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Wednesday, 10 November 1976


Mr NEIL (St George) -Mr Deputy Speaker,the Government is to be congratulated for introducing these measures. The Federal Court of Australia will provide a much needed new court to deal by streamlined methods with the jurisdictions that it takes over as well as those areas which will be given to the Court in the future. The Federal Court of Australia Bill has one interesting feature. It allows judges to hold office for life, in accordance with the provisions of the Constitution and other provisions, but a person may not be appointed a judge of the Court after he has attained the age of 70 years. The Bill further provides that a judge may, if he wishes, become a Senior Judge of the Court after he has reached 70 years of age and be relieved of the responsibility of sitting regularly. He will do this voluntarily. It appears, therefore, that the Bill goes a far as is possible within the present constitutional limitations towards providing for the age of 70 years to be the age at which judges ought to become less active in their judicial offices.

I for one would support the proposal that Federal judges should retire at 70 years of age. I think we saw general support for that proposal in the last week or so when the Constitution Convention met. I congratulate the AttorneyGeneral (Mr Ellicott) on a reasonable set of provisions that will go as far as is possible at present to achieve that aim. The Court will be a superior court of record, a court both of equity and of law. It will be a court which will, according to the Government, supplant the proposed Superior Court that the Labor Party sought to introduce, which had a significant number of problems surrounding it, and which was rejected by the Senate.

I move now to deal with the Judiciary Amendment Bill. This contains a number of far-reaching proposals which may not be apparent at first sight. I have not yet seen the amendment proposed by the Opposition relating to appeals as of right to the High Court in matters affecting the interpretation of the Constitution. Subject to seeing that I would be inclined to agree that it is a proper amendment and I would ask the Attorney-General to give due consideration to it at the appropriate stage. The Bill restricts to some extent appeals to the High Court. The provisions dealing with restrictions from a single judge of a Supreme Court are in my view quite reasonable and proper. We have in the States either full courts or courts of appeal, the purpose of which is to give to the citizens of those States comprehensive appellate hearings within the range of time, convenience and expense. Those courts can better do this at a decentralised level than can the High Court. The High Court has to travel throughout the country and is available only periodically in the different capital cities. The State Supreme Courts, in their Courts of Appeal Division or as Full Courts, are able to hear appeals regularly throughout the year. Those Courts also involve less cost to the citizen who otherwise has to arrange for his case to be heard in the High Court, sometimes with extra delays and with attendant costs, or alternatively the citizen may have to go to the High Court in any case because the opposing party may appeal to the High Court from a State Full Court or a Court of Appeal decision. There still is provision for special leave to appeal and this protects the position in those classes of cases referred to by the honourable member for Kingsford-Smith (Mr Lionel Bowen); so there is no real problem in the Bill as far as those matters are concerned. Indeed, it is proper that the Supreme Courts of the States should be able to deal comprehensively with appellate matters in their own States.

There are, however, one or two matters which give me concern and they fall within clause 35 of the Judiciary Amendment Bill. One of these relates to an increase in the monetary sum necessary before an appeal may be brought to the High Court. I do not cavil at that provision as such but this would have been a good opportunity for the Government to adopt a new approach to appeals to the High Court and to avoid the excessive accent upon property which our system of law has traditionally provided.

Under this Bill there will be an appeal as of right from the Full Courts of the Supreme Courts, subject to monetary qualification. In nearly all other cases, including those to be brought from the single judge or in other cases even from the proposed Federal Court of Australia, there are restrictions. What I object to is this: There is a monetary limit prescribed which is arbitrary. Probably, in this modern day and age, that is something we cannot avoid. However I would have thought it proper particularly in criminal matters, that in other cases there should be a right of appeal from the Supreme Courts in their Full Court jurisdiction or in New South Wales from the Court of Criminal Appeal. I would have thought it would be better to provide a right of appeal to the High Court at least in those cases of serious crime such as murder or rape, or other serious crimes, or at least in cases where a very heavy penalty was provided under the section or had been imposed. The situation now is that it is easier to go to the High Court as of right if a mere $20,000 is involved in a case than it is if a person has been sentenced to 10 years ' imprisonment.

I believe there is an accent in our law towards the protection of proprietary rights as against the protection of personal rights that has historically been to the detriment of our legal process. Liberty is something that ought to be protected to the fullest extent of the law. Whilst I appreciate that limits must be applied for practicality, at least in regard to the most serious offences or in regard to cases in which a very heavy sentence has been imposed, I believe there should be an appeal as of right to the High Court. I know we differentiate already in the criminal system between summary proceedings which are heard before a magistrate without a jury and indictable proceedings which are heard before a jury. I know there are differences in the appeal provisions, depending upon the seriousness of the matter. But many people historically have reflected upon and criticised our law for too great attention being given to the protection of property rights as against personal rights. I believe the Bill might well have included a provision for appeal in special circumstances as of right to the High Court in those matters involving substantial detriment to the liberty of the subject.

Allied with that is the new provision in clause 35 which restricts the right of appeal where the only ground of appeal concerns the assessment of the amount of any damages in an action for damages for death or personal injury. I will not read the actual words of the particular amendment but they talk about a ground that relates to the quantum of damages in respect of death or personal injury. I ask: Why do we restrict this to death or personal injury? Once again we are restricting the right of appeal in cases of personal rights as against those of property rights. If there is to be a rule that we want to cut out appeals on quantum of damages to the High Court, for the various sensible reasons that are proposed, why do we not have a restriction on the right of appeal on a ground that relates to the quantum of damages- full stop? Why go this further extent and only restrict it to death or personal injury in cases where the individual's personal rights have been affected? I believe again that we are perpetuating an accent in the law upon property rights. I believe that we would have been better served by having merely the words 'relates to the quantum of any damages'. There would be no problem in the case of a failure to apply a proper principle in the assessment of damages, because the failure to apply a proper principle when assessing damages is an error of law. Subject to the other restrictions, an appeal to the High Court would lie where there had been a failure to follow proper principles of law in the assessment of the quantum of damages.

But as I have said a number of times, the Bill fails to take the opportunity to ennunciate to the nation at large that this Government and the law are based upon concern for both property and personal rights, not property rights to a greater extent than personal rights. I am a little concerned that the Australian Labor Party Opposition so far has not made any point of this matter. I would have thought that it was appropriate for a Labor Opposition to make comment on this. I certainly hope that the honourable member for Kingsford-Smith is not becoming a tame cat shadow Attorney- General.


Mr Lionel Bowen - We did it last night. You should have listened.


Mr NEIL - Last night I did not understand the Opposition to take that point. I apologise if I misunderstood what the honourable member was saying. I was here last night. I hope that the Labor Opposition is not going a little lightly on this matter because it still has a commitmentperhaps it has not; I do not know its present policy- to national compensation in which it tends to devalue court proceedings for death or personal injury in favour of national compensation which is some distance off. If ever we reach that stage we can look at the position anew at that time. Those are the matters in the Bill which give me some concern. However, as the Bill is generally supported by the Opposition and as it provides for very important matters, I do not believe that it should be prevented from being passed.

There is a useful provision in the Judiciary Amendment Bill which relates to the question of legal representation in the various States. In my view this is long overdue. I have never quite understood why we should have so many restrictions upon the right of appearance in other States by solicitors or counsel who are qualified in one State. Some States impose residential qualifications. Other States impose stronger qualifications. Nearly all States seem to require admission in their States after assessing the qualifications of the person in his home State. I hope that this provision will enable the Australian public eventually to be represented by one common Bar or profession throughout the country. The provision entitles any barrister or solicitor who is on the High Court roll and entitled to practise in a Federal court to the right of audience in a State court while it is exercising Federal jurisdiction. I understand that after discussions with various States the Attorney-General proposes to allow

States to set up their own registers. Those registers will be kept by the court. If there by a need to remove a person from the register following the appropriate proceedings in that State, then a person may be removed from that register.

I think one other matter requires some consideration, and that is the matter of special leave and just what it means. The courts have grappled with the phrase 'special leave' on many occasions. As late as 1962 the High Court said that efforts to define the word 'special' had broken down in may cases, We often have to rely upon the individual situation. I would like to have seen the word 'special' left out of this Bill and only the word 'leave' inserted. In the recent past a body of law has grown up which relates to the words 'special leave', particularly in criminal matters. I think it is well known that it is almost impossible in the High Court to have an appeal on sentence only. It is also very difficult to obtain special leave in the High Court in criminal matters. Again, there is the tendency- albeit in accordance with legal principle- in some cases to treat matters relating to the criminal law as being in a slightly different category from those relating to proprietary rights.

What I am concerned about is that the very restrictive case law on the words 'special leave' will be applied to appeals from now on. If the very restrictive interpretation of 'special leave' is to be applied to quantum of damages appeals or to all the other cases set out in the Bill which require special leave, then I really think that for practical purposes we are blocking them out. I would hope that the word 'special' could be removed from the Bill. However, it may mean that the exigencies of particular situations will lead to a slightly more liberal interpretation; so one should wait and see what the courts do in particular cases. Although it is not directly relevant, I draw the attention of the House to the question of interlocutory matters. I merely say that the question of the definition of interlocutory matters has dogged the law for a long time. I have never quite understood why a stay of proceedings which can shut a man out of his case permanently is still considered to be an interlocutory matter. I know that is good law, but I think that at some time we will have to consider the whole subject of interlocutory matters as they relate to appeals. This Bill makes some provision in relation to interlocutory matters.

On the whole, subject to those points and, generally speaking, anticipating agreement to the Opposition amendment, I support the Government. The consequential Bills have involved the Attorney-General in a great deal of work. He is to be congratulated on the way in which he has brought these Bills to fruition, on the consultations he has had with all parties concerned and on the immense amount of work that he and his officers have put in. In general these are very sound Bills.

Mr DEPUTY SPEAKER (MrLucock)Order! The honourable member's time has expired.







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