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Wednesday, 1 December 1965

Mr KILLEN (Moreton) .- 1 shall reply briefly to my honorable and learned friend, the honorable member for Parkes (Mr. Hughes). I was delighted with his refreshing return to the pristine qualities of the common law. However, I respectfully remind him that we are dealing on this occasion with a tribunal whose decisions will not be readily reviewable in a court of law. That is the first point I make. My honorable friend will recall that in my speech on the motion for the second reading of the Bill I laboured, possibly a little too heavily, the fact that this was to be a tribunal vested with tremendous discretionary powers which made the scope for the successful prosecution of a prerogative writ rather remote. That is the first count on which I invite my honorable friend to reconsider his stand. The second count on which I invite him to do so is this: Here is a tribunal that does not provide what I describe as a proper system of appeal. We simply have a review. There is no appeal to a court on a point of law. I put it to the honorable gentleman that those two arguments combine to make up a substantial case for the removal of this provision from this clause. If there is any defect or any irregularity in the constitution of the tribunal, there is no means readily available, by way of prerogative writ, to appeal. In this case, there is no appeal open whatsoever.

My friend has referred to the views expressed by Sir Owen Dixon. May I respectfully draw his attention to the views which are expressed on page 62 of "Judicial Review of Administrative Action". They relate to the question of res judicata and are as follows -

Neither the order nor the findings can be upheld on the ground that they are res judicatae only that which is the subject of adjudication by a body exercising judicial functions can be res judicata.

Is my friend describing this as being a judicial tribunal? It is not.

Mr Whitlam - He is not quoting the principle of res judicata but the magazine " Res Judicatae ".

Mr KILLEN - If that is the case, I apologise to him. I thought that was the principle on which he was seeking to impugn my argument. I withdraw my argument and ask to be allowed to expunge it from the record. My argument is that this is a tribunal that has power to make determinations of tremendous significance to the Australian economy. Its decisions are not open to review by way of the ordinary prerogative writ or by way of the ordinary appeal system. I fail to see why we should give to this provision the approval of this Committee or of this Parliament when it suggests that any defect or irregularity in the constitution of the tribunal will not raise the presumption that it could be called in question. I will not press the argument. I have no doubt that honorable members will be persuaded by what I have put to them.

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