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Wednesday, 15 June 1904


Mr HUGHES (West Sydney) (Minister of External Affairs) . - Whether this Court should be a Court from whose decision there should be no sort of appeal, and whether on a question of jurisdiction recourse should not be had to another Court, is obviously arguable. But what is the position taken up by the honorable and learned member for Bendigo? He says that the President should be compelled to state a case. I ask under what circumstances ?


Mr McCay - Compellable, not compelled.


Mr HUGHES - By what means?


Sir John Quick - The persons interested could appeal to the High Court for a rule nisi. 1


Mr HUGHES - I really do not see that the position would be altered for the better in any way. There would be no end of litigation, expense, and uncertainty. If anything is to be done at all, there ought to be only one set of circumstances in which an award or any act of the Court can be set aside, and that is when it is shown that the Court has exceeded its jurisdiction, or when it has declined to act upon a matter clearly within its jurisdiction. I point out to honorable members that section 32 of the New South Wales Act provides - ,

Proceedings in the Court shall not be removable to any other Court by certiorari or otherwise, and no award or proceeding of the Court shall be vitiated by reason only of non-formality or want of form, or be liable to be challenged, appealed against, voided, quashed, or called in question by any other Court of judicature on-any account whatsoever.

That seems perfectly clear, and yet it has been held in New South Wales that it does not apply to a question involving the jurisdiction of the Court. In the case of Keogh against the Australian Workers' Union it was held that the Court could declare that the Court of Arbitration, notwithstanding section 32 of the New South Wales Act, had gone outside its jurisdiction. While I admit, at once, that a very nice point has been raised, and that the benefits to be obtained by the adoption of one course are balanced by certain risks, still the honorable and learned member for Bendigo makes a proposal which, it appears to me, is in no way required by the clause. As the clause stands now, it gives, in certain circumstances, the right of appeal, but if it does not honorable members might now allow the clause to go, in view of the fact that the Attorney-General lias stated that the Government are prepared to recommit the clause for further consideration. The statement of the AttorneyGeneral may be regarded as a recognition on the part of the Government of the very great importance of the question raised. I regard this matter as perhaps of as great importance as anything contained in the

Bill, and when the clause is recommitted honorable members will have an opportunity to express their opinions on it.







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