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Thursday, 22 October 1914


Senator KEATING (Tasmania) . - Under the Rules Publication Act, rules made under any Statute, by any rulemaking authority, must be laid before both Houses of Parliament, and it is competent for either House to disallow any one of them. If the rules under this Bill, when it became law, were made by the Justices of the High Court, or by a majority of them, they would have to be laid before the Parliament. The words " Governor-General " are merely a phrase, meaning, in this case, the AttorneyGeneral's Department. The Justices of the High Court are more familiar with procedure than are the officers of the AttorneyGeneral. It is recognised by the legal profession that the procedure of the High Court offers more facilities for the expeditious administration of justice than that of any other Court. It is at highwater mark.


Senator Guthrie - It has drowned a good many.


Senator KEATING - Water will drown those who cannot swim.


Senator de Largie - The strongest swimmers get drowned in the High Court.


Senator KEATING - I register an emphatic protest against the flow of GovernorGeneralmade rules, under which we are likely to be submerged. One cannot go to his letter-box at any time without finding there a new batch of Finance and Allowance regulations made by the Governor-General under the Defence Act, and certified to by some one as having been brought into operation on account of urgency. If any one in the Commonwealth has all these regulations corrected and brought up to date, I should like to know who it is. The rule-making authority - the Governor-General - is at work night and day making rules under various Acts. As Senator de Largie has said, the Bankruptcy Bill is a highly technical measure, and the rules under it will have to be drawn by men of skill and experience in judicial procedure.


Senator de Largie - Surely the legal Department of the Commonwealth is able to draw up these rules?


Senator KEATING - We are deluged now by rules drawn up, under various Acts, in the name of the GovernorGeneral.


Senator Gardiner - The honorable senator would create a fresh authority, and thus bring about a still greater flow.


Senator KEATING - Not at all. I venture to say that the rules which would be framed by the Justices would require very little alteration or variation.


Senator Gardiner - There would be additions.


Senator KEATING - Under the Bill somebody will have to provide rules, and I submit that the most competent authority in the Commonwealth to do that work are the Justices of the High Court. In adopting my amendment we shall be following the procedure which has been adopted in the States, where the Judges of the Supreme Court frame the rules under an Act like the Bankruptcy Act, as they know what procedure is. I do not think that there is any procedure which has been so simplified as that of the High Court, and which has taken into consideration the necessity for expeditious administration of justice, and the vast area of the country. The rule-making authority that we already have in the AttorneyGeneral's Department is a good one; but it is pressed with too much work. I am not blaming the rule-making authority for the constant alteration, for instance, of the financial and allowance regulations under the Defence Act. The administration or the officers of the Defence Department find that they have to alter the regulations, and, apparently, they are constantly instructing the Attorney-General's Department to alter such-and-such a rule. Nobody could keep pace with the demands.


Senator de Largie - If your amendment were accepted, on which of the Justices would this business fall?


Senator KEATING - On a majority of the Justices.


Senator de Largie - Would you have the full Bench sitting to make regulations for a measure of this kind?


Senator KEATING - No.


Senator de Largie - Would you delegate the work to some one Justice?


Senator KEATING - My honorable friend does not quite understand the position. He will remember that the High Court Procedure Bill set out the proposed procedure of the High Court in what was, in fact, a schedule of orders. It was intimated to the Parliament that His

Honour the Chief Justice of the Commonwealth had drafted the orders, and that they met entirely with his approval. The Houses of the Parliament were quite prepared to accept what Sir Samuel Griffith had drafted, and boldly and bodily incorporated them as Statute law in the High Court Procedure Act. Not only have those orders stood the test of time, but they have been the marvel and the admiration of everybody connected with the legal profession for precision, clarity, and for provision for expedition in the administration of justice. Rule-making is special work. As the honorable senator himself admitted, this is a highly technical measure, and the Justices would apply themselves to the work. The Attorney-General's Department has enough to do with the making of regulations under the ordinary general legislation. It is called upon to make regulations under a dozen or more Acts.


Senator Gardiner - And have the Justices of the High Court any spare time?


Senator KEATING - The only argument which would appeal to me is as to whether the Justices would have the time. I believe that they would, because they would be able to take what are the rules governing procedure both in the Old Country and in the various States, and to harmonize them with this measure, and I think that every one would be assured and convinced that the rules would be in complete harmony with the Act. Of course, the High Court would have appellate jurisdiction with regard to anything which might be done under this measure. Then, as regards the second amendment of which I have given notice - the right to annul or alter - the Justices would be able, if occasion should arise, to deal with a rule, either by varying or by restricting, or by altering it. There is not very much in the principle, but I think that we ought to follow the wellestablished practice of the States. I believe that we shall get the best results if we ask the Justices of the High Court to do this work. Assuming that their Honours were too pressed for time to actually and literally draft the rules, there would be a certain course open to them. If the Attorney-General's Department could do the work, the Justices might ask that Department to submit to them a draft of a code of rules, and their Honours might finally revise the rules, add to, or vary, or alter them, or approve of them, and issue them as the rules with their imprimatur. The rules would have to be presented to both Houses of the Parliament, and run the gauntlet, the same as they would have to do if they came from the Attorney-General's Department under the name of the Governor-General. I would like to see the procedure under this measure brought into conformity with the practice obtaining in the States, and In England, because I believe that it would result in a distinct advantage. We shall have an Act which I hope will be the equal of any similar Act in any part of the British Dominions. Let us hope that the rules which, after all, will be the machinery through which the Act will work, will be co-ordinate with it, and that they will be up to the highest level of excellence. That, I believe, we shall get if we ask the Justices to take the responsibilitiy of issuing the rules, and we would have just the same powers of annulment or alteration as if the rules had been framed by any other authority.







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