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Friday, 30 April 1915


Senator KEATING (Tasmania) . - The fourth paragraph was not in the Bill as circulated yesterday. I have the assurance of the Honorary Minister that the alteration is intended to apply to the whole Act. That is the Government's concern. I consider that I have done my duty in drawing attention to the circumstance that the insertion of that amendment by another place in that particular part of the Bill makes it operative, not only as regards the comparatively novel procedure of trial for indictable offences without preliminary inquiry before magistrates, but also on the provision adding to the original jurisdiction of the High Court. The Minister has put into my hands a copy of a Bill that we passed earlier in the session. It provides for an amendment of section 30 of the Judiciary Act to the same effect as clause 2 of this Bill in regard to Admiralty or maritime jurisdiction ; but clause 2 of this Bill goes still further, giving original jurisdiction in trials of indictable offences against the laws of the Commonwealth. There is nothing on the face of the Bill that we passed earlier this session, investing the High Court with Admiralty or maritime jurisdiction in its original jurisdiction, to show that it was intended to limit the operation of its provisions, and that convinces me that it was never the intention of the Government or Parliament, when it extended the statutory original jurisdiction of the High Court to embrace matters of Admiralty or maritime jurisdiction, to do so for only a limited period. On the contrary, that Bill, and this one, as originally introduced, show emphatically that it was the intention of the Government and Parliament to invest the High Court with Admiralty or maritime jurisdiction in its original jurisdiction for all time. It may be that for the convenience of drafting we are really re-enacting in this Bill what we enacted in the present session, but during last year, and we are adding to that by providing in paragraph c that the High Court shall have original jurisdiction in trials of indictable offences against the laws of the Commonwealth. I can readily understand the argument of the Minister that it is convenient to have these matters together in this new form. Clause 2 of the Bill, when it is passed, will contain all the matters of original jurisdiction which the High Court will enjoy and exercise, and that will be a convenience.


Senator Guthrie - Why not repeal the other provision?


Senator KEATING - I do not know why the other is not repealed. If the law enabling Acts as amended, to be printed as amended, is availed of in connexion with the Judiciary Act - and I for one can say that it is absolutely essential that it should be - we shall have the spectacle of the amending Act showing the same amendment in two different places. First it will show the amendment which has already been passed this session, but during last year, and next it will show the same amendment with an addition to it. I take it also that at a certain stage it will be necessary for us to again amend the Judiciary Act. In what direction? To again invest the High Court with original jurisdiction in matters of Admiralty or maritime jurisdiction, because what we are doing now is limited to " during the present war and for six months thereafter."


Senator Guthrie - Should the Hie;h Court have that power for the period?


Senator KEATING - No. We decidedlast year that the High Court should have original jurisdiction in matters of Admiralty or maritime jurisdiction for all time. There is no reason given now why we should depart from that decision and limit that jurisdiction to the period of the war and six months afterwards. But I can . quite understand that we should make the provision in clause 3 of the Bill operate only during the war and for six months afterwards.


Senator Guthrie - Why?


Senator KEATING - Because it deprives the subject of the opportunity he has, in the case of an indictable offence, of having a preliminary inquiry before justices who cannot convict him, but who may commit him or discharge him. Clause 3 gives power to the AttorneyGeneral to prosecute a man in the High Court without such a preliminary inquiry before magistrates. It takes away from a man that possibility, and it does it because, as the Minister says, in the comparatively congested procedure of the State Courts, we cannot get on all occasions our matters dealt with as expeditiously as is desirable.


Senator Needham - It will save a poor man a lot of money.


Senator KEATING - It may; but it will also deprive him, in many instances, of the opportunity of being discharged at the preliminary inquiry. If there is not a Pr,ma facie case made out against a man, he is discharged by the magistrates. But now it is proposed to invest the AttorneyGeneral with power to dispense with the preliminary inquiry, and prosecute a man straight away in the High Court. There may be no primafacie case against a man, and he may be discharged after he has incurred a considerable amount of expense. I am quite prepared to give the power to the Attorney-General, because it is not altogether novel. In each State the Attorney-General or SolicitorGeneral now has the power, in certain specified circumstances, of prosecuting directly any accused in a State Supreme Court, without the intervention of a preliminary inquiry.


Senator Guthrie - Would you force a seaman suing for wages to go right to the High Court?


Senator KEATING - This measure does not deal with such cases, but with cases of Admiralty or maritime jurisdiction in respect to which it will have original jurisdiction by reference to the provisions in the Constitution and the Imperial Statute in that regard. I am prepared, as I said, to give the power to the Attorney-General, realizing that it will only be used where the occasion demands. I am not prepared to give the power to him for all time, but only during the period of the war, and six months afterwards. That is why I think we ought to be very chary with regard to sub-clause 4 of this clause. I believe that if it is passed in its present form, later on - and not very long forward - we shall be invited to amend the Judiciary Act to remedy a mistake which we are about to perpetrate. I submit, and it will then be pointed out, that it was not the intention of the Government or Parliament to limit the whole of the Act, but only section 3. It is not my intention to move an amendment; but I think it is a matter to which the Government should give full consideration, so that we shall not have constant little amendments to our legislation, which make it very difficult at times for one to know the law, which the Courts oblige every person in the community to know.







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