwealth and States, or the powers of two or more States, unless the Governor-General or State Governors, with the consent of the Federal Executive, agree in writing to appeal to the Imperial Court. Provision is made in the final section of the original clause to reserve for the Queen’s assent any future Bill for limiting appeals. This last provision—the reservation of any Bill limiting appeals for the Queen’s absent —-seems to be simply tantamount to shelving the question, perhaps for sharp contention when such a Bill has been passed by the Federal Parliament. And, as regards constitutional appeals, tho effect of the alteration is simply to accentuate the political, as opposed to tho judicial, element in the decision as to whether appeals should be granted. This is surely a step backwards. The annual meeting of the Otago branch of the New Zealand Educational Educational, Ilwtilu . tc . veHl ’ !>eld at an earlier date than usual. Lust year it was agreed that, in order to enable country teachers to take advantage of cheap railway fares, the meeting should be held during the week of the winter show, which formerly took place about the middle of June. For what they no doubt thought good and sufficient reason, the Show Committee changed their dales to Queen’s Birthday week. This somewhat upset the Institute’s arrangements, the consequence being that quite a, number of the city and suburban schools remained open, and the attendance of teachers at the annual conference was not quite as satisfactory as iu former years. It'is more than probable that tho Committee of Management will revert to their old date, the beginning of July, and will endeavor to make arrangements with the Minister of Railways to allow teachers attending the annual Conference at that date to travel at excursion rates. Though the attendance was, not as largo as in former years, it was thoroughly representative of all classes of teachers, and much important business was transacted. The presidential address by Mr Elidev was jn every way excellent, and showed much thought and careful preparation. ‘The Making of Teachers ’ was the subject of the address, and the paper is worthy of thoughtful perusal by the teachers of Otago. We trust that the freedom of classification recently granted to teachers will, in some degree, enable them to aim at reaching the ideal set up by the writer of the paper. When tho present syllabus has been modillsd so as to suit the more up-to-date ideas of what primary education should be, teachers will have still more freedom to study and make use of the best and most scientific methods of teaching the proscribed subjects. The paper on ‘ Physical Education ’ by Mr J. W. Smith was must timely. This branch of education Ims not, in the past, received the attention its importance deserves, and in future increased- attention will have to be paid to it. Mr Tyndall s paper on ‘ Rifle-shodting in (Public Schools contained many suggestions as to the forming of clubs for the practice of rifle-shooting among tho older boys in our primary schools. The formation of cadet corps and the encouragement of rTflcthooting have received great attention from tho Victorian Education and Defence Departments, and the progress made in these directions during the last few years is very remarkable. , Wo plea.sed to notice that the Branch affirmed the principal of a colonial scale of salary for teachers. This will strengthen the Minister’s hands in dealing with this important matter. We congratulate members on the progress the Institute is making. f lhe membership throughout the colony now stands at considerably over one thousand, and the balance to the credit of tho general and the legal defence funds now amounts lo over £4OO. The matter of the payment of fees for secondary education at our District High district high schools is so Schools. closely related to the payment of teachers’ salaries that we ere of opinion the Education Board would have acted wisely had they passed the motion proposed by Mr T. Mackenzie to rescind the resolution of March 15 regarding the imposition of a higher scale of fees. It is well known that the Minister of Education has in hand the preparation of a colonial scale of staff and of salary, wliich he has undertaken to lay before Parliament during the approaching session. This scheme may hiaterially affect the position of district high schools, and under the circumstances it would have been safer to have reverted to the status quo until the bearing and scope of the Government proposals were fully explained. It may then be found that a suffifciently liberal staff and scale of salary may have been allotted to all such schools to allow of the remission of fees altogether. The experience of the past seems to have been that, though the fees charged have been low, and, as Mr Harraway said, there has in consequence been a direct incentive to head-masters to remit them, yet parents have not taken advantage of the seconda.ry education provided in these schools to the extent anticipated. But will not the increased fees cause a reduction iu the already too small number of pupils receiving secondary education in our district high schools? The tendency of the age is undeniably to tuake nfl education—primary, secondary, and university-free to all capable of taking advantage of it; to dovetail the primary into the secondary and the secondary into the university; to weed out tho incapables at teach successive stop. In future, we hope, the education given in our primary schools will be more thorough than it has been in the past. The standard of exemption has just been raised to the Fifth ; we are not at all certain that it, will not require to be carried a stage further. Only the very best of our boys and girls will gain the certificate for the Sixth or leaving standard. As to tho curriculum of these district high schools, we are in thorough accord with ■Mr Mackenzie that tho secondary work will have to be specialised and bear close relationship to the industries or manufactures of the particular locality. What can be done in this direction has been demonstrated at Milton and Lawrence, and it is entirely the Boards fault if similarly satisfactory results are not obtained in other district high schools, or wherever such institutions may be planted in future. For our own part, we hope that the day is not far distant when the brightest of our boys and girls, who have won their spurs in the primaries, who desire to obtain the benefits of secondary education, shall be able to do so without any cost whatsoever to their parents; and that those pupils who pass through these secondary institutions and show marked ability and capacity for study shall have placed' (ready to their hands the facilities for higher education. Our aspirations are, and have .ever been, for absolute equality of opportunity for aU— ft. gnaJ quly. pbiwjnabfa by tbq

abolition of all fees. It will have been remarked that Mr Mackenzie’s motion was negatived on the casting vote of the Chair, man, who felt obliged to exercise Ins casting as well as his deliberative-vow. Mr Harraway was quite entitled to do so, but we regret that he did not see his way to leave so important a matter open (and so have followed the usual course) until there was a full Board. in this, connection, a sense of public duty compels us to call attention to the continuous absences of Mr Kyle, who may now be said to be the sole representative of City school interests, for the chairman is rather a suburban member. The mistaken and mischievous agitation of last year has robbed the City schools of their just proportion of representation on (he Board. It may prove to be for the ultimate benefit of education in this district, but ws have grave doubts on the point, and. shall be most agreeably surprised if the interests of the City schools are in future as carefully guarded by the country part}' as were country interests when the pendulum of representation swung the other way. Be that as it may, the fact is that under existing conditions the country representatives have an overwhelming majority on the present Board, wherefore it behoves the solitary town member to be assiduously at his post when questions of the utmost importance, especially as these can be raised (it appears) without previous notice, are brought on ilia board. If Mr Kyle's private interests are so pressing that lie cannot regularly attend the Board’s ordinary meetings he ought, it seems to us, to make way for someone who Ims the requisite time to spare.