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Thursday, 13 April 2000
Page: 14100


Senator COONEY (4:07 PM) —Sir Daryl Dawson was appointed to the High Court from Victoria. There has been only one Victorian judge appointed to the High Court since then—Justice Hayne, a very eminent jurist who does Victoria proud. Sir Daryl Dawson, as he now is, was also a very eminent judge from the Victorian bar. He was Solicitor-General in Victoria for a long while. He filled that position with distinction and he filled his position on the High Court with distinction, although very often he was in the minority, as people would know. He did some great work in Victoria, as Senator Conroy would know, in an inquiry arising out of the fire at Longford.

Why should I be talking about Sir Daryl Dawson? He was always a man who showed great responsibility. He retired quite recently and, because he was retiring, said he ought not to sit on a case called Gould and Brown—he would not be there to deliver the judgment. Because he was so responsible, there were only six judges to make that decision. That court, in Gould and Brown, dealt with a matter that is being dealt with in this legislation—that is, the jurisdiction of the states to give state jurisdiction to the federal courts. As a result of that, the judges on the court—there being only six—split three for and three against. The case was won in the sense that whatever the Chief Justice said held in those circumstances, and so the case of Gould and Brown was decided in favour of the states being able to confer state jurisdictions on federal courts. The problem was, as the case was decided three all and was carried by the Chief Justice's vote, the decision did not set any precedent that would bind later judges. The issue arose rapidly afterwards in the case we all know as re Wakim. In the meantime, a couple of judges had retired, including the Chief Justice and Justice Toohey. You might think that two out of seven does not make a difference, but in this case it made a very big difference. As a result, we have the Jurisdiction of Courts Legislation Amendment Bill 2000 before us today.

I am very pleased to see Sir Daryl Dawson enjoying his retirement. He has contributed greatly to the law. I like a lot of what he said about the professions, how they should be devoted to service and not let market forces get the better of them—I have quoted a particular speech of his in that area in the past. If he had been on the High Court for re Wakim, who knows what would have happened? In any event, he was not. We had two new justices, including Justice Hayne from Victoria, so the decision in re Wakim was made and here we all are. It has caused great difficulty—and that is a matter that has been talked about—in the area of the Corporations Law. I do not want to say much about the Corporations Law because I am going to leave that to Senator Conroy who is more learned than I am in that area.

Actually, I will say something about re Wakim and the Corporations Law because it has taken up to about 30 per cent of the work that used to be done by the Federal Court away from it. That is a disappointment, too, because that is a court with very many eminent people on it and is particularly well led by Justice Michael Black who, I think everybody here would agree, is one of the great judges in the history of the judiciary in this country. That would not be taking things too far. As a matter of fact, his brilliance has gone into the next generation. His son was a Rhodes scholar and is now a theologian—from the law to the Lord. That is good to see. Perhaps I am wandering a little from the point. It is very disturbing, and I use that word advisedly, that the Federal Court does not have the jurisdiction that it used to in this area. The point has already been made that this does make a lot of trouble for the way corporations are carrying out their business. Corporations, of course, are the main underpinning of our economic life and if you have not got a law which can look after that in a fairly quick and proper fashion, then all sorts of problems arise. But, as I said, I will leave that area to Senator Conroy.

It impacts not only in the corporate world but also in the area of family law. That, in a way, is a more serious problem because the Family Court and family law deal with matters of the heart, of the emotion and of the soul. A lot of stress, a lot of worry and a lot of woe is exhibited in the Family Court. To fracture the jurisdiction of that court in the way that this decision does is a pity. I would like to say something about the decision.


Senator Conroy —It was a shocker.


Senator COONEY —Senator Conroy says it was a shocker and he will tell you why. On the other hand, we have got a Constitution and it is for the judges on the High Court to interpret that Constitution. They have got to call the law as they see it and then leave it up to the parliament to fix it up or, if the parliament cannot fix it up, for the people to do it through changes to the Constitution. That may be the best way of dealing with this matter. I do not know what the cost would be to run a referendum. I think it is about $60 million to $70 million, which seems a lot of money. On the other hand, given the amount of money that is at stake here in the area of corporate law, in the area of family law and in other areas as well, that would seem fairly cheap. I am sure that all parties would be responsible in this area and would see the Constitution altered so as to fix the present problem.

I do not think it would be a tremendous task. It would probably involve making some changes to chapter 3 to enable state jurisdiction to go into the Federal Court. If federal jurisdiction can be given to state courts, why shouldn't the Federal Court be able to take up state jurisdiction? I am sure if the founding fathers—unfortunately there were no founding mothers, Madam Acting Deputy President Knowles, but I am sure if you were there at the time you would have been one of the founding mothers—had thought about this, they would have accommodated the problem, because it is a problem. Here we are, 100 years next year later, trying to sort the matter out. The decision made by Justice Brennan and Justice Toohey, and supported by Kirby J, was certainly a sensible one, whether or not it was in accordance with the Constitution. It has now been decided in favour of the answer that, no, it was not. In any event, as far as the practicalities of it go, things were much easier when the workings of the courts were as they were before re Wakim.

With the way family law, whether state or federal, is run at the moment, it is all a bit difficult. As it is now, you can have a judge sitting there and deciding the issue, say, of a child of a de facto couple and making orders as to access. It is not access now. Is it custody? What do we have?


Senator Abetz —It is parenting arrangements or orders, I think.


Senator COONEY —My mind does not keep up with things as well as it should. It used to be called custody and access. The court is deciding those sorts of issues, then an issue of property arises and the court has to stop deciding the issue and send the matter back to a state court to decide a separate but related matter. If the Constitution were properly arranged, another area which could be dealt with so as to save a lot of problems is protection orders. At the moment, appeals against protection orders made by a Magistrate's Court in Victoria have to go off to the County Court, or in other states to the District Court or whatever it is called in other states. I do not want to say that the other states are not important, but Senator Conroy and I would say that Victoria was the one that stood out. In that jurisdiction, if you wanted to appeal against a protection order, it is to a County Court. Wouldn't it be better if that went off to the Family Court so that the whole idea of having a court that looks at all family matters would be realised?

Another area is adoption. I think the county court deals with that. I remember, years and years ago now, if an adoption order was made, people would go up and the judge would look at it, and people used to say it was the only time the judges were nice, because the adopting families were there. I remember being told of one occasion where someone did not concentrate on the matter as well as he might have. The matter had come before the judges a couple of times before, and the judge actually signed the order and was not quite concentrating on what he was doing. What he did was give in adoption the judge who had looked at the matter the previous week. So the judge rather than the child was adopted to the parents. I am sure that does not happen these days. In any event, I am sure that, if the matter had been taken to the Family Court, there would not be any risk of that sort of thing happening. I think there are some real issues to look at there.

I will go on to another aspect of the bill, and that is the issue of criminal jurisdiction. I see that there are some very eminent advisers on criminal jurisdiction here in the chamber. I wish I had seen them earlier—I would not have rambled so much. Issues such as whether a warrant has been properly issued or whether a subpoena has been properly issued can be actively challenged in the Federal Court in its civil jurisdiction. All that is going to go, from the time that the prosecution starts—I suppose that would be from the time the charge has been made—to when there is a resolution of the matter. The Attorney-General says, and no doubt his advisers have advised him to this effect, that it really does not make a great deal of difference—the matter can be heard by the criminal court hearing the case. I am not sure whether all these issues are going to be gathered up to be argued on the day of the trial or whether they are going to be argued beforehand. If they are going to be argued on the day of the trial, people will bring their points along into court, perhaps even before or after the jury has been empanelled, and they will argue all these points in the context of the case. It can become fairly costly because the person accused has briefed a solicitor and a barrister who prepare themselves for the case and charge high fees. Whereas you might not have had to pay somebody as much to do an interlocutory application on one of the side issues, such as the validity of a summons or a warrant, you have to pay large sums for the trial barrister, although he or she will be arguing what is in effect an interlocutory point. That might make it more expensive. If there are rights, you have to be very careful about how you cut down on them. Anyhow, it will be very interesting to see how all that operates.

This is a bill to which the opposition are suggesting some amendments. As I understand from Senator Conroy, we are as anxious as anybody to get it through and to see if we can get the system operating. Before I sit down, I will just say that another thing that could go to the Family Court is the testator's family maintenance jurisdiction.


Senator Abetz —Yes.


Senator COONEY —As Senator Abetz very much understands, how we divide up what we leave when we die is very much a family issue. My children are going to be a bit disappointed with what I leave.


Senator Carr —I know all about that.


Senator COONEY —No, testator's family maintenance happens when you die, Senator Carr, so you do not want to start worrying about that just yet. You do not have to worry about it at all because, once you are dead, what does it matter who gets it? In any event, that is another issue I thought could go to the Family Court. I will sit down and let Senator Conroy get on with his contribution.