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Tuesday, 26 November 1985
Page: 2280


Senator DURACK(8.33) —Mr Temporary Chairman, I want to address some remarks to the votes for the Attorney-General's Department. I notice that the Minister for Veterans' Affairs (Senator Gietzelt) is at the table. I do not know whether he is representing the Attorney-General (Mr Lionel Bowen) in the Senate.


Senator Cook —Why don't you get on with it and stop carping.


Senator DURACK —What a brilliant contribution by Senator Cook. We will see whether I am carping. If the honourable senator listens he will find out whether the Minister, whom he supports, can answer any questions. If he cannot, I will give him the same treatment that has just been given in relation to the estimates for the Department of Resources and Energy. Perhaps Senator Cook would serve better by getting out and trying to organise something in the Senate.


Senator Cook —When I want advice from you, I will ask for it.


Senator DURACK —I am not asking for the honourable senator's advice. Mr Temporary Chairman, I want to deal, firstly, with division 170 under the heading `Courts and Tribunal Administration'. At the Estimates committee hearing there was a discussion about the arrangements for the Federal Court of Australia. The question arose as to some rearrangements of appointments to the Federal Court in the last few months. I asked:

Has there been an overall increase in the number of judges in the Federal Court and the Family Court?

The reply I received was that there had been only one additional appointment to the Federal Court. This reply was given on 17 September 1985. I presume that the answer which was given by the officer, Mr Curtis, referred to the previous 12 months. He also indicated that there had been some important rearrangements of justices of the court in that two judges who had previously been judges of the Northern Territory Supreme Court and based in Darwin had resigned or retired from their duties. Mr Justice Forster had moved to Adelaide and Mr Justice Muirhead had moved to Perth. That gave rise to some further discussions because I was concerned about the policy that was exhibited by these arrangements, particularly as I understood that Mr Justice Muirhead was retiring from the Supreme Court altogether and was going to live in Perth. The next announcement we heard was that he was going to be appointed as a second judge in the Federal Court in Perth. That gave rise to some discussion about the nature of this appointment-whether it was a temporary appointment or whether it portended a change in policy in relation to appointments to the Federal Court. I was concerned to know whether there had been any inquiries from members of the legal profession in Western Australia and whether any of them were interested in an appointment to a second position in the Federal Court in Perth. I never got an answer to that question, as the Minister for Resources and Energy (Senator Gareth Evans) who was dealing with these estimates could not answer the question. I do not know whether I have any hopes of the Minister for Veterans' Affairs (Senator Gietzelt) who is at the table at the moment being able to answer that question. I have never had any answer to that question subsequently despite the fact that it was asked on 17 September 1985. Therefore, I repeat the question: Is Mr Justice Muirhead simply taking this position as a temporary position, or is it envisaged as a permanent appointment to the Federal Court in Perth?

The second point which arose-it arises in relation not only to Mr Justice Muirhead, but also, I guess, in relation to Mr Justice Forster-is whether there is to be a change of policy in appointments to the Federal Court in future. Until now appointments have been made on a territorial basis. If a judge is required in Perth, is the appointment made from the Perth profession? If it is made in Melbourne, is it made from the Melbourne profession, and so on, which has been basically the way in which the Federal Court has been structured up to date. Will appointments be made from within Australia at large? I am simply seeking information, I am not expressing any view one way or the other on that matter. I got a very unsatisfactory response from Senator Gareth Evans at the time. When I pressed him, he stated:

I will take it on notice and see what Mr Bowen--

who is the Attorney-General-

might be inclined to say.

This is the sort of way this Government goes. It may or may not be inclined to give information. This is a government which was supposed to be the great apostle of freedom of information and so on, but it is almost like extracting teeth to get any information even if the Minister is supposed to know something about it, much less when it pretends to know nothing. The Minister representing the Attorney-General has never deigned to give me an answer to that question. So I repeat it. In fact, although Senator Gareth Evans tried to indicate that perhaps there was nothing very surprising about any of these appointments, the fact is that quite recently there has been an appointment to the Federal Court of a Mr David Jackson, QC, of the Brisbane Bar. He is a very fine lawyer and it is a very good appointment for the Federal Court. But I noticed that Mr Jackson is to be based in Sydney even though he is a practitioner of the Queensland Bar. He has been appointed and is to be based in Sydney. That is a very interesting development and it is very much in line with the questions I raised in Estimates Committee E on 17 September. It adds further to the interest I have in whether or not the Government has changed its policy in regard to appointments to the Federal Court. I would like to know whether there has been such a change of policy. If there has not been a change of policy, how does the Government explain the appointments of Mr Justice Muirhead, who has transferred from Darwin to Perth and is now sitting in Perth, and Mr Justice Jackson, who has been appointed from the Queensland Bar basically to serve the Court in Sydney?

The other matter on this item, which I did not raise at the time but which is of some concern, is whether this Government is following any different policy from that of previous governments-not only the Fraser Government but also its predecessors-in relation to the size of the Federal Court. I appreciate that the Federal Court was established by the Fraser Government, but the Industrial Court had been in existence for some years and before the boilermakers case there was the Conciliation and Arbitration Court. Historically, the policy of successive Federal governments over many decades has been that the Federal Court-whether it is called the Federal Court or by any other name, but a Federal court other than the High Court of Australia-would be a specialist court with very limited jurisdiction and limited purpose, certainly limited in size and not designed to be a competitor with the traditional court structure in Australia; namely, of the superior courts being the Supreme Courts of the States, ultimately with appeals to the High Court of Australia. We will be debating this matter shortly under another Bill, under which appeals to the Privy Council finally will be abolished, so we will have a thoroughly indigenous courts structure in Australia.

I wonder whether, in view of those changes, this Government is contemplating a change in policy in relation to the size of the Federal Court. Will the Federal Court remain a specialist court or will it be expanded, as it easily could be, by being given jurisdiction under various Acts of this Parliament, where instead of investing State courts with that jurisdiction this Parliament may invest the Federal Court with the jurisdiction. That has been a serious matter of conflict within the Australian judicial system for some years. It has commanded great attention and concern by the courts and the legal profession of this country and also by litigants, who suffer most when there is a conflict about jurisdiction, which all lawyers agree is a totally arid, unproductive, expensive and unnecessary conflict for litigants and their advisers.

The Australian Constitutional Convention, which was held in Brisbane at the end of July and early August, accepted a recommendation from its judicature committee which was designed to iron out these conflicts of jurisdiction. I know that the Government has accepted that recommendation and is working on it and I am not really asking about that. I am interested to know whether the Government has formed any different policy in the light of that decision; whether it sees any further growth in the size of the Federal Court; whether it sees the Federal Court as having an unlimited growth; or whether it sees the situation now as being one of containing the size of the Federal Court and attempting to maintain and perhaps enhance the powers and status of the State Supreme Courts.