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Wednesday, 3 November 1976


Mr ELLICOTT (Wentworth) (AttorneyGeneral) -I move:

That the Bills be now read a second time.

These Bills relate to the Federal Court of Australia Bill already before the House and deal with the exercise of federal judicial power and the structure of the Supreme Courts of the Australian Capital Territory and Northern Territory. These Bills will amend the Conciliation and Arbitration Act, the Bankruptcy Act, the Patents Act, the Trade Marks Act, the Income Tax Assessment Act, the Acts establishing the Supreme Courts of the Australian Capital Territory and Northern Territory and a number of Acts that confer specific jurisdiction on the Australian Industrial Court. The amendments will give further legislative expression to the Government's plans to establish the new Federal Court of Australia, to confer additional federal jurisdiction on State Courts, to relieve the pressure on both the original and appellate jurisdiction of the High Court and to provide added status to the Australian Capital Territory and Northern Territory Supreme Courts.

In my second reading speech on the introduction of the Federal Court of Australia Bill, I explained that the intention is that that Court should take over the jurisdiction now being exercised by the Australian Industrial Court and the Federal Court of Bankruptcy. Accordingly, provision is being made by three of the Bills now being introduced for the transfer to the Federal Court of Australia of the jurisdiction at present exercised by those other two Courts and for their eventual abolition. The three Bills in question are the Conciliation and Arbitration Amendment Bill (No. 3), the Bankruptcy Amendment Bill and the Federal Court of Australia (Consequential Provisions) Bill. From a date to be proclaimed, not being earlier than the date on which the Federal Court of Australia would commence to exercise its jurisdiction, all proceedings that may now be instituted in the Australian Industrial Court or in the Federal Court of Bankruptcy will be instituted in the new Court. Where there are pending proceedings in either of the two existing courts and the hearing of those proceedings has not commenced on the proclaimed date, those pending proceedings will be transferred into the Federal Court of Australia. Proceedings pending before the Australian Industrial Court or the Federal Court of Bankruptcy that are part heard on the proclaimed date will continue in those courts. Each of those two courts will continue in existence until a time when there are no judges left on the Court. The Conciliation and Arbitration Amendment Bill (No. 3) and the Bankruptcy Amendment Bill provide that, on the making of proclamations to that effect, the two courts will be abolished and any proceedings then pending in those courts will be transferred to the Federal Court of Australia.

All proceedings under the Conciliation and Arbitration Act and the Stevedoring Industry Act will be dealt with in the Industrial Division of the Federal Court of Australia. The Federal Court of Australia Bill provides forjudges to be assigned to the Industrial Division of the Court and that judges assigned to the General Division of that Court shall not take part in the exercise of jurisdiction in the Industrial Division, except in special circumstances by arrangement made by the Chief Judge of that Court. When exercising its jurisdiction under the Conciliation and Arbitration Act, the Federal Court of Australia in its Industrial Division will, for the time being, be constituted in precisely the same way as the Australian Industrial Court is now required to be constituted. In those cases where the Australian Industrial Court is now required to be constituted by a single judge, the Federal Court of Australia will be constituted in its Industrial Division by a single judge. Where the Australian Industrial Court is now required to be constituted by three or more judges, the Federal Court of Australia in its Industrial Division will sit as a Full Court. Likewise, the provision as to appeals will remain unaltered for the present. In those cases where there is now no appeal from a decision of the

Australian Industrial Court under the Conciliation and Arbitration Act, there will be no appeal from a decision of the Federal Court of Australia. In other cases, where an appeal now lies from the Australian Industrial Court to the High Court by leave of the High Court, an appeal will lie from the Federal Court of Australia to the High Court. The special provisions as to appeals under the Conciliation and Arbitration Act will override the provisions in the Federal Court of Australia Bill relating to appeals.

It is intended that these provisions as to the number of judges that are required to sit and as to the limitation on appeals in industrial matters will be reconsidered after discussions with employee and employer organisations. Successive amendments of the Conciliation and Arbitration Act have produced a number of anomalies. Further, the present provisions are wasteful of judicial resources in some respects. For example, the Conciliation and Arbitration Act requires 3 judges to sit on a prosecution for a breach of an award under section 1 19 of the Act. If the prosecution were brought in a state court, it would be dealt with by a magistrate. On the other hand, there are some matters of considerable importance to registered organisations or to individual members of organisations where there is no provision for appeal, even from a single judge. The only way of reviewing those decisions at present is by way of prerogative writ in the High Court.

With regard to the exercise of jurisdiction under the Bankruptcy Act, the practice has been that the Federal Court of Bankruptcy has not sat regularly elsewhere than in New South Wales and Victoria. It is intended that the Federal Court of Australia will ordinarily exercise bankruptcy jurisdiction only in these 2 States and in the Austraiian Capital Territory. In the other States, bankruptcy jurisdiction will continue, for the time being, to be exercised by State courts and in the Northern Territory by the Northern Territory Supreme Court.

As well as its industrial jurisdiction under the Conciliation and Arbitration Act and the Stevedoring Industry Act, the Australian Industrial Court has jurisdiction under 10 other Acts. The most important area of general jurisdiction is its jurisdiction under the Trade Practices Act. The Federal Court of Australia (Consequential Provisions) Bill provides for the transfer of all of this jurisdiction to the Federal Court of Australia, other than cases part heard on the proclaimed day for the transfer of the jurisdiction. The transfer of the jurisdiction under the Trade Practices Act to the Federal Court of

Australia does not, of course, pre-empt any decision that the Government might take on the recommendation of the Trade Practices Review Committee that State courts should be given concurrent jurisdiction in consumer protection matters.

The High Court now has an extensive original jurisdiction in industrial property matters. Appeals from decisions of the Commissioner of Patents and the Registrar of Trade Marks lie directly to the High Court constituted by a single justice. Although State courts have jurisdiction to try actions for infringement of a patent or a registered trade mark, the revocation of a patent or the cancellation of registration of a trade mark on the ground of invalidity is a matter within the exclusive jurisdiction of the High Court. Thus, if, in an action for infringement of a patent in a State supreme court, a counter-claim is made for revocation of the patent the proceedings are automatically removed into the High Court. In addition, the High Court has exclusive jurisdiction under the Patents Act to extend the term of a patent or to grant a compulsory licence for the working of a patent.

The Patents Amendment Bill and the Trade Marks Amendment Bill being introduced will vest this original jurisdiction in State supreme courts and in the supreme courts of the Australian Capital Territory and Northern Territory. The High Court will no longer have original jurisdiction in patents and trade mark matters, except to the extent that an action may be brought in the original jurisdiction of the High Court under section 75 of the Constitution. Jurisdiction thus conferred on the Australian Capital Territory and Northern Territory supreme courts under the Patents and Trade Marks Acts will be limited to those cases where the plaintiff is resident in the Territory concerned on the date on which the proceedings are instituted, or, being a corporation, has its principal place of business in that Territory on that date.

The amendments to the Patents and Trade Marks Acts will also confer additional jurisdiction on the Administrative Appeals Tribunal. Appeals now lie from the Commissioner of Patents and the Registrar of Trade Marks to the High Court in a number of matters that are primarily administrative in character and which do not involve questions of patent or trade mark law. There is, for example, an appeal from the Commissioner of Patents to the High Court against a refusal of the Commissioner to grant an extension of time under the Patents Act. Jurisdiction in matters of this kind will not be transferred to State supreme courts, it being more appropriate for them to be dealt with by the Administrative Appeals Tribunal.

I would also mention that the Patents Amendment Bill and the Trade Marks Amendment Bill provide for proceedings to be transferred from one supreme court to another on the application of a party. This provision will enable a matter to be moved from one court to another if it turns out that the convenience of the parties would be better served by such a transfer.

In introducing the Federal Court of Australia Bill, I said that it was the intention that the full court of that court should have appellate jurisdiction from State courts, other than the full courts of State supreme courts, in special areas of Federal jurisdiction. In fulfilment of that intention, provision is made in the Bills now being introduced for appeals to lie to the Full Court of the Federal Court of Australia from State courts exercising bankruptcy jurisdiction, from State courts exercising jurisdiction under the Patents and Trade Marks Acts and from decisions of single judges of State supreme courts on appeals from a Taxation Board of Review and the Commissioner of Taxation under the Income Tax Assessment Act. These appeals will be exclusive of any right of appeal that might otherwise exist to the full court of the State supreme courts. Provision is, however, made for appeals by special leave of the High Court to lie direct to the High Court under the Income Tax Assessment Act and the Patents and Trade Marks Acts. Appeals from Territory supreme courts to the Federal Court of Australia are provided for in the Federal Court of Australia Bill.

The High Court has original and appellate jurisdiction under a number of other Commonwealth Acts. Bills will be introduced in due course to amend these Acts to transfer the original jurisdiction of the High Court to State and Territory supreme courts and to provide, in appropriate cases, for -appeals to the Federal Court of Australia. In particular, the High Court still has original jurisdiction, concurrent with State and Territory supreme courts, to hear taxation appeals under the Estate Duty Assessment Act and the Gift Duty Assessment Act and exclusive jurisdiction in sales tax appeals. Where an appeal is taken under these Acts from the Commissioner or a Board of Review to a supreme court, there is a right of appeal to the High Court. These Acts will eventually be amended to bring them into conformity, as regards the jurisdiction of courts, with the Income Tax Assessment Act as it will be amended by the Bill now being introduced.

Three other changes to be made by the Income Tax Assessment Amendment (Jurisdiction of Courts) Bill should be noted. Provision is to be made for a taxation appeal to be transferred from one supreme court to another on the application of a party. The High Court is to be divested of the original jurisdiction it now has to hear taxation prosecutions under the Income Tax Assessment Act. Original jurisdiction in these prosecutions will be confined to State and Territory courts. The amount of the penalty in issue that entitles a defendant in a taxation prosecution to elect for trial in a supreme court is to be increased from $200 to $500.

I turn now to the changes to be made in relation to the Australian Capital Territory and Northern Territory supreme courts. The Government has decided that an office of chief judge should be established in each of these courts. Each of these courts now comprises 3 resident judges, together with additional judges appointed from the ranks of the judges of the Australian Industrial Court. In each case, the senior of the 3 resident judges has specific responsibility for arranging the business of the Court and, in fact, exercises many of the functions that the chief justice of a State supreme court would exercise.

In addition, these courts will, as I have already said, have jurisdiction under the Patents and Trade Marks Acts, in matters in which original jurisdiction is now vested in the High Court, in respect of proceedings instituted by Territory residents or by companies having their principal place of business in a Territory. Further, the 2 Territory supreme courts will be given, ibr the first time, jurisdiction in taxation appeals under the Income Tax Assessment Act. This jurisdiction will likewise be limited to cases where the taxpayer concerned is a Territory resident or, if a company, has its principal place of business in a Territory. This change will be of great convenience to Territory residents, who have hitherto had to resort to a State supreme court to appeal from a board of review or the Commissioner in income tax matters.

The Northern Territory Supreme Court Amendment Bill will also enable the appointment of a fourth resident judge of that Court. The investigation of Aboriginal land claims will, for some time, occupy much of the time of a judge of that Court. This makes it desirable to increase by one the number of judges who can be appointed in the Northern Territory for the work of the Court. I commend the Bills to the House.

Debate (on motion by Mr Lionel Bowen) adjourned.







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