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Wednesday, 12 December 1973
Page: 2724

Senator MURPHY (New South WalesAttorneyGeneral and Minister for Customs and Excise) - I move:

That the Bill be now read a second time.

The purpose of this Bill is to establish the Superior Court of Australia. The proposal to establish this Court has now had a long history. The project was approved by the Menzies government 10 years ago. It was brought by Mr Justice Bowen, when he was Attorney-General, to the stage of a Bill being introduced. That Bill was allowed to lapse, and last year Senator Greenwood as Attorney-General announced that the project was being abandoned by the

McMahon Government. The policy of the Labor Party on this matter has been one of consistent support for the establishment of the Superior Court. The policy speech of the Prime Minister (Mr Whitlam) last year contained a firm commitment to establish the Court. The Government believes that the areas of major federal law should be administered by a federal court established under legislation enacted by this Parliament, and should not be left to be administered in State courts.

The Constitution established the High Court of Australia, and it empowered Parliament both to create other federal courts and to invest the courts of the States with federal jurisdiction. Extensive use has been made of the powers to invest State courts with federal jurisdiction. In the 73 years since federation, federal courts have been established to deal only with matters of bankruptcy and industrial law. Indeed, even in the bankruptcy field, the Federal Court of Bankruptcy sits only in Sydney and Melbourne, and bankruptcy matters are dealt with by State courts in the other States.

The Australian Industrial Court has come to be invested with a miscellany of jurisdiction in other matters in recent years. It has been given jurisdiction in certain matters under the Broadcasting and Television Act. It exercises jurisdiction under the Restrictive Trade Practices Act. There are other matters. But with these exceptions, the laws made by this Parliament have been administered in State courts staffed by judges appointed by State governments. There has not been, as I reminded the Senate last year in speaking to the announcement that the then Government would not proceed with the Superior Court, any real opportunity for this Parliament to examine, so far as it may be proper for the Parliament to do so, the manner in which these laws have been so administered. Of course the courts have not distinguished between Federal and State law, and litigants in federal actions have not suffered any disadvantage or enjoyed any advantage over litigants in State actions. It has been put forward as one of the virtues of the present system, that a State court does not generally need to inquire whether the matter before it is a Federal or State action. Problems of limits of jurisdictions and of power to deal with a particular matter have thus been avoided.

There are large areas of jurisdiction where there are undoubtedly many matters of a specialised nature falling within federal jurisdiction. Bankruptcy is a case in point; so too are taxation, trade practices, family law, industrial property and a wide range of matters arising out of laws made by this Parliament. It is proper that the Australian Government should be able to be sued and to sue in its own courts. More important still, the decisions of Australian Ministers and officials should be subject to review, so far as it is proper for courts to do so, and to judicial supervision by a court able to build up expertise in the field of administrative law. Judicial review of administrative section will become a very significant part of the jurisdiction of the new court as the Government proceeds with other plans to establish administrative appeal tribunals and to simplify and extend the procedures for judicial review.

One significant consequence of federal law being administered in State courts is that this Parliament is thereby excluded in practice from considering reforms in an important area of the law, that of practice and procedure. The practice and procedure of the courts have a substantial effect on the rights of individuals. That effect may result from the delays caused by archaic procedures, from the costs involved, or from the manner in which judgments of the courts are executed. The present system also allows the rights of a person under federal law to vary from one State to another. For example, whether he has a right of appeal and what form that appeal may take, or whether there is a right to a jury in a civil matter, may depend on the State in which the action is brought.

I have carefully examined all of the arguments advanced against proceeding with the Superior Court following the introduction of the 1 968 Bill. Those arguments rested mainly on the proposition that there would be cases in which it was doubtful whether, the matter before the Superior Court was or was not one of federal jurisdiction. It was argued that this would lead to litigation to decide whether the Superior Court had jurisdiction or not. I believe far too much was made of that argument. I accept that there is some doubt about the fringe areas, but believe there is less doubt than has been claimed by the opponents of the establishment of the Superior Court. Those doubts do not, in my view, constitute an adequate reason for not entering those areas where there is undoubted federal jurisdiction. But that argument, if accepted, would equally be a reason for this Parliament not entering the area of reform in practice and procedure. Once a different procedure is adopted for dealing with federal matters, then a court hearing a matter must decide whether or not it is dealing with a federal matter. That is so whether that court be a State court exercising federal jurisdiction or a federal court. The argument becomes one for this

Parliament doing nothing in this important area of the law, which has a considerable bearing, as I have said, on the rights of individuals under laws made by this Parliament. The setting up of its own court will give an opportunity for the Parliament to introduce badly needed reforms in this area of the law.

The proposal for the Superior Court was originally put forward by the present Chief Justice of Australia when he was Attorney-General and the justification for setting up the Court rested largely on the need to relieve the High Court of most of its single justice original jurisdiction. The High Court would thus concentrate on its task of interpreting the Constitution and acting as the ultimate Court of Appeal within Australia. There were then substantial arrears of work in the High Court, but this has been remedied.

I have already indicated my own view that the justification for establishing the Superior Court does not rest entirely on the circumstantial foundation of the work load on the High Court at any particular time. Nevertheless, the original justification remains valid, notwithstanding that there may now be no particular burden of original jurisdiction, other than in constitutional matters. The High Court will be left free to continue its great work as a constitutional and appeals court. In much the same way, the Superior Court can become a great trials court in federal matters.

I turn now to a general description of the Superior Court Bill. The Superior Court would absorb the jurisdiction of the Federal Court of Bankruptcy and the Australian Industrial Court. The Bill would not abolish those courts. They would, except in respect of pending matters, continue but without jurisdiction until such time as there are by resignation, retirement or otherwise, no longer any judges of those courts. To continue those courts avoids any constitutional problem that might attend upon the abolition of a court created by the Parliament.

It should be made clear that the Superior Court would continue to exercise the jurisdiction of the Industrial Court under the Conciliation and Arbitration Act in the same way as the Industrial Court. In those cases in which the Conciliation and Arbitration Act requires a matter to be heard before a bench of 3 judges, the Superior Court would be constituted by a bench of 3 judges. There would be no appeal to the High Court from the decisions of the Superior Court in those matters in which there is now no appeal to the High Court from the Industrial Court. If I may depart slightly from the text: There may be some further amendment in the Committee stage restricting, in one area, the right of appeal where there had been such an appeal.

The Bill will give the Superior Court jurisdiction in those matters which, under the Constitution, are matters of federal jurisdiction. This means that the Court would have jurisdiction in matters in which the Constitution itself confers jurisdiction on the High Court, or provides that jurisdiction may be conferred on the High Court by laws made by this Parliament. Generally the courts of the States have had federal jurisdiction conferred on them in all of these matters. This jurisdiction, which may be described as the general federal jurisdiction of the new Court, would be exercisable concurrently with State courts. Where jurisdiction is conferred on State courts by a provision of a particular Act, and matters arising under that provision are clearly matters of federal jurisdiction, then the Bill would confer jurisdiction on the Superior Court exclusive of the jurisdiction of State Supreme Courts. Except in those cases, the Bill would not take away any jurisdiction now exercised by State courts. In any case where it may be doubtful whether the matter is one of federal jurisdiction or not, it would be open to the parties concerned to commence proceedings in a State court rather than in the Superior Court, and so avoid the problems of jurisdiction.

It is proposed that the new Court would take over the original jurisdiction now exercised by the High Court under laws made by the Parliament, except for some few cases where, in the nature of the jurisdiction, it seems appropriate to continue to be exercised by the High Court. For example, it is not proposed that the jurisdiction of the High Court as a Court of Disputed Returns under the Electoral Act should be transferred to the Superior Court. It is not, of course, constitutionally possible to divest the High Court of the jurisdiction conferred on it directly by the Constitution. In such matters, the Superior Court would exercise a jurisdiction concurrent with that of the High Court, but it may be expected that, for the greater part, actions would be instituted in the Superior Court rather than in the High Court. With the proposal that the High Court should sit only in Canberra, its exercise of original jurisdiction in all but the most important matters will become relatively inaccessible to litigants residing in the States. The Superior Court, with judges located in each State, would be readily accessible throughout Australia. As facilities become available, it is contemplated that the Court might sit in major provincial centres in each State.

The matters to which I have so far referred follow broadly what was proposed in 1968 by the then Attorney-General. The present Bill departs from what was then proposed in a number of important respects. In the first place, this Bill departs from the 1968 Bill in that it sets out the whole of the jurisdiction that is intended to be conferred on the Superior Court under the existing law. The 1968 Bill would have conferred on the Superior Court only that jurisdiction which I have already described as general federal jurisdiction. Jurisdiction under specific Acts, such as the Bankruptcy Act, the Conciliation and Arbitration Act and other Acts, would have been conferred on the Superior Court by amendments of those Acts. The relationship between the Superior Court and the High Court would have been dealt with by amending the Judiciary Act. The result was that it was not possible to tell from a reading of the 1968 Bill the extent of jurisdiction of the Superior Court.

By way of contrast, the present Bill sets out the whole jurisdiction of the Superior Court and provides for the transfer to that Court of jurisdiction now conferred on the Federal Court of Bankruptcy and the Australian Industrial Court. Questions of appeals from the Superior Court to the High Court and to the High Court from State Courts in cases where an appeal would he to the Superior Court are also dealt with in the Bill. It is thus intended that the Bill should give a complete picture of the jurisdiction intended to be exercised by the Superior Court under existing legislation. This does not mean, of course, that additional jurisdiction may not be conferred on the Superior Court by future Acts of the Parliament.

Secondly, the present Bill would constitute a Full Court of the Superior Court as a court of appeal from decisions given by single judges of the Superior Court in the exercise of its original jurisdiction. Under the 1968 Bill an appeal would have lain directly from a single judge of the Superior Court to the High Court. Only in personal injury cases would there have been an internal appeal to a Full Court of the Superior Court under that Bill. The present Bill also provides for an appeal from the Full Court of the Superior Court to the High Court, but only by leave of the High Court or of the Full Court of the Superior Court. As already indicated, an exception to this system of appeals is to be found in matters now within the jurisdiction of the Industrial Court under the Conciliation and Arbitration Act.

Thirdly, the present Bill avoids the historical excursions that would have been necessary to determine the powers of the Superior Court under the 1968 Bill. That Bill conferred certain powers on the Superior Court by reference to the state of affairs in England immediately before the commencement of the Supreme Court of Judicature Act 1873. That was done to ensure that the Court would have the powers formerly possessed by a Court of Equity. It seems unnecessary to import historical references of this kind into the Bill as it is sufficient for the Court to be given a general jurisdiction to enable it to exercise whatever powers are available to a Superior Court of Record.

Fourthly, it is now proposed that the Superior Court should take over the jurisdiction presently exercised by the Supreme Courts of the Australian Capital Territory and the Northern Territory. Under the 1968 Bill those courts would have been left intact and the Superior Court would have been a court of appeal from those courts. A significant part of the jurisdiction now exercised by the Supreme Courts of those 2 Territories would be exercised by the Superior Court when established. For example, divorce proceedings, bankruptcy proceedings in the case of the Northern Territory Supreme Court, and actions by and against the Australian Government or its officers in the Territories would be instituted in the Superior Court instead of the Supreme Courts.

With the development of national legislation in new fields such as consumer protection and companies in which jurisdiction would be exercised by the Superior Court, there will be further erosion of the jurisdiction of the Territory Supreme Courts. They will be left with the major part of their jurisdiction at a level which is vested in district or county courts in the States. The logical development in the Australian Capital Territory and the Northern Territory would, therefore, be to invest the Superior Court with a general Territory jurisdiction and to establish an Intermediate Court to exercise jurisdiction in the Territories in most criminal and lower level civil matters. Ultimately, the Supreme Court would disappear, leaving 3 levels of original jurisdiction in each Territory, namely, Court of Petty Sessions, Intermediate Court and Superior Court.

The organisation and control of the legal profession in each Territory is affected by these proposals. At present, there is provision in each of the 2 Territories for practitioners to be admitted to the Supreme Court of the particular Territory and for that Court to exercise disciplinary powers over the conduct of legal practitioners so admitted. The Superior Court would, of course, be a federal court for the purposes of section SSB of the Judiciary Act, and a person admitted to practise before the Supreme Court of any State or Territory would be entitled to practise before the Superior Court in its Territory jurisdiction. It is therefore necessary to review the present arrangements regulating the legal profession in the Australian Capital Territory and the Northern Territory. Until that review has been completed, it is proposed that jurisdiction in matters relating to legal practitioners will be left in the Supreme Courts of the 2 Territories. Those courts will therefore remain in existence for the time being although stripped of all jurisdiction except that relating to legal practitioners.

Fifthly, the Bill provides for the Superior Court to be organised on a district basis for administrative purposes. It provides for the appointment of Chief Judges in charge of a district or districts of the Court. The Bill would create the districts of the Australian Capital Territory and of the Northern Territory, for the purpose of the court exercising on a geographical basis the jurisdiction now exercised in the 2 Territories by the respective Supreme Courts. The Bill also provides for other districts to be created by regulation. For the purpose of exercising its jurisdiction, there are to be 6 Divisions of the Court, instead of 2 Divisions as in the 1968 Bill. These 6 Divisions, which are specified in clause 13 of the Bill, correspond to the principal aspects of jurisdiction to be exercised by the Court. Jurisdiction in a Division will be exercised by judges assigned to that Division. There will be a Chief Judge of the Industrial Division, who will administer matters relating to the exercise of the industrial jurisdiction of the Court. This provision is made having regard to the special nature of that jurisdiction, and to the fact that the Court would be, as already prescribed, constituted in the same way as the Industrial Court for the exercise of that jurisdiction. Provision is made for the appointment of Senior Judges in the other Divisions of the Court.

Sixthly, the Bill provides for the practice and procedure of the Court to be prescribed by regulations, but the regulations so made may not remain in force beyond 30 June 1975. Except where regulations otherwise provide, the practice and procedure of the Court would continue to be regulated by existing provisions applicable to the particular jurisdiction being exercised. For example, until regulations made under the Bill otherwise provide, the practice and procedure in bankruptcy matters would be that now applicable to the Federal Court of Bankruptcy. It has been common practice for rules relating to the practice and procedure of a court to be made by the judges of that court. Exceptions to this are found in the Federal Court of Bankruptcy and the Australian Industrial Court, and in the practice and procedure under the Matrimonial Causes Act. In each case, the practice and procedure are dealt with by regulation and not by rules made by the judges. A good deal.of what is covered by practice and procedure affects substantive rights, so that the judges, in making rules relating to these matters, are in effect legislating. To leave practice and procedure to be prescribed by regulation may be thought to run counter to the principle that the courts should be independent of the Executive Government of the day, especially in a court such as this where the Australian Government would be a frequent litigant. Accordingly, it is intended that practice and procedure should ultimately be dealt with by Act of Parliament. The provision for regulations to deal with practice and procedure until 30 June 1975 is to enable legislation embodying a code of practice and procedure to be drawn up and submitted to the Parliament.

Clause 2 of the Bill provides for the Act to come into operation on the day on which it is assented to. The Superior Court would not, however, commence to exercise jurisdiction until a date to be proclaimed. This will enable judges and officers of the Court to be appointed, regulations dealing with the practice and procedure of the Court to be drawn up, accommodation to be provided and other necessary administrative matters to be dealt with before the Court commences to exercise jurisdiction. Obviously the most important appointment will be that of Chief Justice. It is contemplated that, if the Bill is passed by Parliament, an early appointment of Chief Justice will be made to enable the first Chief Justice to participate in the considerable task of organising the necessary administrative arrangements. The Bill has been so drafted that the various aspects of the jurisdiction of the Court may be commenced on different dates. The general original federal jurisdiction and the general appellate jurisdiction of the Court, which would be conferred by clauses 19 and 21 of the Bill, would commence on the date fixed by proclamation as the date on which the Court commences to exercise its jurisdiction.

Different dates may be set for the transfer of jurisdiction from the existing courts, and for the Superior Court to commence to exercise jurisdiction in matrimonial causes matters and taxation appeals. It is intended that ultimately the matrimonial causes jurisdiction of the Superior Court would be exclusive to that Court and State courts apart from summary courts, would not exercise jurisdiction under that Act. Sub-clause (5) of clause 20 provides for a gradual phasing-in of the exclusive matrimonial causes jurisdiction of the Superior Court. Different dates may be fixed in respect of different States, or even of different parts of the same State. These provisions have been designed to permit flexibility in the transfer of jurisdiction to the new Court. It may be possible to transfer the jurisdiction of the existing Federal Courts and the Supreme Courts of the Northern Territory and the Australian Capital Territory at the same time and on the date on which the Court is empowered to begin the exercise of its general original and appellate jurisdiction. I would hope that this would be so and that it will prove to be administratively possible for the Court to commence to exercise its full range of jurisdiction at the earliest possible date.

The Bill would not abolish forthwith any of the Courts from which jurisdiction is to be transferred. I have already explained that the Territory Supreme Courts would continue to exercise jurisdiction in relation to legal practitioners until the laws relating to the legal profession in the 2 Territories have been reviewed. The Federal Court of Bankruptcy and the Australian Industrial Court would be left only with jurisdiction in pending matters. The courts would not be abolished while any of the present judges of those Courts continue to hold office in those courts. The Bill provides that each of the 4 Courts concerned may be abolished on a date to be fixed by proclamation, but not while there are judges who continue to hold appointments to those Courts.

With the inevitable expansion of the legislation of this Parliament, the Superior Court will play an important part in the judical life of Australia. It will have a significant jurisdiction in defining civil liberties under the Human Rights and Racial Discrimination Bills which are already before the Senate. With the implementation of the policies of the present Government and the establishment of more effective procedures for judicial review, the Superior Court will have an important part to play in the relationship between the individual citizen and the Executive Government. I am confident that the Court will achieve considerable stature, and will be second only to the High Court as the interpreter of federal law in Australia. I commend the Bill to the Senate.

The Bill comes in at a late stage of the sittings because it was indicated to me that for reasons already advanced it would not be possible for it to be passed through the Senate in these sittings. I simply wish to indicate that that being so, I would welcome any constructive suggestions that are made for the improvement of this Bill from either House of the Parliament, from the other parties and from those outside who might be interested in it. If during the vacation any honourable senators have any suggestions to make or any queries to raise about the Bill I would welcome them. The suggestions could be sent to me and I would endeavour to explain, justify or accept them. It is a very technical Bill. Of necessity it is so. A great deal of work has been done on it, not only within the Department and my office but also outside assistance has been sought from a great number of quarters. That does not mean that the Bill is by any means perfect. I would invite and would welcome the assistance of those- especially in this chamberwho could contribute to the improvement of the Bill. (Debate (on motion by Senator Withers) adjourned.

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