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Thursday, 23 March 1961


Sir GARFIELD BARWICK (Parramatta) (Acting Minister for External Affairs and Attorney-General) . - by leave - I move -

That the bill be now read a second time.

The purpose of this bill is to establish the Supreme Court of the Northern Territory by act of Parliament. The present court was established by and functions under an ordinance of the Territory. Having regard to the development of the Territory, the growth of the population there, and the altered status of its political institutions, the Government feels that the time has now come when the Supreme Court should, like the Supreme Court of the Australian Capital Territory, be put on a statutory basis, with provisions similar to the provisions in the Australian Capital Territory Supreme Court Act. There is no need for me to enter here into refined questions as to the constitutional status of the Supreme Courts of the mainland Territories, which form part of the Commonwealth. Suffice it to say that the High Court has upheld the constitutional sufficiency of an ordinance to support the Supreme Court of the Northern Territory. It is, however, equally clear that there is power in the Parliament of the Commonwealth to establish this court by statute and, in the present situation, the Government feels that it is appropriate to do so.

The tenure of the judges of courts created by Parliament is laid down by section 72 of the Constitution and the judges of the court established under this bill will of course have that tenure. The judges will hold office for life, As to the number of judges, honorable members will observe that the bill adopts for the Northern Territory a principle that was put into operation in the Australian Capital Territory in 1958. Clause 7 contemplates that one judge will be appointed giving his full time to the work of the court. I may call him, although that is not his official title, the " regular judge ".

The bill then, in order to make provision for the carrying on of the work during the absence of the " regular judge ", contemplates the appointment as " additional judges " of the Northern Territory of judges of other courts created by the Parliament. The " additional judges " would not receive any additional salary in respect of the Northern Territory appointment and would normally sit only in their own courts, but would be available as circumstances required to sit in the Northern Territory Supreme Court. By this means, I hope to ensure that in the future, in the event of the illness of the judge, or of his absence on duty in another Territory or of a vacancy, there will always be a judge available for the work of the Northern Territory Supreme Court.

Provision is also made in the bill for the appointment of the " regular judge " of the Supreme Court of the Northern Territory as an " additional judge " of some other court - for example, the Supreme Court of the Australian Capital Territory. This, the Government hopes, will open the way to a most useful interchange of judges from time to time, which should in particular alleviate the isolation and physical strain of life in the tropical north. It is a necessary concomitant of this scheme that the Northern Territory judge should have the same status and receive the same salary as the other judges included in the scheme, and this bill and a supplementary bill to amend the Judges' Pensions Act provide accordingly.

The provisions to which I have already referred are contained in clause 4 and clauses 6 to 9 of the bill. Clause 15 defines the jurisdiction of the Supreme Court of the Northern Territory. Broadly, it continues as hitherto. The basic jurisdiction of the court will be the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to that State at the time the Territory passed to the Commonwealth in 1911. This jurisdiction may, from time to time, be added to by ordinance of the Legislative Council and the court will also continue to have jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, being matters arising in or under the laws in force in the Territory. In addition the court will sit as a court of appeal, with such exceptions and subject to such conditions as are provided by act or ordinance, from all judgments of inferior courts in the Territory.

Part VI. of the bill makes extended provision, along lines familiar in the Australian Capital Territory, for appeals to the High Court of Australia. Under the Supreme Court Ordinance of the Northern Territory, an appeal from the court is possible only with the leave of the Full Bench of the High Court. Under the bill, no leave will be required where appeal is brought from a judgment in a civil matter which (a) is given or pronounced for, or in respect of, a sum or matter at issue amounting to or of the value of £1,500, (b) involves a claim, demand or question to or respecting property, or a civil right, amounting to or to the value of £1,500, or (c) affects the status of a person under the law relating to aliens, marriage or divorce; or where appeal is brought from a conviction on indictment on any ground of appeal that involves a question of law only. Until such time as we can provide for an appeal court to hear Territory appeals, appeals in divorce cases must go to the High Court without leave from the Supreme Courts of the Australian Capital Territory and the Northern Territory.

The concurrent administration of law and equity in the Supreme Court of the Northern Territory is regulated by Part III. The customary administrative and procedural provisions are to be found in Parts

IV., V., and VII. Perhaps I should specifically direct the attention of honorable members to clause 55, which authorizes the " senior judge " to make rules of court to govern its practice and procedure. As is the case under the Australian Capital Territory Supreme Court Act, and is also the current position in regard to rules of the Northern Territory Supreme Court under the ordinance, the bill provides that rules so made may be disallowed by the Attorney-General by notification. The notification is to be published in the " Government Gazette " of the Territory. Provision is made for the present rules to continue in force, as if they had been made under the act.

Transitional provisions are contained in clause 4, which enables proceedings already commenced to be completed as if they had been instituted m the new court, and allows appeals to the new court from judgments given in lower courts before the commencement of the act. The act is to come into operation on a date to be fixed by proclamation.

I commend the bill to the House, Mr. Speaker.

Debate (on motion by Mr. Whitlam) adjourned.







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