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Tuesday, 17 March 1987
Page: 913


Mr SPENDER(4.30) —I think that it will help if I trespass somewhat on to the other provisions of the Jurisdiction of Courts (Cross-vesting) Bill simply for the purpose of dealing expeditiously with the main point. The Opposition must move for the purpose of achieving that point a number of amendments to this Bill, and it is unnecessary to speak on each amendment. It is better to speak now and to outline our case.


The DEPUTY CHAIRMAN (Mr Blanchard) —I think a precedent has been set and I am sure that the Minister is agreeable.


Mr Lionel Bowen —Yes.


Mr SPENDER —It is a simple position. We commend the Attorney-General (Mr Lionel Bowen) for bringing in these Bills, at least so far as the general cross-vesting proposal is concerned. We take the view, however, that the Government should go further. While what is being done by the cross-vesting proposals is a good measure to overcome jurisdictional difficulties, it contains within it certain provisions which would reserve specialist jurisdictions. Our view, a view taken many years ago by that very great jurist, Sir Owen Dixon, is that there should be full integration between the courts. I remind the House again of what Sir Owen Dixon said when he was sworn in as Chief Justice of the High Court of Australia and when speaking of the way in which our Federal Constitution has divided judicial power between State and Federal courts. After referring to the fact that the High Court stands at the peak of the appellate jurisdiction, he said:

In saying that this represents simply the appellate tribunal and the tribunal for Federal questions in the judicial system of the Commonwealth, I do not overlook the distinction which we unfortunately maintain between State and Federal jurisdiction. This is an eighteenth century conception which we derived from the United States of America in the faithful copy which was made of their judicial institutions. It is to be hoped that at some future time it will be recognised that under the English system of law, the British system of law which we inherited, the whole body of law is antecedent to the work of any Legislature and that-

and I stress these words-

the courts as a whole must interpret and apply the whole body of law, so that there should be one judicial system in Australia which is neither State nor Commonwealth but a system of Australian courts administering the total body of the law.

I understand that the Government has to negotiate with the States on these matters, but what Sir Owen Dixon was saying was that we are one people; as one people we should live and be judged by one system of law. While the laws may be from the various States, the laws are to be one system in the sense that they will be administered by the courts. Be they Federal courts or State courts, each would be administering the whole body of Australian law, and that is what we as one people should seek to achieve.

While this legislation goes a considerable distance in overcoming problems inherent in a system which divides the courts among Federal, State and territory courts, it does not go far enough. Furthermore, at this time a constitutional commission has been set up by this Government and a committee has been chaired by Mr Justice Jackson. That committee is considering the divisions of Federal and State judicial power and is looking to what recommendations it will be making to the Government and to the people for changes in the way in which we divide the judicial system of this country. It was fine to divide it in the way it was divided back in the eighteenth or nineteenth centuries, but is it not somewhat ludicrous, to take an example that arises under this legislation, that while there is now to be concurrent jurisdiction on intellectual property-that is, the State and Federal courts are to have concurrent jurisdiction with appeals through their various State and Federal systems, depending upon where the case at first instance was heard-there is to be no concurrent jurisdiction in tax cases? Those cases are to be taken from the State courts where they presently are to the Federal courts, and the State courts are not to have any jurisdiction whatever in those cases. It would seem that given the experience of the State courts-and I shall say something about this when we come to the other Bill-it is absurd that the State courts should not have jurisdiction to deal at first instance with those matters and the matters can then become part of the ordinary appeal system.

Our view is that, as is enshrined in much of this legislation, the court hears the matter at first instance, it determines the matter, and then, if an appeal is desired, it goes through the appellate system that belongs to that court. In the case of a State court it goes to the State appeal system with an application for special leave to the High Court being the final appellate measure. In the case of the Federal Court of Australia it would go through the Federal appeal system, with once again an application to the High Court for special leave to determine any outstanding matter of sufficient importance to be granted special leave. We would ask simply for one system, and that view is reflected largely in the submission that has been made to the Attorney-General from the Law Council of Australia. It is a contradiction in terms to introduce legislation to achieve cross-vesting of jurisdiction where exclusive jurisdiction has given rise to problems and then to create within that legislation or to retain exclusive jurisdictions. That is the point on which we differ from the Government. It is not a political point. It is a view about the proper operation of the Australian judicial system. I move:

Clause 3, pages 2 and 3, omit the definition of ``special federal matter''.