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Wednesday, 5 October 1983
Page: 1376


Mr SPENDER(4.44) —The Statute Law (Miscellaneous Provisions) Bill (No. 2) is of a kind which is common in this House and which I think on this occasion is correctly described as a housekeeping measure. Its purpose is for the main part to deal with a large number of non-controversial amendments to various Acts of Parliament. It is a valuable, if for the most part fairly unexciting, exercise for those who are involved in examining it. There is one matter of considerable importance in this Bill to which I wish to refer, and that is the amendment which is proposed to the Judiciary Act. As matters presently stand, the High Court of Australia has jurisdiction in respect of writs of mandamus prohibition or injunction where a writ of mandamus, prohibition or injunction is sought against an officer or officers of the Commonwealth. These are most important writs. Broadly described, the purpose of a writ of mandamus is to compel a subordinate tribunal to hear and determine a matter in accordance with the law. The purpose of a writ of prohibition is to provide a means to challenge and to prevent a subordinate tribunal acting in excess of its jurisdiction. The purposes of a writ of injunction, which are various, may broadly be described as being to ensure that persons act in accordance with the law or to prevent them from acting in a manner which is contrary to the law.

The reports of the High Court are littered with cases in which certiorari, a writ of mandamus or injunction, has been sought before that Court. To a very large extent the Court has become bogged down in that jurisdiction. Let me give an example of a case in which I was involved some years ago. The facts were very simple. The then Minister for Immigration had ordered the deportation of two people. It was claimed on their behalf that he had failed properly to consider their case; therefore he had failed to exercise his duties in accordance with the principles of natural justice and a writ should issue from the High Court compelling him to exercise his duties in accordance with those principles. For this purpose a court of seven justices was assembled one fine morning in Melbourne. This matter could very easily have been disposed of by a very much less prestigious court. It was a relatively straightforward matter. All the court needed to do was to look at the facts and consider what followed from them . But because there was then no mechanism to permit other courts to exercise the High Court's jurisdiction, that case had to go before the High Court. I commend the Government on introducing the amendment which it has introduced which should go some distance to relieving the High Court of an unnecessary workload.

There are two significant omissions from what the Government proposes. It seems as though the process of drafting the Bill rather overtook the explanatory memorandum. For all those who seek to rely upon explanatory memoranda as aids in construction this might be a valuable lesson. On page 27 of the explanatory memorandum the following is stated in respect of the proposed amendments:

Proposed new sub-section 39B (3) provides that the jurisdiction of the Federal Court of Australia with respect to a matter in which a writ of mandamus or prohibition or an injunction is sought against the President or a Deputy President of the Australian Conciliation and Arbitration Commission or against another Tribunal constituted by a President or Deputy President of the Commission shall be exercised by a Full Court of the Federal Court of Australia.

There is one little problem about that; there is no proposed section 39B (3). If one goes back to the preceding paragraph in the explanatory memorandum, one sees that it refers to proposed new section 39B (2) and that the powers exercisable under that provision-I paraphrase this-shall not include a reference to a member of the Australian Conciliation and Arbitration Commission constituting a full bench of that Commission.

The fact of the matter is that somehow, when the explanatory memorandum was being drafted, the Bill must have been in a different state from that in which it presently is. Before the explanatory memorandum hits the deck in the Senate, perhaps some adjustments could be made to reflect what the Bill actually proposes. I can only assume that there may have been within the Government some disputes as to whether the Conciliation and Arbitration Commission-and this is a very frequent source of cases going to the High Court of Australia by prohibition-should be relegated to the Federal Court or whether the Federal Court should have any jurisdiction in respect of that body. I notice that, in his second reading speech, the Deputy Prime Minister (Mr Lionel Bowen) correctly points out the actual effect of what is proposed here. The second reading speech was right although the explanatory memorandum was not. The Deputy Prime Minister said this:

The Federal Court will not initially have jurisdiction under the proposed new legislation in relation to matters arising before the Australian Conciliation and Arbitration Commission, the Public Service Arbitrator, the Coal Industry Tribunal or the Family Court of Australia. However, further consideration is being given to extending the capacity of the High Court to remit matters under section 44 in relation to these areas.

Might I suggest to the Deputy Prime Minister and to the Government that there seems to be no reason at all why cases which arise from the Conciliation and Arbitration Commission and which go to the High Court on a question of jurisdiction-for example, whether there is an industrial dispute over the meaning of section 51 (xxxv) of the Constitution-should not be dealt with by the Federal Court.

If those cases were dealt with by the Federal Court, the High Court would be relieved of a jurisdiction which is quite unnecessary and it would also make the process very much quicker for the parties. Recalling how heavy the workload of the High Court is, I point out that the fact of the matter is that once we become involved in the process of testing the jurisdiction of the Conciliation and Arbitration Commission by going to the High Court, cases which should be dealt with quickly, on their merits and with the least amount of technicality get bogged down by reason of the very heavy workload of the High Court. One may have to wait for a year or more to get a decision on a question which could be dealt with very much more quickly and indeed very much more cheaply by the Federal Court.

As I said, while commending the Government for the steps it made in conferring on the Federal Court a jurisdiction to entertain these writs and also the increased power granted to the High Court to remit matters or parts of matters to the Federal Court, I ask that the most serious consideration be given by the Government to overcoming the kind of problems to which I have already referred and to conferring on the Federal Court jurisdiction to deal with prohibition mandamus matters which concern any matter arising out of a dispute before the Conciliation and Arbitration Commission. The same comments could also apply to the Family Court. I see no reason why there should not be an appeal from the Family Court to the full Federal Court and that, thereafter, special leave be given to remit important matters from the Federal Court to the High Court if the High Court thinks that leave is requisite in all the circumstances.