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Friday, 3 October 1902

Mr DEAKIN (Ballarat) (AttorneyGeneral) . I move -

That the Bill be now read a second time.

The Bill which I have the honour to bring under the notice of the House, is intended, as its title indicates, to make temporary provision for enforcing claimsagainst the Commonwealth. If it were designed to be a permanent measure, it would have been presented in another form. Honorable members will realize that it is submitted at the present time because there has been obviously no opportunity for the passage of the Judiciary Bill or of the High Court Procedure Bill during the current session. The immediate cause of its introduction is a judgment given by the Supreme Court of New South Wales in a case in which my honorable colleague, Mr. Drake, consented to be defendant. In that case, the Judge held that his submission to the State jurisdiction was given by him as PostmasterGeneral ; that he could not accept that individual submission, and that consequently the plaintiff could obtain no redress in that court. This Bill is not intended to anticipate more than is absolutely necessary the passage of the measures to which I have alluded, which make permanent provision for enforcing claims against the Commonwealth as well as for all other classes of cases, and for the creation of a High Court whose jurisdiction shall embrace these and other causes of action. I have observed in the press some comments upon this measure, which appear to have been -founded upon a misapprehension of its character. It is merely intended - as its title indicates - to make temporary provision for the enforcement of claims, and it is not proposed to forestall, further than immediate necessities require, that fuller legislation which we hope will be passed next session, providing for the establishment of the High Court of the Commonwealth, one of the three great powers essential to our complete Constitution, and whose decisions are essential to the interpretation of that Constitution under which we now live, move, and have our being. The necessity during the current session for subordinating every other interest to the passing of the Tariff has compelled us most reluctantly to postpone the consideration of the measures to which I have referred, and we now find ourselves, just prior to the recess, called upon to take the requisite steps to provide that during the interval which must elapse before those Bills are placed upon the statute-book there shall be no injury for which the Commonwealth is responsible that will not be subject to jurisdiction even in our States courts. Honorable members are aware of the ancient doctrine which originally placed the Crown, in every dependency in which it was represented, beyond the reach of the ordinary courts of law. A very special procedure was necessary, and iri every instance, both in the mother country and its colonies, the consent of the Crown was essential - before it could be made the defendant in any action. Gradually, however, it has become the practice to provide by statute for the submission of the Crown to the courts of the realm, and that, in a varying degree, has been the aim in the several States of this Union. In some of them the very amplest authority is delegated to the courts to deal with cases against ' the Crown. In others that power is of a more limited character. But it must be recognised that the trend of modern legislation is to render it perfectly possible for the subject to bring even the Crown before the courts in regard to any matter upon, which he may feel aggrieved. This concession was made by a succession of stages to which it is unnecessary to refer. But I wish specially to call the attention of honorable members to the fact that, temporary as this measure is, it marks one very serious departure. In the mother country, and in the various colonies, the Crown has consented by statute to become liable, more or less, to the jurisdiction of the courts, but in every single instance that liability has been limited to the courts directly associated with the Crown. That is to say, in Great Britain the Sovereign - the Crown - consents to submit to the jurisdiction of its own courts. In the same manner, in each of the States of Australia, the Crown consents to submit to the courts of that State. In no instance does the Crown in any one of its dominions accept the jurisdiction of the courts of any other of its " dominions except by way of final appeal to the Privy Council from its oversea dependencies. The proposals contained in this Bill, however, mark an entirely different step, and one of a very much more serious character. In this measure the Commonwealth proposes not to submit to the jurisdiction of its own.courts - as will be proposed in the subsequent legislation to which I have referred - but to the courts of the States. That marks a very grave and distinctly new departure. It is because of the gravity and novelty of that departure that it appears to the Government desirable that we should take whatever steps are required to meet the present emergency in such a manner as to indicate the comparative strangeness of this proposal, and also to preserve the dignity of the Commonwealth. Honorable members will observe that in this measure those who desire to make any claim against the Commonwealth pray the Governor-General to appoint a defendant, and that the GovernorGeneral is left perfectly free to exercise his option - on the advice, of course, of his responsible Ministers - in each and every regard. Of course it would be idle, to bring forward a proposition of that character if it were not the intention of the Government to give effect to it. I call attention to this provision because by it we do not seek merely to keep the word of promise to the ear, but because it is our intention, in the exercise of this option, to submit the Commonwealth to the federal jurisdiction of State Courts in the case of all claims of which we have' now any knowledge, or which are likely to arise. That submission is made optional in order to maintain the dignity of the Commonwealth - to act as a perpetual reminder on the face of the measure that the.

Commonwealth is submitting itself to courts which are not its own, and that those who take advantage of the provisions do so by its grace. When our permanent measures come before the Chamber, it will be found that provision is made for rendering this a matter of right, and not of grace, in the courts of the Commonwealth. But, as those courts are not established, and as this is a temporary measure, this provision has been inserted, not with the object of defeating the intention of the Bill - not with the object of enabling the Governor-General, after having been authorized under this Act to appoint a defendant, to evade his responsibility - but merely to mark the fact that it is by a concession that the Commonwealth 'submits to the federal jurisdiction of State courts which is here vested in them. The temporary character of the measure is prominent in clause 7, which is as follows : -

In any action or suit brought under this Act, any appeal, or application for leave to appeal, from a decision of the Supreme Court of a State, which in the opinion of the Attorney-General involves a constitutional question, or a question of importance to the Commonwealth, shall on the application of the Attorney-General be postponed until a time not later than the date of expiration of this Act.

There is no attempt here to take away any right of appeal. It is plain on the face of the clause that the object is to enable a case, although it may arise upon some simple or even trifling incident, and be of small importance from a financial point of view, if its decision broaches a constitutional or other question of magnitude, to be postponed until the High Court shall have been established. The .Federal High Court will be able to deal with such matters, and will have an opportunity of exercising the further powers which it' possesses under the Constitution of deciding whether a particular constitutional issue, if it be one which affects the respective rights of the States and the Commonwealth, shall receive its final decision in Australia, or if, like every other question save the exceptions contained in section 74, shall be allowed to go to the Privy Council. The object of the clause is simply to enable the appeal in cases involving questions of such magnitude to be suspended until time has been allowed this Parliament to create the High Court and provide for its procedure. This will permit questions of federal interest, involving the interpretation of the Constitution or of federal law - the determination of federal rights and powers of the greatest moment - to be considered by the Federal High Court before they are remitted, if they are to be remitted, to the Privy Council as the final court of appeal. I do not pro pose to enter further into the clauses of this Bill or the particular mode of drafting which has been adopted. I hope I have conveyed to honorable members' minds the fact that this is a temporary measure which, by the fashion in which the clauses are drawn, emphasizes the fact that it is intended to operate only until the establishment of a Federal High Court has been obtained. Some of these proposals were submitted in the Judiciary Bill, and the remainder were tobe submitted in the High Court Procedure Bill. The temporary nature of the measure I use as the ground of a request to the honorable and learnedmember for South Australia, Mr. Glynn, not to raise the vast issues involved in the amendments of which he has given notice. I shall submit at the proper time that those amendments cannot be entertained in connexion with this particular measure ; but, in any event, urge the honorable and learned member not to press his amendments on the consideration of Parliament in this session. To deal with them would need, not only far more time than we can spare to-day, but far more time than Parliament san spare this session. They involve some of the most fundamental issues of the main Judiciary Bill and the High Court Procedure Bill, which the Government intend to submit next session. The amendments, undoubtedly, show the devotion of the honorable and learned member to those ideas, which, with him, are not of to-day or yesterday ; he has been perfectly consistent ever since he advocated similar proposals in the Convention which preceded the passing of the Federal Constitution. But while I admit the honorable and learned member's consistency in again, at the first opportunity, bringing these matters under the attention of the House - and, indeed, he has previously directed the attenof honorable members to them - I would urge him not to complicate and overload the issues which we are called upon to consider. We are all wearied by the prolonged session, and in no mood to entertain the very vital changes which he suggests. When we come to deal with the clauses in committee, I shall be prepared to show reasons why the particular form of the measure has been selected. Honorable members will see by the side-notes that all the clauses are more or less based on provisions already in force in the several States.

Mr Crouch - Does the AttorneyGeneral know of any State law which gives the right to press an action in tort?

Mr DEAKIN - There is that right, I think, in all the States except Victoria and South Australia. But, to leave points of detail, I commend this measure to the House as a means by which it will be possible for those who. are aggrieved by any failure of the Commonwealth to perform its obligations, or by any wrongful act on the part of the Commonwealth, to submit their causes to the federal jurisdiction of State courts. That has been done in the simplest manner, because we shall be called on nextsession to legislate in what I hope will be a final and practical manner for these and all similar judicial needs.

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