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Thursday, 30 September 1971
Page: 1732


Mr SINCLAIR (New England) (Minister for Primary Industry) - I move:

That the Bill be now read a second time.

There are two main purposes of this Bill, which relates to the Supreme Court of the Australian Capital Territory. One is to make provision with respect to the tenure of office of the Judges of the Court. The other is to provide for theappointment of another Judge. The present position is that the Supreme Court of the Territory consists of two Judges appointed under subsection (1.) of section 7and such'additional Judges' as have been appointed under sub-section (2.) of that section. To be eligible for appointment as an 'additional Judge' a person must already be a Judge of another Commonwealth Court. There are at present 6 such additional Judges and they are all Judges of the Commonwealth Industrial Court.

The number of Judges that may be appointed under sub-section (1.) of section 7 was increased earlier this year from one to 2 by the Australian Capital Territory Supreme Court Act 1971. This was to provide for the appointment of a Judge who would become the first Chairman of the Law Reform Commission of the Territory.

Mr JusticeBlackburn has since been appointed to this judicial office and also to the position of Chairman of the Law Reform Commission. The Supreme Court of the Australian Capital Territory was established on the basis that it was a federal Court for the purposes of the Commonwealth Constitution and that the tenure of office of the Judges of the Court was accordingly governed by provisions in Chapter III of the Constitution. That is to say, the Act was enacted on the basis that a Judge of the Court would hold office for life, subject to resignation or removal from office on an address of both Houses of Parliament for proved misbehaviour or incapacity.

In April of this year the High Court of Australia decided, in the case of Capital T.V. and Appliances Ltd v. Falconer, that the Supreme Court of the Territory was not a federal court, but a court of the Territory. A consequence of that decision is that the provisions in the Constitution with respect to the tenure of office of federal Judges are not applicable to the Judges of the Supreme Court of the Territory. The High Court's decision has accordingly disclosed a need for the tenure of the Judges of the Territory Court to be provided for by statute and the present Bill makes such provision. The Bill amends section 7 to provide that a Judge appointed under subsection (1.) is to hold office until he attains the age of seventy years. There is an undoubted trend these days against life appointments and, in relation to Judges, this has resulted in retiring ages being fixed in all of the States. In each of the States except Victoria the retirement age is seventy. In Victoria the retirement age fixed is seventy-two. The requirement of the Bill that Judges retire at seventy is subject to an exception in the case of a Judge who held office in the Supreme Court of the Australian Capital Territory or the Northern Territory on the date of the High Court's decision in the Capital T.V. case. Appointments made prior to that decision were made and accepted on the basis that they carried life tenure and that basis should not be varied at this stage.

The tenure to be provided for the additional Judges must take account of the fact that the primary judicial appointments of such Judges will generally be to federal

Courts and accordingly governed by the Constitution. The Bill provides, therefore, that an additional Judge is to hold office as such while he continues as a Judge of another Court created by the Parliament. It has been necessary also to make provision as to the removal of Judges from office. In this regard the Bill introduces a provision which, in its effect, is the same as the provisions that apply to Judges of federal Courts.

The second of the major amendments effected by the Bill is to be found in clause 5. Experience over the last year has made it clear that another Judge without conflicting commitments to a Court outside the Territory is needed to enable the Supreme Court of the Territory to deal with the cases coming before it. There is at present a waiting period of approximately 8 to 10 months from the time a civil case is set down for trial to the time when it can be heard. Honourable members will agree, I am sure, that this is quite unsatisfactory. Recently Mr Justice Blackburn has been giving a great deal of his time in assisting with the judicial work of the. Court, but it is desirable that he should be able to devote most of his time to his duties as Chairman of the Law Reform Commission. This will be facilitated by the appointment of the further Judge provided for in this Bill.

I come now to the amendments concerning matters of procedure. Clause 7 of the Bill amends section 8 to enable the jurisdiction of the Court to be exercised in appropriate cases by the Registrar. The classes of matters that the Registrar may deal with will be specified in the Rules of Court, and there will be an appeal to a Judge. This amendment will bring the Supreme Court of the Territory into line with the Supreme Courts of the States by making available a procedure long accepted as necessary to the proper working of a superior Court. The first amendment effected by clause 8 relates to the exercise by the Court of disciplinary powers over legal practitioners. Under section 8AA of the Act, a matter arising under an ordinance and relating to the professional behaviour of a legal practitioner is to be dealt with by a Court constituted by 3 Judges. However, such matters may arise otherwise than under an ordinance, and these are at present left to be dealt with by a single Judge. The Bill removes this inconsistency by making all matters relating to the conduct of legal practitioners cognizable by a Court of 3 Judges.

As the Act stands, the only matters that may be dealt with by 3 Judges sitting together are those which relate to. the admission and professional behaviour of legal practitioners. However, there may be other matters in which it is desirable that more than one Judge be present. For example, a matter may raise a question of law that has been the subject of differing opinions expressed by the Judges and for the resolution of which it is desirable that a Court of 3 Judges be constituted. Clause 9 therefore introduces a new provision to enable the jurisdiction of the Court to be exercised by not less than 3 Judges whenever it can be shown to the satisfaction of a Judge that such a procedure is desirable. Section 28 of the Act at present vests the power to make Rules of Court in the Judge of the Supreme Court. Consistently with the increase in the number of Judges provided for by this Bill, clause 11 (a) provides for the rule-making power to be vested in the Judges appointed under subsection (1.) of section 7 or any two of them.

Clause 11 (d) includes amongst the matters on which Rules of Court may be made the qualifications for admission of legal practitioners in the Territory. This matter is at present governed by an ordinance, but it is usual for the Judges of a Court to regulate certain aspects of the requirements for admission to their Court. The amendment will accordingly bring the Territory into line with the position in the States. The Act at present authorizes Rules of Court providing for the service .and execution of the process of the Court. It goes on, however, to mention specifically service of process outside the jurisdiction as a matter on which Rules may be made but makes no mention of execution of process outside the jurisdiction. This approach has given rise to certain doubts in the minds of practitioners as to the means by which process of the Court may be executed outside the Territory. To enable these doubts to be overcome clause 1 1 (e) of the Bill provides for the extension of section 28 to authorize Rules dealing with execution - as well as service - of process outside the Territory.

The disallowance of a Rule of Court does not, at present, revive a Rule revoked by the disallowed Rule. Clause 1 1 (f) of the Bill reverses this situation, thereby bringing the position regarding Rules into line with that obtaining in respect of Ordinances. The only remaining amendment of substance is effected by clause 13. Under sections 38 and 39 of the Act, evidence at the hearing of a cause must, as a general rule, be given orally unless the parties agree to the contrary. Evidence of particular facts may, however, be given by affidavit where good reason can be shown. It seems desirable that greater flexibility in the use of affidavit evidence be allowed, and the Bill accordingly provides that a Judge may order that all or part of the evidence be produced on affidavit. The remaining amendments effected by the Bill are of a minor nature and merely consequential on those I have outlined. I commend the Bill to the House.

Debate (on motion by Mr Whitlam) adjourned.







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