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Tuesday, 9 November 1976


Mr LIONEL BOWEN (Kingsford) (Smith) - In leading for the Opposition in the cognate debate, I indicate that the Opposition, while not refusing a second reading to the Federal Court of Australia Bill, has an amendment which suggests that it would have been far better for that jurisdiction to be of a wider original base in accordance with that referred to in section 75 of the Constitution and of laws made by this Parliament. In respect of another measure, the Judiciary Amendment Bill, I indicate to the AttorneyGeneral (Mr Ellicott) that the Opposition proposes to move amendments to clause 3. Basically, they relate to the fact that there should be an appeal to the High Court as of right in matters involving interpretation of the Constitution. The other matter to which I wish to refer is the Remuneration and Allowances Amendment Bill relating to the fixing of judges salaries. That operated from 1 June last, and the Opposition approves that legislation. In addition to the Federal Court legislation, 8 ancillary pieces of legislation are listed on the business paper. I do not propose to go through them at this stage, except to say that the Opposition supports the legislation.

Dealing with the first matter, the Federal Court of Australia Bill, let me say that the case for a Federal Court has been argued for well over a decade. I am reminded that Sir Garfield Barwick when Attorney-General was authorised to proceed with such a Bill, and that AttorneyGeneral Bowen introduced a Bill which was not subsequently proceeded with. It will be recalled that the Labor Party's Superior Court Bill met an unfortunate fate in the Senate. If one looks at that particular piece of legislation and compares it with this Federal Court legislation, it will be seen that the main difference lies in clause 19. Clause 19 of the Superior Court Bill spelled out the original jurisdiction in accordance with section 75 of the Constitution whereas the present Bill indicates that jurisdiction will be that provided by the Parliament. The ancillary pieces of legislation indicate that jurisdiction, and that has been explained to the House by the Attorney in the second reading speeches that he has made. We feel, as an Opposition, it would have been far preferable to give us a federal court that was dealing with all federal jurisdiction and not leave it in a situation which obviously had to develop at the time of federation that State courts would be exercising Federal jurisdiction. In our submission the State courts have done a splendid job but, nevertheless, we feel that they have as much work as any Federal jurisdiction may have and it could well be an over burden on the States to be left with increasing work in the Federal jurisdiction area. Secondly, we are of the opinion that it helps to make good law if it is in the uniformity of federal jurisdiction without the fragmentation that can develop when State jurisdictions are involved. Now we have grown up as a federation we say that the situation is not as it was when that jurisdiction was vested in the State courts. The Bill clearly indicates that there will be jurisdiction in a number of areas. I mention, for example, that the court itself will be in 2 divisions. There will be a general division and an industrial division. One would like the assurance of the Attorney, which he may care to give, that in the industrial division of the court all existing industrial judges will remain and will not be removed into any other sphere. I think the Bill allows it but we believe it would be unwise and unsatisfactory to have people who have that special quality of industrial judges moved to another jurisdiction.

The other question relates to the ancilliary legislation. One example is bankruptcy, which is to be a Federal jurisdiction in New South Wales and Victoria but is still to be exercised by State courts in other States. We feel that is a weakening of the position. We would have much preferred to see a Federal jurisdiction in those States. We note that there can be an appeal from the State bankruptcy /jurisdiction to the Federal Court where there is jurisdiction exercised. We note that there is some limitation on appeals from the Australian Capital Territory and the Northern Territory. In other words they seem to be restricted as compared with the present situation. We also note the provisions relating to income tax assessment, trade marks and patents legislation. We know in particular in respect of the Patents Act that appeal lies to the Federal

Court as of right. Where a decision of the Commissioner is involved there can be an appeal to the High Court by special leave. In the concept of Federal legislation we believe that the Federal Court legislation is good legislation. We just say that it does not go far enough. It is legislation that we welcome and we believe that it can be built on to give this country an effective Federal legislation in Federal courts.

Another matter that is of perhaps more concern is the amendment to the Judiciary Act. As you know, Mr Deputy Speaker, the Constitution provides for an appellate jurisdiction of the High Court with such exceptions and subject to such regulations as the Parliament prescribes; that is under section 73 of the Constitution. The Attorney proposes to amend to the Judiciary Act in the sense that the Parliament itself will indicate what jurisdiction should be available. This creates restrictions that obviously the Attorney feels should be created because of what is deemed to be the excessive work of the High Court. I have already indicated in my earlier comments that the ancilliary legislation for the Federal Court will take some of that work. Nevertheless, the Judiciary Act amendment does indicate that there are to be major restrictions in matters of appeal which may be now brought as of right to the High Court from any State supreme courts and other State courts exercising Federal jurisdiction.

There is to be a repeal of provisions for automatic removal to and exclusive jurisdiction of the High Court in matters involving the limits inter se of the constitutional powers of the Commonwealth and the States. There is to be complete revision of the subject of removal to the High Court by order of the High Court of cases commenced and pending in other courts, extending the power of the High Court to order such removal beyond the existing category of constitutional cases to cases in Federal or Territory courts and cases where a State court is exercising Federal jurisdiction, and giving the High Court increased power over the removed causes, increased powers or remittal of the whole or part back to the original court, and entirely new powers to direct the further conduct of the cause in the original court. There is to be new power in the High Court of its own motion to remit other court cases commenced as of right in the High Court by virtue of the Constitution. I am advised that this could be of some doubtful constitutional validity but since it is well known that the High Court has sought this power for some years it is thought that the High Court is unlikely to hold the new section invalid should there be any test of that position.

Generally the two new matters of importance are the conferring upon Commonwealth and State Attorneys-General of a new power in constitutional cases in any court of intervention in the suits of private parties, and provisions conferring new rights on legal practitioners of one State to appear m courts of other States. As I mentioned, there are restrictions. One restriction relates to an appeal as of right. At present there is a $3,000 limit. It was to be $20,000 but by virtue of another amendment now there may be no appeal in respect of the quantum; it has to be on other issues. So we do see a restriction there. We have some reservations about that matter because we feel that people must have some basic cause which they would be entitled to litigate. It is a bit unfair to suggest that because there is a sum of money related to quantum only the High Court is not going to be able to be involved unless special leave is obtained.

We are advised generally that at the present time section 38a of the Judiciary Act has the effect that only the High Court may decide questions as to the limits inter se of the constitutional powers of the Commonwealth and those of the States, and that present section 40a provides for automatic removal to the High Court of cases commenced in other courts which raise such a question. Clauses 4 and 6 of the Bill will repeal those sections. The result will be that inter se questions may now be decided by other courts and although there will still be power in the High Court to order removal to the High Court of the whole of such a case or the inter se question, there will be no automatic removal. We are suggesting, of course, in our amendment that the High Court still be the major court for the interpretation of the Constitution and there be an appeal as of right in all matters relating to the interpretation of the Constitution.

Generally, in view of the detailed nature of the legislation, I will not delay the House to any great extent. The present section 45 of the Judiciary Act permits the High Court, on the application of a party, only to remit to a State court having jurisdiction in any matter any cause orginally commenced or pending in the High Court. This power has been little used because it could not be exercised on the court's own motion. It is chiefly relevant to the class of case set out in section 75 of the Constitution, which confers absolutely on the High Court jurisdiction in this class of case, which jurisdiction the Parliament has no power to take away. These cases include cases between States, cases between residents of different States, cases in which the Commonwealth or a Commonwealth authority is a party. Clause 6 of the Bill relates to section 44 of the Act. It appears to be doubtful because it does, it is suggested, subvert the intention of section 75 of the Constitution by permitting for the first time the High Court of its own motion to remit to another court any cases commenced in the High Court under the Constitution or under Commonwealth legislation. Thus it is now up to the High Court to decide whether it will hear a case which otherwise it must have done under the constitutional legislation.


Mr Ellicott - I do not think it is the first time.


Mr LIONEL BOWEN -You do not? I accept that. There is a new power of intervention by the Attorneys-General. Clause 10 of the Bill proposes to create a new power to a Commonwealth or State Attorney-General to intervene in any case between private parties pending in any Federal court or any Territory or any State court excerising Federal jurisdiction if the case involved a matter arising under or the interpretation of the Constitution. I think also there is a provision for a new right whereby the legal practitioners can practise in Federal courts other than Territory courts.

Debate interrupted.







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