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Thursday, 10 November 2016
Page: 2496

High Court of Australia


Senator CULLETON (Western Australia) (14:53): My question is to the Attorney-General, Senator Brandis. I refer the Attorney-General to my question without notice on 12 September 2016 regarding section 33 of the High Court Act and the High Court Rules 2004 and my concerns about the High Court of Australia generally. In light of the Attorney-General's response to my question, which he tabled in the Senate yesterday, can the attorney please explain to the Senate how the High Court intends to deal with the issues I have raised?


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:54): It is not for me to speak on behalf of the High Court, but I can tell you that after your question I did raise the matter with the Principal Registrar and CE of the High Court, Mr Phelan. Mr Phelan has responded to me in a form which I have his authority to read to you. He said: 'An exposure draft of the High Court Rules 2004 was circulated in April 2004. The exposure draft was the subject of detailed comments by the Law Council of Australia, the Australian Bar Association and the Special Committee of Solicitors-General. After considering those comments, the justices made the High Court Rules 2004 on 5 October 2004. They were tabled in the parliament on 16 November 2004 and came into effect on 1 January 2005. No issue was raised in the process of drafting or consulting concerning the consistency of the rules with section 33 of the High Court of Australia Act 1979.

'The rules committee of the High Court considered that issue on 12 October 2016. The committee proposes a number of amendments to the rules to address the issue. The proposed amendments will be drafted by the Office of Parliamentary Counsel and will be the subject of consultation with professional bodies before being finalised by the court.'

Senator Culleton, it was you who spotted this discrepancy in the High Court Rules which the High Court Rules Committee has now acted upon. I might say that, since those rules were promulgated in 2004, there have been 16 distinguished Australian jurists who have sat on the High Court, including two chief justices, and I must congratulate you, Senator Culleton, on being the first person to spot the problem.

The PRESIDENT: Senator Culleton, a supplementary question.



Senator CULLETON (Western Australia) (14:56): Given what the Constitution provides in chapter 3(72) regarding the removal of judges, how is it possible to address the now proven misbehaviour by simple amendment without first addressing the original breach of the Constitution by the High Court of Australia in failing to take the changes effected by the High Court of Australia Act to referendum?


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:56): I have to correct you, with respect. There is certainly no breach of the Constitution. There is no requirement. What we are talking about here is a discrepancy that you have identified between the High Court Rules 2004 and the forms to the High Court Rules. That is not a constitutional issue; it is an issue that is entirely able to be corrected by the amendments to the rules that are now in contemplation following your question. There is no issue of constitutional invalidity or indeed no constitutional issue raised here whatsoever.

The PRESIDENT: Senator Culleton, a final supplementary question.



Senator CULLETON (Western Australia) (14:57): Given my question concerns the issue of the past and present deliberations of the same High Court of Australia while this misbehaviour remains unaddressed, can the Attorney-General advise whether the High Court must stand down until such times as the matters under investigation are clarified and resolved?


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (14:57): You really should not accuse the judges of the High Court of misbehaviour. There is absolutely no suggestion of that, and it is not a proper thing to do. It appears that a mistake was made in 2004 in the drafting of the High Court Rules—a mistake of a very technical nature—so that there was a small discrepancy between a form and a rule. That is not legally consequential. In fact, no member of the current High Court was a member of the High Court of Australia in 2004, so no member of the current High Court was involved in the decisions made in 2004. No member of the High Court has been guilty of misbehaviour. No member of the High Court has been guilty of any unconstitutional conduct. This is not a constitutional issue. It is not an issue of behaviour. It is a question of a minor discrepancy which you, Senator Culleton, have noticed. (Time expired)