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Wednesday, 31 March 1971


Senator MURPHY (New South Wales) (Leader of the Opposition) - The purpose of this Bill is to increase the membership of the bench of the Australian Capital Territory Supreme Court by 1 judge. There is only 1 resident judge at the moment and the effect of the Bill will be to add another judge. It is understood that the newly appointed judge will not be primarily concerned with the judicial work of the Court but for the greater part of the time will be engaged on the work of a law reform commission for the Territory. From time to time he will assist with the judicial work of the court.

The Opposition supports the Bill but we are critical of some judicial aspects existing in the Australian Capital Territory. We do not think that this Bill will solve the problems that exist here. A lot more ought to be done. The state of the law in the ACT is disgraceful and has been declared to be so not only by judges from time to time, in a very polite way, but also by others. Sometimes judges have departed from politeness and have been very critical. I will not say who has been polite and who has not. Mr Justice Joske has criticised the state of the law in the Territory. Mr Justice Fox, the resident judge, also has been critical. In general the lawyers of the Territory, whether serving on the bench, as practitioners or as academics have expressed a very strong criticism of the backward state of the law in the ACT.

The law in the Territory is in a very unsatisfactory state. It has not been brought up to date and contains all sorts of absurd provisions, some of which are most unjust. For instance, the workers' compensation law is a disgrace. So many anomalities in so many branches of the law have been pointed out by people experienced in it that it is difficult to believe that the situation could have continued for so long. The Government has said that it will do this and do that. It has said that it will institute law reform. There have been great problems and now its seems that a law reform commission is to be established. We welcome the move, much as we may criticise the neglect of the past. I do not think that even the Minister for Health (Senator Greenwood), who in this chamber represents the Attorney-General (Mr N. H. Bowen), would venture to suggest that there has not been very serious neglect in the past. We hope that the situation will be repaired.

The Bill suggests that the judge to be appointed will work on the law reform commission to be established. That is an advance. We hope that the work of law reform in the Territory can be incorporated in similar work conducted on a national scale. The time has come for the establishment of a national law reform commission. Law reform bodies have been established in New South Wales, South Australia and other States. Some of them have a tendency to direct their attention first to laws which are not of much concern to most of the people. A similar position arises overseas where law reform bodies tackle first laws such as those relating to cattle trespass. The laws which concern the majority of the people are not always placed at the top of the law reform agenda.

These problems have to be tackled and it would probably be of advantage to everyone if an Australian law reform commission were established with representation of the Commonwealth and the States. It could examine many of the problems which occur in parallel fashion in the States and Commonwealth territories. Solutions could be worked out. Many of them ought to be almost self-evident. Law reform problems have been studied in other countries and some hard work has to be done here. Some speedy moves need to be made to uplift our laws into the 1970s, or at least into the 20th century. The necessary work has not been done and a national law reform commission is required. I think that the Standing Committee of Attorneys-General has been a failure. Its existence has been a barrier to a more effective body being established to produce reforms in the law. We welcome the move to establish a law reform commission in the Territory and to appoint another judge, but it does not go far enough.


Senator Gair - Is there a law society here in Canberra?


Senator MURPHY - Yes, and also a bar association. There is an overlap between the 2 bodies so that some barristers belong to the law society. It covers both barristers and solicitors. It is a rather active law society. It has been critical of the state of the law in the ACT. Senator Gair would appreciate that much of the criticism has not been made on a party political basis. It has been made on the basis that on any man's view the law should not be as it is and ought to be corrected. The anomalies have existed for too long and ought to be corrected. I have read what the former Attorney-General had to say about the newly appointed judge having something to do with judicial work, but working mainly on law reform. There has been a little seesawing about how much judicial work he will do and how much work he will do with the law reform commission. Another judge should be appointed to work on judicial matters in the ACT, as the ACT Supreme Court is deficient in judges. There is one resident judge.

A succession of judges has been appointed from the Commonwealth Industrial Court. Some very distinguished judges have done a very good job here, but for varying reasons they have been transferred to other judicial work. Mr Justice Gibbs who served on the Supreme Court Bench of the ACT has moved to the High Court. Another judge has gone to the Bankruptcy Court, while others are now engaged on work in the Commonwealth Industrial Court. The volume of judicial work is increasing in the Territory. It is also increasing in complexity. This is the national centre. For a variety of reasons a great deal of complicated law will be dealt with - law which involves more problems than those arising in other centres. I have in mind private international law and application of the law when differences exist between the Australian Capital Territory and State laws, and sometimes the laws of other countries. Great problems will surely arise and there is a scarcity of judges to deal with the judicial work. More than one resident judge is required in the ACT, as has been indicated by the resident judge himself. He has said that there are just not enough judges.


Senator LAWRIE (QUEENSLAND) - Could you tell us how big is the backlog of cases?


Senator MURPHY - I understand that the previous Attorney-General said a few days ago that the backlag is not 12 months, as was contended, but S months. From the time that the parties lodge a claim with the court - the plaintiff files a claim and the defendant replies - and the lawyers have finished their paper warfare and have indicated their readiness to proceed, the delay is 8 months. So there is an 8-months delay simply because of a scarcity of judges - the appropriate legal machinery. That is just not good enough. It is just not right in a modern society. I will read to the honourable senator some remarks made on 17th March by the then Attorney-General when this Bill was being debated in the other place. Mr Hughes said:

I was going to say that when the honourable member for the Australian Capital Territory referred to delays in the hearing of cases in the Supreme Court of the Australian Capital Territory he mentioned a delay, I think, of 1 year from the time of setting down a case. I inform the House that on the information available to me the delay is not of that order. I am told that at the moment it is of the order of 8 months. I do not accept this as being a satisfactory situation - far from it - but what I do say is that when the Government appoints an additional permanent judge pursuant to this Bill when it becomes an

Act, I expect that substantial inroads ought to be made into the period of delay and that when I have taken stock of the position I .shall give further and anxious consideration to the proposal which has been made, that the court should have yet another judge, namely, a third resident judge.

A little further discussion took place on the matter, and it was pretty apparent that both things could not be done. There is an overwhelming need for law reform. If the judge who is appointed is really to tackle this problem of law reform he should get down and do it. He cannot be diverted into judicial work. At the same time there is an overwhelming need for at least another judge, and he should simply be appointed. There should be a judge appointed to do the judicial work. If it is intended that we have a law reform commission, the fact that the man who is appointed to it happens to be a judge should not cause concern on the aspect of the judicial work. It is not enough to say that he will sort of be there and be able to do some of the work. Perhaps it is a very desirable situation that in an emergency the judge who is doing law reform work will be able to do judicial work. That will be fine when the emergency occurs. But that does not help in proceeding with the ordinary work of the court. We suggest, with respect, that the sensible thing to do is to bring in a Bill to appoint another judge to do the judicial work of the court.

There are other technical reasons why more judges should be appointed. If this were done we could have an appeal system within the Supreme Court of the Australian Capital Territory and cases would not have to go to the High Court of Australia. Litigants ought not to have to go to the highest court of this land, the High Court of Australia. That court ought not to be burdened with what might be relatively simple appeals from the Supreme Court of the Australian Capital Territory. As is the practice within the States, there ought to be provision for an internal appeal, say, from one judge to the other two judges, or three, as the number may soon become. But it is pretty evident that we need here in the Australian Capital Territory a proper judicial machine which is comparable to what has been found necessary elsewhere under the common law system in which we operate. We do not have it. This Bill does not provide for it.

However, the Bill proposes an advance on what we have. Therefore the Opposition agrees to the measure.







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