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Wednesday, 10 November 1976


Mr Antony Whitlam (GRAYNDLER, NEW SOUTH WALES) - I move:

That all words after 'That' be omitted with a view to substituting the following words: 'whilst not opposing the provisions of the Bill the House is of the opinion that it should provide a Federal Court with original jurisdiction in all matters referred to in Section 75 of the Constitution and laws made by the Parliament'.

The Opposition does not oppose the establishment of the Federal Court of Australia. It welcomes the legislation. It is a tidying-up piece of legislation. By constituting a Court with 2 divisions- namely, the Industrial Division and the General Division- it will make for a much mo.e rational organisation of the existing judicial structure. Nonetheless, the Opposition, while not opposing the establishment of the Court, does have some reservations about the legislation and about the timidity of the Government in its proposals for this Court. The Opposition does not propose to be churlish, simply because when the Government was in Opposition it opposed every attempt to establish the Superior Court. The opposition, albeit somewhat silent, of a lame duck Solicitor-General to the establishment of that Court now has been replaced with the rooster-like boasting of an Attorney-General who is looking forward to a new nest for his wellfeathered friends. The Attorney-General dismissed in 2 sentences the rejection of the Superior Court legislation by the Senate and the opposition, which was led by him, of the Liberal and National Country Parties.

For the benefit of honourable members, I should like to take them through some of the arguments about the Superior Court legislation raised by the Attorney-General when he was in Opposition. I must apologise to honourable members for not being able to lead them through these objections in any particularly logical order but it does not appear to me that the objections can be fitted into such a frame. However, I will go through them at least in the order in which them were raised at that time by the AttorneyGeneral. The only consistent thread which runs through them is the exhibition of the extremely conservative mind which will resist change at all cost. The first objection raised by the AttorneyGeneral, then only the private member for Wentworth, was the jurisdiction being granted to the proposed court in relation to associated matters by clause 23 of the Superior Court of Australia Bill. In relation to that the AttorneyGeneral said:

Clause 23 of the Bill is designed to give the court jurisdiction in associated matters. It is a dragnet provision aimed at attempting to overcome a problem which possibly cannot be overcome, namely, of giving the court jurisdiction in matters which are not matters of federal jurisdiction.

I invite the attention of the Attorney and of all honourable members to clause 32 of the Bill to establish the Federal Court of Australia. If one looks at that one will see that the wording of this proposed section is almost identical with that of the Superior Court Bill. The Attorney was clutching at straws at that time. Now he realises that that kind of provision is necessary in relation to any legislation for federal courts, even that which is as timid as this.

The Attorney went on to object to the proposed Superior Court on the basis that it would create an additional court in an already complicated judicial system and that this would involve increased expense. On that point, I think it is worth referring to something that Sir Garfield Barwick had to say in relation to the original proposals for a new Federal Superior Court. In the Federal Law Review, in an article with which many honourable members in the chamber will be familiar, he said:

Judicial work requires no fewer judges, and no less court space and staff, if it bears a federal rather than a State label, and is provided for separately.

One can turn that on its head just as logically and say that judicial work requires no fewer judges and no less court space and staff if it bears a State rather than a federal label and is provided for jointly. Again, the argument is without any foundation whatsoever. Sir Garfield Barwick could see through it. It is odd that the AttorneyGeneral should be concerned about the complexities of the judicial system when his brothers in the conservative administration in several States have never done anything to clear them up. I think it is a matter of record that in respect of simplifying procedures in courts and administrative tribunals the Federal Parliament and successive Federal Governments have a much better record. In fact, if we are concerned about the complexities of judicial systems we can be assured that they will receive better attention more expertly and more often in this Parliament than they will in any of the State legislatures.

The Attorney-General went on to object to the Superior Court on the basis that physical accessibility of courts was very desirable in relation to judicial proceedings. I agree with that, every honourable member here agrees with it. The Attorney talked about how the Superior Court could not sit in large provincial towns in the States. Again, that too was just not a genuine objection. If the Attorney looks at the structure of every State Supreme Court in Australia with the exception of the Queensland Court, he will see that they are all centred in the State capitals and that they all proceed on circuit through the provinces, as was then proposed for the Superior Court- and the Attorney well knew this at the time- and as he now quite properly proposes that the Federal Court of Australia should do. The next objection raised by the AttorneyGeneral in 1974 was to the tenure of judges. He said that we would have a system whereby in some States judges would retire at 65 or 70 and in the Federal Court judges would be appointed for life. Of course we would have had that system, and the position remains the same, as the Attorney well knows. Conservative members have been forced at last to place on the agenda of the Australian Constitutional Convention the question of the retiring age forjudges, and it is to be hoped that the Attorney-General pushes the Government to produce a proposal for a referendum on that question. But for the time being the objection he raised to the Superior Court legislation stands in relation to his own legislation now before the House. It is not an objection that I think is significant but it is one which might point up the bona fides in 1974 of the AttorneyGeneral.

The Attorney-General then sought in 1974, as conservatives quite often do, very selectively to deprecate developments in the United States. He referred also to the different law officers proposed under the Superior Court legislation by comparison with those existing in most States. He talked about the fact that we were going to have marshals of the Superior Court rather than sheriffs. I can understand the Attorney's conservatism. Quite often members of the Liberal and National Country Parties like to go back further, and I suppose one could antedate the term 'sheriff' to that of 'marshal' by a couple of centuries, indeed to before the Norman Conquest. It might then have some more English connection which is appealing to him, but of course it is a nonsense. Who cares what the officers are called? The Attorney-General was at that time being quite flippant, one would hope, in talking as he did when he said:

There will be the creation of a parallel system of law enforcement officers- marshals who rush in with a federal badge as distinct fom sheriffs who rush in with a State badge.

I know that occasionally he has to play down to the Country Party benches and to those Liberal Party back benchers who can watch only westerns. The position now is that there will be sheriffs rushing in with a federal badge as opposed to sheriffs rushing in with a State badge. What a great distinction. What difference does it make? If the Attorney is concerned about standardising the designations of court officers throughout the country he has a long way to go. Again, it was a spurious objection. He was grasping at straws, as the honourable member for North Sydney (Mr Graham), who is interjecting, knows.

The next and most curious objection raised by the Attorney-General in 1974, although in 1975 he went further, was when he had this to say:

Covering clause 5 of the Commonwealth of Australia Constitution Act which says that the law of the Commonwealth shall be binding on all State Courts, is an expression of the idea that all the law shall be enforceable in the State courts.

The Attorney-General has changed ground since then. Now we have a measure introduced by him on behalf of the Government which contradicts that proposition, a proposition which would be supported by no honest lawyer in Australia and a proposition which is so demonstrably false that I do not think even at that time the AttorneyGeneral could have meant it seriously. He said that all laws shall be enforceable in the State courts, but in the related measures we are debating here we are talking about industrial matters, at least a good part of the bankruptcy law, trade practices and the judicial review of administrative decisions. All these matters are to be litigated in federal courts and not in State courts. Only a few minutes later the Attorney went on to argue that specialised federal jurisdiction which needs federal courts should be vested in the Industrial Court. He has changed ground since then. He now thinks the provisions of the Trade Practices Act ought to be invested in a special federal court, as the Labor Government proposed at that time. I wonder why he has changed his tune? I will come to that shortly.

The Attorney-General then went on very poignantly to object to the jurisdictions which the legislation was designed to remove from the State courts. What he said is worth quoting in full:

This is an extremely important matter. Industrial accident and workers' compensation jurisdiction will be removed; taxation jurisdiction will be removed; industrial property jurisdiction will be removed. I ask honourable members'.

What will be left of the great common law courts of the States of this country?

I imagine that even the Attorney would concede that Sir Garfield Barwick has the interests of the great common law courts of this country at least as much at heart as he does. He proposed that exactly those 3 items the Attorney then instancedindustrial accident and workers' compensation, taxation matters and industrial property matters- ought to be part of the original jurisdiction of Federal courts. Let me read what Sir Garfield Barwick had to say in that same law review article in 1964. In relation to taxation and industrial property he said:

I turn now to consider what original jurisdiction should be conferred on a new federal superior court. The basic ingredients I think I have perhaps already sufficiently indicatedtaxation matters other than mere enforcement of assessments, and industrial property matters.

Sir GarfieldBarwick had it right! The Attorney had it wrong. Sir Garfield Barwick had it wrong on one count; he objected in 1964 to the inclusion within the original jurisdiction of a Federal court of family law matters or, as we then referred to them, matrimonial causes matters. The Attorney-General now concedes that family law is an appropriate subject to be administered in separate Federal courts. All of these views reflect value judgments.

I want to refer now to the substance of my amendment. In particular I want to mention the timidity of this Government, and particularly the Attorney-General, in describing what should be the original jurisdiction of the Federal Court. In a very significant article in 1963 Mr Byers, the present Solicitor-General, put the case very well when, talking about the device of investing State courts with Federal jurisidiction, he said.

This device of investing the State courts with federal jurisdiction virtually means that the Federal Government hands over administration of the Statutes involved to State Governments without considering whether such State Governments might be or become hostile, friendly or merely disinterested.

The Attorney-General in 1975, Mr Enderby-he was a good Attorney-General- had this to say:

The Parliament has no constitutional responsibility for State courts and cannot under the Constitution intervene in the organisation of those courts.

Earlier in the year we had a very good example in this Parliament of this occurring in relation to the administration of the matrimonial causes legislation. The Attorney will well remember that several very pointed questions of great public interest were raised in relation to the proceedings in a State Supreme Court in a matter entitled Robson v. Robson. The Attorney-General was unable to discover for members of this Parliament the information sought precisely for those reasons- precisely because he had no control over the administration of the laws passed by this Parliament. That simply is not good enough. It is not good enough to make value judgments about what are special areas of interest and then to say that others are not special areas. Quite eminent authorities differ on this point. Sir Garfield Barwick, for instance, did not think that family law was an appropriate subject. Now I think that the vast majority of members of the Parliament would concede that it is. The Attorney-General does not concede that industrial property and taxation matters are appropriate matters for the original jurisdiction of the Federal Court. Sir Garfield Barwick did.

The present Attorney-General concluded his objections in 1974 with the most curious objection of all, but it was typical of the obfuscation he raised throughout the debate at that time and subsequently in 1975. He said:

I ask: Can the right of appeal to the High Court be taken away? I ask that question because the judges of this court are officers of the Commonwealth just as judges of the Federal Industrial Court are officers of the Commonwealth and they are subject to the original jurisdication of the High Court under section 75 (5) of the Constitution. I have mentioned those matters because they only indicate that there are constitutional problems with this court as well.

He reached the true part in the last sentence when he said: 'I only mention that because there are constitutional problems'. He knows that there are constitutional problems that Sir Garfield Barwick did not think were insurmountable back in 1964. He concedes that he was grasping at straws in respect of the measures we are now discussing, measures such as the power of the High Court to remit matters to other State courts and to Territory courts, and that such objections were not legitimate.

In 1975 when the Bill was brought before the House again, because the Senate had rejected it for reasons I can guess would not even be as well expounded as the peculiar reasons of the Attorney-General that I have just gone through, the Attorney-General had refined his argument. He said that he did not want to repeat his argument. I can understand that, as someone who values his professional reputation, he would not want to be seen too often stating such ludicrous propositions. This time we had a longish speech from the present Attorney-General who was by this time on the front bench of the then Opposition. As honourable members will recall, he was the shadow spokesman on Aboriginal affairs. He talked about the Bill having come back in the form in which it had been put to the House in 1974. He said that it was an irrelevant Bill because developments since the Bill was originally passed by the House of Representatives had made it out of date. He said it referred to the Matrimonial Causes Act which had been repealed because the Parliament had passed the Family Law Act. He said that the level of salaries set out in the legislation was out of date as a result of movements in money values. Of course they were all relevant objections and, as the Attorney knew, they could have been met by amendments in the Senate which would have been accepted by the Labor Government of the day. The Attorney-General knew that but he still forced on with these propositions that must have stretched his professional credibility tremendously.

I really like the following remarks of the present Attorney-General in that debate:

This underscores one basic fact, namely, that there are some aspects in relation to which section 57 of the Constitution ceases to have effect I suggest that the Attorney-General have a fresh look at section 57 to see whether it can appropriately apply to a Bill that no longer in many respects has relevance.

Honourable members know that the AttorneyGeneral is the resident expert on section 57 of the Constitution in respect of which he offered the most famous piece of gratuitous legal advice in the history of Australia. Tomorrow is the anniversary of that advice being acted on- in the specious Yarralumla statement. The specious Yarralumla statement made no reference to the proclamation that dissolved the Parliament. But I daresay that the Attorney has seen it, and possibly had seen it before it was signed by Malcolm Fraser when he did not command a majority in this House. If the Attorney-General cares to look at that statement again he will see listed amongst the Bills upon which the Governor-General purported to dissolve both Houses of Parliament the Superior Court of Australia Bill 1974. How ironic that on the anniversary of that despicable and outrageous occasion that ghost should come back in this legislation to haunt the AttorneyGeneral.

The Attorney-General then went on to talk in very large terms about the ideals of a system of national courts, all of which we should support, and about the difficulties with Chapter III- the judicature chapter- of the Constitution. He urged the Prime Minister to place it on the agenda of the Australian Constitutional Convention. I was at the Australian Constitutional Convention and so was the present Attorney-General and neither he nor any of his co-delegates from his side of the House sought to place those questions on the agenda or in any way to have them discussed, not even laterally in relation to the retiring age of judges. The amendment deserves the support of the House.

Mr DEPUTY SPEAKER (Mr Martin)Order!The honourable member's time has expired. Is the amendment seconded?


Mr Crean - I second the amendment and reserve my right to speak.







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