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Wednesday, 10 November 1976

Mr ELLICOTT (WentworthAttorneyGeneral) - It is a pity that I have to answer an honourable member from my side of the Parliament who has made a very strong attack on the judiciary. If I may say so with respect to him, it was an unfortunate attack because the judiciary, of course, cannot protect itself from such attacks, which have been traditional in the Parliament over the years since Federation. I can assure honourable members that judges, as a body of men, work hard. It is usually people who do not Understand the life of a judge who attack them. Mention was made- I thought it was a little unfortunate- of Mr Justice McTiernan who has just retired from the High Court of Australia. Quite frankly, I will not sit in the Parliament and hear a word said against Sir Edward McTiernan. I can speak from experience of the hard work that he did as a justice of the High Court over a period of 40 years, for 20 years of which I appeared constantly before him. I know something of the work that he put into the Court. I mention this because I would not sit here as the only one who can protect these gentlemen and not answer such an attack made on an individual.

As to judicial salaries themselves, I think honourable members have to understand that those who go to the Bench normally go from very lucrative practices at the Bar. I have said in this House before that it is not uncommon for counsel in this country to be earning incomes running into 6 figures. When they go to the Bench they must give up quite a deal in terms of their yearly incomes. True, they receive the benefit of security and the status of a judge. But let it not be. thought that these are men who suddenly are working their way up the salary scale to achieve some ultimate objective of a high salary. In most casescertainly in cases in which people of quality are appointed- they are men who have to accept a substantial diminution in their yearly incomes. So judges' salaries are properly at the level at which they are. If we cannot pay people of capacity a salary which is sufficient to attract them, they will stay at the Bar. That is understandable.

There is no ground really upon which a comparison can be made between a member of Parliament and a judge. They are 2 quite different occupations. Different demands are made upon them and there are different disciplines within which they work. I would not attack members of Parliament for not working hard. I know that they do work hard. I know that coming into this place week after week is like stepping on to a treadmill at 9 o'clock in the morning and being thrown off the treadmill at 12 o'clock at night. I do not think the members of the public realise what is involved in the politician's life. A judge's life is not made up of just sitting in court. It is made up of preparing judgments; of sitting in court; of undertaking research. In other words, many aspects of a judge's time are taken up outside court. Let it not be thought that because a judge is not sitting in court he is not working. Indeed, sitting in court for three to four days a week is a good sitting week for a judge. Those other periods- a day or a day and a half- are usually, and ought to be, taken up in preparing judgments, which need care and consideration. The life of a judge is not an easy one. It is a remote life. To some extent, it is like going into a seminary. The door is slammed behind him. When a person becomes a judge, there is not much more in his or her life, other than being a judge. Sometimes they come out, as was the case with Dr Evatt. But not many do so. So there is a sense of finality. A judge's life is something that needs to be understood. I cannot sit here and listen to the objections of the honourable member for Griffith (Mr Donald Cameron) without rising to my feet to answer them.

The honourable member cited the number of members of the judiciary in Australia. Of course, it comprises a large number of magistrates. Magistrates are scattered around the Commonwealth, in remote places and in large cities. There is a large number of them. But the superior courts, by and large, consist of a small number of judges compared to the figure of 500 or 600 members of the judiciary mentioned by the honourable member for Griffith. The judges of the new court will number twenty, or thereabouts. They will be working hard as a peripatetic court moving around Australia. They will sit in the Territories- in Darwin and in Canberrathey will be moving from city to city. They will be truly working hard. To some extent they will be specialist judges sitting in the industrial division or in specialist matters such as taxation and industrial property. I was asked about appointments to the industrial division. I say to honourable members opposite that these are matters that will be discussed with individual judges and, as the Bill provides, some judges can be assigned to one division and some to another. However, the question of what division judges go to will be discussed with individual judges.

Mr Lionel Bowen - Their decision will be the one which is accepted?

Mr ELLICOTT - The question of where they will go will be a matter of arrangement with the judges. The honourable member for KingsfordSmith (Mr Lionel Bowen) raised the question of section 78 (B). It seems to me that that section is fairly clear and that it indicates that the Attorney-General has a discretion to pay the costs occasioned by a delay in a matter because notice had to be given. I do not think there is any uncertainty. It is very difficult to make provision for an order for costs. It is for the AttorneyGeneral of the day to exercise his discretion in a proper way and I imagine that is just what he will do. I do not propose to answer the honourable member for Grayndler (Mr Antony Whitlam) in detail. He was not in the chamber in 1 974 but he seemed to want to spend his time by answering what was put to this Parliament then. If he reads what I said in 1974 he will find that the original jurisdiction of this court is basically the same as that which I thought then should appropriately be given to a Federal court. At page 600 of the Hansard of '24 July 1974 he will find a statement to that effect.

The honourable member for St George (Mr Neil) raised the question of whether property should be the basis of the right of appeal and I have discussed this with the honourable member outside the chamber. To some extent I have sympathy with him but when this question was discussed by the Judiciary Act Review Committee as far back as 1969 the problem quickly arose of finding another basis. The only other that we could find then was to make all appeals subject to leave. However once one gets away from the traditional property matters and into questions in relation to criminal matters, and asks whether there should be a right to appeal in the case of a sentence, affecting the liberty of the subject or where a person who has a sentence of say 5 years but not one with a lesser sentence only by way of special leave, we immediately raise problems. A month in gaol to one person might be as significant as is 5 years in gaol to another. It is an extremely difficult matter in which to draw a line other than by proceeding in the traditional way or by providing for special leave to appeal. I would like to find a more satisfactory way but have not yet been able to do so. I did not find it in what was said by the honourable member for St George, but I take into account very seriously what he said.

Perhaps I can leave anything else I have to say to the Committee stages. I would like to thank all those who have participated in this debate for the constructive way in which they have dealt with the matters raised in these important and significant Bills which in effect are reforming the Federal judiciary in this country.

Amendment negatived.

Original question resolved in the affirmative.

Bill read a second time.

Messages from the Governor-General recommending appropriations announced.

Bill committed pro forma; progress reported.

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