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Friday, 7 May 1915

Senator KEATING (Tasmania) ". - The measure could have been discussed' entirely on its merits, apart from any reference to the Judiciary Act, although I do not object to the Minister's remarks regarding that Act. Last year we passed the Crimes Act. enumeratinga number of crimes against the Commonwealth, and these became at oncestatutory crimes against the Commonwealth. Last week we passed an amending Judiciary Act, and until we passed it the High Court had no criminal jurisdiction. By that measure we invested it with criminal jurisdiction. We went further by making it competent for the Court to deal upon indictment or information with alleged crimes against, the Commonwealth law. We went further, still, by providing that proceedings could be taken in theHigh Court in cases of such information or indictment direct, without the intervention of any preliminary inquiry before justices. Until we passed that Act, any prosecution for an offense under the Crimes Act of last year had to take place in the Supreme Court of the State; but before it reached that Court there had to be a preliminary inquiry before justices who were competent to dismiss the charge or commit the accused for trial. If committed, he was charged before a Judge of the Supreme Court of a State and jury. Last week . we made it competent for a Judge of the High Court and jury to dea] with such offences, and further provided that, in -; order to expedite the"se matters, there should be no need for a preliminary inquiry before justices. During the discussion on the Judiciary Bill some honorable senators strongly urged that it should be limited to matters arising out of the war. Fortunately, the Senate did not agree to that, because it would be difficult to construe in all cases what did or did not " arise out of the war;" but the Government made the Bill operative during the period of the war, and for six months afterwards. Before that period elapses, it will be competent for us to review the whole question of the jurisdiction of the High Court in criminal matters. By this Bill we are really adding one to the list of crimes enumerated in the Crimes Act passed last year, since which we invested the High Court with criminal jurisdiction, and made it the first and only resort without preliminary inquiry. That was rather a radical departure from the established principles of criminal jurisprudence, although there is in the States, in certain cases, the power to commit direct by grand jury. The Government rightly decided to restrict the operation of the Bill to the war and six months afterwards.

Senator de Largie - Simply because courts martial were included ; they are not included in this Bill.

Senator KEATING - I have followed the progress of the judiciary measure very closely through both Chambers, and one of the reasons why it was limited in its period of operation was that it contained that very important clause, which Mr. Glynn and others dealt with, abolishing the preliminary inquiry before justices. It should be competent for us, before the end of the war, to review the position of the High Court in relation to its criminal jurisdiction, and decide whether we shall invest it with such jurisdiction permanently, and also whether criminal proceedings in that Court shall be permanently surrounded with the directness that will now characterize them. The High Court is a very busy Court. No one can charge it with dilatoriness or indisposition to grapple with the large amount of civil appellate work that it has always on hand. If we are to invest it permanently with criminal jurisdiction, we shall have to strengthen it numerically very considerably. It is practically the only Federal

Court in Australia. In the United States of America there are dozens and dozens of Courts exercising nothing but Federal jurisdiction. The increase of the strength of the High Court would require lengthy consideration by the Government, because they would have to proportion the numerical strength of the Bench to the added duties imposed on it. It might even be better to invest some other purely Federal Court with criminal jurisdiction, as has been done in the United States of America. Yesterday the first criminal appeal was heard by the Supreme Court of Victoria. During the argument it was urged by counsel for the appellant that the full strength of five Judges should sit. It was pointed out that there had been two trials of the appellant, one an abortive trial, and the other resulting in a conviction, and that the two different Judges who heard those trials constituted two of the three sitting yesterday in the Court of Appeal. The Chief Justice, according to the newspaper report, replied that if five Judges had to sit to deal with criminal appeals, the full judicial strength of the State Supreme Court would be called upon to hear every criminal appeal that arose, thus hanging up all its other business. We cannot at one stroke invest the High Court with permanent criminal jurisdiction. The business would have to be allocated to avoid interrupting the ordinary work of the Court. I do not disagree with Senator de Largie's contention that the High Court or some other Federal Court should have permanent criminal jurisdiction, but we cannot do it by a measure of this character.

Senator de Largie - Why should we not increase the strength of the Bench if we increase the work?

Senator KEATING - This is not the time or place to do it. It should be done in a separate measure, apart altogether from the war, and would require first a full inquiry as to the amount of new business which would fall to the Court, so that- adequate provision might be made to increase its numerical strength to cope with its added duties.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [11.45].- It appears to me that the real object of Senator de Largie's remarks was not to raise the very important point to which Senator Keating has alluded. I understood Senator de Largie took exception to the limitation of High Court jurisdiction to the period of the war and six months thereafter. I agree with Senator Keating that it would be practically impossible to invest our Court with criminal jurisdiction throughout the whole length and breadth of the country; but, at the present time, it should have jurisdiction to deal with all cases against the Commonwealth.

Senator de Largie - In anything arising out of Acts passed by this Parliament.

Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - Any legislation passed by the Commonwealth Parliament should not have the effect of excluding the jurisdiction in the State Courts in cases of ordinary offences such as violence, robbery, or anything of that kind which might take place from day to day. These matters should properly come uuder the jurisdiction of the State Courts, and should not go to the High Court except on appeal, because the High Court could not attend to all that work unless it were numerically strengthened. If that were done, people might very well say : "If we are not a lawyer-ridden community, we are at all events a Judge-ridden community." Offences against Customs law, smuggling, and crimes of that kind, of course, should come under the jurisdiction of the High Court. I agree with the. honorable senator that, so far as offences in the Commonwealth are primarily concerned, or under Commonwealth legislation, tho power should be in the hands of the High Court to deal with cases on their criminal side, but J would not take away the power from the State Courts, because it would be a very great convenience to have available the services of experienced Judges who occupy tho State Court benches. So far as this Bill is concerned, it is only making good a little omission in the first instance, and the limitation of the period within which this particular class of offences may be tried to six months after the war will give us ample time to consider more fully, if necessary, whether we should amend the principal Act by giving permanent jurisdiction to the High Court in the cases referred to.

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