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Thursday, 4 April 1968


Mr IRWIN (Mitchell) - We have heard the Leader of the Opposition (Mr Whitlam) laboriously go through his speech tonight. I think that this was due to the fact that he had prepared it himself. The only time that we may get any comfort from what he has to say is when his speech is prepared by some genius in his Party. I oppose the Bill, not for sentimental reasons or because we are an immature nation. We are a nation in our own right. Nor do I oppose the Bill because it will break our ties with the United Kingdom. Then why do I oppose the Bill? I oppose it, in the main, for the reason stated in the penultimate paragraph of the second reading speech of the Attorney-General (Mr Bowen). He said:

At the same time, I should not let this occasion pass without expressing the Government's appreciation of the part that the Judicial Committee of the Privy Council has played since federation in the Australian judicial system. There have indeed, over the years, been many notable contributions to the interpretation and working of our Commonwealth Constitution.

That is my main reason for opposing the Bill. If the Privy Council were allowed to continue making the notable contributions to the interpretation and working of our Constitution, those contributions assuredly would be just as valuable in the future as they have been in the past.

Another reason why I oppose the Bill is that Australia is in a unique position in relation to the Judicial Committee of the Privy Council. Our legal system and procedures have been formed and based on the British system. What a wonderful position we are in to have the opportunity to appeal to the Judicial Committee of the Privy Council, a body of the highest judicial standing in the world, removed from our political scene and our business, commercial and mercantile affairs but nevertheless well versed in our Constitution and laws.

I have the greatest admiration, esteem and respect for the judiciary in Australia and regard every member of the judiciary as a gentleman of the highest integrity and honour. However, many of them have been associated with and have participated in Australian politics. Because of their background and earlier affiliations it is possible that they have, quite genuinely, sincerely and honestly, given an interpretation of the Constitution which was affected by those affiliations. I regard the right of appeal to the Judicial Committee of the Privy Council as our strongest bulwark against extreme legislation either to the right or to the left. But for the. Privy Council we now would have a nationalised banking system with all its restrictions and control over industry. The' Privy Council has protected our interstate trade and the sovereign rights of the States.

In his second - reading speech the Attorney-General has this to say:

The brevity of the Bill belies its significance and importance. In this short measure, the Commonwealth Parliament is being asked to take an historic first step towards the establishment of the High Court as the final court of appeal for Australia.

It is deplorable that only four speakers, I think, will take part in the debate on this historic measure.

Another point I want to mention is that the Bill restricts appeals only in relation to Federal or Territory matters. It does not prevent decisions from a State Supreme Court being taken to the Privy Council; it does not exclude an application for leave to appeal to the Privy Council from a decision of the High Court where the decision relates to a State matter; and it does not preclude leave being sought directly from a State Supreme Court in respect of such a State matter.

What kind of judicial system are we setting up? Some litigants will have the right to appeal and others will not. That is an untenable situation. Our whole system of justice needs a complete overhaul by our jurists and members of the legal profession in co-operation with outstanding men of industry and commerce. The legal profession has built up a protective barrier that is impenetrable. There is no justice without money - and I mean big money. The fees charged by the legal profession are out of all proportion to the earning capacity of other professions. I suppose that is one reason why my friend, the honourable member for Warringah (Mr St John), finds his parliamentary allowance so meagre when compared with his income as a barrister.

Let us consider the earning capacity of an engineer who has had to spend 6 or 7 years at a university, and then some years or. active application and experience, before he can earn one-third of the income of a barrister who can qualify within 3 years and then be let loose on the community without any further training or experience. Honourable members may laugh, but that is true. On a recent visit to the Land and Valuation Court in Sydney 1 was appalled when I saw five counsel presenting their cases. They fumbled with their papers and made incoherent remarks. But for the assistance of the presiding Justice, some of them would not have been able to present their cases at all. Some could not give a clear definition of the location of the property that was the subject of the court's decision. Each case was adjourned, but each barrister was at least $100 better off and the poor old cocky out at Warialda, of course, had to suffer the loss.

We should not be considering a Bill to approve the limitation of appeals to the Privy Council, but rather a Bill that would enable our most humble citizen to get justice within the reasonable bounds of his financial position. The fees charged should be reasonable and fair. I am sorry that there are not more honourable members to speak on this Bill, whether for it or against it. I deplore its being presented. It would have been far better had the States been approached about this matter so that we could have uniform legislation. I stress my earlier contention that we are in a unique position. We have men on the other side of the world, detached from our political and business associations, well versed in our laws and our Constitution, who could give an objective judgment. Never on any occasion during my association with members of the legal fraternity have 1 heard a suggestion that they have not concurred with the findings of the Privy Council. Of course, this may have been because there was no further avenue of appeal, but I should say that 90% of the legal fraternity has the greatest respect for the Privy Council and regard it as the outstanding court in the world. It is a court whose judgments are respected the world over. Why should we retreat from this position?


Mr James - It costs a bit of money to get before the Privy Council.


Mr IRWIN - I said that we should be considering ways whereby our most humble citizen could go to the Privy Council and not be denied his rights. As I said earlier, there is not justice in Australia without money - and I am not speaking of small money. I know of many people who cannot go to the courts. Their cases are just, but they have not the wherewithal to obtain legal aid, and the Public Solicitor or Public Defender cannot assist them because they may own their own homes or have a few other assets. These people cannot afford to risk sacrificing their possessions in an attempt to get their due award from a court.

I trust that the Attorney-General will consider my words. In my opinion the Bill is a retrograde step. I am positive that the Privy Council represents the greatest bulwark against extreme legislation, either to the left or to the right.







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