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Thursday, 26 February 1987
Page: 869


Mr SPENDER(9.46) —The rationale for the scheme which is before the House is a simple and sensible one. The Opposition has some objections to the proposals, but the underlying principle is sound, and that is, that jurisdiction should be shared between the courts in our Federal system. What is proposed here is that there should be transfers of jurisdiction between Federal and State systems, from State to State and from Territory to Territory, so that all jurisdictional problems can be overcome. These proposals apply to cases where there are pending in one court and pending in another court disputes which arise out of or are related to each other. As a general principle that should be supported.

One of the problems of our constitutional system is that we divide powers in ways which may have seemed extremely sensible many years ago but which have turned out to pose practical problems, and practical problems in the administration of justice are precisely the sorts of things that should be avoided. Justice should be swift, efficient and administered in a way which avoids sterile and pointless squabbles over where a particular case should be heard or in which jurisdiction a particular case should be heard.

I can give an illustration of this. I recall when these proposals were raised a case that had been put to me just after the Federal Court system had been set up. I was called at very short notice to get an injunction. I said to my junior: `Are you sure that the new Federal Court has jurisdiction in this case?' He said `Yes, I am absolutely sure the Court has jurisdiction', but I had my doubts. We were going into court reading the Act as we went, as sometimes happens in urgent cases. I said `Are you absolutely certain of that?', and he said: `Yes, I am quite certain'. I said `Look, if it turns out that the Court does not have jurisdiction, I expect you to commit suicide on the steps'. Well, we went up to the Chief Judge of the Federal Court, which had just been established. We sat down with him and started to go through the Federal Court's jurisdiction. There were certain proposals that the Court was going to have jurisdiction over, but those proposals had not yet come into effect so we had to go elsewhere. As we went out I said to my junior: `All right, here are the steps of the Court. Now you commit suicide'. That is in some ways perhaps a mildly amusing anecdote but it has a point behind it, and the point is that the kind of problem should never arise.

The Government's proposals go a very good distance towards overcoming these problems but, as the Attorney-General (Mr Lionel Bowen) pointed out in his second reading speech, certain matters will be reserved to the Federal jurisdiction, and one of those matters is tax. One of the matters to be reserved originally to Federal jurisdiction was intellectual property, but some submissions have been made, and I suspect there has been a deal of bargaining between the State and Federal court systems. It has been decided that intellectual property should be shared between the jurisdictions and should not be simply the province of the Federal Court.

Our position is, in blunt terms: The constitutional system of courts that we have, with State, Federal and Territory courts, poses problems, as both the Attorney-General and I have pointed out, that we do not need. There is general agreement on cross-vesting so the proceedings arising out of, or related to, proceedings pending in another court can be transferred so that all related matters will be dealt with in the one court. The appropriate court will decide all issues and there will be no appeal on a determination as to which court is the appropriate court. In principle that is sensible.

As the Attorney-General is aware, one of the difficulties that have emerged in recent times arises in cases of family disputes. Not so long ago there was a decision of the High Court. The High Court held, effectively on a three to two basis, that an ex-nuptial child was not a child over which the Family Court of Australia had jurisdiction even though the Family Court had jurisdiction over children of the marriage. In that case two sets of proceedings were ultimately commenced by the wife-one in the Family Court seeking orders in relation to a child of whom the father had been given temporary custody and the other in the Supreme Court of New South Wales. Eventually the case went to the High Court to determine which court had jurisdiction. Again, that is a far more important example than the one I gave at the outset of what we do not need. For many months there was a dispute over the custody of a child, and that causes great trauma, great unhappiness, within a family and we do not need that.

We then come to the question-the principle having been agreed upon that jurisdiction should be shared-of whether there should be specialist jurisdictions. There are arguments for and against. Let me put the argument for the specialist jurisdiction, the argument which the Government and the States are putting. I understand that we are looking at co-operative legislation. Whilst we propose amendments, we would need to get the approval of the States to those amendments. But I would like the Government to listen very carefully to what I have to say and I am sure the Attorney-General will since we are not here concerned with anything but the best way of working out jurisdictional problems within our legal system.

The argument in favour of specialist jurisdiction being reserved to certain courts is that that court, or those courts, will build up a body of expertise; that therefore they will be able to deal with cases within that particular expertise more efficiently, more quickly and more cheaply than courts that do not have the expertise. I suppose that is the argument that would be advanced in favour of keeping the tax jurisdiction within the Federal Court. The problem about that argument is that it does not look at the way in which our legal system has developed nor does it look at the spread of quality of judges within our legal system.

The Australian legal system developed from the English legal system and that proceeds upon the assumption that there is an appellate jurisdiction which covers all fields. That appellate jurisdiction gives finality on all problems. The High Court is the final arbiter not simply on constitutional questions which are of such great concern to parliamentarians and governments but on all questions of common and statute law and all questions relating to equitable principles in this country. That means that judges of the High Court have to deal one day with tax matters, another day with equitable remedies, a third day with common law remedies, a fourth day with statute law and a fifth day with constitutional cases.

The system which developed within our country at the outset was modelled on the English system. Effectively, it meant that courts should be in a position to cover the waterfront so that judges within the courts would be able to apply themselves to whatever cases came before them. It could be argued that if we were a small and somewhat backward country, which we are not, if we had only a small and non-specialist Bar, which we do not have, if we had only a few judges of uncertain learning-we have many judges some of whom are of very great learning-perhaps there would be a good argument for the specialist jurisdiction. But, of course, if one looks at the Supreme Court of New South Wales, which is now to be stripped of any jurisdiction in tax cases, one can immediately identify judges of that court of profound experience in that jurisdiction. What that does is to illustrate very simply the spread of expertise within this country and the depth of expertise to be found on the benches. It should not be thought that simply because judges are appointed to the Federal Court they have some God-given expertise in Federal Court matters; nor should it be thought that judges appointed to the supreme courts of the States are simply barristers who, before being appointed judges, had experience only in State matters. Of course, the contrary is the case since those who go to the Bench represent for the most part the best the Bar has to offer. The best that the Bar has to offer means people of qualities that cover the various jurisdictions.

I do not think the case in favour of the general cross-vesting and without any reservation of jurisdiction could be put better than in the words of Sir Owen Dixon when he was sworn in as Chief Justice of the High Court of Australia. I quote from what he said in answer to the various speeches of congratulations. He referred to one of the High Court judges and went on to say:

. . . I think it has become apparent to a larger number of people, and to all the judges of the Commonwealth, that the judicial system of the Commonwealth is an integral whole and that the High Court stands merely as the final appellate tribunal in Australia in that coherent and established system which is recognised as a unit in judicial administration.

He went on to say-this is directly relevant to the question before the House:

In saying that this represents simply the appellate tribunal and the tribunal for Federal questions in the judicial system of the Commonwealth, I do not overlook the distinction which we unfortunately-

I stress the word `unfortunately'-

maintain between State and Federal jurisdiction. This is an eighteenth century conception which we derived from the United States of America in the faithful copy which was made of their judicial institutions. It is to be hoped that at some future time it will be recognised that under the English system of law, the British system of law which we inherited, the whole body of law is antecedent to the work of any Legislature and that the courts as a whole must interpret and apply the whole body of law, so that there should be one judicial system in Australia which is neither State nor Commonwealth but a system of Australian Courts administering the total body of the law.

The cross-vesting provisions in the Bills go a very great distance to achieving that goal. But by reserving specialist jurisdictions they do not go far enough. Consequently, the position that we take is that we support a second reading of the Jurisdiction of Courts (Cross-vesting) Bill. We will move amendments to that Bill in Committee. We oppose the Jurisdiction of Courts (Miscellaneous) Amendments Bill and we do so for the reason that it simply is designed to reinforce or to create specialist jurisdictions. That is unnecessary.

In the time that the Government will have between now and when this Bill is dealt with by the Senate, I ask the Attorney-General to reconsider the argument not simply in the light of what I have said, not simply in light of the views that are expressed by the various courts-one must recall that judges in courts, if they are judges of Federal courts, will perhaps have a natural inclination to believe that Federal courts should have specialised jurisdictions reserved to them just as judges in State courts are interested as lawyers in enlarging the jurisdictions that they have-but, most of all, to listen to the words that I quoted by Sir Owen Dixon, one of the very great lawyers this country has produced and one of the very great lawyers by any judgment that the English speaking world has produced in this century, and to consider what we seek to do, which is to provide effectively an Australia-wide system. That should be our objective. I commend the Attorney-General for going a far distance towards that objective. I ask him to go the extra mile.