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Thursday, 4 April 1968


Mr UREN (Reid) -! support the Bill and I commend the Attorney-General (Mr Bowen) for his progressive leadership in introducing it. In his second reading speech he said:

.   . 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.

I would think that every Australian should join with the Attorney-General in support of this measure. I agree that this is an historic and correct move forward towards an independent Australia. It is important that we view it in this perspective. We are living in the second half of the twentieth century. Never before in the history of this universe have so many nations and people thrown off the shackles that held them down. I do not contend that the Judicial Committee of the Privy Council is a body of oppression but in its early days it did represent the establishment and, as the honourable member for Cunningham (Mr Connor) rightly said, it had a tinge of colonialism. Of latter days its decisions have been in agreement with those of judges of the High Court of Australia. This has been so particularly over the past decade. The Privy Council is a remnant and a relic of the old imperialistic era.

The Minister stated that the Bill marks an important step in Australia's judicial history and he went on to say that it will enhance the standing and prestige of the High Court of Australia. The move is correct also on an economic basis and this must be given deep consideration. There has been insufficient discussion of this aspect. Litigation before the Privy Council is not a level of law that is open to a normal Australian. It is a level open to the very wealthy - perhaps one would say to the very wealthy corporation.

Honourable members may correct me if I am not accurate in stating how one approaches an appeal to the Privy Council. In order to appeal to the Privy Council a litigant must first petition for special leave to appeal to that body from a judgment either of a State Full Court or the High Court of Australia. In due course his counsel - generally a Queen's Counsel - appears before the Privy Council to seek leave to appeal. If leave to appeal is granted the case is heard within a period of from 3 to 9 months. In most cases counsel for both the appellant and the respondent travel from Australia to England for the hearing. During the hearing of the application for leave to appeal the parties are represented generally by one counsel. In many instances both Queen's Counsel and junior counsel travel from Australia to England for the hearing of the appeal itself. It is interesting to note that the Privy Council sits on only 4 days a week - Monday to Thursday inclusive. Its members have a pretty good trade union.

Recently I was involved in a case before this ancient body - the Privy Council. It was the case of Uren v. Australian Consolidated Press. It was an 8-day hearing. The case commenced on Thursday, of one week, the court had a retirement on the following Friday, Saturday and Sunday, and then the case started again on the Monday and went through to the Wednesday of the following week. It occupied 3 weeks in all. Of course, when you keep a Queen's Counsel living abroad-and we all know the expense involved in living abroad for 3 weeks - the costs run into a very tidy sum. The costs of this case are a very interesting exercise. My taxed costs in the case amounted to $10,600.


Mr Peacock - How much?


Mr UREN - For the benefit of the honourable member for Kooyong, I repeat that my taxed costs amounted to $10,600. Luckily for me, I did not have to pay the costs. Australian Consolidated Press had to foot the bill lor $10,600. But, of course, I know that the Attorney-General is well aware that Australian Consolidated Press, which is a wealthy monopoly in this country - perhaps I should withdraw that remark and say that it is a wealthy oligopoly -can write off its legal expenses as a taxation deduction. But even though I was successful in this court case, my London solicitors informed me that I would have to pay $500 for solicitors' and client's costs in excess of the taxed costs. So from my personal experience I would say that this type of justice is outside the realm of a normal Australian.

Another interesting aspect that should be brought to the notice of the House is that in regard to the hearing to seek leave to appeal I did not consider it was necessary to send over a legal representative from Australia. I knew it would be costly. But had I sent over a representative from Australia to appear in the hearing to seek leave to appeal, Australian Consolidated Press would have had to pay further substantial costs in addition to $10,600. But let us face facts. As a member of Parliament I am in the fairly high income bracket in this country. What opportunity would an ordinary Australian have to fight a case before the Privy Council? Australian Consolidated Press sent over from Australia a very distinguished Queen's Counsel to appear in the hearing to seek leave to appeal. On the second occasion when the case was to be heard the company sent over from Australia not only a Queen's Counsel but also a junior counsel. Imagine what I would have had to pay if I had had to meet the enormous bill for this. If my taxed costs amounted to $10,600, I can assure the House the taxed costs of Australian Consolidated Press would have been far in excess of that figure.

I could refer to other figures, but I do not want to deal with this question at any length because the case is still sub judice. I want to deal specifically only with the Privy Council aspect of the case. The Minister shows great promise. He is a man of dignity. In the House he quietly listens to questions, no matter how difficult they are, and he answers in a dignified manner. I ask him to give this matter deep consideration. He said that this Bill was the first step towards the establishment of a High Court as the final court of appeal in Australia. I commend those words. Here is a man who seems to want the Australian

High Court to be the final court of appeal in this country. Let me deal later with some of the technical aspects of such a change.

If the law is to be just to all, this expensive procedure of appeals to the Privy Council must be scrapped. My fear is that while an appeal to the Privy Council still lies, this establishment will be used by the wealthy to frustrate the course of justice. We must examine how best we can make the High Court the final court of appeal in Australia. Could we do this by referendum? I have asked this question of many legal men. If this could be done by referendum we must begin to educate the public in the need for this change. It may be that the Commonwealth and State AttorneysGeneral could present a unified front to get this change.

The honourable member for Parkes (Mr Hughes), who is a distinguished Queen's Counsel, submited proposals to us for bringing about changes in appeal procedure. But I detected a conservative streak in his makeup when he referred to State rights and State jealousies. Earlier tonight the Leader of the Opposition (Mr Whitiam) gave technical details of how the problem of Australian High Court judges dealing with appeals from decisions of that court could be overcome. We know that at present there are only seven judges of the High Court. If five of those judges sit as a full bench of the High Court, this leaves only two who have not had any prior interest in the case to hear an appeal from a decision of that court. It may be necessary for the other three members of the court of appeal to be judges who earlier tried the case as members of the High Court bench.

This is a difficult problem but may 1 make a suggestion as to how it might be solved? It may be necessary for us to consider increasing the number of judges of the High Court. I do not think there are enough judges of the High Court. Some of them are getting old. I know that one of them recently had a leg amputated. The responsibility of their work imposes a great strain on them. It may be necessary to increase the number of judges of the High Court to enable them to travel more than they do now, to give them more time for study and to give them greater opportunities to rub shoulders with the common man.

It is essential that judges of the High Court have the opportunity to understand our society at the grass roots level.

The judicial body with the highest standing and reputation in the world is the Supreme Court of the United States of America. It is a citadel of freedom. Its judgments have done more for freedom than have the judgments of any other body on this universe. Many of the members of the Supreme Court bench are quite strange personalities. One of them, a Roosevelt New Dealer, is a keen hiker. He has been married three times and his last marriage, I think, was to a young woman in her twenties. Some people might say that he is an eccentric fellow, but all I ask is that they read his judgments. If the number of High Court judges were to- be increased, the formula proposed by She Leader of the Opposition could be adopted. 1 suggest that this proposal be given consideration.

To bring out the point that concerns me, I will give a hypothetical case. Let us consider a jury case that is heard in the Supreme Court of New South Wales. Most of the appeals to the Privy Council seem to come from that State. The jury makes an award and then there is an appeal to the Full Bench of the Supreme Court of New South Wales. Powerful financial interests might be aware of the thinking of the members of the Australian High Court and they might decide to by-pass the High Court and go direct to the Privy Council, feeling confident that the Privy Council would uphold the judgment of the High Court but might overrule a judgment of the Supreme Court. A precedent for this was established in the case of Uren v. Australian Consolidated Press. The Privy Council upheld the opinion of the High Court that the decision in the case of Rookes v. Barnard - which was a consideration in my case before the High Court - was not good law in Australia because Australians with their own process would develop their own law in their own way.

I can be corrected on these matters if I am wrong. I understand that in the last decade the only case in which the Privy Council has reversed a decision of the Australian High Court is Parker v. The Queen. This was a murder case. In 1964 the Privy Council upheld the minority judgment of Mr Justice Windeyer and Mr

Justice Dixon and rejected the majority decision of Mr Justice Kitto, Mr Justice Menzies and Mr Justice Owen. I understand that this is the only case since 1957 in which the Privy Council has reversed a decision of the Australian High Court. But let me come back to the case of Uren v. Australian Consolidated Press in which the Privy Council more or less laid down that Australian law in fact should develop in its own way. I do not want to lecture the House on this matter. I am a layman and I know that most of the people who have spoken earlier tonight have had legal training. But I have had a personal experience of the law over the last 4 or 5 years. I have sat through quite a number of trials both in the Full Supreme Court of New South Wales and in the High Court of Australia. I could not go to London for the Privy Council hearing, but I read the judgment. I have no doubt that I have yet to see a little more of the courts. This legislation is a great step forward. This is an historic move for Australia. The Attorney-General and the Government are to be commended on the legislation.







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