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Tuesday, 18 April 1961


Mr WHITLAM (Werriwa) .- The Opposition supports this bill. The bill is very similar, almost section for section, to the Australian Capital Territory Supreme Court Act which the Parliament passed two years ago. It makes provision for what the Attorney-General (Sir Garfield Barwick) calls the regular judge to exercise the jurisdiction of the Northern Territory Supreme Court. Further, it makes provision for judges of other federal courts to be appointed as additional judges of the Northern Territory Supreme Court. This is a very desirable amendment. There has been some difficulty in fulfilling the judicial work in the Northern Territory since the lamented death of Mr. Justice Kriewaldt. Even during his life, it was difficult to carry out all the judicial functions in the Territory since the judge of the Northern Territory Supreme Court is also the judge of the Supreme Courts of the Cocos-Keeling Islands and Christmas Island.

When the court is established by an act of this Parliament, it is no longer possible to have acting judges of the court; nor is it possible, if the court is established by an act of this Parliament, to have a retiring age for judges. There is provision for acting judges and for a retiring age for judges under the existing ordinance of the Northern Territory under which the court has operated for the past 50 years. Nevertheless, these amendments are now necessary.

Sir, theSupreme Court of the Northern Territory operates in a very sensitive area. The judges operate in very great isolation.

They are hundreds of miles from any other judges. They have to adjudicate without the assistance of a numerous profession such as is found in other parts of Australia. They have to adjudicate on matters which are quite novel. These include not only frontier matters which would apply to such a dispersed area but also in respect of matters which concern an aboriginal population. The Commonwealth was very fortunate to have the services for ten years of a man of the temperament and scholarship of Mr. Justice Kriewaldt in that outpost of British law and of Australian administration. We are all very greatly indebted for the manner in which he carried out the novel, isolated functions which have to be performed by the Supreme Court of the Northern Territory.

I regret that the opportunity has not been taken to produce a model code of practice and procedure for the Northern Territory Supreme Court. The act provides, in effect, that where no specific provision is made the laws applicable in South Australia shall apply. In relation to the Australian Capital Territory Supreme Court the companion act provides that where no specific provision is made the practice and procedure of the High Court shall apply or, if that is not applicable, the practice and procedure of the Supreme Court of New South Wales shall apply. Thus we have two supreme courts established by this Parliament - one in the Australian Capital Territory and the other in the Northern Territory - applying different procedures in similar matters. This is a case in which the Commonwealth could have provided a code. I have quoted previously the remarks which the Chief Justice of the High Court made relating to the need for the Commonwealth to take a lead in law reform. Speaking at the tenth legal convention of the Australian Law Council in July, 1957, the Chief Justice said -

IS it not possible to place law reform on an Australia-wide basis? Might not there be a Federal Committee for Law Reform? In spite of the absence of constitutional power to enact the reforms as law it is open to the federal legislature to authorize the formation of a body for inquiry into law reform. Such a body might prepare and promulgate draft reforms which would merely await adoption. In all or nearly all matters of private law there is no geographical reason why the law should be different in any part of Australia. Local conditions have nothing to do with it. Is it not unworthy of Australia as a nation to have varying laws affecting the relations between man and man? Is it beyond us to make some attempt to obtain a uniform system of private law in Australia?

In relation to the supreme courts of the Territories, we would not have to content ourselves with formulating a code and waiting for it to be adopted by the States. We ourselves could enact it. I regret that this opportunity has not been taken to do so. There seems to be no reason of logic or convenience why there should be different procedures between the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory. The Commonwealth should not have to wait until South Australia, for instance, modernizes all of its procedures. T realize that specific provision could be made by this Parliament in an act, or by the Northern Territory Legislative Council in an ordinance, but nevertheless would it not be better to make provision now to apply to all such federal matters? We have not synchronized or co-ordinated the law between the Supreme Court of the Australian Capital Territory and the Supreme Court of New South Wales. There are different methods of pleading in those two courts although incidents which take place on each side of the border are clearly very much more related than are incidents which take place at such distances as those between the Northern Territory and South Australia.

I also regret that the opportunity still has not been taken to set up an intermediate appeal court from the Supreme Courts of the Territories. In all the State Supreme Courts there is an appeal from decisions by single judges to three judges - a full bench of the State Supreme Court. In respect of the Supreme Courts of the Australian Capital Territory and the Northern Territory, however, there is an appeal from a single judge direct to the High Court. There is now provision in the two Territories for additional judges to be appointed from the pool of Commonwealth judges. Provision should now be made in both these territorial supreme court acts for a full bench to b? established in respect of each Territory. It is not fair that the High Court should be concerned with appeals from single judges of the Supreme Courts of the Territories when it is clearly not concerned with appeals from single judges of the Supreme Courts of the States. We have come some of the way. We have a pool of judges; we have all Commonwealth judges now members of the Supreme Court of the Australian Capital Territory, and shortly we shall have all Commonwealth judges members of the Supreme Court of the Northern Territory. There would be no difficulty in having a full bench constituted in each Territory, thus relieving the High Court of a matter with which it is never concerned in relation to State Supreme Courts.

The Opposition does not oppose the bill. We hope that an opportunity will be taken at an early date to set up model codes and full benches for these supreme courts.







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