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Wednesday, 5 April 2000
Page: 15318


Mr KERR (5:58 PM) —The fact that we have to address the substance of this legislation, I believe, is very unfortunate. It is unfortunate because the decision in re Wakim has unravelled the substance of what I think was one of the most significant legal advances in the Commonwealth since its foundation in 1901. Ever since the Commonwealth was established, litigants have been bedevilled by in which jurisdiction they should pursue their action. I recall that in the early days when I began to practice I found that those cases most litigated in the higher courts of Australia were those touching upon whether or not a matter was properly prosecuted in state courts or federal courts and which of those forums were appropriate for the resolution of disputes. Because of the way in which there was no consistency allowing a single matter to be fully litigated in one particular forum, it meant that some components of actions had to be dealt with in one court and other components in others. It also led to a complexity and morass of legal red tape, higher costs, greater inefficiencies and a situation which I think could be only accounted as a public disgrace.

In response to that, the parliaments of Australia ultimately resolved to establish a cross-vesting scheme. The nature of the cross-vesting scheme was that the federal parliament would ensure that with respect to jurisdiction which the federal parliament conferred on courts—they have always been constitutionally open to it—jurisdiction to hear and determine matters arising out of federal matters could be undertaken either in the federal courts or in state courts. Arrangements insofar as which of those forums were appropriate were worked out in practice through decisions of courts not to entertain matters where a more appropriate forum was available. There was no legal arrangement which prohibited a court which was seized of a particular matter from dealing with the entirety of that matter and the technical difficulties that had hitherto been the bane of any lawyer's life—except to the extent that some accrued considerable professional skills and remuneration as a result of it. But a practical bane of every lawyer's life was removed.

The states for their part passed reciprocal legislation sharing jurisdiction with federal tribunals so that the scheme was complementary and it meant that a litigant no longer was bedevilled by the kind of arcane, complex, expensive but essentially futile legislation that had characterised much of the litigation in the higher courts that had been happening previously. The Wakim decision arose in circumstances where that cross-vesting scheme was challenged. The argument was advanced that, whilst the Commonwealth always has power to vest state courts, clearly from the start with federal jurisdiction that was necessary because, when the Commonwealth was founded in 1901, the High Court was not even in existence in a formal sense. So, whatever mechanisms were required for the administration of justice, they would necessarily require the hearing and resolution of disputes in state forums and courts. So the Constitution envisaged plainly that the federal parliament could invest state tribunals and courts with federal jurisdiction. The challenge was taken on the basis that reciprocal cross-vesting arrangements were constitutionally invalid. In other words, the Constitution had not envisaged that states could invest federal courts, if so created, with state jurisdiction.

Unfortunately, I think it is a mark of the distance between practical reality and the manner in which the court addressed this matter that six of the seven High Court justices were persuaded that states lacked that constitutional power to undertake something which had been in practice for over a decade and which had so remarkably changed the practical way in which litigation was conducted. In the High Court, all state and territory governments were as one in saying that this arrangement, which was so practically effective and beneficial, should be maintained. Indeed, I think every law society and bar association would have shared similar views. Regrettably, however, that was not the outcome of the litigation.

Without any disrespect to those judges who found themselves holding the view that the Constitution had not envisaged a situation where states could vest federal courts with a state jurisdiction, I might say that the dissenting judgment, whilst a lone voice, in my mind was a powerfully persuasive and well-reasoned argument. It strikes me as showing a significant disconnect between what we might say is an appropriate recognition of the kind of constitutional responsibility that one could normally expect of a High Court that the outcome was so achieved. It was not necessary in relation to any body of precedent that the court had before it. As the single dissenting judgment so plainly and eloquently set out, it was not required on the plain reading of the Constitution, and there was nothing in the Constitution which required it to be so found by way of direct inference. In other words, it was a conclusion that the High Court found itself drawn to by reason of sophisticated legal argument where the practical consequences of this judgment were entirely discounted but which was not required by the plain reading of the Constitution. One would have thought that greater weight would have been given to the submissions coming before the court by all those who are concerned about the practical operation of the federation.

I think it says something about the way in which government has failed to engage itself sufficiently in direct and constant dialogue with the court that this outcome could have arisen. It is some time since Commonwealth attorneys-general have taken it upon themselves to appear before the High Court of Australia. What we find now by way of intellectual exchange between the court and the government of the day seems often to be conducted in tones which are really that of antagonism and distance, rather than those of co-responsible partners in a federation which requires the effective understanding of each other's roles.

I think that the discomfort the court has been placed in by attacks by senior members of the government upon their constitutional roles has, to some extent, permeated the court and created a sense that they are an institution increasingly isolated and under siege. That has diminished the mutual respect that should exist between legislatures—in this instance federal and state legislatures—seeking to obtain outcomes that will benefit all citizens. Whilst I understand—but do not agree with—the Attorney's decision to regard himself as essentially a political officer rather than having any responsibility to defend the judges in relation to the roles they play, the fact that the principal law officer of the Commonwealth of Australia has walked away from that role further emphasises, I think, the distance that has come to exist between this parliament, and this government in particular, and the highest court of the land. That distance has been emphasised by attacks on the findings of the court in relation to the Mabo decision, the Wik decision and a range of other decisions which have been made by the court in recent times.

Nothing I say should suggest that I would be seeking, for my own part, to further that distance. In making these remarks I am not seeking to widen the gulf by in any way suggesting that any of the six judges did not act in a way which, in their thoughtful judgment, they thought appropriate and fit. Had there been a better understanding between the executive and the courts and between the respective legislatures there would not have been an outcome so transparently inconvenient—if I can put it at its lowest—to the good government and administration of the Commonwealth. The fact that the judgment could be made on such flimsy grounds does suggest that we need to seriously look at the way in which there is an interface between the highest court of the land, the judiciary, this parliament and the executive.

Might I suggest that some measure of better communication needs to be put in place. I have informal discussions from time to time with justices of the High Court—both former and present. It is not appropriate to disclose the nature of those discussions—they are always private—but I think there is a great sense of disquiet about the way in which the court has been addressed by those serving in the parliaments. I think there is also an increasing sense that the court cannot assume that the parliament will undertake its responsibilities and therefore there is a sense sometimes that the court has to step in and address matters which the parliament itself has decided to not respond to. That leads to some great and potentially serious divides between these important institutions of our national government. Of course, the Constitution of Australia divides the responsibility for the good government of Australia into three branches: the executive branch, the legislative branch, and the judicial branch. But the responsibility to make certain that each component of those branches understands the consequences that flow in relation to all of these matters is one which is not uniquely restricted to one division of those three tiers of government.

I might say that it is not infrequently the case that the court is not provided with adequate or sufficient information in relation to the consequences of its action nor is it briefed or given appearances before it by officers of the executive of sufficient standing and weight to enable those representations to be taken properly into account. It is not a satisfactory situation to find, for example, that in significant constitutional cases key matters of importance in relation to the consequences of public action have not been adequately put before that court.

I also think it is very important to suggest that there is a need for the Attorney himself to regard it as an important role to appear before that court from time to time. Whilst the Attorney has increasingly characterised his role as that of a political officer, it makes it very difficult for the government to continue to have an effective and appropriate relationship with the High Court of Australia if all the interchanges between the executive and the judiciary are by megaphone dialogue on the front pages of the newspapers as each disparages the other or, if the only advocacy that occurs on behalf of the Commonwealth is by counsel briefed on its behalf rather than appearances in the appropriate case by the highest law officers of the Commonwealth—that is, the Attorney or certainly the Solicitor-General—clearly acting with broad and appropriate instructions from the Commonwealth so that the court can be made fully aware of the practical consequences of a particular course of action.

In this particular matter I find it distressing that I can only characterise the decision that has been arrived at as one where the court, for reasons which are not necessarily apparent from the Constitution, chose an outcome or regarded itself as able to reach an outcome so manifestly inconvenient, so manifestly causing of difficulty, so manifestly going to cause extra expense, more red tape and a tremendous amount of administrative difficulty in the resolution of the problems that may arise as a consequence of it when that was plainly not the only obvious solution.

I remember from the days when I was in practice and when I was dean of a law school that we started from the presumption that, where two possible interpretations of the law were open, the court had to take into account a whole range of social and other factors but would look to an outcome that was not mischievous and that best suited the facilitation of the purpose of the statute to be interpreted. In this case the statute was the Commonwealth Constitution. The purpose of that Com-monwealth Constitution was to establish a nation. If it is appropriate to say that it was necessarily to infer that national government therefore has certain implied powers, surely it is appropriate to infer that it would have been the intention of those creating that constitutional framework that no absurd outcome, so mischievous of the implementation of a convenient system for the resolution of disputes before the court, was so required to be found. As I indicated, the single but powerful dissent made it plain that no such conclusion was necessarily to be drawn.

That brings us to where we are now. We are presented with a situation where the court has made this finding and we have to fix it as best we can. This is not going far enough to fix it as best we can. These are a series of measures which do some of the things that start the process of fixing it to a certain degree, but it will still be messy. It will still be inconvenient and it will still give rise to a large number of problems in the practical administration of justice, even after these changes are made. I would commend to the Attorney, particularly in the corporations area, the reflection that it is not outside this Commonwealth parliament's power to use directly the corporations power to overcome entirely some of the issues, to vest the power to hear all corporations matters—other than those which go to the formation of corporations, which is outside this parliament's power—relating to the administration, conduct and disputes in relation to corporations matters in the Federal Court, because that court is well suited for those matters. It has judges who are now not being utilised properly, because the work has been taken from them in many areas. That would be a bolder way of dealing with it than this partial measure that the Attorney has addressed.

It is also open, of course, to look at some constitutional amendment. The shadow Attorney has put that forward. Given that we have reached such an inconvenient outcome, I would have thought that it would be open for the government to think about putting such a constitutional referendum at the time of the next election so as not to increase expenses. Supported by both sides of the parliament, it would have a good prospect of passage. It may well be that, if subsequent decisions that are before the court find themselves adjudicated in a similar way without regard to the practical consequences, that will not only be a possibility but a necessity. (Time expired)