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The swearing in of the judges of the Federal Court of Australia



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THE SWEARING IN OF THE JUDGES OF THE FEDERAL COURT

' OF AUSTRALIA

21.

Address of welcome by the Attorney-General Mr R.J.Ellicott, Q.C.,

Your Honours -

It is my very great privilege to offer on behalf

of the Commonwealth, its Government, its people and its

bar congratulations to your Honours on becoming the first

Judges of the Federal Court of Australia. History is being

made here this morning for a new court is now in being -

one that will inevitably play a significant role in the

development of the judiciary and the law in Australia.

Our Constitution vests the judicial power of

the Commonwealth not only in the High Court but also in

such other courts as the Parliament creates.

, The High Court came into being in effect with

the entry into force of the Judiciary Act on 25 August

1903. Since then other Federal Courts have been created.

An attempt (in 1916) by the Commonwealth

Parliament to create a Federal Court, met with unexpected

failure when the High Court in 1918 held that the

Commonwealth Court of Conciliation and Arbitration had

not been properly constituted because its President

was appointed for seven years and not for life.

Another attempt in 1926 was more successful

though as subsequent history will tell us it too failed

to survive the rigors of constitutional interpretation.

For in 1955 in the Boilermakers Case it was held that that

Court could not exercise judicial power in addition to

its primary function - arbitration.' And so the Commonwealth

Industrial Court or what is now known as the Australian

Industrial Court was b o m . It was vested with jurisdiction

to deal with judicial functions relating to arbitration

but it has acquired other jurisdiction as well.

22.

Other Federal Courts have been established. In

1930 the Bankruptcy Court was created. The desire to have

family law jurisdiction exercised by a special court led

to the establishment in 1976 of the Family Court of

Australia. There are thus now three Federal Courts.

The Federal Court of Australia represents a

distinct stage in the development of the federal judicature.

Its establishment follows on and, in some respects, builds

up on what was done by His Honour the Chief Justice of

Australia when he was Commonwealth Attorney-General,

Your Honour the Chief Judge in your office as Attorney-

General, and his Honour Mr Justice Murphy as Attorney-

General. His Honour Mr Justice Mason, as Solicitor-General,

played a part in the drafting of the Bill introduced by

your Honour the Chief Judge. In preparing the Federal

Court of Australia Bill last year I was able to benefit

greatly from this earlier experience.

As has already been announced the Court will

assume, in two Divisions, the jurisdiction now exercised

by the Australian Industrial Court and Bankruptcy Court.

These latter Courts will, after part heard matters are

disposed of, cease to exist as operating Courts. This

Court will in' future be the Court to deal with Industrial .

Law, Bankruptcy and Trade Practices. It will have an

extremely significant role in its appellate jurisdiction.

Subject only to the High Court, it will hear appeals

from State and Territory Courts in several important areas

of Federal law - Taxation, patents and trade marks and

other industrial property matters - in respect of which

the original jurisdiction is to be exercised in those

Courts. Just as importantly it will entertain appeals

as of right from the Territory Courts and it will sit in

the Territories. To ensure that at least one Judge who

is a Judge of a Territory Supreme Court can sit on these

appeals, the present Judges of the Supreme Courts of the

Australian Capital Territory and the Northern Territory

have been appointed as Judges of this Court. .

23.

Another most important aspect of the work of

this Court will be its jurisdiction in administrative law,

particularly if legislation is enacted, as I hope it will

be this year, to simplify the procedures and remedies

available for the judicial review of action by officers

of the Commonwealth.

The establishment of this Court should be seen

as part of the on going process of reforming the judicial

system of this country.

The Constitution also empowered our Parliament

to give jurisdiction in federal matters to State Courts.

Had this provision not been there it would have been

necessary to establish a larger and more complex system of

Federal Courts in Australia. This, fortunately I believe,

has been avoided.

The provision empowering' the Parliament to

vest federal jurisdiction in State Courts, is a special

feature of our Constitution. It was this, together with

the provision establishing the High Court as a general

Court of Appeal, that led Quick and Garran, in. their

historic commentary on the Constitution, to describe

the judicial department of the Commonwealth as being

’more national * and less distinctively federal, in

character than either the legislature or the executive

departments’. ,

The Judiciary Act and its various amendments

brought about a comprehensive vesting of federal jurisdiction

in State Courts.

The Supreme Courts of our States are very significant

in our judicial system. Unless there are special reasons

to the contrary, these and other State Courts should have

jurisdiction to deal with federal matters. It is

important that when the citizen is involved in a court case,

the Court should be able to deal with all the law relevant

to the case, State or Federal. .

24.

The establishment of the Federal Court is accompanied

by other measures, some designed to ensure that this will

be so. For instance, for'the first time since 1907

State Courts will be able to decide Constitutional

questions relating to Commonwealth and. State power.

Under other measures more federal jurisdiction will be

vested in State Supreme Courts.

An object of all these measures is to cut down

the workload of the High Court, both in its original .

and appellate jurisdiction, thus enabling it to perform

its role as the final interpreter of our constitution and

our ultimate Court of Appeal.

For my own part I would like the establishment

of this Court to be seen as a step towards a goal - the

establishment of one system of courts in Australia,

There are many considerations both political

and legal to be overcome before this goal can be achieved.

But whilst our Courts are divided between Federal and

State jurisdiction the rule of law in our Courts is to

that extent diminished.

Only two of your Honours have not sat on a

federal or Territory Court before - your Honour the Chief "

Judge and Your Honour Mr Justice Keely. I am sure that

we are all extremely grateful that Sir Nigel Bowen was

able to accept a Commission as the first Chief Judge

of this Court„ It is a large court and it will sit in

, all States and the two mainland Territories. The

administrative load will be heavy and the workload of the

Court will inevitably increase well beyond present levels.

The fact that a person with your Honour’s qualities of

leadership, wisdom and judicial and administrative

experience will fill the office of Chief Judge should

ensure that the Court will have an excellent start.

Your Honour Mr Justice Keely comes straight

from the Bar and you will sit in the Industrial Division

of the Court. Your Honour has had long experience in the

25.

industrial and other branches of the law and Ϊ am

Sure you will contribute greatly to the important work

which the Court will undertake in that Division.

It is also very fitting that the Court should

begin in this magnificent new Courtroom and in the newly

erected building which contains it. Many years of

planning between the Federal and State Governments have

preceded it and your Honour the Chief Judge played

a significant role in those early planning stages. Our

congratulations go to all those who have contributed to

its magnificence.

. May I in conclusion once more congratulate all

of your Honours on your appointment as the first Justices

of this Court.

We have every confidence that you will bring

to this Court the same deep sense of justice for the

individual and high qualities of learning, that have

always characterised the great courts of this country.

Sydney

7 February 1977

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