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Wednesday, 17 June 1903

Sir J OHN QUICK (BENDIGO, VICTORIA) - Looking back at the proceedings of the Convention, I can see that a mistake was made in that respect. Of course many of us were new to the work of Constitution making, and these points were not so thoroughly considered as they might have been in the after light of experience. I say now it is to be regretted that under section 75 of the Constitution, powers were conferred upon the High Court of which we cannot divest it. But although, we cannot take away from that tribunal its powers of original jurisdiction in respect of matters relating to treaties, foreign consuls, States, and the issue of writs ; we can insert in this Bill a clause declaring that the High Court may remit such of these cases as it thinks fit to the States Courts. This measure contains a clause for remitter in connexion with the removal of causes, and I suggest that that provision might be utilized to indicate to the High Court that except in very extraordinary cases coming within its grant of power, it should not exercise original jurisdiction. I submit that if we desire to erect a court of appeal there is no constitutional necessity to give it additional jurisdiction, such as is proposed under this clause. I believe that the additional jurisdiction proposed can be properly exercised by the States Courts. Undoubtedly the exercise of this original jurisdiction will involve a large amount of machinery as well as a large outlay, which will make the whole tribunal loom in the eyes of the people of Australia as a tremendous expense consequent upon federation. I am anxious that at the next election the enemies of federation shall not be able to attack our institutions by pointing to an unnecessary expansion of departments or their expenditure. That is my sole desire. I am afraid that if this Bill be passed in its present form it will go forth to Australia that regardless o.f expense we are enacting legislation the full meaning and burden of which they will one day realize. It may be that in some States the people do not appreciate the possibilities of increased expenditure as much as they do in Victoria, which is the present seat of Government, and where1 naturally public criticism is more acute than it is in some of the distant States. That fact may account for greater sensitiveness to expenditure in Victoria than is to- be found in some of the other States. If the Government are determined to proceed with the creation of this Court, why cannot they be satisfied with a Court limited to appellate functions 1

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - And the original jurisdiction conferred by the Constitution.

Sir JOHN QUICK - Yes; a jurisdiction of which I regret we cannot divest it. I hope that litigation in respect of matters upon which the Court has ' original jurisdiction will be of a limited character, though if the view taken by the honorable and learned member for Indi last night be correct, namely, that every case to which the Commonwealth is a party, whether civil or criminal, may be brought before this tribunal, its functions will be vastly extended. I was not aware that it was intended to confer criminal jurisdiction upon the High Court in actions to which the Commonwealth may be a party. The words "suing or being sued," I should have thought had reference to civil cases only. But according to the honorable and learned member for Indi they extend also tocriminal cases.

Mr Deakin - Other honorable membershave taken the same view.

Mr Higgins - But is not that view wrong t Look at sub-section (3) of section 75 of the Constitution.

Sir JOHN QUICK - Certainly this Bill is drawn upon lines inconsistent with the view which is entertained by the honorable and learned member for Indi. I was under the impression that the words used in subsection (3) of section 75 had reference to cases in which a person was suing" the Commonwealth or being sued by it in a civil suit. If the view expressed by the honorable and learned member for Indi be correct, the High Court could entertain any criminal case against the Commonwealth.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - Against the Commonwealth law.

Sir JOHN QUICK - I do not think it is desirable to invest a court of appeal with criminal jurisdiction. Such a thing is unparalleled in the history of similar tribunals.

Mr Deakin - The honorable and learned member does not object to the appeal in criminal cases'?

Sir JOHN QUICK - Certainly not. I support that appeal.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - A State Supreme Court sits as a court of first instance.

Sir JOHN QUICK - We are dealing now with the Federal system. The Federal Appellate Court should not be bothered or embarrassed by the exercise of criminal jurisdiction. Last night the AttorneyGeneral suggested that the mere addition of these optional powers to the original jurisdiction of the High Court which is contemplated under section 76 of the Constitution would not increase the expense of its organization. It seems to me that it would do so; because if we confer upon the court general jurisdiction to deal with all classes of Federal cases in the first instance, it necessarily follows that we must have a certain amount of organization to carry out that jurisdiction.

Mr Deakin - We have that already.

Sir JOHN QUICK - No. We shall not require to have in each State district registrars', sheriff's officers, marshalls, and deputies, if we do not confer this original jurisdiction. But if we invest the court with this primary jurisdiction, we must make provision in every State for the issue of writs, we must establish offices and appoint officers to issue writs and conduct all the processes of the courts. That cannot be done without expense. We must also provide officers to carry out the various decrees of the court, whereas if we constitute merely a court of appeal there will be no occasion to provide all these outlying branches. Take the case of the Privy Council as an example. That is the highest court of appeal in the Empire. It has none of the numerous officers who are necessarily associated with courts exercising primary jurisdiction. It has no marshal], no sheriff, and no district registrars. Its expense is comparatively light, because its functions are confined to those of a court of appeal. If we extend the functions of the High Court to cases arising under Federal laws, what will be the result ? We may have one class of litigant demanding that it has a right to issue writs in any part of Australia, in matters relating to every Federal law that has been passed, and if we grant the jurisdiction, we must provide facilities for its exercise. It is also true that if we concede this primary jurisdiction, we must provide for the Federal Judge or Judges travelling about to exercise that jurisdiction. This primary jurisdiction cannot be exercised at the seat of Government. As already mentioned, the court must be brought to the doors of the people, and to that end there must be a Judge travelling to the various centres of population throughout the Commonwealth. We should require to have one or two Judges always on circuit to get even a very limited service in the way of judicial administration in the first instance. I would remind the AttorneyGeneral that to grant this primary or original jurisdiction as contemplated, we should not only have to provide a Judge who would not be required for the exercise of appellate jurisdiction, but also to provide for his expenses in travelling, and for the expenses of the officers associated with him; and thus the cost would be enormous. I feel quite confident that the estimate which is submitted, and which might be sufficient to cover the expenses connected with a Court of Appeal will be absolutely insufficient if we have to provide for the exercise of primary courts throughout Australia. As an illustration of what the circuit system means, I have obtained from the accountant of the Law Department of Victoria a return showing the approximate cost of circuit courts in that State for the financial year 1901-2.

Mr Higgins - A Judge goes on circuit only once a year in Victoria.

Sir JOHN QUICK - But one Judge is always on circuit, each Judge in turn undertaking the duty.

Mr Higgins - Then. the honorable and learned member is not referring to one particular Judge?

Sir JOHN QUICK - No ; every month one of the Judges goes' on circuit. As a matter of practice one Judge is told off month by month to do the circuit work.

Mr Salmon - That is not every month in the year.

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