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Thursday, 18 June 1903

Mr ISAACS (Indi) - I think that the honorable and learned member for Werriwa has slightly confused two different matters. The amendment has no relation to clause 31, which contained the proposal of the Government to confer additional original jurisdiction upon the High Court. Clause 40 does not relate to additional jurisdiction at all. It deals only with the compulsory jurisdiction provided for by the Constitution, and only with a portion of that jurisdiction. Therefore, there is nothing in common between the clauses, and the amendment has nothing to do with clause 31. What the Committee refused to do, in striking out clause 31, was to give the High Court more than the compulsory original jurisdiction of the Constitution. Clause 40 provides that part of that compulsory jurisdiction shall be confined to the High Court.

Mr Conroy - But when we decided to omit clause 31 we practically dealt also with clause 3, and were limiting the work to be done by the High Court with the intention of limiting the number of the Judges to be appointed to that court.

Mr ISAACS - I do not quite follow the honorable and learned member. I should like now to point out what I think should be done with clause 40. I agree very largely 'with what has been said by the honorable and learned member for Bendigo, and I am therefore compelled to vote against the amendment of the honorable and learned member for Northern Melbourne, because I think that some matters at all events should be exclusive in the High Court, and if there is only one matter exclusive in the High Court we must vote against that amendment. The proposal which I understand the honorable and learned member for Bendigo to make is that the clause in effect should provide that the Federal High Court should have exclusive jurisdiction of suits dealt within paragraphs (c), (d), and (f). I think there is great reason for each of these, and I should feel disposed to support that proposal. It would be anomalous, I think, to allow a State Court to summon to its bar another State. I think it would interfere with what we may fairly call the relative independence of the States. Then, in suits of the Commonwealth against the States the same principle applies.

Mr McCay - Surely, as regards paragraph (d), the Commonwealth has its choice as plaintiff, and it cannot hurt the Commonwealth to give jurisdiction to a State Court?

Mr ISAACS - I think it would be wrong to make a distinction in that case, and allow the Commonwealth to summon before the bar of any one State any other State, because the honorable and learned member will see that there is no distinction here. Why should the Commonwealth sue the State of South Australia before a Victorian State Court ?

Mr McCay - I agree with the honorable and learned member there. I was thinking of matters brought before the courts of the State concerned.

Mr ISAACS - There must be exclusive jurisdiction to some extent. I do not think it is easy to clearly draw the line of distinction. Besides, I do not think there would be much use in giving the optional power, because the Commonwealth would always go to its own court.

Mr Higgins - Would its own Court be partial ?

Mr ISAACS - I think not ; I think it would be perfectly independent and impartial, but I see nothing to be gained by drawing the distinction even if we could overcome the difficulty. With regard to paragraph (f), dealing with mandatory orders to officers of the Commonwealth to do something in the execution of their duty, it seems to me more appropriate that the Commonwealth Court should be the tribunal to command the execution of a duty by a Commonwealth officer under a Commonwealth law. I can see, of course; that there could be an order by a State Court, but I think there is a very great deal to be said for reserving matters dealt with in that paragraph to the Commonwealth Court. However, I do not feel so strongly upon that paragraph as upon paragraphs (c) and (d).

Mr Higgins - I think those are most important.

Mr ISAACS - I think the other ought to be dealt with in the same way .

Mr Higgins - There is no occasion to fight about the matters dealt with in paragraph (d). If we leave exclusive jurisdiction in matters dealt with in paragraph (c) it will be quite enough.

Mr ISAACS - I think there should be exclusive jurisdiction with respect to paragraphs (c) and (d), and also paragraph (f), though I do not feel so strongly about paragraph (f).

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