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Wednesday, 5 December 1973
Page: 2458

Senator GREENWOOD (Victoria) -The Northern Territory Supreme Court Bill seeks to enlarge the Northern Territory Supreme Court. It is proposed that instead of the existing one resident judge in the Northern Territory there should be a power to appoint a number of judges, that number being unspecified.

Senator Murphy - Does the honourable senator know that the number is specified in the amendment that has been circulated?

Senator GREENWOOD - I am indebted to the Attorney-General (Senator Murphy) for telling me that an amendment has been circulated. I think I know the general purport of the amendment but I have not seen a copy of it.

Senator Murphy - I am sorry. I have shown it to Senator Withers. The number specified is three.

Senator GREENWOOD -Once again I acknowledge what Senator Murphy has said. I knew that this was to be proposed but I have not seen the text of the amendment. I feel it is appropriate to make some comments on the proposition as advanced by the Attorney-General. I notice that the justification for the course which he has undertaken is: . . the the volume of business in the Supreme Court, which sits both in Darwin and in Alice Springs, requires the services of a second resident judge as a matter of urgency.

I am using the words which the AttorneyGeneral used when he gave his second reading speech in support of this measure. Because I feel it would be helpful I invite him in his reply to explain the reason why a second resident judge is necessary. In his speech he went on to state:

The present system, dependent as it is upon the availability of the additional judges to sit in the Territory from time to time, has proved unsatisfactory and inadequate to cope with the volume of work.

I appreciate that it is always a difficult question to determine whether the size of a bench is adequate for the court to serve that community over which the judge or judges preside. But I feel that the Attorney-General ought to explain in some more detail the purposes of this measure. Last year I gave some attention to this matter and recognised that the time would come when an additional judge would be needed. But at that time we had a system which was serving the purpose very well. At the present time we have one resident judge, Mr Justice Forster. I have no doubt that he is fully occupied. But we also have a number of other judges who are judges of the Commonwealth Industrial Court, judges of the Australian Capital Territory Supreme Court and judges of the Northern Territory Supreme Court. Over many years the practice has been for those judges to go to the Northern Territory as the occasion requires. I have examined their work load and extracted figures from an answer which was supplied to a question on notice and which I received within the last week.

This year, until 30 October, judges visiting the Northern Territory have sat on 49 days compared with 41 days last year. This certainly indicates that there is more work for them to do in that court. In the Australian Capital Territory they have sat on 102 days whereas last year they sat on 106 days. But in the Commonwealth Industrial Court this year they sat on only 1 73 days compared with 271 days for the whole of last year. I do not believe it is good forjudges to be unoccupied. I do not believe it is good for the standing of the judiciary for them to be seen to be holding a judicial office and not to be engaged in judicial activities. Whenever there is a desire to increase a number of members of a bench the need for that increase should be plainly made out. Of course the judges of the Industrial Court on their appointment have the opportunity to accept and perform other judicial functions outside the Industrial Court work to which they are primarily appointed. If the appointment of one, two or three additional judges to the Northern Territory Supreme Court means that the judges of the Industrial Court have less to do, I do not think that is in the interests of the judiciary or of the standing of the judiciary in the community.

I have extracted from the answer which was supplied to my question on notice the work load of the judges of the Industrial Court who also hold positions in the Northern Territory and in the Australian Capital Territory. For instance I note that this year Mr Justice Dunphy has sat in all jurisdictions together with the jurisdiction in Norfolk Island. He has sat for 62 days. Mr Justice Joske has sat in the Australian Capital Territory, in the Northern Territory and in the Industrial Court for a total of 78 days this year. Mr Justice Smithers has sat in the Industrial Court and the Australian Capital Territory on a total of 70 days this year. Mr Justice Woodward, notwithstanding that he has been on the Aboriginal Land Rights Commission, this year has sat some 1 3 days in the Northern Territory and in the Australian Capital Territory. Mr Justice Franki has sat some 57 days. I imagine that that is not an onerous workload for those judges. I appreciate that there are problems of distance, of scheduling sittings, of being able to ensure prospective litigants, their counsels and solicitors that a judge will be available on the scheduled day and of being able to cope with the emergency situations which arise from time to time in all jurisdictions. These are all problems with which court administration has to be concerned. But these are matters which I think require some attention. I mention them only because I feel that the problems with which the Attorney-General has been undoubtedly concerned in the Northern Territory could be explained in a way that takes account of the matters I have mentioned. Nevertheless I think they should be explained.

An earlier interjection referred to the number of judges. I am pleased that the AttorneyGeneral has responded to suggestions from the Opposition that it is desirable to limit the number of judges of a court. I think it is a sound application of the principle that there should not be a general ability at large for judges to be appointed without the authority coming from the Parliament. For example, the Judiciary Act states that the High Court shall consist of no more than 7 judges. If the number of judges is to be increased then Parliament must be asked to authorise the increase. The number of judges of the Industrial Court is nine. It is only recently that that number was arrived at, increasing it from seven. Of course, the Australian Capital Territory Supreme Court consists of 3 resident judges. If that number has to be increased then a particular request has to be made. I think it is appropriate that that should be done in the case of the Northern Territory Supreme Court.

I must say that the Opposition initially thought that it would be adequate to have 2 judges. The Attorney-General accepted the principle that there should be three but the Opposition will raise no objection to that proposal. Indeed, with certain hindsight one might look upon the matter favourably because I am sure Senator Murphy will recall that in 1971 the number of judges of the Australian Capital Territory Supreme Court was increased to two at the beginning of the year but further legislation at the end of the year increased the number to three. Therefore we think it is a not unreasonable proposition to accede to the suggestion that there should be 3 judges.

Speaking now in more general terms, I note that the Attorney-General proposes to introduce a Bill- I imagine that this will be done before the Parliament rises this year- to constitute a Federal superior court. We shall be interested to see what is proposed. I think he is fully aware that in the latter part of 1972 the previous Government indicated its view that there should not be a Federal superior court, thereby ending what had been a fairly long period in which opinions had vacillated and differed as to the merits of a superior court. I hope that the opposition to the superior court still will be maintained and that the reasons for it will be expressed so that out of the debate which differing points of view will generate there can come a consensus which will lead to an improvement in the structure of our judicial system in Australia.

I venture for the consideration of the AttorneyGeneral, although I know that what he is espousing in the form of a superior court is a long held plank in the platform of his Party, that it is desirable in the interests of litigants that they should have one system of courts throughout Australia. A dual system of courts whereby you can possibly proceed in one court and be nonsuited, declared by the judge to be in the wrong court and then have to go into another set of courts, is an undesirable situation to have. It is the sort of situation which the Judicature Act over 100 years ago was designed to overcome in England and in the Australian colonies. Whilst there are constitutional problems at the moment, I would hope that we can look to the day when we will have the one system of courts with the High Court as the apex and that there will be no Commonwealth system of courts existing alongside the State Supreme Courts. I mention that at this time because I imagine that one of the propositions which Senator Murphy will advance m support of the superior court concept will be that it will be a court to which appeals from the Territory courts may be taken. I may be wrong in the assumption but I can well imagine that that is an argument that can be advanced. The fact that the argument can be advanced is one thing which I think has to be taken into account at the present time.

I believe that the Commonwealth must have, comparable with the State system of courts, a Territory system of courts- judges for the Australian Capital Territory, judges for the Northern Territory, judges for the Supreme Court of Norfolk Island and, if ever the occasion arises, judges for those other Territories to which the judges may have to go occasionally- and that this structure of Territory courts should contain within it an appellate system whereby judges who may be appointed as judges of the Territory court, alternating between the Northern Territory and the Australian Capital Territory, will provide a body of judges from which an appeal bench can be constituted. It is an omission at the present time- an omission which was acknowledged in the time of the previous government. Nevertheless such a system was felt not to be warranted at that time by the volume of business. Notwithstanding that it was not then warranted it was recognised that in the near future there would have to be some appellate structure within the Territory courts. It may be that we are approaching that time. When it does occur I hope that the appeal will not be to a superior court as is proposed but to a structure within the Territory itself.

I have mentioned these matters as an advance indication to the Attorney-General of a reaction to his Bill. I also express the hope that his mind is not fixed on the way in which he has indicated in the past that his Party desires to proceed but that some consideration can be given to ensuring, whatever be the ultimate system of courts that we have in this country, that litigants will not be penalised by facing the risk, quite apart from the ordinary risks of litigation, of finding themselves in the wrong court. I know that the amendment will be moved at the Committee stage and I have indicated that the Opposition will support it.

There is one final matter to which I wish to refer. I am taking the debate on this Bill as a convenient opportunity to raise it. I refer to the practice which has developed this year of employing new drafting techniques. This is fairly apparent in this quite short Bill. I notice in particular that this Bill deletes that section, which has been customary in Commonwealth legislation ever since there has been Commonwealth legislation, which sets out the parts into which the Act is divided. I think it is clause 3 of this Bill which repeals the section of the original Act which divides the original Act into a number of parts. I do not think that this is a Bill in which any objection should be taken to that procedure because I recognise- something has been said about this in the past- the way in which the draftsman is now producing the legislation. But that is not the only matter to which I wish to refer. The Schedule indicates that the pattern has been adopted to a degree, as set out in this Bill- there are other Bills in which the same pattern has been appearing of removing words. For example, I refer to expressions like 'of this Act' and 'of this section'. Likewise, words are being replaced with figures. I suppose that it is a change which those who have practised in the law will take some little time to adjust to.

All I would ask of the Attorney-General, because I think it would overcome a lot of the difficulties expressed from time to time by senators who have no legal experience, is that he tell us what the new procedures are and, as far as possible, why they have been adopted. These things have now become apparent and I hope that at some stage he might prevail upon the Parliamentary Counsel to set down the new procedures in writing and circulate them so that we may see the changes which have occurred. Apart from those matters which are matters of comment at an appropriate time, the Opposition will not oppose this Bill but we look forward to the amendment which has been foreshadowed.

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