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Friday, 30 April 1915

Senator KEATING (Tasmania) . - I should not like it to go out that honorable senators generally take the view of this clause which Senator Guthrie has so repeatedly expressed. The honorable senator has contended that the clause says, in black and white, that all matters of maritime jurisdiction shall be referred to the High Court. The clause says nothing of the kind. It merely provides that the High Court shall have original jurisdiction in all matters of Admiralty or maritime jurisdiction. It does not take away any jurisdiction that already exists in any Court of any of the States in regard to this matter. We cannot take away such jurisdiction from the State Courts, because the powers exercised by those Courts are exercised under an Imperial Act.

Senator de Largie - The honorable senator argues that this Bill will increase the powers of the High Court.

Senator KEATING - It will give the High Court a jurisdiction which it would not otherwise have. We are empowered by the Constitution to give the High Court this jurisdiction. When we do so we add another Court to the Courts already existing in the States having this jurisdiction. That is all that we do. When the war broke out, and questions relating' to prizes and to the internment of enemy vessels found within our waters had to be determined, we found that the Courts competent to deal with such cases were the six Supreme Courts of the States. The High Court had no jurisdiction to deal with them. We had the power to invest the High Court with that jurisdiction, and we exercised that

Sower in a measure passed earlier in le session. Now it is proposed that the provisions of that measure shall be added to. Senator Findley characterized the dangers apprehended by Senator Guthrie as imaginary, and I have to confirm what Senator Findley said. There is a great deal of talk about lawyers, on behalf of their clients, taking cases into the higher Courts when they might be successfully prosecuted in inferior Courts. Let me remind Senator Guthrie that the Supreme Court of South Australia has jurisdiction in all matters of debt arising under a contract, or tort, from a farthing up to and beyond £1,000,000. If the honorable senator had a claim against any man for £50, he could take his writ out of the Supreme Court of South Australia. Would the honorable senator or his lawyers do so ?

Senator Guthrie - They very often do it.

Senator KEATING - The honorable senator or his lawyers would take the case to a Court of proper jurisdiction, such as the Court having jurisdiction up to £499, to which the honorable senator referred, and not to the Supreme Court. The Supreme Court in every one of the States has unlimited jurisdiction .in cases involving from one farthing upwards, but does a lawyer take a case of a debt of £20 or £25 to the Supreme 'Court to pile up costs against his client?

Senator Guthrie - Lawyers often do.

Senator KEATING - I repudiate the insinuations made in a light and easy way by the honorable senator. The Supreme Court is competent to deal with such cases, but it would animadvert most strongly upon the action of the plaintiff or his legal advisers in bothering it with cases of a trivial character, with which an inferior Court might deal. If cases such as those to which Senator Guthrie has referred were brought before the High Court, the Court would point out to those responsible for bringing them before it that there were other Courts -of competent jurisdiction to deal with such mat ters. The High Court would deal appropriately with those who invoked its jurisdiction in matters which might more properly and more expeditiously be dealt with by a local Court. Under section 76 of the Constitution, this Parliament has power to make laws conferring original jurisdiction on the High Court in any matter

(i)   Arising under this Constitution or involving its interpretation.

(ii)   Arising under any laws made by theParliament.

(iii)   Of Admiralty and maritime jurisdiction.

(iv)   Relating to the same subject-matter claimed under the laws of different States.

Until we exercised that power the High Court had not Admiralty and maritime jurisdiction. We have exercised that power this session. What ismaritime jurisdiction, and how is it enjoyed ? In British possessions provision is made with regard to the exercise of Admiralty and maritime jurisdiction,, to confer it upon any Colonial Court by the Colonial Courts of Admiralty Act of 1890, which is an Imperial Act. I need not quote from the Act at length, but the following section applies: -

Every court of law in a British Possessionwhich is for the time being declared in pursuance of this Act to be a Court of Admiralty or which if no such declaration is in force in the Possession, has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned.

Every Supreme Court of a State, by reason of the fact that it has unlimited' jurisdiction, became a Court of Admiralty under the Colonial Courts of Admiralty Act. They were the only Courts competent to deal with prize matters, and such matters as Senator Guthrie has referred to, until we exercised our power under the Constitution to invest the High Court with this jurisdiction. Section 3 of the Colonial Courts of Admiralty Act provides that -

Subject 'to the provisions of this Act any enactment referring to a Vice-Admiralty Court which is contained in an Act of the Imperial Parliament or in a Colonial law, shall apply to a Colonial Court of Admiralty, and be readas if the expression " Colonial Courts of Admiralty " were therein substituted for " ViceAdmiralty Court."

Quick and Garran,commenting upon; this, at page 798, say -

Until the Federal Parliament legislate under this section -

That is, section 76 of the Constitution - the sole original jurisdiction in Admiralty matters will rest with the Courts of Admiralty; or Vice-Admiralty, as the case may be, in the several States. It seems clear that the constitution of these courts is not in any way affected by the establishment of the Commonwealth. The Constitution of each State and the laws in force in each State continue subject to this constitution (section 106, 108) ; and the identity of each State as a "British Possession" remains unchanged notwithstanding the establishment of the Commonwealth.

So the Courts of the States still have their jurisdiction, and the Parliament of each State has still the power to legislate with regard to the competency of a Court in Admiralty and maritime matters.

Senator Guthrie - We have taken away some of their powers by the Navigation Act.

Senator KEATING - It is proposed by this Bill to invest the High Court with Admiralty and maritime jurisdiction. Unless we do so, the High Court will not have this jurisdiction, and it will remain with the Courts of the States. What is Admiralty and maritime jurisdiction? On this subject, Quick and Garran, at page 800, quoting Story, say -

The jurisdiction claimed by the Courts of Admiralty as properly belonging to them extends to all acts and torts done upon the high seas and within the ebb and flow of the sea, and to all maritime contracts, that is, to all contracts touching trade, navigation or business upon the sea or the waters of the sea within the ebb and flow of the tide. Some part of this jurisdiction has been matter of heated controversy between the Courts of common law and the High Court of Admiralty in England, with alternate success and defeat. But much of it has been gradually yielded to the latter, in consideration of its public convenience, if not its paramount necessity. . . The Admiralty and maritime jurisdiction (and the word" maritime " was doubtless added to guard against the narrow interpretation of the preceding word " Admiralty ") conferred by the Constitution, embraces two great classes of cases - one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries done upon the high seas where all nations claim a common right and a common jurisdiction -

With regard to these cases, it is clear that the Commonwealth authority is the only authority in Australia which presents a united and unbroken front to the other nations of the world - or acts and injuries done upon the coast of the sea; or, at furthest acts and injuries done within the ebb and flow of the tide.

The second class of cases are those dependent upon locality, and for which the Courts in the particular locality concerned would be the appropriate tribunals, and they are referred to in this way -

The second respects contracts, claims and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches - one embracing captures, and quests of prize arising jure belli; the other embracing acts, courts and injuries strictly of civil cognizance independent of belligerent operations.

Unless we invest the High Court with this Admiralty and maritime jurisdiction, matters arising out of the war cannot be appropriately determined, or with anything like conformity, by the different State tribunals. Senator Guthrie himself gave an illustration of this when he explained that in South Australia a Judge arrived at a certain decision, and in Western Australia, in dealing with a similar matter, a Judge arrived at an entirely different decision. We must have one final Court dealing with prizes, the internment of vessels., and matters of that kind. With regard to matters of locality, the State Courts are the appropriate Courts to deal with them. If such cases as Senator Guthrie has referred to were brought, not in the local State Court, but before the High Court, the High Court would express its opinion very strongly, and would take appropriate action to vindicate the authority of the proper tribunals to deal with such matters. The High Court would not, without protest, permit itself to be bothered with matters of that kind. The amendment, if accepted, would render the clause confused, and it would have the effect of giving rise to all kind of arguments as to what were matters arising out of the war. The jurisdiction conferred upon the High Court under this measure will be invoked only in regard to appropriate matters. Those who are interested in proceedings of this kind will, I am sure, invoke the jurisdiction of the High Court only when the circumstances of the case render its invocation appropriate.

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