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Tuesday, 18 April 1961


Mr SNEDDEN (Bruce) .- This is not the kind of bill which should produce acrimonious debate and I am glad that it has the support of the Opposition because this relieves me of any responsibility, as a participant in the debate, for considering its provisions, particularly as the Deputy Leader of the Opposition (Mr. Whitlam) has himself forgone the opportunity to do so. I support the matter that he raised relating to the constitution of an appeal bench which would be an intermediary between the single judge sitting alone - which may be equated to a single judge sitting in the State jurisdiction - and the High Court. This function is fulfilled in State jurisdictions by the State Full Court from which a great deal of case law emerges. A statement of principles can then be drawn up and, in many cases, it obviates the need to approach the High Court.

Another advantage of such an intermediate appeal court is that the High Court is left to exercise the role of an ultimate court of appeal. As far as possible it should be left free of the basic appeals which nor mally go to a State full court. 1 see the High Court in the role of an ultimate appeal court, such as is the Supreme Court of the United States of America. There is not the same appellate concentration in the High Court as there is in the Supreme Court of the United States largely because there is an appeal to the High Court of Australia against decisions of the single judges of the Territories.

I think that what the Deputy Leader of the Opposition has said is true, in that we can expect that all judges of the present court styled the Commonwealth Industrial Court will become additional judges of the Supreme Court of the Northern Territory. If this be so, there will then be five judges who will be available to constitute full courts, if I may use that term, in the Northern Territory. If there were five judges, and three of them constituted a full court at a particular time, only two would be left. There could be an awkward situation on many occasions if the Commonwealth Industrial Court were exercising its jurisdiction with three judges, and something occurred to make it necessary for the Supreme Court of the Australian Capital Territory to sit at the same time. In such a situation the Commonwealth Industrial Court would be exercising its jurisdiction with three judges, and the Supreme Court of the Australian Capital Territory exercising jurisdiction with one judge. This would account for the four judges who are available at the present time and would leave a single judge in the Northern Territory. He, of course, as a single judge, and as the judge whose decision was being appealed from, could not constitute an appeal court. He could act as a single judge in the Supreme Court of the Australian Capital Territory, so that another judge was made available for the Northern Territory, but only one judge would be available. It would appear that even if this intermediate appeal structure were built for the Northern Territory, or for the Australian Capital Territory - and I take it that the Deputy Leader of the Opposition intended his remarks to apply to the Australian Capital Territory as well as to the Northern Territory - and even if there were to be an appeal tribunal of two judges only, this would still mean the appointment of an additional judge to the Commonwealth Industrial Court, as it is now termed.

The constitution of an appeal court by two judges is not remarkable, because for many years in Western Australia, as I know from my experience as a law clerk some years ago, the full court was often constituted by two judges only. On some occasions when three judges were required, the third was actually the judge whose decision was appealed from. But that occurred only in criminal matters, in which I believe there was a requirement for a court constituted by three judges.


Mr Whitlam - That happens in Tasmania, too.


Mr SNEDDEN - In Tasmania also, yes. As I say, it is not unusual for two judges to constitute an appeal court, especially in jurisdictions in which the number of judges is small in any case. 1 should like to see, first, the construction of an intermediate appeal court. In order to achieve this it would be necessary to appoint additional judges, and I would like, therefore, to see these judges appointed, or at least one judge appointed. In addition, I would like to see the title " Judge of the Commonwealth Industrial Court " changed, and some nomenclature adopted which would refer to a judiciary exercising a wide range of jurisdictions, either by means of single judges or as appeal courts exercising appellate jurisdiction. I consider the term Commonwealth Industrial Court " inappro priate for the functions I have in mind, and even for the functions that the court is now exercising.

I agree, therefore, with the point made by the Deputy Leader of the Opposition in this regard. As to his first point, regarding the making of a new code, I am afraid I did not clearly understand what he meant by a code. I presume he had in mind, not a code setting out the substantive law, but a code setting out practice, procedure and rules. Perhaps the honorable gentleman could tell me whether I am correct in that supposition.


Mr Whitlam - That is right.


Mr SNEDDEN - The proposition having been qualified in that way, I support it. A point that comes to my mind is that a task of great magnitude is contemplated, and I would not like the passage of this bill to be delayed while we await the construction of a code. It would take a very considerable period to construct a code such as that referred to by the Deputy Leader of the Opposition, and I do not think that such a considerable period would be available to the Attorney-General or the officers of his department, having regard to the very great demands that are being made on their time. Perhaps this is the kind of job in which the Attorney-General and his department could be assisted by the members of the legal profession in general, through the Australian body. This matter may, indeed, have some relation to the points raised by the Chief Justice and referred to by the Deputy Leader of the Opposition at the tenth legal convention in 1957.

Insofar as I have been able to assess the situation, the legal profession as a whole in Australia is most eager to fulfil any duties that it can fulfil for the facilitation of the development of legal processes and codes or anything of that kind. I am sure the profession would welcome an invitation from the Attorney-General to consider such a matter as this, although the consideration of it will take a great deal of time. The Deputy Leader regards this as a matter applying to the Territories only, and, of course, it must apply to the Territories only insofar as this Commonwealth Parliament has any legislative authority.


Mr Whitlam - If I may interject, 1 would say that it should apply also in actions between citizens of different States, and so on.


Mr SNEDDEN - Using the High Court as the vehicle of the jurisdiction?


Mr Whitlam - Yes, or other federal courts we create.


Mr SNEDDEN - Well, that may be so. It is something which I think deserves attention, but which should be kept in the background when considering this bill as a bill.

Debate (on motion by Mr. Nelson) adjourned.







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