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Thursday, 29 March 1984
Page: 858


Senator HAINES(11.38) —In the last two weeks, I, and I understand a large number of other senators, have undertaken discussions with a number of groups which have an interest in the Judiciary Amendment Bill (No. 2) 1984, including representatives of the Australian Bar Association and of the Law Council of Australia, both here and in South Australia. Senator Hill said a moment ago that at the end of the letter he received from the Law Council it indicated it had a number of concerns, including a desire to protect the rights of Australian citizens and a desire to ease the work load on the judges, as well as some concern for accommodating Government policies. It seems to me from the discussions I have had that almost everyone has agreed that the High Court of Australia work load is increasing, that that increase is not improving the quality of justice in Australia, that there is a very significant and real difficulty in coming up with a set of criteria for as-of-right appeals and that we are urgently in need of balancing, first, the need to cut back the number of inappropriate as-of-right appeal cases before the High Court and, secondly, offering some sort of certainty to lawyers and their clients with regard to leave-to-appeal cases. I understand that part of the problem comes from the fact that no reasons are given when leave to appeal is denied.

I also understand, I hope correctly, that the Attorney-General (Senator Gareth Evans) is undertaking some discussions with the judges about coming up with some reasonable way of getting around this problem. Quite clearly it is not the sort of thing that could be drafted into legislation without either producing the need for a full appeal hearing or coming up with a new layer of legal judgments. Everybody seems to agree that the money criterion is not an appropriate one, but suggestions that have been made to me by members of the Law Council of Australia and the Australian Bar Association about making it more appropriate by increasing it, have ranged from raising it to $50,000 or $60,000 and raising it to $200,000. So there does not seem to be great agreement there. Senator Hill was correct when he raised the question of costs to clients with an increased number of leave applications. This applies particularly to South Australia and Western Australia where it is simply not possible for counsel to make a quick one-day trip to Canberra to put the case. That is a significant question that has to be faced.

Objections have been raised, also, with regard to what some people see as the lottery element of the proposed scheme, notwithstanding the fact that they argue that there is considerable inappropriateness inherent in the current scheme. Whatever they say, the problem always comes back to the fact that there is no uniformity of opinion among the groups concerned, which includes the Government, the Opposition, the Law Council of Australia and the Australian Bar Association, about what sorts of cases should fall into which categories. Senator Durack believes that the solution for this is to refer this legislation to the Senate Standing Committee on Constitutional and Legal Affairs. In the first part of his amendment he says that the Committee should inquire into, report on and examine whether, in recent years, there has been an increase in the workload of the High Court sufficient to justify the abolition of the existing rights of appeal to that Court as a right. One wonders, if it decides there has been no real work load increase, whether it will dissect the sorts of things that have been forming part of that work load to work out whether there would have been an increase if more of the leave to appeal cases which should have gone before the court, but could not because of the number of inappropriate right of appeal cases, had gone before it. Paragraph (b) of Senator Durack's amendment states:

Whether further restrictions upon the rights of appeal to the High Court are justified in view of the workload of the High Court and, if so, what would be the fairest and most equitable system of restrictions which could be imposed.

Yet, in discussions that I have had over the last two weeks with people who are most closely involved in this, no agreement has been able to be reached. I would have thought that what one representative of the ABA said to me should be taken into account. He said that lawyers-the people involved in this-have been turning their minds to this question for years and have not been able to come up with a reasonable set of criteria.

One wonders how much time Senator Durack and the Opposition believe that the Constitutional and Legal Affairs Committee will have to put into this sort of inquiry if it has to come up with a set of criteria that presumably the finest legal minds in this country have not been able to come up with despite the fact that they have, according to one senior member of the ABA, been considering it for a number of years. This is particularly so given the fact that the Constitutional and Legal Affairs Committee is currently rounding off its report into the National Crimes Authority and that senior and significant members of that Committee will have to take on the work load of an investigation into the Age tapes. Quite clearly any consideration of the work load confronting the High Court will have to take some considerably lower priority than it ought to take. I suggest that this sort of delaying tactic is at least partly due to the fact that Senator Durack is understandably interested in the formation of a national appellate court which he believes will emanate from the next constitutional convention. I suspect that he believes that with more optimism than justification given the fact that Queensland has indicated that it is not interested in this and that Queensland has a charming habit of stacking the conventions.

The Law Council of Australia telexed me yesterday with several amendments that it felt would improve the current Government proposal. The Council suggested that proposed section 35A should be amended so that in the first sentence, after the word 'but', the words 'without limiting the generality of the foregoing,' be inserted. It suggested that the final three words-'have regard to'-should be omitted and that the words 'grant such an application where' should be inserted. It suggested also that in paragraph (a) of the proposed section the first word, 'whether', should be omitted and that one or two other consequential amendments should be made. It suggested also that following the end of the proposed section the words 'and shall have regard to the punishment (if any) in criminal cases and to the significance of the outcome to the litigants in civil cases' should be added. The Government has indicated that it is not at all happy with that.


Senator Durack —Nor am I.


Senator HAINES —In the brief conversation that I had with Senator Durack this morning, he indicated that he was not at all interested in pursuing the path suggested by the Law Council. As I am not in the business of pursuing futile exercises in this place, I am afraid that I have to say to the Law Council of Australia that, notwithstanding the amount of work that Ian Temby and Brian Maguire put into this, there seems to be no point in pursuing it for them.

That leaves us in the position of coming to a decision with regard to the current problem facing us in this legislation and that is whether to take some sort of steps to improve what everybody agrees is a situation which cannot be allowed to continue or to say that the Senate is not in the position or not prepared to make a decision on this and to foist yet another piece of legislation or another controversial question upon an already overworked group of people. Given those two alternatives, we decided that the better, although obviously not the most satisfactory, of the two paths to take is to support the Government's proposed legislation.