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Thursday, 12 May 1921


Senator ELLIOTT (Victoria) . - I do not know but that we are proposing to do something which will imperil the right of appeal on a writ of certiorari. In the Manual of Military Law. page 123, there is the following: -

Certiorariis a writ issuing (in most cases) out of the High Court of Justice to the Judges or officers of inferior Courts, and commanding them' to certify and return the record of a matter, e.g., a conviction or order, depending before them, to the end that more sure and speedy justice may be done. If the conviction or order of the inferior Court is found to be bad in law, it will be quashed by the High Court.

In ordinary cases the writ is issued on the application of 0 the person aggrieved almost as a matter of course, unless he has by his conduct precluded himself from taking ' an objection (a) In the case of a court martial sentence, the writ will issue only when the rights affected by the judgment of the Court are_ civil rights, and the court is acting with jurisdiction; it will not issue when the rights affected are dependent on military status and military regulations, (b) . .


Senator Pearce - It does not affect the civil right, but only the 'military right.


Senator ELLIOTT - Then there is no reason for the- clause, because, under the common law, the writ will hot issue. At this hour of the morning one may be pardoned for being somewhat addled or confused in a matter of this kind ; but clause 71 does appear to me to cut away -a right - that exists under the common law.


Senator Pearce - This hasbeen Commonwealth law for over twenty years.







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