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Tuesday, 23 June 1903


Mr McCAY (Corinella) - I listened with very great attention to the view put by the Attorney-General as to the constitutionality of the clause. But I confess that I was unable to go with him in his reasoning to the conclusion at which he arrived. He has had to say in effect that, taking section 73 of the Constitution with section 77, he could spell out from the two an implied power to place a condition upon the bestowal of jurisdiction on the Courts of the States. Section 73 deals solely with one of the courts created by the Constitution, or that may be created under the Constitution, but does not deal in any way with the jurisdiction to be bestowed on existing courts on which we have the right to bestow further powers. Then, if we look at section 77, upon which the honorable and learned gentleman relied, we find in sub-section (2) that the Parliament may make laws -

Defining the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States.

If I understand the honorable and learned gentleman aright, he says that that power implies an authority to limit the jurisdiction.


Mr Deakin - To impose a condition on the granting of the appeal, because we can define the extent to which the jurisdiction shall be exclusive.


Mr McCAY - Exactly. The honorable and learned gentleman says that the word "extent" implies the power to impose a condition. Let us grant for a moment that it is so. Sub-section (2) refers solely to courts created by the Commonwealth.


Mr Deakin - To Courts of the States !


Mr McCAY - The term "Federal Court" in the sub-section includes the High Court and any other Federal Courts that we may create, but it does not include the States Courts, which we invest with Federal jurisdiction. The first section of the Judicature chapter of the Constitution says -

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other courts. which are not called Federal Courts - as it invests with Federal jurisdiction.

Consequently sub-section (2) of section 77 does not refer in any way to States Courts invested with Federal jurisdiction.


Mr Deakin - But it says, "or is invested in the Courts of the States?"


Mr McCAY - I know. It says the Parliament may make laws -

Defining the extent to which the jurisdiction of any Federal Court -

That is, the extent to which that jurisdiction of Federal Courts shall be exclusive of certain other jurisdictions.


Mr Deakin - Exactly, "Invested in the Courts of the States."


Mr McCAY - Quite so, but the definition of extent is only permitted with respect to Federal Courts. We can only say as regards a Federal Court, that this jurisdiction shall be exclusive of State jurisdiction. But it does not convey the power to impose a condition upon the investment of the States Courts with Federal jurisdiction. It does not convey the power to define the extent to which Federal jurisdiction shall be bestowed upon States Courts, because, when we come to sub-section (3), we have the investing power given without any corresponding power of defining the extent. Sub-section (1) refers solely to courts created by the Parliament. In sub- section (2) the words "any Federal Court," refer solely to courts created by the Parliament, and it is only in the case of courts created by the Parliament that we can define the extent of their jurisdiction in the sense in which we can impose a condition with respect to jurisdiction. In sub-section (3) - beyond section 71, of course - we get the only express authority for investing States Courts with Federal jurisdiction. There is no power to be spelled out of that sub-section, or any other portion of the chapter which allows us to impose a condition at the same time that we invest the

Courts of the States with Federal jurisdiction. What I mean is that, having decided that the State Court is to have a given Federal jurisdiction, we must bestow that jurisdiction along with all the incidents and rights of litigants which belong to the State Court in the exercise of its ordinary State jurisdiction ; that the only ground on which we can say that a State Court can have the jurisdiction bestowed on it limited with respect to the right of appeal is that we have the authority to define the extent of its jurisdiction, which we cannot do. The wording of sub-section (1) and subsection (2) - to definein one case the jurisdiction and in the other case the extent to which the jurisdiction shall be exclusive - varies so markedly from the third sub-section, which authorizes us to invest the States Courts with Federal jurisdiction that it seems to me there is a very cogent argument to be drawn from these words to the effect that the Constitution has almost, in so many words, distinguished between what we can do with regard . to Commonwealth-created courts, and what we can do with regard to previously existing courts. Sub-section 2, when it is read carefully, seems to me to give only a power to assert that the jurisdiction shall be exclusive - nothing else surely the power to assert that the jurisdiction of Court " A," shall be exclusive, cannot be read to mean that Court " B " may haveaconditionimposedupon the jurisdiction vested in it, which is not made exclusive in Court "A." The Attorney-General has used sub-section (2) in support of the clause in a way in which it cannot be used, when we consider the words of the whole section I submit that sub-section (3) is the only one dealing with the question, and that it does not give such authority. When we find irresistible inferences arising from express words, it will require a very strong implication to be gathered from the general sense of the chapter on the Judicature to justify us in overriding those inferences. I feel compelled, on the ground of law, to say that this sub-clause is not within the authority of this Parliament; because having invested the States Courts with Federal jurisdiction, having said that they shall have power to hear cases arising under laws made by the Commonwealth, we propose to say that there shall be no appeal in the ordinary way. I can see no authority for such a condition ; and, though it is almost with timidity I say it,, my mind is, rightly or wrongly, . not in . any state of doubt on the matter. Rightly or wrongly, it seems to me that unless we are to have the Constitution enlarged by' interpretation by some court .in a most national and most notable manner - unless 'we are practically to have meanings read into the Constitution which the ordinary reader cannot there find - this power does not, exist. Even if this question were only debatable, it would be unwise at. this stage to adopt the proposal of- the Attorney-General, quite apart from whether its adoption might not be .an interference or. an imagined interference with the prerogative, and thereby give rise to ' the necessity of reserving the measure for the Royal assent. We do not want to pass .laws here of .such a character that - there shall be a chance of any custom growing up of reserving 'measures, .unless in cases in which the Constitution positively orders such a step. In regard to the matter of appeals, it seems to me - and I expressed very much the same view during the debate on the second reading - that so long as we, as a matter of fact, have no finality, or anything like finality, in the High Court, it is not desirable to introduce another stage in litigation.


Mr Deakin - We want as much finality as we can get.

Mr.-McCAY. - We want as much finality in Australia as we can get, but I do not think that finality will, be attained, under existing conditions, by merely introducing a fresh stage, or possibly fresh stages, of litigation, and thereby giving rise to appeal after appeal,, until the Privy Council is reached.' There is a great deal in what was said by the honorable and learned member foi- South Australia, Mr., Glynn, as to the' probability of leave of appeal to the PrivyCouncil being given in a large number of cases. If under this clause every appeal went to the High Court, many litigants, whether satisfied or dissatisfied with the result, would probably be thoroughly satis:he(:1 with the bill, or bills, of costs which would come in due course, and consequently a great number of appeals would stop, because of reasons other than the satisfaction - if such 'a term may be used - of a litigant with the decision against him. I base my objec-tion to the clause chiefly on the ground that I do not see any authority in the Constitution for imposing a condition on a State Court which we have invested with

Federal jurisdiction. I can see reasons for arguing that, given a Federal Court, we can impose conditions on that court. I may have grave doubts on ;that.-p'oint, but I cannot - probably', 'through /my. own fault in .not properly following ' the arguments of the Attorney-General - see at;. the present time any ground for .imposing any condition, and, therefore, I feel it .my duty to 'oppose the honorable gentleman's proposal. ' ' ' .' . '







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