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Thursday, 14 October 1971
Page: 2356

Mr WHITLAM (Werriwa) (Leader of the Opposition) - I would like to say a few things immediately on this matter. First of all, I suppose we should reassure honourable members, in view of the number and the intensity of their attendance and interests, that this is not the other report which Mr Justice Kerr is preparing, nor can - we expect--that it will be acted upon as rapidly. But having said that, I would like to say that it is impossible to exaggerate the significance of the matters dealt with in this report. The life, property and pursuit of happiness of the average citizen now are affected in many more cases and to a' much greater degree by administrative decisions which cannot come before courts or be in any other way reviewed than they are by most issues which can come before the courts.

I, and I believe my Party, support the general approach which has been taken in this report and by the Government in the comments of the Prime Minister (Mr McMahon) on it. I would also like to thank and compliment the Prime Minister for tabling the report. When in November 1968 I first asked Attorney-General Bowen, who appointed the Committee, about the tabling of the report, the honourable and learned gentleman did not want to give any assurance that he would table it. He repeated the same attitude when I asked him again about tabling the report on 29th April 1971 dur ing bis second term as Attorney-General. The report has been tabled and, as these things go, with relative speed.

The next thing I want to mention arises from a statement which the Prime Minister made about the report and which I believe did not give the full story, nor should it give entire satisfaction to the House. The Prime Minister said:

The Committee has concluded that a Commonwealth administrative court should be established to provide a means for judicial review of the decisions . . .

In fact, at paragraph 245, what the Committee said was this:

If there were to be a Commonwealth Superior Court we would recommend that it should be the court to have the jurisdiction by way of judicial review which we have in mind. If proposals for the establishment of that court are not to be proceeded with, there would remain for consideration the question whether a specialist court to exercise the jurisdiction of judicial review of Commonwealth administrative decisions should be established.

Paragraph 246 states:

If the proposed Commonwealth Superior Court is not established we would then recommend that a Commonwealth Administrative Court should be established. ....

This is not unreasonable.

Mr McMahon - Might I suggest that you refer to paragraph 390 where you will see that the Committee recommends this and gives a summary of its main recommendations, one of which is the proposed Commonwealth Superior Court, etc.

Mr WHITLAM - Yes, the Committee recommended it in the alternative. I thank the right honourable gentleman for drawing my attention to this passage because it makes it plain that the Committee is not recommending just a Commonwealth Administrative Court. It is recommending, firstly, a Commonwealth superior court but, if that is not established, it recommends a special Commonwealth administrative court. The significance of this lies in the fact that as far back as December 1962 Cabinet authorised Attorney-General Barwick to design a Commonwealth superior court. Sir Garfield described the court in an article in the 'Federal Law Review' in June 1964. Attorney-General Bowen made a ministerial statement on the proposed court in May 1967. He was asked a question about it by the honourable and learned member for Moreton (Mr Killen) in October 1968 and he introduced the Commonwealth Superior Court Bill in November 1968. The previous month, in his answer to the honourable member for Moreton, Attorney-General Bowen said:

Assuming the Bill -

That is, the Commonwealth Superior Court Bill- is passed in the autumn session ....

That is the autumn session of 1969. Two and one half years have elapsed and the House has never been told what is the attitude of the Gorton Ministry under successive Attorneys-General or of the McMahon Ministry, under successive Attorneys-General to this Bill. It was approved in principle by Cabinet in December 1962. The report brings this clearly to mind because the original term of reference to the Committee on 29th October1 968 by Attorney-General Bowen was this:

To consider the jurisdiction to be given to the proposed Commonwealth Superior Court to review administrative decisions.

On 14th December 1970, Attorney-General Hughes amended this term of reference to read thus:

To consider what jurisdiction, it any, to review the administrative decisions made under Commonwealth law should be exercised by the proposed Commonwealth Superior Court or some other Federal court or by some other court exercising Federal jurisdiction.

I believe that it is not unreasonable to ask the Prime Minister at this stage what decision has been made on this 9-year old proposal on which the House was given a Bill 3 years ago. Also - this is not of the same importance but is related to it - what has happened to the committee which also was appointed by Attorney-General Bowen in October 1968 to review the Judiciary Act and. the effect on related laws of the proposed Commonwealth Superior Court Bill?

Two committees were appointed 3 years ago. They both related to a proposal approved by Cabinet 9 years ago for which a Bill was introduced 3 years ago. In speaking to that Bill, I welcomed it. I need not go into much more detail as to the complexity of administrative decisions in Australia at present. There is too great a diversity in the existing bodies and too great a mystery in the existing methods. I refer honourable members who are inter ested in seeing the scores of Acts and regulations and the hundreds of review bodies, boards, tribunals, committees or courts to an answer which Prime Minister Menzies gave me on 17th August 1965 and another which Prime Minister Gorton gave me on 15th October 1968, exactly a fortnight before the Committee was appointed. Prime Minister Gorton's answer occupied 4 pages of small type. It also was interesting because it listed the legal or other representation available to persons before these tribunals. Anybody looking at these very complex answers will see how urgent is this matter.

There are 2 remaining small matters that I should like to mention. I notice that the Committee says that there should be no appeals from decisions of the GovernorGeneral. Paragraph 265 states:

We have deliberately omitted to recommend review of powers exercised by the GovernorGeneral.

The Committee may, of course, have been speaking of matters of high principle determined in effect by the Executive. I would point out, as an example, Federal matters which in Australia or its Territories can be determined only by the Governor-General - in other words, by an appeal from Caesar to Caesar. Honourable members will see these matters in answers given to me by Attorney-General Bowen on 26th March 1969 and by Prime Minister Gorton on 19th September 1969. They include appeals to the Governor-General by public servants dissastisfied with any surcharge made by the Auditor-General, persons arrested or detained without reasonable cause under section 84 of the Crimes Act and officers dissatisfied with a decision of the Military Board vide Australian Military Forces Regulation 194. Again, as part of our imperial bequests, there are now to the Governor-General appeals which formerly lay to the Governor of Singapore in respect to the CocosKeeling Islands under the Arms and Explosives Ordinance, the Banishment Ordinance, the Registration of Schools Ordinance, the Undesirable Publications Ordinance and the Theatres Ordinance of the Colony of Singapore. Also, to complete the list, there are some small matters of appeal concerning the Air Force, the Army and the Navy and, finally, under the Venereal Diseases Ordinance of the Australian

Capital Territory. I am at a loss to know why there should be an appeal to the Governor-General on such varied public and often intimate matters.

The other matter which I wanted to mention concerns security appeals. The Committee makes some . reference to this subject in paragraph 344 of its report. There are migrants whose applications for naturalisation are deferred or rejected on security grounds or who have been notified of the grounds upon which it is proposed to deport them. One would think that we ought expressly to give some power of review in such matters which concern the rights of a very great number of persons to pursue occupations in Australia or to secure citizen rights in Australia.

Those are the main matters, that I wished to mention in this context. Not only honourable members, but all citizens will be very much interested in this pioneering and comprehensive report. It will make a very great contribution to citizen rights in this country. I would imagine that there would be support on all sides - this has been plain for many years - for the judicial and the administrative bodies which it is proposed to establish. I do not think that it is unreasonable to ask what has happened to the proposal to establish a Commonwealth Superior Court and what has happened to the Judiciary Act Committee which was appointed, pursuant to that proposal, at the same time as the Committee whose report has just been presented was appointed.

Debate (on motion by .Mr Hughes) adjourned.

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