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Wednesday, 8 December 1976

Dr Klugman asked the Attorney-General, upon notice:

(   1 ) Has his attention been drawn to the Report of Collins (Hass) v The Queen ( 1 975 ) 8 A.L.R.. 1 50.

(2   ) Has his attention also been drawn to the case notes reported in the Federal Law Review, June 1976, page 233, in which the commentator expressed the view that natural justice had been offended in the matter of a man's liberty and that some of the Court ruled that its own Rules overruled an Act of this Parliament; if so, is there any substance in these points.

(3)   Will he, if necessary, take steps to amend the law to ensure that the Court abides by section 78 of the Judiciary Act 1903 which provides that parties may appear personally in every Court exercising Federal jurisdiction.

Mr Ellicott -The answer to the honourable member's question is as follows:

(1)   Yes.

(2)   and (3)I have seen the case notes in the Federal Law Review to which the question refers. The commentator did express an opinion that, by the decision, "natural justice has been offended in the matter of a man's liberty". The commentator disagreed with the conclusion in the joint judgment of Barwick C.J., Stephen, Mason and Jacobs JJ. that section 78 of the Judiciary Act does not apply to an applicant for special leave to appeal to the High Court. He also disagreed with the view of McTiernan J. that section 78 only provides a rule of practice and as such is subject to the power conferred on the Justices of the High Court by section 86 of the Judiciary Act to make rules of court regulating the practice and procedure of the Court.

It is not uncommon for a commentator in legal matters to express disagreement with a decision of a court, or with the reasons for a decision. It is not appropriate for the AttorneyGeneral to express an opinion, in an answer to a Parliamentary question, on the legal merits of the particular decision of the High Court.

Having regard to the decision of the High Court in the case referred to, it must be taken that, as a matter of law, section 78 of the Judiciary Act does not confer on an applicant for special leave to appeal to the High Court a right to be present personally in the Court and to argue his case on the application for special leave. Whether section 78 should be amended in any respect is a matter that will be considered by the Judiciary Act Review Committee now examining the Judiciary Act and the Committee will report to me on this matter in due course.

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