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Tuesday, 18 April 1961

Mr WHITLAM (Werriwa) .- I move -

After sub-clause (5.) insert the following subclause: - " (5a.) Where the Attorney-General disallows any Rule of Court, he shall cause a statement of the reasons for disallowance to be laid before each House of the Parliament as soon as possible, but in any case within fifteen sitting days of that House, after the date on which the Rule was disallowed.".

This is an amendment to the clause which gives the senior judge of the Northern Territory Supreme Court the right to make rules of court subject to disallowance by the Attorney-General. The clause as it stands provides that when the Attorney-General (Sir Garfield Barwick) disallows any such rule he must notify the disallowance in the Government " Gazette " of the Territory. Section 22 (2.) of the Supreme Court Ordinance of the Territory, the existing provision, is in these terms -

All Rules of Court made in pursuance of this section shall be published or notified in the Gazette, and copies thereof shall be forwarded to the Attorney-General after the making thereof.

Which " Gazette " is referred to does not appear from the Supreme Court Ordinance. Nor does it appear from the Interpretation Ordinance of the Territory.

Sir Garfield Barwick - The Interpretation Ordinance says that it is the " Government Gazette of the Territory ", does it not?

Mr WHITLAM - Which section of the ordinance says that?

Sir Garfield Barwick - I cannot tell the honorable member, but I know that the ordinance says that.

Mr WHITLAM - There are several references to the " Gazette " in the Interpretation Ordinance. I have not been through the Supreme Court Ordinance exhaustively, but it would seem that the provision in that ordinance could be fulfilled by notifying the disallowance in either the Commonwealth " Gazette " or the Territory " Gazette ". In that ordinance, the position is not succinctly put as in our Acts Interpretation Act, which provides that the word " Gazette " in any of our acts means the " Commonwealth of Australia Gazette ".

The Opposition does not think that notification in the Territory " Gazette " is sufficient, because that " Gazette " is not readily available and certainly is looked at only rarely by people outside the Territory.

Mr Crean - It is not a best-seller.

Mr WHITLAM - No, and there are not many on the free list, either.

The provision that we have proposed is in terms similar to those which the Parliament approved in 1959 in amending the Northern Territory Administration Act. Sub-section (2.) of section 4z of that act, which was inserted by section 17 of the 1959 act, provides -

Where the Governor-General . . . disallows an Ordinance . . . The Minister shall cause a statement of the reasons . . . for disallowance . . . to be laid before each House of the Parliament.

The words of the sub-section then proceed in the same terms as do those of the amendment.

That is what the Parliament has done in respect of ordinances of the Legislative Council for the Northern Territory. We consider that the same procedure should be applied in respect of rules of court made by the judge of the Supreme Court of the Territory. Various procedures are laid down by this Parliament for the disallowance of rules of court. Section 87 (2.) of the Judiciary Act states in relation to rules of court made by the High Court -

If either House of the Parliament passes a resolution, of which notice has been given within fifteen sitting days after the Rules have been laid before the House, disallowing any Rule, that Rule shall thereupon cease to have effect.

High Court rules are not only notified in the Commonwealth " Gazette "; they are tabled in both Houses of the Parliament and can be disallowed only by a resolution of either House. The Bankruptcy Act, in section 223, requires that the rules which the Governor-General makes for the Federal Court of Bankruptcy shall be notified in the Commonwealth " Gazette ", shall take effect from the date of notification or from a later date specified in the rules, and shall be laid before both Houses of the Parliament within 30 days after the making thereof or, if the Parliament is not then sitting, within 30 days after the next meeting of the Parliament. The procedure for disallowance is the same as in the case of the High Court rules: A resolution of either House of the Parliament is required, notice of that resolution having been given within fifteen sitting days after the rules were tabled in the House which passes the resolution.

More recently, provision has been made in the Australian Capital Territory Supreme Court Act for the Judge of the Supreme

Court of the Territory to make rules. Section 28 (4.) of that act states -

The Attorney-General may, by notification in the " Gazette ", disallow any Rule of Court, and thereupon the Rule so disallowed shall cease to have effect.

The reference there is to the Commonwealth " Gazette ".

Our view, Sir, is that disallowance should be notified at least in the Commonwealth "Gazette". That is the "Gazette" in which members of the Parliament or, for that matter, members of the public, and members of the legal profession normally look for notifications by the AttorneyGeneral and other Ministers. But we go further. We believe that the appropriate procedure for disallowing rules of court should involve this Parliament. We do not go so far as to say that rules of court should be disallowed only by a resolution of either House of the Parliament, as is the case in respect of rules of the High Court and the Bankruptcy Court, but we do say that a report should be made to the Parliament on any disallowance by the AttorneyGeneral. By making such provision, we shall provide for the disallowance of all delegated legislation in the Northern Territory to be notified to this Parliament. Accordingly, I have proposed the amendment in the terms that are before the committee.

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