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Wednesday, 10 November 1976


Mr LIONEL BOWEN (Kingsford) (Smith)

In sub-section (5) of proposed section 35 omit 'This section has effect', substitute "The foregoing provisions of this section have effect '.

After sub-section (5) of proposed section 35 insert the following sub-sections: " '(5a) Notwithstanding any other Act, an appeal may be brought as of right from a final judgment of a Full Coun of the Supreme Court of a State where the ground of appeal, or one of the grounds of appeal, involves the interpretation of the Constitution. '(5B)Where-

(a)   an appeal from a judgment purports to have been instituted by a party in accordance with sub-section (5a);

(b)   an appeal as of right from the judgment could not have been brought by that party in accordance with sub-section (3); and

(c)   it appears to the High Court, at any time after the institution of the appeal, that no ground on which the appeal is brought requires the decision of a substantial question of interpretation of the Constitution, the High Court, may, without prejudice to any application for special leave of appeal, decline to hear the appeal further and strike out the appeal as incompetent, with such order as to costs as it thinks just. ".

In the course of my speech during the second reading debate I mentioned the necessity, in our view, to retain the High COUrt as the court in all constitutional matters. The amendments relate to that situation. I say for the benefit of the honourable member for St George (Mr Neil) that we have to accept the Bill as it is given to us by the Government. It is not our Bill. The honourable member made a suggestion that perhaps we should be moving more amendments. We obviously would be doing that if we were in government. We are talking of fundamental amendments. It is not much good my being in the Portuguese Army and having somebody on the other side telling me what I should be doing when I am not able to control the situation. It is true that we made comments about the restrictions of rights in relation to a Bill, particularly in relation to those matters which the honourable member mentioned. But I think it should not be thought that we would not move other amendments if we thought they would be accepted. We criticised the factor which the honourable member raised. I just mention it again. It is not much good a Government supporter criticising me in this respect. I would have thought that a member of the Government parties could at least have moved the same amendments if he cared to do so. I say this only because what the honourable member proposes we should be trying to do here can destroy a debate. The concept of a Federal court was a good one. We think it is limited in the appeal provision. This is one of the amendments which we are moving and which we hope will meet with some success.







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