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Wednesday, 14 October 1964


Senator COHEN (Victoria) .- I desire to raise a number of other matters. I refer, first, to Division No. 125 - Patents, Trade Marks and Designs. I draw the attention of the Minister for Works (Senator Gorton) to the fact that the law relating to designs is one of the matters in relation to which we have long expected some kind of legislative action. The GovernorGeneral's Speech of 4th August 1954 contained a promise of the appointment of a committee to review this law. 1 should like to know whether that promise has ever been fulfilled and what the present position is.

Reform has long been promised in relation to the Extradition Act. The Joint Committee on Foreign Affairs submitted a report on this matter in October 1956. I should like to know whether this matter have been considered further.

I ask the Minister also whether attention has been given to law reform in the Australian Capital Territory. Not many weeks ago Professor Richardson, the Dean of the Faculty of Law at the School of General Studies of the Australian National University, said that some of the laws of the Australian Capital Territory were outmoded and archaic and in need of reform. I directed a question to the Minister on the subject, and I am now looking forward to some indication of the Government's proposals.

I wish to mention a minor matter which is really one of convenience to members of Parliament and others who use Commonwealth statutes and statutory rules. I relate my comments to proposed expenditure on the publication of Commonwealth statutes and statutory rules under Division No. 115 - Administrative. Recently I had occasion to look at the telephone regulations made under the Post and Telegraph Act. I discovered that to ascertain the present position it was necessary to read through an extremely large number of amendments. I direct the attention of the Minister to the fact that the regulations have not been consolidated since 1954 and 1956. I ask him to see what can be done to put the telephone regulations into a form in which they can be studied and readily assimilated by honorable senators. I have reason to think that what I have said applies to other sets of regulations also but this is one set of regulations that has come squarely to my notice in the past few days.

I want to deal briefly again this year with the matter that was raised by Senator Dittmer and which I have had occasion to press in previous years during the debates on the Estimates. I refer to the abolition of appeals from Australian courts to the Privy Council. This matter is covered in the Estimates by Division No. 120 - High Court. One could cover a great deal of ground in approaching this question but I do not want to recapitulate the lengthy arguments that i and other senators have advanced in previous years in support of the proposition that the time has come realistically, calmly, as a matter of judgment and unemotionally to abolish the appeals to the Privy Council.

There is no longer any justification in logic for such appeals. Australia has developed maturity as a nation. We have gone through two world wars and have reached a new standing and status in international affairs. We have long ceased to occupy the position in relation to the United Kingdom that we occupied not only prior to the Statute of Westminster but also prior to the new institution of the Commonwealth of Nations, supplanting the British Commonwealth of Nations which in turn supplanted the British Empire as the particular British organisation to which our country belonged. I submit that the same level of maturity should be manifested in the legal system as is manifested in the political institutions of Australia.

One has only to look at the very special position of the High Court of Australia as the interpreter of the Commonwealth Constitution to appreciate this submission. Over the years, the High Court of Australia has developed a deservedly high reputation for the skill and sophistication which members of the Court have brought to the elucidation of some very complex and far reaching issues affecting the economic life of the country in a manifold variety of ways. Nobody has ever suggested that the High Court of Australia is not an appropriate body - indeed, I say it is the appropriate body - to be the arbiter and interpreter of the Constitution.

I think we have to compare its role with that of another great court in a federal system - the Supreme Court of the United States of America - which also fulfils a strong and independent role as the interpreter of that great country's Constitution. It would be manifestly absurd if anyone were to suggest that any decision of the Supreme Court of the United States should, in some way, be regarded as subject to some other court outside the U.S.A. There is a sufficient degree of confidence in the maturity of the highest judicial tribunal in the land to make it an outlandish proposi tion even to suggest that in some way it should not be the final court, of appeal. What is the difference between the function that the Supreme Court of the U.S.A. has in the interpretation of the United States Constitution and the function which our own High Court of Australia has in the interpretation of the Constitution of the Commonwealth of Australia?

I venture to say that if one looks at this matter unhysterically there is no argument that could properly be advanced in support of retaining the right to appeal to the Privy Council. This is not merely a view that springs from a particular political altitude towards Australia's development and future, including the future of its institutions and particularly its legal institutions. It is a view that is widely held in the legal profession and one that finds some support in the way in which the High Court of Australia itself has recently approached its own task. Only last year in an important case of Parker against the Queen, the former Chief Justice of the High Court, Sir Owen Dixon, speaking for all members of the Court, including justices who were not sitting on that particular case, enunciated a new position in relation to the Court's practice of following decisions of the House of Lords. Prior to this case, not only had the High Court deferred to decisions of the House of Lords, even when not inclined as a matter of logic to follow them, but as a matter of long established practice, the High Court had deferred also to the decisions of the Court of Appeal. In this important case of Parker against the Queen which was decided last year, Sir Owen Dixon said -

Hitherto I have thought that we ought to follow decisions of the House of Lords at the expense of our own opinions and cases decided here, but having carefully studied Smith's case I think that we cannot adhere to that view or policy.

His Honor was referring to the case of the Director of. Public Prosecutions versus Smith, decided by the House of Lords in 1961.

It has been pointed out in legal journals, including the " Australian Law Journal ", that the significance of that declaration by the former Chief Justice lies not only in the reversal it effects in the rule of precedent but also in the time and manner of its making. In one view, it was not necessary to decline to follow the decision of the House of Lords in Smith's case. The fact is that the occasion was there, it presented itself to the High Court of Australia and the High Court took the opportunity to stake out a specially independent role in relation to the decisions of the English courts so that, from now on, the only English court to which the High Court of Australia would regard itself as in any way bound to defer is the Privy Council itself. The view was expressed, again in .the "Australian Law Journal", in these words -

It would we believe accord with the views of the great majority of persons having an informed opinion on the subject if by one means or another such appeals were with duc propriety now to be brought to an end.

So the view I am putting is not an isolated view and it does not spring, as I have said, from a particular political attitude. The great respect that our own High Court of Australia enjoys in the English speaking juristic world and beyond makes it a matter of dealing with these events in the context of contemporary history only.

We have reached a stage where it is appropriate to say that Australia should follow the example of Canada, which has abolished appeals to the Privy Council. It ought not to be a matter for emotion and ought not to be regarded in the nature of an act of revolt against the United Kingdom and the great English speaking judicial system which fathered our own system of law. It is a simple question of seizing the appropriate moment in history to put the seal on the independence of Australia's judicial system side by side with the independence of our political system. I commend this proposal again to the Minister. I appreciate that it is not something that may be conceded in the course of the debate on the Estimates, but I suggest that this is the appropriate time and place to raise the matter for consideration and to invite the Government's attention to what is now, I believe, a fairly widely supported view in the legal profession and in the community. I believe it to be time to formalise a position which in practice, as in the minds of those interested in the problem, has been the actual position.

It is true that appeals are still taken to the Privy Council. It is very rarely, either in civil or criminal matters, that special leave to appeal is granted. In problems as to the limits inter se of the constitutional powers of the Commonwealth and the States, no appeal lies unless under section 74 of the Constitution a certificate from the High Court is given that it is a matter proper to go to the Privy Council. As that is the major aspect of the Court's work, what is left to go to the Privy Council except some matters of private law that seem to have little relevance to a court sitting 12,000 miles away?







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