Second Reading
Database Senate Hansard
Date 23-03-1927
Parl No. 10
Electorate South Aus tralia
Interjector ABBOTT, Percy
Party NAT
Speaker MCLACHLAN, Alexander
Stage Second Reading
System Id hansard80/hansards80/1927-03-23/0067

JUDICIARY BILL - Second Reading

Senator McLACHLAN (South Aus tralia) (Honorary Minister) . - I move -

That the bill be now read a second time.

This measure, like that which preceded it, is more or less a machinery bill, to carry us over the transition period. But honorable senators will see, perhaps, that it goes a little further than that. The greater part of the bill deals with provisions necessary for the exercising of the judicial power at the Seat of Government; but clause 6 deals with minor amendments of general application. The present judicial system in the Territory is purely provisional, having been provided in 1909 and 1910, when the Federal Territory was almost unoccupied. The provision made was the bare minimum necessary at the time, and was to be superseded when the Seat of Government was established. Section 8 of the Seat of Government Acceptance Act 1909, enacts that "Until the Parliament otherwise provides, the High Court and the justices thereof shall have, within the Territory, the jurisdiction which immediately before the proclaimed day (that is, the first January, 1911) belonged to the Supreme Court of the State, and the justices thereof." Technically, therefore, the High Court now has full original jurisdiction in the Territory, but there is no registry of the High Court in the Territory, and no machinery for giving effect to the jurisdiction. By section 11 of the Seat of Government (Administration) Act 1910, the several inferior courts of New South Wales are given the same jurisdiction in the Territory as they had. before. This provision has operated, and the district courts and the courts of summary jurisdiction have exercised civil and criminal jurisdiction in the Territory. The requirements of the Territory are - (1) a superior court of original jurisdiction, civil and criminal; (2) a court of summary jurisdiction, civil and criminal; (3) an appellate court. As regards (1), the practical alternatives were to create a Supreme Court of the Territory, or to vest the jurisdiction in the High Court. In view of the probably small amount of Supreme Court work, the former alternative has been chosen. It has also the advantage that the use of an existing court, which already has its machinery and procedure, dispenses with all the detailed legislation which the establishment of a new court would require. It is deemed unnecessary to make provision for intermediate courts, of the nature of district or county courts. The courts of summary jurisdiction will be provided for by ordinance of the Territory. Clause 3 of the bill establishes a registry of the High Court in the Territory, which will rank as a district registry until the principal seat of the High Court is transferred to Canberra. Clause 4 vests in the High Court full original jurisdiction for territorial purposes, and enables the Governor-General, by ordinance, to add such further special jurisdictions as may be found to be necessary. This jurisdiction is to be exercised according to the ordinary procedure of the High Court, but subject to any special rules of court that may be made by the judges in that behalf. The only appeal from such a decision will be such as lied to the Full Court of the High Court. Clause 5 provides for appeals from judgments of any court of the Territory. The only territorial court which it is proposed at present to establish is a court of summary jurisdiction, civil and criminal. The proposal is that such appeals will be heard either by a single judge or by the Full Court. If the appeal is taken to a single judge, the High Court may give leave for a further appeal to the Full Court of the High Court. Clause 6 is not limited to the Territory. It is an amendment to section 49 of the principal act. It would enable State practitioners, who are already given the right to prac- tise in federal courts, to practise in the courts of any territory. It also deals with the removal of names from the legal practitioners' roll. It dispenses with the necessity to make an application to the court for the removal of a name in the case of a practitioner who was placed on the roll by virtue of his State qualification, and who has been removed from the State roll. Clauses 7 and 8 provide for the repeal, from dates to be subsequently fixed, of the sections in the acts of 1909-10 which the provisions of this act will supersede. The measure is technical in regard to certain details, but the memorandum circulated by the honorable the AttorneyGeneral, whom I represent in this chamber for the time being, clearly indicates its purpose. As the bill goes through committee, I will be able to inform honorable senators further on matters of detail.

Senator Abbott - Will the bill inter fere in any way with the present courts of summary jurisdiction?

Senator McLACHLAN - The ordinances will deal with that matter. This measure is concerned more with the procedure and establishment of the High Court at Canberra. I understand that the attendance of one justice of the High Court will be sufficient for the purpose.

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